House of Lords - Explanatory Note

House of Lords

Session 2003 - 04
Publications on the internet
Other Bills before Parliament
Arrangement of Clauses (Contents)

Constitutional Reform Bill [HL]

These notes refer to the Constitutional Reform Bill [HL] as amended by
the Select Committee on the Bill and ordered to be printed 8th July 2004 [HL Bill 91]

CONSTITUTIONAL REFORM BILL [HL]

     [AS AMENDED BY THE SELECT COMMITTEE ON THE BILL]



     EXPLANATORY NOTES

INTRODUCTION

     1.     These revised explanatory notes refer to the Constitutional Reform Bill as amended by the House of Lords Select Committee on the Bill. The Report of the Select Committee, and the Bill as amended, were ordered to be printed on 24th June 2004. These revised notes have been prepared by the Department for Constitutional Affairs in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

OVERVIEW

3.     The Constitutional Reform Bill will abolish the office of Lord Chancellor and make changes to the way in which the functions vested in that office are handled. This Bill will also create the Supreme Court of the United Kingdom, create the Judicial Appointments Commission and remove the right of the Lord President of the Council to sit judicially.

4.     The explanatory notes are divided into parts reflecting the structure of the Bill. In relation to each Part, there is a summary and background section. Commentary on particular clauses is then set out in number order, with the commentary on the various schedules included with the clause to which they relate.

5.     Notes on the effects of the Bill on: public expenditure; public sector manpower; cost to business and regulatory impact, follow the commentary on clauses, as does a brief note on the European Convention on Human Rights issues.

6.     The Bill is divided into 5 parts:

     Part 1: Arrangements to replace office of Lord Chancellor

Part 1: Makes provision for replacing the office of Lord Chancellor and abolishing that office. There are provisions in relation to the judiciary and the courts, the Great Seal, and the Speakership of the House of Lords. This Part also provides a guarantee of continued judicial independence.

Part 2: The Supreme Court

Part 2: Makes provisions for a Supreme Court to replace the existing system of Law Lords operating as a committee of the House of Lords. It provides for the appointment of judges, the Court's jurisdiction, its procedures, resources including accommodation, and other matters.

     Part 3: Judicial appointments and discipline

Part 3: Makes provision for a Judicial Appointments Commission for England and Wales to be responsible for recruiting and selecting judges. It provides for it to report to the Minister on who has been selected, and for the Minister to make the appointment or the recommendation to The Queen. It also makes provision for a Judicial Appointments and Conduct Ombudsman, who will investigate any complaints, and for disciplinary procedures in relation to the judiciary.

     Part 4: Other provisions in relation to the judiciary

Part 4: Makes provisions regarding Parliamentary disqualification and the judicial functions of the Lord President of the Council.

     Part 5: General

Part 5: provides for interpretation, minor and consequential amendments, repeals and revocations, supplementary provisions, extent, commencement and the short title of the Act.

7.     Parts 1 and 3 are intended to give substantial effect to the agreement between the Lord Chief Justice of England and Wales and the Secretary of State for Constitutional Affairs on the proposals relating to the transfer of the Lord Chancellor's judiciary-related functions. This was set out in a document called "Constitutional Reform. The Lord Chancellor's judiciary-related functions: Proposals" (also referred to as the 'Concordat'). This was placed in the libraries of both Houses of Parliament at the time of the Oral Statement to the House of Lords by the Secretary of State for Constitutional Affairs on 26th January 2004 and was printed as Appendix 6 to the Select Committee's Report on the Bill.

PART 1: ARRANGEMENTS TO REPLACE THE OFFICE OF LORD CHANCELLOR

SUMMARY

8.     Part 1 abolishes the offices of Lord High Chancellor of Great Britain and Lord Keeper of the Great Seal and provides for the future exercise of the functions of those offices. It provides:

a)     that the offices of Lord High Chancellor of Great Britain and Lord Keeper of the Great Seal of the United Kingdom are to be abolished;

b)     that the Secretary of State for Constitutional Affairs shall in future exercise the former functions of the Lord Chancellor relating to the Great Seal (with certain consequential amendments to other enactments);

c)     for the amendment of certain statutory provisions that refer to the Lord Chancellor in his capacity as Speaker of the House of Lords, so that they will in future refer to the Speaker of the House of Lords in general terms; and

d)     in consequence of the abolition of the office of Lord Chancellor: for the transfer of his statutory functions relating to the judiciary to the Secretary of State for Constitutional Affairs or the Lord Chief Justice with requirements for consultation or concurrence between them as appropriate to the nature of the function, and for the transfer of his Ministerial functions to the Secretary of State for Constitutional Affairs.

