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SCHEDULEAuthorised court and tribunal staff: legal advice and judicial functions

PART 1Courts

Criminal Justice Act 1972

1In section 51 of the Criminal Justice Act 1972 (execution of process between England and Wales and Scotland), omit subsection (4).

Solicitors Act 1974

2In section 3(1) of the Solicitors Act 1974 (admission as solicitor), omit the words from the beginning to “clerk),”.

Bail Act 1976

3In section 8(4)(a) of the Bail Act 1976 (recognizance of surety), omit “, a justices’ clerk”.

Magistrates’ Courts Act 1980

4The Magistrates’ Courts Act 1980 is amended as follows.

5(1)Section 12 (non-appearance of accused: plea of guilty) is amended as follows.

(2)In subsection (7), omit “by the clerk of the court”.

(3)In subsection (7ZA), at the end insert—

(c)specify the persons, or description of persons, who must—

(i)read out the things mentioned in such of those paragraphs as apply, and

(ii)give the account mentioned in subsection (7A).

(4)In subsection (7A), omit “by the clerk of the court”.

6In section 77(6)(a) (postponement of issue of warrant: reference of application to court), omit “clerk of the”.

7In section 114 (recognizances and fees on case stated)—

(a)for “justices’ clerk” substitute “designated officer for the court”, and

(b)omit “for the court”.

8(1)Section 125C (disclosure of information for enforcing warrants) is amended as follows.

(2)In subsection (1), omit “(or to a justices’ clerk who is specified in the application)”.

(3)In subsection (3)(c) omit “justices’ clerk or other”.

9In section 125CB(1)(c) (use of information supplied under disclosure order), omit “justices’ clerk or other”.

10In section 144 (rules of procedure), for subsections (1) and (1ZA) substitute—

(1)The Lord Chief Justice may, with the concurrence of the Lord Chancellor, make rules for regulating and prescribing, except in relation to any criminal cause or matter, the procedure and practice to be followed—

(a)in magistrates’ courts, and

(b)by designated officers for magistrates’ courts.

Highways Act 1980

11In section 116(9) of the Highways Act 1980 (power of magistrates’ court to authorise stopping up or diversion of highway), for “justices’ clerk” substitute “designated officer for the court”.

Matrimonial and Family Proceedings Act 1984

12The Matrimonial and Family Proceedings Act 1984 is amended as follows.

13In section 31C(2) (precedent in the family court), for “justices’ clerk or an assistant to a justices’ clerk,” substitute “person authorised under section 67B(2) of the Courts Act 2003,”.

14For section 31O substitute—

31OFunction of giving legal advice to judges

(1)The Lord Chief Justice may authorise a person—

(a)to give advice to judges of the family court about matters of law (including procedure and practice) on questions arising in connection with the discharge by them of functions conferred on them or the court, including questions arising when the person is not personally attending on them, and

(b)to bring to the attention of judges of the family court, at any time when the person thinks appropriate, any point of law (including procedure and practice) that is or may be involved in any question so arising.

(2)The Lord Chief Justice may authorise a person under subsection (1) only if the person—

(a)is appointed under section 2(1) of the Courts Act 2003 or section 40(1) of the Tribunals, Courts and Enforcement Act 2007, and

(b)has such qualifications as may be prescribed by regulations made by the Lord Chancellor with the agreement of the Lord Chief Justice.

(3)An authorisation under subsection (1)—

(a)may be subject to conditions, and

(b)may be varied or revoked by the Lord Chief Justice at any time.

(4)The Lord Chief Justice may give directions to a person authorised to exercise functions under subsection (1).

(5)Apart from such directions, a person authorised to exercise functions under subsection (1) is not subject to the direction of the Lord Chancellor or any other person when exercising the functions.

(6)The Lord Chief Justice may nominate one or more of the following to exercise the Lord Chief Justice’s functions under the preceding provisions of this section—

(a)a judicial office holder;

(b)a person appointed under section 2(1) of the Courts Act 2003 or section 40(1) of the Tribunals, Courts and Enforcement Act 2007.

(7)A person nominated under subsection (6)(b) to exercise functions of the Lord Chief Justice is not subject to the direction of any person other than—

(a)the Lord Chief Justice, or

(b)a judicial office holder nominated by the Lord Chief Justice,

when exercising the functions.

(8)In this section “judicial office holder” has the meaning given by section 109(4) of the Constitutional Reform Act 2005.

15In section 31P (orders, regulations and rules), omit subsection (2).

Police and Criminal Evidence Act 1984

16Omit section 47A of the Police and Criminal Evidence Act 1984 (early administrative hearings conducted by justices’ clerks).

Criminal Justice Act 1991

17In Schedule 3 to the Criminal Justice Act 1991 (reciprocal enforcement of certain orders), in paragraph 11(7)(b), for “clerk of” substitute “designated officer for”.

