Crime and Courts Bill [HL]

Session 2012 - 13
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Crime and Courts Bill [HL]

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 2 — Diversity
219

Chancellor notifies a selection made by” substitute “a person has been
selected as a result of the convening of”.
     (12)
In paragraph 14(2) of that Schedule (end of suspension of duty to convene
selection commission for office of judge) for “the Lord Chancellor notifies a
selection made by” substitute “a person has been selected as a result of the
5
convening of”.
8
In the Government of Wales Act 2006 (Consequential Modifications and
Transitional Provisions) Order 2007 (S.I. 2007/1388) in Schedule 1 omit
paragraph 110(a) and (b).
Part 2
10
Diversity
Diversity considerations where candidates for judicial office are of equal merit
9     (1)
Section 63 of the Constitutional Reform Act 2005 (judicial appointments to
be solely on merit) is amended as follows.
      (2)
In subsection (1) (selections to which subsections (2) and (3) apply) for “and
15
(3)” substitute “to (4)”.
      (3)
After subsection (3) insert—
“(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
20
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.”
Encouraging diversity
25
10
In Part 6 of the Constitutional Reform Act 2005 (other provisions relating to
the judiciary) after section 137 insert—
“137A
Encouragement of diversity
Each of the Lord Chancellor and the Lord Chief Justice of England
and Wales must take such steps as that office-holder considers
30
appropriate for the purpose of encouraging judicial diversity.”
Maximum numbers of judges to be by reference to full-time equivalent numbers
11
The Senior Courts Act 1981 is amended as follows.
12    (1)
Section 2 (the Court of Appeal) is amended as follows.
      (2)
In subsection (1) (composition of the Court of Appeal) for “of ex-officio
35
judges and not more than 38 ordinary judges” substitute “of—
(a)
ex-officio judges, and
(b)
ordinary judges, of whom the maximum full-time equivalent
number is 38”.

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 3 — Judicial Appointments Commission
220

      (3)
In subsection (4) (power to increase maximum number of ordinary judges)
for “maximum number” substitute “maximum full-time equivalent
number”.
      (4)
After subsection (6) insert—
“(7)
For the purposes of this section the full-time equivalent number of
5
ordinary judges is to be calculated by taking the number of full-time
ordinary judges and adding, for each ordinary judge who is not a
full-time ordinary judge, such fraction as is reasonable.”
13    (1)
Section 4 (the High Court) is amended as follows.
      (2)
In subsection (1) (High Court to consist of ex-officio judges and not more
10
than 108 puisne judges) for paragraph (e) substitute—
“(e)
the puisne judges of that court, of whom the maximum full-
time equivalent number is 108.”
      (3)
In subsection (4) (power to increase maximum number of puisne judges) for
“maximum number” substitute “maximum full-time equivalent number”.
15
      (4)
After subsection (6) insert—
“(7)
For the purposes of this section the full-time equivalent number of
puisne judges is to be calculated by taking the number of full-time
puisne judges and adding, for each puisne judge who is not a full-
time puisne judge, such fraction as is reasonable.”
20
14
In section 10(2) (power to appoint judges is subject to maximum numbers in
sections 2(1) and 4(1)) before “numbers” insert “full-time equivalent”.
Part 3
Judicial Appointments Commission
Introductory
25
15
Part 1 of Schedule 12 to the Constitutional Reform Act 2005 (the members of
the Judicial Appointments Commission) is amended as follows.
Composition of the Judicial Appointments Commission
16
In paragraph 1 (Commission consists of lay chairman and 14 other
Commissioners) for paragraph (b) substitute—
30
“(b)
such number of other Commissioners as the Lord
Chancellor may specify by regulations made with the
agreement of the Lord Chief Justice,”.
17
Omit paragraphs 2(2) to (5) and 4 to 6 (Commissioners other than the lay
chairman are to be drawn in specified proportions from among judicial
35
office holders, practising lawyers and lay persons).
18
After paragraph 3 (civil servants may not be appointed as Commissioners)
insert—
“3A
The number of Commissioners who are holders of judicial office
must be less than the number of Commissioners (including the
40
chairman) who are not holders of judicial office.

