Crime and Courts Bill (HC Bill 137)

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
5(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
10appropriate, 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.”

(5) 15In 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
20Chancellor may determine”.

(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) 25In paragraph 7(3) (persons to whom paragraph 7(4) and (5) apply) for “Sub-
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) 30The person may be removed from 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

(ii) 35a ground specified in the person’s terms of
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) 40if 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 (3C), the Senior President of
45Tribunals must extend the period of the person’s appointment
(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
appropriate, and

(c) 5may be refused on—

(i) the ground of inability or misbehaviour, or

(ii) a ground specified in the person’s terms of
appointment.

(4) Subject to the previous provisions of this paragraph (but subject in
10the 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.”

47 (1) Schedule 4 (chambers, and chamber presidents, for the First-tier Tribunal or
15the 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
chamber president) for “Lord Chancellor must consult the Senior President
20of Tribunals before the Lord Chancellor” substitute “Senior President of
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) 25In paragraph 2 after sub-paragraph (4) insert—

“(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
30President) for “Lord Chancellor” substitute “Senior President of Tribunals”.

(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) 35at the end insert “, and those terms are to be such as the Lord
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) 40In paragraph 5(3) and (5) to (7) (which relate to the power under paragraph
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—

“(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) 5In paragraph 5(8) (judge nominated must be appointed as Deputy Chamber
President) for “Lord Chancellor” substitute “Senior President of Tribunals”.

(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
10the first place”, and

(b) at the end insert “, and those terms are to be such as the Lord
Chancellor may determine.”

(14) After paragraph 5 insert—

“Chamber Presidents and Deputies: removal from office and extension of appointment

5A (1) 15This paragraph applies to a person—

(a) appointed under section 7(6) or (7) as a Chamber
President, or

(b) appointed under paragraph 5(1) or (2) as a Deputy
Chamber President of a chamber.

(2) 20If 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

(b) 25only 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
30Senior 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.

(4) 35If 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
40compulsory 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)
45before 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

(c) may be refused on—

(i) 5the ground of inability or misbehaviour, or

(ii) a ground specified in the person’s terms of
appointment.”

48 (1) Section 94B of the Constitutional Reform Act 2005 (certain appointments by
Lord Chancellor not subject to section 85 but require concurrence of Senior
10President 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
Tribunals, may not make the appointment without the
15concurrence 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”.

(4) After subsection (5) insert—

“(6) 20Section 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
under subsection (1)(b), or

(b) 25the Senior President of Tribunals’ function under subsection
(2).”

49 (1) Schedule 14 to that Act (Judicial Appointments Commission: relevant offices
and enactments) is amended as follows.

(2) For the title of Part 3 substitute “Tribunal-related and other
30appointments”.

(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
2 of that Part called “Appointments by the Senior President of Tribunals”
35(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
  appointed in accordance with paragraph 2(2) to (5) of Schedule 4 to
  40that 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
  paragraph 2(1) of that Schedule

• 45Other member of the Upper Tribunal by appointment under paragraph
  2(1) of Schedule 3 to that Act

Crime and Courts BillPage 244

• Deputy judge of the Upper Tribunal by appointment under paragraph
  7(1) of that Schedule

• Deputy Chamber President of a chamber of the First-tier Tribunal, or of
  a chamber of the Upper Tribunal, but not where appointed in
  5accordance with paragraph 5(5) to (8) of Schedule 4 to that Act

Appointments by Lord Chief Justice or Senior President of Tribunals: equalities provisions

50 (1) Section 50 of the Equality Act 2010 (public offices: appointments, etc) is
amended as follows.

(2) In subsection (2) (meaning of “public office”) after paragraph (c) insert—

“(d) 10an 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
(2)(a) or (b)) for “or (b)” substitute “, (b) or (d)”.

51 (1) Section 51 of the Equality Act 2010 (public offices: recommendations for
15appointments, 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)”.

(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

52 20In 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—

“(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
25authority 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

53 (1) The Constitutional Reform Act 2005 is amended as follows.

(2) Omit—

(a) 30sections 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
Tribunals),

(c) sections 80 to 84 (selection for appointment of ordinary judge of the
35Court 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

(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—

(a) 5make 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
10section 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
15subsection (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
20of 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) 25make 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
70(2), 75B(2), 79(2) or 88(1), or

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

(c) 30provide 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) provide for section 88(1)(c) not to apply where, or to the
extent that, the Commission decides that the selection
35process 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
40selection under section 70(2), 75B(2) or 79(2) or any
subsequent selection,

(ii) power to reject a selection under section 70(2) or any
subsequent selection,

(iii) power to reject a selection under section 75B(2) or
4579(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
50mentioned 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
5Act 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
10mentioned 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,
15initial 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
20section 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
2570, 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) 30provide for section 16(2)(a) or (b) not to apply in relation to
functions of the Lord Chief Justice—

(i) as a member of such a panel (including functions of
chairing such a panel), or

(ii) in relation to the nomination or appointment of
35members of such a panel;

(m) 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;

(n) 40provide 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
members;

(o) 45make provision for or in connection with assessments,
whether pre-acceptance or post-acceptance, of the health of
persons selected;

(p) provide for the Lord Chief Justice to nominate a judicial office
holder (as defined in section 109(4)) to exercise functions
50given to the Lord Chief Justice by the regulations (including
functions, such as functions as a consultee, given otherwise
than in reliance on paragraph (f));

(q) 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
5than in reliance on paragraph (g));

(r) 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) 10may 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
15puisne 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) 20the 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
that Schedule.

