Constitutional Reform Bill [HL]

House of Lords

Session 2003 - 04
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Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendment of enactments repealed or amended otherwise than by this Act
121

448   (1)
Section 10B (deputies) is amended as follows.
      (2)
In subsection (2) for “Lord Chancellor may” substitute “Secretary of State for
Constitutional Affairs may, with the concurrence of the Lord Chief Justice,”.
      (3)
In subsection (3) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
5
      (4)
After subsection (4) insert—
“(5)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 84(4) of the Constitutional Reform Act 2004) to
exercise his functions under this section.”
449
In section 10C (status), in subsection (3) for “given by the Lord Chancellor
10
from time to time” substitute “given by the Lord Chief Justice from time to
time after consulting the Secretary of State for Constitutional Affairs”.
450   (1)
Section 24 (rules as to chairmanship and size of bench) is amended as
follows.
      (2)
In subsection (5) omit “by the Lord Chancellor”.
15
      (3)
After subsection (5) insert—
“(6)
Rules under this section that relate to the matters referred to in
subsection (2)(c) are to be made by the Lord Chief Justice after
consulting the Secretary of State for Constitutional Affairs.
(7)
Any other rules under this section are to be made by the Secretary of
20
State for Constitutional Affairs after consulting the Lord Chief
Justice.
(8)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 84(4) of the Constitutional Reform Act 2004) to
exercise his functions under this section.”
25
451   (1)
Section 26 (Greater Manchester, Merseyside and Lancashire) is amended as
follows.
      (2)
In subsection (2)—
(a)
in paragraph (a) for “the Lord Chancellor” substitute “the Secretary
of State for Constitutional Affairs or the Lord Chief Justice”;
30
(b)
in paragraph (b)—
(i)
for “the Lord Chancellor” in the first place substitute “the
Secretary of State for Constitutional Affairs or the Lord Chief
Justice”;
(ii)
for “the Lord Chancellor” in the second place substitute “that
35
person, or those persons,”.
      (3)
In subsection (3)—
(a)
in paragraph (a) for “the Lord Chancellor” substitute “the Secretary
of State for Constitutional Affairs or the Lord Chief Justice”;
(b)
in paragraph (b)—
40
(i)
for “the Lord Chancellor” in the first place substitute “the
Secretary of State for Constitutional Affairs or the Lord Chief
Justice”;
(ii)
for “the Lord Chancellor” in the second place substitute “that
person, or those persons,”.
45
452   (1)
Section 27A (magistrates’ courts committees) is amended as follows.

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendment of enactments repealed or amended otherwise than by this Act
122

      (2)
In subsection (2) for “by the Lord Chancellor by order made by statutory
instrument” substitute “by order made by the Secretary of State for
Constitutional Affairs, after consulting the Lord Chief Justice, by statutory
instrument”.
      (3)
After subsection (3) insert—
5
“(4)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 84(4) of the Constitutional Reform Act 2004) to
exercise his functions under this section.”
453   (1)
Section 27B (alteration of committee areas) is amended as follows.
      (2)
For “Lord Chancellor” in each place substitute “Secretary of State for
10
Constitutional Affairs”.
      (3)
In subsection (4) before paragraph (a) insert—
“(za)
the Lord Chief Justice;”.
      (4)
After subsection (10) insert—
“(11)
The Lord Chief Justice may nominate a judicial office holder (as
15
defined in section 84(4) of the Constitutional Reform Act 2004) to
exercise his functions under this section.”
454
In section 29 (regulations about committees), in subsection (1) for “Lord
Chancellor” substitute “Secretary of State for Constitutional Affairs”.
455
In section 30 (supplementary provisions about committees), in subsection
20
(2) for “Lord Chancellor” substitute “Secretary of State for Constitutional
Affairs”.
456
In section 30B (regulations about Greater London Magistrates’ Courts
Authority), in subsection (1) for “Lord Chancellor” substitute “Secretary of
State for Constitutional Affairs”.
25
457
In section 30C (procedure of Authority), in subsection (1) for “Lord
Chancellor” substitute “Secretary of State for Constitutional Affairs”.
458
In section 31 (general powers and duties of magistrates’ courts committees)
for “Lord Chancellor” in each place substitute “Secretary of State for
Constitutional Affairs”.
30
459
In section 32A (alteration of commission areas) for “Lord Chancellor” in each
place substitute “Secretary of State for Constitutional Affairs”.
460   (1)
Section 33 (alteration of petty sessions areas) is amended as follows.
      (2)
In subsection (1) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
35
      (3)
In subsection (2)—
(a)
for “Lord Chancellor” in the first place substitute “Secretary of State
for Constitutional Affairs after he has consulted the Lord Chief
Justice”;
(b)
for Lord Chancellor in the second place substitute “Secretary of State
40
for Constitutional Affairs”.
      (4)
In subsection (3)—
(a)
for “where” substitute “if he has consulted the Lord Chief Justice
and”;

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendment of enactments repealed or amended otherwise than by this Act
123