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 3 — Judicial Appointments Commission
221

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
5
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)—
10
(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
15
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
20
purposes of this Part of this Act;
(b)
define “holder of judicial office” for the purposes of
paragraphs 3A, 3B(2)(a), 11 and 20(5).”
Selection of Commissioners
19
For paragraphs 7 to 10 (selection of Commissioners) substitute—
25
“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)—
30
(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
35
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
40
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.”
20    (1)
Paragraph 11 (vice-chairman) is amended as follows.
45

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 3 — Judicial Appointments Commission
222

      (2)
In sub-paragraph (1) (most senior judicial member is vice-chairman) for
“Commissioner who is the most senior of the persons appointed as judicial
members” substitute “most senior of the holders of judicial office who are
Commissioners”.
      (3)
In sub-paragraph (2) (meaning of seniority for the purposes of sub-
5
paragraph (1)) for the words after “sub-paragraph (1)” substitute “seniority
is to be determined in accordance with regulations made by the Lord
Chancellor with the agreement of the Lord Chief Justice.”
      (4)
In sub-paragraph (3) (exercise by vice-chairman of functions of chairman)
for the words from “other” to the end substitute “other than—
10
(a)
any functions as a member of a commission convened
under section 26(5) or (5A) or of a panel appointed under
section 70(1), 75B(1) or 79(1) (including functions of
chairing such a commission or panel), and
(b)
any functions specified in regulations made by the Lord
15
Chancellor with the agreement of the Lord Chief Justice.”
Commissioners’ terms of office
21
For paragraph 13 (maximum term of office for a Commissioner) substitute—
“13   (1)
The Lord Chancellor may, by regulations made with the
agreement of the Lord Chief Justice, make provision about the
20
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
25
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.”
30
22
For sub-paragraphs (1) and (2) of paragraph 14 (person ceases to be a
Commissioner on ceasing, for certain reasons, to be eligible for
appointment) substitute—
    “(1)
The Lord Chancellor may by regulations made with the
agreement of the Lord Chief Justice—
35
(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
40
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
45
(ii)
to cease to be the chairman and cease to be a
Commissioner,

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
223


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.”
5
Supplementary amendments
23
After paragraph 17 insert—
“Regulations
17A
Regulations under this Part of this Schedule may—
(a)
make different provision for different purposes;
10
(b)
include transitional or transitory provision or savings.”
24
In Part 2 of Schedule 12 to the Constitutional Reform Act 2005 (Judicial
Appointments Commission) in paragraph 20(5) (committee to which
Commission delegates a selection function must include at least one judicial
member and one lay member) for “judicial member and” substitute “who is
15
a holder of judicial office and at least”.
25
In section 122 of that Act (interpretation of Part 4) for the definition of “lay
member” substitute—
““lay member”, in relation to the Commission, has such
meaning as may be given by regulations under paragraph
20
3C(a) of Schedule 12;”.
26
In section 144(5)(e) of that Act (orders under paragraph 5 of Schedule 12 are
subject to affirmative parliamentary procedure) for “an order under
paragraph 5” substitute “regulations under Part 1”.
Consequential repeal of other legislation
25
27
In Schedule 8 to the Tribunals, Courts and Enforcement Act 2007 omit
paragraph 65 (which amended paragraph 2 of Schedule 12 to the
Constitutional Reform Act 2005).
Part 4
Judicial appointments: selection, and transfer of powers of Lord Chancellor
30
Appointments by Her Majesty on Lord Chancellor’s recommendation but where selection is to
be reported to Lord Chief Justice or Senior President of Tribunals
28    (1)
Schedule 14 to the Constitutional Reform Act 2005 (Judicial Appointments
Commission: relevant offices and enactments) is amended as follows.
      (2)
The table in Part 1 (appointments by Her Majesty on the Lord Chancellor’s
35
recommendation) becomes Table 1 of that Part called “Appointments where
the Commission reports to the Lord Chancellor”.
      (3)
Move the entries for the following offices from Table 1 of Part 1 to form Table
2 of that Part called “Appointments where the Commission reports to the
Lord Chief Justice” (and with the same column headings)—
40
Circuit judge

