Constitutional Reform Act 2005

Puisne judges and other office holders

85 Selection of puisne judges and other office holders

(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.

86 Duty to fill vacancies

(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

(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

(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

(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

(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

(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

(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

(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

(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.