Constitutional Reform Bill [H.L.] (Hansard, 7 December 2004)

HL Deb 07 December 2004 vol 667 cc818-41 818

§ Consideration of amendments on Report resumed.

§ Schedule 4 [Other judiciary-related functions and organisation of the courts]:

§ Lord Goodhart moved Amendment No. 25:

§ Page 112, line 4, at end insert— 270A (1) Schedule 4 (authorised bodies) is amended as follows.

§ (2) For "each of the designated judges" in each place substitute "the Lord Chief Justice".

§ (3) In paragraph (5) (advice of designated judges)—

(a) in sub-paragraph (4), for "give such advice to the Secretary of State as he thinks fit" substitute "notify the Secretary of State whether he concurs with the application";
(b) after sub-paragraph (4) insert—

(5) If the Lord Chief Justice does not concur the Secretary of State shall not grant the application.

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§ (4) In paragraph (6) (decision by Secretary of State), in subparagraph (1) at beginning insert "If the Lord Chief Justice has concurred with the application and".

§ (5) In paragraph (6)(1), omit paragraph (c)."

§ The noble Lord said: My Lords, we seem to be a little short-handed at the moment, so I shall speak very slowly until a few more people come in.

§ Amendment No. 25 has been brought back from Committee. It amends Schedule 4 to the Courts and Legal Services Act 1990, as amended by the Access to Justice Act 1999 or, to be strictly accurate, it amends, not the whole of Schedule 4, but Part 1 of that schedule, because similar amendments would be needed to Parts 2, 3 and 4.

§ Under Schedule 4 to the 1990 Act, the Lord Chancellor has power to designate professional bodies whose members have rights of audience in the courts and the right to conduct litigation, and to revoke that designation. The Lord Chancellor has power to approve alterations of rules made by the designated bodies, and can impose rule changes on them. The Lord Chancellor must consult the heads of division but, unlike the situation between 1990 and 1999, there is no need for the heads of division in the courts of England and Wales to concur.

§ These are extremely extensive powers that relate to the independence of the legal profession, which is a matter of very great importance. Indeed, it is almost, although perhaps not quite, of equal importance to the independence of the judiciary because, plainly, an independent professional service, willing to act for people whose causes are popular or unpopular, and willing to act without fear of the consequences, is of the greatest importance in achieving a society that recognises and follows the rule of law.

§ The judicial concordat, which we discussed a good deal earlier today, provides that in relation to the judiciary a number of powers previously exercised by the Lord Chancellor on his own can only be exercised by the Lord Chancellor with the concurrence of the Lord Chief Justice. That is because, as a result of the Bill, the Lord Chancellor is seen more as a political figure and less as a judicial figure than was previously the case. It is therefore thought by the judiciary to be appropriate that there should be a double lock, and that forms part of the concordat. Of course, the concordat does not extend to the legal profession, as opposed to the judiciary, but it seems to us that the same principle should apply. We should have a similar double lock to ensure the continued independence of the legal profession.

§ This amendment provides for a double lock. It has the support of both the president of the Law Society and the chairman of the Bar Council. I believe that the appropriate keyholder of the second lock is the Lord Chief Justice. The Lord Chief Justice should be able to block the exercise by the Lord Chancellor of powers in the schedule if the Lord Chief Justice feels that the way in which the Lord Chancellor is proposing to exercise those powers is a threat to the independence of the legal profession.

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§ It is obvious that the powers given to the Lord Chancellor under this Bill are such that if we had a Lord Chancellor who was determined to undermine the independence of the legal profession—and we certainly hope that that will never happen—the Bill, as it stands, would give the Lord Chancellor power to do just that. I beg to move.

§ Lord Kingsland
My Lords, I think I am right in saying that the mischief to which the noble Lord, Lord Goodhart, addresses himself was created by the Access to Justice Act 1999. Am I right about that?

§ Lord Goodhart
Yes, my Lords, it was indeed created by the Access to Justice Act 1999. We protested at the time, but the problem has become more acute because the Lord Chancellor is losing his judicial functions and becoming more of a political animal, if one can put it that way.

§ Lord Kingsland
My Lords, I now recall that in the course of that Bill's consideration, we united with the Liberal Democrats in an attempt to see off the attempt by the predecessor of the noble and learned Lord the Lord Chancellor to remove what, in effect, was a veto by the designated judges on the Lord Chancellor's ability to change the rules of the professions.
I wholly support what the noble Lord, Lord Goodhart, is seeking to do in this amendment. I think that it provides us with an opportunity to redress a wrong that was established in the 1999 Act and to ensure that the Lord Chief Justice has, as the noble Lord, Lord Goodhart, puts it, a second lock on any future initiative by the Lord Chancellor to change the rules of both professions—the Bar and the solicitors. I feel sure that in the spirit of the separation of powers approach to this new legislation, the noble and learned Lord the Lord Chancellor will feel entirely at ease with this amendment.