9.     Part 1 also defines the general statutory responsibilities of the Secretary of State for Constitutional Affairs, the Lord Chief Justice (as President of the Courts of England and Wales) and others in relation to the administration of justice, and imposes specific statutory duties on those persons and on Ministers of the Crown generally to uphold the independence of the judiciary.

10.     It also defines the new offices of the President of the Courts of England and Wales, the Head and Deputy Head of Criminal Justice and Head and Deputy Head of Family Justice.

BACKGROUND

11.     A wide range of statutory powers is currently exercisable by the Lord Chancellor. The majority of such powers are exercisable by the Lord Chancellor in his Ministerial capacity and most of these will be transferred to the Secretary of State for Constitutional Affairs by means of Transfer of Functions Orders made under the Ministers of the Crown Act 1975. Some will be transferred by clause 9 and Schedule 5.

12.     Statutory powers exercised by the Lord Chancellor in his capacity as Speaker of the House of Lords will be amended by the Bill so that they refer explicitly to the Speaker of the House of Lords in general terms. It will be a matter for the House of Lords to determine the specific arrangements for the office of Speaker.

13.     Clause 10 of the Bill provides that the Secretary of State for Constitutional Affairs shall assume the functions relating to custody of the Great Seal, hitherto exercised by the Lord Chancellor. The Bill also preserves the existing prerogative power of Her Majesty to place the Great Seal into commission where the Secretary of State for Constitutional Affairs is unable to exercise his functions due to absence from the country or incapacity. The powers and entitlements of the Commissioners of the Great Seal will be limited to functions linked to the Great Seal.

14.     There also exist a range of functions, statutory and otherwise, which are currently exercisable by the Lord Chancellor which relate to the judiciary or to the Lord Chancellor's judicial role. Some of these functions have been exercised in the Lord Chancellor's capacity of 'Head of the Judiciary' (although this has not historically been a formal or statutory title).

15.     Clause 3 of the Bill provides for all of these statutory functions currently vested in the Lord Chancellor to be transferred to another office holder or otherwise disposed of. These functions are, in the main, transferred to the Secretary of State for Constitutional Affairs. Judiciary-related functions are transferred to the Secretary of State for Constitutional Affairs, the Lord Chief Justice or to another member of the senior judiciary. In many instances, as appropriate to the nature of a particular function, the Secretary of State for Constitutional Affairs will be required to consult, or obtain the concurrence of, the Lord Chief Justice (or vice versa) before exercising the function. In others, functions may be exercised by the Secretary of State for Constitutional Affairs or the Lord Chief Justice acting alone. The division of functions into these categories is intended to reflect the principles set out in the Concordat referred to in paragraph 7 above, which are summarised in paragraph 20 below.

16.     Clause 105 of the Bill makes provision for the disposal of any remaining functions of the Lord Chancellor in local and private acts, not yet identified, or functions created by legislation passed in the 2003-04 Session. The clause also provides a power to amend charters and other prerogative instruments to take account of the consequences of abolishing the office of the Lord Chancellor. The Bill also makes a series of further consequential amendments to statutory references to the Lord Chancellor in primary and secondary legislation.

17.     Related to provisions in Schedule 1 that deal with the administration and resourcing of the courts, and in consequence of the abolition of the Lord Chancellor, it has been agreed that a senior member of the judiciary will be a non-executive member of the Board for the new Unified Courts Agency. At least two separate bilateral discussions between the Chief Executive of the Agency and representatives of the Judges' Council, concentrating on providing the opportunity for judicial input into future resource planning of the Agency, will be held each year. These arrangements will be set out in the Framework Document of the Agency, copies of which will be placed in the Libraries of both Houses. In addition, a senior member of the judiciary will also be a non-executive member of the Corporate Board of the Department for Constitutional Affairs. Further, in Spending Review years, the Director-General, Finance and the Permanent Secretary of the Department for Constitutional Affairs will meet the Lord Chief Justice (or his representative) when the Departmental bid and Public Service Agreement is being worked up, and then again before final Departmental allocations are made after the settlement. Such meetings will be held at a similar stage in non-Spending Review years, focussing on the delivery arms of the Department.

