331.Part 1 of Schedule 13 amends aspects of the Constitutional Reform Act 2005 (“the CRA”) which created the Supreme Court of the United Kingdom. The changes relate to the number of judges who are appointed to the UK Supreme Court and how they are selected.
332.Paragraph 2 amends section 23 of the CRA to allow for there to be fewer than 12 full-time equivalent judges at any time. The paragraph provides that rather than specifying that the Court consists of 12 judges, the Court will instead consist of those persons appointed as its judges but there may be no more than the full-time equivalent of 12 at any time.
333.Paragraph 3 amends section 26 of the CRA which makes provision for the selection of UK Supreme Court judges. Sub-paragraph (2) amends section 26(5) and sub-paragraph (3) inserts a new subsection (5A) into section 26 of the CRA to provide that the Lord Chancellor must convene a selection commission for a new appointment to the Court if there is a vacancy in the office of President of the Supreme Court or the office of Deputy President of the Court (or if it appears to the Lord Chancellor that there will soon be such a vacancy) or if the Lord Chancellor or the senior judge of the Court in consultation with the other, consider it desirable that a recommendation be made for an appointment. The new section 26(5B) provides that the senior judge means the President of the Court or, if there is no President, the Deputy President or, if there is no President and no Deputy President, the most senior ordinary judge of the UK Supreme Court.
334.Paragraph 4 inserts new subsections (1A) to (1D) into section 27 of the CRA, which deals with the selection process for judges of the UK Supreme Court. These new subsections set out the requirements in relation to the composition of selection commissions for UK Supreme Court appointments. A selection commission must include:
a minimum of 5 members and in every case must consist of an odd number of members;
at least one serving judge of the UK Supreme Court;
at least one non-legally-qualified member; and
at least one member of each of the following bodies:
the Judicial Appointments Commission (“JAC”);
the Judicial Appointments Board for Scotland; and
the Northern Ireland Judicial Appointments Commission.
335.Further provisions in relation to the composition of selection commissions for the appointment of the President of the Court and Deputy President of the Court are made; in particular, that they must not be a member of a selection commission convened to select their replacement. Paragraph 4(2) provides for a definition of “non-legally-qualified”.
336.Paragraph 5 inserts a new section 27A into the CRA, conferring a duty on the Lord Chancellor to make regulations to make further provision about the membership of selection commissions and the selection process to be applied in any case where a selection commission is required. The regulations must also secure that in every case there must come a point where a selection by the selection commission is accepted by or on behalf of the Lord Chancellor. These regulations must be made with the agreement of the senior judge and are subject to the affirmative resolution procedure by virtue of paragraph 7(9) of Schedule 13 which amends section 144(5) of the CRA.
337.Paragraph 6 inserts new section 27B into the CRA. This sets out the procedure which the Lord Chancellor must follow when issuing guidance about the UK Supreme Court selection process and specifies the circumstances in which such guidance can be revoked. Specifically, it confers a duty on the Lord Chancellor to consult the senior judge of the UK Supreme Court before laying a draft of the proposed guidance before both Houses of Parliament. The guidance will be subject to the affirmative resolution procedure.
338.Paragraphs 7 and 8 make consequential amendments, repeals and revocations. In particular, section 27(2) and (3) of, and Parts 1 and 2 of Schedule 8 to, the CRA are repealed, as are sections 28 to 31 and 60(5) of the CRA. Paragraph 7(4) inserts a new section 26(7A) into the CRA to define for the purposes of that section and Schedule 8 when a person is considered as having been selected.
339.Part 2 provides for measures to promote consideration of diversity in the appointments process.
340.Paragraph 9 amends section 27 of the CRA to provide that a UK Supreme Court selection commission is not prevented from preferring one candidate over another for the purposes of increasing diversity in the UK Supreme Court where two candidates are of equal merit.
