Citation and commencement

1.—(1) This Order may be cited as the Secretary of State for Justice Order 2007.

(2) This Order comes into force on 22nd August 2007.

Interpretation

2.  In this Order—

(a)“instrument” includes, in particular, Royal Charters, Royal Warrants, Orders in Council, Letters Patent, judgments, decrees, orders, rules, regulations, schemes, bye-laws, awards, contracts and other agreements, memoranda and articles of association, certificates, deeds and other documents;

(b)a reference to the functions of a Minister under an enactment includes a reference to the functions of that Minister under an instrument having effect under that enactment.

Incorporation of the Secretary of State for Justice

3.—(1) The person who at the coming into force of this Order is the Secretary of State for Justice and any successor to that person is by that name a corporation sole.

(2) The corporate seal of the Secretary of State for Justice—

(a)is to be authenticated by the signature of a Secretary of State or a person authorised by a Secretary of State to act in that behalf, and

(b)is to be officially and judicially noticed.

(3) Every document purporting to be an instrument made or issued by the Secretary of State for Justice and to be—

(a)sealed with the corporate seal of that Secretary of State authenticated in the manner provided for by paragraph (2), or

(b)signed or executed by a person authorised by a Secretary of State to act in that behalf,

is to be received in evidence and to be deemed to be so made or issued without further proof, unless the contrary is shown.

(4) A certificate signed by the Secretary of State for Justice that an instrument purporting to be made or issued by—

(a)the Secretary of State for Justice, or

(b)the Secretary of State for Constitutional Affairs, or

(c)the Secretary of State for the Home Department,

was so made or issued is conclusive evidence of that fact.

(5) The Documentary Evidence Act 1868(2) applies in relation to the Secretary of State for Justice—

(a)as if references to regulations and orders included references to any document, and

(b)as if the officers mentioned in column 2 of the Schedule included any officer authorised to act on behalf of the Secretary of State.

Transfer of functions from Secretary of State etc.

4.—(1) The functions of the Secretary of State under the following enactments are transferred to the Lord Chancellor—

(a)in the Magistrates’ Courts Act 1980(3), section 125A(3)(a);

(b)in the Courts Act 2003(4), sections 70(2)(a), 72(3), 72A(4) and 73(1);

(c)in the Criminal Justice Act 2003(5), sections 167(1)(b) and (c) and (9), 168(1)(c) and (5), 170(8)(b)(ii), 171(3)(a) and 173.

(2) The functions of the Secretary of State under the following enactments are transferred to the Secretary of State for Justice—

(a)in the Domestic Violence, Crime and Victims Act 2004(6), sections 32, 33, 48, 49, 53, 54 and 55(1) to (6);

(b)in Schedule 8 to that Act, paragraphs 1, 2, 8 and 9.

(3) The function of the Secretary of State for the Home Department under paragraph 1 of Schedule 1 to the Church Commissioners Measure 1947(7) is transferred to the Lord Chancellor.

Transfer of functions from Lord Chancellor

5.—(1) The function of the Lord Chancellor under section 167(1)(c) of the Criminal Justice Act 2003 is transferred to the Secretary of State.

(2) The functions of the Lord Chancellor under the following enactments are transferred to the Secretary of State for the Home Department—

(a)in the Domestic Violence, Crime and Victims Act 2004, sections 33, 48, 49, 53, 54 and 55;

(b)in Schedule 8 to that Act, paragraphs 1, 2, 8 and 9.

Transfer of property etc. to Secretary of State for Justice

6.—(1) There are transferred to the Secretary of State for Justice—

(a)all property which, by virtue of section 35 of the Prison Act 1952(8), is vested in the Secretary of State at the coming into force of this Order, and

(b)all rights and liabilities to which the Secretary of State is entitled or subject at that time in connection with that property.

