Supplementary

     Clause 49: Records of the Supreme Court

173.     This clause amends the Public Records Act 1958 to ensure that records of the Supreme Court are included among the "court records" under the general supervision of the Public Records Office. This is achieved by amending the list in paragraph 4(1) of Schedule 1 to the Public Records Act 1958 to add to the list of courts therein an entry for the Supreme Court.

     Clause 50: Proceedings under jurisdiction transferred to Supreme Court

174.     This clause introduces Schedule 11, which makes transitional provision relating to proceedings which are pending in the House of Lords or Judicial Committee of the Privy Council under jurisdiction which is transferred from the House of Lords or the Judicial Committee to the Supreme Court by the Constitutional Reform Act 2004. The essence of the approach is that proceedings under such a transferred jurisdiction, which were begun in the House of Lords or Judicial Committee before the date of transfer of that jurisdiction, may be continued thereafter in the Supreme Court as if they had commenced in the Supreme Court, and anything done in accordance with the rules applicable to proceedings in the House of Lords or Judicial Committee (as the case may be) is to be treated as having been done in accordance with the corresponding rules of the Supreme Court. In addition, there is a saving for any acts, decisions or orders of the House of Lords or Judicial Committee in proceedings under a transferred jurisdiction, which will have the same effect, with further proceedings pursuant to or in respect of them being possible, as if they were acts, decisions or orders of the Supreme Court.

     Clause 51: Interpretation of Part 2

175.     Subsections (1) and (4) define the term 'high judicial office' for the purpose of the requirements of eligibility for qualification as a Supreme Court judge in clause 19, and for the purposes of eligibility to serve as an acting judge under clauses 32 and 33. This definition replaces that in section 25 of the Appellate Jurisdiction Act 1876.

176.     Subsection (1) also defines 'part of the United Kingdom', 'the Senior judges' and 'the Supreme Court' for the purposes of the Bill.

177.     Subsection 2a) defines the term 'ordinary judge' and subsection 2b and 2c defines the term "senior ordinary judge". This is of particular importance in determining the person before whom oaths are to be taken on appointment, and who will chair and sit on the selection commission provided for in schedule 9, should the President and Deputy President be unable to sit.

PART 3: JUDICIAL APPOINTMENTS AND DISCIPLINE

SUMMARY

178.     Chapter 1 of Part 3 creates a Judicial Appointments Commission (which is subject to more detailed provisions in Schedule 12), and a Judicial Appointments and Conduct Ombudsman (which is subject to more detailed provisions in Schedule 13). Chapter 2 sets out the process to be followed by the Commission and by the Minister in appointing the Lord Chief Justice and other Heads of Division, the Lords Justices of Appeal, and Puisne High Court Judges and other judicial office holders. Chapter 2 also provides for complaints about the appointments process to be made to the Judicial Appointments and Conduct Ombudsman. Chapter 3 makes provision for a disciplinary procedure in relation to the judiciary, applicable when the Minister is considering whether to exercise his statutory power to remove a judicial office-holder with the concurrence of the Lord Chief Justice, and when the Lord Chief Justice is considering whether to impose any lesser disciplinary sanction on such an office-holder with the concurrence of the Minister. There are new powers enabling the Lord Chief Justice to advise, warn or formally reprimand judicial office holders, and to suspend them in certain circumstances, subject to the agreement of the Minister, and to make regulations and rules about the process, with the agreement of the Minister. Chapter 3 also allows complaints to be made to the Judicial Appointments and Conduct Ombudsman about judicial disciplinary cases. Chapter 4 makes provisions in relation to confidentiality in relation to the Judicial Appointments and Conduct Ombudsman and about interpretation.

BACKGROUND

179.     The selection for appointment of judges in England and Wales has been primarily the responsibility of the Lord Chancellor. In carrying out this function, he is supported by officials from the Department for Constitutional Affairs. The precise responsibility for the actual appointments themselves varies according to the type of judicial appointment:

• Appointments to the offices of Lord of Appeal in Ordinary, the Heads of Division of the Supreme Court and Lord Justice of Appeal are made by The Queen on the recommendation of the Prime Minister as the Sovereign's principal adviser. It has been practice that the Prime Minister seeks advice from the Lord Chancellor in the first instance.

