Crime and Courts Bill (HC Bill 137)

(5B) In subsection (5A)(b) “the senior judge of the Court” means—

(a) the President of the Court, or

(b) if there is no President, the Deputy President, or

(c) if there is no President and no Deputy President, the senior
5ordinary judge.”

Selection of persons to be recommended for appointment to the Court

4 (1) In section 27 (selection process) after subsection (1) insert—

“(1A) The commission must have an odd number of members not less than
five.

(1B) 10The 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) 15at 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
20person’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, and

(b) it is to be chaired by one of its non-legally-qualified members.

(1D) 25If 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.”

(2) At the end of that section insert—

“(11) For the purposes of this section a person is non-legally-qualified if
30the 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) 35is not practising or employed as a lawyer, and never has
practised or been employed as a lawyer.”

5 After section 27 insert—

“27A Regulations about selection process

(1) The Lord Chancellor must by regulations made with the agreement
40of the senior judge of the Supreme Court—

(a) make further provision about membership of selection
commissions convened under section 26,

(b) make further provision about the process that is to be applied
in any case where a selection commission is required to be
45convened 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
5of the 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) 10make 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) 15provide 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 to reject a
selection under section 27(1) or any subsequent selection;

(e) 20give 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 section 16(2)(a) or (b) not to apply in relation to
25functions of the Lord Chief Justice—

(i) as a member of a selection commission (including
functions of chairing a selection commission), or

(ii) in relation to the nomination or appointment of
members of a selection commission;

(i) 30provide 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;

(j) provide for a person to become a member of a selection
35commission 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;

(k) provide for payment to a member of a selection commission
40of amounts by way of allowances or expenses;

(l) 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) 45the 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) 50the 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
5meaning given by section 26(5B).”

Lord Chancellor’s guidance about selection process: procedure

6 After that section 27A insert—

“27B Selection guidance: supplementary

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

(a) 10consult 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
15guidance 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
20consultation 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) 25new 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
  30selection 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
  35with 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;

• 40“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).”

Consequential amendments, repeals and revocations

7 (1) Omit—

(a) section 27(2) and (3) and Parts 1 and 2 of Schedule 8 (selection
commissions), and

(b) 5sections 28 to 31 and 60(5) (detailed provision about selection
process).

(2) In section 26(3)(a) (person whose name is notified under section 29 must be
recommended for appointment) for “whose name is notified to him under
section 29” substitute “who is selected as a result of the convening of a
10selection commission under this section”.

(3) For section 26(4) (person recommended for appointment as President or
Deputy President must also be recommended for appointment as a judge if
not already a judge of the Court) substitute—

“(4) Where a person who is not a judge of the Court is recommended for
15appointment as President or Deputy President, the recommendation
must also recommend the person for appointment as a judge.”

(4) For section 26(7) (cases where duty to convene a selection commission is
suspended) substitute—

“(7) Subsections (5) and (5A) are subject to Schedule 8 (cases where duty
20to convene a selection commission are suspended).

(7A) For the purposes of this section and Schedule 8, a person is selected
as a result of the convening of a selection commission if the person’s
selection is the final outcome of—

(a) the selection process mentioned in section 27(1) being
25applied by the commission, and

(b) any process provided for by regulations under section 27A
being applied in the particular case.”

(5) In section 26(8) (application of sections 27 to 31) for “Sections 27 to 31 apply”
substitute “Section 27 applies”.

(6) 30In section 27(1)(a) (selection commission to determine selection process to be
applied) after “applied” insert “by it”.

(7) In section 27(4) (section 27(5) to (10) apply to selections under section 27 or
31) for “section 31” substitute “regulations under section 27A”.

(8) In section 139(2)(a) (if confidential information is obtained for purposes of
35sections 26 to 31 it is not to be disclosed without lawful authority) for “to 31”
substitute “and 27 and regulations under section 27A”.

(9) In section 144(5) (subordinate legislation which may not be made unless a
draft has been laid before and approved by a resolution of each House of
Parliament) before paragraph (a) insert—

“(za) 40regulations under section 27A;”

(10) In section 144(6) (certain orders are not subject to parliamentary procedure))
after “an order under section” insert “27B(5),”.

(11) In paragraph 13(2) of Schedule 8 (end of suspension of duty to convene
selection commission for office of Deputy President) for “the Lord

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
5selection made by” substitute “a person has been selected as a result of the
convening of”.

8 In the Government of Wales Act 2006 (Consequential Modifications and
Transitional Provisions) Order 2007 (S.I. 2007/1388S.I. 2007/1388) in Schedule 1 omit
paragraph 110(a) and (b).

10Part 2 Diversity

Diversity considerations where candidates for judicial office are of equal merit

9 In section 27 of the Constitutional Reform Act 2005 (selection for
appointment to Supreme Court to be on merit etc) after subsection (5)
15insert—

“(5A) Where two persons are of equal merit—

(a) section 159 of the Equality Act 2010 (positive action:
recruitment etc) does not apply in relation to choosing
between them, but

(b) 20Part 5 of that Act (public appointments etc) does not
prevent the commission from preferring one of them over
the other for the purpose of increasing diversity within the
group of persons who are the judges of the Court.”

