Constitutional Reform Act 2005

Chapter 2 U.K. Appointments

General provisions U.K.

63 Merit and good character U.K.

(1) Subsections (2) and (3) apply to any selection under this Part by the Commission or a selection panel (“the selecting body”).

(2) Selection must be solely on merit.

(3) A person must not be selected unless the selecting body is satisfied that he is of good character.

64 Encouragement of diversity U.K.

(1) The Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.

(2) This section is subject to section 63.

65 Guidance about procedures U.K.

(1) The Lord Chancellor may issue guidance about procedures for the performance by the Commission or a selection panel of its functions of—

(a) identifying persons willing to be considered for selection under this Part, and

(b) assessing such persons for the purposes of selection.

(2) The guidance may, among other things, relate to consultation or other steps in determining such procedures.

(3) The purposes for which guidance may be issued under this section include the encouragement of diversity in the range of persons available for selection.

(4) The Commission and any selection panel must have regard to the guidance in matters to which it relates.

Commencement Information

I1 S. 65 wholly in force at 3.4.2006; s. 65 not in force at Royal Assent see. s. 148; s. 65(1)-(3) in force at 1.10.2005 by S.I. 2005/2505, art. 2; s. 65(4) in force at 3.4.2006 by S.I. 2006/1014, art. 2(a), Sch. 1 para. 18

66 Guidance: supplementary U.K.

(1) Before issuing any guidance the Lord Chancellor must—

(a) consult the Lord Chief Justice;

(b) after doing so, lay a draft of the proposed guidance before each House of Parliament.

(2) If the draft is approved by a resolution of each House of Parliament within the 40-day period the Lord Chancellor must issue the guidance in the form of the draft.

(3) In any other case the Lord Chancellor must take no further steps in relation to the proposed guidance.

(4) Subsection (3) does not prevent a new draft of the proposed guidance from being laid before each House of Parliament after consultation with the Lord Chief Justice.

(5) Guidance comes into force on such date as the Lord Chancellor may appoint by order.

(6) The Lord Chancellor may—

(a) from time to time revise the whole or part of any guidance and re-issue it;

(b) after consulting the Lord Chief Justice, by order revoke any guidance.

(7) In this section—

• “40-day period” in relation to the draft of any proposed guidance means—

  (a)

  if the draft is laid before one House on a day later than the day on which it is laid before the other House, the period of 40 days beginning with the later day, and

  (b)

  in any other case, the period of 40 days beginning with the day on which the draft is laid before each House,

  no account being taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days;

• “guidance” means guidance issued by the Lord Chancellor under section 65 and includes guidance which has been revised and re-issued.

Lord Chief Justice and Heads of Division U.K.

67 Selection of Lord Chief Justice and Heads of Division U.K.

(1) Sections 68 to 75 apply to a recommendation for an appointment to one of the following offices—

(a) Lord Chief Justice;

(b) Master of the Rolls;

(c) President of the Queen's Bench Division;

(d) President of the Family Division;

(e) Chancellor of the High Court.

(2) Any such recommendation must be made in accordance with those sections and section 96.

68 Duty to fill vacancies U.K.

(1) The Lord Chancellor must make a recommendation to fill any vacancy in the office of Lord Chief Justice.

(2) The Lord Chancellor must make a recommendation to fill any vacancy in any other office listed in section 67(1).

(3) Subsection (2) does not apply to a vacancy while the Lord Chief Justice agrees that it may remain unfilled.

69 Request for selection U.K.

(1) The Lord Chancellor may make a request to the Commission for a person to be selected for a recommendation to which this section applies.

(2) Before making a request the Lord Chancellor must consult the Lord Chief Justice.

(3) Subsection (2) does not apply where the office of Lord Chief Justice is vacant or where the Lord Chief Justice is incapacitated for the purposes of section 16 (functions during vacancy or incapacity).

(4) Sections 70 to 75 apply where the Lord Chancellor makes a request under this section.

(5) Those sections are subject to section 95 (withdrawal and modification of requests).

70 Selection process U.K.

(1) On receiving a request the Commission must appoint a selection panel.

(2) The panel must—

(a) determine the selection process to be applied,

(b) apply the selection process, and

(c) make a selection accordingly.

(3) One person only must be selected for each recommendation to which a request relates.

(4) Subsection (3) applies to selection under this section and to selection under section 75.

(5) If practicable the panel must consult, about the exercise of its functions under this section, the current holder of the office for which a selection is to be made.

(6) A selection panel is a committee of the Commission.

71 Selection panel U.K.

(1) The selection panel must consist of four members.

(2) The first member is the most senior England and Wales Supreme Court judge who is not disqualified, or his nominee.

(3) Unless subsection (7) applies, the second member is the Lord Chief Justice or his nominee.

(4) Unless subsection (9) applies, the third member is the chairman of the Commission or his nominee.

(5) The fourth member is a lay member of the Commission designated by the third member.

(6) Subsection (7) applies if—

(a) the Lord Chief Justice is disqualified, or

(b) there is no Lord Chief Justice.

(7) In those cases the most senior England and Wales Supreme Court judge who is not disqualified must designate a person (but not a person who is disqualified) as the second member.

(8) Subsection (9) applies if—

(a) there is no chairman of the Commission, or

(b) the chairman of the Commission is unavailable and has not nominated a person under subsection (4).

(9) In those cases the third member is a lay member of the Commission selected by the lay members of the Commission other than the chairman.

(10) Only the following may be a nominee under subsection (2) or (3) or designated under subsection (7)—

(a) an England and Wales Supreme Court judge,

(b) a Head of Division, or

(c) a Lord Justice of Appeal.

