Constitutional Reform Bill [HL]

House of Lords

Session 2002 - 03
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Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 3 — Discipline
37

88
Disciplinary powers: interpretation
(1)
This section has effect for the purposes of section 87.
(2)
A judicial office holder is subject to criminal proceedings from the time when
he is committed for trial on indictment for an offence to the time when the
proceedings against him for the offence, including any appeal by him or by the
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prosecution, are concluded.
(3)
A senior judge is subject to proceedings for an Address from the time when
notice of a motion is given in each House of Parliament for an Address for the
removal of the judge from office, until the earliest of the following events—
(a)
either notice is withdrawn;
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(b)
either motion is withdrawn or lapses;
(c)
either motion is amended or disagreed to;
(d)
where an Address is presented by each House, a message is brought to
each House from Her Majesty in answer to the Address.
(4)
“Judicial office holder” means—
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(a)
a senior judge, or
(b)
the holder of an office listed in Schedule 12, other than a puisne judge
of the High Court.
(5)
“Senior judge” means any of these—
(a)
Master of the Rolls;
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(b)
President of the Queen’s Bench Division;
(c)
President of the Family Division;
(d)
Chancellor of the High Court;
(e)
Lord Justice of Appeal;
(f)
puisne judge of the High Court.
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(6)
“Sentence” includes any sentence other than a fine (and “serving” is to be read
accordingly).
(7)
“Subject to disciplinary procedures” and “under investigation for an offence”
have such meaning as may be prescribed.
89
Regulations about procedures
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(1)
The Lord Chief Justice may, with the agreement of the Minister, make
regulations providing for the procedures that are to be followed in the
investigation and determination by the Lord Chief Justice or the Minister of
allegations by any person of misconduct by judicial office holders.
(2)
The regulations are to be made in the form of a statutory instrument to which
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the Statutory Instruments Act 1946 (c. 36) applies as if the regulations were
made by a Minister of the Crown.
(3)
Any such statutory instrument is subject to annulment in pursuance of a
resolution of either House of Parliament.
90
Contents of regulations
40
(1)
Regulations under section 89 may include provision as to any of the
following—

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 3 — Discipline
38

(a)
circumstances in which an investigation must or may be undertaken
(on the making of a complaint or otherwise);
(b)
steps to be taken by a complainant before a complaint is to be
investigated;
(c)
the conduct of an investigation, including steps to be taken by the office
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holder under investigation or by a complainant or other person;
(d)
time limits for taking any step and procedures for extending time
limits;
(e)
persons by whom an investigation or part of an investigation is to be
conducted;
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(f)
matters to be determined by the Lord Chief Justice, the Minister, the
office holder under investigation or any other person;
(g)
requirements as to records of investigations;
(h)
requirements as to confidentiality of communications or proceedings;
(i)
requirements as to the publication of information or its provision to any
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person.
(2)
The regulations—
(a)
may require a decision by the Lord Chief Justice or the Minister as to
the exercise of functions under section 87, or functions mentioned in
subsection (1) of that section, to be taken in accordance with findings
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made pursuant to prescribed procedures;
(b)
may require that prescribed steps be taken by the Lord Chief Justice or
the Minister in exercising those functions or before exercising them.
(3)
The regulations may provide for any prescribed requirement not to apply if the
Lord Chief Justice and the Minister so agree.
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(4)
Where the regulations impose any requirement on the office holder under
investigation or on a complainant, a person contravening the requirement does
not incur liability other than liability to such procedural penalty if any (which
may include the suspension or dismissal of a complaint)—
(a)
as may be prescribed by the regulations, or
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(b)
as may be determined by the Lord Chief Justice and the Minister or
either of them in accordance with provisions so prescribed.
(5)
The regulations may make different provision for different purposes.
(6)
Nothing in this section limits the generality of section 89.
91
Procedural rules
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(1)
Regulations under section 89 may provide for provision of a prescribed
description that may be included in the regulations to be made instead by rules
made by the Lord Chief Justice with the agreement of the Minister.
(2)
But the provision that may be made by rules does not include—
(a)
provision within section 90(2);
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(b)
provision made for the purposes of section 90(4).
(3)
The rules are to be published in such manner as the Lord Chief Justice may
determine with the agreement of the Minister.

