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Crime and Courts Bill [HL]


Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 1 — Judges of the Supreme Court: number and selection

171

 

(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

5

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

10

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;

15

“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

20

7     (1)  

Omit—

(a)   

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

commissions), and

(b)   

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

process).

25

      (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

selection commission under this section”.

      (3)  

For section 26(4) (person recommended for appointment as President or

30

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

appointment as President or Deputy President, the recommendation

must also recommend the person for appointment as a judge.”

35

      (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

to convene a selection commission are suspended).

(7A)   

For the purposes of this section and Schedule 8, a person is selected

40

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

applied by the commission, and

(b)   

any process provided for by regulations under section 27A

45

being applied in the particular case.”

 
 

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 2 — Diversity

172

 

      (5)  

In section 26(8) (application of sections 27 to 31) for “Sections 27 to 31 apply”

substitute “Section 27 applies”.

      (6)  

In 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

5

31) for “section 31” substitute “regulations under section 27A”.

      (8)  

In section 139(2)(a) (if confidential information is obtained for purposes of

sections 26 to 31 it is not to be disclosed without lawful authority) for “to 31”

substitute “and 26 and regulations under section 27A”.

      (9)  

In section 144(5) (subordinate legislation which may not be made unless a

10

draft has been laid before and approved by a resolution of each House of

Parliament) before paragraph (a) insert—

“(za)   

regulations under section 27A;”

     (10)  

In section 144(6) (certain orders are not subject to parliamentary procedure))

after “an order under section” insert “27B(5),”.

15

     (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

20

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

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

25

paragraph 110(a) and (b).

Part 2

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

30

be 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

35

(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

40

(b)   

a sub-group of that group.”

 
 

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 3 — Judicial Appointments Commission

173

 

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

10         

The Senior Courts Act 1981 is amended as follows.

11    (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

judges and not more than 38 ordinary judges” substitute “of—

5

(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)

for “maximum number” substitute “maximum full-time equivalent

10

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

ordinary judges and adding, for each ordinary judge who is not a

15

full-time ordinary judge, such fraction as is reasonable.”

12    (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)   

the puisne judges of that court, of whom the maximum full-

20

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)   

For the purposes of this section the full-time equivalent number of

25

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.”

13         

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”.

30

Part 3

Judicial Appointments Commission

Introductory

14         

Part 1 of Schedule 12 to the Constitutional Reform Act 2005 (the members of

the Judicial Appointments Commission) is amended as follows.

35

Composition of the Judicial Appointments Commission

15         

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

 
 

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 3 — Judicial Appointments Commission

174

 

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,”.

16         

Omit paragraphs 2(2) to (5) and 4 to 6 (Commissioners other than the lay

5

chairman are to be drawn in specified proportions from among judicial

officer-holders, practising lawyers and lay persons).

17         

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

insert—

“3A        

The number of Commissioners who are holders of judicial office

10

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.

15

      (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

20

(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;

25

(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

30

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).”

35

Selection of Commissioners

18         

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

connection with the selection or nomination of persons to be

40

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—

45

 
 

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 3 — Judicial Appointments Commission

175

 

(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;

5

(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

10

remuneration, fees or expenses.”

19         

For paragraph 11 (vice-chairman) substitute—

“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-

15

chairman of the Commission;

(b)   

provide for the carrying-out by the vice-chairman of

functions of the chairman.”

Commissioners’ terms of office

20         

For paragraph 13 (maximum term of office for a Commissioner) substitute—

20

“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

25

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

30

period for which a person may hold office as a

Commissioner.”

21         

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—

35

    “(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;

40

(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—

45

(i)   

to cease to be the chairman without ceasing to be a

Commissioner, or

 
 

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor

176

 

(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

5

provision under paragraph (a), (b) or (c) in individual

cases.”

Supplementary amendments

22         

After paragraph 17 insert—

“Regulations

10

17A        

Regulations under this Part of this Schedule may—

(a)   

make different provision for different purposes;

(b)   

include transitional or transitory provision or savings.”

23         

In Part 2 of Schedule 12 to the Constitutional Reform Act 2005 (Judicial

Appointments Commission) in paragraph 20(5) (committee to which

15

Commission delegates a selection function must include at least one judicial

member and one lay member) for “judicial member and” substitute “who is

a holder of judicial office and at least”.

24         

In section 122 of that Act (interpretation of Part 4) for the definition of “lay

member” substitute—

20

““lay member”, in relation to the Commission, has such

meaning as may be given by regulations under paragraph

3C(a) of Schedule 12;”.

25         

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

25

paragraph 5” substitute “regulations under Part 1”.

Consequential repeal of other legislation

26         

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).

30

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

27    (1)  

Schedule 14 to the Constitutional Reform Act 2005 (Judicial Appointments

35

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”.

 
 

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor

177

 

      (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)—

Circuit judge

Recorder

5

Master, 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

10

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

Chief Chancery Master

15

Chief Taxing Master

Chief Bankruptcy Registrar

Senior District Judge of the Family Division

District judge

District Judge (Magistrates’ Courts) appointed under section 22(1) of

20

the Courts Act 2003

      (4)  

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

25

Schedule 3 to the Tribunals, Courts and Enforcement Act 2007

28    (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

30

“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

29         

In section 16 of the Courts Act 1971 (appointment of Circuit judges) omit

35

subsection (4) (health).

30    (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)

40

substitute—

“(c)   

the circumstances in which the Lord Chancellor may

terminate the appointment (other than those in subsection

(6)(a) or (b));

 
 

 
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