341.Paragraph 10(3) amends section 63 of the CRA. New section 63(4) of the CRA provides that neither the requirement to select candidates for judicial office solely on merit, nor Part 5 of the Equality Act 2010, prevents the selecting body from preferring one candidate over another, where two persons are judged to be of equal merit, for the purposes of increasing diversity within the judiciary.
342.Paragraph 11 introduces a new section 137A to the CRA. The new section places the Lord Chancellor and Lord Chief Justice under a duty to take such steps as they consider appropriate for the purposes of encouraging judicial diversity.
343.Paragraph 13 amends section 2 of the Senior Courts Act 1981 to allow the maximum number of ordinary judges of the Court of Appeal to be made up of a full-time equivalent (“FTE”) of 38 ordinary judges, rather than a maximum of 38 individual judges. It also includes reference as to how to calculate the FTE, namely by taking the number of full-time ordinary judges and adding, for each ordinary judge who is not full-time, such fraction as is reasonable.
344.Paragraph 14 amends section 4 of the Senior Courts Act 1981 to allow the maximum number of puisne judges of the High Court to be made up of a FTE of 108, rather than a maximum of 108 individual puisne judges. It also includes reference as to how to calculate the FTE, namely by taking the number of full-time puisne judges and adding, for each puisne judge who is not full-time, such fraction as is reasonable.
345.Part 3 makes changes to the number of members of, and composition of, the JAC by amending Schedule 12 to the CRA. In particular it removes some of the detailed provisions of that Schedule and introduces new regulation-making powers.
346.Paragraph 17 amends Schedule 12 to the CRA to enable the Lord Chancellor, with the agreement of the Lord Chief Justice, to determine the number of Commissioners of the JAC through regulations. Paragraph 1 of Schedule 12 currently requires that the JAC consist of a chairman and 14 other Commissioners.
347.Paragraph 18 repeals paragraphs 2(2) to (5) and 4 to 6 of Schedule 12 to the CRA which provide for the composition of the JAC. Currently the JAC must consist of five judicial members, two professional members, five lay members, one member holding an office listed in Part 3 of Schedule 14 to the CRA (which lists members of tribunals and other similar office holders appointed by the Lord Chancellor) or an office listed in paragraph 2(2A) of Schedule 12 to the CRA, and one lay justice member.
348.Paragraph 19 inserts new paragraphs 3A to 3C into Schedule 12 to the CRA. New paragraph 3A provides that the number of Commissioners who are judicial office holders must be less than the number of non-judicial office holders. New paragraph 3B enables the Lord Chancellor to make provision about the composition of the JAC in regulations agreed with the Lord Chief Justice. These regulations will make provision for the categories of different members of the JAC, but the Lord Chancellor must exercise his or her power so that the JAC includes judicial office holders, employed or practising lawyers and lay members. The regulations may include provisions about the number of Commissioners of any specified category (for example, the number of lay members) and may make provision about the eligibility for appointment as a Commissioner or chairman. New paragraph 3C enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to make regulations defining the terms:
“lay member” for the purposes of Part 4 of Schedule 12 to the CRA; and
“holder of judicial office” for the purposes of the exercise of the regulation-making powers in paragraph 3A (number of Commissioners), paragraph 3B(2)(a) (composition of Commission), paragraph 11 (vice-chairman) and also paragraph 20(5) (committees of the Commission must include at least one judicial member if exercising the function of selection) of Schedule 12 to the CRA.
349.Paragraph 20 substitutes paragraphs 7 to 10 of Schedule 12 to the CRA which deal with matters relating to the selection of Commissioners with new paragraphs 6A and 6B which provide that the Lord Chancellor may make regulations, with the agreement of the Lord Chief Justice, to make provision for or in connection with the selection or nomination of Commissioners. New paragraph 6A(2) provides details of the matters that may be addressed in such regulations, including provision that selection or nomination is to be by a person, or body, specified in or appointed under the regulations; the matters which the selecting body or person is to, or is not to, have regard to; that the selecting body or person can determine its own selection procedure for the purpose of appointing a Commissioner; and requiring that there is a Commissioner who has special knowledge of a particular geographical area or of a particular matter. However, it is also specified in new paragraph 6B that the power to make regulations should be exercised with a view to ensuring that as far as practicable at least one of the lay Commissioners has special knowledge of Wales. The regulations may also make provision for payment to selectors of remuneration, fees and expenses incurred while carrying out their duties.
