text:
PART 1 Interpretation and scope
Citation and commencement
1
These Rules may be cited as the Supreme Court Rules 2009 and shall come into force on 1st October 2009.
Scope and objective
2
1
These Rules apply to civil and criminal appeals to the Court and to appeals and references under the Court’s devolution jurisdiction.
2
The overriding objective of these Rules is to secure that the Court is accessible, fair and efficient.
3
The Court must interpret and apply these Rules with a view to securing that the Court is accessible, fair and efficient and that unnecessary disputes over procedural matters are discouraged.
Interpretation
3
1
In these Rules —
“ the Act ” means the Constitutional Reform Act 2005;
“the Court” means the Supreme Court of the United Kingdom;
“ Justice ” means a judge of the Court and includes its President and Deputy President;
“ the Registrar ” means the Registrar of the Court;
“ the Registry ” means the Registry of the Court.
2
In these Rules except where the context otherwise requires —
“appellant” means a person who files an application for permission to appeal or who files a notice of appeal;
“business day” means any day other than a Saturday, Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971 , in England and Wales;
“certificate of service” means a certificate given under rule 6;
“counsel” includes any person with the right to be heard as an advocate at a full hearing before the Court;
“court below” means the court from which an appeal (or application for permission to appeal) is made to the Court;
“court officer” means the Registrar or a member of the court staff;
“devolution jurisdiction” means the jurisdiction transferred to the Court by section 40 of, and Schedule 9 to, the Act;
“electronic means” means CD ROMs, memory sticks, email, fax or other means of electronic communication of the contents of documents;
“filing” means filing in the Registry in accordance with rule 7 and related expressions have corresponding meanings;
“form” and the “appropriate form” have the meanings given by rule 4;
“panel of Justices” means a panel of at least three Justices ;
“party” means an appellant, a respondent and a person who has been given permission to intervene under rule 26;
“the relevant officer” means —
in relation to proceedings in England and Wales, the Attorney General and, in relation to proceedings that particularly affect Wales, the Counsel General to the Welsh Assembly Government,
in relation to proceedings in Scotland, the Advocate General for Scotland and the Lord Advocate; and
in relation to proceedings in Northern Ireland, the Advocate General for Northern Ireland and (when section 22 of the Justice (Northern Ireland) Act 2002 comes into force ) the Attorney General for Northern Ireland;
“requisite number of copies” means the number of copies which are to be provided under the relevant practice direction or as directed by the Court;
“respondent” includes a respondent to an application for permission to appeal and means —
a person other than the appellant who was a party to the proceedings in the court below and who is affected by the appeal; and
a person who is permitted by the Court to be a party to the appeal;
“service” and related expressions have the meanings given by rule 6;
“solicitor” includes any person authorised to provide legal services other than as counsel in connection with proceedings before the Court.
3
References in these Rules to a practice direction means a practice direction issued by the President of the Court.
4
References in these Rules or in any form to a party’s signing, filing or serving any document or taking any other procedural step include the signature, filing or service of that document or the taking of such other procedural step by the party’s solicitor.
5
Where any of these Rules or any practice direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means.
6
Where these Rules require or permit the Court to perform an act of a formal or administrative character, that act may be performed by a court officer.
Forms
4
1
In these Rules, a form means a form set out in a practice direction and a reference to the “appropriate form” means the form provided by the relevant practice direction for any particular case.
2
The forms shall be used in the cases to which they apply, and in the circumstances for which they are provided by the relevant practice direction, but a form may be varied by the Court or a party if the variation is required by the circumstances of a particular case.
Time limits
5
1
The Court may extend or shorten any time limit set by these Rules or any relevant practice direction (unless to do so would be contrary to any enactment).
2
The Court may exercise these powers either on an application by one or more parties or without an application being made.
3
The Registrar must notify the parties when a time limit is varied under this rule.
4
An application for an extension of time may be granted after the time limit has expired.
5
Where a party to a proposed appeal has applied for public funding and the Registrar is informed of the application, the time limits in rules 11 and 19 shall be extended until 28 days after the final determination of the application for public funding.
6
When the period specified —
a
by these Rules or a practice direction, or
b
by any judgment or court order,
for doing any act at the Registry ends on a day on which the Registry is closed, that act shall be in time if done on the next day on which the Registry is open.
Service
6
1
A document may be served by any of the following methods —
a
personal service;
b
first class post (or an alternative service which provides for delivery on the next working day);
c
(with the consent of the party to be served) through a document exchange;
d
(with the consent of the party to be served or at the direction of the Registrar) by electronic means in accordance with the relevant practice direction.
2
Where the address of the person on whom a document is to be served is unknown, the Registrar may direct that service is effected by an alternative method of service.
3
A document served by first-class post or through a document exchange will be taken to have been served on the second day after it was posted or left at the document exchange, as the case may be (not including days which are not business days).
4
A certificate of service must give details of the persons served, the method of service used and must state the date on which the document was served personally, posted, delivered to the document exchange or sent electronically, as the case may be.
Filing
7
1
A document may be filed by any of the following methods —
a
personal delivery;
b
first class post (or an alternative service which provides for delivery on the next working day);
c
through a document exchange;
d
(with the consent of the Registrar) by electronic means in accordance with the relevant practice direction.
2
A document filed by first-class post or through a document exchange will be taken to have been filed on the second day after it was posted or left at the document exchange, as the case may be (not including days which are not business days).
3
Except with the consent of the Registrar, the contents of documents —
a
filed in hard copy must also be provided to the Registry by electronic means, and
b
filed by electronic means must also be provided to the Registry in hard copy,
in accordance with the relevant practice direction.
4
A court officer must seal the following documents when they are filed —
a
an application for permission to appeal,
b
a notice of objection or acknowledgement by the respondent,
c
a notice of appeal,
d
an application form,
and may place the seal on the document by hand or by printing a facsimile of the seal on the document whether electronically or otherwise.
5
A document purporting to bear the Court’s seal shall be admissible in evidence without further proof.
Non-compliance with these Rules
8
1
Any failure by a party to comply with these Rules or any relevant practice direction shall not have the effect of making the proceedings invalid.
2
Where any provision in these Rules or any relevant practice direction is not complied with, the Court may give whatever directions appear appropriate, having regard to the seriousness of the non-compliance and generally to the circumstances of the case.
3
In particular, the Registrar may refuse to accept any document which does not comply with any provision in these Rules or any relevant practice direction and may give whatever directions appear appropriate.
4
Directions given under this rule may include the summary dismissal of an appeal or debarring a respondent from resisting an appeal.
Procedural decisions
9
1
Subject to paragraph , the powers of the Court under the following rules may be exercised by a single Justice or the Registrar without an oral hearing —
a
rule 5 (time limits),
b
rule 8 (non-compliance with Rules),
c
rule 33 (change of interest),
d
rule 34 (withdrawal of appeal),
e
rule 35 (advocate to the Court and assessors),
f
rule 36 (security for costs),
g
rule 37 (stay of execution) and
h
rule 41 (devolution jurisdiction).
2
Any contested application —
a
alleging contempt of the Court; or
b
for a direction under rule 8 dismissing an appeal or debarring a respondent from resisting an appeal; or
c
for security for costs,
shall be referred to a panel of Justices who shall, in a case of alleged contempt, and may, in any other case, hold an oral hearing.
3
Where under these Rules any matter falls to be decided by a single Justice, that Justice may, where it appears appropriate, direct an oral hearing or may refer the matter to a panel of Justices to be decided with or without an oral hearing.
4
Where under these Rules any matter falls to be decided by the Registrar, the Registrar may —
a
direct an oral hearing;
b
refer the matter to a single Justice (and paragraphs (1) and (3) shall then apply);
c
refer the matter to a panel of Justices to be decided with or without an oral hearing.
5
A party may apply for a decision of the Registrar to be reviewed by a single Justice (in which case paragraphs (1) and (3) shall apply) and any application under this rule must be made in the appropriate form and be filed within 14 days of the Registrar’s decision.
6
Subject to rule 27, oral hearings on procedural matters must be heard in open court or in a place to which the public are admitted.
7
If any procedural question arises which is not dealt with by these Rules, the Court or the Registrar may adopt any procedure that is consistent with the overriding objective, the Act and these Rules.
PART 2 Application for permission to appeal
Form of application
10
1
Every application to the Court for permission to appeal shall be made in the appropriate form.
2
An application for permission to appeal must be made first to the court below, and an application may be made to the Supreme Court only after the court below has refused to grant permission to appeal.
Filing of application
11
1
Subject to any enactment which makes special provision with regard to any particular category of appeal, an application for permission to appeal must be filed within 28 days from the date of the order or decision of the court below.