• Appointment to the offices of High Court Judge, Circuit Judge, Recorder, District Judge (Magistrates' Courts), Social Security Commissioners, the Judge Advocate General and the Judge Advocate of Her Majesty's Fleet are made by The Queen on the recommendation of the Lord Chancellor.

• The Lord Chancellor bears personal responsibility for making a wide range of full-time and part-time appointments to the judiciary, including to the offices of District Judge (Civil) and Deputy District Judge, and to a wide range of tribunals.

180.     The administration of the judicial appointments system is carried out on the Lord Chancellor's behalf by staff of the Legal and Judicial Services Group in the Department for Constitutional Affairs. A principal function of the Group is to supply all the information and advice which the Lord Chancellor requires to enable him to fulfil his responsibilities in this field, and to provide him with the material on which to make a fair and informed judgement about every appointment. This includes corresponding with, informing and interviewing those who are, or may become, candidates for appointment; consulting judges, members of the profession and others as required; administering the selection procedures; following and executing the Lord Chancellor's instructions and guidance, both on individual appointments and candidates; providing feedback as required on individual applications and on his general policy.

181.     The Bill creates a new independent Judicial Appointments Commission, which will assume responsibility for the process of selecting judges for appointment in England and Wales. The Judicial Appointments Commission will make recommendations to the Minister. No one may be appointed to the offices listed in Schedule 14 of the Bill who has not been selected by the Commission. The Commission will recommend one candidate for each vacancy. The Minister will either appoint or recommend for appointment the selected candidate, or will have the ability to reject a candidate, once, and to ask the Commission to reconsider, once. Having exhausted these options, the Minister must appoint or recommend for appointment whichever candidate is selected. The Bill makes special provision for the appointment of the Lord Chief Justice and Heads of Division and of Lords Justices of Appeal; in these cases the Commission will establish a selection panel of four members, consisting of two senior judges (normally including the Lord Chief Justice) and two lay members of the Commission. The appointments of Lords Justices and above will continue to be made by The Queen formally on the advice of the Prime Minister after the Commission has made a recommendation to the Minister.

182.     Schedule 12 sets out the membership of the Judicial Appointments Commission, and its powers and responsibilities, which will reflect its status as an Executive Non-Departmental Public Body. There will be a lay chairman and five other lay members, five judicial members, two legal professionals, a tribunal member and a lay magistrate. They will be supported by a Chief Executive and staff. The Bill requires that selections shall be made on merit. The Minister will be able to issue guidance to the Commission, which they must have regard to, but the detailed appointments procedures they will follow are a matter for them, and not prescribed in the Bill.

183.     The Lord Chancellor has had statutory powers to remove judicial office holders below the High Court (including tribunal members and lay magistrates) from office for incapacity or misbehaviour. These powers will be transferred by Schedule 1 to the Minister, to be exercised only if the Lord Chief Justice agrees. The Lord Chancellor has also had a more general disciplinary power in relation to judicial office holders, and has considered complaints about judicial conduct, and where necessary has advised, warned or formally reprimanded office holders. Part 3 of the Bill makes statutory provision for a disciplinary system in relation to judicial office holders, in cases falling short of removal, in which the Lord Chief Justice will have the power to advise, warn or reprimand judicial office holders, with the agreement of the Minister. The Lord Chief Justice will be given a power to suspend judges from sitting in certain circumstances, with the agreement of the Minister. The Lord Chief Justice will also have the power to make regulations and rules governing disciplinary cases, with the agreement of the Minister, and subject to Parliamentary approval in the case of regulations. The Judicial Appointments and Conduct Ombudsman will be able to consider complaints about disciplinary cases.

