| Constitutional Reform Bill [HL] - continued | House of Lords |
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Clause 13: Salary and pension 35. Schedule 8 (Parts 1 and 2) removes provisions relating to the salary and pensions of the Lord Chancellor in current legislation and makes provision having the effect that the Secretary of State for Constitutional Affairs will in future only have the same salary and pensions entitlements as any other Secretary of State. It provides the present Lord Chancellor with pension entitlements, equivalent to those of a Secretary of State, for his period of office as Lord Chancellor; and reinstates pension entitlements accrued as a minister before his appointment as Lord Chancellor. Schedule 8: Salary and Pension of the Lord Chancellor Part 1: Salary and Pension: Consequential Provision 36. Part 1 of Schedule 8 removes the Lord Chancellor's entitlements to pay and pension from the Consolidated Fund in respect of his service as Lord Chancellor and as Speaker of the House of Lords. It amends statutory references to the salary and pension of the Lord Chancellor which will no longer be needed once the office is abolished. It also adjusts the limit on the numbers of ministerial salaries which can be paid to reflect the appointment of an additional Secretary of State - the Secretary of State for Constitutional Affairs - in place of the Lord Chancellor. Part 2: Pension Arrangements of the Last Lord Chancellor: Special Provision 37. Part 2 makes provision for the pension of the last Lord Chancellor. It sets out arrangements to provide for a pension for the last Lord Chancellor which is the equivalent to that to which he would be entitled as a Secretary of State in the House of Lords, having regard to his previous service as a Minister, as if he had not been appointed Lord Chancellor. It revives any previous pension entitlements earned by the last Lord Chancellor before he assumed that office and which were extinguished by current legislation in relation to the pension of the Lord Chancellor. Supplementary Clause 14: Property, rights and liabilities 38. This clause provides for the transfer of the property, rights or liabilities of the Lord Chancellor to the Minister. Subsection (2) transfers the relevant property, rights or liabilities from the Lord Chancellor to the Minister, on commencement of any provision of this Bill ending the exercise of a function by the Lord Chancellor. Subsection (1) applies to such a transfer in relation to provisions in the Bill with the exception of clause 12 (the abolition of the office of Lord Chancellor). Subsection (3) gives effect to this in relation to clause 12 so that on the abolition of that office any remaining property, rights and liabilities are then transferred. Clause 15: Transfers: supplementary 39. Clause 15 provides for the continuing validity of actions taken by the Lord Chancellor, his Department or an officer of his Department in relation to any function which is transferred under the Bill, and of subsequent actions by the recipient of the function. References in Acts or other instruments are to be read as referring to the person who will undertake the function in the future. Legal proceedings involving the Lord Chancellor in relation to a function which is transferred can be continued by or against the person who assumes the function. Printed documents and forms in relation to a transferred function also continue to be valid despite references to the Lord Chancellor, his Department or his staff. Subsection (2) provides that where Her Majesty will in future perform a function of the Lord Chancellor, the Minister will take the Lord Chancellor's place in continuing action in relation to that function. PART 2 THE SUPREME COURT SUMMARY 40. Part 2 of the Bill creates a new Supreme Court for the United Kingdom and makes provision for the transfer of the appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. The new Supreme Court will be separate from Parliament. BACKGROUND 41. At present the exercise of the highest level of jurisdiction in the United Kingdom is shared between the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. The Appellate Committee of the House of Lords receives appeals from the courts in England and Wales and Northern Ireland, and in civil cases from Scotland. The Judicial Committee of the Privy Council, in addition to its overseas and ecclesiastical jurisdiction, considers questions as to whether the devolved administrations, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly are acting within their legal powers. Support to the Appellate Committee is provided by the House's administration under the Clerk of the Parliaments. Support for the Judicial Committee is provided by staff supporting the Privy Council. 42. In addition to the Lords of Appeal in Ordinary certain other holders of high judicial office are also members of the House of Lords. A number of other members of the House of Lords hold other full-time or part-time judicial office and a number of members of the House of Commons hold part-time judicial-office. 