Constitutional Reform Act 2005 (c. 4)

(The document as of February, 2008)

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(d) the Chancellor of the High Court, if the offices in paragraphs (a), (b) and (c) are vacant.

(4) For the purposes of this section--

(a) the Lord Chief Justice is to be regarded as incapacitated only if at least three of the Heads of Division declare in writing that they are satisfied that he is incapacitated;

(b) in such a case, the Lord Chief Justice is to be regarded as incapacitated until at least three of the Heads of Division declare in writing that they are satisfied that he is no longer incapacitated.

(5) In this section--

(a) "Lord Chief Justice" means the Lord Chief Justice of England and Wales;

(b) "incapacitated", in relation to the Lord Chief Justice, means unable to exercise the functions of that office;

Lord Chancellor's oath

17 Lord Chancellor's oath

(1) In the Promissory Oaths Act 1868 (c. 72) after section 6 insert--

" 6A Lord Chancellor's Oath

(1) The oath set out in subsection (2) shall be tendered to and taken by the Lord Chancellor, after and in the same manner as the official oath, as soon as may be after his acceptance of office.

(2) The oath is--

" "I, , do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God. " . "

(2) The section inserted by subsection (1) does not apply in the case of acceptance of office before the coming into force of this section.

Speakership of the House of Lords

18 Speakership of the House of Lords

Schedule 6 contains amendments relating to the Speakership of the House of Lords.

Functions subject to transfer, modification or abolition

19 Transfer, modification or abolition of functions by order

(1) The Lord Chancellor may by order make provision for any of these purposes--

(a) to transfer an existing function of the Lord Chancellor to another person;

(b) to direct that an existing function of the Lord Chancellor is to be exercisable concurrently with another person;

(c) to direct that an existing function of the Lord Chancellor exercisable concurrently with another person is to cease to be exercisable by the Lord Chancellor;

(d) to modify an existing function of the Lord Chancellor;

(e) to abolish an existing function of the Lord Chancellor.

(2) An order under subsection (1) may in particular--

(a) amend or repeal any of the following--

(i) an enactment other than one contained in an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;

(ii) subordinate legislation other than subordinate legislation made under an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;

(iii) any other instrument or document, including a prerogative instrument;

(b) include--

(i) any supplementary, incidental or consequential provision, and

(ii) any transitory, transitional or saving provision,

which the Lord Chancellor considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, provision made under subsection (1).

(3) The amendments that may be made by virtue of subsection (2)(a) are in addition to those made by or under any other provision of this Act.

(4) An order under subsection (1) may not include provision that may be made under section 1(1) of the Ministers of the Crown Act 1975 (c. 26) (power to transfer functions to other Ministers etc).

(5) An order under subsection (1) may not be made in relation to any function of the Lord Chancellor that is within Schedule 7.

(6) An order under subsection (1) may amend Schedule 7 so as to include any function which, by virtue of provision in the order--

(a) becomes exercisable by the Lord Chancellor concurrently with another person, or

(b) is modified.

(7) An order under subsection (1) may not, to the extent that it amends Schedule 7, be revoked by another order under subsection (1).

(8) In this section--

"existing function" means any function other than one that is conferred by--
(a)
an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed, or
(b)
subordinate legislation made under an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;
"prerogative instrument" means an Order in Council, warrant, charter or other instrument made under the prerogative.

20 Protected functions not transferable under Ministers of the Crown Act 1975

(1) The Ministers of the Crown Act 1975 (c. 26) is amended as follows.

(2) In section 1 (power by Order in Council to transfer functions of Ministers), after subsection (5) insert--

" (6) This section does not apply to the functions of the Lord Chancellor that are within Schedule 7 to the Constitutional Reform Act 2005.

(7) An Order in Council under this section may amend Schedule 7 to the Constitutional Reform Act 2005 so as to include any function which, by virtue of provision in the Order in Council--

(a) is transferred to the Lord Chancellor,

(b) becomes exercisable by the Lord Chancellor concurrently with another person, or

(8) An Order in Council under this section may not, to the extent that it amends Schedule 7 to the Constitutional Reform Act 2005, be revoked by another Order in Council under this section. "

(3) After section 5(3) (Orders under Act to be revocable) insert--

" (3A) Subsection (3) is subject to section 1(8). "

21 Amendment of Schedule 7

(1) The Lord Chancellor may by order amend Schedule 7 so as to include within that Schedule any function of the Lord Chancellor under an enactment, other than an enactment contained in an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed.

