Office of Public Sector Information
208.The existing Council on Tribunals will be replaced by an Administrative Justice and Tribunals Council (AJTC), which is established by section 44 and Schedule 7. The AJTC, like the Council on Tribunals, will be a non-departmental public body, but will have a wider remit.
209.When the AJTC comes into existence, the Council on Tribunals (and its Scottish Committee) will be abolished. This will be effected by section 45. Section 45 enables the Lord Chancellor to make an order transferring any property, rights or liabilities the Council on Tribunals may have at the time when it is abolished to the new AJTC. The order is to be subject to negative resolution procedure.
210.Schedule 7 makes provision for the AJTC. It is divided into 4 parts.
211.Part 1 (paragraphs 1 to 11) deals with the membership of the AJTC and for the Committees of the AJTC.
212.Paragraph 1 provides that the AJTC is to consist of a minimum of 10 and a maximum of 15 members and the Parliamentary Commissioner for Administration. Those members, other than the Parliamentary Commissioner for Administration (who is appointed on an ex-officio basis), are to be appointed by the Scottish Ministers, the Welsh Ministers and the Lord Chancellor, each with the concurrence of the others.
213.Paragraph 2 makes provision for the nomination of the Chairman of the AJTC. The nomination is of a member of the AJTC and is made by the Lord Chancellor after consulting the Scottish and Welsh Ministers. Paragraph 2 also provides for the terms of office of the Chairman.
214.Paragraph 3 makes provision for the terms of office for members appointed under paragraph 1. Such members are to hold and leave their office in accordance with the terms on which they have been appointed. The Lord Chancellor may remove an appointed member on the grounds of inability or misbehaviour but this power can only be exercised with the concurrence of the Scottish or Welsh Ministers where the power is being exercised in relation to a person appointed by one of them. Members may resign by writing to the Lord Chancellor or in the case of persons appointed by the Scottish or Welsh Ministers, by writing to those Ministers.
215.Paragraphs 4 and 7 establish the Scottish and Welsh Committees of the AJTC. Paragraphs 4(2) and 7(2) provide that each Committee is to consist of the Parliamentary Commissioner for Administration, the Public Services Ombudsman for each jurisdiction, the members of the AJTC appointed under paragraph 1(2) by the Scottish or Welsh Ministers as the case may be and a specified number of other persons who are not members of the AJTC appointed by the Scottish or Welsh Ministers under paragraphs 4 and 7 as appropriate.
216.Paragraphs 6 and 9 provide for the term of office for those members of the Scottish or Welsh Committees who are not members of the AJTC and have been appointed by the Scottish or Welsh Ministers to their respective Committees as described above. Such members are to hold and leave their office in accordance with the terms on which they were appointed and can be removed by the Scottish or Welsh Ministers as appropriate on the ground of inability or misbehaviour. Resignation can be effected by writing to the Scottish or Welsh Ministers as appropriate.
217.Paragraphs 5 and 8 provide for the nomination of the Chairman of the Scottish and Welsh Committees. The relevant Ministers are responsible for nominating a member of the AJTC who is appointed by them to become the Chairman. The terms of office of those Chairmen are provided in paragraphs 5 and 8.
218.Paragraph 10 makes the Lord Chancellor responsible for the remuneration of the members of the AJTC and the Scottish and Welsh Committees.
219.Part 2 of Schedule 7 explains the functions of the AJTC. In summary, the AJTC has functions in relation to the administrative justice system, tribunals and statutory inquiries.
220.Paragraph 13 makes it clear that the AJTC is responsible for keeping the administrative justice system under review. This function extends to the overall system by which decisions of an administrative or executive nature are made in respect of a particular person. The AJTC can advise the Lord Chancellor, the Scottish and Welsh Ministers and the Senior President on the development of the administrative justice system and make such reports as it thinks are necessary in relation to its areas of responsibility under paragraph 13(1).
221.Paragraph 14 explains the AJTC’s general functions with respect to tribunals. The AJTC’s responsibility is in relation to “listed tribunals” as defined in Part 4 of Schedule 7. Listed tribunals include the First-tier Tribunal, the Upper Tribunal and also any other tribunal that an authority who has responsibility for a tribunal provides is to be a listed tribunal for the purpose of Schedule 7. So the AJTC’s responsibility for tribunals may extend to tribunals other than the First-tier and Upper Tribunals. By virtue of paragraph 14 the AJTC is to keep listed tribunals under review and report on those tribunals and also on any matter that the AJTC thinks is of special importance. The AJTC is also to consider and report on any matter referred to it jointly by the Lord Chancellor, Scottish Ministers and Welsh Ministers under paragraph 16. The AJTC may also scrutinise and comment on legislation that is extant or proposed, including procedural rules, relating to tribunals.