43. The Bill seeks to make a distinct constitutional separation between the legislature and the judiciary. It creates a Supreme Court of the United Kingdom giving it the appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. It makes provision to allow for the appointment of members of the Court in a way that requires the participation of the judiciary and the devolved administrations throughout the United Kingdom. It makes provision to determine the practices and procedures of the court, to allow the Minister to provide staff, equipment, security arrangements and accommodation for the court. It also makes general provision for the proceedings of the court to be broadcast in certain circumstances. 44. As a counterpart to the creation of the Supreme Court the Bill restricts the right of members of the House of Lords to sit and vote for so long as they hold full time judicial office. Finally the Bill makes consequential and transitional provisions to allow the transfer of functions to the Court. COMMENTARY ON CLAUSES Clause 17: The Supreme Court 45. This clause establishes that there is a Supreme Court of the United Kingdom, and sets out the composition of the Supreme Court and the method of appointing judges, including the President and Deputy President (as distinct from the process for selection of persons to be recommended for appointment, the provision for which is to be found in clauses 19-25). It also provides for the title of the judges of the Supreme Court other than the President and Deputy President. 46. Subsection (2) provides both for complement and method of appointment. The Court will comprise 12 judges, who are to be appointed by Her Majesty by letters patent. By virtue of subsection (5), Her Majesty may, also by letters patent, appoint one of the judges to be President and one to be Deputy President. It will be possible for a person to be appointed as President or Deputy President without having first served as a judge of the Supreme Court (see clause 20(4)). 47. Subsection (3) provides a power for Her Majesty to increase or further increase the number of judges of the Supreme Court by Order in Council. This may only be done, however, if, as set out in subsection (4), a draft of the Order has been laid before and approved by each House of Parliament (that is, by affirmative resolution procedure). 48. Subsection (6) provides that the judges of the Supreme Court other than the President of the Supreme Court and the Deputy President of the Supreme Court (who will have those titles) will be styled 'Justices of the Supreme Court'. 49. Subsection (7) provides that the Court will still be properly constituted even if there is a vacancy among the judges of the Court or in the office of President or Deputy President. Clause 18: First members of the Court. 50. This clause provides for the first judges of the Supreme Court to be the Lords of Appeal in Ordinary holding office at the date of commencement. This is a one-off provision to provide for the transition of members of the Appellate Committee of the House of Lords from the Appellate Committee to the Supreme Court. 51. The effect of clause 18(a) is that on establishment of the Court (with the commencement of clause 17), Lords of Appeal in Ordinary immediately before commencement will become the first Supreme Court judges. 52. Clause 18(b) and (c) make provision for the first holders of the offices of President and Deputy President, providing that the senior Lord of Appeal in Ordinary prior to commencement will become the President and the second senior Lord of Appeal in Ordinary prior to commencement will become the Deputy President of the Court. Appointment of judges Clause 19: Qualification for Appointment 53. This clause defines eligibility for appointment as a judge of the Supreme Court, which will be the same as eligibility for appointment as a Lord of Appeal in Ordinary. 54. Subsection (1) sets out the qualifying requirements for appointment as a Supreme Court judge. There are two separate possible routes to qualification. First, a person is eligible if he has held high judicial office, as defined in subsections (1) and (2) of clause 51 for at least 2 years. 55. Alternatively, to qualify for appointment as a Supreme Court judge, a person would have to have been a qualifying practitioner (defined in subsection (2)) for at least 15 years. 56. Subsection (2) defines a qualifying practitioner, for the purposes of clarifying eligibility for appointment. Clause 20: Selection of members of the Court 57. This clause is the first of 6 clauses, the others being 21, 22, 23, 24, and 25 which together provide for the process by which candidates for appointment to the Supreme Court are to be selected and recommended to Her Majesty for appointment. Under subsection (8) these clauses apply where a selection commission as provided for in schedule 9 is convened. 58. This clause defines the process whereby members of the Supreme Court are recommended for selection. 59. Subsection (1) sets out the types of office which are subject to the appointments process. 60. At the final stage of the selection process, following the process set out in clauses 21, 22 and 23 the Prime Minister, under subsections (2), (3) and (4) must recommend the selection passed to him by the Minister, under clause 23, to the Queen. 