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 3 — Discipline
39

Complaints and references
92
Investigations by the Ombudsman relating to conduct
(1)
Subsections (2) and (3) apply to a complaint by a person within subsection (4)
of—
(a)
a failure by the Lord Chief Justice, the Minister or any other person to
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comply with prescribed procedures, or
(b)
other maladministration in an investigation or determination to which
such procedures apply.
(2)
If the Ombudsman considers that investigation of the complaint is not
necessary, he must inform the complainant.
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(3)
Otherwise he must investigate the complaint.
(4)
The persons who may make a complaint under this section are these—
(a)
the judicial office holder who was the subject of the investigation or
determination concerned;
(b)
a complainant under regulations under section 89.
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(5)
Subsection (1) does not apply to a complaint such as is mentioned there if it is
made to the Ombudsman more than 28 days after the latest of —
(a)
the matter complained of;
(b)
the complainant being notified of the conclusion or other termination
of an investigation to which the complaint relates;
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(c)
the complainant being notified of a determination to which the
complaint relates.
(6)
A complaint under this section must be in a form approved by the
Ombudsman.
93
Report and recommendations
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(1)
The Ombudsman must prepare a report on any complaint he has investigated
under section 92.
(2)
The report must state—
(a)
what findings the Ombudsman has made;
(b)
whether he considers the complaint should be upheld in whole or part;
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(c)
if he does, what if any action he recommends should be taken by the
Lord Chief Justice or the Minister as a result of the complaint.
(3)
The recommendations that may be made under subsection (2)(c) include
recommendations for the payment of compensation.
(4)
Such a recommendation must relate to loss which appears to the Ombudsman
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to have been suffered by the complainant as a result of maladministration.
94
Report procedure
(1)
This section applies to a report under section 93.
(2)
The Ombudsman must submit a draft of the report to the Lord Chief Justice
and to the Minister.
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Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 4 — General
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(3)
In finalising the report the Ombudsman—
(a)
must have regard to any proposal by the Lord Chief Justice or the
Minister for changes in the draft report;
(b)
must include in the report a statement of any such proposal not given
effect to.
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(4)
The report must be signed by the Ombudsman.
(5)
The Ombudsman must send the report in duplicate to the Lord Chief Justice
and to the Minister.
(6)
The Ombudsman must send a copy of the report to the complainant, but that
copy must not include confidential information within the meaning of section
10
96 which relates to an individual other than the complainant.
95
References to the Ombudsman relating to conduct
(1)
The Ombudsman must investigate any matter referred to him by the Lord
Chief Justice or the Minister relating to an investigation or determination to
which prescribed procedures apply.
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(2)
The matter may relate to the investigation or determination of a particular
complaint or complaints of any description.
(3)
The Ombudsman must report to the Lord Chief Justice and the Minister on any
investigation under this section.
(4)
The report must state—
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(a)
what findings the Ombudsman has made;
(b)
what if any action he recommends should be taken by any person in
relation to the matter.
(5)
The report must be signed by the Ombudsman.
Chapter 4
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General
96
Confidentiality
(1)
A person who is or has been the Ombudsman, a member of the Ombudsman’s
staff or an agent of the Ombudsman must not disclose confidential information
except with lawful authority.
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(2)
Information is confidential if each of the following applies—
(a)
it has been obtained by or provided to the Ombudsman under or for the
purposes of this Part;
(b)
it relates to an identified or identifiable individual;
(c)
it is not, and has never been, available to the public from other sources.
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(3)
Confidential information is disclosed with lawful authority only if and to the
extent that any of the following applies—
(a)
the disclosure is with the consent of the individual;
(b)
the disclosure is for (and is necessary for) the discharge of functions of
the Ombudsman under this Part;
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Constitutional Reform Bill [HL]
Part 4 — Other provisions relating to the judiciary
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(c)
the disclosure is for (and is necessary for) the purposes of proceedings
(whether civil or criminal and whether or not arising under this Part).
(4)
A contravention of this section in respect of any information is actionable
subject to the defences and other incidents applying to actions for breach of
statutory duty.
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(5)
But it is actionable only at the suit of the individual to whom the information
relates.
97
Interpretation of Part 3
In this Part—
“appoint” includes nominate or designate (and “appointment” is to be
10
read accordingly);
the “Commission” means the Judicial Appointments Commission;
“Head of Division” means any of these—
(a)
the Master of the Rolls;
(b)
the President of the Queen’s Bench Division;
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(c)
the President of the Family Division;
(d)
the Chancellor of the High Court;
“high judicial office” has the meaning given by section 48;
“lay member” of the Commission has the meaning given by paragraph 4
of Schedule 10;
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“office” includes a position of any description;
the “Ombudsman” means the Judicial Appointments and Conduct
Ombudsman;
“prescribed” means prescribed by regulations under section 89 or by rules
under section 91.
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Part 4
Other provisions relating to the judiciary
98
Parliamentary disqualification
(1)
In Part 1 of Schedule 1 to the House of Commons Disqualification Act 1975
(c. 24) (judicial offices disqualifying for membership) at the beginning insert—
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“Judge of the Supreme Court.

Member of the supplementary panel under section 30 of the
Constitutional Reform Act 2004.”
(2)
A member of the House of Lords is, while he holds any of the judicial offices
specified in Part 1 of Schedule 1 to the House of Commons Disqualification Act
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1975, disqualified for sitting or voting in—
(a)
the House of Lords,
(b)
a committee of that House, or
(c)
a joint committee of both Houses.
(3)
A member of the House of Lords who is disqualified under subsection (2) is not
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for that reason disqualified for receiving a writ of summons to attend that
House, but any such writ is subject to that subsection.