§ Lord Falconer of Thoroton
My Lords, the noble Lord, Lord Goodhart, puts the matter incredibly clearly, as ever. The arrangements set out in the amendment relate to the consideration of applications from a body to grant its members rights of audience or rights to conduct litigation or applications from organisations such as the Bar Council, the Law Society, or other similar organisations, for approval of changes to their qualification regulations or rules of conduct. It is very important, because the regulation of the legal profession in this respect is of considerable importance to the independence of the judiciary and, separately, to access to justice for individual members of the public.
The amendment of the noble Lord, Lord Goodhart, would reverse Parliament's decision in 1999 to place the determinative role for dealing with these applications with a Minister accountable to it. The amendment is not out of line with the concordat. but it is not in line with any specific provision in relation to it.
821 Under the 1999 Act, the role that the Minister plays is quite complicated in the sense that it can be carried out only through a transparent statutory process, and he is under a duty to consult the Legal Services Consultative Panel, the Director General of Fair Training and each of the four designated senior judges. The panel and the OFT have a duty to publish their advice; the Minister has a duty to send their advice to the designated judges, and he makes his decision while balancing the advice that he receives from the panel, the OFT and the judges.
The objective that Parliament has given him is to make provision for new or better ways in which to provide legal services and a wider choice of person providing them, while maintaining the proper and efficient administration of justice. There is plainly an issue about the extent to which one wants either a Minister or the judges to have a complete lock on the issue, because there is an issue about how the public are best served, in relation to both the independent judiciary and the provision of legal services.
As noble Lords are aware, and as I said on 14 July, in July 2003 I announced a review of the framework of legal services regulation, which is being led by Sir David Clementi. I gave Sir David wide terms of reference and he is considering the whole regulatory framework and the roles and responsibilities within it. The consultation paper issued by his review team earlier this year asked questions about regulatory models and, specifically, about a regulator and the role of the judiciary—in particular, though not exclusively, the role of the Master of the Rolls, who has a particularly significant role in relation to the regulation of solicitors.
The noble Lord's amendment makes it clear that what is sought is to restore the judicial veto to ensure adequate protection for the legal professions so that their independence is upheld. There is an issue about the extent to which the judges want such a veto, as coming with such a veto is an obligation to be involved in a whole series of quite complex and detailed issues.
The role of the judiciary in the regulation of the legal professions is one of the factors that Sir David has been bearing in mind. He intends to publish his report in the week commencing 13 December. I suggest that it would be unwise to alter the existing arrangements until I have received and considered his report. It is extraordinarily unlikely that, having received his report in the week beginning next Monday, the Government would come to a conclusion before either the Third Reading of the Bill in this House or, probably, the completion of its passage through the Commons.
I suggest to the noble Lord, while understanding that the position of a new Lord Chancellor will be different from that of the old one, in the sense that the new Lord Chancellor would not be a judge as the old one was, that nevertheless it would be unwise to impose a judicial veto at this stage, when the issue of the regulation of the legal profession is under review by Sir David Clementi. I can give him the clearest possible 822 undertaking that in exercising my powers under the 1999 arrangements, I shall exercise them with a view to ensuring that neither the independence of the judiciary nor access to justice is adversely affected. I hope that, in the light of that reassurance, the noble Lord will feel able to wait until Sir David's report and what the Government do in relation to it.

§ Lord Goodhart
My Lords, I should say that we recognise the need for the Lord Chancellor to have the powers that he is given by Schedule 4 to the 1990 Act as amended. We recognise that the Law Society and the Bar Council act as a form of trade union and, like other trade unions, are sometimes concerned with the interests of their members to the detriment of the interests of the general public. Therefore, it is clear that there should be some outside body which is capable of imposing rule changes on them in appropriate circumstances.
We certainly do not seek to restore the veto to the form in which it existed from 1990 to 1999, in which there were four senior judges, each of whom had a separate and independent veto. However, at the same time we believe that it is undesirable to leave the second lock uninstalled for an indefinite period of time. It is certainly my concern that if we do not put something into this Bill, the second lock will never be introduced because there would be no incentive whatever for the Government to go ahead with it.
I accept that it is unrealistic to press this matter to a vote at this time of night. I also accept that it is at least worth waiting to see the Clementi report, which will be issued before we reach Third Reading, even if, as I hope will be the case, we reach Third Reading on 20 December. However, unless a quick scan of the Clementi report persuades me that there is some reason to the contrary, I am likely to bring this amendment back at Third Reading. Having said that, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Lord Falconer of Thoroton moved Amendment No. 26: Leave out Schedule 4 and insert the following new Schedule—

§ "OTHER FUNCTIONS OF THE LORD CHANCELLOR AND ORGANISATION OF THE COURTS

§ PART 1 AMENDMENTS

§ Habeas Corpus Act 1679 (c. 2)

§ 1 The Habeas Corpus Act 1679 is amended as follows.

§ 2 In section 1 (bringing before Lord Chancellor or other judges) omit "the lord chauncelior or lord keeper of the great seale of England for the time being or".

§ 3 In section 2 (appeal to Lord Chancellor or other judges) omit—

(a) "the lord chauncellour or lord keeper or" in each place;
(b) "lord chauncellor lord keeper";
(c) "the said lord chauncellor or lord keeper or" in the first and second places;
(d) "lord chauncellor or lord keeper or" in the last place.

§ 4 In section 9 (Lord Chancellor or other judge unduly denying writ) omit "the said lord chauncellor or lord keeper or".

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§ Cestui que Vie Act 1707 (c. 72)

§ 5 Any reference to the Lord Chancellor and keeper or commissioners for the custody of the great seal of Great Britain for the time being in section 1 of the Cestui que Vie Act 1707 is to be construed as a reference to a judge of the Chancery Division of the High Court.

§ British Law Ascertainment Act 1859 (c. 63)

§ 6 In section 5 of the British Law Ascertainment Act 1859 (interpretation) omit "the Lord Chancellor,".

§ Promissory Oaths Act 1871 (c. 48)

§ 7 (1) Section 2 of the Promissory Oaths Act 1871 (persons before whom oaths to be taken) (as amended by paragraph 51 of Schedule 8 to the Courts Act 2003 (c. 39)) is amended as follows.

§ (2) In the paragraph beginning "In England and Wales" for "Lord Chancellor" substitute "Lord Chief Justice of England and Wales".

§ (3) After that paragraph insert—

§ "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under the preceding paragraph."

§ Stannaries Court (Abolition) Act 1896 (c. 45)

§ 8 (1) Section 1 of the Stannaries Court (Abolition) Act 1896 (abolition of Vice-Warden's Court) is amended as follows.

§ (2) In subsection (1) after "may" insert ", 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 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Judicial Committee Act 1915 (c. 92)

§ 9 (1) Section 1 of the Judicial Committee Act 1915 (power of Judicial Committee of the Privy Council to sit in more than one division at the same time) is amended as follows.

§ (2) In subsection (1) for "Lord Chancellor" substitute "President of the Supreme Court of the United Kingdom".

§ Administration of Justice Act 1925 (c. 28)

§ 10 (1) Section 22 of the Administration of Justice Act 1925 (registration of deeds of arrangement) is amended as follows.

§ (2) in subsection (5) for "by the Lord Chancellor with the concurrence" substitute "by the Lord Chief Justice with the concurrence of the Lord Chancellor and".

§ (3) After subsection (5) insert—

§ "(5A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (5)."

§ Children and Young Persons Act 1933 (c. 12)

§ 11 (1) Section 45 of the Children and Young Persons Act 1933 (youth courts) (as amended by section 50 of the Courts Act 2003 (c. 39)) is amended as follows.

