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

Legal background

13. The legislation relating to the judiciary and authorised staff is set out in a number of statutes and secondary legislation. The following paragraphs explain the current legislative background.

Judicial measures

14. A number of provisions relate to judicial deployment:
1. Deputy High Court Judges are appointed under section 9(4) of the Senior Courts Act 1981 following the recommendation of the Judicial Appointments Commission. Section 94AA of the Constitutional Reform Act 2005 sets out the circumstances under which, without such a recommendation, the Lord Chief Justice may appoint a person to sit as a Deputy High Court judge on a temporary basis where there is an immediate business need for a person to sit in the Crown Court or High Court.
2. Sections 4 to 6A of the Tribunal, Courts and Enforcement Act 2007 (the "TCEA 2007") provide who is to be a judge or other member of the FtT and UT. The list of judicial office holders who are also judges of both tribunals is contained in section 6 of that Act.
3. Section 22 of the Employment Tribunals Act 1996 makes provision for membership of the Employment Appeal Tribunal. Subsections (1) and (2A) set out a list of those judicial office holders who can be nominated by the Lord Chief Justice, after consulting the Lord Chancellor, to be a judge of that tribunal.
4. Section 93 of the Arbitration Act 1996 provides for judges of the Commercial Court and judges conducting official referee’s business (now dealt with by the Technology and Construction Court) to accept appointment, with the permission of the Lord Chief Justice of England and Wales, as judge-arbitrators.
5. Section 64 of the CA 2003 contains a power for the Lord Chancellor, with the concurrence of the Lord Chief Justice, to alter the name of specified judicial offices. That list included the office of the Registrar in Bankruptcy of the High Court which was recently changed by the Alteration of Judicial Titles (Registrar in Bankruptcy of the High Court) Order 2018 to "Judge of the Insolvency and Companies Court". The list of offices which can be amended does not include the offices of senior masters and registrars in the Senior Courts set out in section 89(3C) of the Senior Courts Act 1981, including the Senior Registrar in Bankruptcy of the High Court.

Authorised court and tribunal staff: legal advice and judicial functions

15. Section 2(1) of the CA 2003 and section 40(1) of the TCEA 2007 govern the appointment of HMCTS staff (for courts and tribunals respectively).
16. Currently, HMCTS staff can be authorised to carry out judicial functions in different ways in different jurisdictions, largely through rules of court or tribunal procedure rules made under primary legislation.
17. Sections 27-29 and 31-35 of the CA 2003 concern the appointment and status of, and protections in relation to, justices’ clerks and assistant clerks, as well as their functions in the magistrates’ court (section 144 of the Magistrates Courts Act 1980 makes provision in relation to non-criminal matters). Justices’ clerks’ functions in the Family Court are dealt with in section 31O of the Matrimonial and Family Proceedings Act 1984. Paragraph 2 of Schedule 1 to the Civil Procedure Act 1997 gives a power for Civil Procedure Rules to make provision for staff to exercise the jurisdiction of civil courts (county court, High Court and Court of Appeal). Section 51(2) of the Mental Capacity Act 2005 gives a power for Court of Protection Rules to make provision for staff to exercise the jurisdiction of the Court of Protection. Paragraph 3 of Schedule 5 to the TCEA 2007 gives a power for Tribunal Procedure Rules to delegate functions to tribunal staff.