61. Subject to part 3 of schedule 9, the Minister, under subsection (5) must convene a selection commission the composition of which is provided for in Schedule 9. Schedule 9: Supreme Court selection commissions 62. This schedule contains the rules governing the composition of the selection commission for the appointment of judges to the Supreme Court. It sets out who is eligible to sit on the commission, how it is to be convened, and the rules for its operation. This Selection Commission will put forward candidates for appointment to the Minister, for notification to the Prime Minister and eventual recommendation by the Prime Minister to Her Majesty for appointment, according to the procedure set out in Clauses 20-25. Part 1 Selection Commissions Selection Commission 63. Paragraph 1 makes provision for the membership of the Supreme Court selection commission which, under clause 22, will select one candidate and put forward that candidate to the Minister accordingly. The selection commission will consist of the President of the Supreme Court (who, by virtue of Paragraph 7, will chair the commission), the Deputy President of the Supreme Court and one member from each of the territorial appointing commissions, nominated under paragraph 6, one of whom must (by virtue of paragraph 6 (3)) be a person who is not legally qualified. Special rules where President or Deputy President's place unfilled 64. Paragraphs 2- 4 make provision for the composition of the Selection Commission if the place of the President and / or the Deputy President on the commission is unfilled by reason of one of the situations set out in Paragraph 5. 65. Paragraph 2 (2) provides for the next most senior ordinary judge in the Supreme Court to take the unfilled position on the selection commission if either the President or Deputy President is unable to sit. Paragraph 3 (2) provides for the most senior ordinary judge and the second most senior ordinary judge to take the unfilled position if both the President and Deputy President are unable to sit. 66. If the unfilled place or places are not taken in accordance with Paragraph 2 (2) or Paragraph 3 (2) (for example because all of the Supreme Court judges wish to be considered for a vacancy that has arisen) then Paragraph 2 (3) & (4) and Paragraph 3 (3), (4) & (5) provide for the most senior judiciary from the three jurisdictions of the UK to be members of the commission, unless one of the jurisdictions is already represented through the presence of the President, Deputy President or one of the ordinary judges (for example, if his "home jurisdiction", as defined in Paragraph 4, is Scotland, Scotland is represented). In this event only two of the senior judiciary would be required from the jurisdictions not already represented (i.e. in the example above, from England and Wales and Northern Ireland, since Scotland is represented). 67. Paragraph 4 provides for the determination of the home jurisdiction of a judge of the Supreme Court. Separate provision is made according to whether the judge in question became a member of the court by virtue of being a Lord of Appeal in Ordinary at commencement, or was appointed to the court subsequently, working in the former case by reference to the qualification requirement of the Appellate Jurisdiction Act 1876 (under which Lords of Appeal in Ordinary will have been appointed) rather than those of clause 19 of the Bill. Disqualification 68. Paragraph 5 details the circumstances in which judicial members of the commission are disqualified from sitting on the commission. 69. Paragraph 5 (1) provides for cases of illness or other incapacity: any judge who might be eligible to sit on the appointing commission is considered to be disqualified if the Minister believes that the person is for the time being incapacitated from serving on the commission. 70. Paragraphs 5 (2), (3) and (4) provide for cases where a person is a candidate for appointment to the vacancy under consideration: judges of the Supreme Court below the position of President and judges from territorial jurisdictions will be disqualified from membership of the commission unless they first give the Minister notice that they do not wish to be considered for the vacancy being filled. Non-judicial members of the selection commission 71. Paragraph 6 sets out the rules governing the appointment of members of the territorial appointing commissions to the selection commission. 72. Under Paragraph 6 (2), the Minister will be responsible for nominating one member of each of the territorial appointing commissions; however, under Paragraph 6 (4) he may only do this on the recommendation of the territorial appointing commission of which the person is a member. Sub-Paragraph (3) provides that at least one of the persons nominated from the territorial appointing commissions must be non-legally qualified (defined for the purposes of this paragraph in Paragraph 6 (7)). In effect this means that if at least one of the territorial commissions does not recommend a non-legally qualified person, the Minister will, before the commission can be convened, have to broker a solution with the territorial commissions whereby one of them will agree to recommend a non-legally qualified member. Chairing of a selection commission 73. Paragraph 7 identifies the President of the Supreme Court as the person who shall normally chair the selection commission for the Supreme Court and provides alternatives if the President is not available. Interpretation 74. Paragraph 8 defines for the purpose of this Schedule what is meant by the term 'selection commission for the office of'. For example (Sub-Paragraph (a)): 'Selection commission for the office of President' means a selection commission convened in the case of a vacancy in the office of President. 