§ (2) In subsection (3) for "Lord Chancellor or a person acting on his behalf" substitute "Lord Chief Justice, with the concurrence of the Lord Chancellor,".

§ (3) In subsection (4) for "Lord Chancellor may" substitute "Lord Chief Justice may, with the concurrence of the Lord Chancellor,".

§ (4) In subsection (5) after "Lord Chancellor" insert "or Lord Chief Justice".

§ (5) After subsection (8) insert—

§ "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3) or (4) or his powers under rules under subsection (4)."

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§ Compensation (Defence) Act 1939 (c. 75)

§ 12 (1) The Compensation (Defence) Act 1939 is amended as follows.

§ (2) For the title to section 9 substitute "Incidental powers of tribunals and rules of procedure".

§ (3) Omit section 9(1)(a) (incidental powers of tribunals to make rules of procedure).

§ (4) 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—

(a) if the rules relate to proceedings in England and Wales, they are to be made by the Lord Chancellor;
(b) if the rules relate to proceedings in Scotland, they are to be made by the Lord President of the Court of Session;
(c) if the rules relate to proceedings in Northern Ireland, they are to be made by the Lord Chief Justice of Northern Ireland."

§ (5) In subsection (2) for the words from the beginning to "subsection" substitute "Such rules".

§ (6) After subsection (3) insert—

§ "(4) 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.

§ (5) The Lord Chief Justice of Northern Ireland may nominate any of the 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)."

§ London Building Acts (Amendment) Act 1939 (c. xcvii)

§ 13 (1) Section 109 of the London Building Acts (Amendment) Act 1939 (constitution etc of tribunal appeal) is amencled as follows.

§ (2) In subsection (1)(i) for "if he thinks fit" substitute ", if he thinks fit and if the Lord Chief Justice agrees,".

§ (3) After subsection (2) insert—

§ "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Pensions Appeal Tribunals Act 1943 (c. 39)

§ 14 The Pension Appeal Tribunals Act 1943 is amended as follows.

§ 15 (1) Section 6 (constitution, jurisdiction and procedure of Pensions Appeal Tribunals) is amended as follows.

§ (2) In subsection (2) for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales, after consulting the Lord Chancellor,".

§ (3) After subsection (4) insert—

§ "(5) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."

§ 16 (1) Section 13 (application to Scotland) is amended as follows.

§ (2) In paragraph (a) for "Lord Chancellor" substitute "Lord Chief Justice of England and Wales".

§ (3) In paragraph (b) after "Lord Chancellor" insert "or the Lord Chief Justice of England and Wales".

§ 17 In section 14 (application to Northern Ireland), after "Schedule)" insert "or to the Lord Chief Justice of England and Wales".

§ 18 (1) The Schedule (constitution, jurisdiction and procedure of Tribunals) is amended as follows.

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§ (2) In paragraph 1 (constitution of Tribunals)—

(a) that paragraph becomes sub-paragraph (1) of paragraph 1;
(b) in that sub-paragraph after "determine" in each place insert "after consulting the Lord Chief Justice of England and Wales";
(c) after that sub-paragraph insert—

§ "(2) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph."

§ (3) In paragraph 2 (membership)—

(a) in sub-paragraph (3) after "fit" insert "and if the Lord Chief Justice of England and Wales agrees";
(b) after sub-paragraph (4) insert—

§ Agriculture Act 1947 (c. 48)

§ 19 The Agriculture Act 1947 is amended, or has effect, as follows.

§ 20 In section 73 (establishment, constitution and procedure of Agricultural Land Tribunals), in subsection (1) for the words before "by order" substitute "For the purposes of this section the Lord Chancellor shall, after consulting the Chairman of the Agricultural Land Tribunals,".

§ 21 (1) The functions of the Lord Chancellor under section 75 (provisions as to land lying partly in one area and partly in another) are exercisable only after consultation with the Lord Chief Justice.

§ (2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of this Act) to exercise his functions under sub-paragraph (1).

§ 22 In section 108 (regulations and orders), in subsection (1) omit "by the Minister" in the second place.

§ 23 (1) Schedule 9 (constitution of Agricultural Land Tribunals) is amended as follows.

§ (2) In paragraph 13 (chairman of each Tribunal), in subparagraph (4)—

(a) for "is" substitute "and Lord Chief Justice are both";
(b) after "may" insert ", with the concurrence of the Lord Chief Justice,".

§ (3) In paragraph 16A (discharge of chairman's duties)—

(a) that paragraph becomes sub-paragraph (1) of paragraph 16A;
(b) in that sub-paragraph for "Lord Chancellor" substitute "Lord Chief Justice, after consulting the Lord Chancellor";
(c) after that sub-paragraph insert—

§ "(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subparagraph (1)."

§ Lands Tribunal Act 1949 (c. 42)

§ 24 (1) Section 2 of the Lands Tribunal Act 1949 (members, officers and expenses of Lands Tribunal) is amended as follows.

§ (2) In subsection (3) for "Lord Chancellor may" substitute "Lord Chief Justice of England and Wales may, after consulting the Lord Chancellor,".

§ (3) In subsection (4) after "Lord Chancellor" insert "and the Lord Chief Justice of England and Wales".

§ (4) In subsection (9)(a) after "Lord Chancellor" insert "and the Lord Chief Justice of England and Wales".

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§ (5) After subsection (10) insert—

§ "(11) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsections (3) and (9A)."

§ Registered Designs Act 1949 (c. 88)

§ 25 The Registered Designs Act 1949 is amended as follows.

§ 26 (1) Section 27 (meaning of the court) is amended as follows.

§ (2) In subsection (2) for "Lord Chancellor may select" substitute "Lord Chief Justice of England and Wales may, after consulting the Lord Chancellor, select".

§ (3) After subsection (2) insert—

§ "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."

§ 27 (1) Section 28 (the Appeal Tribunal) is amended as follows.

§ (2) In subsection (2)(a) for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales after consulting the Lord Chancellor".

§ (3) After subsection (10) insert—

§ "(11) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)(a)."

§ Courts-Martial (Appeals) Act 1951 (c. 46)

§ 28 The Courts-Martial (Appeals) Act 1951 is amended as follows.

