Tribunals, Courts and Enforcement Act 2007
2007 CHAPTER 15
Part 1: Tribunals and Inquiries
Commentary on Sections: Part 1
Section 48: Consequential and other amendments, and transitional provisions
236.Section 48 gives effect to Schedule 8 (consequential and other amendments) and to Schedule 9 (transitional provisions).
237.Paragraph 1 abolishes the office of General Commissioner (styled in legislation as “Commissioner for the general purposes of income tax”) and the offices of clerk, and assistant clerk, to any General Commissioner. The General Commissioners hear appeals brought under the Taxes Management Act 1970. The General Commissioners must appoint a clerk and if necessary an assistant clerk to provide administrative functions and legal advice to the General Commissioners. Provision is made for the General Commissioners by section 2 of the Taxes Management Act 1970 and the clerks by section 3. This paragraph is expected to be brought into force when the functions of the General Commissioners are transferred to the new Tribunals. It is not intended to use the power under section 31(2) so as to cause a person holding the office of General Commissioner to become a transferred-in judge of the new Tribunals.
238.Paragraphs 2, 8, 15, 17 to 19, 24, 28, 30, 32, 33, 53, 56 to 58, 60 and 61 amend references or provisions concerning the “Council on Tribunals”. These amendments reflect the provisions in section 44 and Schedule 7 establishing the Administrative Justice and Tribunals Council and section 45 abolishing the Council on Tribunals.
239.Paragraphs 3, 9 to 12, 22, 49 to 52 and 59 enable certain hearings or inquiries to constitute a statutory inquiry for the purposes of the Administrative Justice and Tribunals Council’s functions with respect to statutory inquiries under paragraph 15 of Schedule 7.
240.Paragraphs 4 and 5 will ensure that members of bodies established by the Act are disqualified from sitting in the House of Commons or the Northern Ireland Assembly.
241.Paragraph 6 enables litigants in person to obtain costs and expenses under the 1975 Act in proceedings before the First-tier Tribunal or Upper Tribunal where costs are awarded. Paragraph 6 also amends section 1(4) of the 1975 Act to provide that the definition of “rules of court” in that section, in relation to the First-tier and Upper Tribunal, means Tribunal Procedural Rules.
242.Paragraph 7 makes the Administrative Justice and Tribunals Council (“AJTC”) and the Scottish and Welsh Committees of the AJTC subject to the statutory duty under section 71 of the Race Relations Act 1976 so when carrying out their functions they have to have regard to the need to eliminate unlawful discrimination and to promote equal opportunity and good relations.
243.Paragraph 13 amends sections 26(2)(e) and 37(2) of the Food Safety Act 1990. The amendments to section 26(2)(e) allow regulations to be made to provide for appeals to the First-tier Tribunal or Upper Tribunal. Amendments to section 37(2) ensure that section 37(1)(c) (appeals to the magistrates or sheriff court) does not apply when regulations provide for an appeal to a Tribunal constituted in accordance with the regulations or to the First-tier or Upper Tribunal.
244.Paragraph 16 ensures that judges and other members of the First-tier and Upper Tribunal are banned under section 75 of the Courts and Legal Services Act 1990 from practising as lawyers.
245.Paragraph 25 removes the requirement for the chairman of certain tribunals to be selected by the appropriate authority from a panel appointed by the Lord Chancellor.
246.Paragraphs 26 and 27 will not be commenced at the same time. Paragraph 26 allows for an interim period where there will be some rules being made by Ministers etc and some by the Tribunal Procedure Committee. When all rules are being made by the Tribunal Procedure Committee paragraph 27 can be commenced to remove section 8 of the 1992 Act as that provision will no longer be necessary.
247.Paragraph 29 amends section 14(1) of the 1992 Act so the definition is only applicable to decisions. This is consequential on the repeal by the Act of the provisions of the 1992 Act (sections 1, 4 and 8) that contain references to the working of tribunals or their procedural rules.
248.Paragraph 31 allows for judicial offices created under the Act to be become qualifying and relevant offices for the respective purposes of pension and retirement provisions under the Judicial Pensions and Retirement Act 1993 (‘the 1993 Act’). This paragraph therefore has to be read in conjunction with the provisions of the 1993 Act. Part 1 of the 1993 Act provides that a person who retires from a qualifying judicial office is entitled, subject to certain conditions, to a judicial pension under the 1993 Act. A “qualifying judicial office” is defined in section 1(6) of the 1993 Act as being that of a person who holds, on a salaried basis, any one or more of the offices specified in Schedule 1 to the 1993 Act. Any reference in the 1993 Act to a “qualifying judicial office” is a reference to any office so specified if it is held on a salaried basis. So, the entitlement of any judge or other member of the First-tier Tribunal or the Upper Tribunal to a judicial pension under the 1993 Act depends on whether or not they hold their office on a salaried as opposed to fee paid basis. This should be borne in mind when considering the application of the provisions of paragraph 31 in relation to the entitlement of judges and other members of the new Tribunals to a judicial pension.