(11) The following also apply to nominees under this section—

(a) a person may not be a nominee if he is disqualified;

(b) a person may not be appointed to the panel as the nominee of more than one person;

(c) a person appointed to the panel otherwise than as a nominee may not be a nominee.

(12) The first member is the chairman of the panel.

(13) On any vote by the panel the chairman of the panel has an additional, casting vote in the event of a tie.

(14) A person is disqualified for the purposes of this section if—

(a) he is the current holder of the office for which a selection is to be made, or

(b) he is willing to be considered for selection.

(15) In this section “England and Wales Supreme Court judge” means a judge of the Supreme Court who has held high judicial office in England and Wales before appointment to the Court.

72 Report U.K.

(1) After complying with section 70(2) the selection panel must submit a report to the Lord Chancellor.

(2) The report must—

(a) state who has been selected;

(b) contain any other information required by the Lord Chancellor.

(3) The report must be in a form approved by the Lord Chancellor.

(4) After submitting the report the panel must provide any further information the Lord Chancellor may require.

73 The Lord Chancellor's options U.K.

(1) This section refers to the following stages—

Stage 1:	where a person has been selected under section 70
Stage 2:	where a person has been selected following a rejection or reconsideration at stage 1
Stage 3:	where a person has been selected following a rejection or reconsideration at stage 2.

(2) At stage 1 the Lord Chancellor must do one of the following—

(a) accept the selection;

(b) reject the selection;

(c) require the selection panel to reconsider the selection.

(3) At stage 2 the Lord Chancellor must do one of the following—

(a) accept the selection;

(b) reject the selection, but only if it was made following a reconsideration at stage 1;

(c) require the selection panel to reconsider the selection, but only if it was made following a rejection at stage 1.

(4) At stage 3 the Lord Chancellor must accept the selection, unless subsection (5) applies and he accepts a selection under it.

(5) If a person whose selection the Lord Chancellor required to be reconsidered at stage 1 or 2 was not selected again at the next stage, the Lord Chancellor may, at stage 3, accept the selection made at that earlier stage.

74 Exercise of powers to reject or require reconsideration U.K.

(1) The power of the Lord Chancellor under section 73 to reject a selection at stage 1 or 2 is exercisable only on the grounds that, in the Lord Chancellor's opinion, the person selected is not suitable for the office concerned.

(2) The power of the Lord Chancellor under section 73 to require the selection panel to reconsider a selection at stage 1 or 2 is exercisable only on the grounds that, in the Lord Chancellor's opinion—

(a) there is not enough evidence that the person is suitable for the office concerned, or

(b) there is evidence that the person is not the best candidate on merit.

(3) The Lord Chancellor must give the selection panel reasons in writing for rejecting or requiring reconsideration of a selection.

75 Selection following rejection or requirement to reconsider U.K.

(1) If under section 73 the Lord Chancellor rejects or requires reconsideration of a selection at stage 1 or 2, the selection panel must select a person in accordance with this section.

(2) If the Lord Chancellor rejects a selection, the selection panel—

(a) may not select the person rejected, and

(b) where the rejection is following reconsideration of a selection, may not select the person (if different) whose selection it reconsidered.

(3) If the Lord Chancellor requires a selection to be reconsidered, the selection panel—

(a) may select the same person or a different person, but

(b) where the requirement is following a rejection, may not select the person rejected.

(4) The selection panel must inform the Lord Chancellor of the person selected following a rejection or a requirement to reconsider.

(5) Subsections (2) and (3) do not prevent a person being selected on a subsequent request under section 69.

Valid from 19/09/2007

[F1 Senior President of Tribunals U.K.

Textual Amendments

F1 Ss. 75A-75G and preceding cross-heading inserted (19.9.2007) by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 2, 148, Sch. 1 para. 4; S.I. 2007/2709, art. 2(g)

75A Sections 75B to 75G apply where request made for selection U.K.

(1) Sections 75B to 75G apply where the Lord Chancellor makes a request to the Commission under paragraph 2(5) of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007 (request for person to be selected for recommendation for appointment to the office of Senior President of Tribunals).

(2) Those sections are subject to section 95 (withdrawal and modification of requests).

75B Selection process U.K.

(1) On receiving a request the Commission must appoint a selection panel.

(2) The panel must —

(a) determine the selection process to be applied,

(b) apply the selection process, and

(c) make a selection accordingly.

(3) As part of the selection process the panel must consult—

(a) the Lord Chief Justice, if not a member of the panel,

(b) the Lord President of the Court of Session, if not a member of the panel, and

(c) the Lord Chief Justice of Northern Ireland, if not a member of the panel.

(4) One person only must be selected for the recommendation to which a request relates.

(5) Subsection (4) applies to selection under this section and to selection under section 75G.

(6) A selection panel is a committee of the Commission.

75C Selection panel U.K.

(1) The selection panel must consist of four members.

(2) The first member is the Lord Chief Justice, or his nominee.

(3) The second member is a person designated by the Lord Chief Justice.

(4) Unless subsection (7) applies, the third member is the chairman of the Commission or his nominee.

(5) The fourth member is a lay member of the Commission designated by the third member.

(6) Subsection (7) applies if—

(a) there is no chairman of the Commission, or

(b) the chairman of the Commission is unavailable and has not nominated a person under subsection (4).

(7) In those cases the third member is a lay member of the Commission selected by the lay members of the Commission other than the chairman.

(8) A nominee of the Lord Chief Justice must be a Head of Division or a Lord Justice of Appeal.