184.     It will remain the case that judges of the High Court and above can be removed only by The Queen on an Address from both Houses of Parliament

COMMENTARY ON CLAUSES

Chapter 1: Commission and Ombudsman

     Clause 52: The Judicial Appointments Commission

185.     Clause 52 establishes a Judicial Appointments Commission. The appointments below the Court of Appeal in which the Commission will be involved are listed in Schedule 14.

     Schedule 12: The Judicial Appointments Commission

     Part 1 The Commissioners

186.     This part of Schedule 12 sets out the number and balance of membership of the Judicial Appointments Commission.

     Paragraphs 1-6 The Commissioners

187.     Paragraph 1 requires there to be one chairman and 14 other Commissioners, to be appointed by The Queen on the recommendation of the Minister.

188.     Paragraph 2 provides for the chair to be a lay member. Of the other Commissioners, 5 must be judicial members, 2 must be professional members, 5 must be lay members, 1 other must be the holder of an office listed in Part 3 of Schedule 12 (which lists members of tribunals and other similar office holders who will be appointed by the Minister), and one other must be a lay justice member. The judicial members must be made up of one Lord Justice of Appeal, one puisne judge of the High Court, one judge who is either a Lord Justice of Appeal or a puisne judge of the High Court, one Circuit Judge and one District Judge. The two professional members must be a practising barrister and a practising solicitor. If a Commissioner's professional status changes to another of the categories of membership of the Commission, he is not taken into account for that category.

189.     Paragraph 3 specifies that a person cannot be appointed as a Commissioner if he is a member of the House of Lords or a civil servant. This is to ensure the political neutrality of the Commission (membership of the House of Commons is dealt with by disqualification by virtue of paragraph 37).

190.     Paragraph 4 sets out further definitions of what is meant by judicial, professional, lay and lay justice member. A judicial member holds one of the offices specified in paragraph 2 and is not a practising lawyer. A professional member is a practising barrister or solicitor (defined in paragraph 6 as including lawyers who give legal advice under a contract for services). A lay member is an England and Wales resident who has never been a holder of a listed judicial office (that is an office listed in schedule 14) or a practising lawyer.

191.     Paragraph 5 allows the Minister to increase the size of the Commission, by increasing the size of any or all of the different categories of Commissioner. He can only do this by order, subject to affirmative resolution and with the agreement of the Lord Chief Justice. This is to prevent a Minister altering the balance of the Commission in one direction or another without the agreement of the Lord Chief Justice.

     192.     Paragraph 6 provides definitions of terms used in the Schedule.

     Paragraph 7 Requirement for selection

     193. Paragraph 7 provides that in selecting the three senior Judges, the judges drawn from the Court of Appeal and the High Court, for the Commission the Judges' Council must give reasons for their selection to the Minister. The Judges Council is defined as the body designated for that purpose by the Lord Chief Justice. The Minister will only be able to recommend persons for appointment as the other members of the Commission if a panel has selected them.

     Paragraph 8 Panels

     194.     Paragraph 8 provides for a panel to select the Commissioners, with the exception of the three senior Judges. The panel will comprise a chairman, chosen by the Minister with the agreement of the Lord Chief Justice (or if the post of Lord Chief Justice is vacant then with the agreement of the senior Head of Division); the Lord Chief Justice or his nominee, unless the office of the Lord Chief Justice is vacant, when it will be the senior Head of Division or his nominee; a third member chosen by the chairman; and the chairman of the Commission when there is one and that is not the post being appointed to. Members of the panel must not be civil servants. In addition the chairman of the panel must not be a Commissioner, a member of the Commission's staff, a practising lawyer, a judicial office holder listed in Schedule 14, or a member of either House of Parliament. The third member must not be a member of either House of Parliament. In selecting the first member, consideration must be given to whether the person being appointed has previously exercised any judicial functions or has any past service as a civil servant, a Commissioner, a member of the Commission's staff, a practising lawyer, a judicial office holder listed in Schedule 14, or a member of either House of Parliament such as would make them inappropriate for appointment.

