Constitutional Reform Act 2005: Amendments on judicial appointments proposed 2012

Amendments to the 2005 Act are set out in full below
The Crime and Courts Bill 2012 has important amendments to Britain’s Constitutional Reform Act 2005 that reduce the independence from the Government of judicial appointments.

In particular the Secretary of State for Justice (aka Lord Chancellor), currently Kenneth Clarke, is to sit on the appointment panel for the President of the Supreme Court (while the sitting president would be removed) and Lord Chief Justice; whole sections on judicial appointments procedure are removed from the 2005 Act; powers to decide how to replace those sections are given to the Secretary of State (quasi-Henry VIII powers); as are powers to decide the make-up of the Judicial Appointments Commission (with a view to increasing the proportion of lay members compared with judicial members).

It is intended that the 12 UK Supreme Court justices should become a “maximum” of 12 (or full-time equivalents) with the Secretary of State deciding exactly what number is required.

There are also amendments intended to increase diversity such as provision for part-time judicial posts and a “tipping point” provision whereby diversity requirements can come into play if two judicial candidates are deemed of equal merit.

The changes are in Schedule 12 to the Bill. Since it is often difficult to read back to the original Act on the basis of amendments, Thinking Legally has stitched together the relevant sections of the 2005 Act with the amendments in the Crime and Courts Bill regarding judicial appointments and also diversity.

The deletions in the 2005 Act are rendered [in italic and within square brackets] while the large number of amendments are in plain italic.

See also:
A critique of the proposals following Lady Neuberger’s attack on them here

Lady Neuberger and Lady Jay criticise proposals

Kate Malleson writes on the changes here

Constitutional Reform Act 2005 (with proposed amendments)

Part 3 The Supreme Court 

Section 23 (establishment of the Supreme Court)

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

(2)The Court consists of [Deleted:12 judges appointed ] the persons appointed as its judges by Her Majesty by letters patent but no appointment may cause the full-time equivalent number of judges of the Court at any time to be more than 12.

(3)Her Majesty may from time to time by Order in Council amend subsection (2) so as to increase or further increase the maximum full-time equivalent 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 [Delete: among the  judges of the Court or] in the office of President or Deputy President.

(8) For the purposes of this section, the full-time equivalent number of judges of the Court is to be calculated by taking the number of full-time judges and adding, for each judge who is not a full-time judge, such fraction as is reasonable.

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;

(c)Deputy 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  [Delete: one of the offices mentioned in subsection (1),<< end delete] the office of President of the Court or in the office of Deputy President of the Court 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.

New: (5A) If—

(a) the full-time equivalent number of judges of the Court is less than the maximum specified in section 23(2), or it appears to the Lord Chancellor that the full-time equivalent number of judges of the Court will soon be less than that maximum, and

(b) the Lord Chancellor, or the senior judge of the Court, after consulting the other considers it desirable that a recommendation be made for an appointment to the office of judge of the Court, 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

(c)make a selection accordingly.

[New:] (1A) The commission must have an odd number of members not less than five.

(1B) The members of the commission must include—

(a) at least one who is non-legally-qualified,

(b) at least one judge of the Court,

(c) at least one member of the Judicial Appointments Commission,

(d) at least one member of the Judicial Appointments Board for Scotland, and

(e) at least one member of the Northern Ireland Judicial Appointments Commission,

and more than one of the requirements may be met by the same person’s membership of the commission.

(1C) If the commission is convened for the selection of a person to be recommended for appointment as President of the Court—

(a) its members may not include the President of the Court,

(b) its members may include the Lord Chancellor,

(c) it is to be chaired by one of its non-legally-qualified members,
and

(d) it may not be chaired by the Lord Chancellor.

(1D) If the commission is convened for the selection of a person to be recommended for appointment as Deputy President of the Court, its members may not include the Deputy President of the Court.

[Delete: (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;

(c)the First Minister in Scotland;

(d)[F3the First Minister for 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. <<End deletion]

(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 [having served in high judicial office or practised for 15 years etc].

(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.

(11) For the purposes of this section a person is non-legally-qualified if the person—

(a) does not hold, and has never held, any of the offices listed in Schedule 1 to the House of Commons Disqualification Act 1975 (judicial offices disqualifying for membership of the House of Commons), and

(b) is not practising or employed as a lawyer, and never has
practised or been employed as a lawyer.”

