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

rose to move, That the draft order laid before the House on 1 March be approved [21st Report from the Joint Committee]. The noble Lord said: My Lords, the draft order supplements the Constitutional Reform Act, which received Royal Assent almost a year ago on 24 March 2005, and most of which will come into force on Monday 3 April. That Act modernises the constitution of this country by reforming the post of Lord Chancellor, abolishing the Lord Chancellor’s traditional role as a judge and head of the judiciary, and providing for the establishment of a new Judicial Appointments Commission, a Judicial Appointments and Conduct Ombudsman and a new judicial disciplinary system. It will also lead to the abolition of the judicial role of your Lordships’ House and the creation of a new Supreme Court. The 2005 Act modifies many statutory powers of the Lord Chancellor so that when these affect the judiciary they are exercised in consultation with the Lord Chief Justice, or with the concurrence of the Lord Justice, or are transferred to the Lord Chief Justice to be exercised in consultation with, or with the concurrence of, the Lord Chancellor. Most of the provisions relate only to England and Wales, but there are some tribunals whose jurisdiction covers all of Great Britain or the whole of the United Kingdom, so that in certain cases the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland also have functions conferred on them. The way in which various functions have been modified or transferred is in accordance with the concordat agreed by the Lord Chancellor and Lord Chief Justice and follows detailed discussions between officials and a working group of judges chaired by Lady Justice Arden and containing wide representation from the judiciary. Schedule 4 to the Constitutional Reform Act contains 407 provisions amending different functions of the Lord Chancellor in primary legislation up to 2003, but does not capture functions enacted or amended in legislation in the 2004–05 Session. With few exceptions, it also does not cover functions in secondary legislation. My noble and learned friend the Lord Chancellor has therefore made and laid before Parliament an order amending some 80 functions of the Lord Chancellor in secondary legislation. That order is subject to the negative procedure. This No. 2 order is an affirmative order which can be made only after being approved in draft by both Houses and amends functions in primary legislation or secondary legislation that can be amended only by the affirmative procedure. The order contains three schedules. Schedule 1 amends primary legislation. Here the most significant function affected is the Lord Chancellor’s role as a Lord of Appeal under the Appellate Jurisdiction Act 1908, which will be abolished. That was not done in the Constitutional Reform Act because that Act repeals the Appellate Jurisdiction Act as a whole, but the repeal will not be commenced until we have established the Supreme Court in 2009. In the mean time, the Law Lords will continue to sit as a committee of this House, but the Lord Chancellor will no longer be able to preside over them. This order therefore brings to an end hundreds of years of legal and constitutional history in which the Lord Chancellor has presided as a judge over this House in its judicial capacity. It completes work done by the Constitutional Reform Act, which abolishes his role as a judge at the Court of Appeal, the High Court and the Crown Court. The other functions affected are in legislation passed in 2004–05, which is amended in order to conform to the requirements of the concordat and the provisions of the Constitutional Reform Act. Schedule 2 amends in the same way a small number of pieces of secondary legislation that can be amended only by affirmative order. Schedule 3 corrects a slip in the drafting of paragraph 199 of Schedule 4 to the Constitutional Reform Act, which amends Section 146 of the Copyright, Designs and Patents Act 1988, but omits a necessary reference to members of the copyright tribunal being appointed as well as removed. I commend this draft order to the House. Moved, That the draft order laid before the House on 1 March be approved [21st Report from the Joint Committee].—(Lord Evans of Temple Guiting.)