     195.      Paragraph 9 provides for the Minister to pay the panel fees and expenses.

     Paragraph 10 Selection by a panel

196.     The panel must take account of any views expressed by the Bar Council and Law Society in appointing the barrister and solicitor members respectively. Before selecting the chairman and the other lay members, the panel must consider whether they have exercised any functions which make them inappropriate for the appointment. Those functions expressed in the same terms as for the first member as set out above. The panel must also ensure that one of the selected lay members has special knowledge of Wales.

     Paragraph 11 Vice-chairman

     197.     This paragraph provides that the senior judicial member of the Commission will be the vice-chairman who will be able to exercise the functions of the chairman, other than those of sitting on the panel for selecting members of the Commission and sitting on the selection panels for Heads of Division and for Lords Justices of Appeal.

     Paragraphs 12- 15 Term of office etc. of Commissioners

198.     Paragraphs 12 to 15 provide for the term of office of the Commissioners. The length of tenure will be a fixed term of up to five years and they will be able to serve for a further term of up to five years, making a total of ten years but no longer. Commissioners lose their places if they cease to qualify for the category of membership under which they were appointed. Commissioners also lose office if they become a member of the House of Lords or are appointed to the civil service. The Minister may in certain instances allow a Commissioner to continue in office even if they do not fulfil the requirement of that office. For example, if a member had particular skills or a background which was required for a particular competition that is being run by the Commission, then the Minister can allow him to continue in office. If a Commissioner resigns he must do so by writing to The Queen. Commissioners can be removed from office by The Queen on the recommendation of the Minister. Paragraph 15 (2) specifies when the Minister may recommend that a Commissioner be removed from office. They are that the person has failed to exercise their functions for a continuous period of six months; or they have been convicted of an offence; or have been made bankrupt; or are otherwise unfit to hold office or unable to exercise their functions.

Paragraph 16 Term of office etc. of chairman

199.     The chairman ceases to be a chairman if he ceases to be a. Commissioner.

Paragraph 17 Salary, allowances and expenses

200.     This paragraph makes provision for the Commission to pay fees, expenses, pensions and any other allowances in respect of Commissioners and former Commissioners. These payments will be determined by the Minister.

Paragraph 18 Code of conduct

201.     This paragraph specifies that there will be a code of conduct to be observed by the Commissioners, which will be issued and revised as appropriate by the Minister.

Part 2 The Commission

202.     Part 2 sets out the status and functions of the Commission.

     Paragraph 19 Status of the Commission and its property

203.     This paragraph specifies that the Commission is not to be regarded as part of the Government; it will be a non-departmental public body.

Paragraph 20 Powers

204.     This paragraph allows the Commission to do anything to enable it to perform its functions, but does not allow the Commission to borrow money unless the Minister has given permission for it to do so.

Paragraph 21 Committees

205.     This paragraph allows the Commission to establish committees, and its committees to establish sub-committees, in order for it to undertake its business and allows the Commission to delegate activities to these committees and sub-committees. It allows only Commissioners to be members of the committees and sub-committees. Making a selection in respect of a judicial appointment may only be delegated to committees or sub-committees which include at least one judicial and one lay member. The requirements of this paragraph in relation to committees and sub-committees do not apply to the selection panels for senior appointments, which are provided for separately.

Paragraph 22 Procedure and proceedings

206.     This paragraph specifies that the Commission may control how it conducts its business and those of its committees and sub-committees including the numbers of members that must be present to make the proceedings valid, which in the case of a committee or sub-committee exercising certain functions must be 3. The proceedings of the Commission or a committee or a sub-committee are still valid even if one of the posts on the Commission is unoccupied or if a member has been appointed in a defective way.

Paragraph 23 Staff

207.     This paragraph makes provision for the Commission to appoint a Chief Executive and staff, to include staff who may transfer from other government departments to enable it to undertake its objectives. The Minister has to agree to the appointment of the Chief Executive. The terms and conditions of service of the Commission will be set by the Commission and agreed by the Minister. The Commission will pay staff, as set out in their terms and conditions and in doing so will take account of the pay and terms and conditions operating in the Civil Service. The Commission will appear in Schedule 1 to the Superannuation Act 1972. The Commission must pay for any increase attributable to its inclusion in the Schedule to the Superannuation Act 1972 that the Minister of the Civil Service requires. Staff in the Commission are not subject to the Crown, neither do they have status, immunity or privilege of the Crown.

