Constitutional Reform Bill [HL]

House of Lords

Session 2003 - 04
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Other Bills before Parliament

Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments
18

Lord Chief Justice and Heads of Division
53
Selection of Lord Chief Justice and Heads of Division
(1)
Only a person selected by the Commission may be recommended for
appointment as one of the following—
(a)
Lord Chief Justice;
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(b)
Master of the Rolls;
(c)
President of the Family Division;
(d)
Chancellor of the High Court;
(e)
President of the Queen’s Bench Division.
(2)
The Minister may request the Commission to select a person for the purposes
10
of subsection (1).
(3)
Before making a request under this section the Minister must consult the Lord
Chief Justice.
(4)
Subsection (3) does not apply if the office of Lord Chief Justice is vacant and
that is the office for which a selection is to be made.
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(5)
Sections 54 to 58 apply where the Minister makes a request under this section.
54
Selection process
(1)
On receiving a request the Commission must appoint a selection panel.
(2)
The panel must—
(a)
determine the selection process to be applied,
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(b)
apply the selection process, and
(c)
make a selection accordingly.
(3)
If practicable the panel must consult, about the exercise of its functions under
this section, the current holder of the office for which a selection is to be made.
(4)
A selection panel is a committee of the Commission.
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55
Selection panel
(1)
The selection panel must consist of the following—
(a)
the most senior England and Wales Supreme Court judge or his
nominee;
(b)
the participating judge;
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(c)
the Chairman of the Commission or his nominee;
(d)
one other lay member of the Commission designated by the Chairman
of the Commission.
(2)
Unless subsection (4) applies, the participating judge is the Lord Chief Justice
or his nominee
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(3)
Subsection (4) applies if—
(a)
the Lord Chief Justice is disqualified, or
(b)
there is no Lord Chief Justice.

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments
19

(4)
In those cases the most senior England and Wales Supreme Court judge must
designate a person (but not a person who is disqualified) as the participating
judge.
(5)
Only the following may be a nominee under this section or designated under
subsection (4)—
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(a)
an England and Wales Supreme Court judge,
(b)
a Head of Division, or
(c)
a Lord Justice of Appeal.
(6)
The following also apply to nominees under this section—
(a)
a person may not be a nominee if he is disqualified;
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(b)
a person may not be appointed to the panel as the nominee of more
than one person;
(c)
a person appointed to the panel otherwise than as a nominee may not
be a nominee.
(7)
The most senior England and Wales Supreme Court judge or his nominee is the
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chairman of the panel.
(8)
On any vote by the panel the chairman of the panel has an additional, casting
vote in the event of a tie.
(9)
A person is disqualified for the purposes of this section if—
(a)
he is the current holder of the office for which a selection is to be made,
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or
(b)
he is willing to be considered for selection.
(10)
In this section “England and Wales Supreme Court judge” means a judge of the
Supreme Court who has held high judicial office in England and Wales before
appointment to the Court.
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56
Report
(1)
After complying with section 54(2) the selection panel must submit a report to
the Minister.
(2)
The report must—
(a)
state who has been selected;
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(b)
contain any other information required by the Minister.
(3)
The report must be in a form approved by the Minister.
(4)
After submitting the report the panel must provide any further information the
Minister may require.
57
The Minister’s options
35
(1)
For each person selected under section 54 the Minister must do one of the
following—
(a)
make the recommendation for which the person was selected;
(b)
reject the selection;
(c)
require the selection panel to reconsider the selection.
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(2)
Where a person is selected following a rejection or reconsideration under
subsection (1) the Minister must do one of the following—