Criminal Procedure (Scotland) Act 1995

18In Schedule 13 (transfer of community payback orders), in paragraph 5(4)(a), omit “the clerk of”.

Civil Procedure Act 1997

19In Schedule 1 to the Civil Procedure Act 1997 (civil procedure rules), omit paragraph 2.

Crime and Disorder Act 1998

20The Crime and Disorder Act 1998 is amended as follows.

21In section 49 (powers of magistrates’ courts exercisable by single justice), omit subsections (2) to (5).

22In section 50 (early administrative hearings), in subsection (4), for the words from the beginning to “such a clerk” substitute “Where the powers of a single justice are exercised by a person authorised under section 67B(2) of the Courts Act 2003, nothing in subsection (3)(b) above authorises the person”.

23In Schedule 3 (procedure where persons are sent for trial under section 51), in paragraph 6(9)(a), omit “the clerk of”.

Licensing Act 2003

24In section 131 of the Licensing Act 2003 (court’s duty to notify licensing authority of convictions), in subsection (5)(a), for “clerk of” substitute “designated officer for”.

Courts Act 2003

25The Courts Act 2003 is amended as follows.

26For sections 27 to 29 substitute—

Legal advice
28Function of giving legal advice to justices of the peace

(1)The Lord Chief Justice may authorise a person—

(a)to give advice to justices of the peace about matters of law (including procedure and practice) on questions arising in connection with the discharge of their functions, including questions arising when the person is not personally attending on them, and

(b)to bring to the attention of justices of the peace, at any time when the person thinks appropriate, any point of law (including procedure and practice) that is or may be involved in any question so arising.

(2)For the purposes of subsection (1), the functions of justices of the peace do not include functions as a judge of the family court or the Crown Court.

(3)The Lord Chief Justice may authorise a person under subsection (1) only if the person—

(a)is appointed under section 2(1) of this Act or section 40(1) of the Tribunals, Courts and Enforcement Act 2007, and

(b)has such qualifications as may be prescribed by regulations made by the Lord Chancellor with the agreement of the Lord Chief Justice.

(4)An authorisation under subsection (1)—

(a)may be subject to conditions, and

(b)may be varied or revoked by the Lord Chief Justice at any time.

(5)The Lord Chief Justice may nominate one or more of the following to exercise the Lord Chief Justice’s functions under the preceding provisions of this section—

(a)a judicial office holder;

(b)a person appointed under section 2(1) of the Courts Act 2003 or section 40(1) of the Tribunals, Courts and Enforcement Act 2007.

(6)A person nominated under subsection (5)(b) to exercise functions of the Lord Chief Justice is not subject to the direction of any person other than—

(a)the Lord Chief Justice, or

(b)a judicial office holder nominated by the Lord Chief Justice,

when exercising the functions.

(7)In this section “judicial office holder” has the meaning given by section 109(4) of the Constitutional Reform Act 2005.

29Directions and independence

(1)The Lord Chief Justice may give directions to a person authorised to exercise functions under section 28(1).

(2)Apart from such directions, a person authorised to exercise functions under section 28(1) is not subject to the direction of the Lord Chancellor or any other person when exercising the functions.

(3)The Lord Chief Justice may nominate one or more of the following to exercise the Lord Chief Justice’s functions under subsection (1)—

(a)a judicial office holder;

(b)a person appointed under section 2(1) of this Act or section 40(1) of the Tribunals, Courts and Enforcement Act 2007.

(4)A person nominated under subsection (3)(b) to exercise functions of the Lord Chief Justice is not subject to the direction of any person other than—

(a)the Lord Chief Justice, or

(b)a judicial office holder nominated by the Lord Chief Justice,

when exercising the functions.

(5)In this section “judicial office holder” has the meaning given by section 109(4) of the Constitutional Reform Act 2005.

27In section 31 (immunity for acts within jurisdiction), omit subsection (2).

28In section 32 (immunity for certain acts beyond jurisdiction), omit subsection (2).

29(1)Section 34 (costs in legal proceedings) is amended as follows.

(2)Omit subsection (2).

(3)In subsection (3)—

(a)for “subsections (1) and (2) do” substitute “subsection (1) does”, and

(b)omit “, justices’ clerk or assistant clerk”.

(4)In subsection (4), for “or (2) from ordering a justice of the peace, justices’ clerk or assistant clerk” substitute “from ordering a justice of the peace”.

(5)In consequence of the preceding provisions of this paragraph, the Justices and Justices’ Clerks (Costs) Regulations 2001 (S.I. 2001/1296) are revoked.

30(1)Section 35 (indemnity) is amended as follows.

(2)In subsection (1), omit “, justices’ clerk or assistant clerk” (in both places).

(3)In subsection (3), omit “, justices’ clerk or assistant clerk”.

