Clause 24: Exercise of powers to reject or require reconsideration

103.     This clause details the grounds upon which the Minster can exercise his powers to reject or require reconsideration of a selection, as provided for in clause 23.

104.     The right of rejection is only exercisable according to subsection (1) when in the Minister's opinion the person selected is not suitable for the office concerned.

105.     The right to require reconsideration, as stated in subsection (2), is exercisable under three conditions subject to the Minister's opinion. The Minister can ask for reconsideration if he feels there is not enough evidence that the person is suitable for office; if he feels there is not enough evidence that person is the best candidate on merit; or if there is not enough evidence that the judges of the court will between them have enough knowledge of, and experience in the laws of each parts of the United Kingdom, following the new appointment.

106.     Should the Minister exercise either of these options, under subsection (3) the Minister must provide his reasons in writing.

     Clause 25: Selection following rejection or requirement to reconsider

107.     This clause makes provision for the process that the selection commission must follow if the Minister requests reconsideration of a selection, or rejects a selection, under clause 23.

108.     As provided by subsections (2) and (3) the commission can never put forward a candidate whose selection has been rejected at any stage of the process.

109.     Subsection (3) provides that the commission can reselect a candidate whose selection the Minister has requested be reconsidered or provide another candidate, but not a candidate whose selection has already been rejected.

110.     Subsection (4) states that the commission must inform the Minister of the person selected following rejection or requirement for reconsideration.

     Terms of Appointment

     Clause 26: Oath of allegiance and judicial oath

     111.     This clause provides for every judge of the Supreme Court (which includes the President and Deputy President) to be required to take the oath of allegiance to the Sovereign and the Judicial Oath, as soon as practical, after accepting that office. The required oaths are described in subsection (6) and are those set out in the Promissory Oaths Act 1868. Separate provision is made for the taking of the oaths on appointment as President, Deputy President, and judge.

112.     Subsection (1) requires the President to take the oaths in the presence of the Deputy President, or, if there is no Deputy President, the senior ordinary judge ("senior ordinary judge" being defined in clause 52(2)).

113.     Subsection (2) requires the Deputy President to take the oaths in the presence of the President, or, if there is no President, the senior ordinary judge.

114.     Subsection (3) provides that a judge of the Court (excluding the President and Deputy President - see subsection (5)) must take the oaths in the presence of the President, or, if there is no President, the Deputy President, or if there is no Deputy President, the senior ordinary judge.

115.     Subsection (4) provides that the President and Deputy President are required to take the oaths in terms of subsections (1) and (2) whether or not the person appointed as President or Deputy President has previously taken the oaths after accepting another office. For example, a person appointed as President having previously served as Deputy President will be required to take the oaths on appointment as President even though he took them on appointment as Deputy President.

116.     Subsection (5) provides that a judge of the Court who becomes a Supreme Court judge by virtue of his appointment directly to the Court as President or Deputy President does not have to take the oaths in terms of subsection (3) - that is to say, in those circumstances, the person appointed as President or Deputy President takes the oaths only once, on account of the appointment as President.

     Clause 27: Tenure

117.     This clause provides for the full time judges of the Supreme Court to hold office while they are of good behaviour, as is presently the case for Lords of Appeal in Ordinary. This is of course subject to the possibility of resignation, and the provision for retirement, set out in clauses 29 and 30.

118.     This clause also provides, consistently with the position of all senior judicial office holders, that removal from office of any judge of the Supreme Court may only be effected following resolutions passed by both the House of Commons and the House of Lords.

     Clause 28: Salaries and allowances.

119.     This clause provides, in terms which reproduce the effect of the provisions governing these matters for Lords of Appeal in Ordinary, for Justices of the Supreme Court to receive a salary and allowance, detailing how the salary and allowance is to be determined and from where the salary and allowance is paid.

120.     Subsection (2) sets out that the amount of the salary is to be determined by the Minister with the agreement of the Treasury. Subsection (3) makes transitional provision to the effect that at the commencement of the provisions establishing the Supreme Court, the salaries of the first judges of the Supreme Court will remain the same as those received by them as Lords of Appeal in Ordinary immediately before commencement. Subsection (4) provides for these salaries, consistently with other judicial salaries, to be capable of being increased but not reduced.

121.     Subsection (5) provides that the salary will be paid out of the Consolidated Fund of the United Kingdom.

122.     Subsection (6) provides that the Minister may determine, in agreement with the Treasury an allowance to be paid to a judge of the Court, which will be paid out of money provided Parliament. This is in addition to the judicial salary, to provide flexibility.

     Clause 29: Resignation and retirement

123.     This clause makes provision for the resignation or retirement of judges of the Supreme Court.

124.     Under subsection (1) any judge of the Supreme Court (including the President and Deputy President) may at any time resign from that office. Resignation is effected by being given in writing to the Minister.