350.Paragraph 21 amends paragraph 11 of Schedule 12 to the CRA which provides for the vice-chairman of the JAC. As now, the vice-chairman is to be the most senior of the judicial members of the Commission. However, the judicial member who ranks as the most senior will now be determined in accordance with regulations made by the Lord Chancellor with the agreement of the Lord Chief Justice (sub-paragraph (3)). Sub-paragraph (4) amends paragraph 11(3) of Schedule 12 to the CRA which lists those functions of the chairman of the JAC which the vice-chairman may not exercise in the absence of the chairman (on the grounds that, in the absence of the chairman, such functions should not be exercised by a judicial member of the JAC). The functions in question are sitting on the panel for selecting: judges of the UK Supreme Court; the Lord Chief Justice; a Head of Division; the Senior President of Tribunals; or a Lord Justice of Appeal.
351.Paragraph 22 replaces paragraph 13 of Schedule 12 to the CRA which deals with the maximum term of office for a Commissioner with a new paragraph 13 providing a regulation-making power for the Lord Chancellor, in agreement with the Lord Chief Justice, to determine the period for which a Commissioner may hold office. New paragraph 13(2) also sets out what may be included in any such regulations, including the number of times a person can be appointed, the length of appointment and the total period for which they may hold office as a Commissioner. Currently a Commissioner may serve a maximum of two terms of up to five years apiece.
352.Paragraph 23 replaces sub-paragraphs (1) and (2) of paragraph 14 of Schedule 12 to the CRA which deal with circumstances where persons cease to be a Commissioner or chairman on the basis that they are no longer eligible for appointment as a Commissioner or are no longer eligible to be a Commissioner of a particular description. New paragraph 14(1) of Schedule 12 to the CRA provides a regulation-making power for the Lord Chancellor, exercisable in agreement with the Lord Chief Justice, to provide when a Commissioner ceases to be a Commissioner or when the chairman ceases to be the chairman, and to provide a power to disapply or suspend these provisions in individual cases.
353.By virtue of the amendment made to section 144(5)(e) of the CRA by paragraph 27, all regulations made under Part 1 of Schedule 12 to the CRA, as amended, are subject to the affirmative resolution procedure.
354.Paragraphs 24 to 28 make supplementary and consequential amendments to the CRA and the Tribunals, Courts and Enforcement Act 2007.
355.Part 4 provides for responsibility for certain decisions in relation to judicial appointments to be transferred from the Lord Chancellor to the Lord Chief Justice and Senior President of Tribunals. It also makes amendments to the CRA in relation to the processes for selecting persons for appointment to judicial office.
356.The Lord Chief Justice will acquire the power to appoint persons to a number of courts-based judicial offices below the High Court and will acquire the power to decide upon selections made by the JAC in relation to appointments to a number of other courts-based judicial offices where Her Majesty The Queen makes the appointment. The Lord Chancellor will retain the power to decide upon selections by the JAC, or selection panel, in relation to appointments to the High Court and above and will retain the power to appoint in relation to a number of other courts-based judicial offices.
357.In relation to those offices where the Lord Chief Justice will, in future, have the power to appoint, most if not all of those offices are held by the holders on a renewable fixed-term basis. The power to extend, or to refuse to extend, such fixed-term appointments will be retained by the Lord Chancellor.
358.The Lord Chancellor will retain overall responsibility and accountability for judicial terms and conditions of appointment and service.
