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

Contents

Courts Act 2003 ("CA 2003")

Sections 28 and 29: Legal Advice

  1. Paragraph 26 substitutes new sections 28 and 29 for previous sections 27 to 29 of the CA 2003. Current section 27 sets out how a justices’ clerk may be appointed and designated, the qualifying criteria necessary to be appointed as such, and provisions dealing with the appointment to a local justice area. The new sections follow a similar approach to new section 31O MFPA 1984 (above) by setting out provisions relating to the authorisation and independence of those staff who will provide legal advice.
  2. New section 28 of the CA 2003 replaces the current provision for legal advice given to justices of the peace to be provided by justices’ clerks so that the function of giving legal advice is instead exercised by a person authorised by the Lord Chief Justice (or his nominee). Authorised persons giving legal advice must be members of court and tribunal staff and have such qualifications as are prescribed in regulations (subject to the negative resolution procedure) made by the Lord Chancellor with the agreement of the Lord Chief Justice (section 28(3)).
  3. The Lord Chief Justice may nominate one or more judicial office holders or members of court or tribunal staff to carry out his authorisation functions (section 28(5)). Independence is ensured for nominees who are members of court or tribunal staff by providing that when carrying out this authorisation function they are subject only to the direction of the Lord Chief Justice or a judicial officer holder nominated by the Lord Chief Justice (section 28(6)).
  4. New section 29(1) to (4) provides for a person authorised to exercise functions under new section 28(1) to be subject only to the direction of the Lord Chief Justice or his nominee. Subsection (2) specifies that, apart from such directions, authorised persons are not subject to the direction of the Lord Chancellor or any other person. Under subsection (3), the Lord Chief Justice may nominate one or more judicial office holders or members of court or tribunal staff to carry out his direction functions. As with the authorisation function, independence is ensured for those nominees who are members of court or tribunal staff by providing that when carrying out this direction function they are subject only to the direction of the Lord Chief Justice or a judicial officer holder nominated by the Lord Chief Justice (subsection (4)).

New Part 6A CA 2003: Exercise of judicial functions by authorised persons

  1. Paragraph 32 inserts new Part 6A (Exercise of judicial functions by authorised persons). It creates the power for court and tribunal staff to be authorised by the Lord Chief Justice to exercise "relevant judicial functions", which it also defines, and provides for rules of court to make the necessary provision for the exercise of those functions by staff so authorised. It also provides for the independence of such staff and safeguards for them, such as protection from legal proceedings, costs in legal proceedings, and indemnification when exercising judicial functions.
  2. There is equivalent provision in relation to authorisation, independence and safeguards for authorised staff exercising judicial functions in the tribunals in Part 2 of the Schedule, which inserts new sections 29A to 29E of the TCEA 2007.

67A Meaning of "judicial office holder" and "relevant judicial function"

  1. New section 67A defines ‘relevant judicial functions’ as meaning the functions of a court to which the general duty of the Lord Chancellor in section 1 of the CA 2003 applies and a judicial function of a person holding an office that entitles the person to exercise functions of one of the courts to which that duty applies. The courts to which the duty under section 1 applies include the Family Court, Court of Protection, High Court, magistrates’ courts and the Crown Court.
  2. This new section makes clear that ‘relevant judicial functions’ does not include certain functions, which are listed in the section. This means that rules of court will not be able to provide for authorised staff to be able to exercise any of these ‘excluded functions’. These are set out in section 67A as follows:
    1. any function involving authorising a person’s committal to prison;
    2. any function involving authorising a person’s arrest (unless it concerns the issue of a warrant for arrest in order to secure that the person attends court proceedings and the warrant is uncontested);
    3. making an order for repossession of a building which is occupied as a dwelling (unless the order is uncontested);
    4. granting an injunction under section 37 of the Senior Courts Act 1981; and
    5. making an order under section 7 of the Civil Procedure Act 1997 (order for preserving evidence etc).
  3. Whether authorised staff may or may not exercise other functions, beyond those prohibited in this list, will be for those making rules to decide when they make rules of court under new section 67B(1), as set out below.

67B Authorisation to exercise relevant judicial functions

  1. New section 67B makes provision to enable authorised persons to exercise "relevant judicial functions", as defined under the new section 67A. Subsection (1) provides that powers to make rules of court include the power to provide for relevant judicial functions to be exercised by court or tribunal staff who meet requirements as to qualification or experience, and the power to specify those requirements for qualifications or experience.
  2. New section 67B(2) requires a person to be authorised by the Lord Chief Justice before they can exercise relevant judicial functions as provided for in rules of court.
  3. New section 67B(5) provides for the Lord Chief Justice to be able to nominate one or more judicial office holders or members of court or tribunal staff to exercise his or her functions of authorisation under this section.
  4. New section 67B(6) ensures independence for those nominees who are members of court or tribunal staff by providing that when carrying out this authorisation function they are subject only to the direction of the Lord Chief Justice or a judicial officer holder nominated by the Lord Chief Justice.