249.Paragraph 34 makes provision for oaths to be taken by Criminal Injuries Compensation Panel adjudicators (to mirror provisions for the First–tier and Upper tribunal judges). CICAP adjudicators are not included in the general oath taking provisions of Schedule 2.
250.Paragraphs 35 to 48, in addition to amending existing provisions of the Employment Tribunals Act 1996, insert a number of new sections to ensure that certain provisions of the Act relating to the judges and other members of the First-tier and Upper Tribunal are replicated in the legislation applying to employment tribunals and the Employment Appeal Tribunal (paragraph 54 makes similar amendments to the Nationality, Immigration and Asylum Act 1992 for Asylum and Immigration Tribunal office holders). The changes are required as, while the employment tribunals and the Employment Appeal Tribunal are not part of the First-tier and Upper Tribunals, they are intended to benefit from being administratively a part of the Tribunals Service.
251.Paragraph 36 confers the title of Employment Judge on members of a panel of chairmen of employment tribunals.
252.Paragraph 38 requires the Secretary of State to act jointly with the Lord Chancellor when exercising certain powers to amend provisions in that Act.
253.Paragraphs 40 and 44 make the Senior President of Tribunals responsible for the training, welfare and guidance of members of employment tribunals and members of the Employment Appeal Tribunal, in the same way that he is for members of the First-tier Tribunal and Upper Tribunal (under paragraph 8 of Schedule 2 and paragraph 9 of Schedule 3).
254.Paragraph 41 confers power to make practice directions in relation to employment tribunals on the Senior President and requires the consent of the Senior President and the Lord Chancellor for practice directions made by Presidents of Employment Tribunals.
255.Paragraph 42 makes provision for mediation in employment tribunals on a similar basis to section 24 (mediation); the major difference being that ACAS must be consulted before making a practice direction for mediation in employment tribunals.
256.Paragraph 43 amends section 15(1) of the Employment Tribunals Act 1996 (enforcement in England and Wales as an order of a county court) so that an unpaid employment tribunal award does not need to be registered in the county court before enforcement can take place. This mirrors provisions in relation to the First-tier Tribunal and the Upper Tribunal in section 27 (enforcement).
257.Paragraph 47 makes additional provision for practice directions about the procedure of the Employment Appeal Tribunal to be given by the Senior President of Tribunals or the President of the Employment Appeals Tribunal.
258.Paragraph 54, in addition to amending existing provisions of the Nationality, Immigration and Asylum Act 2002, inserts a number of new sections to ensure that certain provisions of that Act relating to the judges and other members of the First-tier and Upper Tribunal are replicated in the legislation applying for the Asylum and Immigration Tribunal and that certain responsibilities of the Lord Chancellor and the Senior President extend to its members. These amendments ensure that certain judicial leadership powers in the Act that apply to the First-tier and Upper Tribunal are replicated for the Asylum and Immigration Tribunal. This reflects the intention of the Act to provide coherent judicial leadership and administrative support to all tribunals that form part of the Tribunal Service even though they may not be within the First-tier and Upper Tribunals.
259.Section 107 of the 2002 Act has been amended to ensure that the Senior President of Tribunals may give practice directions to the Asylum and Immigration Tribunal after having obtained the approval of the Lord Chancellor. Also for any directions given by the President of the Asylum and Immigration Tribunal to be given with the approval of the Senior President of Tribunals and the Lord Chancellor. The requirements for approval in both instances are subject to qualifications (in the same way as are parallel provisions for the First-tier and Upper Tribunals and employment tribunals and Employment Appeal Tribunal).
260.Schedule 4 to the 2002 Act, which provides for the membership of the Asylum and Immigration Tribunal and related matters, is amended to make provision for: the concurrence of the relevant Lord Chief Justice on removal as a member of the Asylum and Immigration Tribunal; in assignment of members of other tribunals by the Senior President with consent of the President of the Asylum and Immigration Tribunal; the Senior President to be responsible for the training, guidance and welfare of members of the Asylum and Immigration Tribunal; and the taking of oaths of persons appointed under Schedule 4 who have not previously taken the required oaths after accepting another office.
261.Paragraph 55 amends section 98 of the Courts Act 2003 (register of judgments and orders etc) so that monetary decisions or awards of the First-tier Tribunal, the Upper Tribunal, an Employment Tribunal, or the Employment Appeal Tribunal may be included on the Register of Judgments and Orders established under the 2003 Act. Inclusion on the Register, which is often consulted by banks, building societies, credit companies etc when considering applications for credit, may make it more difficult for defaulters to obtain credit (and thus provides an incentive to pay the sum due).
