Constitutional Reform Act 2005

Part 1 U.K. The Commissioners

The Commissioners U.K.

1 U.K. The Commission consists of—

(a) a chairman, and

(b) 14 other Commissioners,

appointed by Her Majesty on the recommendation of the Lord Chancellor.

2 (1) The chairman must be a lay member. U.K.

(2) Of the other Commissioners—

(a) 5 must be judicial members,

(b) 2 must be professional members,

(c) 5 must be lay members,

(d) 1 other must be the holder of an office listed in Part 3 of Schedule 14 [F1 or of an office listed in sub-paragraph (2A)] , and

(e) 1 other must be a lay justice member.

[F2 (2A) The offices referred to in sub-paragraph (2)(d) are—

(a) Senior President of Tribunals;

(b) judge of the Upper Tribunal appointed under paragraph 1(1) of Schedule 3 to the Tribunals, Courts and Enforcement Act 2007;

(c) transferred-in judge, or transferred-in other member, of the First-tier Tribunal or of the Upper Tribunal (see section 31(2) of that Act);

(d) deputy judge of the Upper Tribunal under section 31(2) of that Act;

(e) member of the Employment Appeal Tribunal appointed under section 22(1)(c) of the Employment Tribunals Act 1996.]

(3) Of the Commissioners appointed as judicial members—

(a) 1 must be a Lord Justice of Appeal;

(b) 1 must be a puisne judge of the High Court;

(c) 1 other must be either a Lord Justice of Appeal or a puisne judge of the High Court;

(d) 1 must be a circuit judge;

(e) 1 must be a district judge of a county court, a District Judge (Magistrates' Courts) or a person appointed to an office under section 89 of the Supreme Court Act 1981 (c. 54).

(4) Of the Commissioners appointed as professional members—

(a) 1 must be a practising barrister in England and Wales;

(b) 1 must be a practising solicitor of the Senior Courts of England and Wales.

(5) A Commissioner is not to be taken into account for the purposes of any paragraph of sub-paragraph (2) unless he was appointed for the purposes of that paragraph.

Textual Amendments

F1 Words in Sch. 12 para. 2(2)(d) inserted (19.9.2007) by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 48(1), 148, Sch. 8 para. 65(2); S.I. 2007/2709, art. 2(c)(i)

F2 Sch. 12 para. 2(2A) inserted (19.9.2007 for specified purposes and otherwise 3.11.2008) by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 48(1), 148, Sch. 8 para. 65(3); S.I. 2007/2709, art. 2(c)(ii); S.I. 2008/2696, art. 5(c)(iv) (with arts. 3, 4)

3 U.K. A person must not be appointed as a Commissioner if he is employed in the civil service of the State.

4 (1) A judicial member is a person who holds an office listed in paragraph 2(3) and who is not a practising lawyer. U.K.

(2) A professional member is a person who is—

(a) a practising barrister in England and Wales, or

(b) a practising solicitor of the Senior Courts of England and Wales.

(3) A lay member is a person resident in England or Wales who has never held a listed judicial office or been a practising lawyer.

(4) A lay justice member is a justice of the peace who—

(a) holds no other listed judicial office, F3 . . .

(b) is not a practising barrister in England and Wales, and

(c) is not a practising solicitor of the Senior Courts of England and Wales.

Textual Amendments

F3 Words in Sch. 12 para. 4(4)(a) repealed (1.4.2009) by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 146, 148, Sch. 23 Pt. 1; S.I. 2008/2696, art. 6(c)(x)

5 (1) The Lord Chancellor may by order amend any of the following provisions by substituting a number for the number of Commissioners for the time being specified there— U.K.

(a) paragraph 1(b);

(b) any paragraph of paragraph 2(2);

(c) any paragraph of paragraph 2(3);

(d) any paragraph of paragraph 2(4).

(2) That is subject to the following—

(a) the total of the numbers in paragraph 2(2) must be the number in paragraph 1(b);

(b) the total of the numbers in paragraph 2(3) must be the number in paragraph 2(2)(a);

(c) the total of the numbers in paragraph 2(4) must be the number in paragraph 2(2)(b);

(d) the number substituted in any provision must not be less than the number specified in that provision as originally enacted.

(3) The Lord Chancellor may not make an order under this paragraph without the agreement of the Lord Chief Justice.

6 (1) In this Schedule— U.K.