(2) There are transferred to the Secretary of State for Justice all property, rights and liabilities not falling within paragraph (1) to which the Secretary of State for the Home Department is entitled or subject at the coming into force of this Order in connection with—

(a)the functions transferred by article 4(2), or

(b)the functions that were immediately before 9th May 2007 entrusted to the Secretary of State for the Home Department and that have been entrusted to the Secretary of State for Justice before the making of this Order.

(3) There are transferred to the Secretary of State for Justice all property, rights and liabilities to which the Secretary of State for Constitutional Affairs is entitled or subject at the coming into force of this Order.

Supplementary

7.—(1) This article applies to—

(a)the functions transferred by article 4(1);

(b)the functions transferred by article 4(2);

(c)the function transferred by article 4(3);

(d)the function transferred by article 5(1);

(e)the functions transferred by article 5(2);

(f)anything transferred by article 6(1);

(g)anything transferred by article 6(2);

(h)the functions mentioned in article 6(2)(b);

(i)anything transferred by article 6(3);

(j)the functions that were immediately before 9th May 2007 entrusted to the Secretary of State for Constitutional Affairs and that have been entrusted to the Secretary of State for Justice before the making of this Order.

(2) In this article—

(a)“the transferor” means—

(i)in relation to anything within paragraph (1)(a), (b) or (f), the Secretary of State;

(ii)in relation to anything within paragraph (1)(c), (g) or (h), the Secretary of State for the Home Department;

(iii)in relation to anything within paragraph (1)(d) or (e), the Lord Chancellor;

(iv)in relation to anything within paragraph (1)(i) or (j), the Secretary of State for Constitutional Affairs;

(b)“the transferee” means—

(i)in relation to anything within paragraph (1)(a) or (c), the Lord Chancellor;

(ii)in relation to anything within paragraph (1)(b), (f), (g), (h), (i) or (j), the Secretary of State for Justice;

(iii)in relation to anything within paragraph (1)(d), the Secretary of State;

(iv)in relation to anything within paragraph (1)(e), the Secretary of State for the Home Department.

(3) This Order does not affect the validity of anything done (or having effect as if done) by or in relation to any of the transferors before the coming into force of this Order.

(4) Anything (including legal proceedings) which, at the coming into force of this Order, is in the process of being done by or in relation to the transferor may, so far as it relates to anything to which this article applies, be continued by or in relation to the transferee.

(5) Anything done (or having effect as if done) by or in relation to the transferor in connection with anything to which this article applies has effect, so far as necessary for continuing its effect after the coming into force of this Order, as if done by or in relation to the transferee.

(6) Documents or forms printed for use in connection with functions to which this article applies may be used in connection with those functions even though they contain, or are to be read as containing, references to the transferor, or to the department or an officer of the transferor; and for the purposes of the use of any such documents or forms after the coming into force of this Order, those references are to be read as references to the transferee, or to the department or an officer of the transferee (as appropriate).

(7) Any enactment or instrument passed or made before the coming into force of this Order has effect, so far as is necessary for the purposes of or in consequence of the transfer or entrusting to the transferee of anything to which this article applies, as if references to (and references which are to be read as references to) the transferor, or to the department or an officer of the transferor, were or included references to the transferee, or to the department or an officer of the transferee (as appropriate).

Consequential amendments

8.  The Schedule (consequential amendments) has effect.

Article 8

SCHEDULECONSEQUENTIAL AMENDMENTS

PART 1ACTS AND MEASURES

Church Commissioners Measure 1947 (No. 2)

1.  In paragraph 1(a) of Schedule 1 to the Church Commissioners Measure 1947(9), for “Secretary of State for the Home Department” substitute “Lord Chancellor”.

Prison Act 1952 (c. 52)

2.—(1) Section 35 of the Prison Act 1952(10) is amended as follows.

(2) In subsection (1), after “Secretary of State” (in both places) insert “for Justice”.

(3) Omit subsections (2) to (4).

