Statutory Instruments
Family Court, England And Wales
Justices Of The Peace, England And Wales
Magistrates' Courts, England And Wales
Made
27th January 2020
Laid before Parliament
3rd February 2020
Coming into force
6th April 2020
The Lord Chancellor, in exercise of the powers conferred by section 3(2) and (4) of the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 M1, makes the following Regulations:
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1.—(1) These Regulations may be cited as the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 (Consequential, Transitional and Saving Provision) Regulations 2020 and come into force on 6th April 2020.
(2) In these Regulations, “the 2018 Act” means the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018.
(3) These Regulations extend to England and Wales.
2. The Schedule makes consequential provision in relation to the Schedule to the 2018 Act.
3. Notwithstanding the repeal by paragraphs 19 and 38 of the Schedule to the 2018 Act of paragraph 2 of Schedule 1 to the Civil Procedure Act 1997 M2 and section 51(2)(d) of the Mental Capacity Act 2005 M3 (exercise of jurisdiction by officers or other staff of the court)—
(a)any provisions of the Civil Procedure Rules 1998 M4, as in force immediately before the coming into force of the repeal of paragraph 2 of Schedule 1 to the Civil Procedure Act 1997, which provide for functions which would be relevant judicial functions within the meaning of section 67A of the Courts Act 2003 M5 to be performed by officers or other staff of the court, shall continue in force and shall have effect as if made under section 67B(1) of the Courts Act 2003 and may be varied or revoked accordingly;
(b)any provisions of the Court of Protection Rules 2017 M6, as in force immediately before the coming into force of the repeal of section 51(2)(d) of the Mental Capacity Act 2005, which provide for functions which would be relevant judicial functions within the meaning of section 67A of the Courts Act 2003 to be performed by officers or other staff of the court, shall continue in force and shall have effect as if made under section 67B(1) of the Courts Act 2003 and may be varied or revoked accordingly.
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M52003 c. 39. Sections 67A to 67G were inserted by the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 (c. 33), Schedule, paragraph 32.
4. On and after 6 April 2020, anything done before that date by a justices' clerk or an assistant to a justices' clerk under any of the provisions amended by the Schedule shall, so far as necessary for its continuing validity, for any question as to its validity or for any proceedings in respect of it, have effect as if done under that provision as so amended.
Chris Philp
Parliamentary Under Secretary of State]
Ministry of Justice
27th January 2020
Regulation 2
1.—(1) The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 M7 is amended as follows.
(2) In Schedule 1—
(a)in Part II (offices, employments and work), in paragraph 4, for “justices' clerks and assistants to justices' clerks” substitute “justices' legal advisers”;
(b)in Part IV (interpretation), for the definition of “assistants to justices' clerks” substitute—
““justices' legal adviser” means a person nominated by the Lord Chancellor who is authorised to exercise functions under section 28(1) of the Courts Act 2003 M8;”.
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M7S.I. 1975/1023, to which relevant amendments were made by S.I. 2001/1192, S.I. 2005/617 and S.I. 2006/2143.
M8Section 28 was substituted by the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 (c. 33), Schedule, paragraph 26.
2.—(1) The Magistrates' Courts Rules 1981 M9 are amended as follows.
(2) In rule 2 (interpretation), in paragraph (1), after the definition of “the Act of 1998” insert—
““justices' legal adviser” means a person nominated by the Lord Chancellor who is authorised to exercise functions under section 28(1) of the Courts Act 2003;”.
(3) In rule 3A (case management), in paragraph (7)(a), for “, justices' clerk or assistant to a justices' clerk” substitute “or justices' legal adviser”.
(4) In rule 86 (requirements to be complied with before release), in paragraph (1)(b), for “a justices' clerk” substitute “a justices' legal adviser”.
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M9S.I. 1981/552, to which relevant amendments were made by S.I. 2009/3362.
3. In regulation 5 (the appropriate authority) of the Costs in Criminal Cases (General) Regulations 1986 M10, in paragraph (2)(d), for “the justices' clerk” substitute “a justices' legal adviser (a person nominated by the Lord Chancellor who is authorised to exercise functions under section 28(1) of the Courts Act 2003)”.
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M10S.I. 1986/1335, to which relevant amendments were made by S.I. 2008/2448.
4. In rule 2 (general) of the Magistrates' Courts (Costs Against Legal Representatives in Civil Proceedings) Rules 1991 M11, in paragraph (2), for “justices' clerk” substitute “ designated officer for the court ”.
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5.—(1) The Civil Procedure Rules 1998 M12 are amended as follows.
(2) In rule 2.3 (interpretation), in paragraph (1) after the definition of “jurisdiction” insert—
““justices' legal adviser” means a person nominated by the Lord Chancellor who is authorised to exercise functions under section 28(1) of the Courts Act 2003;”.
(3) In rule 65.48 (recognizance), in paragraph (1)(c), for “clerk” substitute “ legal adviser ”.
(4) In rule 77.6 (scope and interpretation), in paragraph (3)(d)(ii), for “clerk” substitute “ legal adviser ”.
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M12S.I. 1998/3132, to which relevant amendments were made by S.I. 2010/1953.