10 (1) Section 63 of the Constitutional Reform Act 2005 (judicial appointments to
25be solely on merit) is amended as follows.

(2) In subsection (1) (selections to which subsections (2) and (3) apply) for “and
(3)” substitute “to (4)”.

(3) After subsection (3) insert—

“(4) Neither “solely” in subsection (2), nor Part 5 of the Equality Act 2010
30(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) 35a sub-group of that group.”

Encouraging diversity

11 In Part 6 of the Constitutional Reform Act 2005 (other provisions relating to
the judiciary) after section 137 insert—

“137A Encouragement of diversity

40Each of the Lord Chancellor and the Lord Chief Justice of England
and Wales must take such steps as that office-holder considers
appropriate for the purpose of encouraging judicial diversity.”

Maximum numbers of judges to be by reference to full-time equivalent numbers

12 The Senior Courts Act 1981 is amended as follows.

13 (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
5judges 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”.

(3) In subsection (4) (power to increase maximum number of ordinary judges)
10for “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
ordinary judges is to be calculated by taking the number of full-time
15ordinary judges and adding, for each ordinary judge who is not a
full-time ordinary judge, such fraction as is reasonable.”

14 (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
than 108 puisne judges) for paragraph (e) substitute—

“(e) 20the 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”.

(4) After subsection (6) insert—

“(7) 25For 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.”

15 In section 10(2) (power to appoint judges is subject to maximum numbers in
30sections 2(1) and 4(1)) before “numbers” insert “full-time equivalent”.

Part 3 Judicial Appointments Commission

Introductory

16 Part 1 of Schedule 12 to the Constitutional Reform Act 2005 (the members of
35the Judicial Appointments Commission) is amended as follows.

Composition of the Judicial Appointments Commission

17 In paragraph 1 (Commission consists of lay chairman and 14 other

Commissioners) for paragraph (b) substitute—

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

18 5Omit 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
office holders, practising lawyers and lay persons).

19 After paragraph 3 (civil servants may not be appointed as Commissioners)
insert—

“3A 10The number of Commissioners who are holders of judicial office
must be less 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
15composition 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) 20persons 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
25description;

(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 30The 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
35paragraphs 3A, 3B(2)(a), 11 and 20(5).”

Selection of Commissioners

20 For paragraphs 7 to 10 (selection of Commissioners) substitute—

“6A (1) The Lord Chancellor may, by regulations made with the
agreement of the Lord Chief Justice, make provision for or in
40connection 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) 45make 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
5may 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) 10make provision for the payment to selectors of
remuneration, fees or expenses.”

21 (1) Paragraph 11 (vice-chairman) is amended as follows.

(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
15members” 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-
paragraph (1)) for the words after “sub-paragraph (1)” substitute “seniority
is to be determined in accordance with regulations made by the Lord
20Chancellor 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—

(a) any functions as a member of a commission convened
under section 26(5) or (5A) or of a panel appointed under
25section 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
Chancellor with the agreement of the Lord Chief Justice.”

Commissioners’ terms of office

22 30For 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
periods for which a Commissioner may be appointed or hold
office.

(2) 35Regulations 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) 40the total length of a person’s appointments or the total
period for which a person may hold office as a
Commissioner.”

23 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—

(a) provide for a Commissioner to cease to be a Commissioner
5on 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
10Commissioner 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
15Commissioner,

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
20cases.”

Supplementary amendments

24 After paragraph 17 insert—

“Regulations

17A Regulations under this Part of this Schedule may—

(a) 25make different provision for different purposes;

(b) include transitional or transitory provision or savings.”

25 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
30member and one lay member) for “judicial member and” substitute “who is
a holder of judicial office and at least”.

26 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
  35meaning as may be given by regulations under paragraph
  3C(a) of Schedule 12;”.

27 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”.

40Consequential repeal of other legislation

28 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

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

29 (1) 5Schedule 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
recommendation) becomes Table 1 of that Part called “Appointments where
the Commission reports to the Lord Chancellor”.

(3) 10Move 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)—

• Circuit judge

• Recorder

• 15Master, Queen’s Bench Division

• Queen’s Coroner and Attorney and Master of the Crown Office and
  Registrar of Criminal Appeals

• Admiralty Registrar

• Master, Chancery Division

• 20Registrar 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

• Chief Chancery Master

• 25Chief Taxing Master

• Chief Bankruptcy Registrar

• Senior District Judge of the Family Division

• District judge

• District Judge (Magistrates’ Courts) appointed under section 22(1) of
  30the Courts Act 2003

• Senior District Judge (Chief Magistrate) designated under section 23 of
  that Act

• Deputy Senior District Judge (Chief Magistrate) designated under that
  section

(4) 35In 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
  subsection

(5) 40Move 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
  Schedule 3 to the Tribunals, Courts and Enforcement Act 2007