Courts and Tribunals (Judiciary and Functions of Staff) Act 2018

Tribunals, Courts and Enforcement Act 2007 ("TCEA 2007")

68. Paragraph 40 inserts wording into subsection 8(2) of the TCEA 2007 to provide that the Senior President of Tribunals may not, under section 8(1), delegate his functions under new sections 29B and 29D of new Chapter 2A, or Paragraph 3 of Schedule 5, to the TCEA 2007. This means that the Senior President of Tribunal’s general power of delegation cannot be used.
69. Paragraph 41 inserts new sections 29A to 29E into the TCEA 2007 with the effect of giving equivalent protection to officers and staff authorised by the Senior President of Tribunals to exercise the functions of a tribunal as the protection given to authorised persons exercising the functions of a court or judge of the court under new section 67B of the CA 2003.

Section 29A Meaning of "authorised person" and "judicial office holder"

70. New section 29A defines an authorised person as a person authorised by the Senior President of Tribunals under Paragraph 3 of Schedule 5 to exercise the functions of the FtT and UT and a judicial office holder as having the meaning given by section 109(4) of the Constitutional Reform Act 2005.

Section 29B: Directions and independence: authorised persons

71. New section 29B(1) and (2) provides that the Senior President of Tribunals, or his delegate, may give directions to an authorised person but that apart from these directions an authorised person is not subject to the directions of the Lord Chancellor or any other person when exercising the functions of a tribunal.
72. New section 29B(3) and (4) provides that the Senior President of Tribunals may delegate this direction function to one or more judicial officer holders or members of court or tribunal staff. Independence is ensured for delegates who are members of court or tribunal staff by providing that when carrying out these functions they are subject only to the direction of the Senior President of Tribunals or a judicial office holder nominated by the Senior President of Tribunals when exercising these functions.

Section 29C Protection of authorised persons

73. New section 29C(1) to (4) sets out the situations in which actions can or cannot be brought against authorised persons and how the court should deal with an action brought inappropriately.

Section 29D: Costs or expenses in legal proceedings: authorised persons

74. New section 29D deals with cases in which costs in relation to proceedings against an authorised person can and cannot be made and against who those costs can be made. It inserts a new power for the Lord Chancellor to make regulations (after consulting the Senior President of Tribunals or his delegate (who must be a judicial office holder)) specifying when a court may order the Lord Chancellor to pay costs in respect of proceedings against an authorised person, and how the amount should be determined. As a consequence, paragraph 42 amends section 49 TCEA 2007 to provide that the affirmative resolution procedure applies.

Section 29E: Indemnification of authorised persons

75. New section 29E sets out which costs the authorised person is protected against and describe the conditions under which the Lord Chancellor must indemnify authorised persons.

Further amendments to the TCEA 2007

76. Paragraph 44(2) amends paragraph 3 of Schedule 5 (Tribunal Procedure Rules) so that it adds persons appointed under section 2(1) of the CA 2003 in addition to those appointed under section 40(1) of the TCEA 2007, as those persons who can be authorised to exercise the functions of the tribunal.
77. Paragraph 44(3) further amends paragraph 3 of Schedule 5 (Tribunal Procedure Rules) so that it now provides for a person to exercise functions by virtue of procedure rules only if authorised by the Senior President of Tribunals or his delegate. The Senior President of Tribunals may delegate this authorisation function to one or more judicial office holders or members of court or tribunal staff. Independence is ensured for delegates who are members of court or tribunal staff by providing that when carrying out this function they are subject only to the direction of the Senior President of Tribunals or a judicial office holder nominated by the Senior President of Tribunals.
78. Paragraph 44(8) makes clear that any reference to a ‘function’ that an authorised member of staff may carry out does not include:
    1. any function involving authorising a person’s committal to prison;
    2. any function involving authorising a person’s arrest;
    3. any function of granting an injunction.
79. This means that authorised staff will not be able to exercise any of these ‘excluded functions’ in the tribunals. Whether authorised staff may or may not exercise other functions, beyond those prohibited in this list, will be determined by rules made by the Tribunal Procedure Committee. The rules currently provide for staff to exercise judicial functions only with the approval of the Senior President of Tribunals.
80. Paragraph 45 makes similar provision for a right of judicial reconsideration to that made for rules of court under new section 67C of the CA 2003. It requires the Tribunal Procedure Committee, when making procedure rules to allow certain functions to be carried out by authorised staff, to consider whether the rules should include a right to judicial reconsideration of the decisions made by an authorised officer in the exercise of those functions.
81. New section 28A(4) of Schedule 5 to the TCEA 2007 additionally requires that, where the Tribunal Procedure Committee makes such rules but does not consider that the rules should include a right of reconsideration, it must inform the Lord Chancellor of its decision together with its reasons.