Constitutional Reform Bill [HL]

House of Lords

Session 2004 - 05
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Other Bills before Parliament

Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments
37

(c)
it is not, and has never been, available to the public from other sources.
(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
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the Commission under this Part;
(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
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statutory duty.
(5)
But it is actionable only at the suit of the individual to whom the information
relates.
87
Disclosure of information to the Commission
(1)
Information which is held by or on behalf of a permitted person (whether
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obtained before or after this section comes into force) may be disclosed to the
Commission or a committee of the Commission for the purposes of selection
under this Part.
(2)
A disclosure under this section is not to be taken to breach any restriction on
the disclosure of information (however imposed).
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(3)
But nothing in this section authorises the making of a disclosure—
(a)
which contravenes the Data Protection Act 1998 (c. 29), or
(b)
which is prohibited by Part 1 of the Regulation of Investigatory Powers
Act 2000 (c. 23).
(4)
This section does not affect a power to disclose which exists apart from this
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section.
(5)
The following are permitted persons—
(a)
a chief officer of police of a police force in England and Wales;
(b)
a chief constable of a police force in Scotland;
(c)
the Chief Constable of the Police Service of Northern Ireland;
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(d)
the Director General of the National Criminal Intelligence Service;
(e)
the Director General of the National Crime Squad;
(f)
the Commissioners of Inland Revenue;
(g)
the Commissioners of Customs and Excise.
(6)
The Minister may by order designate as permitted persons other persons who
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exercise functions which he considers are of a public nature (including a body
or person discharging regulatory functions in relation to any description of
activities).
(7)
Information must not be disclosed under this section on behalf of the
Commissioners of Inland Revenue or on behalf of the Commissioners of
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Customs and Excise unless the Commissioners concerned authorise the
disclosure.
(8)
The power to authorise a disclosure under subsection (7) may be delegated
(either generally or for a specific purpose)—

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

(a)
in the case of the Commissioners of Inland Revenue, to an officer of the
Board of Inland Revenue,
(b)
in the case of the Commissioners of Customs and Excise, to a customs
officer.
(9)
For the purposes of this section a customs officer is a person commissioned by
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the Commissioners of Customs and Excise under section 6(3) of the Customs
and Excise Management Act 1979 (c. 2).
Chapter 3
Discipline
Procedures
10
88
Disciplinary powers
(1)
Any power of the Minister to remove a person from an office listed in Schedule
11 is exercisable only after the Minister has complied with prescribed
procedures (as well as any other requirements to which the power is subject).
(2)
The Lord Chief Justice may exercise any of the following powers but only with
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the agreement of the Minister and only after complying with prescribed
procedures.
(3)
The Lord Chief Justice may give a judicial office holder any of the following for
disciplinary purposes—
(a)
advice;
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(b)
a warning;
(c)
a formal reprimand.
(4)
He may suspend a person from a judicial office for any period during which
any of the following applies—
(a)
the person is subject to criminal proceedings;
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(b)
the person is serving a sentence imposed in criminal proceedings;
(c)
the person has been convicted of an offence and is subject to
disciplinary procedures to determine whether he should be removed
from office.
(5)
He may suspend a person from a judicial office for any period if—
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(a)
the person has been convicted of a criminal offence,
(b)
it has been determined under prescribed procedures that the person
should not be removed from office, and
(c)
it appears to the Lord Chief Justice with the agreement of the Minister
that the suspension is necessary for maintaining confidence in the
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judiciary.
(6)
He may suspend a person from office as a senior judge for any period during
which the person is subject to proceedings for an Address.
(7)
He may suspend the holder of an office listed in Schedule 11 for any period
during which the person—
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(a)
is under investigation for an offence, or
(b)
is subject to disciplinary procedures.

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

(8)
While a judicial office holder of any description is suspended under this
section he may not exercise any functions of his office.
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Disciplinary powers: interpretation
(1)
This section has effect for the purposes of section 88.
(2)
A person is subject to criminal proceedings if in any part of the United
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Kingdom proceedings against him for an offence have been begun and have
not come to an end, and the times when proceedings are begun and come to an
end for the purposes of this subsection are such as may be prescribed.
(3)
A person 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
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removal of the person from office, until the earliest of the following events—
(a)
either notice is withdrawn;
(b)
either motion is amended so that it is no longer a motion for an address
for removal of the person from office;
(c)
either motion is withdrawn, lapses or is disagreed to;
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(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” means—
(a)
office as a senior judge, or
(b)
an office listed in Schedule 11;
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and “judicial office holder” means the holder of a judicial office.
(5)
“Senior judge” means any of these—
(a)
Master of the Rolls;
(b)
President of the Queen’s Bench Division;
(c)
President of the Family Division;
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(d)
Chancellor of the High Court;
(e)
Lord Justice of Appeal;
(f)
puisne judge of the High Court.
(6)
“Sentence” includes any sentence other than a fine (and “serving” is to be read
accordingly).
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(7)
“Subject to disciplinary procedures” and “under investigation for an offence”
have such meaning as may be prescribed.
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Regulations about procedures
(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
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investigation and determination 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
the Statutory Instruments Act 1946 (c. 36) applies as if the regulations were
made by a Minister of the Crown.
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(3)
Any such statutory instrument is subject to annulment in pursuance of a
resolution of either House of Parliament.

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 3 — Discipline
40

91
Contents of regulations
(1)
Regulations under section 90 may include provision as to any of the
following—
(a)
circumstances in which an investigation must or may be undertaken
(on the making of a complaint or otherwise);
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(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
holder under investigation or by a complainant or other person;
(d)
time limits for taking any step and procedures for extending time
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limits;
(e)
persons by whom an investigation or part of an investigation is to be
conducted;
(f)
matters to be determined by the Lord Chief Justice, the Minister, the
office holder under investigation or any other person;
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(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
person.
(2)
The regulations—
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(a)
may require a decision as to the exercise of functions under section 88,
or functions mentioned in subsection (1) of that section, to be taken in
accordance with findings 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.
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(3)
The regulations may provide for any prescribed requirement not to apply if the
Lord Chief Justice and the Minister so agree.
(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
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may include the suspension or dismissal of a complaint)—
(a)
as may be prescribed by the regulations, or
(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.
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(6)
Nothing in this section limits the generality of section 90.
92
Procedural rules
(1)
Regulations under section 90 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.
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(2)
But the provision that may be made by rules does not include—
(a)
provision within section 91(2);
(b)
provision made for the purposes of section 91(4).
(3)
The rules are to be published in such manner as the Lord Chief Justice may
determine with the agreement of the Minister.
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