359.The Senior President of Tribunals will acquire the power to appoint persons as judges or other members of the First-tier Tribunal, other members of the Upper Tribunal, Chamber Presidents and Deputy Chamber Presidents of the First-tier Tribunal or the Upper Tribunal and deputy judges of the Upper Tribunal. The Senior President of Tribunals will also acquire the power to decide upon selections made by the JAC in relation to appointments as judges of the Upper Tribunal for which Her Majesty The Queen has the power to appoint.
360.Where any of the offices for which the Senior President of Tribunals will, in future, have the power to appoint are held by the holder on a renewable fixed-term basis, the Lord Chancellor will retain responsibility for the extension of (or refusing to extend) such fixed-term appointments. The Lord Chancellor will retain power to remove a person from office and, again, the Lord Chancellor will retain responsibility for judicial terms and conditions of appointment and service.
361.Paragraph 29 amends Part 1 of Schedule 14 to the CRA (appointments by Her Majesty) so as to transfer responsibility for deciding upon selections made by the JAC in relation to certain judicial appointments from the Lord Chancellor to the Lord Chief Justice or the Senior President of Tribunals. Paragraph 30 makes consequential amendments to paragraphs 1(2)(d) and 1(3) of Schedule 3 to the Tribunals, Courts and Enforcement Act 2007.
362.Paragraph 32 amends section 21 of the Courts Act 1971 which deals with the appointment of Recorders who are fee-paid Crown Court and county court judges who hold office for a renewable fixed-term. Section 21(3) deals with the terms of appointment of a Recorder. Subsection (3)(c) provides that the terms of appointment must specify the circumstances in which the Lord Chancellor may either terminate the appointment or decline to extend the term of the appointment. The power to renew or refuse to renew the fixed-term appointments of these judicial offices will remain with the Lord Chancellor and not be transferred to the Lord Chief Justice. Sub-paragraph (3) inserts a new subsection (8) to provide that subject to the preceding provisions of section 21 a person holds and vacates office as a Recorder in accordance with the terms of the person’s appointment and those terms are to be such as the Lord Chancellor may determine. Sub-paragraph (3) also inserts a new subsection (9) into section 21 which enables the Lord Chief Justice to nominate a senior judge to exercise functions under section 21(4) or (4C).
363.Paragraph 34 relates to the appointment of deputy Circuit judges by the Lord Chief Justice. Paragraph 34(3) amends section 24(1)(a) of the Courts Act 1971 to transfer the power to appoint persons as deputy Circuit judges from the Lord Chancellor to the Lord Chief Justice, but any decision to appoint a person must be made with the concurrence of the Lord Chancellor (reversing the current roles). Paragraph 34(5) inserts new subsections (5A) to (5D) into section 24 of the Courts Act 1971 to provide for the circumstances in which a deputy Circuit judge may be removed from office by the Lord Chancellor (new section 21(5A)), the extension of a deputy Circuit judge’s fixed-term of appointment by the Lord Chancellor (with any agreement of the Lord Chief Justice, or the Lord Chief Justice’s nominee, that may be required by the terms and conditions of appointment and service (new section 21(5B) and (5C)), and the determination of other terms of appointment by the Lord Chancellor (new section 21(5D)).
364.Paragraph 35 amends section 91 of the Senior Courts Act 1981, which deals with the appointment of deputy and temporary Masters, Registrars etc. of the High Court. Paragraph 35(2) amends section 91(1) to transfer to the Lord Chief Justice (from the Lord Chancellor) the power to appoint such office holders. Paragraph 35(3) substitutes section 91(1ZA) to provide that the Lord Chief Justice cannot appoint a holder of relevant office (as defined in section 91(1ZC)) as a deputy Master etc without the agreement of the Lord Chancellor. Paragraph 35(4) inserts new subsections (6A) to (6D) into section 91 to provide for the circumstances in which a deputy or temporary Master etc. may be removed from office by the Lord Chancellor (new section 91(6A)), the extension of a deputy or temporary Master’s etc. fixed-term appointment by the Lord Chancellor (with any agreement of the Lord Chief Justice (or the Lord Chief Justice’s nominee) that may be required by the terms and conditions of appointment and service (new section 91(6B) and (6C)), and the determination of other terms of appointment by the Lord Chancellor (new section 91(6D)).