§ 29 In section 28 (provisions with respect to office of Judge Advocate of fleet), after subsection (3) insert—

§ "(3A) The Lord Chancellor may make a recommendation 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;
(c) the Lord Chief Justice of Northern Ireland."

§ 30 In section 32 (tenure of office of Judge Advocate General and assistants), after subsection (1) insert—

§ "(1A) The Lord Chancellor may make a recommendation, or remove a person from office, under subsection (1) 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;
(c) the Lord Chief Justice of Northern Ireland."

§ Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (c. 65)

§ 31 (1) Section 5 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (appropriate courts and procedure) is amended as follows.

§ (2) After subsection (5) insert—

§ "(5A) The Lord Chancellor must consult the Lord Chief Justice before making rules under subsection (1).

§ (5B) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (5A)."

§ (3) In subsection (6) for "this section" substitute "subsection (1)".

§ Pharmacy Act 1954 (c. 61)

§ 32 (1) In Schedule 1C to the Pharmacy Act 1954 (appeal tribunals), paragraph 3 (appointments) is amended as follows.

§ (2) In sub-paragraph (4) for "by the Lord Chancellor and" substitute "by the Lord Chief Justice, after consulting the Lord Chancellor, and by".

§ (3) After sub-paragraph (5) insert—

§ "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph."

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§ Mines and Quarries Act 1954 (c. 70)

§ 33 (1) Section 170 of the Mines and Quarries Act 1954 (provisions as to references upon notices) is amended as follows.

§ (2) In subsection (9) after "Lord Chancellor" insert ", the Lord Chief Justice".

§ (3) After subsection (9) insert—

§ "(10) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (9)."

§ Land Powers (Defence) Act 1958 (c. 30)

§ 34 (1) Schedule 2 to the Land Powers (Defence) Act 1958 (provisions with respect to making certain orders under the Act) is amended as follows.

§ (2) In paragraph 4 (inquiries into objections)—

(a) in sub-paragraph (1) for "by the Lord Chancellor" substitute "by the Lord Chief Justice of England and Wales, after consulting the Lord Chancellor,";
(b) after sub-paragraph (4) insert—

§ (3) In paragraph 10 (application of Schedule to land in Scotland), in paragraph (a) for the words from the beginning to "Chancellor" substitute "in paragraph 4(1) the words "after consulting the Lord Chancellor" shall be omitted, and for the reference there to the Lord Chief Justice of England and Wales and the reference to the Lord Chancellor in paragraph 4(4)";

§ (4) In paragraph 11 (application of Schedule to land in Northern Ireland), in paragraph (a) for the words from the beginning to "Chancellor" substitute "in paragraph 4(1) the words "after consulting the Lord Chancellor" shall be omitted, and for the reference there to the Lord Chief Justice of England and Wales and the reference to the Lord Chancellor in paragraph 4(4)".

§ Agriculture Act 1958 (c. 71)

§ 35 In the Agriculture Act 1958, in section 5 (functions under section 73 of the Agriculture Act 1947) for "by the Lord Chancellor and not by the Minister" substitute "as provided for in that section".

§ Mental Health Act 1959 (c. 72)

§ 36 In section 145 of the Mental Health Act 1959 (general provisions as to regulations, orders and rules) omit "or the Lord Chancellor".

§ Administration of Justice Act 1960 (c. 65)

§ 37 In section 14 of the Administration of Justice Act 1960 (procedure on application for habeas corpus), in subsection (2) omit "; and no such application shall in any case be made to the Lord Chancellor".

§ Transport Act 1962 (c. 46)

§ 38 The Transport Act 1962 is amended as follows.

§ 39 (1) Section 74 (Minister's power to make orders about pensions) is amended as follows.

§ (2) In subsection (6)(c) after "Lord Chancellor" insert "and the Lord Chief Justice of England and Wales".

§ (3) After subsection (9) insert—

§ "(10) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ 40 (1) Section 81 (compensation to officers and servants of the Commission) is amended as follows.

§ (2) In subsection (4)(b) after "Lord Chancellor" insert "and the Lord Chief Justice of England and Wales".

§ (3) After subsection (10) insert—

§ "(11) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

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§ 41 (1) In Schedule 7 (transitional provisions) paragraph 17 is amended as follows.

§ (2) In sub-paragraph (3) after "Lord Chancellor" insert "and the Lord Chief Justice of England and Wales".

§ (3) After sub-paragraph (6) insert— (7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.

§ City of London (Courts) Act 1964 (c. iv)

§ 42 (1) Section 15 of the City of London (Courts) Act 1964 (oaths) is amended as follows.

§ (2) That section becomes subsection (1) of section 15.

§ (3) In that subsection for "Lord Chancellor" substitute "Lord Chief Justice".

§ (4) After that subsection insert—

§ "(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)."

§ Finance Act 1966 (c. 18)

§ 43 (1) In Schedule 1 to the Finance Act 1966 (reliefs for shipbuilders), paragraph 6 is amended as follows.

§ (2) In sub-paragraph (2) after "Lord Chancellor" insert "with the concurrence of the Lord Chief Justice of England and Wales".

§ (3) After sub-paragraph (4) insert—

§ "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph."

§ Courts-Martial (Appeals) Act 1968 (c. 20)

§ 44 (1) Section 5 of the Courts-Martial (Appeals) Act 1968 (constitution of court for particular sittings) is amended as follows.

§ (2) In subsection (4) after "expedient to do so" insert "after consulting the Lord Chief Justice".

§ (3) After subsection (5) insert—

§ "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Taxes Management Act 1970 (c. 9)

§ 45 The Taxes Management Act 1970 is amended as follows.

§ 46 In section 2 (General Commissioners), after subsection (6) insert—

§ "(6A) The Lord Chancellor must consult the Lord Chief Justice of England and Wales or, in Northern Ireland, the Lord Chief Justice of Northern Ireland before exercising any function conferred on him by subsection (1) or (6).

§ (6B) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section.

§ (6C) The Lord Chief Justice of Northern Ireland may nominate one of the 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)."

§ 47 (1) Section 4 (Special Commissioners) is amended as follows.

§ (2) After subsection (4) insert—

§ "(4A) The Lord Chancellor may designate a person under subsection (3) or remove a person from office under subsection (4) 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;
(c) the Lord Chief Justice of Northern Ireland."