Public Records Act 1958 (c. 51)

3.  In Schedule 1 to the Public Records Act 1958, in Part 1 of the Table at the end of paragraph 3(11), for “Department for Constitutional Affairs” substitute “Ministry of Justice”.

Parliamentary Commissioner Act 1967 (c. 13)

4.—(1) The Parliamentary Commissioner Act 1967 is amended as follows.

(2) In section 5(6)(12), for “Department for Constitutional Affairs” substitute “Ministry of Justice”.

(3) In Schedule 2(13)—

(a)omit “Department for Constitutional Affairs.”;

(b)insert at the appropriate place “Ministry of Justice.”;

(c)omit the note relating to the Department for Constitutional Affairs;

(d)after the note relating to the Ministry of Defence insert—

“Ministry of Justice

The reference to the Ministry of Justice includes the Public Trustee.”

Magistrates’ Courts Act 1980 (c. 43)

5.  In section 125A(3)(a) of the Magistrates’ Courts Act 1980(14), omit “and the Secretary of State, acting jointly”.

Criminal Justice and Public Order Act 1994 (c. 33)

6.  In section 100(4) of the Criminal Justice and Public Order Act 1994, after “Secretary of State” (in both places) insert “for Justice”.

Regulation of Investigatory Powers Act 2000 (c. 23)

7.  In Part 1 of Schedule 1 to the Regulation of Investigatory Powers Act 2000(15), before paragraph 13A insert—

“13ZA.  The Ministry of Justice”.

Courts Act 2003 (c. 39)

8.—(1) The Courts Act 2003 is amended as follows.

(2) In section 70(16)—

(a)in subsection (2)(a), for “Secretary of State” substitute “Lord Chancellor”;

(b)in subsection (3), after “subsection (1A),” insert “other than a person falling within subsection (2)(a),”.

(3) In section 72(3)(17), omit “, with the concurrence of the Secretary of State,”.

(4) Omit section 72A(4)(18).

(5) In section 73(1)(19), omit “with the concurrence of the Secretary of State and”.

Criminal Justice Act 2003 (c. 44)

9.—(1) The Criminal Justice Act 2003 is amended as follows.

(2) In section 167(20)—

(a)in subsection (1)—

(i)in paragraph (b), omit “the Secretary of State and”;

(ii)in paragraph (c), for “Secretary of State” substitute “Lord Chancellor” and for “Lord Chancellor” substitute “Secretary of State”;

(b)in subsections (4), (6) and (9), for “Secretary of State” substitute “Lord Chancellor”.

(3) In section 168(21), in subsections (1)(c) and (5), for “Secretary of State” substitute “Lord Chancellor”.

(4) In section 170(8)(b)(ii), omit “, after consultation with the Secretary of State,”.

(5) In section 171(3)(a), omit “the Secretary of State and”.

(6) In section 173—

(a)in subsections (1) and (3), for “Ministers” substitute “Lord Chancellor”;

(b)in subsection (5), omit the definition of “the Ministers”.

Domestic Violence, Crime and Victims Act 2004 (c. 28)

10.—(1) The Domestic Violence, Crime and Victims Act 2004 is amended as follows.

(2) In sections 32, 33, 48, 49, 53, 54 and 55(1) to (6), after “Secretary of State” (in each place) insert “for Justice”.

(3) In sections 33, 48, 49, 53, 54 and 55, for “Lord Chancellor” (in each place) substitute “Secretary of State for the Home Department”.

(4) In Schedule 8, in paragraphs 1, 2, 8 and 9—

(a)after “Secretary of State” (in each place) insert “for Justice”;

(b)for “Lord Chancellor” (in each place) substitute “Secretary of State for the Home Department”.

(5) In Schedule 9(22)—

(a)omit paragraph 1;

(b)after paragraph 8 insert—

“8A.  The Ministry of Justice.”