125.     Subsection (2) makes separate provision for resignation from the office of President or Deputy President. The holder may so resign without resigning from the office of a judge of the Supreme Court. The resignation is again effected by being given in writing to the Minister.

126.     Subsection (3) provides for a consequential amendment for section 26(4) (a) of and Schedule 5 to the Judicial Pensions and Retirement Act 1993(C.8) (retirement), so that references to "Judge of the Supreme Court" will be substituted for "Lord of Appeal in Ordinary". The effect of this amendment is that the retirement age and associated provisions as to retirement which apply to Lords of Appeal in Ordinary will apply in the same way to judges of the Supreme Court.

          Clause 30: Medical Retirement

127.     This clause makes provision analogous to that for other senior judicial office holders for vacation of the office of a judge of the Supreme Court (including the President and Deputy President) on medical grounds.

128.     Subsection (1) provides for the scope of the clause: it applies if the Minister is satisfied by means of a medical certificate that the person holding office as a judge of the Supreme Court is both disabled by permanent infirmity from performing his duties and for the time being is incapacitated from resigning from his office.

129.     In such circumstances, subsection (2) enables the Minister to declare the office of the person in question to be vacated (subject to the conditions in subsection (4)). Subsection (3) provides for this declaration to have effect as though the person in question had himself or herself resigned on the date of the declaration. Subsection (4) requires the Minister, before making a declaration, to secure the agreement of the appropriate judge of the Supreme Court (depending on the office which would be vacated). Without that agreement, the declaration will have no effect. In the case of an ordinary judge (as defined in subsection (7)), the agreement required is that of the President and Deputy President of the Court; in the case of the President, the agreement required is that of the Deputy President and the senior ordinary judge (as defined in subsection (5)); and in the case of the Deputy President, the agreement required is that of the President and the senior ordinary judge.

130.     Subsection (5) defines the "senior ordinary judge" as the ordinary judge (defined in subsection (7) as a judge of the Supreme Court other than the President or Deputy President) who has served longest as a judge of the court (whether over one or more periods and whether or nor always as an ordinary judge). Subsection (6) "carries over" seniority for this purpose, providing that service as a Lord of Appeal in Ordinary counts as service as judge of the court in defining the senior ordinary judge.

     Clause 31: Pensions

131.     This clause makes amendments to the Judicial Pensions Act 1981 and Judicial Pensions and Retirements Act 1993 to substitute 'Judge of the Supreme Court' for 'Lord of Appeal in Ordinary'. These amendments are to ensure that the pension provision currently enjoyed by the Lords of Appeal in Ordinary will transfer over to the Justices of the Supreme Court, and that individual members of the Supreme Court who were previously Lords of Appeal in Ordinary will retain the pension benefits accrued in the former capacity and that those benefits will continue to accrue in the same way relative to their service as judges of the Supreme Court as they did relative to their service as Lords of Appeal in Ordinary.

132.     Furthermore, subsection (3) provides that the amendments made to the 1981 and 1993 acts do not affect the operation of any provision or anything done under a provision in relation to the office of, or service of, Lord of Appeal in Ordinary. This ensures that any retired Lords of Appeal in Ordinary are not affected adversely by the changes to legislation.

Acting Judges

     Clause 32: Acting Judges

133.     This clause makes provision enabling the Supreme Court to have access to additional Judges beyond its permanent membership to supplement the permanent members of the Supreme Court where necessary; sets out the mechanism for determining the "pool" from which acting judges will be drawn; and sets out the terms and conditions of any service as an acting judge.

134.     Subsection (1) sets out the basic proposition that certain persons may act as judges of the Court if the President so requests. The persons who may be so requested are the present holders of high judicial office (defined in clause 51(1)) who are also members of the Privy Council and in addition those who are members of the supplementary panel (about which provision is made in clause 33. As provided for in subsection (2) the Deputy President can make this request if circumstances require.

135.     Subsection (3) amends the Judicial Pensions and Retirement Act 1993 with the effect that acting judges cannot sit in the Supreme Court once they are 75, bringing them into line with the provisions for continued sitting by retired Lords of Appeal in Ordinary and other "Lords of Appeal" (other than the Lord Chancellor) entitled to sit in the House of Lords at present.

136.     Subsection (4) provides that any acting judge sitting in the Supreme Court should be treated for all purposes as a permanent judge of the Supreme Court (with the exception of the provisions as to appointment, tenure, remuneration, etc. listed in subsections (5) and subsection (6)), and may accordingly perform any of the functions of a permanent judge of the court.

137.     Subsection (7) provides for the remuneration and allowances for acting judges, which is to be determined by the Minister with the agreement of the Treasury and paid from money provided by Parliament.

Clause 33: Supplementary panel

138.     This clause makes provision for the constitution of the Court's supplementary panel (from which judges can be drawn to supplement the permanent membership of the court).

