OpenLegislation

The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006

S.I. 2006/1016 · Made 2 April 2006 · Extends to United Kingdom

Up to date with all changes known to legislation.gov.uk, revised to 22 April 2014.

LORD CHANCELLOR

LORD CHIEF JUSTICE

TRANSFER OF FUNCTIONS

Made 2nd April 2006

Coming into force in accordance with article 1

The Lord Chancellor makes the following Order in exercise of the powers conferred upon him by section 19 and 143 of the Constitutional Reform Act 2005f1.

In accordance with section 144(4) and (5)(b), (c) and (d) of that Act, a draft of this instrument was laid before and approved by a resolution of each House of Parliament.

Annotations to the whole text

Footnotes

f1

2005 c. 4.

Contents

  1. 1Citation and commencement
  2. 2Transfer and modification of functions
  3. 3Article 3
  4. 4Supplementary provision
  5. Signature
  6. Schedule 1: Transfer, modification and abolition of functions of the Lord Chancellor — primary legislation
  7. 1Appellate Jurisdiction Act 1876
  8. 2Paragraph 2
  9. 3Paragraph 3
  10. 4Appellate Jurisdiction Act 1887
  11. 5Matrimonial and Family Proceedings Act 1984
  12. 6Paragraph 6 Repealed
  13. 7Paragraph 7 Repealed
  14. 8Nationality, Immigration and Asylum Act 2002 Repealed
  15. 9Paragraph 9 Repealed
  16. 10Paragraph 10 Repealed
  17. 11Paragraph 11 Repealed
  18. 12Gender Recognition Act 2004
  19. 13Paragraph 13
  20. 14Paragraph 14
  21. 15Paragraph 15
  22. 16Paragraph 16
  23. 17Paragraph 17
  24. 18Traffic Management Act 2004
  25. 19Paragraph 19
  26. 20Paragraph 20
  27. 21Civil Partnership Act 2004
  28. 22Paragraph 22
  29. 23Paragraph 23
  30. 24Paragraph 24
  31. 25Pensions Act 2004 Repealed
  32. 26Paragraph 26 Repealed
  33. 27Paragraph 27 Repealed
  34. 28Paragraph 28 Repealed
  35. 29Prevention of Terrorism Act 2005
  36. 30Mental Capacity Act 2005
  37. 31Paragraph 31
  38. 32Paragraph 32
  39. 33Paragraph 33
  40. 34Paragraph 34
  41. 35Paragraph 35
  42. 36Paragraph 36 Repealed
  43. 37Paragraph 37
  44. 38Education Act 2005
  45. 39Gambling Act 2005 Repealed
  46. Schedule 2: Transfer and modification of functions of the Lord Chancellor — secondary legislation
  47. 1Iron and Steel (Compensation to Officers and Servants) (No. 2) Regulations 1953
  48. 2British Transport Reorganisation (Compensation to Employees) Regulations 1962
  49. 3National Assembly for Wales (Representation of the People) Order 2003
  50. 4Courts Boards (Appointments and Procedure) Regulations 2004 Repealed
  51. 5Paragraph 5 Repealed
  52. 6Paragraph 6 Repealed
  53. 7Paragraph 7 Repealed
  54. Schedule 3Supplementary provision
  55. Explanatory note

1Citation and commencementI1

This Order may be cited as the Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006 and shall come into force on the day after the day on which it is made.

2Transfer and modification of functionsI1

Schedule 1 has effect with respect to the transfer, modification and abolition of functions of the Lord Chancellor contained in primary legislation.

3I1

Schedule 2 has effect with respect to the transfer and modification of functions of the Lord Chancellor contained in secondary legislation.

4Supplementary provisionI1

Schedule 3 has effect with respect to making provision supplementary to that under the Constitutional Reform Act 2005.

Signature

Falconer of Thoroton , C

Dated 2nd April 2006

1Appellate Jurisdiction Act 1876I1

The Appellate Jurisdiction Act 1876f1 is amended as follows.

2I1

In section 5, omit subsection (1).

3I1

In section 25, in the definition of “High judicial office”, omit the words “Lord Chancellor of Great Britain or of”.

4Appellate Jurisdiction Act 1887I1

(1)

Section 3 of the Appellate Jurisdiction Act 1887f1 is amended in accordance with this paragraph.

(2)

Omit “unless he is for the time being the Lord Chancellor of Great Britain”.

5Matrimonial and Family Proceedings Act 1984I1

The Matrimonial and Family Proceedings Act 1984f1 is amended as follows.

6F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8Nationality, Immigration and Asylum Act 2002F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12Gender Recognition Act 2004I1

Schedule 1 to the Gender Recognition Act 2004f1 is amended as follows.

13I1

In paragraph 1(1), for “The Lord Chancellor” substitute “Subject to sub-paragraph (1A), the Lord Chancellor”.

