Policy background Authorised court and tribunal staff: legal advice and judicial functions
HM Courts and Tribunals Service (HMCTS) staff can already be authorised to carry out certain functions of a court, tribunal or judge. Currently staff carry out these duties in most jurisdictions, with the Crown Court a notable exception. The functions which staff can carry out are prescribed in a variety of ways, usually either by the Lord Chancellor (as in magistrates’ courts and the Family Court) or by procedure rules (as in the Civil Procedure Rules or Tribunal Procedure Rules) in the relevant jurisdiction. In the FtT and UT, the procedure rules provide that functions can be exercised only if the person is approved by the Senior President of Tribunals. In practice, this approval is given in Practice Statements issued by the Senior President of Tribunals. In the civil jurisdiction, functions can be assigned to court staff through Civil Procedure Rules, made under the Civil Procedure Act 1997. In magistrates’ courts and the Family Court, the Lord Chancellor, with the concurrence of the Lord Chief Justice (see section 28 of the CA 2003), identifies which powers of a single justice can be exercised by a justices’ clerk or assistant clerk.
	The Act makes a general provision so that all rules of court governed by the CA 2003 will have the power to provide for the exercise of "relevant judicial functions"5, the functions of the court, or of any judge of the court. A similar power already exists in tribunals (specifically relating to functions of the FtT and UT). The Act excludes some core judicial functions from this general power, meaning that rules of court will not be able to provide for authorised staff to be able to exercise any of those ‘excluded functions’.
	The Act introduces safeguards for these authorised staff across the jurisdictions (all courts, and the tribunals) to make sure that, amongst other things, they have the necessary independence to undertake judicial functions under the supervision of the judiciary. The Lord Chief Justice and the Senior President of Tribunals will be ultimately responsible for the authorisation and direction of these members of staff.
	Justices’ clerks are the most senior lawyers employed by HMCTS, however their role is limited (by Part 2 of the CA 2003) to the work of magistrates. They oversee the provision of legal advice to magistrates and staff exercising the functions of a single justice or the Family Court. In order to broaden the role of these lawyers to provide leadership across all jurisdictions, the Government is removing this role, but not function, from statute.