2
The Registrar may refuse to accept any application on the ground that —
a
the Court does not have jurisdiction under section 40 of the Act to issue it;
b
it contains no reasonable grounds; or
c
it is an abuse of process,
and may give whatever directions appear appropriate.
(Section 2 of the Administration of Justice Act 1960 provides that an application for permission to appeal to the Supreme Court in a case involving civil contempt of court must be filed within 14 days, beginning with the date on which the application for permission is refused by the court below.)
(Section 13 of the Administration of Justice Act 1969 provides that an application for permission to appeal to the Supreme Court in a “leapfrog appeal” from the High Court must be filed within one month from the date on which the High Court judge grants a certificate under section 12.)
Service of application
12
Before the application is filed, a copy must be served —
a
on every respondent, and
b
on any person who was an intervener in the court below,
and, when the application is filed, the appellant must file a certificate of service.
Notice of objection by respondent
13
1
Each respondent who wishes to object to the application must, within 14 days after service, file notice of objection in the appropriate form together with a certificate of service.
2
Before the notice is filed, a copy must be served on —
a
the appellant,
b
any other respondent, and
c
any person who was an intervener in the court below.
3
A respondent who does not file notice under this rule will not be permitted to participate in the application and will not be given notice of its progress.
Documents in support of application
14
1
The requisite number of copies of the application must be filed together with —
a
a copy of the order appealed from, and
b
(if separate) a copy of any order refusing permission to appeal
and, if the order appealed from is not immediately available, the application should be filed without delay and the order filed as soon as it is available.
2
The appellant must file the further documents required for the use of the Court within 7 days after filing the application.
Interventions in applications
15
1
Any person and in particular —
a
any official body or non-governmental organization seeking to make submissions in the public interest or
b
any person with an interest in proceedings by way of judicial review,
may make written submissions to the Court in support of an application for permission to appeal and request that the Court takes them into account.
2
Before the submissions are filed, a copy must be served on —
a
the appellant,
b
every respondent, and
c
any person who was an intervener in the court below
and the requisite number of copies of the submissions must be filed together with a certificate of service.
3
Any submissions which are made shall be referred to the panel of Justices which considers the application for permission to appeal.
4
If permission to appeal is granted —
a
a person whose submissions were taken into account by the panel will be notified but, if that person wishes to intervene in the appeal, an application must be made under rule 26;
b
the appellant must notify any person who was an intervener in the court below whether or not that person made submissions under this rule.
Consideration on paper
16
1
Every admissible application for permission to appeal (together with any submissions made under rule 15 and any respondent’s notice of objection) shall be considered on paper without a hearing by a panel of Justices.
2
The panel may —
a
grant or refuse permission to advance all or any of the grounds of appeal;
b
invite the parties to file written submissions within 14 days as to the grant of permission on terms (whether as to costs or otherwise); or
c
direct an oral hearing.
3
Where the panel has invited the parties’ submissions as to terms, it shall reconsider the application on paper without a hearing and may refuse permission or grant permission (either unconditionally or on terms) to advance all or any of the grounds of appeal.
4
Where the panel grants permission to advance limited grounds of appeal it shall (unless it directs otherwise) be taken to have refused permission to advance the other grounds.
5
An order of the Court shall be prepared and sealed by the Registrar to record any decision made under this rule.
Oral hearing of application
17
1
Where the panel has directed an oral hearing, the appellant and every respondent who has given notice under rule 13 will be informed of the date of the oral hearing.
2
An order of the Court shall be prepared and sealed by the Registrar to record any decision made under this rule.
PART 3 Commencement and preparation of appeal
Form and filing of notice where permission granted by the Court
18
1
Where the Court grants permission to appeal, rules 19 and 20 shall not apply and
a
the application for permission to appeal shall stand as the notice of appeal;
b
the grounds of appeal shall be limited to those on which permission has been granted;
c
the appellant must, within 14 days of the grant by the Court of permission to appeal, file notice under this rule of an intention to proceed with the appeal.
2
When notice is filed under rule 18(1)(c), the application for permission to appeal will be re-sealed and the appellant must then —
a
serve a copy on each respondent and on any person who was an intervener in the court below or whose submissions were taken into account under rule 15; and
b
file the requisite number of copies and a certificate of service.
3
In any other case an appellant must file a notice of appeal under rule 19.
Form and filing of notice where permission not required
19
1
Every notice of appeal shall be made in the appropriate form.
2
The notice of appeal together with the requisite number of copies must be filed within 42 days of the date of the order or decision of the court below.
3
The appellant must also file —
a
a copy of the order appealed from and
b
(if separate) a copy of the order granting permission to appeal
and, if the order appealed from is not immediately available, the notice of appeal must be filed without delay and the order filed as soon as it is available.
Service of notice
20
1
Before the notice of appeal is filed, a copy must be served on each respondent and on any person who was an intervener in the court below.
2
When the notice of appeal is filed, the appellant must file a certificate of service.
Acknowledgement by respondent
21
1
Each respondent who intends to participate in the appeal must, within 14 days after service under rule 18(2)(a) or 20, file notice in the appropriate form together with a certificate of service.
2
Before the notice is filed, a copy must be served on —
a
the appellant,
b
any other respondent, and
c
any person who was an intervener in the court below or whose submissions were taken into account under rule 15.
3
A respondent who does not file notice under this rule will not be permitted to participate in the appeal and will not be given notice of its progress.
Documents for appeal hearing
22
1
Within 112 days after the filing of the notice under rule 18(1)(c) or the filing of the notice of appeal, the appellant must file —
a
a statement of the relevant facts and issues; and
b
an appendix (prepared in accordance with the relevant practice direction) of the essential documents which were in evidence before, or which record the proceedings in, the courts below.
2
Both the statement and the appendix must be submitted to, and agreed with, every respondent before being filed.
3
Within 7 days after the filing of the statement and the appendix, every party must —
a
notify the Registrar that the appeal is ready for listing, and
b
specify the number of hours that their respective counsel estimate to be necessary for their oral submissions
and the Registrar will subsequently inform the parties of the date fixed for the hearing.
4
The appellant and every respondent (and any intervener and advocate to the Court) must then sequentially exchange their respective written cases and file them, and every respondent (and any intervener and advocate to the Court) must for the purposes of rule 23 provide copies of their respective written cases, in compliance with the relevant practice direction.
The core volumes
23
As soon as the parties’ cases have been exchanged and in any event not later than 14 days before the date fixed for the hearing the appellant must file the requisite number of core volumes and, if necessary, additional volumes containing further parts of the appendix, in compliance with the relevant practice direction.
Authorities
24
The volumes of authorities that may be referred to during the hearing must be prepared in accordance with the relevant practice direction and the requisite number of copies of the volumes of authorities must be filed by the appellant at the same time as the core volumes.
Cross-appeals
25
1
A respondent who wishes to argue that the order appealed from should be upheld on grounds different from those relied on by the court below, must state that clearly in the respondent’s written case (but need not cross-appeal).
2
Except where —
a
leave is required from the Court of Session for an appeal from that court, or
b
an appeal lies to the Court as of right,
a respondent who wishes to argue that the order appealed from should be varied must obtain permission to cross-appeal from the Court.
3
Part 2 of these Rules shall apply (with appropriate modifications) to an application to the Court for permission to cross-appeal and (if practicable) applications for permission to appeal and to cross-appeal shall be considered together by the same panel of Justices.
4
Where there is a cross-appeal, this Part of these Rules shall apply with appropriate modifications and in particular —
a
either the application for permission to cross-appeal to the Court shall stand as a notice of cross-appeal, or such a notice (in the appropriate form) shall be filed and served within 42 days of the grant by the Court of permission to appeal or of the filing of the notice of appeal;
b
there shall be a single statement of facts and issues, a single appendix of essential documents (divided if necessary into parts) and a single case for each party in respect of the appeal and the cross-appeal (and each case should state clearly that it is in respect of both the appeal and the cross-appeal); and
c
the appellant shall remain primarily responsible for the preparation of all the papers for the appeal and for notifying the Registrar under rule 22(3).
Intervention
26
1
After permission to appeal has been granted by the Court or a notice of appeal has been filed, any person and in particular —
a
any official body or non-governmental organization seeking to make submissions in the public interest,
b
any person with an interest in proceedings by way of judicial review,
c
any person who was an intervener in the court below or whose submissions were taken into account under rule 15,
may apply to the Court for permission to intervene in the appeal.
2
An application under this rule must be made in the appropriate form and shall be considered on paper by a panel of Justices who may refuse permission to intervene or may permit intervention —
a
by written submissions only; or
b
by written submissions and oral submissions
and any oral submissions may be limited to a specified duration.
3
No permission is required —
a
for an intervention by the Crown under section 5 of the Human Rights Act 1998, or
b
for an intervention by the relevant officer in a case where the Court is exercising its devolution jurisdiction.