14I1

After paragraph 1(1) insert—

“(1A)

The Lord Chancellor may appoint a person under sub-paragraph (1) only with the concurrence of all of the following—

(a)

the Lord Chief Justice of England and Wales;

(b)

the Lord President of the Court of Session;

(c)

the Lord Chief Justice of Northern Ireland.”.

15I1

In paragraph 2(1), for “The Lord Chancellor” substitute “Subject to sub-paragraph (1A), the Lord Chancellor”.

16I1

After paragraph 2(1) insert—

“(1A)

The Lord Chancellor may appoint a person under sub-paragraph (1) only with the concurrence of all of the following—

(a)

the Lord Chief Justice of England and Wales;

(b)

the Lord President of the Court of Session;

(c)

the Lord Chief Justice of Northern Ireland.”.

17I1

After paragraph 8 insert—

“Delegation

8A
(1)

The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise any of his functions under this Schedule.

(2)

The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this Schedule.

(3)

The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this Schedule—

(a)

the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

(b)

a Lord Justice of Appeal (as defined in section 88 of that Act).”.

18Traffic Management Act 2004I1

Section 81 of the Traffic Management Act 2004f1 is amended as follows.

19I1

For subsection (3)(b) substitute—

“(b)

for the consent of the Lord Chancellor to be required for any decision by those authorities to appoint a person as an adjudicator;

(c)

for the consent of the Lord Chancellor and the Lord Chief Justice to be required for any decision by those authorities—

(i)

not to re-appoint a person as an adjudicator, or

(ii)

to remove a person from his office as an adjudicator.”.

20I1

After subsection (3) insert—

“(3A)

The regulations may provide for 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 his functions under the regulations.”.

21Civil Partnership Act 2004I1

The Civil Partnership Act 2004f1 is amended as follows.

22I1

(1)

Section 188 is amended in accordance with this paragraph.

(2)

After subsection (4) insert—

“(4A)

The Lord Chancellor may make an order under subsection (4) only with the concurrence of the Lord Chief Justice of Northern Ireland.”.

23I1

In paragraph 47 of Schedule 6, after sub-paragraph (2) insert—

“(3)

The Lord Chancellor may make a determination for the purposes of sub-paragraph (1) only with the concurrence of the Lord Chief Justice.

(4)

The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this paragraph.”.

24I1

(1)

Paragraph 2 of Schedule 16 is amended in accordance with this paragraph.

(2)

In sub-paragraph (2)(b), after “may” insert “, after consultation with the Lord Chief Justice of Northern Ireland,”.

25Pensions Act 2004F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

29Prevention of Terrorism Act 2005I1

(1)

Paragraph 6 of the Schedule to the Prevention of Terrorism Act 2005f1 is amended in accordance with this paragraph.

(2)

After sub-paragraph (1) insert—

“(1A)

The Lord Chancellor may appoint an adviser under this paragraph only with the concurrence of the appropriate senior judge.”.

(3)

After sub-paragraph (3) insert—

“(4)

In this paragraph “the appropriate senior judge” means—

(a)

in relation to an adviser who may be called in aid wholly or mainly in Scotland, the Lord President of the Court of Session;

(b)

in relation to an adviser who may be called in aid wholly or mainly in Northern Ireland, the Lord Chief Justice of Northern Ireland;

(c)

in any other case, the Lord Chief Justice of England and Wales.

(5)

The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise any of his functions under this paragraph.

(6)

The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under this paragraph.

(7)

The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this paragraph—

(a)

the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

(b)

a Lord Justice of Appeal (as defined in section 88 of that Act).”.

30Mental Capacity Act 2005I1

The Mental Capacity Act 2005f1 is amended as follows.

31I1

(1)

Section 21 is amended in accordance with this paragraph.

(2)

That section becomes subsection (1) of section 21.

(3)

In that subsection for “Lord Chancellor” substitute “Lord Chief Justice, with the concurrence of the Lord Chancellor,”.

(4)

After that subsection insert—

“(2)

The Lord Chief Justice may nominate any of the following to exercise his functions under this section—

(a)

the President of the Court of Protection;

(b)

a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).”.

32I1

(1)

Section 45 is amended in accordance with this paragraph.

(2)

In subsection (4) after “Lord Chancellor” insert “, after consulting the Lord Chief Justice”.

(3)

In subsection (5) after “may” insert “, after consulting the Lord Chief Justice,”.

(4)

After subsection (5) insert—

“(5A)

The Lord Chief Justice may nominate any of the following to exercise his functions under this section—

(a)

the President of the Court of Protection;

(b)

a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).”.

33I1

(1)

Section 46 is amended in accordance with this paragraph.

(2)

In subsection (1)(a), for “Lord Chancellor” substitute “Lord Chief Justice”.

(3)

For subsection (1)(b) substitute—

“(b)

where nominated by the Lord Chief Justice to act on his behalf under this subsection—

(i)

the President of the Court of Protection; or

(ii)

a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).”.