(2) For the purposes of subsection (1) it does not matter whether a function of the Lord Chancellor is exercisable by him alone or concurrently with another person.

(3) An order made under this section may not be revoked by an order made under this section.

Supplementary

22 Transfers: supplementary

(1) This section applies where a function of the Lord Chancellor is transferred to another person ("the transferee") by any provision of this Act or of an order under section 19 ("the amending provision").

(2) Where the transferee is Her Majesty, references to the transferee in the following provisions of this section are to be read as references to the Lord Chancellor.

(3) The transfer does not affect the validity of anything done (or having effect as if done) by or in relation to the Lord Chancellor before the commencement of the amending provision.

(4) So far as is necessary in consequence of the transfer, an enactment or instrument passed or made before the commencement of the provision has effect, subject to any amendment made by the amending provision or any other provision of this Act, as if--

(a) a reference to the Lord Chancellor were a reference to the transferee;

(b) a reference to the Lord Chancellor's Department were a reference to the department of the transferee;

(5) Anything done by or in relation to the Lord Chancellor in connection with the function has effect, so far as is necessary for continuing its effect after the commencement of the amending provision, as if done by or in relation to the transferee.

(6) Anything which relates to the function and which is in the process of being done by or in relation to the Lord Chancellor at the commencement of the amending provision may be continued by or in relation to the transferee.

(7) Legal proceedings to which the Lord Chancellor is party in relation to the function at the commencement of the amending provision may be continued by or against the transferee.

(8) Documents or forms printed for use in connection with the function may be used in connection with it even though they contain (or are to be read as containing) references to the Lord Chancellor, his Department or an officer of his.

(9) For the purposes of the use of any such documents after the commencement of the amending provision, those references are to be read as references to the transferee, his department or an officer of his.

Part 3 The Supreme Court

The Supreme Court

23 The Supreme Court

(1) There is to be a Supreme Court of the United Kingdom.

(2) The Court consists of 12 judges appointed by Her Majesty by letters patent.

(3) Her Majesty may from time to time by Order in Council amend subsection (2) so as to increase or further increase the number of judges of the Court.

(4) No recommendation may be made to Her Majesty in Council to make an Order under subsection (3) unless a draft of the Order has been laid before and approved by resolution of each House of Parliament.

(5) Her Majesty may by letters patent appoint one of the judges to be President and one to be Deputy President of the Court.

(6) The judges other than the President and Deputy President are to be styled "Justices of the Supreme Court".

(7) The Court is to be taken to be duly constituted despite any vacancy among the judges of the Court or in the office of President or Deputy President.

24 First members of the Court

On the commencement of section 23--

(a) the persons who immediately before that commencement are Lords of Appeal in Ordinary become judges of the Supreme Court,

(b) the person who immediately before that commencement is the senior Lord of Appeal in Ordinary becomes the President of the Court, and

(c) the person who immediately before that commencement is the second senior Lord of Appeal in Ordinary becomes the Deputy President of the Court.

Appointment of judges

25 Qualification for appointment

(1) A person is not qualified to be appointed a judge of the Supreme Court unless he has (at any time)--

(a) held high judicial office for a period of at least 2 years, or

(b) been a qualifying practitioner for a period of at least 15 years.

(2) A person is a qualifying practitioner for the purposes of this section at any time when--

(a) he has a Senior Courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41),

(b) he is an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary, or

26 Selection of members of the Court

(1) This section applies to a recommendation for an appointment to one of the following offices--

(a) judge of the Supreme Court;

(b) President of the Court;

(2) A recommendation may be made only by the Prime Minister.

(3) The Prime Minister--

(a) must recommend any person whose name is notified to him under section 29;

(b) may not recommend any other person.