75. Paragraph 9 (1) defines for the purposes of Part 1 of this schedule the meaning of "Judicial Appointments Board for Scotland" and "territorial judge". 76. Paragraph 9 (2) defines for the purposes of Part 1 of this schedule how the seniority of judges of the Supreme Court is to be determined (taking account, where appropriate, of seniority "inherited" from service in the House of Lords) and, in relation to the Selection Commission, how the seniority of the territorial judges appointed under paragraph 2(3) and Paragraph 3 (3 & 4) is to be determined. Part 2 Dissolution Any Selection commission 77. Part 2 of this schedule describes when the process by which a selection commission is to be dissolved and the process by which this is to be done. 78. In the normal course of events the commission would be dissolved when the Minister notifies a selection made by the commission. That is to say, when a selection of a person by the commission is accepted by the Minister and the Minister notifies the Prime Minister for recommendation of that person for appointment, the commission is dissolved, being functus officio. (Paragraph 10). 79. Paragraphs 11 - 12 provide that the commission can also be dissolved in various circumstances in which it ceases to be properly constituted. These are: if a member of the commission dies or becomes incapacitated; if a person nominated from a territorial commission either resigns his membership of the selection commission or ceases to be a member of the territorial commission from which he has been appointed from; if someone who is a member of the commission by virtue of holding high judicial office ceases to hold that office; or where in the event of there being only one non-legally qualified member on the commission that member ceases to be non-legally qualified. 80. Paragraphs 11(2) and 12(2) provide that in such cases, rather than the commission continuing with fewer members, or a changed balance of backgrounds, or a different balance of representation, a new selection commission has to be convened by the Minister as soon as practicable after dissolution. Part 3 Duty to Convene Commission: Special Rules 81. This part of the schedule modifies the Minister's duty to convene a selection commission under certain circumstances. Selection commission for the office of Deputy President 82. Paragraph 13 provides that the duty on the Minister to convene a selection commission for the office of Deputy President or for the office of Judge does not apply if a selection commission for the office of President has been convened or the Minister is under a duty to convene such a selection commission. This means that if there is a vacancy or impending vacancy for the office of President this must be filled before any vacancy in the office of Deputy President which might arise at the same time. This "fill the senior office first" approach, which maximises the likelihood that there will be a President to chair commissions for other vacancies, is carried through for other vacancies by paragraph 14. Selection commission for the Office of Judge 83. Paragraph 14 provides that the duty on the Minister to convene a selection commission for the office of Judge does not apply if a selection commission for the office of President or Deputy President has been convened or the Minister is under a duty to convene such a selection commission. This means that if there is a vacancy or impending vacancy for the office of President or Deputy President these must be filled before any vacancy for the office of Judge which might arise at the same time. 84. Paragraphs 13 (2) and 14 (2) state that the Minister must convene a selection commission for the unfilled vacancies (in the office of Deputy President or Judge) as soon as practicable after the Minister has selected a candidate put forward by the selection commission for the office of President or Deputy President. Clause 21: Selection of Candidate 85. This clause sets out the overall process which must be undertaken by the selection commission, the composition of which is provided for in Schedule 9, before it makes a recommendation of one name (subsection 8) to the Secretary of State, under clause 22. Subsection (1) sets out the duties of the commission with regard to the particular selection process to be applied to each vacancy under consideration. 86. As provided for in subsections (2), (3) and (4) selection must be made on merit (not defined in the Bill or to be defined by the Minister, but to be defined solely by the commission) and the commission can only recommend those who meet the eligibility requirements set out in clause 19. Anyone who is a member of the commission cannot be selected (hence the provisions in Schedule 9 for identifying persons who wish to be considered for a particular vacancy and disqualifying them from membership of the commission). 