     Paragraph 24 Arrangements for assistance

208.     This paragraph allows for the Commission, with the agreement of the Minister, to make arrangements for people to provide assistance to it. This would enable it to contract out services as it sees fit and in doing so to pay for such services.

Paragraph 25 Appointments and arrangements by the Minister

209.     This paragraph allows for the Minister to appoint a Chief Executive for an interim period prior to a Chief Executive being appointed in accordance with paragraph 23(1)(a). The Minister cannot exercise this power after the end of 3 years from the day on which the Commission is first constituted under paragraph 1, or after such earlier time as the Commission itself may decide.

Paragraph 26 Arrangements by the Minister

210.     This paragraph allows the Minister to appoint staff to the Commission and make contracting out arrangements as appropriate. The Minister's cannot exercise these powers after the end of 3 years from the date on which the Commission is first constituted under paragraph 1, or at such earlier time as the Commission itself may decide. If a Chief Executive has been appointed to the Commission, the Minister cannot exercise these powers without the Chief Executive's agreement.

Paragraph 27 Power to transfer staff to employment of the Commission

211.     This paragraph makes provision for the Minister to provide regulations for relevant staff to be transferred to the Commission. Such staff must be current civil servants who are providing assistance in the Commission. Before making these regulations the Minister must consult organisations that appear to him to represent the interests of those likely to be affected by the regulations, such as Trade Unions. The Minister can only exercise this power before the Commission is first constituted in accordance with paragraph 1 and with the agreement of the Commission, during the period of 3 years from that time.

Paragraph 28 Delegation to staff

212.     This paragraph provides for the Commission, a committee or sub committee or the Chief Executive to delegate any activities to staff, secondees, and to people providing assistance e.g. those with whom contracting out arrangements are made or who are providing services in connection with such arrangements. The Commission, a committee or a sub committee cannot delegate its function of making recommendations in relation to judicial appointments.

Paragraph 29 Delegation and contracting out of superannuation functions

213.     This paragraph allows for the Chief Executive to assume powers in relation to the Superannuation Act 1972 and such powers can be delegated by the Chief Executive to anyone he authorises. The Chief Executive or his delegate may authorise the contracting out of any superannuation functions but the Commission or the Chief Executive may revoke such actions at any time.

Paragraph 30 Inspection of documents

214.     This paragraph allows for the Commission to allow anyone authorised by the Minister, for example auditors, to look at or to copy accounts and any other papers which the Minister considers relate to the Commission's expenditure. In doing this, the Commission must give details of the information contained in the accounts and any other material.

Paragraph 31 Financial provisions and directions

215.     This paragraph provides for the Minister to determine the amount of money to the Commission that he determines to be appropriate for it to exercise its functions. The Commission will need to follow the financial procedures set down by the Minister. It also provides for the Minister to require the Commission not to incur specific or total expenditure above a specified threshold to ensure he has the appropriate financial control over the Commission, for which he will be accountable to Parliament.

Paragraph 32 Accounts and audit

216.     This paragraph obliges the Commission to maintain accurate financial systems and to prepare accounts each financial year, which are an accurate reflection of its income and expenditure. In preparing its accounts, which must be sent to the Minister when he asks, the Commission must comply with any instructions from the Minister and the Treasury. The accounts must be sent to the Comptroller and Auditor General by the 31st August for the financial year last ended, who will scrutinise them and prepare a report which, together with the accounts, will be laid before each House of Parliament.

Paragraph 33 Reports

217.     This paragraph specifies that the Commission will produce annually for the Minister a report detailing its activities. The Minister may oblige the Commission to produce a report on any subject, which must be reported expeditiously. The Minister must consult the Lord Chief Justice before requiring the Commission to deal with a particular subject in its reports. The annual report must be laid before Parliament and published. Other reports which, for example, might contain confidential information, would not be laid before Parliament.