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments
20

(a)
make the recommendation for which the person was selected;
(b)
reject the selection, but only if it was made following a reconsideration
under subsection (1);
(c)
require the selection panel to reconsider the selection, but only if it was
made following a rejection under subsection (1).
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(3)
Where a person is selected following a rejection or reconsideration under
subsection (2) the Minister must make the recommendation for which the
person was selected.
(4)
If a selection is rejected or required to be reconsidered, the selection panel must
select a person in accordance with section 58.
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(5)
The Minister must give the selection panel reasons in writing for rejecting or
requiring reconsideration of any selection.
58
Selection following rejection or requirement to reconsider
(1)
If the Minister rejects a selection, the selection panel—
(a)
may not select the person rejected, and
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(b)
where the rejection is following reconsideration of a selection, may not
select the person (if different) whose selection it reconsidered.
(2)
If the Minister requires a selection to be reconsidered, the selection panel—
(a)
may select the same person or a different person, but
(b)
where the requirement is following a rejection, may not select the
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person rejected.
(3)
The selection panel must inform the Minister of the person selected following
a rejection or a requirement to reconsider.
(4)
Subsections (1) and (2) do not prevent a person being selected on a subsequent
request under section 53.
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Lords Justices of Appeal
59
Selection of Lords Justices of Appeal
(1)
Only a person selected by the Commission may be recommended for
appointment as a Lord Justice of Appeal.
(2)
The Minister may request the Commission to select a person or persons for the
30
purposes of subsection (1).
(3)
Before making a request the Minister must consult the Lord Chief Justice.
(4)
Sections 60 to 64 apply where the Minister makes a request under this section.
60
Selection process
(1)
On receiving a request the Commission must—
35
(a)
appoint a selection panel;
(b)
determine the selection process to be applied.
(2)
The panel must—
(a)
apply the selection process, and

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments
21

(b)
make a selection accordingly.
(3)
A selection panel is a committee of the Commission.
61
Selection panel
(1)
The selection panel must consist of the following—
(a)
the Lord Chief Justice or his nominee;
5
(b)
a Head of Division or Lord Justice of Appeal designated by the Lord
Chief Justice;
(c)
the Chairman of the Commission or his nominee;
(d)
one other lay member of the Commission designated by the Chairman
of the Commission.
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(2)
A nominee of the Lord Chief Justice must be a Head of Division or a Lord
Justice of Appeal.
(3)
A person may not be appointed to the panel if—
(a)
he is the current holder of the office for which a selection is to be made,
or
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(b)
he is willing to be considered for selection.
(4)
A person may not be appointed to the panel as the nominee of more than one
person.
(5)
A person appointed to the panel otherwise than as a nominee may not be a
nominee.
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(6)
The Lord Chief Justice or his nominee is the chairman of the panel.
(7)
On any vote by the panel the chairman of the panel has an additional, casting
vote in the event of a tie.
62
Report
(1)
After complying with section 60(2) the selection panel must submit a report to
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the Minister.
(2)
The report must—
(a)
state who has been selected;
(b)
contain any other information required by the Minister.
(3)
The report must be in a form approved by the Minister.
30
(4)
After submitting the report the panel must provide any further information the
Minister may require.
63
The Minister’s options
(1)
For each person selected under section 60 the Minister must do one of the
following—
35
(a)
make the recommendation for which the person was selected;
(b)
reject the selection;
(c)
require the selection panel to reconsider the selection.

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments
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(2)
Where a person is selected following a rejection or reconsideration under
subsection (1) the Minister must do one of the following—
(a)
make the recommendation for which the person was selected;
(b)
reject the selection, but only if it was made following a reconsideration
under subsection (1);
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(c)
require the selection panel to reconsider the selection, but only if it was
made following a rejection under subsection (1).
(3)
Where a person is selected following a rejection or reconsideration under
subsection (2) the Minister must make the recommendation for which the
person was selected.
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(4)
If a selection is rejected or required to be reconsidered, the selection panel must
select a person in accordance with section 64.
(5)
The Minister must give the selection panel reasons in writing for rejecting or
requiring reconsideration of any selection.
64
Selection following rejection or requirement to reconsider
15
(1)
If the Minister rejects a selection, the selection panel—
(a)
may not select the person rejected, and
(b)
where the rejection is following reconsideration of a selection, may not
select the person (if different) whose selection it reconsidered.
(2)
If the Minister requires a selection to be reconsidered, the selection panel—
20
(a)
may select the same person or a different person, but
(b)
where the requirement is following a rejection, may not select the
person rejected.
(3)
The selection panel must inform the Minister of the person selected following
a rejection or a requirement to reconsider.
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(4)
Subsections (1) and (2) do not prevent a person being selected on a subsequent
request under section 59.
Puisne judges and other office holders
65
Selection of puisne judges and other office holders
(1)
Only a person selected by the Commission may be recommended for
30
appointment to an office listed in Part 1 of Schedule 12 in exercise of the
corresponding function.
(2)
Only a person selected by the Commission may be appointed to an office listed
in Part 2 or 3 of Schedule 12 in exercise of the corresponding function.
(3)
The Minister may by order make any of the following amendments to Schedule
35
12—
(a)
an amendment which adds a reference to an enactment under which
appointments are made to an office;
(b)
an amendment which adds a reference to an office to which
appointments are made under an enactment;
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(c)
an amendment which removes or amends a reference to an office, or to
an office and an enactment under which appointments are made to that