222.Paragraph 15 documents the AJTC’s duties in respect of statutory inquiries. The AJTC’s duties involve keeping statutory inquiries under review, reporting on them and reporting on other matters it determines to be of particular importance. As with tribunals it must also consider and report on any matter referred to it by the Lord Chancellor, the Welsh Ministers and the Scottish Ministers jointly under paragraph 16.
223.Paragraph 17 makes provision for the procedure to be followed when the AJTC makes a report in relation to its functions in respect of tribunals under paragraph 14 and statutory inquiries under paragraph 15.
224.Paragraphs 18 and 19 ensure that the Scottish and Welsh Committees are consulted on any matter that relates solely to their jurisdiction before the Council is authorised to report on it. These paragraphs also provide that the Scottish and Welsh Committees can make reports to the AJTC on their own motion in relation to matters specified in paragraphs 18 and 19. If the AJTC does not make a report on a matter dealt with in a report made to it by the Scottish or Welsh Committee or in making a report the AJTC does not adopt the Committee’s reports without modification, the Committee can submit its report to the Scottish or Welsh Ministers as the case may be. The Scottish and Welsh Ministers must lay reports submitted to them in these circumstances before the Scottish Parliament or the National Assembly for Wales as appropriate.
225.Paragraph 21 sets out the AJTC’s duty to make an annual report on its proceedings and the corresponding duty on the Scottish Committee and Welsh Committee. The AJTC’s report must be laid before Parliament and also before the Scottish Parliament and National Assembly for Wales. The reports of the Scottish and Welsh Committees under this paragraph must be laid before the Scottish Parliament and National Assembly for Wales respectively.
226.Paragraph 22 makes provision for members of the AJTC, the Scottish Committee and the Welsh Committee to attend proceedings of a listed tribunal (as defined in Part 4 of Schedule 7) or statutory inquiry as observers even when those proceedings are held in private or do not take the form of a hearing. This right is subject to any statutory provision that expressly excludes these members from proceedings.
227.Paragraph 23 provides for the application of certain provisions in Schedule 7 to Northern Ireland.
228.Part 3 of Schedule 7 provides for the AJTC to be consulted on procedural rules for a listed tribunal (as defined in Part 4 of Schedule 7).
229.Paragraph 24(2) excludes rules made or to be made by the Tribunal Procedural Committee in relation to a listed tribunal from the general duty in paragraph 24(1). The duty in paragraph 24(1) is for a Minister of the Crown, a Scottish Minister or a Welsh Minister to consult the AJTC before it takes any action outlined in that paragraph in relation to procedural rules for a listed tribunal (as defined in Part 4 of Schedule 7). This is not necessary in the excluded cases since a member of the AJTC will sit on the Tribunal Procedural Committee.
230.Part 4 contains definitions of terms that apply to Schedule 7, including the definition of “listed tribunal” which means the First-tier Tribunal, the Upper Tribunal or any tribunal that the Lord Chancellor, Scottish Ministers or Welsh ministers requests to be listed for the purpose of Schedule 7 in accordance with paragraph 25(2) of Schedule 7.
231.The power in paragraph 25(2) will enable the oversight responsibilities of the Council to cover tribunals inside and outside the new tribunal system.
232.Section 46 enables the Lord Chief Justice to nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise any of the listed functions given to him under the Act. These are:
Concurrence with the removal of a judge or other member of the First-tier Tribunal from office (Schedule 2 paragraph 3(4)).
Concurrence with a request for a court judge to sit in the First-tier Tribunal (Schedule 2 paragraph 6(3)(a)).
Concurrence in the removal of a judge or other member of the Upper Tribunal from office (Schedule 3 paragraph 3(4)).
Concurrence with a request for a court judge to sit in the Upper Tribunal (Schedule 3 paragraph 6(3)(a)).
Power to nominate an ordinary judge of the Court of Appeal or a puisne judge of the High Court to preside over a chamber (Schedule 4 paragraph 2(2)).
Power to nominate an ordinary judge of the Court of Appeal or a puisne judge of the High Court to act as a deputy chamber president (Schedule 4 paragraph 5(5)).
Consultation on the Lord Chancellor’s appointees to the Tribunal Procedure Committee (Schedule 5, paragraph 21(2)).
