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 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
233

44    (1)
Schedule 2 (judges and other members of the First-tier Tribunal) is amended
as follows.
      (2)
In paragraphs 1(1) and 2(1) (Lord Chancellor’s power to appoint) for “Lord
Chancellor” substitute “Senior President of Tribunals”.
      (3)
In paragraph 1(2)(d) (eligibility for appointment as judge based on
5
experience gained in law) for “Lord Chancellor’s opinion” substitute
“opinion of the Senior President of Tribunals”.
      (4)
In paragraph 1(3) (meaning of “gain experience in law”) for “Lord
Chancellor” substitute “Senior President of Tribunals”.
      (5)
In paragraph 4 (terms of appointment) after sub-paragraph (2) (salaried
10
appointee may be removed from office only by Lord Chancellor and only on
ground of inability or misbehaviour) insert—
   “(2A)
If the terms of the person’s appointment provide that the person
is appointed on a fee-paid basis, the person may be removed from
office—
15
(a)
only by the Lord Chancellor (and in accordance with
paragraph 3), and
(b)
only on—
(i)
the ground of inability or misbehaviour, or
(ii)
a ground specified in the person’s terms of
20
appointment.
     (2B)
If the period (or extended period) for which the person is
appointed ends before—
(a)
the day on which the person attains the age of 70, or
(b)
if different, the day that for the purposes of section 26 of
25
the Judicial Pensions and Retirement Act 1993 is the
compulsory retirement date for the office concerned in the
person’s case,

then, subject to sub-paragraph (2C), the Senior President of
Tribunals must extend the period of the person’s appointment
30
(including a period already extended under this sub-paragraph)
before it ends.
     (2C)
Extension under sub-paragraph (2B)—
(a)
requires the person’s agreement,
(b)
is to be for such period as the Lord Chancellor considers
35
appropriate, and
(c)
may be refused on—
(i)
the ground of inability or misbehaviour, or
(ii)
a ground specified in the person’s terms of
appointment.”
40
      (6)
In paragraph 4(3) (subject to sub-paragraph (2), person to hold and vacate
office in accordance with terms of appointment)—
(a)
for “sub-paragraph (2) (and” substitute “the preceding provisions of
this paragraph (but subject in the first place”, and
(b)
after “appointment” insert “, which are to be such as the Lord
45
Chancellor may determine”.

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
234

45    (1)
Schedule 3 (judges and other members of the Upper Tribunal) is amended
as follows.
      (2)
In paragraph 2(1) (Lord Chancellor’s power to appoint other members of the
Upper Tribunal) for “Lord Chancellor” substitute “Senior President of
Tribunals”.
5
      (3)
In paragraph 3(1) (removal from office) before the “or” at the end of
paragraph (b) insert—
“(ba)
a person who is a deputy judge of the Upper Tribunal
(whether by appointment under paragraph 7(1) or as a
result of provision under section 31(2)),”.
10
      (4)
In paragraph 4 (terms of appointment) after sub-paragraph (2) (salaried
appointee may be removed from office only by Lord Chancellor and only on
ground of inability or misbehaviour) insert—
   “(2A)
If the terms of the person’s appointment provide that the person
is appointed on a fee-paid basis, the person may be removed from
15
office—
(a)
only by the Lord Chancellor (and in accordance with
paragraph 3), and
(b)
only on—
(i)
the ground of inability or misbehaviour, or
20
(ii)
a ground specified in the person’s terms of
appointment.
     (2B)
If the period (or extended period) for which the person is
appointed ends before—
(a)
the day on which the person attains the age of 70, or
25
(b)
if different, the day that for the purposes of section 26 of
the Judicial Pensions and Retirement Act 1993 is the
compulsory retirement date for the office concerned in the
person’s case,