139.     Subsection (1) provides that a person will become a member of the Supplementary panel on ceasing to hold high judicial office as defined in subsection (1) of clause 51 provided approval is given as laid out in sub-paragraphs (a) and (b), unless the person ceasing to hold high judicial office is the President of the Court (subsection (2)), in which case, by virtue of subsection (3), that person automatically becomes a member of the supplementary panel, unless he or she notifies unwillingness to become a member of the panel, was removed from office for misbehaviour, or retired from office on grounds of incapacity, as set out in sub-paragraphs (a-c).

     140.     Subsection (4) provides for resignation from the panel (by notice in writing to the Minister). Subsection (5) provides for retirement from the panel, which is to be at the age of 75 or five years after joining the panel, whichever is earlier.

Jurisdiction

     Clause 34: Jurisdiction

141.     This clause makes provision for the jurisdiction of the Supreme Court, which is in essence that of the House of Lords in appellate matters together with the jurisdiction of the Judicial Committee of the Privy Council in relation to devolution issues under the Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland Act 1998.

142.     Subsection (1) provides that the Supreme Court is to be, as is the House of Lords, a superior court of record under subsection (1).

143.     Subsections (2) and (3) effectively reproduce the effect of section 3 of the Appellate Jurisdiction Act 1876, conferring on the Supreme Court the same appellate jurisdiction exercised by virtue of that section by the House of Lords. Other appellate jurisdiction of the House of Lords, and the devolution issues jurisdiction of the Judicial Committee of the Privy Council, is transferred by virtue of subsection (4) and Schedule 8 brought in by that subsection.

144.     Since the provisions work by transferring the existing jurisdiction, the appeal process and the types of appeal from each jurisdiction, including leave requirements, and the routes of recourse otherwise, will remain the same as is currently the case for the House of Lords and Judicial Committee of the Privy Council.

     145.     Subsection (5) makes provision that the Supreme Court will have the power, as does the House of Lords, to determine any questions it deems necessary to determine, for the purposes of doing justice in an appeal to it, under this Act or any other Act.

Composition for Proceedings

     Clause 35: Composition

146.     The Supreme Court will, like the House of Lords, be able to sit in panels. Clause 35, together with clause 36, makes provision for the composition of panels. The basic rule, provided in subsection (1), is that the Court will be duly constituted if it comprises an uneven number of judges greater than three, at least one of whom is a permanent member of the Court (which is to say, not an acting judge: see subsection (5)). This is however subject to the possibility, set out in subsections (2) and (3), of directions by the President requiring a higher quorum, both for certain classes of proceedings, and for specific proceedings (for example, an individual appeal of particular significance where a seven-judge panel might be considered appropriate). It is also subject to the provision made in clause 35 for cases where the composition of the panel is affected during the course of proceedings.

Clause 36: Changes in Composition

147.     This clause provides for the eventuality of the Court being reduced in number, for example due to death or illness, before the end of proceedings. The basic rule in subsection (2) is that, as long as the court is not thereby reduced to fewer than three judges, it will remain properly constituted, even through it may be taken below a number specified by the President as the minimum for proceedings of that class, or as the number for those specific proceedings; or if it thereby ceases to include a permanent judge. This is, however, subject to any directions which the President may make, under subsection (3), to address the particular circumstances (for example, to recommence proceedings with a full complement, if the reduction occurred very close to the start of proceedings). Subsection (4) makes provision for the possibility that the Court may be reduced to an even number of judges and proceed to its decision, and be evenly divided. In such a case, the matter will be reheard before a court properly formed in accordance with clause 35.

Practice and Procedure

     Clause 37: Specially qualified advisers

148.     This clause makes provisions for the Supreme Court to have specially qualified advisers to assist it in its work for the purpose of hearings that may require specialist support. This derives from existing provision in the Supreme Court of Judicature Act 1891 (section 3) and the Judicial Standing Orders of the House of Lords (Order XVI).

149.     Subsection (1) makes the basic provision empowering the Court, if it thinks it is necessary, to hear and dispose of proceedings, either wholly or in part, with the assistance of one or more specially qualified advisers.

150.     Subsection (2) provides that any remuneration payable to an expert adviser is to be determined by the Court unless otherwise agreed between the adviser and the parties to the proceedings. This remuneration as set out in subsection (3) will form part of the costs of the proceedings.

     Clause 38: Making of Rules

151.     This clause, together with clause 39, sets out how Rules of Court will be made for the Supreme Court.

152.     Subsection (1) provides for the President of the Supreme Court to make rules dealing with the Court's practice and procedure. This power is in part analogous to the way in which the House of Lords regulates its work through its Standing Orders and Practice Directions.

153.     Subsection (2) provides that the power to make rules includes the power to provide rules for different cases, including different proceedings such as civil and criminal proceedings and on devolution matters.