(4) A person who is not a judge of the Court must be recommended for appointment as a judge if his name is notified to the Prime Minister for an appointment as President or Deputy President.

(5) If there is a vacancy in one of the offices mentioned in subsection (1), or it appears to him that there will soon be such a vacancy, the Lord Chancellor must convene a selection commission for the selection of a person to be recommended.

(6) Schedule 8 is about selection commissions.

(7) Subsection (5) is subject to Part 3 of that Schedule.

(8) Sections 27 to 31 apply where a selection commission is convened under this section.

27 Selection process

(1) The commission must--

(a) determine the selection process to be applied,

(b) apply the selection process, and

(2) As part of the selection process the commission must consult each of the following--

(a) such of the senior judges as are not members of the commission and are not willing to be considered for selection;

(b) the Lord Chancellor;

(d) the Assembly First Secretary in Wales;

(e) the Secretary of State for Northern Ireland.

(3) If for any part of the United Kingdom no judge of the courts of that part is to be consulted under subsection (2)(a), the commission must consult as part of the selection process the most senior judge of the courts of that part who is not a member of the commission and is not willing to be considered for selection.

(4) Subsections (5) to (10) apply to any selection under this section or section 31.

(5) Selection must be on merit.

(6) A person may be selected only if he meets the requirements of section 25.

(7) A person may not be selected if he is a member of the commission.

(8) In making selections for the appointment of judges of the Court the commission must ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom.

(9) The commission must have regard to any guidance given by the Lord Chancellor as to matters to be taken into account (subject to any other provision of this Act) in making a selection.

(10) Any selection must be of one person only.

28 Report

(1) After complying with section 27 the commission must submit a report to the Lord Chancellor.

(2) The report must--

(a) state who has been selected;

(b) state the senior judges consulted under section 27(2)(a) and any judge consulted under section 27(3);

(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.

(5) When he receives the report the Lord Chancellor must consult each of the following--

(a) the senior judges consulted under section 27(2)(a);

(b) any judge consulted under section 27(3);

(d) the Assembly First Secretary in Wales;

(e) the Secretary of State for Northern Ireland.

29 The Lord Chancellor's options

(1) This section refers to the following stages--

Stage 1:	where a person has been selected under section 27
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) notify the selection;

(b) reject the selection;

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

(a) notify the selection;

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

(4) At stage 3 the Lord Chancellor must notify the selection, unless subsection (5) applies and he makes a notification 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 notify that person's name to the Prime Minister.

(6) In this Part references to the Lord Chancellor notifying a selection are references to his notifying to the Prime Minister the name of the person selected.

30 Exercise of powers to reject or require reconsideration

(1) The power of the Lord Chancellor under section 29 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 29 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,

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

(c) there is not enough evidence that if the person were appointed the judges of the Court would between them have knowledge of, and experience of practice in, the law of each part of the United Kingdom.

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

31 Selection following rejection or requirement to reconsider

(1) If under section 29 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 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 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) The commission must inform the Lord Chancellor of the person selected following a rejection or requirement to reconsider.

Terms of appointment

32 Oath of allegiance and judicial oath

(1) A person who is appointed as President of the Court must, as soon as may be after accepting office, take the required oaths in the presence of--

(a) the Deputy President, or

(b) if there is no Deputy President, the senior ordinary judge.

(2) A person who is appointed as Deputy President of the Supreme Court must, as soon as may be after accepting office, take the required oaths in the presence of--

(a) the President, or

(b) if there is no President, the senior ordinary judge.

(3) A person who is appointed as a judge of the Supreme Court must, as soon as may be after accepting office, take the required oaths in the presence of--

(a) the President, or

(b) if there is no President, the Deputy President, or

(4) Subsections (1) and (2) apply whether or not the person appointed as President or Deputy President has previously taken the required oaths in accordance with this section after accepting another office.

(5) Subsection (3) does not apply where a person is first appointed as a judge of the Court upon appointment to the office of President or Deputy President.

(6) In this section "required oaths" means--

(a) the oath of allegiance, and

(b) the judicial oath,

as set out in the Promissory Oaths Act 1868 (c. 72).