6.—(1) The Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 M13 are amended as follows.
(2) In rule 3 (hearsay notices), in paragraph (2), omit “or the justices' clerk”.
(3) In rule 4 (power to call witness for cross-examination on hearsay evidence)—
(a)in paragraph (3)(a), for “justices' clerk” substitute “ designated officer for the court ”;
(b)in paragraph (5)—
(i)after “The court”, omit “or the justices' clerk”;
(ii)after “if the court”, omit “or the justices' clerk, as the case may be,”.
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M13S.I. 1999/681, to which relevant amendments were made by S.I. 2001/615 and S.I. 2005/617.
7.—(1) The Magistrates' Courts (Anti-Social Behaviour Orders) Rules 2002 M14 are amended as follows.
(2) In rule 5 (interim orders)—
(a)in paragraph (1), for “justices' clerk” substitute “ court ”;
(b)in paragraph (2)—
(i)for “justices' clerk” substitute “ court ”;
(ii)for “he” substitute “ it ”.
(3) Omit rule 8 (delegation by justices' clerk).
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8. In rule 2 (interpretation) of the Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002 M15, omit paragraph (b) (definition of “justices' clerk”).
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M15S.I. 2002/2998, to which there are amendments not relevant to these Regulations.
9. In rule 2 (application for forfeiture) of the Magistrates' Courts (Forfeiture of Political Donations) Rules 2003 M16, in paragraph (2), for “justices' clerk” substitute “ designated officer for the court ”.
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M16S.I. 2003/1645, to which there are amendments not relevant to these Regulations.
10.—(1) The Community Legal Service (Funding) Order 2007 M17 is amended as follows.
(2) In article 3 (interpretation), in paragraph (1)—
(a)omit the definition of “assistant to a justices' clerk”;
(b)omit the definition of “justices' clerk” and in its place insert—
““justices' legal adviser” means a person nominated by the Lord Chancellor who is authorised to exercise functions under section 28(1) of the Courts Act 2003;”.
(3) In Schedule 1 (fees and hourly rates)—
(a)in Table 2(c), in the second column, for “Assistant to a justices' clerk, justices' clerk” each of the 5 times those words occur, substitute “Justices' legal adviser”;
(b)in Table 3(e), in the second column, for “Assistant to a justices' clerk, justices' clerk” both times those words occur, substitute “Justices' legal adviser”;
(c)in Table 3(f), in the second column, for “Assistant to a justices' clerk, justices' clerk” both times those words occur, substitute “Justices' legal adviser”;
(d)in Table 3(g), in the second column, for “Assistant to a justices' clerk, justices' clerk” both times those words occur, substitute “Justices' legal adviser”;
(e)in Table 9(a), in the heading to the third column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(f)in Table 9(b), in the heading to the third column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”.
(4) In Schedule 2 (family advocacy scheme: fees and rates)—
(a)in Table 1(a), in the first column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(b)in Table 1(b), in the first column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(c)in Table 2(a), in the first column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(d)in Table 2(b), in the first column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(e)in Table 2(c), in the first column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”.
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M17S.I. 2007/2441, to which relevant amendments were made by S.I. 2011/2066 and S.I. 2014/1818.
11. In Schedule 1 (fees to be taken) to the Magistrates' Courts Fees Order 2008 M18, in the Note below fee 2.1, for “justices' clerk” substitute “justices' legal adviser”.
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M18S.I. 2008/1052. Schedule 1 was substituted by S.I. 2014/875.
12. In Schedule 1 (fees to be taken) to the Family Proceedings Fees Order 2008 M19, in fee 6.1, for “, a justices' clerk or an assistant to a justices' clerk” substitute “or a justices' legal adviser”.
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M19S.I. 2008/1054. Schedule 1 was substituted by S.I. 2014/877.
13. In regulation 102 (magistrates' courts) of the Community Infrastructure Levy Regulations 2010 M20, omit paragraph (3).
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M20S.I. 2010/948. Paragraph (3) was amended by S.I. 2019/1103.
14.—(1) The Civil Legal Aid (Remuneration) Regulations 2013 M21 are amended as follows.
(2) In regulation 2 (interpretation), in paragraph (1)—
(a)omit the definition of “assistant to a justices' clerk”;
(b)omit the definition of “justices' clerk” and in its place insert—
““justices' legal adviser” means a person nominated by the Lord Chancellor who is authorised to exercise functions under section 28(1) of the Courts Act 2003;”.
(3) In Schedule 1—
(a)in Table 2(c), in the second column, for “Assistant to a justices' clerk, justices' clerk” each of the 5 times those words occur, substitute “Justices' legal adviser”;
(b)in Table 3(f), in the second column, for “Assistant to a justices' clerk, justices' clerk” both times those words occur, substitute “Justices' legal adviser”;
(c)in Table 3(g), in the second column, for “Assistant to a justices' clerk, justices' clerk” both times those words occur, substitute “Justices' legal adviser”;
(d)in Table 3(h), in the second column, for “Assistant to a justices' clerk, justices' clerk” both times those words occur, substitute “Justices' legal adviser”;
(e)in Table 9(a), in the heading to the third column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(f)in Table 9(aa), in the heading to the third column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(g)in Table 9(b), in the heading to the third column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”.