154.     Under Subsection (3) the President is obliged to exercise the rule-making power with a view to ensuring that the Court is accessible, fair and efficient and the rules are simple and simply expressed.

     Clause 39 Procedure after Rules made

155.     By virtue of clause 39, rules made by the President are to be submitted to the Minister, who may allow or disallow (but not amend) them. Rules so allowed are by virtue of subsection (3) to come into force on such day as the Minister directs, and be contained in a statutory instrument to which the Statutory Instruments Act 1946 will apply as if it contained rules made by a Minister of the Crown, which instrument is, by virtue of subsection (4), to be subject to negative resolution procedure.

     Clause 40: Photography etc

156.     This clause removes the prohibition on photography in Section 41 of the Criminal Justice Act 1925 and in Section 29 of the Criminal Justice Act (Northern Ireland) 1945 (both of which prohibit the taking of photographs in all courts) in relation to the Supreme Court, by changing the definition of 'court' in those provisions to include all courts of justice except the Supreme Court.

Resources

     Clause 41: Minister's duty

157.     Subsection (1) of this clause places a general statutory duty (referred to hereafter, by virtue of subsection (2), as the Minister's general duty in relation to the Supreme Court) upon the Minister to ensure both that there is an efficient and effective administrative system put in place so that the Supreme Court can carry on its business and that appropriate services are provided for the Supreme Court.

     Clause 42: Officers and staff: appointment by Minister

158.     This clause enables the Minister to ensure that the Supreme Court is provided with appropriate administrative support, by empowering him to appoint such officers and staff to the administration of the Supreme Court as he thinks fit in order to discharge his general duty under clause 41.

     Clause 43: Staff: provision by third parties

159.     This clause allows the Minister to make staffing arrangements as defined by subsection (2) for the Supreme Court by entering into contracts with other persons, including sub-contractors, in order to fulfil his obligations under the general duty.

160.     Subsection (3) places a limit on the powers of the Minister to enter into contracts, by ensuring that he cannot make contracts containing arrangements which have not been authorised by an order made under subsection (4).

161.     Subsection (4) provides the statutory authority for the Minister to make orders with regard to staffing arrangements. Orders made under this clause will be made by statutory instrument subject to negative resolution procedure, by virtue of clause 106, and no order may be made unless the Minister has first consulted the senior judges listed in subsection (5) about the effect that the order in question might have on the proper and efficient administration of justice.

     Clause 44: Services: provision by third parties

162.     Clause 44 allows the Minister to make service arrangements, as defined in subsection (2), including sub-contracting to third parties, for the provision of services to the Supreme Court, such as catering, cleaning and security, in order to fulfil his obligations under the general duty.

     Clause 45: Accommodation

163.     Subsection (1) of this clause enables the Minister to provide accommodation and facilities for the use of the Supreme Court in order to discharge his general duty under clause 41.

164.     Subsection (2) allows the Minister to enter into contracts with other persons to provide accommodation and facilities for the use of the Supreme Court.

165.     Subsection (3) defines 'accommodation arrangements' for the purposes of subsections (1)-(2).

166.     Subsection (4) makes provision extending certain powers to acquire land so that they are available to the Minister for the purpose of providing accommodation under this clause.

167.     Subsection (5) defines a "court-house" for these purposes to include the precincts of any building in which the Supreme Court sits.

     Clause 46: Annual Report

168.     This clause places a statutory duty on the Minister, by virtue of subsection (1) to prepare an annual report on the way in which he has discharged his general duty in relation to the Supreme Court, and by virtue of subsection (2), to lay that Report before both Houses of Parliament.

     Fees

     Clause 47: Fees

169.     This clause should be read together with clause 48, which makes supplementary provision about fees. Subsection (1) of this clause provides for the Minister to have a power by order (which by virtue of clause 106 is to be by statutory instrument subject to negative resolution procedure) to prescribe the fees payable in respect of any matter dealt with by the Supreme Court. By virtue of subsection (2), the power encompasses a power to exempt, remit or reduce fees, and to specify the criteria by which exemptions, reductions and remissions are to operate. Its exercise is, by virtue of subsection (3), subject to a duty on the Minister to have regard to the principle that access to the courts should not be denied. By virtue of subsection (4), the exercise of the power is also subject to a requirement of prior consultation of the President and Deputy President of the new Supreme Court, and the senior judiciary in each of the three jurisdictions.

     Clause 48: Fees: Supplementary

170.     This clause supplements clause 47. Subsection (1) provides that Supreme Court fees are to be recoverable as a civil debt (mirroring the general position in relation to court fees).

171.     Subsection (2) places the Minister under a duty to take such steps as are reasonably practicable to bring information about fees to the attention of those who are likely to have to pay them.

172.     Subsection (3) defines "Supreme Court fees" (as fees prescribed in an order under the foregoing clause).