87. Subsection (5) provides that the commission must, when making selections for the appointment of judges, also take into account the need for the court to have among its judges knowledge and experience of practice in the law in every part of the United Kingdom. In effect this means upholding the convention that there should generally be at least 2 Scottish judges and usually 1 from Northern Ireland. The Minister, as provided for by subsection (7), may issue non-binding guidance to the commission about the vacancy that has arisen, for example on the jurisdictional requirements of the court, which the commission must have regard to. 88. Subsection (6) lists the persons the commission must consult during the selection process (although it may consult others). They are; senior judges as defined by clause 52, who are neither on the commission nor willing to be considered for selection, the Minister, the First Minister in Scotland, the National Assembly for Wales and the Secretary of State for Northern Ireland. 89. Subsections (7) and (8) dictate that the commission must have regard for any Ministerial advice and are only able to select one person, as set out in clause 25. Clause 22: Report 90. This clause sets out the stage after the commission has made a selection under the process set out in clause 21. 91. Subsection (1) provides that after a selection has been made the commission must submit a report to the Minister stating who has been selected and containing the information set out in subsection (2), (3) and (4) (that information being essentially that which is required to enable the Minister to exercise his options under clause 23 on a properly informed basis). 92. Before choosing to exercise one of his options set out in Clause 23 the Minister having received the report must consult under subsection (5) the senior judges as defined by clause 52, the First Minister in Scotland, the National Assembly for Wales and the Secretary of State for Northern Ireland. Clause 23: The Minister's options 93. This clause sets out the Minister's options after he has received a name from the commission and carried out consultations under clause 22. It works in conjunction with clause 24 which sets out the grounds on which the Minister can exercise two of his options - to reject the selection commission's recommendation or to ask the selection commission to reconsider its recommendation. It outlines the three possible stages of the process and the options the Minister has at those stages. 94. Subsection (1) outlines the three possible stages. The first stage is where a person has been selected under clause 20. The second stage is where a person has been selected following a rejection or reconsideration at stage 1. The third and final stage is where a person has been selected following a rejection or reconsideration at stage 2. 95. Subsection (2) provides the minister with his options in dealing with stage 1 of the process. He may (a) notify the selection, (b) reject the selection or (c) require the commission to reconsider the selection. Should the Minister exercise options (b) or (c) the process enters stage 2. 96. Subsection (3) provides that during the second stage the minister can a) notify the selection (which is to say, notify the Prime Minister of the selection for the Prime Minister to recommend that person to Her Majesty for appointment), having exercised either option b) or c) in stage 1; (b) reject the selection if it was made following reconsideration at the first stage; or c) require the commission to reconsider the selection, but only if it was made following a rejection at stage 1. Should the Minister exercise option (b) or (c) the process enters stage 3. 97. At the third stage, as provided for in Subsection (4), the Minister must notify the selection although, as provided for in Subsection (5), he may notify a candidate who was reconsidered at stage one or two but not rejected. 98. The Minister's options as set out in this clause can be summarised as follows: He can:
99. If the Minister selects option b) first, he would ask the selection commission to reconsider. After reconsideration the commission, under clause 25, can still put forward the same name with further reasons or recommend an alternative. The Minister can then put forward either of the recommended candidates (unless he chooses to reject the second candidate put forward) 100. Under c) the Minister can reject the name provided by the selection commission. 101. If rejection follows reconsideration, under clause 25 the selection commission must submit an alternative candidate. At this point the Minister can either:
102. If the Minister rejects the original name provided by the selection commission, under clause 25 it must submit an alternative candidate giving reasons for their choice. At this point the Minister can either:
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| © Parliamentary copyright 2004 | Prepared: 13 July 2004 |