New: Section 27A Regulations about selection process

(1) The Lord Chancellor must by regulations made with the agreement of the senior judge of the Supreme Court—

(a) make further provision about membership of selection commissions convened under section 26 [ie to appoint members of the Supreme Court],

(b) make further provision about the process that is to be applied in any case where a selection commission is required to be convened under section 26, and

(c) secure that, in every such case, there will come a point in the process when a selection has to be accepted, either unconditionally or subject only to matters such as the selected person’s willingness and availability, by or on behalf of the Prime Minister or Lord Chancellor.

(2) The regulations may in particular—

(a) provide for process additional to the selection process applied by a selection commission under section 27(1), including post-acceptance process;

(b) make provision as to things that are, or as to things that are not, to be done by a selection commission—

(i) as part of the selection process applied by it under section 27(1), or

(ii) in determining what that process is to be;

(c) provide for the Lord Chancellor to be entitled to require a selection commission to reconsider a selection under section 27(1) or any subsequent selection;

(d) provide for the Lord Chancellor to be entitled, in cases where the Lord Chancellor is not a member of the selection commission, to reject a selection under section 27(1) or any subsequent selection;

(e) give other functions to the Lord Chancellor;

(f) provide for particular action to be taken by a selection commission after it has complied with section 27;

(g) provide for the dissolution of a selection commission;

(h) provide for a person to cease to be a member of a selection commission where a requirement about the commission’s members ceases to be met by the person’s membership of the commission;

(i) provide for a person to become a member of a selection commission already convened where another person ceases to be a member of the commission or where a requirement
about the commission’s members ceases to be met by another person’s membership of the commission;

(j) provide for payment to a member of a selection commission of amounts by way of allowances or expenses;

(k) make provision as to what amounts to practice or employment as a lawyer for the purposes of section 27(11)(b).

(3) Before making regulations under this section the Lord Chancellor
must consult—

(a) the First Minister in Scotland,

(b) the Northern Ireland Judicial Appointments Commission,

(c) the First Minister for Wales,

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

(e) the Lord Chief Justice of Northern Ireland, and

(f) the Lord Chief Justice of England and Wales.

(4) Regulations under this section—

(a) may make different provision for different purposes;

(b) may make transitory, transitional or saving provision.

(5) In this section “the senior judge”, in relation to the Court, has the meaning given by section 26(5B).

New:Section 27B Selection guidance: supplementary

(1) Before issuing any selection guidance the Lord Chancellor must—

(a) consult the senior judge of the Supreme Court;

(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 senior judge of the Court.

(5) Selection guidance comes into force on such date as the Lord Chancellor may appoint by order.

(6) Where selection guidance is in force, the Lord Chancellor may revoke the guidance only by—

(a) new selection guidance issued in accordance with the previous provisions of this section, or

(b) an order made after consulting the senior judge of the Court.

(7) In this section—

• “40-day period” in relation to the draft of any proposed selection 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;

• “the senior judge”, in relation to the Court, has the meaning given by section 26(5B);

• “selection guidance” means guidance mentioned in section 27(9).”

[Note: Sections 28-31 and 60(5) which give detailed provisions on selection process are consequently deleted]

Other judicial appointments

Section 63

Merit and good character

(1)Subsections (2) to (4) 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.

New subsection: “(4) Neither “solely” in subsection (2), nor Part 5 of the Equality Act 2010 (public appointments etc), prevents the selecting body, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within—

(a) the group of persons who hold offices for which there is selection under this Part, or

(b) a sub-group of that group.

[Note: Various sections between s.71 and 96 on asppointments procedure are removed. This is added]:

New: 94C Selection process

(1) The Lord Chancellor must by regulations made with the agreement of the Lord Chief Justice—

(a) make further provision about the process to be applied in a case where the Commission receives a request under section 87 [ie “The Lord Chancellor may request the Commission to select a person for a recommendation or appointment to which this section applies.”];

(b) make further provision about—

(i) membership of selection panels appointed under section 70, 75B or 79, and

(ii) the process that is to be applied in a case where a selection panel is required to be appointed under section 70, 75B or 79;

(c) secure, subject to section 95 and any provision within subsection (2)(d) that is included in the regulations, that in every case referred to paragraph (a) or (b)(ii) there will come
a point in the process when a selection has to be accepted, either unconditionally or subject only to matters such as the selected person’s willingness and availability, by or on behalf of the appropriate authority.

