Constitutional Reform Act 2005 (c. 4)

(The document as of February, 2008)

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(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 procedures for appointment to listed judicial offices 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. "

128 Report and recommendations

After section 9D of the 2002 Act insert--

" 9E Report and recommendations

(1) The Ombudsman must prepare a report on any complaint he has investigated under section 9D.

(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. "

129 Report procedure

After section 9E of the 2002 Act insert--

" 9F Report procedure

(1) This section applies to a report under section 9E.

(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 9I. "

130 References by the Lord Chancellor

After section 9F of the 2002 Act insert--

" 9G References by the Lord Chancellor

(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. "

131 Information

After section 9G of the 2002 Act insert--

" 9H Information

The Commission and the Lord Chancellor must provide the Ombudsman with such information as he may reasonably require relating to the subject matter of an investigation under section 9D or 9G. "

132 Confidentiality in relation to judicial appointments and discipline

After section 9H of the 2002 Act insert--

" 9I Confidentiality in relation to judicial appointments and discipline

(1) A person who obtains confidential information, or to whom confidential information is provided, under or for the purposes of a relevant provision must not disclose it except with lawful authority.

(2) These are the relevant provisions--

(a) section 12, 12A and 12B of the Judicature (Northern Ireland) Act 1978 (appointment and removal of Lord Chief Justice, Lords Justices of Appeal and judges of High Court);

(b) sections 3, 5, 7 and 9 to 9H of this Act (appointment and removal of judicial officers, and appointment and removal of lay magistrates);

(d) section 16 of this Act (complaints about judicial officers);

(3) Information is confidential if it relates to an identified or identifiable individual (a "subject").

(4) Confidential information is disclosed with lawful authority only if and to the extent that any of the following applies--

(a) the disclosure is with the consent of each person who is a subject of the information (but this is subject to subsection (5));

(b) the disclosure is for (and is necessary for) the exercise by any person of functions under a relevant provision or a decision whether to exercise them;

(c) the disclosure is required, under rules of court or a court order, for the purposes of legal proceedings of any description.

(5) An opinion or other information given by one identified or identifiable individual (A) about another (B)--

(a) is information that relates to both;

(b) must not be disclosed to B without A's consent.

(6) This section does not prevent the disclosure with the agreement of the Lord Chancellor and the Lord Chief Justice of information as to disciplinary action taken in accordance with a relevant provision.

(7) This section does not prevent the disclosure of information which is already, or has previously been, available to the public from other sources.

(8) A contravention of this section in respect of any information is actionable, subject to the defences and other incidents applying to actions for breach of statutory duty.

(9) But it is actionable only at the suit of a person who is a subject of the information.

Transfer of functions of justices of the peace "

Chapter 2 Removals

133 Removal from most senior judicial offices

In the Judicature (Northern Ireland) Act 1978 (c. 23) before section 13 insert--

" 12B Tenure of office

(1) The Lord Chief Justice, Lords Justices of Appeal and judges of the High Court hold office during good behaviour (subject to section 26 of, and Schedule 7 to, the Judicial Pensions and Retirement Act 1993).

(2) Her Majesty may on an address presented to Her Majesty by both Houses of Parliament remove a person from office as Lord Chief Justice, a Lord Justice of Appeal or a judge of the High Court.

(3) A motion for the presentation of an address to Her Majesty for the removal of a person from any of those offices may be made--

(a) to the House of Commons only by the Prime Minister; and

(b) to the House of Lords only by the Lord Chancellor or, if the Lord Chancellor is not a member of that House, by another Minister of the Crown at his request.

(4) No motion for the presentation of such an address may be made unless a tribunal convened under section 135 of the Constitutional Reform Act 2005 has reported to the Lord Chancellor recommending that the person be removed from the office on the ground of misbehaviour.

(5) The Prime Minister shall lay a copy of the report before the House of Commons before making a motion for the presentation of an address in that House; and a person making such a motion in the House of Lords shall lay a copy of the report before that House before making the motion.

(6) If the Prime Minister and Lord Chancellor are considering the making of motions for the presentation of an address to Her Majesty in relation to the Lord Chief Justice, the Prime Minister may suspend him from office; and if they are considering the making of such motions in relation to a Lord Justice of Appeal or a judge of the High Court the Prime Minister may suspend him from office with the agreement of the Lord Chief Justice.