then, subject to sub-paragraph (2C), the Senior President of
30
Tribunals must extend the period of the person’s appointment
(including a period already extended under this sub-paragraph)
before it ends.
     (2C)
Extension under sub-paragraph (2B)—
(a)
requires the person’s agreement,
35
(b)
is to be for such period as the Lord Chancellor considers
appropriate, and
(c)
may be refused on—
(i)
the ground of inability or misbehaviour, or
(ii)
a ground specified in the person’s terms of
40
appointment.”
      (5)
In paragraph 4(3) (subject to sub-paragraph (2), person to hold and vacate
office in accordance with terms of appointment)—
(a)
for “sub-paragraph (2) (and” substitute “the preceding provisions of
this paragraph (but subject in the first place”, and
45
(b)
after “appointment” insert “, which are to be such as the Lord
Chancellor may determine”.

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
235

      (6)
In paragraph 7(1) (Lord Chancellor may appoint deputy judge of the Upper
Tribunal for such period as the Lord Chancellor considers appropriate) for
“Lord Chancellor”, in the first place, substitute “Senior President of
Tribunals”.
      (7)
In paragraph 7(3) (persons to whom paragraph 7(4) and (5) apply) for “Sub-
5
paragraphs (4) and (5)” substitute “The following provisions of this
paragraph”.
      (8)
For paragraph 7(4) (person to hold and vacate office in accordance with
terms of appointment) substitute—
   “(3A)
The person may be removed from office—
10
(a)
only by the Lord Chancellor (and in accordance with
paragraph 3), and
(b)
only on—
(i)
the ground of inability or misbehaviour, or
(ii)
a ground specified in the person’s terms of
15
appointment.
     (3B)
If the period (or extended period) for which the person is
appointed ends before—
(a)
the day on which the person attains the age of 70, or
(b)
if different, the day that for the purposes of section 26 of
20
the Judicial Pensions and Retirement Act 1993 is the
compulsory retirement date for the office concerned in the
person’s case,

then, subject to sub-paragraph (3C), the Senior President of
Tribunals must extend the period of the person’s appointment
25
(including a period already extended under this sub-paragraph)
before it ends.
     (3C)
Extension under sub-paragraph (3B)—
(a)
requires the person’s agreement,
(b)
is to be for such period as the Lord Chancellor considers
30
appropriate, and
(c)
may be refused on—
(i)
the ground of inability or misbehaviour, or
(ii)
a ground specified in the person’s terms of
appointment.
35
      (4)
Subject to the previous provisions of this paragraph (but subject in
the first place to the Judicial Pensions and Retirement Act 1993), a
person is to hold and vacate office as a deputy judge of the Upper
Tribunal in accordance with the person’s terms of appointment,
which are to be such as the Lord Chancellor may determine.”
40
46    (1)
Schedule 4 (chambers, and chamber presidents, for the First-tier Tribunal or
the Upper Tribunal) is amended as follows.
      (2)
In the italic headings before each of paragraphs 1 and 2 for “by Lord
Chancellor” substitute “under section 7(7)”.
      (3)
In paragraph 2(1) (duty to consult before appointing senior court judge as
45
chamber president) for “Lord Chancellor must consult the Senior President
of Tribunals before the Lord Chancellor” substitute “Senior President of