(4)In subsection (4), omit “, justices’ clerk or assistant clerk”.

31In section 37(2) (designated officers and magistrates’ courts)—

(a)omit the “and” at the end of paragraph (a), and

(b)omit paragraph (b).

32After Part 6 insert—

PART 6AExercise of judicial functions by authorised persons
67AMeaning of “judicial office holder” and “relevant judicial function”

(1)In this Part—

(2)This subsection applies to any function so far as its exercise involves authorising a person’s committal to prison.

(3)This subsection applies to any function so far as its exercise involves authorising a person’s arrest, but it does not apply to the issue of a warrant (whether or not endorsed for bail) for a person’s arrest in order to secure that the person attends court proceedings relating to an offence of which the person has been accused or convicted in a case in which no objection is made by or on behalf of the person to the issue of the warrant.

(4)This subsection applies to the function of making an order to recover possession of a building, or part of a building, which is occupied as a dwelling by—

(a)the person against whom the order is made, or

(b)the person’s spouse, civil partner or dependent child aged under 18,

but it does not apply to the making of an order in a case in which no objection is made by or on behalf of the person against whom the order is made to the making of the order.

(5)This subsection applies to the function of granting an injunction under section 37 of the Senior Courts Act 1981.

(6)This subsection applies to the function of making an order under section 7 of the Civil Procedure Act 1997 (order for preserving evidence etc).

67BAuthorisation to exercise relevant judicial functions

(1)Rules of court may provide for the exercise of relevant judicial functions by persons who—

(a)are appointed under section 2(1) of this Act or section 40(1) of the Tribunals, Courts and Enforcement Act 2007, and

(b)satisfy any requirements specified in the rules as to qualifications or experience.

(2)A person may exercise functions by virtue of subsection (1) only if authorised to do so by the Lord Chief Justice.

(3)Such a person is referred to in this Part as an “authorised person”.

(4)An authorisation under subsection (2)—

(a)may be subject to conditions, and

(b)may be varied or revoked by the Lord Chief Justice at any time.

(5)The Lord Chief Justice may nominate one or more of the following to exercise the Lord Chief Justice’s functions under the preceding provisions of this section—

(a)a judicial office holder;

(b)a person appointed under section 2(1) of this Act or section 40(1) of the Tribunals, Courts and Enforcement Act 2007.

(6)A person nominated under subsection (5)(b) to exercise functions of the Lord Chief Justice is not subject to the direction of any person other than—

(a)the Lord Chief Justice, or

(b)a judicial office holder nominated by the Lord Chief Justice,

when exercising the functions.

(7)Nothing in this Part is to be taken to affect the generality of any enactment conferring powers to make rules of court.

67CExercise of relevant judicial functions: reconsideration of decisions

(1)Before making rules of court that provide for the exercise of relevant judicial functions by authorised persons by virtue of section 67B(1), the authority with power to make the rules must take the following steps in relation to each of the functions in question.

(2)The authority must consider whether the rules should include a right for the parties to proceedings in which a decision is made by an authorised person exercising the function to have the decision reconsidered by a judicial office holder.

(3)If the authority considers that the rules should include such a right, it must include provision to that effect when it makes the rules.

(4)If the authority does not consider that the rules should include such a right, it must inform the Lord Chancellor of—

(a)its decision, and

(b)its reasons for reaching that decision.

67DDirections and independence: authorised persons

(1)The Lord Chief Justice may give directions to an authorised person.

(2)Apart from such directions, an authorised person exercising a relevant judicial function by virtue of section 67B(1) is not subject to the direction of the Lord Chancellor or any other person when exercising the function.

(3)The Lord Chief Justice may nominate one or more of the following to exercise the Lord Chief Justice’s functions under subsection (1)—

(a)a judicial office holder;

(b)a person appointed under section 2(1) of this Act or section 40(1) of the Tribunals, Courts and Enforcement Act 2007.

(4)A person nominated under subsection (3)(b) to exercise functions of the Lord Chief Justice is not subject to the direction of any person other than—

(a)the Lord Chief Justice, or

(b)a judicial office holder nominated by the Lord Chief Justice,

when exercising the functions.

67EProtection of authorised persons

(1)No action lies against an authorised person in respect of what the person does or omits to do—

(a)in the execution of the person’s duty as an authorised person exercising, by virtue of section 67B(1), a relevant judicial function, and

(b)in relation to a matter within the person’s jurisdiction.

(2)An action lies against an authorised person in respect of what the person does or omits to do—

(a)in the purported execution of the person’s duty as an authorised person exercising, by virtue of section 67B(1), a relevant judicial function, but

(b)in relation to a matter not within the person’s jurisdiction,

if, but only if, it is proved that the person acted in bad faith.