(2) The regulations may in particular—

(a) provide for process additional to the selection process applied under section 70(2), 75B(2), 79(2) or 88(1), including post-acceptance process;

(b) make provision as to things that are, or as to things that are not, to be done—

(i) as part of the selection process applied under section 1570(2), 75B(2), 79(2) or 88(1), or

(ii) in determining what that process is to be;

(c) provide for selection on a request under section 87 to be from among persons identified under section 94 in response to advance notice of the request;

(d) 20provide for section 88(1)(c) not to apply where, or to the extent that, the Commission decides that the selection process applied under section 88(1) has not identified candidates of sufficient merit for it to comply with section 88(1)(c);

(e) give functions to the Lord Chancellor, including—

(i) power to require a selection panel to reconsider a selection under section 70(2), 75B(2) or 79(2) or any subsequent selection,

(ii) power, in cases where the Lord Chancellor is not a member of the selection panel, to reject a selection under section 70(2) or any subsequent selection,

(iii) power to reject a selection under section 75B(2) or 79(2) or any subsequent selection,

(iv) power to reject, or require the reconsideration of, initial or subsequent selections made on a request under section 87, and

(v) power to require the reconsideration of a decision mentioned in paragraph (d);

(f) give functions to the Lord Chief Justice in connection with selection for an office listed in Table 2 of Part 1 or 2 of Schedule 14 or in connection with selection for membership
of a pool for requests under section 9(1) of the Senior Courts Act 1981, including—

(i) power to reject, or require the reconsideration of, initial or subsequent selections made on a request under section 87, and

(ii) power to require the reconsideration of a decision mentioned in paragraph (d);

(g) give functions to the Senior President of Tribunals in connection with selection for an office listed in Table 3 of Part 1, or Table 2 of Part 3, of Schedule 14, including—

(i) power to reject, or require the reconsideration of, initial or subsequent selections made on a request under section 87, and

(ii) power to require the reconsideration of a decision mentioned in paragraph (d);

(h) make provision for or in connection with duties mentioned in section 51 of the Equality Act 2010 being duties of the Lord Chief Justice, or Senior President of Tribunals, in relation to an office within Table 2 or 3 of Part 1 of Schedule 14;

(i) provide for particular action to be taken by the Commission or a selection panel after the panel has complied with section 70, 75B or 79;

(j) provide for particular action to be taken by the Commission after a selection has been made on a request under section 87;

(k) provide for the dissolution of a selection panel appointed under section 70, 75B or 79;

(l) provide for a person to cease to be a member of such a panel where the person’s membership of the panel ceases to contribute to meeting a requirement about the panel’s members;

(m) provide for a person to become a member of such a panel where another person ceases to be a member of the panel or where another person’s membership of the panel ceases to contribute to meeting a requirement about the panel’s 25members;

(n) make provision for or in connection with assessments, whether pre-acceptance or post-acceptance, of the health of persons selected;

(o) provide for the Lord Chief Justice to nominate a judicial office holder (as defined in section 109(4)) to exercise functions given to the Lord Chief Justice by the regulations (including functions, such as functions as a consultee, given otherwise than in reliance on paragraph (f));

(p) make provision prohibiting or restricting delegation by the Senior President of Tribunals of functions given to the Senior President of Tribunals by the regulations (including functions, such as functions as a consultee, given otherwise than in reliance on paragraph (g));

(q) make provision as to the meaning of “non-legally-qualified” and “judicial member” in sections 70, 75B and 79.

(3) Regulations under this section—

(a) may make different provision for different purposes;

(b) may make transitory, transitional or saving provision.

(4) In subsection (1)(c) “the appropriate authority” means—

(a) the Lord Chancellor where the selection—

(i) is on a request under section 69 or 78,

(ii) relates to the office of Senior President of Tribunals or puisne judge of the High Court, or

(iii) relates to an office listed in Table 1 of Part 1, 2 or 3 of Schedule 14;

(b) the Lord Chief Justice where the selection relates to an office listed in Table 2 of Part 1 or 2 of that Schedule;

(c) the Senior President of Tribunals where the selection relates to an office listed in Table 3 of Part 1, or Table 2 of Part 3, of 5that Schedule.

(5) This section is subject to section 95.”

Schedule 12: members of the Judicial Appointments Commission

The Commission consists of—

(a)a chairman, and

[Deleted: (b)14 other Commissioners,]

(b) such number of other Commissioners as the Lord Chancellor may specify by regulations made with the agreement of the Lord Chief Justice

2(1)The chairman must be a lay member.

[Thinkinglegally note: 2(2)-(5) setting out who the rest of the commissioners are is deleted (viz 5 judicial, 2 professional, 5 lay etc). These numbers will now be decided by the Lord Chancellor – see below]

3 A person must not be appointed as a Commissioner if he is employed in the civil service of the State.

3A The number of Commissioners who are holders of judicial office must not be greater than the number of Commissioners (including the chairman) who are not holders of judicial office.