COMMENTARY ON CLAUSES

The Judiciary and the Courts

Clause 1: Guarantee of continued judicial independence

18.     Clause 1 places a duty on Ministers of the Crown and all others with responsibility for matters relating to the administration of justice to uphold the continued independence of the judiciary. It also sets out two particular duties that are to be exercised for the purpose of upholding that independence. The first is a duty on Ministers of the Crown not to seek to influence particular judicial decisions through any special access to the judiciary. The second requires the Secretary of State for Constitutional Affairs to have regard to the need to defend the continued independence of the judiciary, the need for the judiciary to have proper support to enable them to exercise their functions, and the need for the public interest in matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters. This clause should be read in conjunction with Part 1 of the Courts Act 2003, as amended by Schedule 1 to this Bill, which sets out the duty of the Secretary of State for Constitutional Affairs to ensure that there is an efficient and effective system to support the carrying on of the business of the courts of England and Wales. This clause also employs the term "the Minister", which is used throughout the Bill, and wherever used refers to the Secretary of State for Constitutional Affairs (see also clause 104). These Explanatory Notes accordingly also refer to "the Minister"; and when they do, they mean by that term the Secretary of State for Constitutional Affairs.

Clause 2: President of the Courts of England and Wales

19.     Clause 2 provides a new, additional, statutory title of President of the Courts of England and Wales which will be assumed by the Lord Chief Justice. The clause sets out the responsibilities of the President of the Courts of England and Wales and the courts to which the presidency applies. In his role as President of the Courts of England and Wales, the Lord Chief Justice is to be responsible for representing the views of the judiciary of England and Wales to Parliament, the Minister (that is, the Secretary of State for Constitutional Affairs) and Ministers of the Crown generally. He is also to be responsible, within the resources made available by the Minister, for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary of England and Wales, and for maintaining appropriate arrangements for the deployment of the judiciary of England and Wales and allocating work within courts. Related to the issue of deployment, it should be noted that the Lord Chief Justice will also have a role in the appointment of judicial office holders to committees, boards and similar bodies, as set out in paragraphs 46-49 of the 'Concordat'; his role in such appointments so far as governed by statute is provided for in Schedule 1.

Clause 3: Functions of the Lord Chancellor and organisation of the Courts

20.     Clause 3 provides for existing judiciary-related functions of the Office of the Lord Chancellor set out in primary legislation to be transferred either to the Minister or the Lord Chief Justice of England and Wales. In the main these functions will be exercised with either the concurrence of or after consultation with the Minister or Lord Chief Justice of England and Wales, as appropriate (see paragraph 13 above).

Schedule 1: Functions of the Lord Chancellor and organisation of the Courts

21.     Schedule 1 makes the amendments referred to in clause 3. In summary, the effect of this Schedule is to provide that:

?     existing statutory functions of the Lord Chancellor that relate to (i) the framework for the organisation of the courts system, including setting the geographical and jurisdictional boundaries within England and Wales; (ii) the provision and allocation of financial, material and human resources for the administration of justice; (iii) the pay, pensions and terms and conditions of the judiciary and the provision of staff and resources for training of the judiciary; and (iv) the overall number of judges and the distribution of business between different levels of courts will be transferred to the Minister;

the existing statutory functions of the Lord Chancellor that relate to: (i) the posting and roles of individual judges within the framework of the court system; (ii) the responsibility to make rules relating to deployment of magistrates; (iii) the authorisation and assignment of judges, allocation of work and the distribution of business within the same level of the court system, (e.g. between divisions of the High Court); and (iv) the nomination of judges to deal with specific areas of business and to fill judicial leadership posts such as the Presiding Judges will be transferred to the Lord Chief Justice;