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments
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office, and is consequential on the abolition or change of name of the
office.
(4)
In this section—

“corresponding function” in relation to an office has the meaning given in
Schedule 12;
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“enactment” includes an enactment contained in subordinate legislation
(within the meaning of the Interpretation Act 1978 (c. 30)).
66
Request
(1)
The Minister may request the Commission to select a person or persons for the
purposes of section 65.
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(2)
Before making a request under this section the Minister must consult the Lord
Chief Justice.
(3)
Sections 67 to 71 apply where the Minister makes a request under this section.
(4)
Those sections are subject to section 72 (withdrawal of request).
67
Selection process
15
(1)
On receiving a request the Commission must—
(a)
determine the selection process to be applied;
(b)
apply the selection process;
(c)
make a selection accordingly.
(2)
But if or so far as the Commission decides that the selection process has not
20
identified candidates of sufficient merit for it to comply with subsection (1)(c),
section 71 applies and subsection (1)(c) does not apply.
(3)
At least once during any selection process (but before making a selection or a
decision under subsection (2)) the Commission must consult—
(a)
the Lord Chief Justice; and
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(b)
a person (other than the Lord Chief Justice) who has held the office for
which a selection is to be made or has other relevant experience.
68
Report
(1)
After complying with section 67 the Commission must submit a report to the
Minister.
30
(2)
The report must—
(a)
describe the selection process;
(b)
state any selection made;
(c)
state any decision under section 67(2);
(d)
state any recommendation of the Lord Chief Justice in consultation
35
under section 67(3);
(e)
give reasons in any case where the Commission has not followed such
a recommendation;
(f)
contain any other information required by the Minister.
(3)
The report must be in a form approved by the Minister.
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Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments
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(4)
After submitting the report the Commission must provide any further
information the Minister may require.
69
The Minister’s options
(1)
For each person selected under section 67 the Minister must do one of the
following—
5
(a)
make the recommendation or appointment for which the person was
selected;
(b)
reject the selection;
(c)
require the Commission to reconsider the selection.
(2)
Where a person is selected following a rejection or reconsideration under
10
subsection (1) the Minister must do one of the following—
(a)
make the recommendation or appointment for which the person was
selected;
(b)
reject the selection, but only if it was made following a reconsideration
under subsection (1);
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(c)
require the Commission to reconsider the selection, but only if it was
made following a rejection under subsection (1).
(3)
Where a person is selected following a rejection or reconsideration under
subsection (2) the Minister must make the recommendation or appointment for
which the person was selected.
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(4)
If a selection is rejected or required to be reconsidered, the Commission must
make a selection in accordance with section 70.
(5)
But if the Commission decides that the selection process has not identified
candidates of sufficient merit for it to comply with subsection (4), section 71
applies and subsection (4) does not apply.
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(6)
The Minister must give the Commission reasons in writing for rejecting or
requiring reconsideration of any selection.
70
Selection following rejection or requirement to reconsider
(1)
If the Minister rejects a selection, the Commission—
(a)
may not select the person rejected, and
30
(b)
where the rejection is following a requirement to reconsider, may not
select the person (if different) whose selection it reconsidered.
(2)
If the Minister requires a selection to be reconsidered, the Commission—
(a)
may select the same person or a different person, but
(b)
where the requirement is following a rejection, may not select the
35
person rejected.
(3)
The Commission must inform the Minister of any person selected following a
rejection or a requirement to reconsider.
(4)
Subsections (1) and (2) do not prevent a person being selected on a subsequent
request under section 66.
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