(9) The person designated under subsection (3) must be—

(a) a person who holds, or has held, the office of Senior President of Tribunals,

(b) a person who holds, or has held, office as a Chamber President of a chamber of the First-tier Tribunal or of a chamber of the Upper Tribunal, or

(c) a person who holds, or has held, an office that, in the opinion of the Lord Chief Justice, is such that a holder of it would acquire knowledge or experience of tribunals broadly similar to that which would be acquired by—

(i) a person who holds the office of Senior President of Tribunals, or

(ii) a person who holds office as a Chamber President of a chamber of the First-tier Tribunal, or

(iii) a person who holds office as a Chamber President of a chamber of the Upper Tribunal.

(10) Before designating a person under subsection (3), the Lord Chief Justice must consult—

(a) the Lord President of the Court of Session, and

(b) the Lord Chief Justice of Northern Ireland.

(11) A person may not be appointed to the panel if he is willing to be considered for selection.

(12) A person may not be appointed to the panel as the nominee of more than one person.

(13) A person appointed to the panel otherwise than as a nominee may not be a nominee.

(14) The first member is the chairman of the panel.

(15) On any vote by the panel the chairman of the panel has an additional, casting vote in the event of a tie.

75D Report U.K.

(1) After complying with section 75B(2) the selection panel must submit a report to the Lord Chancellor.

(2) The report must—

(a) state who has been selected;

(b) contain any other information required by the Lord Chancellor.

(3) The report must be in a form approved by the Lord Chancellor.

(4) After submitting the report the panel must provide any further information the Lord Chancellor may require.

75E The Lord Chancellor's options U.K.

(1) This section refers to the following stages—

Stage 1:	where a person has been selected under section 75B
Stage 2:	where a person has been selected following a rejection or reconsideration at stage 1
Stage 3:	where a person has been selected following a rejection or reconsideration at stage 2

(2) At stage 1 the Lord Chancellor must do one of the following—

(a) accept the selection;

(b) reject the selection;

(c) require the selection panel to reconsider the selection.

(3) At stage 2 the Lord Chancellor must do one of the following—

(a) accept the selection;

(b) reject the selection, but only if it was made following a reconsideration at stage 1;

(c) require the selection panel to reconsider the selection, but only if it was made following a rejection at stage 1.

(4) At stage 3 the Lord Chancellor must accept the selection, unless subsection (5) applies and he accepts a selection under it.

(5) If a person whose selection the Lord Chancellor required to be reconsidered at stage 1 or 2 was not selected again at the next stage, the Lord Chancellor may, at stage 3, accept the selection made at that earlier stage.

75F Exercise of powers to reject or require reconsideration U.K.

(1) The power of the Lord Chancellor under section 75E to reject a selection at stage 1 or 2 is exercisable only on the grounds that, in the Lord Chancellor's opinion, the person selected is not suitable for the office of Senior President of Tribunals.

(2) The power of the Lord Chancellor under section 75E to require the selection panel to reconsider a selection at stage 1 or 2 is exercisable only on the grounds that, in the Lord Chancellor's opinion—

(a) there is not enough evidence that the person is suitable for the office of Senior President of Tribunals, or

(b) there is evidence that the person is not the best candidate on merit.

(3) The Lord Chancellor must give the selection panel reasons in writing for rejecting or requiring reconsideration of a selection.

75G Selection following rejection or requirement to reconsider U.K.

(1) If under section 75F the Lord Chancellor rejects or requires reconsideration of a selection at stage 1 or 2, the selection panel must select a person in accordance with this section.

(2) If the Lord Chancellor rejects a selection, the selection panel—

(a) may not select the person rejected, and

(b) where the rejection is following reconsideration of a selection, may not select the person (if different) whose selection it reconsidered.

(3) If the Lord Chancellor requires a selection to be reconsidered, the selection panel—

(a) may select the same person or a different person, but

(b) where the requirement is following a rejection, may not select the person rejected.

(4) The selection panel must inform the Lord Chancellor of the person selected following a rejection or a requirement to reconsider.

(5) Subsections (2) and (3) do not prevent a person being selected on a subsequent request under paragraph 2(5) of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007.]

Lords Justices of Appeal U.K.

76 Selection of Lords Justices of Appeal U.K.

(1) Sections 77 to 84 apply to a recommendation for appointment as a Lord Justice of Appeal.

(2) Any such recommendation must be made in accordance with those sections and section 96.

77 Duty to fill vacancies U.K.

(1) The Lord Chancellor must make a recommendation to fill any vacancy in the office of Lord Justice of Appeal.

(2) Subsection (1) does not apply to a vacancy while the Lord Chief Justice agrees that it may remain unfilled.

78 Request for selection U.K.

(1) The Lord Chancellor may make a request to the Commission for a person to be selected for a recommendation for appointment as a Lord Justice of Appeal.

(2) Before making a request the Lord Chancellor must consult the Lord Chief Justice.

(3) A request may relate to more than one recommendation.

(4) Sections 79 to 84 apply where the Lord Chancellor makes a request under this section.

(5) Those sections are subject to section 95 (withdrawal and modification of requests).

79 Selection process U.K.

(1) On receiving a request the Commission must appoint a selection panel.

(2) The panel must—

(a) determine the selection process to be applied,

(b) apply the selection process, and

(c) make a selection accordingly.

(3) One person only must be selected for each recommendation to which a request relates.

(4) Subsection (3) applies to selection under this section and to selection under section 84.

(5) A selection panel is a committee of the Commission.

80 Selection panel U.K.

(1) The selection panel must consist of four members.