?     the existing statutory functions of the Lord Chancellor that enable him to determine the framework for the appointment of judicial office holders to committees, boards and similar bodies will be transferred to the Minister, while the statutory functions that enable him to appoint individual judges to such bodies will be transferred to the Lord Chief Justice;

as regards the making of court rules, where statutory committees presently exist, the relevant provisions will be modified to take account of the division of the Lord Chancellor's functions between the Minister and the Lord Chief Justice. The appointment of non-judicial members of rule committees will be made by the Minister and judicial members will be appointed by the Lord Chief Justice. In addition, there will be a new power for the Minister to require rule committees to change rules or to make new rules to achieve a specified purpose, and to allow rules made by such committees. He may disallow rules but is required to provide written reasons. (See clause 6 for rule making powers not related to rule making committees);

statutory references to the Vice-Chancellor are amended to provide for the new title of "Chancellor of the High Court". Statutory references within the Courts Act 2003 are amended to provide that the Master of the Rolls will assume the position of "Head of Civil Justice" ex officio. A new position of "President of the Queen's Bench Division" is also created; this post will not be held by the Lord Chief Justice;

the Lord Chief Justice will replace the Lord Chancellor as the office holder before whom judges will take their oaths. The Lord Chief Justice will take his oath before the Master of the Rolls, the President of the Queen's Bench Division, the President of the Family Division and the Chancellor of the High Court (formerly the Vice-Chancellor); and

where amendments made to other Acts by the Schedule confer functions on the Lord Chief Justice, a provision is added in each case permitting him to delegate the function to another judicial office-holder.

Clause 4: Head and Deputy Head of Criminal Justice

22.     Clause 4 creates a new statutory post of Head of Criminal Justice, which will be held ex officio by the Lord Chief Justice of England and Wales or, after consultation with the Minister, by his nominee. This clause also provides that the Lord Chief Justice may appoint a Deputy Head of Criminal Justice. The creation of these new posts mirrors the existing statutory posts of Head and Deputy Head of Civil Justice, established by section 62 of the Courts Act 2003.

Clause 5: Head and Deputy Head of Family Justice

23.     Clause 5 creates a new statutory post of Head of Family Justice, which will be held ex officio by the President of the Family Division. This clause also provides that the Lord Chief Justice may appoint a Deputy Head of Family Justice. The creation of these new posts mirrors the existing statutory posts of Head and Deputy Head of Civil Justice, established by section 62 of the Courts Act 2003.

Clause 6: Powers to make rules

24.     Clause 6 provides for the transfer of functions relating to rule-making powers that are not made by rule committees but which are currently conferred on the Lord Chancellor alone. These functions will be exercised by the Lord Chief Justice with the concurrence of the Minister, in accordance with the process set out in Part 1 of Schedule 2 to the Bill.

Schedule 2: Powers to make rules

25.     Schedule 2 sets out the process and makes the amendments referred to in clause 6. These rule-making powers will transfer to the Lord Chief Justice, but (to mirror the allowing and disallowing powers for rules made by rule committees) the concurrence of the Minister will be required. The new power to direct that rules be made to achieve a specified purpose is to be applicable for such rule-making. In relation to certain family procedure rules, the procedure under Schedule 2 part 1 of the Bill will have only temporary effect, until Sections 75 to 80 of the Courts Act 2003 are brought into effect and the Family Procedure Rule Committee is established.

Clause 7: Powers to Give Directions

26.     Clause 7 provides for the transfer of functions relating to the making of practice directions. The Lord Chief Justice will make practice directions, with the concurrence of the Minister, in a procedure similar to that which will apply for the rules dealt with in clause 6 and Schedule 2 (see paragraphs 24 and 25 above). The concurrence of the Minister will not be required for directions relating to guidance as to the law or the making of judicial decisions.

Schedule 3: Powers to Give Directions

27.     Schedule 3 sets out the procedure and makes the amendments referred to in clause 7. In accordance with the procedure in Part 1 of Schedule 3, the Lord Chief Justice may, with the concurrence of the Minister, give those directions as to practice and procedure contained in the enactments amended by Part 2 of the Schedule. The Lord Chief Justice, with the approval of the Minister, may delegate his functions under the new procedure; the expectation is that the power would usually be delegated to the Heads of Criminal, Civil and Family Justice. The Lord Chief Justice may act without the concurrence of the Minister for directions concerning guidance as to the law or the making of judicial decisions.