(For rules relating to Human Rights Act issues and the Court’s devolution jurisdiction see rules 40 and 41.)
PART 4 Hearing and decision of appeal
Hearing in open court
27
1
Every contested appeal shall be heard in open court except where it is necessary in the interests of justice or in the public interest to sit in private for part of an appeal hearing.
2
Where the Court considers it necessary for a party and that party’s representative to be excluded from a hearing or part of a hearing in order to secure that information is not disclosed contrary to the public interest, the Court must conduct the hearing, or that part of it from which the party and the representative are excluded, in private but the Court may exclude a party and any representative only if a person who has been appointed as a special advocate to represent the interests of that party is present when the party and the representative are excluded.
3
Where the Court decides it is necessary for the Court to sit in private, it shall announce its reasons for so doing publicly before the hearing begins.
4
Hearings shall be conducted in accordance with —
a
the relevant practice direction, and
b
any directions given by the Court
and directions given by the Court may limit oral submissions to a specified duration.
Judgment
28
A judgment may be —
a
delivered in open court; or
b
if the Court so directs, promulgated by the Registrar.
Orders
29
1
In relation to an appeal or a reference, the Supreme Court has all the powers of the court below and may —
a
affirm, set aside or vary any order or judgment made or given by that court;
b
remit any issue for determination by that court;
c
order a new trial or hearing;
d
make orders for the payment of interest;
e
make a costs order.
2
An order of the Supreme Court may be enforced in the same manner as an order of the court below or of the appropriate superior court.
3
For the purposes of paragraph (2) “the appropriate superior court” means —
a
in the case of an appeal or reference from a court in England and Wales, the High Court;
b
in the case of an appeal or reference from a court in Scotland —
i
where the appeal or reference is in civil proceedings, the Court of Session; and
ii
where the appeal or reference is in criminal proceedings, the High Court of Justiciary;
c
in the case of an appeal or reference from a court in Northern Ireland, the High Court in Northern Ireland.
4
In the case of references other than those mentioned in paragraph (3) “the appropriate superior court” in paragraph (2) means —
a
where the reference is under the Scotland Act 1998, the Court of Session;
b
where the reference is under the Northern Ireland Act 1998, the High Court in Northern Ireland; and
c
where the reference is under the Government of Wales Act 2006, the High Court.
5
Every order of the Court shall be prepared and sealed by the Registrar who may invite written submissions as to the form of the order.
PART 5 Further general provisions
Procedural applications
30
1
Every procedural application to the Court must be made in the appropriate form for general procedural applications unless a particular form is provided for a specific case.
2
An application must be made in the appropriate form and must —
a
set out the reasons for making the application, and
b
where necessary, be supported by written evidence.
3
A copy of the application must be served on every other party before it is filed and, when the application is filed, the applicant must file a certificate of service.
4
A party who wishes to oppose an application must, within 7 days after service, file notice of objection in the appropriate form and must (before filing) serve a copy on the applicant and any other parties.
5
An application for permission to appeal, a notice of appeal or any other document filed under these Rules may be amended on application under this rule or with the permission of the Registrar on such terms as appear appropriate, and the Registrar may invite the parties’ written submissions on any application to amend.
Requests for expedition
31
1
Any request for urgent consideration of an application for permission to appeal or for an expedited hearing must be made to the Registrar.
2
Wherever possible the views of all parties should be obtained before such a request is made.
Grouping appeals
32
The Registrar may direct that appeals raising the same or similar issues shall be heard either together or consecutively by the Court constituted by the same Justices and may give any consequential directions that appear appropriate.
Change of interest
33
The Court must be informed promptly of —
a
the death or bankruptcy of any individual party;
b
the winding up or dissolution of any corporate party;
c
any compromise of the subject matter of an appeal;
d
any event which does or may deprive an appeal of practical significance to the parties,
and the Court may give any consequential directions that appear appropriate.
Withdrawal etc of application for permission to appeal or of appeal
34
1
An application for permission to appeal or a notice of appeal may be withdrawn with the written consent of all parties or with the permission of the Court on such terms as appear appropriate.
2
The Court may set aside or vary the order appealed from by consent and without an oral hearing if satisfied that it is appropriate so to do.
3
In this rule “a notice of appeal” includes an application for permission to appeal or cross-appeal which (under rule 18 or rule 25) stands as a notice of appeal or cross-appeal.
Advocate to the Court and assessors
35
1
The Court may request the relevant officer to appoint, or may itself appoint, an advocate to the Court to assist the Court with legal submissions.
2
In accordance with section 44 of the Act the Court may, at the request of the parties or of its own initiative, appoint one or more independent specially qualified advisers to assist the Court as assessors on any technical matter.
3
The fees and expenses of any advocate to the Court or assessor shall be costs in the appeal.
Security for costs
36
1
The Court may on the application of a respondent order an appellant to give security for the costs of the appeal and any order for security shall determine —
a
the amount of that security, and
b
the manner in which, and the time within which, security must be given.
2
An order made under this rule may require payment of the judgment debt (and costs) in the court below instead of, or in addition to, the amount ordered by way of security for costs.
Stay of execution
37
Any appellant who wishes to obtain a stay of execution of the order appealed from must seek it from the court below and only in wholly exceptional circumstances will the Court grant a stay.
Change of solicitor and London agents
38
1
If a party for whom a solicitor is acting wishes to change solicitors, that party or the new solicitor must give the Registrar and the former solicitor written notice of the change.
2
Until such notices are given the former solicitor shall continue to be treated as the party’s solicitor.
3
Solicitors practising outside London may appoint London agents and additional costs incurred by not appointing London agents may be disallowed.
Disposal of documents
39
1
All documents filed become the property of the Court and original documents must be retained in the records of the Registry.
2
Other documents shall be destroyed unless the Registrar (on a written application made within 21 days of the end of the proceedings) directs otherwise.
3
All documents held by the Court may be inspected by the press or members of the public on application to the Registrar but the Registrar may refuse an application for reasons of commercial confidentiality, national security or in the public interest.
4
Before allowing an application for inspection under this rule, the Registrar may impose terms or conditions such as the redaction of certain material where such a condition is necessary in the interests of justice or in the public interest.
PART 6 Particular appeals and references
Human Rights Act issues
40
1
Where an appeal raises a question of incompatibility under section 4 of the Human Rights Act 1998 and the Crown is not already a party to the appeal, the Registrar shall give 21 days’ notice of the question to the Crown.
2
If notice is given that the Crown wishes to be joined, the appropriate Minister or other person shall be joined accordingly.
3
If such a question arises for the first time during the course of an appeal hearing the Court will if necessary adjourn the proceedings to enable the Registrar to give notice under paragraph (1).
Devolution jurisdiction
41
1
Appeals or references under the Court’s devolution jurisdiction shall in general be dealt with in accordance with these Rules but the Court shall give special directions as and when necessary, and in particular as to —
a
any question referred under section 33 of the Scotland Act 1998 , section 11 of the Northern Ireland Act 1998 or section 96, 99 or 112 of the Government of Wales Act 2006 ,
b
any reference of a devolution issue ,
c
any direct references under paragraph 33 or 34 of Schedule 6 to the Scotland Act 1998, paragraph 33 or 34 of Schedule 10 to the Northern Ireland Act 1998 or paragraph 29 or 30 of Schedule 9 to the Government of Wales Act 2006.
2
A reference made by the relevant officer is made by filing the reference and by serving a copy on any other relevant officer who is not already a party and who has a potential interest in the proceedings.
3
A reference must state the question or issue to be decided by the Court.
4
The Registrar shall give notice of the question or issue to the appropriate relevant officer where that officer is not already a party to any proceedings.
Court of Justice of the European Communities
42
1
Where it is contended on an application for permission to appeal that it raises a question of Community law which should be the subject of a reference under Article 234 of the Treaty establishing the European Community and permission to appeal is refused, the panel of Justices will give brief reasons for its decision.
2
Where on an application for permission to appeal a panel of Justices decides to make a reference under Article 234 before determining the application, it will give consequential directions as to the form of the reference and the staying of the application (but it may if it thinks fit dispose of other parts of the application at once).
3
Where at the hearing of an appeal the Court decides to make a reference under Article 234 it will give consequential directions as to the form of the reference and the staying of the appeal (but it may if it thinks fit dispose of other parts of the appeal at once).
4
An order of the Court shall be prepared and sealed by the Registrar to record any decision made under this rule.
Revocation of patents
43
1
On any appeal under sections 12 and 13 of the Administration of Justice Act 1969 from an order for revocation of a patent the appellant must serve notice of the appeal on the Comptroller-General of Patents (“the Comptroller”) as well as on every respondent.
2
A respondent who decides not to oppose the appeal must serve notice of that decision on the Comptroller together with the relevant statements of case.