(4) In Schedule 3—
(a)in Table 1(a), in the first column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(b)in Table 1(b), in the first column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(c)in Table 2(a), in the first column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(d)in Table 2(b), in the first column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”;
(e)in Table 2(c), in the first column, for “Assistant to a justices' clerk, justices' clerk” substitute “Justices' legal adviser”.
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M21S.I. 2013/422, to which relevant amendments were made by S.I. 2014/586.
15. In article 2 (appeals to the family court) of the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014 M22, in paragraph (3)(s), for “a justices' clerk or an assistant to a justices' clerk” substitute “ a person nominated by the Lord Chancellor who is authorised to exercise functions under section 31O(1) of the Matrimonial and Family Proceedings Act 1984 M23 ”.
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M231984 c. 42. Section 31O was substituted by the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 (c. 33), Schedule, paragraph 14.
16.—(1) The Family Court (Composition and Distribution of Business) Rules 2014 M24 are amended as follows.
(2) In rule 2 (interpretation), in paragraph (1), omit the definitions of “assistant to a justices' clerk” and “justices' clerk”.
(3) In rule 6 (composition: appeals heard by a judge of circuit judge level or a judge of High Court level), in paragraph (2)(d), for “a justices' clerk or an assistant to a justices' clerk” substitute “ a person nominated by the Lord Chancellor who is authorised to exercise functions under section 31O(1) of the Matrimonial and Family Proceedings Act 1984 ”.
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17. In rule 9 (recognizance) of the Magistrates' Courts (Injunctions: Gang-related Violence) Rules 2015 M25, in paragraph (c), for “a justices' clerk” substitute “ a person nominated by the Lord Chancellor who is authorised to exercise functions under section 28(1) of the Courts Act 2003 ”.
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18. In rule 9 (recognizance) of the Magistrates' Courts (Injunctions: Anti-Social Behaviour) Rules 2015 M26, in paragraph (c), for “a justices' clerk” substitute “ a person nominated by the Lord Chancellor who is authorised to exercise functions under section 28(1) of the Courts Act 2003 ”.
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19.—(1) The Justices of the Peace Rules 2016 M27 are amended as follows.
(2) In rule 3 (interpretation), omit the definition of “justices' clerk” and in its place insert—
““justices' legal adviser” means a person nominated by the Lord Chancellor who is authorised to exercise functions under section 28(1) of the Courts Act 2003;”.
(3) In the following rules, for “justices' clerk” each time those words appear substitute “justices' legal adviser”—
(a)rule 7 (eligibility of justices and family justices), paragraph (3);
(b)rule 8 (procedure for elections), paragraph (3);
(c)rule 10 (notice of candidacy procedure), paragraphs (2), (3), (4), (7) and (8);
(d)rule 11 (secret ballot), paragraphs (1), (2) and (3);
(e)rule 12 (determining result of secret ballot), paragraphs (3), (5) and (6);
(f)rule 13 (miscellaneous provisions about secret ballots), paragraphs (1) (where the words appear three times) and (3);
(g)rule 14 (withdrawal of notices of candidacy), paragraphs (1)(g) and (2);
(h)rule 15 (absence or insufficiency of notices of candidacy), paragraphs (1) (where the words appear twice) and (3);
(i)rule 16 (material irregularity in election procedure), paragraphs (1) (where the words appear twice), (2), (3), (4), (5)(a), (6)(b) and (7);
(j)rule 17 (duration of term in office and vacancies), paragraphs (3) and (5)(a).
(4) In rule 22 (membership of JTAAAC), for paragraph (1)(c) substitute—
“(c)the justices' legal adviser or an assistant nominated by them who is also a person authorised to exercise functions under section 28(1) of the Courts Act 2003;”.
(5) In rule 26 (membership of FTAAAC), for paragraph (1)(c) substitute—
“(c)the justices' legal adviser or an assistant nominated by them who is also a person authorised to exercise functions under section 28(1) of the Courts Act 2003;”.
(6) In the following rules, for “justices' clerk” each time those words appear substitute “justices' legal adviser”—
(a)rule 29 (JTAAAC and FTAAAC decisions), paragraph (4);
(b)rule 30 (grant of approval or authorisation), paragraph (2);
(c)rule 31 (review of competence), paragraph (4)(d);
(d)rule 32 (review of approvals and authorisations), paragraph (5)(f);
(e)rule 35 (review of excess authorisations), paragraph (1).
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(This note is not part of the Regulations)
The Schedule to the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 (c. 33) (“the 2018 Act”) makes provision for authorised court and tribunal staff to provide legal advice to judges of the family court and justices of the peace, and to exercise judicial functions where procedure rules so provide. That provision includes repealing or amending provision in primary legislation which refers to the offices of a justices' clerk or assistant to a justices' clerk (since those offices will no longer exist as a result of the changes made by the 2018 Act). These Regulations make amendments to secondary legislation in consequence of the provision made by the Schedule to the 2018 Act, and also make transitional and saving provision.
A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.