Appointments

Clause 8 and Schedule 4: Transfer of appointment functions

28.     Clause 8 introduces Schedule 4. Part 1 of that Schedule provides that appointments to the offices listed in it will in future be made by Her Majesty The Queen rather than the Lord Chancellor, as currently. These appointments are those of civil District Judges, High Court Registrars and Masters, and the Senior District Judge (Chief Magistrate). The relevant appointing provisions are amended and the power to assign District Judges to districts and to district registries is transferred from the Lord Chancellor to the Lord Chief Justice. The power to determine the salaries of District Judges and High Court Masters and Registrars is transferred from the Lord Chancellor to the Minister with the concurrence of the Treasury. These appointments are also listed in Schedule 14, meaning that these appointments are in future to be made on the basis of selection by the Judicial Appointments Commission.

29.     Part 2 of Schedule 4 provides that appointments to the offices listed in it will in future be made by the Minister (the Secretary of State for Constitutional Affairs) rather than the Lord Chancellor. Part 2 transfers all of the various appointing powers of the Lord Chancellor to the Minister, and amends the relevant Acts of Parliament accordingly. Those appointments that are of judges or members of tribunals, or similar posts, are also listed in Schedule 14, which will mean that these appointments are in future to be made on the basis of selection by the Judicial Appointments Commission.

     Clause 9: Other Functions of the Lord Chancellor

30.     Clause 9 provides for certain other functions of the Lord Chancellor to be transferred to the Secretary of State for Constitutional Affairs. Schedule 5 sets out five appointment functions which do not fall within the proposed remit of the new Judicial Appointments Commission, and three other changes consequential to abolition of the office of Lord Chancellor. In the future it will be possible to transfer these functions under the Ministers of the Crown Act 1975.

The Great Seal

     Clause 10: The Great Seal

31.     By convention, the Lord Chancellor has been custodian of the Great Seal of the Realm. As that office is to be abolished, the custody of the Great Seal and the functions of the Lord Chancellor in relation to it are to transfer to the Minister. Subsection (3) introduces Schedule 6, which makes amendments consequential upon these changes. Where the Minister is unavailable, for whatever reason, to perform the functions relating to the Great Seal, subsection (4) allows Her Majesty to appoint Commissioners to perform those functions in place of the Minister. These functions are limited to those relating to the Great Seal, rather than all powers and entitlements of the Lord Chancellor, as was previously the case. Where such Commissioners act, all references to the Minister in instruments or enactments will have effect so far as necessary as if they were references to the Commissioners.

Schedule 6: Amendments relating to the Great Seal

32.     Schedule 6 sets out amendments arising from the transfer of responsibilities in relation to the Great Seal from the Lord Chancellor to the Minister. It removes the power for fees to be taken in the Crown Office in relation to the duties of the purse-bearer and other redundant provisions relating to the Great Seal.

     Speakership of the House of Lords

     Clause 11 and Schedule 7: Speakership of the House of Lords

33.     Clause 11 gives effect to Schedule 7. Some statutes make explicit reference to the 'Speaker of the House of Lords'. Others refer to the Lord Chancellor, but apply where he is acting in the capacity of Speaker. Schedule 7 provides for the replacement of references to the Lord Chancellor with the 'Speaker of the House of Lords' in primary legislation which sets out functions the Lord Chancellor exercises in relation to his role as Speaker of the House of Lords. This change would allow any speaker, howsoever titled, to perform these functions.

Abolition of the Lord Chancellor

     Clause 12: Abolition of the office of Lord Chancellor

34.     Clause 12 provides for the abolition of the office of Lord High Chancellor of Great Britain, and also Lord Keeper of the Great Seal. The holder of the office of Lord Keeper has by convention held the Great Seal when there is no Lord Chancellor and held the same authority and jurisdiction as the Lord Chancellor.

© Parliamentary copyright 2004
Prepared: 13 July 2004