(7) If a person is suspended from an office under subsection (6), he may not perform any of the functions of the office (but his other rights as holder of the office are unaffected). "

134 Removal from listed judicial offices

(1) A person holding a listed judicial office other than as a judge of the High Court may be removed from office (and suspended from office pending a decision whether to remove him) but only in accordance with this section.

(2) The power to remove or suspend him is exercisable by the Lord Chancellor.

(3) He may only be removed if a tribunal convened under section 135 has reported to the Lord Chancellor recommending that he be removed on the ground of misbehaviour or inability to perform the functions of the office.

(4) He may only be suspended if the tribunal, at any time when it is considering whether to recommend his removal, has recommended to the Lord Chancellor that he be suspended.

(5) He may not be removed or suspended except after consultation with the Lord Chief Justice.

(6) If he is suspended he may not perform any of the functions of the office until the decision whether to remove him has been taken (but his other rights as holder of the office are unaffected).

135 Tribunals for considering removal

(1) A tribunal to consider the removal of the Lord Chief Justice may be convened by the Lord Chancellor.

(2) A tribunal to consider the removal of the holder of any other protected judicial office may be convened--

(a) by the Lord Chancellor, after consulting the Lord Chief Justice, or

(b) by the Lord Chief Justice, after consulting the Lord Chancellor.

(3) A tribunal to consider the removal of the Lord Chief Justice or a Lord Justice of Appeal may not be convened unless the Prime Minister has been consulted.

(4) A tribunal to consider the removal of the Lord Chief Justice, a Lord Justice of Appeal or a judge of the High Court is to consist of--

(a) a person who holds high judicial office within the meaning of Part 3 and does not hold (and has never held) the office of Lord Chief Justice, Lord Justice of Appeal or judge of the High Court,

(b) a person who is, or has been, a judge of the Court of Appeal of England and Wales or the Inner House of the Court of Session, and

(c) a person who does not hold (and has never held) a protected judicial office and is not (and has never been) a barrister or solicitor.

(5) A tribunal to consider the removal of the holder of any other protected judicial office is to consist of--

(a) a person who holds, or has held, the office of Lord Chief Justice or Lord Justice of Appeal,

(b) a person who holds the office of judge of the High Court, and

(c) a person who does not hold (and has never held) a protected judicial office and is not (and has never been) a barrister or solicitor.

(6) The chairman of a tribunal is the person mentioned in paragraph (a) of subsection (4)or (5).

(7) The selection of the persons to be the members of a tribunal under paragraphs (a) and (b) of subsection (4) is to be made by the Lord Chancellor, after consultation with--

(a) the Lord Chief Justice (unless the tribunal is to consider his removal from office),

(b) the President of the Supreme Court of the United Kingdom,

(d) the Lord President of the Court of Session.

(8) The selection of the persons to be the members of a tribunal under paragraphs (a) and (b) of subsection (5) is to be made by the Lord Chief Justice.

(9) The selection of the person who is to be the member of a tribunal under paragraph (c) of subsection (4) or (5) is to be made by the Lord Chancellor.

(10) The procedure of a tribunal is to be determined by the Lord Chief Justice except where--

(a) the office of Lord Chief Justice is vacant,

(b) he is not available, or

and in such a case its procedure is to be determined by its chairman.

(11) The Lord Chancellor may pay to a member of a tribunal any such allowances or fees as he may determine.

136 Interpretation of Part 5

In this Part--

"listed judicial office" means an office listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 (c. 26);
"Lord Chief Justice", unless otherwise stated, means the Lord Chief Justice of Northern Ireland;
"Lord Justice of Appeal" means a person styled as such under section 3 of the Judicature (Northern Ireland) Act 1978 (c. 23);
"protected judicial office" means the office of Lord Chief Justice, the office of Lord Justice of Appeal or a listed judicial office.