67C Exercise of relevant judicial functions: reconsideration of decisions

  1. New section 67C requires those who make rules of court, when making rules to allow certain judicial functions to be carried out by authorised staff in their jurisdiction, to consider whether the rules should include a specific right of reconsideration by a judicial office holder of decisions made by an authorised officer in the exercise of each of those judicial functions and:
    1. where they consider that there should be such a right, include it in the rules they make; or
    2. where they do not consider that there should be a right of reconsideration, inform the Lord Chancellor of their decision and explain the basis for that position.

67D Directions and independence: authorised persons

  1. New section 67D provides that a person authorised under new section 67B is not subject to the direction of any person other than the Lord Chief Justice or his nominee (subsection (2)). The Lord Chief Justice may nominate one or more judicial officer holders or members of court or tribunal staff to carry out this direction function (subsection (3)). Independence is ensured for nominees who are members of court or tribunal staff by providing that when carrying out this direction function they are subject only to the direction of the Lord Chief Justice or a judicial officer holder nominated by the Lord Chief Justice (subsection (4)).

67E Protection of authorised persons

  1. New sections 67E to 67G of the CA 2003 give the same protections from legal proceedings, costs in legal proceedings, and indemnities that currently apply to justices’ clerks and assistant clerks (under current sections 31 to 35 of the CA 2003) to persons authorised under new section 67B. These provisions will now apply to all authorised persons exercising relevant judicial functions as provided for by rules of court. They will also apply to those exercising the functions of a tribunal – this is provided for under Part 2 of the Schedule.
  2. New section 67E(1)(a) and (b) provide that no legal action can be brought against an authorised person in respect of anything done or not done in execution of their duties as an authorised person or relating to their jurisdiction.
  3. New section 67E(2)(a) and (b) provide that legal action can be brought against the authorised person in respect of anything done or not done in purported execution of their duties as an authorised person or relating to a matter not within their jurisdiction if is it proven that they acted in bad faith.
  4. New section 67E(3)(a) and (b) provide that if legal action is brought against an authorised person under circumstances where the individual is protected under section 67E(1) or (2) then the court may strike out the proceedings and may order costs against the person bringing the action.

67F Costs in legal proceedings: authorised persons

  1. New section 67F(4)(a) and (b) provide that the Lord Chancellor may, after consulting with the Lord Chief Justice, make regulations to decide when a court must and must not order the Lord Chancellor to pay costs under section 67F(3) and to decide how the amount is to be determined. Paragraph 36 of the Schedule amends section 108(3)(b) of the CA 2003 so to make those regulations subject to the affirmative procedure.
  2. New section 67F(5) provides that the Lord Chief Justice may nominate a judicial office holder to exercise his functions under this section.

67G Indemnification of authorised persons

  1. New section 67G(1) and (2) set out which costs the authorised person is protected against including the costs of disputing a claim, damages awarded against and ordered to be paid by the person, costs of settling a claim and any costs reasonably incurred in connection with proceedings.
  2. New section 67G(3) to (7) provide that the Lord Chancellor must indemnify the authorised person if the person acted reasonably and in good faith. The Lord Chancellor shall decide whether, and to what extent the person shall be indemnified and can determine, before certain costs are incurred or a settlement made, whether those certain costs will be paid (subject to such limitations as the Lord Chancellor thinks proper, and providing it does not affect the outcome of the proceedings).

Further amendments to the Courts Act 2003

  1. Paragraph 33(2) amends section 70 of the CA 2003 (Criminal Procedure Rule Committee) so that a person authorised to provide legal advice under new section 28(1) of the CA 2003 is required to be a member of the committee (replacing the reference to a justices’ clerk).
  2. Paragraph 33(3) inserts new section 70(4A) into the CA 2003 to provide that an authorised person appointed to the Criminal Procedure Rule Committee is not subject to the direction of the Lord Chancellor or any other person when exercising a function as a member of the Committee.
  3. Paragraph 35 makes identical amendments to section 77 of the CA 2003 in respect of a person authorised to provide legal advice under section 31O(1) of the MFPA 1984 in relation to membership of the Family Procedure Rule Committee.
  4. Part 2 of the Schedule deals with the exercise by court and tribunal staff of functions of the FtT and UT. It provides for court and tribunal staff to be authorised by the Senior President of Tribunals to exercise functions of the tribunal and makes similar provision for the independence, protection and liabilities of such staff as are made in relation to courts in new sections 67D to 67G of the CA 2003.

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