Constitutional Reform Act 2005 (c. 4)

11.  In Schedule 7 to the Constitutional Reform Act 2005(23), under the entry for the Courts Act 2003, insert at the appropriate place—

“Section 70(2)(a)”.

PART 2SUBORDINATE LEGISLATION

Courts-Martial Appeal Rules 1968 (S.I. 1968/1071)

12.  In rule 17(iv) of the Courts-Martial Appeal Rules 1968(24), for “the Home Department” substitute “Justice”.

Income Support (General) Regulations 1987 (S.I. 1987/1967)

13.—(1) The Income Support (General) Regulations 1987(25) are amended as follows.

(2) In Schedule 9, in paragraph 50(26), for “the Home Department” substitute “Justice”.

(3) In Schedule 10, in paragraph 40(27), for “the Home Department” substitute “Justice”.

Family Credit (General) Regulations 1987 (S.I. 1987/1973)

14.—(1) The Family Credit (General) Regulations 1987(28) are amended as follows.

(2) In Schedule 2, in paragraph 46(29), for “the Home Department” substitute “Justice”.

(3) In Schedule 3, in paragraph 42(30), for “the Home Department” substitute “Justice”.

Disability Working Allowance (General) Regulations 1991 (S.I. 1991/2887)

15.—(1) The Disability Working Allowance (General) Regulations 1991(31) are amended as follows.

(2) In Schedule 3, in paragraph 44, for “the Home Department” substitute “Justice”.

(3) In Schedule 4, in paragraph 41, for “the Home Department” substitute “Justice”.

Jobseeker’s Allowance Regulations 1996 (S.I. 1996/207)

16.—(1) The Jobseeker’s Allowance Regulations 1996(32) are amended as follows.

(2) In Schedule 7, in paragraph 49, for “the Home Department” substitute “Justice”.

(3) In Schedule 8, in paragraph 38, for “the Home Department” substitute “Justice”.

Housing Renewal Grants Regulations 1996 (S.I. 1996/2890)

17.—(1) The Housing Renewal Grants Regulations 1996(33) are amended as follows.

(2) In Schedule 3, in paragraph 44, for “the Home Department” substitute “Justice”.

(3) In Schedule 4, in paragraph 41, for “the Home Department” substitute “Justice”.

Regulation of Investigatory Powers (Designation of Public Authorities for the Purposes of Intrusive Surveillance) Order 2001 (S.I. 2001/1126)

18.—(1) The Regulation of Investigatory Powers (Designation of Public Authorities for the Purposes of Intrusive Surveillance) Order 2001 is amended as follows.

(2) In article 2, for “Home Office” substitute “Ministry of Justice”.

(3) In article 3(1), for “Home Office” (in both places) substitute “Ministry of Justice”.

Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2003 (S.I. 2003/3171)

19.—(1) Part I of the Schedule to the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2003(34) is amended as follows.

(2) In the entry for the Home Office(35), omit the entry (in columns (2), (3) and (4)) relating to the operational manager responsible for security and operations in a directly managed prison and the duty Governor in a directly managed prison.

(3) After the entry for the Home Office insert—

Regulation of Investigatory Powers (Communications Data) Order 2003 (S.I. 2003/3172)

20.—(1) Part I of Schedule 2 to the Regulation of Investigatory Powers (Communications Data) Order 2003(36) is amended as follows.

(2) In the entry for the Home Office(37), omit the entry (in columns (2), (3) and (4)) relating to the senior operational manager in a directly managed prison.

(3) After the entry for the Home Office insert—

Damages (Government and Health Service Bodies) Order 2005 (S.I. 2005/474)

21.  In Part 1 of the Schedule to the Damages (Government and Health Service Bodies) Order 2005—

(a)omit “Department for Constitutional Affairs”;

(b)after the entry relating to the Department for International Development insert—

“Ministry of Justice”.

Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (S.I. 2005/2966)

22.—(1) Schedule 2 to the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005(38) is amended as follows.