Power to appoint members to the Tribunal Procedure Committee (Schedule 5 paragraphs 22 and 24).
Concurrence in an order changing the composition of the Tribunal Procedure Committee (Schedule 5 paragraph 25).
233.This section also makes similar provision for the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland.
234.Section 47 establishes a duty of co-operation between the offices of the Senior President of Tribunals, the Lord Chief Justices and the Lord President in relation to judicial guidance, training and welfare. The Senior President has responsibility for the maintenance of appropriate arrangements for the welfare, training and guidance of tribunal judiciary and members of the First-tier and Upper Tribunals (paragraph 8 of Schedule 2 and paragraph 9 of Schedule 3) and for judiciary and members of the employment tribunals, the EAT and the AIT (paragraphs 40, 44 and 54 of Schedule 8). The Lord Chief Justices of England and Wales and Northern Ireland have the same responsibility for the court judiciary.
235.In carrying out these responsibilities it is desirable for there to be a duty of co-operation between the Senior President and the Lord Chief Justices (and including the Lord President even though he has no statutory responsibility for such provision at the time of Royal Assent to this Act). In practical terms, this means the use by tribunals of institutions which report to the Lord Chief Justice of England and Wales (e.g. the Judicial Studies Board for training, the Judicial Communications Office for advice on media and handling, and arrangements for counselling and supporting judges under the contract that was set up by MoJ and are now the responsibility of the Judicial Office).
236.Section 48 gives effect to Schedule 8 (consequential and other amendments) and to Schedule 9 (transitional provisions).
Schedule 8
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.
Schedule 9
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.
281.Section 49 sets out the procedure to be followed in respect of the various types of order which can be made under Part 1. These powers are mostly exercisable by the Lord Chancellor. The Scottish Ministers and the Welsh Ministers can make orders adding tribunals administered by them to the listed tribunals which the AJTC reviews and reports on (Schedule 7, paragraph 25(2)). Under section 7(9) the Senior President can make an order relating to the jurisdictions assigned to chambers, and section 49(2) provides that this order is to be treated as if it had been made by a Minister of the Crown.
Under subsection (6) orders under the following provisions are subject to affirmative resolution:
Section 11(8): power to determine who is to be treated as a party to a case for the purposes of a right of appeal to the Upper Tribunal;
Section 13(6): restrictions on right of appeal to the Court of Appeal;
Section 13(14): power to determine who is to be treated as a party to a case for the purposes of a right of appeal to the Court of Appeal;
Section 30: power to transfer functions of a tribunal into the new tribunal structure;
Section 31(1): power to abolish tribunals when their functions have been transferred;
Section 31(2), (7) and (9) and paragraph 30(1) of Schedule 5: but only if the order amends primary legislation;
Section 32: power to provide for appeals to the Upper Tribunal from tribunals in Wales;
Section 33: power to provide for appeals to the Upper Tribunal from tribunals in Scotland;
Section 34: power to provide for appeals to the Upper Tribunal from tribunals in Northern Ireland;
Section 35: transfer of Ministerial responsibilities to the Lord Chancellor;
Section 36: transfer of powers to make procedural rules;
Section 37: power to amend the lists of tribunals in Schedule 6;
Section 42(1)(a) to (d): fee orders, if no fee has previously been payable (except in the case of fees for mediation by tribunal staff);
Section 42(3): power to add a tribunal to the list of tribunals to which fees may be prescribed;
Paragraph 15 of Schedule 4: power to determine composition of tribunals.
282.All other orders under Part 1 of the Act are to be made by the negative resolution procedure.
283.Part 2 of the Act amends the minimum eligibility requirements for judicial appointments in England and Wales (and for some posts where the office-holders may sit in Scotland or Northern Ireland) with the aim of increasing the diversity of the judiciary. The existing eligibility requirements for judicial office are replaced with the requirement that a person must satisfy the “judicial-appointment eligibility condition”. The sections mean that rather than eligibility for office being based on possession of rights of audience for a specified period, a person who wishes to apply for an office under any of the provisions amended by Schedule 10 to the Act will have to show that he has possessed a relevant legal qualification for the requisite period and that while holding that qualification he has been gaining legal experience. In respect of many of the offices, the number of years for which a person must have held his qualification before he becomes eligible for judicial office is also reduced.
284.Part 2 also enables the Lord Chancellor, following consultation with the Lord Chief Justice and the JAC, to extend by order the list of relevant qualifications for the purpose of the judicial-appointment eligibility condition. This will enable those with relevant qualifications and legal experience to apply for certain offices, which will also be specified in the order.