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§ (3) After subsection (7) insert—

§ "(8) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (4A) so far as they relate to the designation of a person under subsection (3).

§ (9) 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 subsection (4A) so far as they relate to the designation of a person under subsection (3).

§ (10) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under subsection (4A) so far as they relate to the designation of a person under subsection (3)—

(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)."

§ Administration of Justice Act 1970 (c. 31)

§ 48 (1) Section 10 of the Administration of Justice Act 1970 (temporary additional judges of the Registered Designs Appeal Tribunal) is amended as follows.

§ (2) For subsection (1) substitute—

§ "(1) This section applies if both of the following conditions are met—

(a) the Lord Chancellor thinks that it is expedient, having regard to the state of business pending before the Registered Designs Appeal Tribunal and after consulting the Lord Chief Justice, for a person to be appointed to sit and act as an additional judge of the Tribunal (either alone or with a judge of the High Court who is a judge of the Tribunal);
(b) the Lord Chancellor requests the Lord Chief Justice to make such an appointment.

§ (1A) The Lord Chief Justice may, after consulting the Lord Chancellor, appoint one of the following persons as mentioned in subsection (1)(a)—

(a) a judge of the Court of Appeal;
(b) a person who has held office as a judge of the Court of Appeal or of the High Court;
(c) one of Her Majesty's Counsel.

§ (1B) An appointment under this section is—

(a) for such period, or
(b) for the purpose of hearing such appeals,

as the Lord Chief Justice determines, after consulting the Lord Chancellor."

§ (3) After subsection (4) insert—

§ "(4A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Courts Act 1971 (c. 23)

§ 49 The Courts Act 1971 is amended as follows.

§ 50 In section 17 (retirement, removal and disqualification of Circuit judges), in subsection (4) after "fit" insert "and if the Lord Chief Justice agrees".

§ 51 In section 21 (appointment of Recorders), in subsection (6) after "fit" insert "and if the Lord Chief Justice agrees".

§ 52 (1) Section 22 (oaths to be taken by Circuit judges and Recorders) is amended as follows.

§ (2) In subsection (2) for "Lord Chancellor" substitute "Lord Chief Justice".

830

§ (3) After subsection (3) insert—

§ "(3A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."

§ 53 (1) Section 24 (deputy Circuit judges and assistant Recorders) is amended as follows.

§ (2) In subsection (1)—

(a) for "the Lord Chancellor" substitute "him";
(b) omit ", he may";
(c) in paragraph (a), before "appoint" insert "the Lord Chief Justice may, with the concurrence of the Lord Chancellor,", and omit the word "or" in the last place where it occurs;
(d) in paragraph (b), before "appoint" insert "the Lord Chancellor may".

§ (3) After subsection (5) insert—

§ "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)(a)."

§ 54 In the table in paragraph 2 of Schedule 8 (general rules of construction), in the second column of entry 7 and of entry 14 for "Lord Chancellor" in each place substitute "Lord Chief Justice".

§ 55 In Schedule 10 (transitional provisions), omit paragraphs 3 and 4.

§ Land Charges Act 1972 (c. 61)

§ 56 In section 16 of the Land Charges Act 1972 (general rules), in subsection (2) omit "of the Lord Chancellor, with the concurrence of the Secretary of State,".

§ Matrimonial Causes Act 1973 (c. 18)

§ 57 (1) Section 10A of the Matrimonial Causes Act 1973 (proceedings after decree nisi: religious marriage) is amended as follows.

§ (2) In subsection (6) after "Lord Chancellor" insert "after consulting the Lord Chief Justice".

§ (3) After subsection (7) insert—

§ "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Juries Act 1974 (c. 23)

§ 58 The Juries Act 1974 is amended as follows.

§ 59 In section 5 (panels of persons summoned as jurors), after subsection (4) insert—

§ "(5) The Lord Chancellor must consult the Lord Chief Justice before giving any direction under subsection (1).

§ (6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ 60 (1) Section 9AA (requirement to issue guidance) is amended as follows.

§ (2) In subsection (1) after "shall" insert ", 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 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Industry Act 1975 (c. 68)

§ 61 (1) Schedule 3 to the Industry Act 1975 (tribunals to arbitrate disputes relating to vesting and compensation orders) is amended as follows.

§ (2) In paragraph 4 (constitution and sittings)—

(a) that paragraph becomes sub-paragraph (1) of paragraph 4;
(b) in that sub-paragraph after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland,";
(c) after that sub-paragraph insert—

§ (3) The Lord Chief Justice of Northern Ireland may nominate any of the 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 paragraph 5 (Scottish proceedings) for "paragraph 4" substitute "paragraph 4(1)".

§ (4) In paragraph 8(a) (meaning of "appointor") for "paragraph 4" substitute "paragraph 4(1)".

§ (5) After paragraph 8 insert—

§ "8A Where the appointor is, by virtue of paragraph 8(a), the Lord Chancellor, the power conferred by paragraph 6(1)(b) may be exercised only with the concurrence of the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland."

§ Armed Forces Act 1976 (c. 52)

§ 62 (1) Section 6 of the Armed Forces Act 1976 (establishment of Standing Civilian Courts) is amended as follows.

§ (2) After subsection (3) insert—

§ "(3A) The Lord Chancellor may give approval to an order under subsection (3) only after consulting the relevant judges."

§ (3) After subsection (4) insert—

§ "(4A) The Lord Chancellor may make an appointment under subsection (4) only with the concurrence of the relevant judges."

§ (4) In subsection (7) after "Lord Chancellor" insert "and the relevant judges".

§ (5) After subsection (8) insert—

§ "(8A) The Lord Chancellor may give his approval under section (8) only with the concurrence of the relevant judges."

§ (6) After subsection (11) insert—

§ "(11A) The Lord Chancellor may give his approval to the removal of a member under subsection (11) only with the concurrence of the relevant judges."

§ (7) After subsection (17) insert—

§ "(18) References in this section to the relevant judges are references to all of the following—

(a) the Lord Chief Justice of England and Wales;
(b) the Lord President of the Court of Session;
(c) the Lord Chief Justice of Northern Ireland.

§ (19) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section, except his functions in relation to the removal of a member under subsection (11).