(2) Omit “The Secretary of State for Constitutional Affairs”.

(3) In the appropriate place insert—

“The Secretary of State for Justice”.

Housing Benefit Regulations 2006 (S.I. 2006/213)

23.—(1) The Housing Benefit Regulations 2006(39) are amended as follows.

(2) In Schedule 5, in paragraph 46, for “the Home Department” substitute “Justice”.

(3) In Schedule 6, in paragraph 42, for “the Home Office” substitute “Justice”.

Council Tax Benefit Regulations 2006 (S.I. 2006/215)

24.—(1) The Council Tax Benefit Regulations 2006(40) are amended as follows.

(2) In Schedule 4, in paragraph 47, for “the Home Department” substitute “Justice”.

(3) In Schedule 5, in paragraph 42, for “the Home Office” substitute “Justice”.

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes provision in connection with the establishment of the Ministry of Justice. It transfers to the Lord Chancellor certain functions of the Secretary of State, which were formerly entrusted to the Home Secretary and one function which was conferred on the Home Secretary. It transfers to the Secretary of State for Justice certain functions conferred on the Secretary of State at large. It also transfers certain functions from the Lord Chancellor to the Secretary of State at large or to the Home Secretary. Further, it makes supplemental provision in connection with (a) functions transferred under the order, (b) functions that were formerly entrusted to the Home Secretary and that have already been entrusted to the Secretary of State for Justice, and (c) functions that were formerly entrusted to the Secretary of State for Constitutional Affairs and that have already been entrusted to the Secretary of State for Justice.

The functions referred to in (b) are functions in relation to the National Offender Management Service (including prison and probation services) and the overall framework of criminal law and sentencing policy, subject to certain exceptions. These responsibilities were described in the Prime Minister’s written statement to Parliament dated 29th March 2007 (reported in Hansard (House of Commons) at columns 133 WS and 135 WS; available at www.parliament.uk). The functions referred to in (c) are all the functions of the Secretary of State for Constitutional Affairs as at 9th May 2007.

Article 3 provides for the incorporation of the Secretary of State for Justice as a corporation sole and makes provision in relation to that Secretary’s corporate seal and to the execution and certification of documents.

Article 4 transfers to the Lord Chancellor certain functions of the Secretary of State under the Magistrates’ Courts Act 1980, the Courts Act 2003 and the Criminal Justice Act 2003. It also transfers to the Secretary of State for Justice functions of the Secretary of State under the Domestic Violence, Crime and Victims Act 2004. Finally it transfers from the Home Secretary to the Lord Chancellor a function under the Church Commissioners Measure 1947.

Article 5 transfers from the Lord Chancellor to the Secretary of State a function under the Criminal Justice Act 2003. It also transfers to the Home Secretary certain secondary functions of the Lord Chancellor under the Domestic Violence, Crime and Victims Act 2004 (functions of being consulted and of receiving copies of a report).

Article 6 provides for the prison estate, as vested in the Secretary of State at the coming into force of the Order, to transfer to the Secretary of State for Justice. This article also makes general provision for the transfer of property, rights and liabilities consequential on the entrusting of functions formerly exercised by the Home Secretary to the Secretary of State for Justice. It also makes provision for the transfer of property, rights and liabilities consequential on the entrusting of functions formerly exercised by the Secretary of State for Constitutional Affairs to the Secretary of State for Justice.

Article 7 makes further supplemental provision in relation to (a) the transfer of functions under the order, (b) the entrusting to the Secretary of State for Justice of functions previously entrusted to the Home Secretary, and (c) the entrusting to the Secretary of State for Justice of functions previously entrusted to the Secretary of State for Constitutional Affairs.

Article 8 and the Schedule to the Order make consequential amendments to Acts of Parliament, Measures and subordinate legislation.

Nothing in this Order alters the functions of the National Assembly for Wales, the Scottish Ministers or the devolved authorities in Northern Ireland.