• “judicial member” has the meaning given by paragraph 4(1);

• “lay member” has the meaning given by paragraph 4(3);

• “listed judicial office” means an office listed in Schedule 14;

• “practising” is to be read in accordance with sub-paragraphs (2) and (3);

• “practising lawyer” means—

  (a)

  a practising barrister in England and Wales;

  (b)

  a practising solicitor of the Senior Courts of England and Wales;

  (c)

  a practising advocate in Scotland;

  (d)

  a practising solicitor in Scotland;

  (e)

  a practising member of the Bar of Northern Ireland;

  (f)

  a practising solicitor of the Court of Judicature of Northern Ireland;

• “professional member” has the meaning given by paragraph 4(2);

• “senior Head of Division” means—

  (a)

  the Master of the Rolls;

  (b)

  if that office is vacant, the President of the Queen's Bench Division;

  (c)

  if both of those offices are vacant, the President of the Family Division;

  (d)

  if all of those offices are vacant, the Chancellor of the High Court.

(2) A barrister in England and Wales, an advocate in Scotland or a member of the Bar of Northern Ireland is practising if he is—

(a) practising as such,

(b) employed to give legal advice, or

(c) providing legal advice under a contract for services.

(3) A solicitor of the Senior Courts of England and Wales, a solicitor in Scotland or a solicitor of the Court of Judicature of Northern Ireland is practising if he is—

(a) acting as such,

(b) employed to give legal advice, or

(c) providing legal advice under a contract for services.

Selection of commissioners U.K.

7 (1) The Lord Chancellor may recommend a person for appointment as a Commissioner for the purposes of paragraph (a), (b) or (c) of paragraph 2(3) only if— U.K.

(a) he has requested the Judges' Council to select a person to be appointed for the purposes of that paragraph;

(b) the person has been selected by the Judges' Council in accordance with that request, and

(c) the requirements of sub-paragraph (7) have been complied with.

(2) The Lord Chancellor may recommend a person for appointment as a Commissioner for the purposes of paragraph 1(a), any other paragraph of paragraph 2(3), any paragraph of paragraph 2(4) or any of paragraphs (c) to (e) of paragraph 2(2) only if—

(a) he has requested a panel appointed by him to select a person or (as the panel may determine) more than one person for the purposes of such a recommendation, and

(b) the person he recommends is the person or one of the persons selected.

(3) Subject to sub-paragraph (1), the Lord Chancellor must recommend for appointment any person selected by the Judges' Council.

(4) A request under this paragraph must specify the provision for the purposes of which the appointment is to be made.

(5) A request may specify the time within which a person is to be selected.

(6) The Lord Chancellor may appoint different panels for the purposes of different requests.

(7) A selection by the Judges' Council must be notified to the Lord Chancellor in a report which gives reasons for the selection.

(8) In this paragraph references to the Judges' Council are to be read as references to a body designated for the purposes of this Schedule by the Lord Chief Justice.

Panels U.K.

8 (1) A panel appointed under paragraph 7(2) must have four members (subject to sub-paragraph (7)). U.K.

(2) The first member must be a person selected by the Lord Chancellor with the agreement of the Lord Chief Justice (or, if the office of Lord Chief Justice is vacant, with the agreement of the senior Head of Division).

(3) That member is to be chairman of the panel.

(4) The second member must be the Lord Chief Justice or his nominee, unless the office of Lord Chief Justice is vacant.

(5) If that office is vacant, the second member must be the senior Head of Division or his nominee.

(6) The third member must be a person nominated by the first member.

(7) The chairman of the Commission must also be a member of the panel unless his office is vacant or is the office for which a recommendation is to be made.

(8) A person must not be a member of the panel if he is employed in the civil service of the State.

(9) A person must not be the first member if he is one of the following—

(a) a Commissioner;

(b) a member of the staff of the Commission;

(c) a practising lawyer;

(d) the holder of a listed judicial office;

(e) a member of the House of Commons.

(10) A person must not be the third member if he is a member of the House of Commons.

(11) The Lord Chancellor before selecting a person to be appointed as the first member, and the Lord Chief Justice or Head of Division before agreeing to the selection, must consider these questions—

(a) whether the person has exercised functions that appear to him to be of a judicial nature and such as to make the person inappropriate for the appointment;

(b) whether any past service in a capacity listed in sub-paragraph (8) or (9) appears to him to make the person inappropriate for the appointment;

(c) whether the extent of any present or past party political activity or affiliations appears to him to make the person inappropriate for the appointment.

(12) The first member must consider the same questions before nominating a person to be appointed as the third member.

9 U.K. The Lord Chancellor may pay to a member of a panel appointed under paragraph 7(2) such remuneration, fees or expenses as he may determine.

