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

Policy background

3. Most of the measures contained in this Act were first introduced in the Prisons and Courts Bill1 on 23 February 2017, which fell with the dissolution of Parliament. Additional measures on flexible judicial deployment and related judicial matters were included in the Bill on introduction.
4. A joint statement issued in September 2016 by the Lord Chancellor, Lord Chief Justice of England and Wales, and Senior President of Tribunals outlined the context of reforms to courts and tribunals.2 This statement said: "the vision is to modernise and upgrade our justice system so that it works even better for everyone, from judges and legal professionals, to witnesses, litigants and the vulnerable victims of crime"3.
5. The Act contains measures that give effect to policies outlined in a Government consultation regarding courts and tribunals reform.4

Judicial measures

6. The judicial measures in the Act enable the flexible use of the judiciary to respond to the changing demands of a reformed courts and tribunals system. These will help the senior judiciary to ensure the right judges are deployed to the right cases, taking account of changes in caseloads of different jurisdictions, which will also have benefits for all users of the courts and tribunals.
7. They cover five particular areas: enabling temporarily appointed Deputy High Court Judges to sit in any court or tribunal to which a Deputy High Court Judge could usually be deployed; removing the restriction on a judge being the President of more than one Chamber of the First-tier Tribunal ("FtT") or Upper Tribunal ("UT"); enabling Recorders to sit as judges in the UT and senior employment judges to sit as judges in the FtT and UT; extending the range of High Court judges who can sit as judge-arbitrators; and allowing the President of the Employment Tribunals in England and Wales and Scotland to sit in the Employment Appeal Tribunal. At a minimum, judges will have met the statutory eligibility criteria for their primary appointment and any additional office to which they may be deployed.
8. In addition, the judicial measures also contain provision to change judicial titles, to allow titles to reflect changes in the organisation of courts and tribunals including name changes. The title of "Registrar in Bankruptcy of the High Court" was recently changed to "Insolvency and Companies Court Judge" to reflect the change in name of the court in which they sit. The name of the senior judge of that court could not be changed by secondary legislation and the Act therefore effects this change. It also ensures that the title of that office, and other similar offices, can be changed by secondary legislation in future.

Authorised court and tribunal staff: legal advice and judicial functions

9. HM Courts and Tribunals Service (HMCTS) staff can already be authorised to carry out certain functions of a court, tribunal or judge. Currently staff carry out these duties in most jurisdictions, with the Crown Court a notable exception. The functions which staff can carry out are prescribed in a variety of ways, usually either by the Lord Chancellor (as in magistrates’ courts and the Family Court) or by procedure rules (as in the Civil Procedure Rules or Tribunal Procedure Rules) in the relevant jurisdiction. In the FtT and UT, the procedure rules provide that functions can be exercised only if the person is approved by the Senior President of Tribunals. In practice, this approval is given in Practice Statements issued by the Senior President of Tribunals. In the civil jurisdiction, functions can be assigned to court staff through Civil Procedure Rules, made under the Civil Procedure Act 1997. In magistrates’ courts and the Family Court, the Lord Chancellor, with the concurrence of the Lord Chief Justice (see section 28 of the CA 2003), identifies which powers of a single justice can be exercised by a justices’ clerk or assistant clerk.
10. The Act makes a general provision so that all rules of court governed by the CA 2003 will have the power to provide for the exercise of "relevant judicial functions"5, the functions of the court, or of any judge of the court. A similar power already exists in tribunals (specifically relating to functions of the FtT and UT). The Act excludes some core judicial functions from this general power, meaning that rules of court will not be able to provide for authorised staff to be able to exercise any of those ‘excluded functions’.
11. The Act introduces safeguards for these authorised staff across the jurisdictions (all courts, and the tribunals) to make sure that, amongst other things, they have the necessary independence to undertake judicial functions under the supervision of the judiciary. The Lord Chief Justice and the Senior President of Tribunals will be ultimately responsible for the authorisation and direction of these members of staff.
12. Justices’ clerks are the most senior lawyers employed by HMCTS, however their role is limited (by Part 2 of the CA 2003) to the work of magistrates. They oversee the provision of legal advice to magistrates and staff exercising the functions of a single justice or the Family Court. In order to broaden the role of these lawyers to provide leadership across all jurisdictions, the Government is removing this role, but not function, from statute.