(2) The first member is the Lord Chief Justice, or his nominee.

(3) The second member is a Head of Division or Lord Justice of Appeal designated by the Lord Chief Justice.

(4) Unless subsection (7) applies, the third member is the chairman of the Commission or his nominee.

(5) The fourth member is a lay member of the Commission designated by the third member.

(6) Subsection (7) applies if—

(a) there is no chairman of the Commission, or

(b) the chairman of the Commission is unavailable and has not nominated a person under subsection (4).

(7) In those cases the third member is a lay member of the Commission selected by the lay members of the Commission other than the chairman.

(8) A nominee of the Lord Chief Justice must be a Head of Division or a Lord Justice of Appeal.

(9) A person may not be appointed to the panel if he is willing to be considered for selection.

(10) A person may not be appointed to the panel as the nominee of more than one person.

(11) A person appointed to the panel otherwise than as a nominee may not be a nominee.

(12) The first member is the chairman of the panel.

(13) On any vote by the panel the chairman of the panel has an additional, casting vote in the event of a tie.

81 Report U.K.

(1) After complying with section 79(2) the selection panel must submit a report to the Lord Chancellor.

(2) The report must—

(a) state who has been selected;

(b) contain any other information required by the Lord Chancellor.

(3) The report must be in a form approved by the Lord Chancellor.

(4) After submitting the report the panel must provide any further information the Lord Chancellor may require.

82 The Lord Chancellor's options U.K.

(1) This section refers to the following stages—

Stage 1:	where a person has been selected under section 79
Stage 2:	where a person has been selected following a rejection or reconsideration at stage 1
Stage 3:	where a person has been selected following a rejection or reconsideration at stage 2.

(2) At stage 1 the Lord Chancellor must do one of the following—

(a) accept the selection;

(b) reject the selection;

(c) require the selection panel to reconsider the selection.

(3) At stage 2 the Lord Chancellor must do one of the following—

(a) accept the selection;

(b) reject the selection, but only if it was made following a reconsideration at stage 1;

(c) require the selection panel to reconsider the selection, but only if it was made following a rejection at stage 1.

(4) At stage 3 the Lord Chancellor must accept the selection, unless subsection (5) applies and he accepts a selection under it.

(5) If a person whose selection the Lord Chancellor required to be reconsidered at stage 1 or 2 was not selected again at the next stage, the Lord Chancellor may, at stage 3, accept the selection made at that earlier stage.

83 Exercise of powers to reject or require reconsideration U.K.

(1) The power of the Lord Chancellor under section 82 to reject a selection at stage 1 or 2 is exercisable only on the grounds that, in the Lord Chancellor's opinion, the person selected is not suitable for the office concerned.

(2) The power of the Lord Chancellor under section 82 to require the selection panel to reconsider a selection at stage 1 or 2 is exercisable only on the grounds that, in the Lord Chancellor's opinion—

(a) there is not enough evidence that the person is suitable for the office concerned, or

(b) there is evidence that the person is not the best candidate on merit.

(3) The Lord Chancellor must give the selection panel reasons in writing for rejecting or requiring reconsideration of a selection.

84 Selection following rejection or requirement to reconsider U.K.

(1) If under section 82 the Lord Chancellor rejects or requires reconsideration of a selection at stage 1 or 2, the selection panel must select a person in accordance with this section.

(2) If the Lord Chancellor rejects a selection, the selection panel—

(a) may not select the person rejected, and

(b) where the rejection is following reconsideration of a selection, may not select the person (if different) whose selection it reconsidered.

(3) If the Lord Chancellor requires a selection to be reconsidered, the selection panel—

(a) may select the same person or a different person, but

(b) where the requirement is following a rejection, may not select the person rejected.

(4) The selection panel must inform the Lord Chancellor of the person selected following a rejection or a requirement to reconsider.

(5) Subsections (2) and (3) do not prevent a person being selected on a subsequent request under section 78.

Puisne judges and other office holders U.K.

85 Selection of puisne judges and other office holders U.K.

(1) Sections 86 to 93 apply to—

(a) a recommendation for an appointment to the office of puisne judge of the High Court;

(b) a recommendation for an appointment to an office listed in Part 1 of Schedule 14 in exercise of Her Majesty's function under the enactment listed opposite that office;

(c) an appointment to an office listed in Part 2 or 3 of that Schedule in exercise of the Lord Chancellor's function under the enactment listed opposite that office.

(2) Any such recommendation or appointment must be made in accordance with those sections and section 96.

(3) The Lord Chancellor may by order make any of the following amendments to Schedule 14—

(a) an amendment which adds a reference to an enactment under which appointments are made to an office;

(b) an amendment which adds a reference to an office to which appointments are made under an enactment;

(c) an amendment consequential on the abolition or change of name of an office;

(d) an amendment consequential on the substitution of one or more enactments for an enactment under which appointments are made to an office.

Modifications etc. (not altering text)

C1 S. 85 excluded (19.7.2009) by Supreme Court Act 1981 (c. 54), s. 91(1ZB) (as inserted by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 57(3))

C2 S. 85 excluded (19.9.2009) by Courts-Martial (Appeals) Act 1951 (c. 46), s. 30(4) (as inserted by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 58(3); S.I. 2007/2709, art. 2(a))

Commencement Information

I2 S. 85 wholly in force at 2.4.2007; s. 85 not in force at Royal Assent see s. 148; s. 85(3) in force 1.10.2005 by S.I. 2005/2505; s. 85(1)(b)(c)(2) in force at 3.4.2006 by S.I. 2006/1014, art. 2(a), Sch. 1 para. 19; s. 85(1)(a) in force at 2.4.2007 by S.I. 2006/1014, art. 2(b), Sch. 2 para. 2

86 Duty to fill vacancies U.K.

(1) The Lord Chancellor must make a recommendation to fill any vacancy in the office of puisne judge of the High Court or in an office listed in Part 1 of Schedule 14.