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
224

Recorder
Master, Queen’s Bench Division
Queen’s Coroner and Attorney and Master of the Crown Office and
Registrar of Criminal Appeals
Admiralty Registrar
5
Master, Chancery Division
Registrar in Bankruptcy of the High Court
Taxing Master of the Senior Courts
District judge of the principal registry of the Family Division
Senior Master of the Queen’s Bench Division
10
Chief Chancery Master
Chief Taxing Master
Chief Bankruptcy Registrar
Senior District Judge of the Family Division
District judge
15
District Judge (Magistrates’ Courts) appointed under section 22(1) of
the Courts Act 2003
Senior District Judge (Chief Magistrate) designated under section 23 of
that Act
Deputy Senior District Judge (Chief Magistrate) designated under that
20
section
      (4)
In Table 1 of Part 1 omit the entries for the following former offices—
Senior District Judge (Chief Magistrate) designated under subsection
(2) of section 10A of the Justices of the Peace Act 1997
Deputy Senior District Judge (Chief Magistrate) designated under that
25
subsection
      (5)
Move the entry for the following office from Table 1 of Part 1 to form Table
3 of that Part called “Appointments where the Commission reports to the
Senior President of Tribunals” (and with the same column headings)—
Judge of the Upper Tribunal by appointment under paragraph 1(1) of
30
Schedule 3 to the Tribunals, Courts and Enforcement Act 2007
29    (1)
Schedule 3 to the Tribunals, Courts and Enforcement Act 2007 (judges and
other members of the Upper Tribunal) is amended as follows.
      (2)
In paragraph 1(2)(d) (eligibility for appointment as judge based on
experience gained in law) for “Lord Chancellor’s opinion” substitute
35
“opinion of the Senior President of Tribunals”.
      (3)
In paragraph 1(3) (meaning of “gain experience in law”) for “Lord
Chancellor” substitute “Senior President of Tribunals”.
Recommended appointments: further provisions
30
In section 16 of the Courts Act 1971 (appointment of Circuit judges) omit
40
subsection (4) (health).
31    (1)
Section 21 of the Courts Act 1971 (appointment of Recorders) is amended as
follows.
      (2)
For subsection (3)(c) (appointment must specify circumstances in which
Lord Chancellor may decline to extend appointment or may terminate it)
45

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
225

substitute—
“(c)
the circumstances in which the Lord Chancellor may
terminate the appointment (other than those in subsection
(6)(a) or (b));
(d)
the circumstances in which the Lord Chief Justice may
5
decline to extend the term of the appointment (other than
those in subsection (4C)(a) or (b)).”
      (3)
In subsection (4A) (Lord Chancellor must, subject to exceptions, extend term
of Recorder’s appointment) for “Lord Chancellor”, in the first place,
substitute “Lord Chief Justice”.
10
      (4)
In subsection (4B) (no extension without Recorder’s agreement) for “Lord
Chancellor” substitute “Lord Chief Justice”.
      (5)
In subsection (4C) (Lord Chancellor may, with Lord Chief Justice’s
agreement, decline to extend term on certain grounds)—
(a)
for “Lord Chancellor may, with the agreement of the Lord Chief
15
Justice,” substitute “Lord Chief Justice may, with the agreement of
the Lord Chancellor,”, and
(b)
in paragraph (c) for “(3)(c)” substitute “(3)(d)”.
      (6)
In subsection (5) (neither initial term nor extension under subsection (4) may
extend appointment beyond judicial retirement age) for “(4)” substitute
20
“(4A)”.
      (7)
After subsection (7) insert—
“(8)
Subject to the preceding provisions of this section, a person
appointed under this section is to hold and vacate office as a
Recorder in accordance with the terms of the person’s appointment,
25
and those terms (including the terms specified under subsection (3))
are (subject to subsection (4)) to be such as the Lord Chancellor may
determine.
(9)
The Lord Chief Justice may nominate a senior judge (as defined in
section 109(5) of the Constitutional Reform Act 2005) to exercise
30
functions of the Lord Chief Justice under subsections (4) to (4C).”
      (8)
In list A in paragraph 4 of Schedule 7 to the Constitutional Reform Act 2005
(protected functions of Lord Chancellor) in the entries for the Courts Act
1971 for “Section 21(2), (4) and (7)” substitute “Section 21”.
32
In section 89(4) of the Senior Courts Act 1981 (additional offices and duties
35
of Senior Master appointed under subsection (3)(a)) for “under subsection
(3)(a)” substitute “of the Queen’s Bench Division”.
Deputy Circuit judges to be appointed by Lord Chief Justice
33    (1)
Section 24 of the Courts Act 1971 (deputy Circuit judges and assistant
Recorders) is amended as follows.
40
      (2)
In subsection (1) (appointment to facilitate disposal of certain business) for
“a county court” substitute “county court or any other court or tribunal to
which a person appointed under this subsection may be deployed”.
      (3)
In subsection (1)(a) (Lord Chancellor’s power to appoint deputy circuit
judges) for “Lord Chancellor may, with the concurrence of the Lord Chief
45