262.Paragraphs 62 to 66 amend the Constitutional Reform Act 2005. Section 109(5) is amended to ensure that the Senior President of Tribunals is included as a senior judge for the purpose of the disciplinary powers of the Lord Chief Justice in section 108 of that Act. Schedule 7 is amended so that references to the Tribunals and Inquiries Act 1992 are removed. In Schedule 12, a new sub-paragraph (2A) is inserted into paragraph 2 to allow certain office holders belonging to the new Tribunals to join the list of those who may be members of the Judicial Appointments Commission. Finally, Schedule 14 is amended so that judges and other members who are to be appointed under the Act by the Lord Chancellor (or, in the case of judges of the Upper Tribunal, by Her Majesty on recommendation of the Lord Chancellor) are selected by the Judicial Appointments Commission. Such selection will not apply to the transfer in of members of existing tribunals under section 31(2) or to appointments that fall to be made by a senior judge.
263.Schedule 9 sets out a number of transitional provisions, including provisions relating to the retirement dates and pensions for judges and other members of the First-tier Tribunal and Upper Tribunal. Much of Schedule 9 therefore has to be read in conjunction with the specific provisions of the Judicial Pensions and Retirement Act 1993 (‘the 1993 Act’) and in particular Part 1 of that Act. Part 1 of the 1993 Act provides that a person who holds qualifying judicial office is entitled to a judicial pension under the 1993 Act. A “qualifying judicial office” is defined in section 1(6) of the 1993 Act as being that of a person who holds, on a salaried basis, any one or more of the offices specified in Schedule 1 to the 1993 Act. Any reference in the 1993 Act to a “qualifying judicial office” is a reference to any office so specified if it is held on a salaried basis. So, the entitlement of any judge or other member of the First-tier Tribunal or the Upper Tribunal to a judicial pension under the 1993 Act depends on whether or not they hold their office on a salaried as opposed to fee paid basis. This should be borne in mind when considering the application of the provisions of Schedule 9 in relation to the entitlement of judges and other members of the new Tribunals to a judicial pension. Schedule 9 is divided into 4 Parts.
Part 1 (General and Miscellaneous)
264.Paragraph 1 explains that the specific provisions in Schedule 9 are not to be taken to prejudice:
the power of the Lord Chancellor under section 31(9), in connection with the provisions of section 30 (transfer of functions of certain Tribunals) and the preceding parts of section 31 (transfers under section 30: supplementary powers), to make transitional (and other) provision; or
the power of the Lord Chancellor (or Secretary of State in relation to Chapter 3 of Part 5) to make such transitional etc. provision by order as he considers necessary or expedient to give full effect to any provision of the Act.
265.Paragraph 2 makes provision for the Lord Chancellor to make an order which allows a member of a tribunal listed in any of Parts 1 to 4 of Schedule 6 to the Act to be treated as a person whom the Lord Chief Justice can appoint to the Tribunal Procedure Committee.
266.This will allow the Lord Chief Justice to appoint to that Committee a person belonging to a particular tribunal before that tribunal has been fully transferred into the new system. These provisions will allow the formation of a Committee from existing tribunals in anticipation of their transfer, and before they can be formally part of the Tribunal Procedure Committee so that preparatory work can be undertaken.
267.Part 2 (Judges and other members of First-tier and Upper Tribunals: Retirement dates)
268.Part 2 of Schedule 9 provides for the retirement age of judges and other members who are to transfer into or are appointed to the First-tier or Upper Tribunal and who have a pre-existing right to retire at an age other than that provided by section 26(1) of the 1993 Act.
269.Paragraph 5 makes provision for the retirement date that is to apply to judges and other members of the First -tier and Upper Tribunal who, in relation to an existing office, either have personal retirement dates that are later than 70, or do not have to retire at any specified time. Paragraph 5 provides that such persons are subject to the provisions of section 26(1) of the 1993 Act as if it provided in the former case above for that person to vacate his office on his personal retirement date and in the latter case above for that person to vacate his office on the date provided for at paragraph 7 of the Schedule rather than at the age otherwise provided by that section. Section 26(1) of the 1993 Act provides that a person holding any of the offices for the time being specified in Schedule 5 to that Act (a “relevant office”) shall vacate that office on the day on which he attains the age of 70 or such lower age as may for the time being be specified for the purpose. So, paragraph 5 protects the position of judges or other members who before becoming judges or other members of the First-tier or Upper Tribunal hold offices allowing them to retire later than age 70. Paragraph 5 applies to the situations defined in paragraphs 6 and 7 respectively - where a person has a compulsory retirement age later than 70 or, in the defined circumstances, no retirement age at all. Paragraph 5 is however subject to the provisions of paragraph 8 described below.