§ (20) 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, except his functions in relation to the removal of a member under subsection (11).

§ (21) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section, except his functions in relation to the removal of a member under subsection (11)— 832

(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)."

§ Race Relations Act 1976 (c. 74)

§ 63 (1) Section 67 of the Race Relations Act 1976 (sheriff courts and designated county courts) is amended as follows.

§ (2) In subsection (1) after "Lord Chancellor" insert "with the concurrence of the Lord Chief Justice".

§ (3) After subsection (5) insert—

§ "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Rent (Agriculture) Act 1976 (c. 80)

§ 64 In section 26 of the Rent (Agriculture) Act 1976 (jurisdiction and procedure), omit subsection (5).

§ Aircraft and Shipbuilding Industries Act 1977 (c. 3)

§ 65 (1) Section 42 of the Aircraft and Shipbuilding Industries Act 1977 (the arbitration tribunal) is amended as follows.

§ (2) After subsection (2) insert—

§ "(2A) The arbitration tribunal shall either sit as a single tribunal or sit in two or more divisions, as the Lord Chancellor may direct after consulting all of the following—

(a) the Lord Chief Justice of England and Wales;
(b) the Lord President of the Court of Session;
(c) the Lord Chief Justice of Northern Ireland."

§ (3) In subsection (3) for the words from the beginning to "consist of" substitute "For the hearing of any proceedings, the arbitration tribunal shall, subject to subsection (4) below, consist of".

§ (4) After subsection (8) insert—

§ "(8A) Where the appointor is, by virtue of subsection (8)(a), the Lord Chancellor, the power conferred by subsection (5)(b) may be exercised only with the concurrence of the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland."

§ (5) At the end insert—

§ "(11) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2A)(a).

§ (12) 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 subsection (2A)(b).

§ (13) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under subsection (2A)(c)—

(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)."

§ Patents Act 1977 (c. 37)

§ 66 The Patents Act 1977 is amended as follows.

§ 67 (1) Section 97 (appeals from the comptroller) is amended as follows.

§ (2) In subsection (2) for "or on behalf of the Lord Chancellor" substitute "the Lord Chief Justice of England and Wales after consulting the Lord Chancellor".

§ (3) After subsection (3) insert—

§ "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."

§ 68 (1) Section 102A (right of audience etc in proceedings on appeal from the comptroller) is amended as follows.

833

§ (2) In subsection (3) after "Lord Chancellor may" insert ", with the concurrence of the Lord Chief Justice of England and Wales,".

§ (3) After subsection (6) insert—

§ "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Administration of Justice Act 1977 (c. 38)

§ 69 (1) Section 23 of the Administration of Justice Act 1977 (jurisdiction of ancient courts) is amended as follows.

§ (2) In subsection (4) after "Lord Chancellor may" insert ", after consulting the Lord Chief Justice,".

§ (3) After subsection (5) insert—

§ "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Rent Act 1977 (c. 42)

§ 70 Omit section 142 of the Rent Act 1977 (rules as to procedure).

§ National Health Service Act 1977 (c. 49)

§ 71 In Schedule 9A to the National Health Service Act 1977 (Family Health Services Appeal Authority), in paragraph 5 (appointment of members of Authority) after "by the Lord Chancellor" insert ", with the concurrence of the Lord Chief Justice,".

§ Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22)

§ 72 (1) Section 2 of the Domestic Proceedings and Magistrates' Courts Act 1978 (powers of court to make orders for financial provision) is amended as follows.

§ (2) In subsection (3) omit the second paragraph.

§ (3) After subsection (3) insert—

§ "(4) An order made by the Lord Chancellor under this section—

(a) shall be made only after consultation with the Lord Chief Justice;
(b) shall be made by statutory instrument and be subject to annulment in pursuance of a resolution of either House of Parliament.

§ (5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Customs and Excise Management Act 1979 (c. 2)

§ 73 In Schedule 3 to the Customs and Excise Management Act 1979 (provisions relating to forfeiture), after paragraph 17(4) insert—

§ "(5) The Lord Chancellor may make an appointment under sub-paragraph (4) only with the concurrence—

(a) where the proceedings referred to in sub-paragraph (1) were taken in England and Wales, of the Lord Chief Justice of England and Wales;
(b) where those proceedings were taken in Scotland, of the Lord President of the Court of Session;
(c) where those proceedings were taken in Northern Ireland, of the Lord Chief Justice of Northern Ireland.

§ (6) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this paragraph.

§ (7) 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 paragraph.

834

§ (8) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this paragraph—

(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)."

§ Tobacco Products Duty Act 1979 (c. 7)

§ 74 (1) Section 5 of the Tobacco Products Duty Act 1979 (retail price of cigarettes) is amended as follows.

§ (2) In subsection (4) for the words from "by the Lord Chancellor" to the end substitute "in accordance with subsections (7) to (9)."

§ (3) After subsection (6) insert—

§ "(7) The Lord Chancellor is to appoint the referee.

§ (8) The appointment is to be made only with the concurrence of—

(a) the Lord Chief Justice of England and Wales, if the determination of the Commissioners was made in relation to England and Wales;
(b) the Lord President of the Court of Session, if the determination was made in relation to Scotland; or
(c) the Lord Chief Justice of Northern Ireland, if the determination was made in relation to Northern Ireland.

§ (9) None of the following may be appointed—

(a) an official of any government department;
(b) an office holder in, or a member of the staff of, the Scottish Administration.

§ (10) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section.

§ (11) 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.

§ (12) The Lord Chief Justice of Northern Ireland may nominate any of the 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)."

§ Magistrates' Courts Act 1980 (c. 43)

§ 75 The Magistrates' Courts Act 1980 is amended as follows.

§ 76 (1) Section 3B (transfer of trials of summary offences) is amended as follows.

§ (2) In subsection (3) for "Lord Chancellor may" substitute "Lord Chief Justice may, with the concurrence of the Lord Chancellor,".

§ (3) After subsection (4) insert—

§ "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3)."

§ 77 (1) Section 67 (Family Proceedings Courts) (as substituted by section 49(1) of the Courts Act 2003 (c. 39)) is amended as follows.

§ (2) In subsection (3) for "Lord Chancellor or a person acting on his behalf" substitute "Lord Chief Justice".