365.Paragraph 35(5) to (7) make consequential amendments to the CRA and Tribunals, Courts and Enforcement Act 2007.
366.Paragraph 36 amends section 102 of the Senior Courts Act 1981 which provides for the appointment of deputy district judges for the High Court. Sub-paragraph (2) amends section 102(1) to allow the Lord Chief Justice (rather than the Lord Chancellor) to appoint persons as deputy district judges. Sub-paragraph (3) amends section 102(1B) so that the Lord Chief Justice cannot appoint without the agreement of the Lord Chancellor a person who holds the office of district judge or a person who ceased to hold the office of district judge within two years ending with the date when the appointment takes effect. Sub-paragraph (4) inserts new subsections (5ZA) to (5ZE) into section 102 to provide for the circumstances in which a deputy district judge may be removed from office by the Lord Chancellor (new section 102(5ZA)), the extension of a deputy district judge’s fixed-term of appointment by the Lord Chancellor (with any agreement of the Lord Chief Justice (or the Lord Chief Justice’s nominee) that may be required by the terms and conditions of appointment and service) (new section 102(5ZB) and (5ZC)), the determination of other terms of appointment by the Lord Chancellor (new section 102(5ZD)) and the delegation of the Lord Chief Justice’s functions under section 102 (new section 102(5ZE)). Paragraph 36(5) and (6) make consequential amendments to the Senior Courts Act 1981 and the CRA as a result of the above changes.
367.Paragraph 37 makes similar provisions to those outlined above, but in relation to deputy district judges for the county court, by amending section 8 of the County Courts Act 1984.
368.Paragraph 38 makes like provisions for Deputy District Judges (Magistrates’ Courts) by amending section 24 of the Courts Act 2003.
369.Paragraph 39 amends section 10 of the Courts Act 2003 and provides for the Lord Chancellor’s powers of appointment in respect of lay justices (magistrates) to be transferred to the Lord Chief Justice. The appointments themselves will, as now, continue to be made in the name of Her Majesty The Queen. Sub-paragraph (3) inserts a new section 10(1A) to provide that a lay justice is to hold and vacate office in accordance with terms of appointment as determined by the Lord Chancellor. Sub-paragraph (4) inserts a new section 10(2ZA) to provide that the Lord Chief Justice must ensure that arrangements for the exercise (so far as affecting any local justice area) of functions under subsection (1) include arrangements for the consulting of persons appearing to the Lord Chief Justice to have special knowledge of matters relevant to the exercise of that function in relation to that area. Sub-paragraph (6) inserts a new section 10(6A) to enable the Lord Chief Justice to nominate a senior judge (as defined by section 109(5) of the CRA) to exercise his power to appoint lay justices.
370.Paragraph 40 introduces a requirement into section 94A of the CRA for the Lord Chancellor and the Lord Chief Justice to seek the concurrence of the other before making certain judicial appointments, selection for which is not undertaken by the JAC.
371.Paragraph 41 amends Part 2 of Schedule 14 to the CRA so that the transfer of the power to appoint in relation to particular courts-based judicial offices from the Lord Chancellor to the Lord Chief Justice is reflected in that Schedule.
372.Paragraphs 42 and 43 amend the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) to confer upon the Senior President of Tribunals (in place of the Lord Chancellor) the power to appoint Chamber Presidents for the First-tier Tribunal or the Upper Tribunal.
