Constitutional Reform Act 2005 (c. 4)

(The document as of February, 2008)

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(i) the Supreme Court;

(ii) the Court of Appeal in England and Wales;

(iii) the High Court in England and Wales;

(iv) the Court of Session;

(v) the Court of Appeal in Northern Ireland;

(vi) the High Court in Northern Ireland;

or as a Lord of Appeal in Ordinary;

(b) a person appointed to the office of Lord Chancellor on or after 12 June 2003 who holds, or held, office of a kind referred to in paragraph (a) ("the qualifying office") is to be regarded as holding, or having held, high judicial office only if--

(i) he has ceased to be Lord Chancellor by virtue of that appointment, and

(ii) he holds, or held, the qualifying office otherwise than by virtue of that appointment as Lord Chancellor.

(3) In this Part--

(a) "ordinary judge" means a judge of the Supreme Court who is not the President or the Deputy President of the Court;

(b) the senior ordinary judge at any time is, of the ordinary judges at that time, the one who has served longest as a judge of the Court (whether over one or more periods and whether or not including one or more previous periods as President or Deputy President).

(4) Service as a Lord of Appeal in Ordinary counts as service as a judge of the Court for the purposes of subsection (3)(b).

(5) In this Part references to the Lord Chancellor notifying a selection are to be read in accordance with section 29(6).

Part 4 Judicial appointments and discipline

Chapter 1 Commission and Ombudsman

61 The Judicial Appointments Commission

(1) There is to be a body corporate called the Judicial Appointments Commission.

(2) Schedule 12 is about the Commission.

62 Judicial Appointments and Conduct Ombudsman

(1) There is to be a Judicial Appointments and Conduct Ombudsman.

(2) Schedule 13 is about the Ombudsman.

Chapter 2 Appointments

General provisions

63 Merit and good character

(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

(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

(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.

66 Guidance: supplementary

(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

67 Selection of Lord Chief Justice and Heads of Division

(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;

(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

(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

(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

(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

(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

(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

(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;

(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

(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

(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;

(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;

(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

(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

(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.

Lords Justices of Appeal

76 Selection of Lords Justices of Appeal

(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

(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

(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

(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

(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

(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

(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

(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;

(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;

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

83 Exercise of powers to reject or require reconsideration

(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

(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

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;

(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

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