Part 6 Other provisions relating to the judiciary

137 Parliamentary disqualification

(1) In Part 1 of Schedule 1 to the House of Commons Disqualification Act 1975 (c. 24) (judicial offices disqualifying for membership) at the beginning insert--

" Judge of the Supreme Court. "

(2) In Part 1 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (c. 25) (judicial offices disqualifying for membership) at the beginning insert--

" Judge of the Supreme Court. "

(3) A member of the House of Lords is, while he holds any disqualifying judicial office, disqualified for sitting or voting in--

(a) the House of Lords,

(b) a committee of that House, or

(4) In subsection (3) "disqualifying judicial office" means any of the judicial offices specified in--

(a) Part 1 of Schedule 1 to the House of Commons Disqualification Act 1975, or

(b) Part 1 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975.

(5) A member of the House of Lords who is disqualified under subsection (3) is not for that reason disqualified for receiving a writ of summons to attend that House, but any such writ is subject to that subsection.

138 Judicial Committee of the Privy Council

Schedule 16 contains amendments about the Judicial Committee of the Privy Council.

Part 7 General

139 Confidentiality

(2) These are the relevant provisions--

(a) sections 26 to 31;

(b) Part 4;

(3) Information is confidential if it relates to an identified or identifiable individual (a "subject").

(4) Confidential information is disclosed with lawful authority only if and to the extent that any of the following applies--

(a) the disclosure is with the consent of each person who is a subject of the information (but this is subject to subsection (5));

(b) the disclosure is for (and is necessary for) the exercise by any person of functions under a relevant provision;

(c) the disclosure is for (and is necessary for) the exercise of functions under section 11(3A) of the Supreme Court Act 1981 (c. 54) or a decision whether to exercise them;

(d) the disclosure is for (and is necessary for) the exercise of powers to which section 108 applies, or a decision whether to exercise them;

(e) the disclosure is required, under rules of court or a court order, for the purposes of legal proceedings of any description.

(5) An opinion or other information given by one identified or identifiable individual (A) about another (B)--

(a) is information that relates to both;

(b) must not be disclosed to B without A's consent.

(7) This section does not prevent the disclosure of information which is already, or has previously been, available to the public from other sources.

(8) A contravention of this section in respect of any information is actionable, subject to the defences and other incidents applying to actions for breach of statutory duty.

(9) But it is actionable only at the suit of a person who is a subject of the information.

140 "Enactment"

(1) In this Act "enactment" includes--

(a) an enactment contained in this Act;

(b) an enactment contained in a local, personal or private Act;

and any reference to an enactment includes a reference to an enactment whenever passed or made.

(2) In section 22 "enactment" also includes an enactment contained in, or in an instrument made under, Northern Ireland legislation.

(3) In Part 3 "enactment" also includes--

(a) an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;

(b) an enactment contained in, or in an instrument made under, Northern Ireland legislation.

(4) In sections 19, 21 and 143 and in paragraph 3 of Schedule 7 "enactment" also includes--

(a) an enactment contained in Northern Ireland legislation;

(b) an enactment contained in a Measure of the Church Assembly or of the General Synod of the Church of England.

141 "Subordinate legislation"

(1) In this Act "subordinate legislation" has the same meaning as in the Interpretation Act 1978 (c. 30).

(2) In sections 19 and 143 "subordinate legislation" also includes an enactment contained in an instrument made under Northern Ireland legislation.

142 General interpretation

In this Act--

"functions" includes powers and duties;
"Minister of the Crown" has the same meaning as in the Ministers of the Crown Act 1975 (c. 26).

143 Supplementary provision etc

(1) The Lord Chancellor may by order make--

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

(b) any transitory, transitional or saving provision,

which he considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, any provision of this Act.

(2) An order under this section may in particular--

(a) provide for any provision of this Act which comes into force before another such provision has come into force to have effect, until that other provision has come into force, with such modifications as are specified in the order;

(b) 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;

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

(4) In this section "prerogative instrument" means an Order in Council, warrant, charter or other instrument made under the prerogative.

144 Orders and regulations

(1) Any power of a Minister of the Crown to make an order or regulations under this Act is exercisable by statutory instrument, except where subsection (2) applies.

(2) Any power of the Lord Chancellor to make an order under section 19(1) or 143 amending an enactment contained in, or in an instrument made under, Northern Ireland legislation is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(3) Regulations under section 115, 120(5) or 121(5) are to be made in the form of a statutory instrument to which the Statutory Instruments Act 1946 (c. 36) applies as if the regulations were made by a Minister of the Crown.