3
The Comptroller shall within 14 days serve on the appellant and file a notice stating whether or not the Comptroller intends to appear on the appeal.
4
Where notice is given under paragraph (3), the Comptroller may appear on the appeal.
Criminal appeals
44
The Court must apply in accordance with the relevant practice direction the code of practice for victims issued under section 32 of the Domestic Violence, Crime and Victims Act 2004 .
PART 7 Fees and costs
Fees
45
Where a fee is prescribed by any order made under section 52 of the Act, the Registrar may refuse to accept a document or refuse to allow a party to take any step unless the relevant fee is paid.
Orders for costs
46
1
The Court may make such orders as it considers just in respect of the costs of any appeal, application for permission to appeal, or other application to or proceeding before the Court.
2
The Court’s powers to make orders for costs may be exercised either at the final determination of an appeal or application for permission to appeal or in the course of the proceedings.
3
Orders for costs will not normally be made either in favour of or against interveners but such orders may be made if the Court considers it just to do so (in particular if an intervener has in substance acted as the sole or principal appellant or respondent).
Submissions as to costs
47
1
If a party wishes to defer making submissions as to costs until after judgment, the Court must be informed of this not later than at the close of the oral argument.
2
If the Court accedes to the request it will give such directions as appear appropriate and it may, in particular, give directions —
a
for the hearing of oral submissions as to costs immediately after judgment;
b
for the simultaneous or sequential filing of written submissions as to costs within a specified period after judgment;
c
for the hearing of oral submissions after the filing of written submissions.
Claim for costs
48
1
Where the Court has made an order for costs, the claim for costs must be submitted to the Registrar within three months beginning with the date on which the costs order was made.
2
The form and contents of a claim for costs must comply with the relevant practice direction and the receiving party must supply such further particulars, information and documents as the Registrar may direct.
3
The receiving party must serve a copy of a claim for costs on the paying party.
4
Within 21 days beginning with the day on which a claim for costs is served, the paying party may (or, in the circumstances specified in the relevant practice direction, must) file points of dispute and, if so, must serve a copy on the receiving party.
5
Within 14 days beginning with the day on which points of dispute are served, the receiving party may file a response and, if so, must serve a copy on the paying party.
Assessment of costs
49
1
Every detailed assessment of costs shall be carried out by two costs officers appointed by the President and —
a
one costs officer must be a Costs Judge (a Taxing Master of the Senior Courts), and
b
the second may be the Registrar.
2
A disputed assessment shall be dealt with at an oral hearing.
3
An assessment may provide for the costs of the assessment procedure.
4
The Registrar will give the receiving party and the paying party written notice of the date of the assessment.
5
Where one of the parties so requests or in the circumstances specified in the relevant practice direction, the Registrar may make a provisional assessment of costs without the attendance of the parties.
6
The Registrar must inform the parties in writing of the outcome of a provisional assessment and, if a party is dissatisfied with the outcome, or if points of disagreement cannot be resolved in correspondence, the Registrar shall appoint a date for an oral hearing.
7
Any request for an oral hearing following a provisional assessment of costs must be made within 14 days of the receipt of the Registrar’s decision on the assessment.
Basis of assessment
50
1
Where the Court is to assess the amount of costs it will assess those costs —
a
on the standard basis, or
b
on the indemnity basis,
in the manner specified by rule 51 or (where appropriate) on the relevant bases that apply in Scotland or Northern Ireland.
2
Where —
a
the Court makes an order about costs without indicating the basis on which the costs are to be assessed, or
b
the Court makes an order for costs to be assessed on a basis other than one specified in paragraph (1),
the costs will be assessed on the standard basis.
3
This rule applies subject to any order or direction to the contrary.
The standard basis and the indemnity basis
51
1
Costs assessed on the standard basis are allowed only if they are proportionate to the matters in issue and are reasonably incurred and reasonable in amount.
2
Any doubt as to whether costs assessed on the standard basis are reasonably incurred and are reasonable and proportionate in amount will be resolved in favour of the paying party.
3
Costs assessed on the indemnity basis are allowed only if they are reasonably incurred and reasonable in amount.
4
Any doubt as to whether costs assessed on the indemnity basis are reasonably incurred and are reasonable in amount will be resolved in favour of the receiving party.
Amount of assessed costs to be specified
52
The amount of any assessed costs will be inserted in the order made under rule 29 but, if that order is drawn up before the assessment has been completed, the amount assessed will be certified by the Registrar.
Appeal from assessment
53
1
A party who is dissatisfied with the assessment of costs made at an oral hearing may apply for that decision to be reviewed by a single Justice and any application under this rule must be made in the appropriate form and be filed within 14 days of the decision.
2
The single Justice may (without an oral hearing) affirm the decision made on the assessment or may, where it appears appropriate, refer the matter to a panel of Justices to be decided with or without an oral hearing.
3
An application may be made under this rule only on a question of principle and not in respect of the amount allowed on any item in the claim for costs.
Payment out of security for costs
54
Any security for costs lodged by an appellant will be dealt with by the Registrar in accordance with the directions of the Court.
PART 8 Transitional arrangements
Transitional arrangements
55
1
Unless the Court or the Registrar directs otherwise, these Rules shall apply, with any necessary modifications, to appeals which were proceeding, and petitions for leave which were lodged, in the House of Lords before 1st October 2009.
2
The Court or the Registrar may give special directions, as and when necessary, in relation to appeals which were proceeding, and petitions for leave which were lodged, in the House of Lords before 1st October 2009 notwithstanding anything that was done in accordance with the Practice Directions and Standing Orders of the House of Lords.
The Lord Phillips of Worth Matravers
Senior Lord of Appeal in Ordinary
21st May 2009
I direct that these Rules shall come into force on 1st October 2009
Jack Straw
Lord Chancellor
26th June 2009


type: legislation

jurisdiction: UK

text:
PART 1 Introductory
Citation, commencement and interpretation
1
1
This Order may be cited as the General Optical Council (Constitution) Order 2009 and —
a
apart from article 5(h), comes into force on 1st April 2009;
b
article 5(h) comes into force on the coming into force of section 44(1) of the Safeguarding Vulnerable Groups Act 2006 (registers: power to apply for vetting information).
2
In this Order —
“ the Act ” means the Opticians Act 1989;
“chair” means the chair of the Council;
“final outcome”, in relation to any proceedings where there are rights of appeal, means the outcome of the proceedings —
once the period for bringing an appeal has expired without an appeal being brought; or
if an appeal is brought in accordance with those rights, once those rights have been exhausted;
“licensing body” means any body, other than the Council, anywhere in the world that licenses or regulates any profession;
“member”, unless the context otherwise requires, means a registrant member or a lay member and includes the chair; and
“spent conviction” means —
in relation to a conviction by a court in Great Britain, a conviction that is a spent conviction for the purposes of the Rehabilitation of Offenders Act 1974 ; or
in relation to a conviction by a court in Northern Ireland, a conviction that is a spent conviction for the purposes of the Rehabilitation of Offenders (Northern Ireland) Order 1978 .
PART 2 Membership of the General Optical Council
Composition of the Council
2
The Council shall consist of 6 registrant members and 6 lay members.
Terms of office of members
3
1
The duration of the term of office of each member of the Council is to be determined by the Privy Council, on appointment.
2
No member of the Council may hold office as a member of the Council for more than an aggregate of 8 years during any period of 20 years.
3
For the purposes of the computation of years under paragraph (2), service as a member of the Council before 1st April 2005 is to be discounted.
Education and training of members
4
The Council shall make provision in standing orders with respect to the requirements with regard to education and training of members of the Council, and those standing orders may provide for —
a
that education and training to be the responsibility of another body; and
b
those requirements to be set and varied by that body from time to time.