(b)
in paragraph (a) for “Lord Chancellor thinks fit” substitute
“Secretary of State for Constitutional Affairs thinks fit after
consulting the Lord Chief Justice”;
(c)
for paragraph (b) substitute—
“(b)
a magistrates’ court committee fail to comply within
5
six months with a direction under subsection (2);
(bb)
the Secretary of State for Constitutional Affairs is,
after consulting the Lord Chief Justice, dissatisfied
with the draft order or report submitted in pursuance
of such a direction; or”.
10
      (5)
In subsection (4) for “appear to the Lord Chancellor” substitute “appear to
the Secretary of State for Constitutional Affairs, after consulting the Lord
Chief Justice,”.
      (6)
After subsection (5) insert—
“(6)
The Lord Chief Justice may nominate a judicial office holder (as
15
defined in section 84(4) of the Constitutional Reform Act 2004) to
exercise his functions under this section.”
461
In section 34 (procedure relating to section 33) for “Lord Chancellor” in each
place substitute “Secretary of State for Constitutional Affairs”.
462   (1)
Section 53A (costs in legal proceedings) is amended as follows.
20
      (2)
In subsection (3) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
      (3)
In subsection (4) for “Lord Chancellor may” substitute “Secretary of State for
Constitutional Affairs may, with the concurrence of the Lord Chief Justice,”.
      (4)
After subsection (6) insert—
25
“(7)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 84(4) of the Constitutional Reform Act 2004) to
exercise his functions under this section.”
463   (1)
Section 54 (indemnification of justices and justices’ clerks) is amended as
follows.
30
      (2)
In subsection (6) for “by the Lord Chancellor” substitute “by the Lord Chief
Justice after consulting the Secretary of State for Constitutional Affairs”.
      (3)
In subsection (7) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
      (4)
After subsection (9) insert—
35
“(10)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 84(4) of the Constitutional Reform Act 2004) to
exercise his functions under subsection (6).”
464   (1)
Section 64 (training courses) is amended as follows.
      (2)
In subsection (1) for “by the Lord Chancellor” substitute “by the Lord Chief
40
Justice after consulting the Secretary of State for Constitutional Affairs”.
      (3)
After subsection (3) insert—
“(4)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 84(4) of the Constitutional Reform Act 2004) to
exercise his functions under subsection (1).”
45

Constitutional Reform Bill [HL]
Schedule 2 — Powers to make rules
Part 1 — The process
124

Data Protection Act 1998 (c. 29)
465   (1)
In paragraph 3 of Schedule 6 to the Data Protection Act 1998 (constitution of
Tribunal in national security cases)—
(a)
that paragraph becomes sub-paragraph (1) of paragraph 3;
(b)
in that sub-paragraph for “Lord Chancellor” substitute “Secretary of
5
State for Constitutional Affairs”;
(c)
after that sub-paragraph insert—
“(2)
The Secretary of State for Constitutional Affairs may
designate a person to preside under this paragraph only with
the concurrence of all of the following—
10
(a)
the Lord Chief Justice;
(b)
the Lord President of the Court of Session;
(c)
the Lord Chief Justice of Northern Ireland.”
      (2)
In relation to the enactment referred to in this paragraph, the original
amending enactment is paragraph 2 of Schedule 4 to the Freedom of
15
Information Act 2000 (c. 36).
Schedule 2
Section 6

Powers to make rules
Part 1
The process
20
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;

“Secretary of State” means the Secretary of State for Constitutional
25
Affairs.
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 Secretary of State, to make
designated rules.
30
      (2)
The Lord Chief Justice may nominate a judicial office holder in accordance
with sub-paragraph (1)—
(a)
to make designated rules generally, or
(b)
to make designated rules under a particular enactment.
      (3)
In this Part—
35
(a)
“judicial office holder” has the same meaning as in section 84(4);
(b)
references to the Lord Chief Justice’s nominee, in relation to
designated rules, means a judicial office holder nominated by the
Lord Chief Justice under sub-paragraph (1) to make those rules.

Constitutional Reform Bill [HL]
Schedule 2 — Powers to make rules
Part 2 — Rule-making powers subject to the process in Part 1
125

3     (1)
The Lord Chief Justice, or his nominee, may make designated rules only
with the agreement of the Secretary of State.
      (2)
If the Secretary of State does not agree designated rules made by the Lord
Chief Justice, or by his nominee, the Secretary of State must give that person
written reasons why he does not agree the rules.
5
4     (1)
Designated rules made by the Lord Chief Justice, or by his nominee, and
agreed by the Secretary of State—
(a)
come into force on such day as the Secretary of State directs, and
(b)
are to be contained in a statutory instrument to which the Statutory
Instruments Act 1946 applies as if the instrument contained rules
10
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.
5     (1)
This paragraph applies if the Secretary of State gives the Lord Chief Justice,
or his nominee, written notice that he thinks it is expedient for designated
15
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.
      (3)
Those rules must be—
20
(a)
made within a reasonable period after the Secretary of State gives
notice under sub-paragraph (1);
(b)
made in accordance with the provisions of this Part.
Part 2
Rule-making powers subject to the process in Part 1
25
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 2 to the
Constitutional Reform Act 2004 with respect to the exercise of the
30
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 (6) for “The Lord
Chancellor may make rules” substitute “Rules may be made in accordance
35
with Part 1 of Schedule 2 to the Constitutional Reform Act 2004”.
Compensation (Defence) Act 1939 (c. 75)
8
The Compensation (Defence) Act 1939 is amended as follows.
9     (1)
For the title to section 9 substitute “Incidental powers of tribunals and rules
of procedure”.
40
      (2)
Omit section 9(1)(a) (incidental powers of tribunals to make rules of
procedure).