(2) The Lord Chancellor must make an appointment to fill any vacancy in an office listed in Part 2 or 3 of that Schedule.

(3) Subsections (1) and (2) do not apply to a vacancy while the Lord Chief Justice agrees that it may remain unfilled.

87 Request for selection U.K.

(1) The Lord Chancellor may request the Commission to select a person for a recommendation or appointment to which this section applies.

(2) Before making a request the Lord Chancellor must consult the Lord Chief Justice.

(3) A request may relate to more than one recommendation or appointment.

(4) Sections 88 to 93 apply where the Lord Chancellor makes a request under this section.

(5) Those sections are subject to section 95 (withdrawal and modification of requests).

88 Selection process U.K.

(1) On receiving a request the Commission must—

(a) determine the selection process to be applied,

(b) apply the selection process, and

(c) make a selection accordingly.

(2) But if or so far as the Commission decides that the selection process has not identified candidates of sufficient merit for it to comply with subsection (1)(c), section 93 applies and subsection (1)(c) does not apply.

(3) As part of the selection process the Commission must consult—

(a) the Lord Chief Justice; and

(b) a person (other than the Lord Chief Justice) who has held the office for which a selection is to be made or has other relevant experience.

(4) One person only may be selected for each recommendation or appointment to which a request relates.

(5) Subsection (4) applies to selection under this section and to selection under section 92 or 93.

89 Report U.K.

(1) After complying with section 88 the Commission must submit a report to the Lord Chancellor.

(2) The report must—

(a) describe the selection process;

(b) state any selection made;

(c) state any decision under section 88(2);

(d) state any recommendation made in consultation under section 88(3) by a person consulted;

(e) give reasons in any case where the Commission has not followed such a recommendation;

(f) contain any other information required by the Lord Chancellor.

(3) The report must be in a form approved by the Lord Chancellor.

(4) After submitting the report the Commission must provide any further information the Lord Chancellor may require.

90 The Lord Chancellor's options U.K.

(1) This section refers to the following stages—

Stage 1:	where a person has been selected under section 88
Stage 2:	where a person has been selected following a rejection or reconsideration at stage 1
Stage 3:	where a person has been selected following a rejection or reconsideration at stage 2.

(2) At stage 1 the Lord Chancellor must do one of the following—

(a) accept the selection;

(b) reject the selection;

(c) require the Commission to reconsider the selection.

(3) At stage 2 the Lord Chancellor must do one of the following—

(a) accept the selection;

(b) reject the selection, but only if it was made following a reconsideration at stage 1;

(c) require the Commission to reconsider the selection, but only if it was made following a rejection at stage 1.

(4) At stage 3 the Lord Chancellor must accept the selection, unless subsection (5) applies and he accepts a selection under it.

(5) If a person whose selection the Lord Chancellor required to be reconsidered at stage 1 or 2 was not selected again at the next stage, the Lord Chancellor may, at stage 3, accept the selection made at that earlier stage.

(6) Before exercising his powers under this section at any stage in relation to a selection for an appointment or recommendation, the Lord Chancellor must—

(a) consult any person whom he is required by any enactment to consult before making the appointment or recommendation, and

(b) consult the Scottish Ministers if it appears to him to be an appointment, or a recommendation for the appointment, of a person to exercise functions wholly or mainly in Scotland.

91 Exercise of powers to reject or require reconsideration U.K.

(1) The power of the Lord Chancellor under section 90 to reject a selection at stage 1 or 2 is exercisable only on the grounds that, in the Lord Chancellor's opinion, the person selected is not suitable for the office concerned or particular functions of that office.

(2) The power of the Lord Chancellor under section 90 to require the Commission to reconsider a selection at stage 1 or 2 is exercisable only on the grounds that, in the Lord Chancellor's opinion—

(a) there is not enough evidence that the person is suitable for the office concerned or particular functions of that office, or

(b) there is evidence that the person is not the best candidate on merit.

(3) The Lord Chancellor must give the Commission reasons in writing for rejecting or requiring reconsideration of a selection.

92 Selection following rejection or requirement to reconsider U.K.

(1) If under section 90 the Lord Chancellor rejects or requires reconsideration of a selection at stage 1 or 2, the Commission must select a person in accordance with this section.

(2) If the Lord Chancellor rejects a selection, the Commission—

(a) may not select the person rejected, and

(b) where the rejection is following a requirement to reconsider, may not select the person (if different) whose selection it reconsidered.

(3) If the Lord Chancellor requires a selection to be reconsidered, the Commission—

(a) may select the same person or a different person, but

(b) where the requirement is following a rejection, may not select the person rejected.

(4) But if the Commission decides that the selection process has not identified a candidate of sufficient merit for it to make a selection under this section—

(a) section 93 applies;

(b) subsection (1) does not apply, but subsections (2) and (3) apply to any selection under section 93.

(5) The Commission must inform the Lord Chancellor of any person selected following a rejection or a requirement to reconsider.

(6) Subsections (2) and (3) do not prevent a person being selected on a subsequent request under section 87.

93 Reconsideration of decision not to select U.K.

(1) The Lord Chancellor may require the Commission to reconsider a decision that the selection process has not identified candidates of sufficient merit for it to make a selection.