33 Tenure

A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament.

34 Salaries and allowances

(1) A judge of the Supreme Court is entitled to a salary.

(2) The amount of the salary is to be determined by the Lord Chancellor with the agreement of the Treasury.

(3) Until otherwise determined under subsection (2), the amount is that of the salary of a Lord of Appeal in Ordinary immediately before the commencement of section 23.

(4) A determination under subsection (2) may increase but not reduce the amount.

(5) Salaries payable under this section are to be charged on and paid out of the Consolidated Fund of the United Kingdom.

(6) Any allowance determined by the Lord Chancellor with the agreement of the Treasury may be paid to a judge of the Court out of money provided by Parliament.

35 Resignation and retirement

(1) A judge of the Supreme Court may at any time resign that office by giving the Lord Chancellor notice in writing to that effect.

(2) The President or Deputy President of the Court may at any time resign that office (whether or not he resigns his office as a judge) by giving the Lord Chancellor notice in writing to that effect.

(3) In section 26(4)(a) of and Schedule 5 to the Judicial Pensions and Retirement Act 1993 (c. 8) (retirement), for "Lord of Appeal in Ordinary" substitute "Judge of the Supreme Court".

36 Medical retirement

(1) This section applies if the Lord Chancellor is satisfied by means of a medical certificate that a person holding office as a judge of the Supreme Court--

(a) is disabled by permanent infirmity from the performance of the duties of his office, and

(b) is for the time being incapacitated from resigning his office.

(2) The Lord Chancellor may by instrument under his hand declare the person's office to have been vacated.

(3) A declaration by instrument under subsection (2) has the same effect for all purposes as if the person had, on the date of the instrument, resigned his office.

(4) But such a declaration has no effect unless it is made--

(a) in the case of an ordinary judge, with the agreement of the President and Deputy President of the Court;

(b) in the case of the President, with the agreement of the Deputy President and the senior ordinary judge;

37 Pensions

(1) In the tables in sections 1 and 16 of the Judicial Pensions Act 1981 (c. 20) (application and interpretation), for "Lord of Appeal in Ordinary"--

(a) in the first column, substitute "Judge of the Supreme Court", and

(b) in the second column, in each place substitute "judge of the Supreme Court".

(2) In Part 1 of Schedule 1 to the Judicial Pensions and Retirement Act 1993 (qualifying judicial offices: judges), for "Lord of Appeal in Ordinary" substitute "Judge of the Supreme Court".

(3) The amendments made by this section to the 1981 and 1993 Acts do not affect the operation of any provision of or made under those Acts, or anything done under such provision, in relation to the office of, or service as, Lord of Appeal in Ordinary.

Acting judges

38 Acting judges

(1) At the request of the President of the Supreme Court any of the following may act as a judge of the Court--

(a) a person who holds office as a senior territorial judge;

(b) a member of the supplementary panel under section 39.

(2) A request under subsection (1) may be made by the Deputy President of the Court if there is no President or the President is unable to make that request.

(3) In section 26(7) of the Judicial Pensions and Retirement Act 1993 (c. 8) (requirement not to act in certain capacities after the age of 75) for paragraph (b) substitute--

" (b) act as a judge of the Supreme Court under section 38 of the Constitutional Reform Act 2005; " .

(4) Every person while acting under this section is, subject to subsections (5) and (6), to be treated for all purposes as a judge of the Supreme Court (and so may perform any of the functions of a judge of the Court).

(5) A person is not to be treated under subsection (4) as a judge of the Court for the purposes of any statutory provision relating to--

(a) the appointment, retirement, removal or disqualification of judges of the Court,

(b) the tenure of office and oaths to be taken by judges of the Court, or

(6) Subject to section 27 of the Judicial Pensions and Retirement Act 1993, a person is not to be treated under subsection (4) as having been a judge of the Court if he has acted in the Court only under this section.

(7) Such remuneration and allowances as the Lord Chancellor may with the agreement of the Treasury determine may be paid out of money provided by Parliament to any person who acts as a judge of the Court under this section.

(8) In this section "office as a senior territorial judge" means office as any of the following--

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