3B (1) The Lord Chancellor may, by regulations made with the agreement of the Lord Chief Justice, make provision about the composition of the Commission.

(2) The power to make regulations under this paragraph is to be exercised so as to ensure that the Commission’s members include—

(a) holders of judicial office,

(b) persons practising or employed as lawyers, and

(c) lay members.

(3) Regulations under this paragraph may (in particular)—

(a) make provision about the number, maximum number or minimum number of Commissioners of a particular description;

(b) make provision about eligibility for appointment as a Commissioner, eligibility for appointment as the chairman or eligibility for appointment as a Commissioner of a particular description.

3C The Lord Chancellor may by regulations made with the agreement of the Lord Chief Justice—

(a) define “lay member”, in relation to the Commission, for the purposes of this Part of this Act;

(b) define “holder of judicial office” for the purposes of paragraphs 3A, 3B(2)(a) and 20(5).”

 [Thinkinglegally note:Paragraphs 5-10 are deleted; 7-10 are replaced with:]

6A (1) The Lord Chancellor may, by regulations made with the agreement of the Lord Chief Justice, make provision for or in connection with the selection or nomination of persons to be recommended for appointment under paragraph 1.

(2) Regulations under this paragraph may (in particular)—

(a) provide for selection or nomination to be by a person, or body, specified in or appointed under the regulations;

(b) make provision about selection procedure, including—

(i) provision for a selector to determine the selector’s own procedure or for selection procedure to be otherwise determined under the regulations;

(ii) provision as to matters to which a selector is to, or may or may not, have regard;

(iii) provision requiring that selection is carried out with a view to ensuring that there is a Commissioner with special knowledge of Wales, of some other area or of a particular matter;

(c) make provision for the payment to selectors of remuneration, fees or expenses.”

Vice-chairman

Old paragraph 11 now deleted ie:

[Deleted:(1)The Commissioner who is the most senior of the persons appointed as judicial members is vice-chairman of the Commission.

(2)For the purposes of sub-paragraph (1)—(a)seniority is by office held at the time (first Lord Justice of Appeal, then puisne judge, then circuit judge, then the offices mentioned in paragraph 2(3)(e));(b)between two holders of one of those offices, the person who has served longest in the office (over one or more periods) is the senior.

(3)In the absence of the chairman, the vice-chairman may exercise the chairman’s functions other than under the following provisions—(a)paragraph 8(7);(b)section 71;(c)section 80.<End deletion]

New paragraph 11:

 The Lord Chancellor may by regulations made with the agreement of the Lord Chief Justice—

(a) provide for the appointment of a Commissioner to be vice-chairman of the Commission;

(b) provide for the carrying-out by the vice-chairman of functions of the chairman.”

Term of office etc. of Commissioners

12 (1)A Commissioner must be appointed for a fixed period.

(2)But an appointment is subject to paragraphs 13 to 15.

[Thinkinglegally note:Paragraph 13 is deleted viz: A person—(a)may not be appointed as a Commissioner for more than 5 years at a time, and(b)may not hold office as a Commissioner for periods (whether or not consecutive) totalling more than 10 years.]

New para 13:

(1) The Lord Chancellor may, by regulations made with the agreement of the Lord Chief Justice, make provision about the periods for which a Commissioner may be appointed or hold office.

(2) Regulations under this paragraph may (in particular) make provision about—

(a) the number of times a person may be appointed as a Commissioner;

(b) the length of any particular appointment;

(c) the total length of a person’s appointments or the total period for which a person may hold office as a Commissioner.”

[Thinkinglegally note: Replace para 14 (1) and (2) with]:

New paragraph 14(1)

 (1) The Lord Chancellor may by regulations made with the agreement of the Lord Chief Justice—

(a) provide for a Commissioner to cease to be a Commissioner on ceasing, or on ceasing for a particular reason, to be eligible for appointment as a Commissioner;

(b) provide for a Commissioner other than the chairman to cease to be a Commissioner on ceasing, or on ceasing for a particular reason, to be eligible for appointment as a Commissioner of a particular description;

(c) provide for the chairman—

(i) to cease to be the chairman without ceasing to be a Commissioner, or

 (ii) to cease to be the chairman and cease to be a Commissioner, on ceasing, or on ceasing for a particular reason, to be eligible for appointment as the chairman;

(d) confer power to disapply or suspend the operation of provision under paragraph (a), (b) or (c) in individual cases.”

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