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
236

Tribunals must consult the Lord Chancellor before the Senior President of
Tribunals”.
      (4)
In paragraph 2(2) to (4) (which relate to the power under section 7(7)) for
“Lord Chancellor”, in each place, substitute “Senior President of Tribunals”.
      (5)
In paragraph 2 after sub-paragraph (4) insert—
5
   “(4A)
The Senior President of Tribunals may make a request under sub-
paragraph (2), (3) or (4) only with the Lord Chancellor’s
concurrence.”
      (6)
In paragraph 2(5) (judge nominated must be appointed as Chamber
President) for “Lord Chancellor” substitute “Senior President of Tribunals”.
10
      (7)
In paragraph 3(1) (Chamber President to hold and vacate office in
accordance with terms of appointment)—
(a)
for “(subject” substitute “but subject to paragraph 5A (and subject in
the first place”, and
(b)
at the end insert “, and those terms are to be such as the Lord
15
Chancellor may determine.”
      (8)
In paragraph 5(1) (Lord Chancellor’s power to appoint Deputy Chamber
Presidents for the First-tier or Upper Tribunal) for “Lord Chancellor”
substitute “Senior President of Tribunals”.
      (9)
In paragraph 5(3) and (5) to (7) (which relate to the power under paragraph
20
5(1)) for “Lord Chancellor”, in each place, substitute “Senior President of
Tribunals”.
     (10)
In paragraph 5(3)(a) (duty to consult Senior President of Tribunals) for
“Senior President of Tribunals” substitute “Lord Chancellor”.
     (11)
In paragraph 5 after sub-paragraph (7) insert—
25
   “(7A)
The Senior President of Tribunals may make a request under sub-
paragraph (5), (6) or (7) only with the Lord Chancellor’s
concurrence.”
     (12)
In paragraph 5(8) (judge nominated must be appointed as Deputy Chamber
President) for “Lord Chancellor” substitute “Senior President of Tribunals”.
30
     (13)
In paragraph 5(9) (Deputy Chamber President to hold and vacate office in
accordance with terms of appointment)—
(a)
for “(subject” substitute “but subject to paragraph 5A (and subject in
the first place”, and
(b)
at the end insert “, and those terms are to be such as the Lord
35
Chancellor may determine.”
     (14)
After paragraph 5 insert—
“Chamber Presidents and Deputies: removal from office and extension of appointment
5A    (1)
This paragraph applies to a person—
(a)
appointed under section 7(6) or (7) as a Chamber
40
President, or
(b)
appointed under paragraph 5(1) or (2) as a Deputy
Chamber President of a chamber.

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
237

      (2)
If the terms of the person’s appointment provide that the person
is appointed otherwise than on a fee-paid basis, the person may be
removed from office—
(a)
only by the Lord Chancellor with the concurrence of the
Senior President of Tribunals, and
5
(b)
only on the ground of inability or misbehaviour.
      (3)
If the terms of the person’s appointment provide that the person
is appointed on a fee-paid basis, the person may be removed from
office—
(a)
only by the Lord Chancellor with the concurrence of the
10
Senior President of Tribunals, and
(b)
only on—
(i)
the ground of inability or misbehaviour, or
(ii)
a ground specified in the person’s terms of
appointment.
15
      (4)
If the period (or extended period) for which the person is
appointed ends before—
(a)
the day on which the person attains the age of 70, or
(b)
if different, the day that for the purposes of section 26 of
the Judicial Pensions and Retirement Act 1993 is the
20
compulsory retirement date for the office concerned in the
person’s case,

then, subject to sub-paragraph (5), the Senior President of
Tribunals must extend the period of the person’s appointment
(including a period already extended under this sub-paragraph)
25
before it ends.
      (5)
Extension under sub-paragraph (4)—
(a)
requires the person’s agreement,
(b)
is to be for such period as the Lord Chancellor considers
appropriate, and
30
(c)
may be refused on—
(i)
the ground of inability or misbehaviour, or
(ii)
a ground specified in the person’s terms of
appointment.”
47    (1)
Section 94B of the Constitutional Reform Act 2005 (certain appointments by
35
Lord Chancellor not subject to section 85 but require concurrence of Senior
President of Tribunals) is amended as follows.
      (2)
For subsection (1)(b) (concurrence requirement) substitute—
“(b)
the person who has the power to make the appointment,
whether the Lord Chancellor or the Senior President of
40
Tribunals, may not make the appointment without the
concurrence of the other of them.”
      (3)
In subsection (2) (Lord Chancellor must also consult Lord Chief Justice in
certain cases) for “Lord Chancellor” substitute “Senior President of
Tribunals”.
45