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

Other changes in relation to selection process and complaints

54 25The Constitutional Reform Act 2005 is amended as follows.

55 In section 66(1)(a) (Lord Chancellor to consult Lord Chief Justice before
issuing guidance about selection procedures) for “consult” substitute
“obtain the agreement of”.

56 In section 67 (sections 68 to 75 apply in relation to appointment of Lord Chief
30Justice or Head of Division)—

(a) in subsection (1) for “75” substitute “70”, and

(b) in subsection (2) for “96” substitute “94C and regulations made
under it”.

57 In section 69 (sections 70 to 75 apply where request made under section
3569)—

(a) in subsection (4) for “Sections 70 to 75 apply” substitute “Section 70
applies”, and

(b) in subsection (5) for “Those sections are” substitute “That section is”.

58 (1) Section 70 (process for selecting person to be recommended for appointment
40as Lord Chief Justice or Head of Division) is amended as follows.

(2) After subsection (1) insert—

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

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

(a) at least two who are non-legally-qualified,

(b) at least two judicial members, and

(c) at least two members of the Commission,

and contributions to meeting more than one of the requirements may
be made by the same person’s membership of the panel.

(1C) 5The members of the panel may not include the current holder of the
office for which a selection is to be made.

(1D) If the panel is convened for the selection of a person to be
recommended for appointment as Lord Chief Justice, it is to be
chaired by one of its non-legally-qualified members.”

(3) 10In subsection (2)(a) (panel to determine selection process to be applied) after
“applied” insert “by it”.

(4) In subsection (4) (subsection (3) applies to selection under section 70 or 75)
for “section 75” substitute “regulations under section 94C”.

(5) Omit subsection (5) (if practicable, panel to consult current holder of office).

59 15In section 75A (sections 75B to 75G apply where request made under
paragraph 2(5) of Schedule 1 to the Tribunals, Courts and Enforcement Act
2007)—

(a) in subsection (1) for “Sections 75B to 75G apply” substitute “Section
75B applies”, and

(b) 20in subsection (2) for “Those sections are” substitute “That section is”.

60 (1) Section 75B (process for selecting person to be recommended for
appointment as Senior President of Tribunals) is amended as follows.

(2) After subsection (1) insert—

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

(1B) 25The members of the panel must include—

(a) at least two who are non-legally-qualified,

(b) at least two judicial members, and

(c) at least two members of the Commission,

and contributions to meeting more than one of the requirements may
30be made by the same person’s membership of the panel.

(1C) The members of the panel may not include the Senior President of
Tribunals.”

(3) In subsection (2)(a) (panel to determine selection process to be applied) after
“applied” insert “by it”.

(4) 35In subsection (5) (subsection (4) applies to selection under section 75B or
75G) for “section 75G” substitute “regulations under section 94C”.

61 In section 76 (sections 77 to 84 apply in relation to appointment of ordinary
judges of the Court of Appeal)—

(a) in subsection (1) for “84” substitute “79”, and

(b) 40in subsection (2) for “96” substitute “94C and regulations made
under it”.

62 In section 78 (sections 79 to 84 apply where request made under section
78)—

(a) in subsection (4) for “Sections 79 to 84 apply” substitute “Section 79
applies”, and

(b) in subsection (5) for “Those sections are” substitute “That section is”.

63 (1) Section 79 (process for selecting person to be recommended for appointment
5as ordinary judge of Court of Appeal) is amended as follows.

(2) After subsection (1) insert—

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

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

(a) at least two who are non-legally-qualified,

(b) 10at least two judicial members, and

(c) at least two members of the Commission,

and contributions to meeting more than one of the requirements may
be made by the same person’s membership of the panel.”

(3) In subsection (2)(a) (panel to determine selection process to be applied) after
15“applied” insert “by it”.

(4) In subsection (4) (subsection (3) applies to selection under section 79 or 84)
for “section 84” substitute “regulations under section 94C”.

64 (1) Section 85 (sections 86 to 93 apply in relation to appointment of puisne
judges of the High Court or to offices listed in Schedule 14) is amended as
20follows.

(2) In subsection (1)—

(a) for “93” substitute “88”,

(b) in paragraph (c) before “Part 2 or 3” insert “Table 1 of”, and

(c) after paragraph (c) insert—

“(d) 25an appointment to an office listed in Table 2 of Part 2
of that Schedule in exercise of the Lord Chief Justice’s
function under the enactment listed opposite that
office;

(e) an appointment to an office listed in Table 2 of Part 3
30of that Schedule in exercise of the function of the
Senior President of Tribunals under the enactment
listed opposite that office.”

(3) In subsection (2) for “96” substitute “94C and regulations made under it”.

(4) After subsection (4) insert—

“(5) 35The Lord Chancellor may by order provide that this section does not
apply to appointments to an office listed in Schedule 14 that is
specified in the order.

(6) An office may not be specified in an order under subsection (5) if—

(a) the provisions governing appointment to the office provide
40that a person is eligible for appointment only where the
person satisfies the single condition specified in the
provisions, and

(b) that condition is one of the conditions listed in subsection (8).

(7) An office may not be specified in an order under subsection (5) if—