(4)

In subsection (3), for “Lord Chancellor” substitute “Lord Chief Justice, after consulting the Lord Chancellor,”.

(5)

In subsection (4)—

(a)

for “Lord Chancellor” in the first place substitute “Lord Chief Justice, after consulting the Lord Chancellor,”;

(b)

after “Lord Chancellor” in the second place insert “, after consulting the Lord Chief Justice,”.

34I1

For section 51(1) substitute—

“(1)

Rules of court with respect to the practice and procedure of the court (to be called “Court of Protection Rules”) may be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005.”.

35I1

For section 52 substitute—

“Practice directions

52
(1)

Directions as to the practice and procedure of the court may be given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.

(2)

Practice directions given otherwise than under subsection (1) may not be given without the approval of—

(a)

the Lord Chancellor, and

(b)

the Lord Chief Justice.

(3)

The Lord Chief Justice may nominate any of the following to exercise his functions under this section—

(a)

the President of the Court of Protection;

(b)

a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).”.

36F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

37I1

(1)

Section 65 is amended in accordance with this paragraph.

(2)

In subsection (1), after “this Act” insert “, other than the power in section 21”.

(3)

After subsection (4) insert—

“(5)

An order under section 21—

(a)

may include supplementary, incidental, consequential, transitional or saving provision;

(b)

may make different provision for different cases;

(c)

is to be made in the form of a statutory instrument to which the Statutory Instruments Act 1946 applies as if the order were made by a Minister of the Crown; and

(d)

is subject to annulment in pursuance of a resolution of either House of Parliament.”.

38Education Act 2005I1

(1)

Paragraph 1 of Schedule 3 to the Education Act 2005f1 is amended in accordance with this paragraph.

(2)

In paragraph 1(1)(a), for “Lord Chancellor” substitute “Lord Chief Justice after consulting the Lord Chancellor”.

(3)

After sub-paragraph (3) insert—

“(4)

The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this paragraph.”.

39Gambling Act 2005F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1Iron and Steel (Compensation to Officers and Servants) (No. 2) Regulations 1953I1

(1)

Regulation 2 of the Iron and Steel Regulations (Compensation to Officers and Servants) (No. 2) Regulations 1953f1 is amended in accordance with this paragraph.

(2)

In the definition of “tribunal” in paragraph (1), after “Lord Chancellor” insert “and the Lord Chief Justice”.

(3)

After that paragraph insert—

“(1A)

The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions referred to in the definition of “tribunal” in paragraph (1).”.

2British Transport Reorganisation (Compensation to Employees) Regulations 1962I1

(1)

Regulation 1 of the British Transport Reorganisation (Compensation to Employees) Regulations 1962f1 is amended in accordance with this paragraph.

(2)

In the definition of “tribunal” in paragraph (3), after “Lord Chancellor” insert “and the Lord Chief Justice”.

(3)

After that paragraph insert—

“(3A)

The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions referred to in the definition of “tribunal” in paragraph (3).”.

3National Assembly for Wales (Representation of the People) Order 2003I1

In article 112 of the National Assembly for Wales (Representation of the People) Order 2003f1 after “Lord Chancellor” insert “and the Lord Chief Justice”.

4Courts Boards (Appointments and Procedure) Regulations 2004F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Schedule 3Supplementary provisionI1

I1

In section 146(8) of the Copyright, Designs and Patents Act 1988f1, after “functions” in both places where it occurs insert “, or the person to be appointed is to exercise functions,”.

Explanatory note

(This note is not part of the Order)

This Order transfers, modifies or abolishes certain functions of the Lord Chancellor contained in primary legislation and contained in secondary legislation which is subject to the approval of either or both Houses of Parliament.

The transfers and modifications form part of the implementation of the Concordat agreed between the Lord Chancellor and the Lord Chief Justice in January 2004. The Concordat sets out the principles governing the allocation of functions between the Lord Chancellor and the Lord Chief Justice, following the removal of the Lord Chancellor’s judicial functions by the Constitutional Reform Act 2005 (c. 4).

The amendments enacted by Schedules 1 and 2 to this Order transfer certain of the Lord Chancellor’s functions to the Lord Chief Justice, and require certain functions to be exercised by the Lord Chancellor only after consulting, or obtaining the concurrence of the Lord Chief Justice (or vice-versa). In relation to certain functions applicable beyond England and Wales the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland have equivalent roles to that of the Lord Chief Justice in relation to England and Wales.

In addition, Schedule 1 abolishes the functions of the Lord Chancellor as a Lord of Appeal.

A separate Order made under the negative resolution procedure, the Lord Chancellor (Transfer of Functions and Supplementary Provisions) Order 2006, makes similar amendments to provisions contained in secondary legislation which are subject to annulment by either House of Parliament.

Schedule 3 to this Order makes a supplementary provision to the amendment made by paragraph 199 of Schedule 4 to the Constitutional Reform Act 2005.