285.Part 2 of the Act also makes provision for the appointment to fee-paid judicial office of those who have previously held corresponding salaried appointments (section 53) and makes provision (sections 56 and 57) about appointments (in the civil courts in England and Wales) of district judges, deputy district judges and deputy, and temporary, masters and registrars. Section 58 makes provision about appointments of temporary assistants to the Judge Advocate General, section 59 makes provision about appointments to certain Appeals Commissions, section 60 makes provision about appointment as chairman of the Law Commission and section 61 relates to the Northern Ireland Judicial Appointments Commission.
286.Eligibility for appointment to professional judicial office in England and Wales is currently dependent upon applicants possessing particular qualifications (within the meaning of the Courts and Legal Services Act 1990), which are based on possession of “rights of audience” for a prescribed number of years. The precise category of rights of audience required, and the length of time for which they must have been held, vary according to the judicial office concerned. However, the practical effect of the current arrangements is to restrict eligibility for almost all judicial posts to persons who have been qualified as barristers or solicitors in England and Wales for at least seven years (or, for some posts, 10 years). (Barristers, advocates and solicitors who have been qualified in Scotland or Northern Ireland for the required number of years are also eligible for some posts, notably in those tribunals which exercise UK-wide jurisdiction).
287.A consultation paper, Increasing Diversity in the Judiciary, published by the Department for Constitutional Affairs (now the Ministry of Justice) in October 2004, invited views as to whether these statutory eligibility requirements constituted an obstacle to greater diversity in the judiciary. Responses to consultation indicated that the eligibility requirements were considered an obstacle to greater diversity in several respects. First, because they depended on possession of rights of audience before the courts, they helped to foster the (inaccurate) perception that advocacy experience was a requirement for judicial appointment, deterring eligible individuals from applying. Second, they excluded entirely members of certain legal professional groups (for example, legal executives) who might possess the skills, knowledge and experience needed to perform well in judicial office, and who also tended to be drawn from a wider range of backgrounds than barristers and solicitors. It was also argued that the existing requirements were unsatisfactory in that someone who qualified as a barrister or a solicitor but who then did no more legal work of any kind still became eligible for judicial appointment on the seventh anniversary of their qualification. Finally, respondents considered that the periods of time for which a qualification must have been held were too long, disadvantaging those who had joined the profession later in life but whose career paths might nevertheless render them fitted for consideration.
288.The provisions in this Part of the Act seek to address these concerns by removing the existing link between eligibility for judicial appointment and possession of advocacy rights; by providing for the extension of eligibility for some appropriate appointments to holders of legal qualifications other than barristers and solicitors; by introducing a requirement that a person with a relevant qualification must also have gained legal experience to be eligible for office; and by reducing the number of years for which it is necessary to have held the relevant qualification and gained legal experience. It is to be noted that these changes attach to the eligibility threshold for appointment. The aim is to increase the pool of those eligible for office, but the current system of merit-based appointment will remain. These changes apply to offices under provisions amended by Schedule 10 to the Act, which includes a wide range of judicial offices in both mainstream courts and tribunals.
289.This section sets out the new basis of eligibility for judicial appointment. In order to satisfy the “judicial-appointment eligibility condition”, an individual has to hold a “relevant qualification” (i.e. as a barrister, a solicitor or a holder of another specified legal qualification) for a specified minimum number of years (generally five or seven, in place of the seven or ten specified in existing legislation), and has to have gained experience in law for the specified minimum number of years, while holding a relevant qualification. Activities which count as gaining experience in law are set out in section 52.
290.The section removes the anomaly identified under current legislation whereby an individual who qualifies as a barrister or a solicitor becomes eligible for judicial appointment simply through the passage of time, without necessarily ever having engaged in legal practice following qualification.
291.The minimum eligibility requirements for judicial offices are contained in a large number of statutory provisions. This Schedule amends those provisions in two main respects. First, the existing requirement of a qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 is replaced by a requirement to satisfy the judicial-appointment eligibility condition on an N-year basis. Second, the period of time for which a qualification should have been held, and experience in law acquired (N years), is reduced. For those judicial appointments which currently require possession of a ten-year qualification under the 1990 Act, the period is reduced to seven years and for those appointments which currently require a seven-year qualification, the period is reduced to five years. Where those with Scottish or Northern Irish qualifications are eligible for appointment, corresponding reductions are made.
Tribunals, Courts and Enforcement Act 2007