(3)If an action is brought in circumstances in which subsection (1) or (2) provides that no action lies, the court in which the action is brought—

(a)may, on the application of the defendant, strike out the proceedings in the action, and

(b)if it does so, may if it thinks fit order the person bringing the action to pay costs.

67FCosts in legal proceedings: authorised persons

(1)A court may not order an authorised person to pay costs in any proceedings in respect of what the person does or omits to do in the execution (or purported execution) of the person’s duty as an authorised person exercising, by virtue of section 67B(1), a relevant judicial function.

(2)But subsection (1) does not apply in relation to any proceedings in which an authorised person—

(a)is being tried for an offence or is appealing against a conviction, or

(b)is proved to have acted in bad faith in respect of the matters giving rise to the proceedings.

(3)A court which is prevented by subsection (1) from ordering an authorised person to pay costs in any proceedings may instead order the Lord Chancellor to make a payment in respect of the costs of a person in the proceedings.

(4)The Lord Chancellor may, after consulting the Lord Chief Justice, make regulations specifying—

(a)circumstances in which a court must or must not exercise the power conferred on it by subsection (3), and

(b)how the amount of any payment ordered under subsection (3) is to be determined.

(5)The Lord Chief Justice may nominate a judicial office holder to exercise the Lord Chief Justice’s functions under this section.

67GIndemnification of authorised persons

(1)“Indemnifiable amounts”, in relation to an authorised person, means—

(a)costs which the person reasonably incurs in or in connection with proceedings in respect of anything done or omitted to be done in the exercise (or purported exercise) of the person’s duty as an authorised person,

(b)costs which the person reasonably incurs in taking steps to dispute a claim which might be made in such proceedings,

(c)damages awarded against the person or costs ordered to be paid by the person in such proceedings, or

(d)sums payable by the person in connection with a reasonable settlement of such proceedings or such a claim.

(2)Indemnifiable amounts relate to criminal matters if the duty mentioned in subsection (1)(a) relates to criminal matters.

(3)The Lord Chancellor must indemnify an authorised person in respect of—

(a)indemnifiable amounts which relate to criminal matters, unless it is proved, in respect of the matters giving rise to the proceedings or claim, that the person acted in bad faith, and

(b)other indemnifiable amounts if, in respect of the matters giving rise to the proceedings or claim, the person acted reasonably and in good faith.

(4)The Lord Chancellor may indemnify an authorised person in respect of other indemnifiable amounts unless it is proved, in respect of the matters giving rise to the proceedings or claim, that the person acted in bad faith.

(5)Any question whether, or to what extent, an authorised person is to be indemnified under this section is to be determined by the Lord Chancellor.

(6)The Lord Chancellor may, if the person claiming to be indemnified so requests, make a determination for the purposes of this section with respect to—

(a)costs such as are mentioned in subsection (1)(a) or (b), or

(b)sums such as are mentioned in subsection (1)(d),

before the costs are incurred or the settlement in connection with which the sums are payable is made.

(7)But a determination under subsection (6) before costs are incurred—

(a)is subject to such limitations (if any) as the Lord Chancellor thinks proper and to the subsequent determination of the costs reasonably incurred, and

(b)does not affect any other determination which may fall to be made in connection with the proceedings or claim in question.

33(1)Section 70 (Criminal Procedure Rule Committee) is amended as follows.

(2)In subsection (2), for paragraph (f) substitute—

(f)one person authorised under section 28(1) (authorisation to provide legal advice to justices of the peace),.

(3)After subsection (4) insert—

(4A)A person falling within subsection (2)(f) exercising a function as a member of the Criminal Procedure Rule Committee is not subject to the direction of the Lord Chancellor or any other person when exercising the function.

34In section 76(2) (scope of Family Procedure Rules)—

(a)omit the “and” at the end of paragraph (a), and

(b)omit paragraph (aa).

35(1)Section 77 (membership of Family Procedure Rule Committee) is amended as follows.

(2)In subsection (2), for paragraph (g) substitute—

(g)one person authorised under section 31O(1) of the Matrimonial and Family Proceedings Act 1984 (authorisation to provide legal advice to judges of the family court),.

(3)After subsection (5) insert—

(5A)A person falling within subsection (2)(g) exercising a function as a member of the Family Procedure Rule Committee is not subject to the direction of the Lord Chancellor or any other person when exercising the function.

36In section 108(3)(b) (orders and regulations subject to affirmative resolution procedure), after “34(5)” insert “or 67F(4)”.

Criminal Justice Act 2003

37In section 305(1) of the Criminal Justice Act 2003 (interpretation of Part 12), in the definition of “the appropriate officer of the court”, for “clerk of” substitute “designated officer for”.

Mental Capacity Act 2005

38In section 51(2) of the Mental Capacity Act 2005 (scope of Court of Protection Rules), omit paragraph (d).