(2) The Commission must inform the Lord Chancellor of any person selected on reconsideration under this section.

(3) Sections 90 to 92 apply to such a person as if the Commission had selected him instead of making the decision reconsidered.

94 Duty to identify persons for future requests U.K.

(1) If the Lord Chancellor gives the Commission notice of a request he expects to make under section 87 the Commission must—

(a) seek to identify persons it considers would be suitable for selection on the request, and

(b) submit a report to the Lord Chancellor containing any information it considers appropriate about—

(i) the extent to which it has identified suitable persons, and

(ii) other matters likely to assist the Lord Chancellor in exercising his functions relating to appointments and recommendations.

(2) For the purposes of subsection (1)(a) and (b)(ii), the Commission must in particular have regard to—

(a) the number of recommendations and appointments the Lord Chancellor expects to request selections for;

(b) the powers of the Lord Chancellor to reject or require reconsideration of a selection.

(3) As part of the process of identifying persons under subsection (1)(a), the Commission must consult—

(a) the Lord Chief Justice, and

(b) a person or persons, other than the Lord Chief Justice, with experience in the office or offices to which requests specified in the notice relate, or with other relevant experience.

(4) A report under subsection (1)(b) must—

(a) state any recommendation made in consultation under subsection (3) by a person consulted;

(b) give reasons in any case where the Commission has not followed such a recommendation.

(5) Where the Lord Chancellor makes a request for the purposes of which the Commission has identified persons under subsection (1)(a), the Commission must, in determining the selection process to be applied, consider whether selection should be from among those persons.

Valid from 19/07/2007

[F2 94A Appointments not subject to section 85: courts U.K.

(1) Where this section applies to an appointment—

(a) section 85 does not apply, but

(b) the Lord Chancellor may not make the appointment without the concurrence of the Lord Chief Justice.

(2) This section applies to the appointment of a person, on a fee-paid basis, to an office in the table below (the “proposed appointment”) if the person—

(a) holds the corresponding qualifying office (or one of them) on a salaried basis, or

(b) ceased to hold the corresponding qualifying office (or one of them) within two years ending with the date when the proposed appointment takes effect and, immediately before ceasing to hold that office, held it on a salaried basis.

Proposed appointment (fee-paid)	Qualifying office (salaried)
An office listed in Part 2 of Schedule 14.	The same office.
Deputy District Judge (Magistrates' Courts).	District Judge (Magistrates' Courts), Senior District Judge (Chief Magistrate), or Deputy Senior District Judge (Chief Magistrate).
Assistant Judge Advocate General, or a person appointed temporarily to assist the Judge Advocate General.	Judge Advocate of Her Majesty's Fleet, Judge Advocate General, Vice Judge Advocate General, or Assistant Judge Advocate General.

(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4)) to exercise his function under subsection (1)(b).

(4) In this section “salaried” and “fee-paid” have the meaning given by paragraph 1(2) of Schedule 7 to the Judicial Pensions and Retirement Act 1993 (c. 8).]

Textual Amendments

F2 Ss. 94A, 94B inserted (19.7.2007) by Tribunals, Courts and Enforcement Act 2007 (c. 15), s. 53(2)

Valid from 19/07/2007

[F2 94B Appointments not subject to section 85: tribunals U.K.

(1) Where this section applies to a recommendation or appointment—

(a) section 85 does not apply, but

(b) the Lord Chancellor may not make the recommendation or appointment without the concurrence of the Senior President of Tribunals.

(2) In the case of the appointment of a person as a deputy judge of the Upper Tribunal, if the person holds or has held an office listed in section 6(1) of the Tribunals, Courts and Enforcement Act 2007, the Lord Chancellor must also consult the Lord Chief Justice before making the appointment.

(3) This section applies to, or to a recommendation to Her Majesty for, the appointment of a person, on a fee-paid basis, to an office in the table below (the “proposed appointment”) if the person—

(a) holds the corresponding qualifying office (or one of them) on a salaried basis, or

(b) subject to subsection (4), ceased to hold the corresponding qualifying office (or one of them) within two years ending with the date when the proposed appointment takes effect and, immediately before ceasing to hold that office, held it on a salaried basis.

Proposed appointment (fee-paid)	Qualifying office (salaried)
An office listed in Part 3 of Schedule 14 (other than the office of Chamber President or Deputy Chamber President of a chamber of the Upper Tribunal or the First-tier Tribunal).	The same office, or a more senior office, listed in Part 3 of Schedule 14, in the same tribunal or body (but excluding the Upper Tribunal and the First-tier Tribunal).
Deputy Child Support Commissioner.	Chief Child Support Commissioner, or Child Support Commissioner.
Deputy Social Security Commissioner.	Chief Social Security Commissioner, or Social Security Commissioner.
Deputy judge of the Upper Tribunal.	Ordinary judge of the Court of Appeal in England and Wales, Lord Justice of Appeal in Northern Ireland, Judge of the Court of Session, Puisne judge of the High Court in England and Wales or Northern Ireland, Circuit judge, Sheriff in Scotland, County court judge in Northern Ireland, District judge in England and Wales or Northern Ireland, District Judge (Magistrates' Courts), or Judge of the Upper Tribunal by virtue of any of paragraphs (a) to (f) or (i) of section 5(1) of the Tribunals, Courts and Enforcement Act 2007.
Judge of the First-tier Tribunal by appointment under paragraph 1(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007.	Transferred-in judge of the First-tier Tribunal (see section 31(2) of that Act).
Other member of the First-tier Tribunal by appointment under paragraph 2(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007.	Transferred-in other member of the First-tier Tribunal (see section 31(2) of that Act).
Judge of the Upper Tribunal by appointment under paragraph 1(1) of Schedule 3 to the Tribunals, Courts and Enforcement Act 2007.	Transferred-in judge of the Upper Tribunal (see section 31(2) of that Act).
Other member of the Upper Tribunal by appointment under paragraph 2(1) of Schedule 3 to the Tribunals, Courts and Enforcement Act 2007.	Transferred-in other member of the Upper Tribunal (see section 31(2) of that Act).
Deputy judge of the Upper Tribunal by appointment under paragraph 7(1) of Schedule 3 to the Tribunals, Courts and Enforcement Act 2007.	Deputy judge of the Upper Tribunal under section 31(2) of that Act.