373.Paragraph 44(1) introduces a new subsection (1A) into section 8 of the 2007 Act, which restricts the power of the Senior President of Tribunals to delegate his power to appoint judges and other members to the First-tier Tribunal to a Chamber President of a chamber of the Upper Tribunal. Paragraph 44(2) amends section 8(2) of the 2007 Act in order to detail which functions the Senior President of Tribunals may not delegate. Paragraph 44(3) inserts new section 46(7) into the 2007 Act to provide a definition of ‘senior judge’ for the purposes of Schedules 2 to 4 to that Act in relation to refusals to extend fixed-term appointments.
374.Paragraph 45(2) amends Schedule 2 to the 2007 Act to confer on the Senior President of Tribunals the power to appoint judges and other members of the First-tier Tribunal. Paragraph 45 further amends Schedule 2 to set out the grounds on which the Lord Chancellor may remove from office judges and other members of the First-tier Tribunal appointed on a fee-paid basis, and makes provisions regarding the extension of fixed-term appointments by the Lord Chancellor (with any agreement of a senior judge (as defined under section 46(7)), or a nominee of a senior judge, that may be required by the terms and conditions of appointment and service).
375.Paragraph 46 makes similar provisions in relation to the appointment of other members of the Upper Tribunal by amending Schedule 3 to the 2007 Act, and also confers upon the Senior President of Tribunals the power to appoint deputy judges of the Upper Tribunal by way of amendment to paragraph 7(1) of Schedule 3.
376.Paragraph 47 amends Schedule 4 to the 2007 Act to transfer certain functions from the Lord Chancellor to the Senior President of Tribunals in relation to the appointment of Chamber Presidents and deputy Chamber Presidents. Sub-paragraph (14) inserts new paragraph 5A into Schedule 4 to provide for the removal of Chamber Presidents and deputies from office by the Lord Chancellor and extensions of their appointments where they are fixed-term appointments by the Lord Chancellor (with any agreement of a senior judge (as defined under section 46(7)), or a nominee of a senior judge, that be required by the terms and conditions of appointment and service).
377.Paragraph 48(2) substitutes a new section 94B(1)(b) of the CRA to provide that for certain appointments (where section 94B applies) the Lord Chancellor and the Senior President of Tribunals are not to make an appointment (or recommendation for appointment) without the concurrence of the other.
378.Paragraph 49 makes consequential amendments to Part 3 of Schedule 14 to the CRA to reflect the transfer of the Lord Chancellor’s power to appoint in relation to certain tribunals-based judicial offices to the Senior President of Tribunals.
379.Paragraph 50 amends section 50 of the Equality Act 2010 to amend the definition of “public office” so as to bring into its scope those judicial offices for which the Lord Chief Justice and the Senior President of Tribunals will, in future, have the power to appoint. It will therefore be unlawful for the Lord Chief Justice or the Senior President of Tribunals to discriminate against, harass or victimise persons who are, or wish to be, appointed to those judicial offices for which the Lord Chief Justice and the Senior President of Tribunals will have the power to appoint.
380.Paragraph 51 makes consequential amendments to section 51 of the Equality Act 2010.
381.Paragraph 52 amends section 9 of the Senior Courts Act 1981 so that requests may only be made to a Circuit Judge, Recorder or Tribunal judge to sit in the High Court if they are a member of a pool selected by the JAC for such purposes.
382.Paragraph 53 repeals several sections of the CRA, and inserts a new section 94C into that Act. The new section 94C will require the Lord Chancellor to make regulations with the agreement of the Lord Chief Justice to:
make further provision about the process to be applied where the Lord Chancellor has requested the JAC to select persons for appointment as a High Court judge or to one of the offices listed in Schedule 14 to the CRA or to a pool mentioned in the amendment made by paragraph 52. Although the JAC will have the power under section 88(1) of the CRA to determine the selection process to be applied by it, the regulations may make further provision about the entire process;
make further provision about the membership of the selection panels convened for selecting persons for appointment as Lord Chief Justice, Heads of Division, Senior President of Tribunals or ordinary judges of the Court of Appeal;
make further provision about the process to be applied in a case where such a selection panel is required to be convened.