Disqualification from appointment as a member
5
A person is disqualified from appointment as a member of the Council if that person —
a
has at any time been convicted of an offence involving dishonesty or deception in the United Kingdom and the conviction is not a spent conviction;
b
has at any time been convicted of an offence in the United Kingdom, and —
i
the final outcome of the proceedings was a sentence of imprisonment or detention, and
ii
the conviction is not a spent conviction;
c
has at any time been removed —
i
from the office of charity trustee or trustee for a charity by an order made by the Charity Commissioners, the Charity Commission, the Charity Commission for Northern Ireland or the High Court on the grounds of any misconduct or mismanagement in the administration of the charity —
aa
for which the person was responsible or to which the person was privy, or
bb
which the person by their conduct contributed to or facilitated, or
ii
under —
aa
section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (powers of Court of Session to deal with management of charities), or
bb
section 34(5)(e) of the Charities and Trustee Investment (Scotland) Act 2005 (powers of the Court of Session),
from being concerned with the management or control of any body;
d
has at any time been removed from office as the chair, or as a member, convenor or director, of any public body on the grounds, in terms, that it was not in the interests of, or conducive to the good management of, that body that the person should continue to hold that office;
e
at any time has been adjudged bankrupt or sequestration of the person’s estate has been awarded, and —
i
the person has not been discharged, or
ii
the person is the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A to the Insolvency Act 1986 or Schedule 2A to the Insolvency (Northern Ireland) Order 1989 (which relate to bankruptcy restrictions orders and undertakings);
f
has at any time made a composition or arrangement with, or granted a trust deed for, the person’s creditors and the person has not been discharged in respect of it;
g
is subject to —
i
a disqualification order or disqualification undertaking under the Company Directors Disqualification Act 1986 ,
ii
a disqualification order under Part 2 of the Companies (Northern Ireland) Order 1989 (company directors disqualification),
iii
a disqualification order or disqualification undertaking under the Company Directors Disqualification (Northern Ireland) Order 2002 , or
iv
an order made under section 429(2) of the Insolvency Act 1986 (disabilities on revocation of a county court administration order);
h
has been included by —
i
the Independent Barring Board in a barred list (within the meaning of the Safeguarding Vulnerable Groups Act 2006 or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 ), or
ii
the Scottish Ministers in the children’s list or the adults’ list (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007 );
i
has at any time been subject to any investigation or proceedings concerning the person’s fitness to practise by any licensing body, the final outcome of which was —
i
the person’s suspension from a register held by the licensing body, and that suspension has not been terminated,
ii
the removal of the person’s name from a register held by the licensing body or a decision that had the effect of preventing the person from practising the profession licensed or regulated by the licensing body,
iii
a decision that had the effect of only allowing the person to practise that profession subject to conditions, and those conditions have not been lifted, or
iv
the making of a financial penalty order against the person, and less than two years have elapsed since the period within which the sum specified in that order needed to be paid expired;
j
has at any time been subject to any investigation or proceedings concerning the person’s fitness to practise by the Council, in the course of which or where the final outcome was that —
i
the person’s registration in the register was suspended (including by an interim suspension order or an order under section 13I of the Act (power to order immediate suspension etc. after a finding of impairment of fitness to practise)) and that suspension has not been terminated,
ii
the person’s name was erased from the register (for a reason connected to the person’s fitness to practise),
iii
the person’s registration in the register was made conditional upon their compliance with any requirement (including by an order for interim conditional registration or an order under section 13I of the Act) and that requirement has not been lifted, or
iv
a financial penalty order was made against the person, and less than two years have elapsed since the period within which the sum specified in that order needed to be paid expired;
k
has at any time been subject to any investigation or proceedings relating to an allegation that the person’s entry in the register was fraudulently procured or incorrectly made —
i
in the course of which the person’s registration was suspended and that suspension has not been terminated, or
ii
the final outcome of which was that the person’s name was removed from the register;
l
is or has been subject to any investigation or proceedings concerning the person’s fitness to practise by —
i
any licensing body, or
ii
the Council,
and the Privy Council is satisfied that the person’s membership of the Council would be liable to undermine public confidence in the regulation of registrants;
m
is a responsible officer of a business registrant, and that business registrant —
i
is subject to any investigation or proceedings by the Council and the Privy Council is satisfied that the person’s membership of the Council would be liable to undermine public confidence in the regulation of registrants, or
ii
has been subject to any investigation or proceedings by the Council, and —
aa
the final outcome of which was a finding that the business registrant’s fitness to carry on business as an optometrist or dispensing optician or both was impaired, and
bb
the Privy Council is satisfied that the person’s membership of the Council would be liable to undermine public confidence in the regulation of registrants; or
n
has at any time been convicted of an offence elsewhere than in the United Kingdom and the Privy Council is satisfied that the person’s membership of the Council would be liable to undermine public confidence in the regulation of registrants.
Removal of members from office
6
1
A member shall be removed from office by the Privy Council, if —
a
the member resigns, which a member may do at any time by a notice in writing to the Privy Council;
b
in the case of —
i
a registrant member, that member is removed from the register (for a reason that is not connected to the member’s fitness to practise), or
ii
a lay member, that member becomes a person who no longer satisfies the criteria for being a lay member in paragraph 1A(1)(b) of Schedule 1 to the Act (membership: general);
c
the member becomes a person of the type mentioned in article 5(a), (b) or (e) to (h) (irrespective of whether or not they subsequently cease to be a person of the type mentioned in those provisions);
d
the member becomes a person of the type mentioned in article 5(c) or (d);
e
in the case of a registrant member, the member has become the subject of any investigation or proceedings concerning the member’s fitness to practise by the Council, as a result of which —
i
a financial penalty order is made against the person,
ii
the member’s registration in the register is suspended,
iii
the member’s name is erased from the register, or
iv
the member’s registration in the register is made conditional upon the member’s compliance with any requirement,
and the proceedings relating to that particular sanction have reached their final outcome;
f
in the case of a registrant member, the member has become the subject of any investigation or proceedings relating to an allegation that the person’s entry in the register was fraudulently procured or incorrectly made, the final outcome of which is the removal of the person’s name from the register;
g
the member is a responsible officer of a business registrant, and that business registrant becomes subject to any investigation or proceedings by the Council —
i
the final outcome of which is a finding that the business registrant’s fitness to carry on business as an optometrist or dispensing optician or both is impaired, and
ii
the Privy Council is satisfied that the person’s membership of the Council would be liable to undermine public confidence in the regulation of registrants;
h
the Privy Council is satisfied that the member’s level of attendance at meetings of the Council falls below a minimum level of attendance acceptable to the Privy Council, having regard to —
i
any recommended minimum levels of attendance that the Council have set in their standing orders, and
ii
whether or not there were reasonable causes for the member’s absences;
i
the Privy Council is satisfied that the member has failed, without reasonable cause, to undertake satisfactorily the requirements with regard to education and training for members that apply to that member and which the Council have included in their standing orders;
j
the Privy Council is satisfied that the member is no longer able to perform their duties as a member of the Council because of adverse physical or mental health; or
k
the Privy Council is satisfied that the member’s continued membership of the Council would be liable to undermine public confidence in the regulation of registrants.
2
A member who becomes, or may be about to become, a person to whom paragraph (1)(b) to (g) applies must notify the Privy Council and the Council in writing of that fact as soon as the person becomes aware of it.
3
Any member or employee of the Council may notify the Privy Council if they are of the view that the Privy Council may need to exercise its functions under paragraph (1).
4
The chair shall notify the Privy Council if the chair is aware that —
a
a member has become, or may be about to become, a person to whom paragraph (1)(b) to (g) applies; and
b
that member has not notified the Privy Council in writing of that fact and the chair is not satisfied that the member will do so immediately.
Suspension of members from office
7
1
The Privy Council may suspend a member from office by a notice in writing served on the member —
a
if the Privy Council has reasonable grounds for suspecting that the member has become a person to whom article 6(1)(b)(ii) to (d) applies, for the purposes of determining whether or not the member has become such a person;
b
while the Privy Council is considering whether or not it is satisfied as to the matters set out in article 6(1)(g) to (k);
c
if the member is subject to any investigation or proceedings concerning the member’s fitness to practise by —
i
any licensing body, or
ii
the Council,
and the Privy Council is satisfied that it would not be appropriate for the member to continue to participate in proceedings of the Council while the investigation or proceedings concerning the member’s fitness to practise is or are ongoing;
d
if the member is subject to any investigation or proceedings concerning whether the member’s entry in the register was fraudulently procured or incorrectly made and the Privy Council is satisfied that it would not be appropriate for the member to continue to participate in proceedings of the Council while the investigation or proceedings is or are ongoing; or
e
the member is a responsible officer of a business registrant that is subject to any investigation or proceedings concerning the business registrant’s fitness to carry on business as an optometrist or dispensing optician, or both, by the Council, and the Privy Council is satisfied that it would not be appropriate for the member to continue to participate in proceedings of the Council while the investigation or proceedings is or are ongoing;
f
if the member is subject to any investigation or proceedings in the United Kingdom relating to a criminal offence, or elsewhere than in the United Kingdom relating to an offence which, if committed in any part of the United Kingdom, would constitute a criminal offence, and —
i
either —
aa
the investigation or proceedings relate to an offence involving dishonesty or deception, or
bb
the final outcome of the investigation or proceedings may be that the person is sentenced to a term of imprisonment or detention, and
ii
the Privy Council is satisfied that it would not be appropriate for the member to continue to participate in proceedings of the Council while the investigation or proceedings is or are ongoing.
2
The Privy Council shall suspend a registrant member from office by a notice in writing served on the member if the member is the subject of an order under section 13I or 13L of the Act (power to order immediate suspension etc. after a finding of impairment of fitness to practise, and interim orders).