(4) In subsection (3)(b) the words “within two years ending with the date when the proposed appointment takes effect” do not apply if—

(a) the proposed appointment is to the office of deputy judge of the Upper Tribunal, and

(b) the corresponding qualifying office is—

(i) ordinary judge of the Court of Appeal in England and Wales,

(ii) Lord Justice of Appeal in Northern Ireland,

(iii) judge of the Court of Session, or

(iv) puisne judge of the High Court in England and Wales or Northern Ireland.

(5) In this section “salaried” and “fee-paid” have the meaning given by paragraph 1(2) of Schedule 7 to the Judicial Pensions and Retirement Act 1993.]

Textual Amendments

F2 Ss. 94A, 94B inserted (19.7.2007) by Tribunals, Courts and Enforcement Act 2007 (c. 15), s. 53(2)

Supplementary provisions about selection U.K.

95 Withdrawal and modification of requests U.K.

(1) This section applies to a request under section 69, 78 or 87.

(2) The Lord Chancellor may withdraw or modify a request only as follows—

(a) so far as a request relates to any recommendation or appointment to fill a vacancy, he may withdraw or modify it with the agreement of the Lord Chief Justice;

(b) so far as a request relates to any recommendation or appointment otherwise than to fill a vacancy, he may withdraw or modify it after consulting the Lord Chief Justice;

(c) he may withdraw a request as respects all recommendations or appointments to which it relates if, after consulting the Lord Chief Justice, he considers the selection process determined by the Commission or selection panel is not satisfactory, or has not been applied satisfactorily.

(3) If a request is withdrawn in part or modified, the Commission or selection panel may, if it thinks it appropriate because of the withdrawal or modification, change any selection already made pursuant to the request, except a selection already accepted.

(4) The Lord Chancellor may not withdraw a request under subsection (2)(c) if he has exercised any of his powers under section 73(2), 82(2) or 90(2) in relation to a selection made pursuant to the request.

(5) Any withdrawal or modification of a request must be by notice in writing to the Commission.

(6) The notice must state whether the withdrawal or modification is under subsection (2)(a), (b) or (c).

(7) In the case of a withdrawal under subsection (2)(c), the notice must state why the Lord Chancellor considers the selection process determined by the Commission or selection panel is not satisfactory, or has not been applied satisfactorily.

(8) If or to the extent that a request is withdrawn—

(a) the preceding provisions of this Part cease to apply in relation to it, and

(b) any selection made on it is to be disregarded.

(9) Withdrawal of a request to any extent does not affect the power of the Lord Chancellor to make another request in the same or different terms.

96 Effect of acceptance of selection U.K.

(1) This section applies where the Lord Chancellor accepts a selection under this Chapter.

(2) Subject to the following provisions of this section, the Lord Chancellor—

(a) must make the appointment, or recommendation, for which the selection has been made, and

(b) must appoint, or recommend, the person selected.

(3) Before making the appointment or recommendation the Lord Chancellor may direct the Commission to make arrangements in accordance with the direction—

(a) for any assessment of the health of the person selected that the Lord Chancellor considers appropriate, and

(b) for a report of the assessment to be made to the Lord Chancellor.

(4) Subsection (5) applies in any of the following circumstances—

(a) the Lord Chancellor notifies the Commission that he is not satisfied on the basis of a report under subsection (3)(b), having consulted the Lord Chief Justice, that the health of the person selected is satisfactory for the purposes of the appointment or recommendation;

(b) the person selected declines to be appointed or recommended, or does not agree within a time specified to him for that purpose;

(c) the person selected is otherwise not available within a reasonable time to be appointed or recommended.

(5) Where this subsection applies—

(a) the selection accepted and any previous selection for the same appointment or recommendation are to be disregarded;

(b) the request pursuant to which the selection was made continues to have effect;

(c) any subsequent selection pursuant to that request may be made in accordance with the same or a different selection process.

97 Scotland and Northern Ireland U.K.

(1) This section applies to consultation that a person is required to undertake under any of these provisions—

(a) section 87(2);

(b) section 88(3);

(c) section 94(3);

(d) section 95(2)(a), (b) or (c),

(e) section 96(4)(a).

(2) If the consultation appears to that person to relate to the appointment (or a recommendation for the appointment) of a person to exercise functions wholly or mainly in Scotland, any reference in the provision to the Lord Chief Justice is to be read as a reference to the Lord President of the Court of Session.

(3) If the consultation appears to that person to relate to the appointment (or a recommendation for the appointment) of a person to exercise functions wholly or mainly in Northern Ireland, any reference in the provision to the Lord Chief Justice is to be read as a reference to the Lord Chief Justice of Northern Ireland.

Assistance in connection with other appointments U.K.

98 Assistance in connection with other appointments U.K.

(1) The Commission must provide any assistance requested by the Lord Chancellor under this section.