Constitutional Reform Bill [HL]
Schedule 2 — Powers to make rules
Part 2 — Rule-making powers subject to the process in Part 1
126

      (3)
After section 9(1) insert—
“(1A)
Rules prescribing the procedure for notifying, presenting and
hearing claims and all matters incidental thereto may be made in
relation to each of the tribunals constituted under this Act.
(1B)
Such rules are to be made as follows—
5
(a)
if the rules relate to proceedings in England and Wales, they
are to be made in accordance with Part 1 of Schedule 2 to the
Constitutional Reform Act 2004;
(b)
if the rules relate to proceedings in Scotland, they are to be
made by the Lord President of the Court of Session;
10
(c)
if the rules relate to proceedings in Northern Ireland, they are
to be made by the Lord Chief Justice of Northern Ireland.”
      (4)
In subsection (2) for the words from the beginning to “subsection” substitute
“Such rules”.
Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (c. 65)
15
10    (1)
Section 5 of the Reserve and Auxiliary Forces (Protection of Civilian
Interests) Act 1951 (appropriate courts and procedure) is amended as
follows.
      (2)
In subsection (1) omit “by the Lord Chancellor”.
      (3)
In subsection (2) for “The Lord Chancellor may also make rules” substitute
20
“Rules may also be made under this section”.
      (4)
For subsection (6) substitute—
“(6)
Rules under this section are to be made in accordance with Part 1 of
Schedule 2 to the Constitutional Reform Act 2004.”
Courts-Martial (Appeals) Act 1968 (c. 20)
25
11    (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
Chancellor” substitute “in accordance with Part 1 of Schedule 2 to the
Constitutional Reform Act 2004”.
30
      (3)
In subsection (2) for “Lord Chief Justice” substitute “person making the
rules”.
      (4)
Omit subsections (3) and (4).
Adoption Act 1976 (c. 36)
12
Section 66 of the Adoption Act 1976 (rules of procedure) has effect as if in
35
subsection (1)(a) the reference to rules being made by the Lord Chancellor
were a reference to rules being made in accordance with Part 1 of Schedule
2 to the Constitutional Reform Act 2004.
Rent (Agriculture) Act 1976 (c. 80)
13
In section 26 of the Rent (Agriculture) Act 1976 (jurisdiction and procedure),
40

Constitutional Reform Bill [HL]
Schedule 2 — Powers to make rules
Part 2 — Rule-making powers subject to the process in Part 1
127

for subsection (5) substitute—
“(5)
Rules may be made in accordance with Part 1 of Schedule 2 to the
Constitutional Reform Act 2004 for the purpose of giving effect to
Part 1 or 2 of this Act, or this Part.
(5A)
Such rules may include provision for the remission of fees.”
5
Rent Act 1977 (c. 42)
14    (1)
Section 142 of the Rent Act 1977 (rules as to procedure) is amended as
follows.
      (2)
For subsections (1) and (2) substitute—
“(1)
Rules may be made in accordance with Part 1 of Schedule 2 to the
10
Constitutional Reform Act 2004 for the purpose of giving effect to the
provisions of this Act.
(2)
Such rules may include provision for any of the following—
(a)
the conduct so far as desirable in private of any proceedings
for the purposes of those provisions;
15
(b)
the remission of fees.”
      (3)
Omit subsection (4).
National Health Service Act 1977 (c. 49)
15
The National Health Service Act 1977 is amended as follows.
16
In section 126 (orders, regulations, and directions), after paragraph (b)
20
insert—
“(c)
does not apply to rules made under Schedule 9A to this Act”.
17    (1)
Schedule 9A (Family Health Services Appeal Authority) is amended as
follows.
      (2)
In paragraph 15 for “The Lord Chancellor may make rules” substitute “Rules
25
may be made in accordance with Part 1 of Schedule 2 to the Constitutional
Reform Act 2004”.
      (3)
In paragraph 16 for “The Lord Chancellor shall make rules” substitute
“Rules must be made in accordance with Part 1 of Schedule 2 to the
Constitutional Reform Act 2004”.
30
      (4)
In paragraph 21 for the definition of “prescribed” substitute—

““prescribed” means prescribed in rules made in accordance
with Part 1 of Schedule 2 to the Constitutional Reform Act
2004.”
Housing Act 1980 (c. 51)
35
18    (1)
Section 86 of the Housing Act 1980 (jurisdiction of county court and rules of
procedure) is amended as follows.
      (2)
For subsection (4) substitute—
“(4)
Rules may be made in accordance with Part 1 of Schedule 2 to the
Constitutional Reform Act 2004 for the purpose of giving effect to
40
this Act.”