3
The notice in writing under paragraph (1) or (2) shall set out the reasons for the suspension and the duration of the period of suspension, which shall (in the first instance) not be for more than 6 months.
4
The Privy Council may stay its consideration under paragraph (1) of whether or not to suspend a member while the Council consider whether or not to suspend the member provisionally under standing orders of the Council.
5
If a member has been suspended provisionally under standing orders of the Council —
a
the Council shall notify the Privy Council in writing of the provisional suspension as soon as is reasonably practicable; and
b
the Privy Council shall consider the matter with a view to determining whether or not to suspend the member under paragraph (1) or to remove the member under article 6(1).
6
If after considering the matter under paragraph (5)(b), the Privy Council decides not to suspend the member, and not to remove the member from office, the Council must terminate their provisional suspension of the member under their standing orders.
7
The Privy Council —
a
may at any time review a suspension of a member by it; and
b
shall review any suspension of a member by it after 3 months from the start of the period of suspension, if requested to do so by the suspended member.
8
Following a review, the Privy Council may —
a
terminate the suspension;
b
if that review is within 3 months of the end of a period of suspension, extend the suspension for a further period of up to 6 months from the date on which the suspension would otherwise come to an end.
9
The Privy Council shall notify the suspended member in writing of the outcome of any review and that notice shall include the reasons for any decision taken.
PART 3 Chair of the Council
Appointment, term of office and cessation of office of the chair
8
1
The Privy Council shall, as one of its functions relating to the appointment of members of the Council, appoint a lay member of the Council to be the chair of the Council.
2
The Privy Council may appoint a person to be chair of the Council —
a
when it appoints that person to be a member of the Council; or
b
whom it has already appointed as a member of the Council.
3
The term of office of a member of the Council as chair is to be determined by the Privy Council on appointment of the member as chair, but it shall be for a period that is no longer than the period between the chair’s date of appointment as chair and the date on which the chair’s term of office as a member is due to expire (irrespective of whether or not they are thereafter reappointed as a member).
4
A member serving as chair shall cease to be chair —
a
on ceasing to be a member;
b
if the member resigns as chair, which the member may do at any time by a notice in writing to the Council;
c
if the member’s membership of the Council is suspended by the Privy Council; or
d
if a majority of the Council, excluding the chair (but not simply a majority at a quorate meeting), votes to terminate the member’s appointment as chair.
Transitional arrangements in respect of the first chair of the new Council as constituted on 1st April 2009
9
1
Notwithstanding article 8(1) to (3), the person who was chairman of the Council on 31st March 2009 shall, if reappointed to serve as a member of the Council from 1st April 2009, be appointed by the Privy Council to serve as the chair of the Council as constituted on 1st April 2009 for a term of four years.
2
As regards any person so appointed, notwithstanding article 3(3), for the purposes of the computation of years under article 3(2), service as a member of the Council before 1st April 2009 is to be discounted, unless before 1st April 2009 that person has served on the Council for more than six months.
Deputising arrangements in respect of the chair
10
1
Subject to paragraph (2), if, for any reason, the chair is absent from a meeting of the Council, the members who are present at that meeting shall nominate one of their number to serve as chair at that meeting.
2
If, for any reason —
a
the Council is on notice that their chair is likely —
i
to be absent for more than one meeting of the Council, or
ii
to be unavailable to perform the duties of a chair for more than one month; or
b
the office of chair is vacant,
the Council may nominate a member (“deputy chair”) to serve as chair during the absence or unavailability of the chair or the vacancy.
3
A member serving as deputy chair shall cease to be deputy chair —
a
in the case of —
i
the absence or unavailability of the chair, on the date which the chair notifies the General Council in writing as the date on which they are able to resume their duties, or
ii
the office of chair being vacant, once the vacancy is filled;
b
if the member ceases to be a member;
c
if the member resigns as deputy chair, which the member may do at any time by a notice in writing to the Council;
d
if the member’s membership of the Council is provisionally suspended by the Council or suspended by the Privy Council; or
e
if the Council votes (by a majority at a quorate meeting) to terminate the member’s appointment as deputy chair.
PART 4 Proceedings of the Council
Quorum of the Council
11
The quorum of the Council shall be 7.
Effect of vacancies etc. on the validity of proceedings
12
1
The validity of any proceedings of the Council shall not be affected by —
a
any vacancy among the members of the Council;
b
any defect in the appointment of a member of the Council;
c
a member whom the Privy Council must remove from the Council under article 6(1)(b) to (g) participating in the proceedings;
d
a member whom the Privy Council has removed under article 6(1) having participated in the proceedings; or
e
a member who has been provisionally suspended by the Council under their standing orders or suspended by the Privy Council under article 7(1) or (2) having participated in the proceedings.
2
Notwithstanding paragraph (1)(c), a member whom the Privy Council must remove from the Council under article 6(1)(b) to (g) is not entitled to participate in proceedings of the Council, pending the member’s removal from the Council by the Privy Council.
Judith Simpson
Clerk of the Privy Council


text:
PART 1 Introduction
Citation, commencement and interpretation
1
1
This Order may be cited as the Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2009 and comes into force seven days after the day on which it is made.
2
In this Order —
“ the Act ” means the Safeguarding Vulnerable Groups Act 2006;
“the 1999 Act ” means the Protection of Children Act 1999 ;
“the 2000 Act ” means the Care Standards Act 2000 ;
“the 2002 Act ” means the Education Act 2002 ;
“the relevant period” means the period starting on the day on which this Order comes into force and ending on the day on which section 3 of the Act comes into force for all purposes.
PART 2 Consideration of cases
Consideration of cases arising before the relevant period
2
1
The Secretary of State must refer a person (X) to IBB if each of the following conditions is satisfied.
2
The first condition is that before the start of the relevant period —
a
X has been referred to the Secretary of State by virtue of a provision specified in paragraph (5), or
b
information relating to X has been provided to the Secretary of State or the Welsh Ministers in accordance with a provision specified in paragraph (6).
3
The second condition is that X is not provisionally included in the list kept under —
a
section 1 of the 1999 Act, or
b
section 81 of the 2000 Act.
4
The third condition is that before the start of the relevant period the Secretary of State has not sent a notice to X inviting X to make representations as to why X should not be —
a
included in the list kept under section 1 of the 1999 Act;
b
included in the list kept under section 81 of the 2000 Act;
c
made subject to a direction under section 142 of the 2002 Act.
5
The provisions are —
a
section 2 , 2A or 2D of the 1999 Act;
b
section 82, 83 or 84 of the 2000 Act.
6
The provisions are —
a
regulation 4 or 6 of the Education (Supply of Information) (Wales) Regulations 2003 ;
b
regulation 4 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 .
Consideration of cases arising during the relevant period
3
1
This article applies during the relevant period.
2
Paragraph (3) applies if, by virtue of a provision specified in paragraph (13), a person must or may —
a
refer a person to the Secretary of State;
b
provide information relating to a person to the Secretary of State.
3
The referral is to be made, or the information provided, to IBB instead of to the Secretary of State.
4
Accordingly, a requirement in any enactment or subordinate legislation that the event specified in paragraph (5) be notified to a person also applies to a referral made to IBB in accordance with paragraph (3).
5
The event is the referral of a person to the Secretary of State by virtue of a provision specified in paragraph (13).
6
The Welsh Ministers must refer to IBB any information that they receive, in accordance with regulation 4 or 6 of the Education (Supply of Information) (Wales) Regulations 2003, on a ground —
a
that a person is considered to be unsuitable to work with children;
b
relating to the person’s health where a relevant issue is raised.
7
In paragraph (6) “relevant issue” has the same meaning as in regulation 3 of those Regulations.
8
In relation to a person in relation to whom information is provided to IBB in accordance with paragraph (3), Schedule 1 to the Education (Prohibition from Teaching or Working with Children) Regulations 2003 has effect as if —
a
in paragraph 7 of Part 1, for “of the Secretary of State’s functions under section 142 of the 2002 Act” there were substituted “by the Independent Barring Board established under section 1 of the Safeguarding Vulnerable Groups Act 2006 of its functions under Schedule 3 to that Act”, and
b
in paragraph 7 of Part 2, for “of the Secretary of State’s functions under section 142 of the 2002 Act” there were substituted “by the Independent Barring Board established under section 1 of the Safeguarding Vulnerable Groups Act 2006 of its functions under Schedule 3 to that Act”.
9
Subject to paragraph (12), section 2B of the 1999 Act and section 85 of the 2000 Act must be ignored.
10
Paragraph (11) applies if it appears to the Secretary of State that a person who held a relevant inquiry has found a person guilty of relevant misconduct.
11
The Secretary of State must refer the person to IBB unless the Secretary of State is satisfied that IBB —
a
is considering the case of the person, and
b
is aware of the relevant misconduct.