(2) The Lord Chancellor may request assistance for the making by him or by another Minister of the Crown of an appointment or recommendation for appointment, other than one to which section 26 or a provision of this Part applies.

(3) The Lord Chancellor may only request assistance under this section if it appears to him appropriate because of the Commission's other functions under this Part and the nature of the appointment concerned.

(4) Without limiting the assistance that may be requested, it may include—

(a) determining a selection process;

(b) applying a selection process;

(c) selecting a person;

(d) selecting a short list;

(e) advice on any of those matters.

(5) Before making a request the Lord Chancellor must consult—

(a) the Lord Chief Justice, and

(b) the Commission.

(6) In this section “appointment” includes the conferring of any public function.

(7) In this Part references to selection under this Part include references to selection by the Commission pursuant to a request under this section (and references to a person selected under this Part are to be read accordingly).

Complaints and references U.K.

99 Complaints: interpretation U.K.

(1) This section applies for the purposes of this Part.

(2) A Commission complaint is a complaint by a qualifying complainant of maladministration by the Commission or a committee of the Commission.

(3) A departmental complaint is a complaint by a qualifying complainant of maladministration by the Lord Chancellor or his department in connection with any of the following—

(a) selection under this Part;

(b) recommendation for or appointment to an office listed in Schedule 14.

(4) A qualifying complainant is a complainant who claims to have been adversely affected, as an applicant for selection or as a person selected under this Part, by the maladministration complained of.

100 Complaints to the Commission or the Lord Chancellor U.K.

(1) The Commission must make arrangements for investigating any Commission complaint made to it.

(2) The Lord Chancellor must make arrangements for investigating any departmental complaint made to him.

(3) Arrangements under this section need not apply to a complaint made more than 28 days after the matter complained of.

101 Complaints to the Ombudsman U.K.

(1) Subsections (2) and (3) apply to a complaint which the complainant—

(a) has made to the Commission or the Lord Chancellor in accordance with arrangements under section 100, and

(b) makes to the Ombudsman not more than 28 days after being notified of the Commission's or Lord Chancellor's decision on the complaint.

(2) If the Ombudsman considers that investigation of the complaint is not necessary, he must inform the complainant.

(3) Otherwise he must investigate the complaint.

(4) The Ombudsman may investigate a complaint which the complainant—

(a) has made to the Commission or the Lord Chancellor in accordance with arrangements under section 100, and

(b) makes to the Ombudsman at any time.

(5) The Ombudsman may investigate a transferred complaint made to him, and no such complaint may be made under the Judicial Appointments Order after the commencement of this section.

(6) The Judicial Appointments Order is the Judicial Appointments Order in Council 2001, which sets out the functions of Her Majesty's Commissioners for Judicial Appointments.

(7) A transferred complaint is a complaint that lay to those Commissioners (whether or not it was made to them) in respect of the application of appointment procedures before the commencement of this section, but not a complaint that those Commissioners had declined to investigate or on which they had concluded their investigation.

(8) Any complaint to the Ombudsman under this section must be in a form approved by him.

102 Report and recommendations U.K.

(1) The Ombudsman must prepare a report on any complaint he has investigated under section 101.

(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;

(c) if he does, what if any action he recommends should be taken by the Commission or the Lord Chancellor 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 to have been suffered by the complainant as a result of maladministration and not as a result of any failure to be appointed to an office to which the complaint related.

103 Report procedure U.K.

(1) This section applies to a report under section 102.

(2) The Ombudsman must submit a draft of the report—

(a) to the Lord Chancellor, and

(b) if the complaint was a Commission complaint, to the Commission.

(3) In finalising the report the Ombudsman—

(a) must have regard to any proposal by the Lord Chancellor or the Commission for changes in the draft report;

(b) must include in the report a statement of any such proposal not given effect to.

(4) The report must be signed by the Ombudsman.

(5) If the complaint was a Commission complaint the Ombudsman must send the report in duplicate to the Lord Chancellor and the Commission.

(6) Otherwise the Ombudsman must send the report to the Lord Chancellor.

(7) The Ombudsman must send a copy of the report to the complainant, but that copy must not include information—

(a) which relates to an identified or identifiable individual other than the complainant, and

(b) whose disclosure by the Ombudsman to the complainant would (apart from this subsection) be contrary to section 139.

104 References by the Lord Chancellor U.K.

(1) If the Lord Chancellor refers to the Ombudsman any matter relating to the procedures of the Commission or a committee of the Commission, the Ombudsman must investigate it.

(2) The matter may relate to such procedures generally or in a particular case.

(3) The Ombudsman must report to the Lord Chancellor on any investigation under this section.

(4) The report must state—

(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.

105 Information U.K.

The Commission and the Lord Chancellor must provide the Ombudsman with such information as he may reasonably require relating to the subject matter of any investigation by him under section 101 or 104.

Miscellaneous U.K.

106 Consultation on appointment of lay justices U.K.

In section 10 of the Courts Act 2003 (c. 39) (appointment of lay justices etc.) after subsection (2) insert—

“(2A) The Lord Chancellor must ensure that arrangements for the exercise, so far as affecting any local justice area, of functions under subsections (1) and (2) include arrangements for consulting persons appearing to him to have special knowledge of matters relevant to the exercise of those functions in relation to that area.”

107 Disclosure of information to the Commission U.K.

(1) Information which is held by or on behalf of a permitted person (whether 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).

(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 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;

(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 Lord Chancellor may by order designate as permitted persons other persons who 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 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)—

(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 the Commissioners of Customs and Excise under section 6(3) of the Customs and Excise Management Act 1979 (c. 2).