270.Paragraph 8 makes special provision for a judge or other member of the First-tier or Upper Tribunal who would be covered by the provisions in paragraph 5 due to having held an office with a retirement date other than that provided in section 26(1) of the 1993 Act but who also by virtue of having held a judicial office on the 30th March 1995 falls under Schedule 7 of the 1993 Act (retirement dates: transitional provisions). Schedule 7 allows such persons to retire at a “potential retirement date” rather than the date otherwise stipulated in section 26(1). Paragraph 8 deals with the interaction of both paragraph 5 of this Schedule and Schedule 7 to the 1993 Act, so that a person otherwise falling within both paragraph 5 and Schedule 7 can only benefit from the provision under paragraph 5 if, by virtue of the office in question, he has a protected retirement date under that paragraph which is later than his potential retirement date under Schedule 7.
271.Paragraph 9 makes provision for a person holding an office in a tribunal listed in Schedule 6 to the Act who has a retirement date for that office that is later than the age of 70. Paragraph 9 provides that the fact that the person has attained the age of 70 will not make him ineligible for appointment or re-appointment to the relevant judicial office as defined in paragraph 3 of Schedule 9 provided he has not yet reached the date on which he is required to vacate the office in the listed tribunal.
Part 3 (judges and other members of First-tier and Upper Tribunals: Pensions where office acquired under section 31(2))
272.Part 3 of Schedule 9 makes transitional provision about the right of transferred-in judges and other members of the First-tier and Upper Tribunal either to remain in their pre-existing pension schemes or to opt-in to Part 1 of the Judicial Pensions and Retirement Act 1993 (‘the 1993 Act’). Part 1 of the 1993 Act deals with entitlement to pension benefits under the 1993 Act in respect of persons holding a qualifying judicial office listed in Schedule 1 to that Act.
273.Paragraph 11 provides that, in the prescribed circumstances, and subject to paragraph 12, a judge can choose that the provisions affording a judicial pension under Part 1 of the 1993 Act apply. The provisions of Part 1 of the 1993 Act which would otherwise cause the person automatically to fall within that Part are disapplied. But, paragraph 11 makes provision for transferred-in judges and other members of the new Tribunals to opt-into the scheme of the 1993 Act and thus not to remain outside of that scheme in their pre-existing pension scheme.
274.Paragraph 12 has to be read alongside the provisions of paragraph 11. Paragraph 12 provides for the Lord Chancellor to make regulations prescribing the circumstances under which an opt-in election under paragraph 11 (for Part 1 of the 1993 Act to apply) may be made.
275.Paragraph 13 allows that in default of an option under paragraph 11, a person’s service in their new office under the Act will be subject to the public service pension scheme they belonged to before transferring to the new office, in the same way as before they had transferred.
Part 4 (amendments to the Judicial Pensions and Retirement Act 1993)
276.Paragraph 15 amends section 1 of the 1993 Act by inserting a new paragraph (e) into subsection (1) so that section 1 now applies Part 1 (arrangements for judicial pensions) to transferred–in judges and other members of the First-tier and Upper Tribunal who are subsequently appointed to a different judicial office.
277.Paragraphs 16, 17 and 18 ensure that transferred-in judges and other members of the First-tier and the Upper Tribunal to whom Part 1 of the 1993 Act becomes applicable are subject to the rights and requirements of the 1993 Act scheme rather than any previous pension scheme they belonged to.
278.Paragraph 16 makes provision for section 9(4) of the 1993 Act (contribution towards costs of surviving spouse’s, surviving civil partner’s and surviving children’s pension) to apply.
279.Paragraph 17 makes provision in section 12(1) of the 1993 Act for transferred-in judges and other members who opt for Part 1 of the 1993 Act to apply to them, or to whom the 1993 Act comes to apply automatically, to have accrued rights to benefit under a judicial pension scheme other than that in the 1993 Act transferred to the scheme under Part 1 of the 1993 Act.
280.Paragraph 18 inserts a new section into the 1993 Act (section 12A) which makes provision for transferred-in judges and other members who opt to have Part 1 of the Act apply to them (or to whom it comes to apply automatically) to have any accrued rights under a civil service pension scheme transferred to the scheme under Part 1 of the Act. When the rights under the civil service pension scheme are transferred it will no longer have effect in relation to the transferred-in judge or other member and no pension benefits will be paid to that person under that scheme. The provisions of section 12A added by this paragraph also enable regulations to be made for calculating and prescribing the manner in which the transferred rights are to be given effect under Part 1 of the 1993 Act. Paragraph 18 also inserts a new section 12B, which provides for the determination of entitlement to, and the rate or amount of benefits under the 1993 Act scheme, where accrued pension rights have been transferred under section 12 or 12A of the 1993 Act. Paragraph 19 ensures that Schedule 2 (transfer of accrued benefits) to the 1993 Act does not apply to transfers under section 12A, in the same way as it does not apply to transfers under section 12 of that Act.
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