Selection by a panel U.K.

10 (1) This paragraph applies to selection by a panel appointed under paragraph 7(2). U.K.

(2) Before selecting a person the panel must consider—

(a) in the case of a selection for the purposes of paragraph 2(4)(a), any views expressed by the General Council of the Bar;

(b) in the case of a selection for the purposes of paragraph 2(4)(b), any views expressed by the Law Society.

(3) Before selecting a person for appointment as the chairman or one of the other lay members, the panel must consider—

(a) whether the person has exercised functions that appear to the panel to be of a judicial nature and such as to make the person inappropriate for the appointment;

(b) whether any past service in a capacity listed in paragraph 8(9) or as a person employed in the civil service of the State appears to the panel to make the person inappropriate for the appointment;

(c) whether the extent of any present or past party political activity or affiliations appears to the panel to make the person inappropriate for the appointment.

(4) The panel must select persons for appointment as lay members (including the chairman) with a view to securing, so far as practicable, that the persons so appointed include at any time at least one who appears to the panel to have special knowledge of Wales.

Vice-chairman U.K.

11 (1) The Commissioner who is the most senior of the persons appointed as judicial members is vice-chairman of the Commission. U.K.

(2) For the purposes of sub-paragraph (1)—

(a) seniority is by office held at the time (first Lord Justice of Appeal, then puisne judge, then circuit judge, then the offices mentioned in paragraph 2(3)(e));

(b) between two holders of one of those offices, the person who has served longest in the office (over one or more periods) is the senior.

(3) In the absence of the chairman, the vice-chairman may exercise the chairman's functions other than under the following provisions—

(a) paragraph 8(7);

(b) section 71;

(c) section 80.

Term of office etc. of Commissioners U.K.

12 (1) A Commissioner must be appointed for a fixed period. U.K.

(2) But an appointment is subject to paragraphs 13 to 15.

13 U.K. A person—

(a) may not be appointed as a Commissioner for more than 5 years at a time, and

(b) may not hold office as a Commissioner for periods (whether or not consecutive) totalling more than 10 years.

14 (1) A Commissioner— U.K.

(a) in the case of the chairman, ceases to be a Commissioner (and chairman) on ceasing to be a lay member;

(b) in the case of a judicial or professional member, ceases to be a Commissioner on the earlier of ceasing to be such a member, and ceasing to fall within the paragraph of paragraph 2(3) or 2(4) for the purposes of which he was appointed;

(c) in any other case, ceases to be a Commissioner on ceasing to fall within the paragraph of paragraph 2(2) for the purposes of which he was appointed.

(2) But if (before or after an event within paragraph (a) or (b) of sub-paragraph (1)) the Lord Chancellor directs in a particular case that that paragraph is to be disregarded for a period specified in the direction, the person continues to be a Commissioner until the end of that period, subject to the terms of his appointment and the other provisions of this Schedule.

(4) A Commissioner ceases to be a Commissioner if he becomes employed in the civil service of the State.

15 (1) A Commissioner may at any time— U.K.

(a) resign his office by notice in writing addressed to Her Majesty;

(b) be removed from office by Her Majesty on the recommendation of the Lord Chancellor.

(2) The Lord Chancellor may not under sub-paragraph (1) recommend that a Commissioner be removed from office unless he is satisfied that the Commissioner—

(a) has failed without reasonable excuse to discharge the functions of his office for a continuous period of at least six months,

(b) has been convicted of an offence,

(c) is an undischarged bankrupt, or

(d) is otherwise unfit to hold his office or unable to discharge its functions.

(3) A recommendation on the ground mentioned in sub-paragraph (2)(a) may not be made more than 3 months after the end of the period mentioned there.

Salary, allowances and expenses U.K.

16 (1) The Commission may— U.K.

(a) pay to each Commissioner such remuneration, fees or expenses as the Lord Chancellor may determine;

(b) pay, or make provision for the payment of, such pension, allowance or gratuity as the Lord Chancellor may determine to or in respect of a person who is or has been a Commissioner.

(2) If—

(a) a person ceases to hold office as a Commissioner other than on the expiry of his term of appointment, and

(b) it appears to the Lord Chancellor that there are special circumstances that would warrant the payment of compensation to him,

the Lord Chancellor may direct the Commission to make to or in respect of that person a payment of such amount as the Lord Chancellor may determine.

Code of Conduct U.K.

17 U.K. The Lord Chancellor may issue and from time to time revise a code of conduct to be observed by the Commissioners.