§ (3) In subsection (4) for "Lord Chancellor may by rules" substitute "Lord Chief Justice may, after consulting the Lord Chancellor, by rules".

§ (4) In subsection (5) for "Lord Chancellor" substitute "Lord Chief Justice".

835

§ (5) After subsection (8) insert—

§ 78 (1) Section 144 (rule committee and rules of procedure) is amended as follows.

§ (2) Before subsection (1) insert—

§ "(A1) The Lord Chancellor may appoint a rule committee for magistrates' courts."

§ (3) In subsection (1)—

(a) for the words from the beginning to "and may on" substitute "The Lord Chief Justice may on";
(b) after "consultation with the rule committee" insert " and with the concurrence of the Lord Chancellor,".

§ (4) After subsection (1) insert—

§ "(1A) If the Lord Chancellor does not agree rules made by the Lord Chief Justice, the Lord Chancellor must give the Lord Chief Justice and the rules committee written reasons for doing so."

§ (5) In subsection (2) for "he may determine" substitute "he may, after consulting the Lord Chief Justice, determine".

§ (6) After subsection (4) insert—

§ "(4A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ 79 After section 144 insert—

§ "144A RULES TO BE MADE IF REQUIRED BY LORD CHANCELLOR

§ (1) This section applies if the Lord Chancellor gives the Lord Chief Justice written notice that he thinks it is expedient for rules made under section 144 to include provision that would achieve a purpose specified in the notice.

§ (2) The Lord Chief Justice must make such rules as he considers necessary to achieve the specified purpose.

§ (3) Those rules must be—

(a) made within a reasonable period after the Lord Chancellor gives notice to the Lord Chief Justice;
(b) made in accordance with section 144.

§ (4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Housing Act 1980 (c. 51)

§ 80 In section 86 of the Housing Act 1980 (jurisdiction of county court), omit subsections (4) to (6) (rules and directions).

§ Judicial Pensions Act 1981 (c. 20)

§ 81 The Judicial Pensions Act 1981 is amended as follows.

§ 82 In section 1 (interpretation) in the entry beginning "Judge of the Supreme Court" in the first column of the table omit ", other than the Lord Chancellor".

§ 83 (1) Section 5 (Circuit Judge in England and Wales) is amended as follows.

§ (2) After subsection (1) insert—

§ "(1A) The Lord Chancellor must consult the Lord Chief Justice of England and Wales before making a recommendation in a case that falls within subsection (1)(b) or (c)."

§ (3) After subsection (6) insert—

§ "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ 84 (1) Section 7 (stipendiary magistrates in England and Wales) is amended as follows.

§ (2) After subsection (1) insert—

§ (1A) The Lord Chancellor must consult the Lord Chief Justice before making a recommendation in a case that falls within subsection (1)(b)."

836

§ (3) After subsection (6) insert—

§ "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ 85 (1) Section 13 (Social Security Commissioners) is amended as follows.

§ (2) After subsection (1) insert—

§ "(1 A) The Lord Chancellor must consult the Lord Chief Justice before making a recommendation in a case that falls within subsection (1)(6) or (c)."

§ (3) After subsection (6)—

§ "(7) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ Supreme Court Act 1981 (c. 54)

§ 86 The Supreme Court Act 1981 is amended as follows.

§ 87 (1) Section 2 (membership of the Court of Appeal) is amended as follows.

§ (2) In subsection (2)—

(a) omit paragraph (a);
(b) in paragraph (b) for "has been Lord Chancellor" substitute "was Lord Chancellor before 12 June 2003";
(c) for paragraphs (f) and (g) substitute—
"(f) the President of the Queen's Bench Division;
(g) the President of the Family Division;
(h) the Chancellor of the High Court;"
(d) for "Lord Chancellor's request" substitute "request of the Lord Chief Justice".

§ (3) After subsection (2) insert—

§ "(2A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his function under subsection (2) of making requests to persons within paragraphs (b) and (c) of that subsection."

§ (4) After subsection (4) insert—

§ "(4A) It is for the Lord Chancellor to recommend to Her Majesty the making of an Order under subsection (4)."

§ (5) In subsection (6)—

(a) omit "Lord Chancellor,";
(b) for "President of the Family Division or Vice-Chancellor" substitute "President of the Queen's Bench Division, President of the Family Division or Chancellor of the High Court".

§ 88 (1) Section 3 (Divisions of Court of Appeal) is amended as follows.

§ (2) In subsection (3) for "Lord Chancellor may" substitute "Lord Chief Justice may, after consulting the Lord Chancellor".

§ (3) After subsection (5) insert—

§ "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3)."

§ 89 (1) Section 4 (membership of the High Court) is amended as follows.

§ (2) In subsection (1)—

(a) omit paragraph (a);
(b) for paragraphs (c) and (d) substitute—
"(ba) the President of the Queen's Bench Division;
(c) the President of the Family Division;
(d) the Chancellor of the High Court;".

§ (3) After subsection (4) insert—

§ "(4A) It is for the Lord Chancellor to recommend to Her Majesty the making of an Order under subsection (4)."

837

§ (4) In subsection (6)—

(a) omit "Lord Chancellor,";
(b) for "President of the Family Division, Vice-Chancellor" substitute "President of the Queen's Bench Division, President of the Family Division, Chancellor of the High Court".

§ 90 (1) Section 5 (divisions of the High Court) is amended as follows.

§ (2) In subsection (1)(a) for the words from "the Lord Chancellor" to "vice-president thereof," substitute "the Chancellor of the High Court, who shall be president thereof,".

§ (3) In subsection (1)(b) for "who shall be president thereof" substitute ", the President of the Queen's Bench Division".

§ (4) In subsection (2) for "of the Lord Chancellor" in each place substitute "given by the Lord Chief Justice after consulting the Lord Chancellor".

§ (5) In subsection (3) for the words from "with the concurrence of" to the end substitute "with the concurrence of both of the following—

(a) the senior judge of the Division to which the judge is attached;
(b) the senior judge of the Division of which the judge is to act as an additional judge."

§ (6) After subsection (5) insert—

§ "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."

§ 91 (1) Section 6 (the Patents, Admiralty and Commercial Courts) is amended as follows.

§ (2) In subsection (2) for "Lord Chancellor may" substitute "Lord Chief Justice may, after consulting the Lord Chancellor,".