12
In paragraphs (10) and (11) “relevant inquiry” and “relevant misconduct” have the same meaning as in —
a
section 2B of the 1999 Act;
b
section 85 of the 2000 Act.
13
The provisions are —
a
sections 2, 2A and 2D of the 1999 Act;
b
sections 82, 83 and 84 of the 2000 Act;
c
regulation 4 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, as modified by this Order.
Functions under section 142 of the Education Act 2002 during the relevant period
4
1
This article applies during the relevant period.
2
Subject to paragraphs (3) to (5), the following provisions in section 142 of the 2002 Act must be ignored —
a
in subsection (2), paragraphs (a) to (c);
b
subsection (3);
c
in subsection (4), paragraphs (a), (b), (d) and (e).
3
Paragraph (2) does not apply in relation to a person (X) where, before the start of the relevant period, the Secretary of State or the Welsh Ministers —
a
had given X the right to make representations, or
b
had otherwise exercised functions under section 142 of the 2002 Act in relation to X.
4
Paragraph (2) does not apply for the purposes of article 6.
5
Paragraph (2) does not apply for the purposes of construing a reference in any enactment or subordinate legislation to work to which section 142 of the 2002 Act applies.
6
The Education (Prohibition from Teaching or Working with Children) Regulations 2003 have effect as if —
a
in regulation 4, paragraphs (1)(a)(ii), (2)(a)(ii) and (3) were omitted, and
b
in paragraph 12 of Part 1 of Schedule 2, for “an offence if he has been”, there were substituted “an offence if he does not satisfy any of the criteria prescribed for the purposes of paragraph 1 or 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 and he has been”.
Consideration by IBB
5
1
For the purposes of this Order, Schedule 3 to the Act has effect subject to the following modifications.
2
In paragraph 1, for sub-paragraphs (2) and (3) substitute —
2
If IBB is satisfied that this paragraph applies to the person it must include the person in the children’s barred list.
.
3
In paragraph 2, for sub-paragraphs (2) and (3) substitute —
2
If IBB is satisfied that this paragraph applies to the person it must —
a
include the person in the children’s barred list;
b
give the person an opportunity to make representations as to why he should be removed from the children’s barred list.
.
4
In paragraph 3(4), for the words “, having considered whether to make a disqualification order, decided not to” substitute “considered whether to make a disqualification order”.
5
In paragraph 7, for sub-paragraphs (2) and (3) substitute —
2
If IBB is satisfied that this paragraph applies to the person it must include the person in the adults’ barred list.
.
6
In paragraph 8, for sub-paragraphs (2) and (3) substitute —
2
If IBB is satisfied that this paragraph applies to the person it must —
a
include the person in the adults’ barred list;
b
give the person an opportunity to make representations as to why he should be removed from the adults’ barred list.
.
Effect of listing by IBB: children
6
1
This article applies if IBB, in exercise of its functions under this Order, includes a person (X) in the children’s barred list.
2
Subject to paragraph (4) X must be treated for all purposes as if X —
a
is included in the list maintained under section 1 of the 1999 Act;
b
is subject to a direction under section 142 of the 2002 Act.
3
Accordingly, a reference in any enactment or subordinate legislation to a person included in that list or subject to such a direction includes a reference to a person included in the children’s barred list.
4
Paragraphs (2) and (3) do not apply for the purposes of —
a
section 1(3) or 4 of the 1999 Act;
b
section 144 of the 2002 Act;
c
article 2 or 3 of the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 .
Effect of listing by IBB: adults
7
1
This article applies if IBB, in exercise of its functions under this Order, includes a person (X) in the adults’ barred list.
2
Subject to paragraph (4) X must be treated for all purposes as if X was included in the list kept under section 81 of the 2000 Act.
3
Accordingly, a reference in any enactment or subordinate legislation to a person included in that list includes a reference to a person included in the adults’ barred list.
4
Paragraphs (2) and (3) do not apply for the purposes of —
a
section 81(3), 86 or 87 of the 2000 Act;
b
article 4 of the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008.
Information provided to IBB
8
1
This article applies for the purpose of IBB’s functions under this Order.
2
A person who holds records of convictions or cautions for the use of police forces generally must make those records available to IBB.
3
In its consideration as to whether a person should be included in the children’s barred list IBB shall consider the information specified in paragraph (4).
4
The information is any information that it receives in relation to the person from whatever source or of whatever nature.
5
In its consideration as to whether a person should be included in the adults’ barred list IBB shall consider the information specified in paragraph (6).
6
The information is any information that —
a
it receives by virtue of article 3(3) in its application to the provisions set out in article 3(13)(b);
b
it has considered in relation to its consideration as to whether the person should be included in the children’s barred list.
7
Paragraphs (3) and (5) do not, without more, require IBB to give a person the opportunity to make representations as to why that person should not be included in a barred list.
Information provided by IBB
9
1
IBB may provide to either of the persons specified in paragraph (2) any information specified in paragraph (3).
2
The persons are —
a
the Secretary of State for the purposes of his functions under the Teachers’ Pensions Regulations 1997 , Part V of the Police Act 1997 and article 10;
b
the Scottish Ministers for the purposes of their functions under Part V of the Police Act 1997.
3
The information is —
a
information provided to IBB under paragraph 20 of Schedule 3 to the Act;
b
the fact that a person is included in a barred list under the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008;
c
the fact that a person is included in a barred list otherwise than as described in sub-paragraph (b);
d
the fact that IBB is considering including a person in a barred list;
e
the personal details of any person referred to in sub-paragraph (b), (c) or (d);
4
In paragraph (3) “personal details” includes the name (including any former name or alias), address, gender and date of birth of a person together with such further details as IBB consider are necessary to identify the person in question.
5
IBB may, at the request of a person (X) who meets the requirement specified in paragraph (7), inform that person whether a person (Y) falls within paragraph (6).
6
Y falls within this paragraph if Y is —
a
included in the list kept under section 1 of the 1999 Act;
b
subject to a direction under section 142 of the 2002 Act;
c
included in a barred list.
7
The requirement is that X satisfies IBB that X has a legitimate interest in knowing whether Y falls within paragraph (6).
8
If IBB —
a
knows or thinks that a person appears on the register of teachers maintained under section 3 of the Teaching and Higher Education Act 1998 , and
b
becomes aware of relevant information relating to that person,
it must provide that information to the General Teaching Council for England or General Teaching Council for Wales , as the case may be.
9
In paragraph (8) “relevant information” is information which —
a
relates to the protection of children or vulnerable adults in general, or
b
is relevant to the exercise of any function of the General Teaching Council for England or the General Teaching Council for Wales,
and includes information specified in paragraph (3).
Information provided by the Secretary of State
10
1
The Secretary of State may, at the request of a person (X) who meets the requirement specified in paragraph (2), inform that person whether a person (Y) falls within article 9(6).
2
The requirement is that X satisfies the Secretary of State that X has a legitimate interest in knowing whether Y falls within article 9(6).
PART 3 Supplementary and Consequential Provision
Application of articles 12 to 14
11
1
Articles 12 to 14 apply in relation to a person falling within paragraph (2).
2
A person falls within this paragraph if —
a
the person has been referred to IBB in accordance with article 2 or 3(3);
b
information relating to the person has been provided to IBB in accordance with article 3(3).
Teachers’ pensions - entitlement to payment of retirement benefits
12
1
The Teachers’ Pensions Regulations 1997 (“the 1997 Regulations ”) have effect subject to the provisions of this article.
2
In regulation E4 Case C is met if the requirements of paragraph (4)(a) to (d) of that regulation are met and —
a
the Secretary of State has notified the person in writing that the requirements specified in paragraphs (3) and (4) below are met, or
b
the requirement specified in paragraph (7) below is met.
3
The requirement is that IBB has not included, and is not considering including, the person in a barred list.
4
The requirement is that neither the General Teaching Council for England nor the General Teaching Council for Wales has made a prohibition order in relation to the person on the grounds —
a
of unacceptable professional conduct, or
b
that the person has been convicted (at any time) of a relevant offence.
5
The General Teaching Council for England and the General Teaching Council for Wales must, at the request of the Secretary of State, inform the Secretary of State whether they have made a prohibition order in relation to a particular person on the grounds —
a
of unacceptable professional conduct, or
b
that the person has been convicted (at any time) of a relevant offence.
6
In paragraphs (4) and (5) “unacceptable professional misconduct”, “relevant offence” and “prohibition order” have the same meaning as in Schedule 2 to the Teaching and Higher Education Act 1998.
7
The requirement is that IBB has included, or is considering including, the person in a barred list but the Secretary of State is satisfied that there are exceptional circumstances relating to the person which make it appropriate that the person should fall within Case C.