(4) A statutory instrument to which this subsection applies may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(5) Subsection (4) applies to a statutory instrument which contains any of the following--

(a) an order under section 85(3)(a) or (b) which amends Part 1 of Schedule 14;

(b) an order under section 19(1) which amends a public general Act, except where the only such amendment is the inclusion in Schedule 7 of a function of the Lord Chancellor;

(c) an order under section 19(1) which amends subordinate legislation of which a draft was required to be laid before and approved by a resolution of each House of Parliament, except where the only such amendment consists of provision that falls within subsection (2)(b) of section 19;

(d) an order under section 143 which amends a public general Act;

(e) an order under paragraph 5 of Schedule 12.

(6) In any other case a statutory instrument containing an order or regulations under this Act, unless it contains only an order under section 66(5) or 148, is subject to annulment in pursuance of a resolution of either House of Parliament.

(7) A statutory rule made under a power to which subsection (2) applies is subject to annulment in pursuance of a resolution of either House of Parliament.

145 Minor and consequential amendments

Schedule 17 (minor and consequential amendments) has effect.

146 Repeals and revocations

The provisions listed in Schedule 18 are repealed or revoked to the extent specified.

147 Extent

(1) Sections 7, 8 and 9 extend to England and Wales only.

(2) Section 6 and Part 5 extend to Northern Ireland only.

(3) Any amendment, repeal or revocation made by this Act has the same extent as the provision to which it relates.

(4) Subject to subsections (1) to (3), this Act extends to Northern Ireland.

148 Commencement

(1) This Act, except the following provisions, comes into force in accordance with provision to be made by the Lord Chancellor by order.

(2) The provisions excepted from subsection (1) are--

(a) section 4;

(b) sections 18 to 22;

(d) section 147;

(e) this section;

(f) section 149;

(g) Schedules 6 and 7.

(3) Section 4 comes into force in accordance with provision to be made by the Secretary of State by order.

(4) An order by which section 23(1) comes into force at any time may not be made unless the Lord Chancellor is satisfied that the Supreme Court will at that time be provided with accommodation in accordance with written plans that he has approved.

(5) The Lord Chancellor may approve plans only if, having consulted the Lords of Appeal in Ordinary holding office at the time of the approval, he is satisfied that accommodation in accordance with the plans will be appropriate for the purposes of the Court.

(6) An order under this section may make different provision for different purposes.

149 Short title

This Act may be cited as the Constitutional Reform Act 2005.

SCHEDULES

Section 12

SCHEDULE 1 Powers to make rules

Part 1 The process

Interpretation

1 In this Part "designated rules" means rules under another Act which are, by virtue of provision in that Act, to be made in accordance with this Part.

The process

2 (1) It is for the Lord Chief Justice, or a judicial office holder nominated by the Lord Chief Justice with the agreement of the Lord Chancellor, to make designated rules.

(2) The Lord Chief Justice may nominate a judicial office holder in accordance with sub-paragraph (1)--

(a) to make designated rules generally, or

(b) to make designated rules under a particular enactment.

(3) In this Part--

(a) "judicial office holder" has the same meaning as in section 109(4);

(b) references to the Lord Chief Justice's nominee, in relation to designated rules, mean a judicial office holder nominated by the Lord Chief Justice under sub-paragraph (1) to make those rules.

3 (1) The Lord Chief Justice, or his nominee, may make designated rules only with the agreement of the Lord Chancellor.

(2) If the Lord Chancellor does not agree designated rules made by the Lord Chief Justice, or by his nominee, the Lord Chancellor must give that person written reasons why he does not agree the rules.

4 (1) Designated rules made by the Lord Chief Justice, or by his nominee, and agreed by the Lord Chancellor--

(a) come into force on such day as the Lord Chancellor directs, and

(b) are to be contained in a statutory instrument to which the Statutory Instruments Act 1946 (c. 36) applies as if the instrument contained rules made by a Minister of the Crown.

(2) A statutory instrument containing designated rules is subject to annulment in pursuance of a resolution of either House of Parliament.

5 (1) This paragraph applies if the Lord Chancellor gives the Lord Chief Justice, or his nominee, written notice that he thinks it is expedient for designated rules to include provision that would achieve a purpose specified in the notice.

(2) The Lord Chief Justice, or his nominee, must make such designated rules as he considers necessary to achieve the specified purpose.

(3) Those rules must be--

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