§ (3) After subsection (2) insert—

§ "(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (2)."

§ 92 (1) Section 7 (power to alter Divisions etc) is amended as follows.

§ (2) In subsection (1) after "recommendation of insert "the Lord Chancellor and".

§ (3) In subsection (2)—

(a) omit "the Lord Chancellor,";
(b) 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".

§ 93 (1) Section 9 (assistance for transaction of judicial business of Supreme Court) is amended as follows.

§ (2) In subsection (2)—

§ (a) for the definition of "the appropriate authority" substitute—

§ ""the appropriate authority" means—

(a) the Lord Chief Justice or a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) nominated by him to exercise his functions under this section, or
(b) at any time when the Lord Chief Justice or the nominated judicial office holder is unable to make such a request himself, or there is a vacancy in the office of Lord Chief Justice, the Master of the Rolls;"
(b) omit the words after the definition of "relevant court".

§ (3) After subsection (2) insert—

§ "(2A) The power of the appropriate authority to make a request under subsection (1) is subject to subsections (2B) to (2D).

838

§ (2B) In the case of a request to a person within entry 1, 3, 5 or 6 in column 1 of the Table, the appropriate authority may make the request only after consulting the Lord Chancellor.

§ (2C) In any other case the appropriate authority may make a request only with the concurrence of the Lord Chancellor.

§ (2D) In the case of a request to a Circuit judge or Recorder to act as a judge of the High Court, the appropriate authority may make the request only with the concurrence of the Judicial Appointments Commission."

§ (4) In subsection (4)—

(a) for "appears to the Lord Chancellor" substitute "appears to the Lord Chief Justice, after consulting the Lord Chancellor,";
(b) for "Lord Chancellor thinks fit" substitute "Lord Chief Justice may, after consulting the Lord Chancellor, think fit".

§ (5) After subsection (8) insert—

§ "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (4)."

§ 94 (1) Section 10 (appointment of judges of Supreme Court) is amended as follows.

§ (2) In subsection (1)—

(a) for "President of the Family Division or Vice-Chancellor" substitute "President of the Queen's Bench Division, President of the Family Division or Chancellor of the High Court";
(b) after "may" insert ", on the recommendation of the Lord Chancellor,".

§ (3) In subsection (2) after "may" insert ", on the recommendation of the Lord Chancellor,".

§ (4) In subsection (3)(a) for "President of the Family Division or Vice-Chancellor" substitute "President of the Queen's Bench Division, President of the Family Division or Chancellor of the High Court".

§ (5) For subsection (4) substitute—

§ "(4) A person appointed—

(a) to any of the offices mentioned in subsection (1),
(b) as a Lord Justice of Appeal, or
(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—

(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 (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—

(a) the Lord Chief Justice, or
(b) a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) nominated by him for this purpose.

§ (8) In this section "required oaths" means—

(a) the oath of allegiance, and
(b) the judicial oath,

as set out in the Promissory Oaths Act 1868."

839

§ 95 (1) Section 11 (tenure of office) is amended as follows.

§ (2) After subsection (3) insert—

§ "(3A) It is for the Lord Chancellor to recommend to Her Majesty the exercise of the power of removal under subsection (3)."

§ (3) 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,".

§ 96 In section 12 (salaries etc of judges of Supreme Court), in subsection (1) omit ", other than the Lord Chancellor,".

§ 97 (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 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."

§ (3) In subsection (4) for "Vice-Chancellor" substitute "Chancellor of the High Court".

§ 98 In section 44 (extraordinary functions of judges of High Court), in subsection (2) omit "the Lord Chancellor,".

§ 99 In section 56B (allocation of cases in criminal division), in subsection (1) for "with the concurrence of the Lord Chancellor" substitute "after consulting the Lord Chancellor".

§ 100 (1) Section 57 (Court of Appeal: sittings and vacations) is amended as follows.

§ (2) In subsection (2) after "Lord Chancellor" insert "after consulting the Lord Chief Justice".

§ (3) After subsection (4) insert—

§ "(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ 101 (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 Lord Chancellor,";
(b) in paragraph (b) for "appears to him" substitute "appears to the Lord Chief Justice and the Lord Chancellor".

§ (3) After subsection (8) insert—

§ "(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (3)."

§ 102 (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 Lord Chancellor".

§ (3) In subsection (2) for "Lord Chancellor" substitute "Lord Chief Justice, after consulting the Lord Chancellor, to be".

§ (4) After subsection (3) insert—

§ "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1) or (2)."

§ 103 (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 Lord Chancellor,".

§ (3) In subsection (6) for "by the Lord Chancellor" substitute "by the Lord Chief Justice after consulting the Lord Chancellor".

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§ (4) After subsection (7) insert—

§ "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under subsections (1)(a) and (6)."

§ 104 (1) Section 71 (High Court: sittings and vacations) is amended as follows.

§ (2) In subsection (2) after "Lord Chancellor" insert "after consulting the Lord Chief Justice".

§ (3) After subsection (5) insert—

§ "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ 105 (1) Section 74 (appeals and committals for sentence) is amended as follows.

§ (2) After subsection (5) insert—

§ "(5A) Before exercising any functions under subsection (4), the Lord Chancellor must consult the Lord Chief Justice."

§ (3) After subsection (7) insert—

§ "(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ 106 (1) Section 78 (Crown Court: sittings) is amended as follows.

§ (2) In subsection (3) after "Lord Chancellor" insert "after consulting the Lord Chief Justice".

§ (3) After subsection (3) insert—

§ "(4) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ 107 (1) Section 82 (duties of officers of Crown Court) is amended as follows.

§ (2) In subsection (1) after "Lord Chancellor" insert "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 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

§ 108 Omit section 84(8) (rules of court for Crown Court etc to be made by statutory instrument).

§ 109 (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 persons—".

§ (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 paragraphs (b), (c) and (e) of subsection (1), after consulting the Lord Chancellor.

§ (4) The Lord Chancellor must appoint the persons referred to in paragraphs (f) and (g) of subsection (1), after consulting the following—

(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 Lord Chancellor determines after consulting the Lord Chief Justice.

§ (6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 88(4) of the Constitutional Reform Act 2004) to exercise his functions under this section."

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§ 110 After section 86 insert—