383.The regulations must also secure that in every case there must come a point where a selection by the JAC or selection panel is accepted. New section 94C(2) sets out what the regulations may in particular provide for. Notably, such regulations may give functions to the Lord Chancellor including the powers to require a selection panel to reconsider a selection or any subsequent selection, and to reject a selection. Furthermore, under these regulations the Lord Chancellor, Lord Chief Justice or Senior President of Tribunals (depending upon who has the power to decide upon a selection by the JAC) could be given power to reject or require reconsideration of initial or subsequent selections by the JAC made on a request under section 87, and to require reconsideration by the JAC of a decision where a selection process has not identified candidates of sufficient merit.
384.Paragraphs 54 to 80 provide for other changes to be made to the CRA in relation to selection processes and complaints about the selection/appointment process. Paragraph 55 amends section 66(1)(a) of the CRA so that before issuing any guidance to the JAC about selection procedures the Lord Chancellor must now obtain the agreement of the Lord Chief Justice.
385.Paragraph 58(2) inserts new subsections (1A) to (1D) into section 70 of the CRA, setting out requirements in relation to the composition of selection panels for selecting persons for appointment as Lord Chief Justice or Heads of Division. Similarly, sections 75B and 79 are amended (paragraphs 60(2) and 63(2)) to set out requirements for the composition of selection panels for selecting persons for appointment as the Senior President of Tribunals and ordinary judges of the Court of Appeal, respectively. The new subsections notably require that the panel must consist of an odd number of members and not less than five, that at least two members must be non-legally qualified (which may be defined in regulations made under new section 94C), that at least two must be judicial members and that at least two must be members of the JAC.
386.Paragraph 64(4) provides for the Lord Chancellor, by order and after consulting the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland, to provide that section 85 of the CRA does not apply to appointments to an office listed in Schedule 14 to the CRA that is specified in the order. In essence this will provide that certain offices may be removed from the scope of the JAC. Those offices may only be those that do not require particular legal qualifications.
387.Paragraph 65 amends section 86 of the CRA, in relation to the duties to make appointments or recommendations for appointment.
388.Paragraph 66 amends section 87 of the CRA. Sub-paragraph (2) inserts new subsection (1A) which provides that the Lord Chancellor may request the JAC to select a person for membership of a pool from which requests may be made under section 9(1) of the Senior Courts Act 1981 to assist with the business of certain courts.
389.Paragraph 67 makes consequential amendments to section 88 of the CRA, which deals with the selection process. It includes an amendment to section 88(4) to provide that only one person may be selected in relation to each request for a person to be selected for membership of a pool for the purposes of section 9(1) of the Senior Courts Act 1981.
390.Paragraph 68 substitutes a new section 94 into the CRA. If the Lord Chancellor gives the JAC notice of a request which the Lord Chancellor expects to make under section 87, the JAC must seek to identify persons it considers would be suitable for selection on the request. The Lord Chancellor, however, may with the agreement of the Lord Chief Justice make regulations about how the JAC is to comply with this duty. Paragraph 69 provides further detail and consequential amendments to section 95 of the CRA regarding the Lord Chancellor’s power to withdraw or modify a request made under section 69, 78 or 87 of the CRA or paragraph 2(5) of Schedule 1 to the 2007 Act.
391.Paragraph 70 makes consequential amendments to section 97(1) and (4) of the CRA.