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
238

      (4)
After subsection (5) insert—
“(6)
Section 8(1) of the Tribunals, Courts and Enforcement Act 2007
(power of Senior President of Tribunals to delegate functions) does
not apply to—
(a)
the Senior President of Tribunals’ function of concurring
5
under subsection (1)(b), or
(b)
the Senior President of Tribunals’ function under subsection
(2).”
48    (1)
Schedule 14 to that Act (Judicial Appointments Commission: relevant offices
and enactments) is amended as follows.
10
      (2)
For the title of Part 3 substitute “Tribunal-related and other
appointments”.
      (3)
The table in Part 3 (appointments by the Lord Chancellor) becomes Table 1
of that Part called “Appointments by the Lord Chancellor”.
      (4)
Move the entries for the following offices from Table 1 of Part 3 to form Table
15
2 of that Part called “Appointments by the Senior President of Tribunals”
(and with the same column headings)—
Chamber President of a chamber of the First-tier Tribunal, or of a
chamber of the Upper Tribunal, by appointment under section 7(7)
of the Tribunals, Courts and Enforcement Act 2007, but not where
20
appointed in accordance with paragraph 2(2) to (5) of Schedule 4 to
that Act
Judge of the First-tier Tribunal by appointment under paragraph 1(1) of
Schedule 2 to that Act
Other member of the First-tier Tribunal by appointment under
25
paragraph 2(1) of that Schedule
Other member of the Upper Tribunal by appointment under paragraph
2(1) of Schedule 3 to that Act
Deputy judge of the Upper Tribunal by appointment under paragraph
7(1) of that Schedule
30
Deputy Chamber President of a chamber of the First-tier Tribunal, or of
a chamber of the Upper Tribunal, but not where appointed in
accordance with paragraph 5(5) to (8) of Schedule 4 to that Act
Appointments by Lord Chief Justice or Senior President of Tribunals: equalities provisions
49    (1)
Section 50 of the Equality Act 2010 (public offices: appointments, etc) is
35
amended as follows.
      (2)
In subsection (2) (meaning of “public office”) after paragraph (c) insert—
“(d)
an office or post, appointment to which is made by the Lord
Chief Justice or the Senior President of Tribunals.”
      (3)
In each of subsections (3) to (6), (9) and (11)(b) (offices within subsection
40
(2)(a) or (b)) for “or (b)” substitute “, (b) or (d)”.
50    (1)
Section 51 of the Equality Act 2010 (public offices: recommendations for
appointments, etc) is amended as follows.
      (2)
In subsections (1) to (4) (which apply to an office within section 50(2)(a) or
(b)) for “or (b)” substitute “, (b) or (d)”.
45

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
239

      (3)
In subsection (5) (interpretation) after “50(2)(a)” insert “or (d)”.
Certain deployments to the High Court to be made from pool of selected judges
51
In section 9 of the Senior Courts Act 1981 (which includes provision for
requesting certain judges to act as judges of other courts) after subsection
(2C) insert—
5
“(2CA)
In the case of a request to a person within entry 5 or 6 in column 1 of
the Table to act as a judge of the High Court, the appropriate
authority may make the request only if the person is a member of the
pool for requests under subsection (1) to persons within that entry.”
Main change in selection process
10
52    (1)
The Constitutional Reform Act 2005 is amended as follows.
      (2)
Omit—
(a)
sections 71 to 75 (selection for appointment of Lord Chief Justice or
Head of Division),
(b)
sections 75C to 75G (selection for appointment of Senior President of
15
Tribunals),
(c)
sections 80 to 84 (selection for appointment of ordinary judge of the
Court of Appeal),
(d)
sections 89 to 93 (selection for appointment of puisne judge of the
High Court or to an office listed in Schedule 14), and
20
(e)
section 96 (effect of acceptance of selection).
      (3)
Before section 95 (but after the italic heading preceding that section) insert—
“94C
Selection process
(1)
The Lord Chancellor must by regulations made with the agreement
of the Lord Chief Justice—
25
(a)
make further provision about the process to be applied in a
case where the Commission receives a request under section
87;
(b)
make further provision about—
(i)
membership of selection panels appointed under
30
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
35
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
40
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;
45