8
Accordingly, in Case C the entitlement takes effect —
a
where, immediately before the person became incapacitated the person was in excluded employment, on the day after the last day of the person’s excluded employment; and
b
in any other case, as soon as the person falls within the Case or as soon as the person would have fallen within the Case had there not been a requirement that the Secretary of State notify that person that the requirements specified in paragraphs (3) and (4) are met,
or (in all cases), if later, 6 months before the date of the last of any medical reports considered by the Secretary of State in determining under regulation H9 of the 1997 Regulations that the person had become incapacitated.
9
In paragraph (8) “excluded employment” has the same meaning as in the 1997 Regulations.
Modifications to the General Teaching Council for England (Disciplinary Functions) Regulations 2001
13
1
The General Teaching Council for England (Disciplinary Functions) Regulations 2001 have effect subject to the modifications set out in this article.
2
Regulation 9 has effect as if —
a
for paragraph (1)(b) there were substituted —
b
the Independent Barring Board established under section 1 of the Safeguarding Vulnerable Groups Act 2006 (“IBB”) has included or is considering whether to include a registered teacher in either of the barred lists maintained under section 2 of that Act
;
b
in paragraph (3), for “the Secretary of State for his consideration” there were substituted “IBB”;
c
in paragraph (4), for “the Secretary of State for his consideration” there were substituted “IBB”;
d
in paragraph (5), for “the Secretary of State for him to consider the further exercise of his own powers” there were substituted “IBB”.
Modifications to the General Teaching Council for Wales (Disciplinary Functions) Regulations 2001
14
1
The General Teaching Council for Wales (Disciplinary Functions) Regulations 2001 have effect subject to the modifications set out in this article.
2
The English text of regulation 9 has effect as if for paragraph (1)(b) there were substituted —
b
the Independent Barring Board, established under section 1 of the Safeguarding Vulnerable Groups Act 2006, has included, or is considering whether to include, a registered teacher in either of the barred lists maintained under section 2 of that Act
.
3
The Welsh text of regulation 9 has effect as if for paragraph (1)(b) there were substituted —
b
bod y Bwrdd Gwahardd Annibynnol, a sefydlwyd o dan adran 1 o Ddeddf Diogelu Grwpiau Hawdd eu Niweidio 2006, wedi cynnwys, neu ei fod yn ystyried a ddylid cynnwys, athro cofrestredig neu athrawes gofrestredig yn unrhyw un o’r rhestrau gwahardd a gynhelir o dan adran 2 o’r Ddeddf honno
.
Delyth Morgan
Parliamentary Under Secretary of State
Department for Children, Schools and Families
13th January 2009


text:
Citation, application and commencement
1
These Regulations —
a
may be cited as the Hazardous Waste (England and Wales) (Amendment) Regulations 2009;
b
apply in England; and
c
come into force on 6th April 2009.
Amendment to the Hazardous Waste (England and Wales) Regulations 2005
2
The Hazardous Waste (England and Wales) Regulations 2005 are amended as follows.
Amendment of regulation 5 (general interpretation)
3
In regulation 5(1), for the definition of “premises”, substitute —
“premises” includes land and any ship and any other means of transport from which a mobile service is operated;
.
Amendment of regulation 12 (general application of Parts 4 to 11)
4
For regulation 12(2), substitute —
2
Except as provided in regulations 13 (asbestos waste) and 14 (separated domestic fractions), these Regulations do not apply to domestic waste.
.
Replacement of regulation 13 (asbestos waste)
5
For regulation 13, substitute —
Asbestos waste
13
1
These Regulations apply to asbestos waste whether or not it is domestic waste.
2
Nothing in these Regulations imposes obligations on an occupier of domestic premises in relation to asbestos waste produced on those premises.
3
A contractor who is engaged to carry out any works at domestic premises which produce asbestos waste or which relate to asbestos waste is to be treated as the producer of the asbestos waste, and, where the contractor does not engage another person as consignor, as the consignor of the asbestos waste.
.
Replacement of regulation 14 (separately collected domestic fractions)
6
For regulation 14, substitute —
Separated domestic fractions
14
1
This regulation applies to any separated domestic fraction, that is to say, hazardous waste which —
a
is domestic waste; and
b
has been separated from other domestic waste.
2
Nothing in these Regulations imposes obligations on an occupier of domestic premises in relation to separated domestic fractions which have been produced at those premises.
3
Part 4 of these Regulations applies to separated domestic fractions from the time at which the waste is accepted for collection, disposal or recovery —
a
from the domestic premises at which the waste was produced; or
b
at a site for the reception of domestic waste to which the separated domestic fractions are taken by an occupier of domestic premises.
4
After separated domestic fractions have been removed from the premises at which the waste was produced and taken to other premises for collection, disposal or recovery, any establishment or undertaking which accepts the separated domestic fractions for collection, disposal or recovery must be treated from the time at which the waste is so accepted as the producer of the waste for the purposes of these Regulations.
.
Insertion of regulation 14A (hazardous waste produced at shop premises)
7
After regulation 14, insert —
Hazardous waste produced at shop premises
14A
1
Hazardous waste produced at shop premises by customers of the occupier shall be treated as being produced by the occupier for the purposes of these Regulations.
2
For the purposes of this regulation, “shop premises” has the meaning given by section 1(3) of the Offices, Shops and Railway Premises Act 1963 .
.
Amendment of regulation 21 (requirement to notify premises)
8
In regulation 21(1), after “produced at,”, insert “collected at,”.
Replacement of regulation 23 (exemption from requirement to notify)
9
For regulation 23, substitute —
Exemption from the requirement to notify
23
1
Exempt premises need not be notified to the Agency pursuant to this Part.
2
In these Regulations, premises are exempt premises if they comply with the condition in paragraph (3) and with either of the conditions in paragraphs (4) and (5).
3
The condition in this paragraph is that no hazardous waste is removed from the premises by any person other than —
a
a carrier registered under the Control of Pollution (Amendment) Act 1989 ; or
b
a carrier exempt from the requirement to register under that Act.
4
The condition in this paragraph is that the premises are a ship.
5
The condition in this paragraph is that the qualifying limitation applies.
.
Amendment of regulation 26 (common provisions on notifications)
10
For regulation 26(8), substitute —
8
The Agency must inform on request a person who is the holder of hazardous waste or who carries on the business of consigning or collecting hazardous waste whether any premises from which that person proposes to remove, cause to be removed or transport any hazardous waste are notified premises, and if so, the particulars held by the Agency concerning —
a
the address of the premises, including the postcode;
b
the premises code;
c
the name of the holder of the premises code; and
d
the date of expiry of the premises code, being the end of the period of notification.
.
Replacement of regulation 30 (the qualifying limitation)
11
For regulation 30, substitute —
The qualifying limitation
30
1
The qualifying limitation for —
a
a mobile service is that the total aggregated quantity of hazardous waste produced at, collected at, or removed from any one set of related premises in the course of that service is less than 500kg in any period of twelve months; and
b
any exempt premises is that the total aggregated quantity of hazardous waste produced at, collected at, or removed from the premises is less than 500kg in any period of twelve months.
2
When calculating the total aggregated quantity, a given quantity of hazardous waste must not be counted against more than one of the activities in paragraph (1)(a) or (b).
.
Amendment of regulation 32 (general interpretation of Part 5)
12
In regulation 32 —
a
omit the following definitions —
“the 1963 Act”,
“office premises”,
“registered carrier”,
“shop premises”, and
“waste electrical and electronic equipment”; and
after the definition of “period of notification”, insert —
“premises code” has the meaning given by regulation 27(1);
“qualifying limitation” has the meaning given by regulation 30;
.
Amendment of regulation 42 (duty of consignee not accepting delivery)
13
In regulation 42 —
a
in paragraph (3)(a), for “indicate on Part E”, substitute “indicate, in the part headed “consignee’s certificate””;
b
in paragraph (6)(a), for “is entitled to carry on a registered exemption in respect of”, substitute “carries on an exempt waste operation for”; and
c
after paragraph (7), insert —
8
In this regulation, “exempt waste operation” has the meaning given in regulation 5 of the Environmental Permitting (England and Wales) Regulations 2007 .
.
Amendment of regulation 48 (records of disposal or recovery of hazardous waste by other means)
14
For regulation 48(3)(c), substitute —
c
the disposal or recovery method in respect of the waste by reference to the numbering and description applicable in accordance with Annex IIA or IIB of the Waste Directive; and
.
Amendment of regulation 49 (producers’, holders’ and consignors’ records)
15
In regulation 49(1), after the words “where different from the producer”, insert “or holder”.
Amendment of regulation 70 (fixed penalties)
16
In regulation 70(10), for “(8)”, substitute “(9)”.
Jane Kennedy
Minister of State
Department for Environment, Food and Rural Affairs
5th March 2009