392.Paragraphs 71 to 77 make consequential amendments to sections 99 to 105 of the CRA which concern complaints about the selection/appointment process, including referrals to the Judicial Appointments and Conduct Ombudsman (“Ombudsman”). Paragraph 71 incorporates a definition of “LCJ complaint” and “SPT complaint” into section 99 of the CRA, and paragraph 72 imposes a duty upon the Lord Chief Justice and Senior President of Tribunals to investigate complaints made to them. Paragraphs 73 to 75 concern the duties of the Ombudsman to investigate complaints and submit reports to the Lord Chief Justice, Senior President of Tribunals and the Lord Chancellor. Paragraph 78 amends section 144(5) of the CRA to add to the list of orders and regulations that are subject to the affirmative resolution procedure. Paragraphs 79 and 80 make further consequential amendments to the CRA.
393.Paragraph 82 temporarily amends the CRA to provide an amended selection process for appointments of the Lord Chief Justice or a Head of Division. This will allow the next Lord Chief Justice to be selected using a new selection process. These transitory provisions also provide a new selection process for a Head of Division should the next Lord Chief Justice be an existing Head of Division. Section 71 of the CRA currently provides that the panel for the selection of the Lord Chief Justice and Heads of Division is comprised of four persons and chaired by the most senior England and Wales Supreme Court judge, who has an additional casting vote in the event of a tie. As provided for by the temporary new section 71(2) and 71(3) of the CRA as inserted by paragraph 82(3) of Schedule 13, under the new process for the selection of a Lord Chief Justice there will be a five member panel chaired by a lay commissioner of the Judicial Appointments Commission. For Heads of Division, new sections 71A(2) and 71A(3) as inserted by paragraph 82(3) of Schedule 13 provide that the selection panel will comprise five members and be chaired by the Lord Chief Justice. Furthermore, new section 70(2A)(a) of the CRA, inserted by paragraph 82(2) of Schedule 13, will require the Lord Chancellor to be consulted as part of the processes for selecting Heads of Division and the Lord Chief Justice. In the case of the selection of the Lord Chief Justice, new section 70(2A)(b) as inserted by paragraph 82(2) of Schedule 13 requires the First Minister for Wales to be consulted as well as the Lord Chancellor. New section 94C of the CRA as inserted by paragraph 53 of Schedule 13 provides for these selection processes in future to be set out in secondary legislation. Following the completion of the selection exercise for the next Lord Chief Justice and the making of the secondary legislation under new section 94C this transitory provision will be removed by virtue of paragraph 81 and cease to have effect.
394.Paragraphs 83 to 88 provide for the Lord Chief Justice, with the concurrence of the Lord Chancellor, to temporarily appoint a judge of the Senior Courts to exercise relevant functions of a Head of Division where that Head of Division is incapable of exercising those functions or the office is vacant. Paragraph 84 provides that the appointment must be in writing, specify the functions that may be exercised by the appointed judge and must set out the duration of the appointment. Paragraph 85 defines “Head of Division”. These are the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division and the Chancellor of the High Court. Paragraph 86 defines “relevant functions” and paragraph 87 provides that the Lord Chancellor may amend by order the list of relevant functions in paragraph 86. Paragraph 88 amends section 10 of the Senior Courts Act 1981 by inserting a new subsection (6A) which has the effect that where a Head of Division is incapacitated, that office is to be treated as vacant for the purpose of section 10(6).
395.From April 2000, appointments to the office of assistant Recorder (fee-paid judicial office holders with a fixed-term appointment) were no longer made, with all subsequent appointments being made to the office of Recorder. However, residual references to the office of assistant Recorder still remain in legislation. Paragraph 89 removes any reference to this office in section 24 of the Courts Act 1971, and provides for consequential amendments to be made to that Act, the Judicial Pensions and Retirement Act 1993, the Senior Courts Act 1981, the Courts Act 2003, the CRA and the 2007 Act.
The data on this page is available in the alternative data formats listed:
All content is available under the Open Government Licence v3.0 except where otherwise stated. This site additionally contains content derived from EUR-Lex, reused under the terms of the Commission Decision 2011/833/EU on the reuse of documents from the EU institutions. For more information see the EUR-Lex public statement on re-use.
