Crime and Courts Bill [HL]

Session 2012 - 13
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Crime and Courts Bill [HL]

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
192

(c)
secure, subject to section 95 and any provision within
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
5
selected person’s willingness and availability, by or on behalf
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
10
post-acceptance process;
(b)
make 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
15
(ii)
in determining what that process is to be;
(c)
provide 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
20
extent that, the Commission decides that the selection
process 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—
25
(i)
power to require a selection panel to reconsider a
selection under section 70(2), 75B(2) or 79(2) or any
subsequent selection,
(ii)
power, in cases where the Lord Chancellor is not a
member of the selection panel, to reject a selection
30
under section 70(2) or any subsequent selection,
(iii)
power to reject a selection under section 75B(2) or
79(2) or any subsequent selection,
(iv)
power to reject, or require the reconsideration of,
initial or subsequent selections made on a request
35
under section 87, and
(v)
power to require the reconsideration of a decision
mentioned 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
40
Schedule 14 or in connection with selection for membership
of a pool for requests under section 9(1) of the Senior Courts
Act 1981, including—
(i)
power to reject, or require the reconsideration of,
initial or subsequent selections made on a request
45
under section 87, and
(ii)
power to require the reconsideration of a decision
mentioned 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
50
1, or Table 2 of Part 3, of Schedule 14, including—

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
193

(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
mentioned in paragraph (d);
5
(h)
make provision for or in connection with duties mentioned in
section 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
10
or a selection panel after the panel has complied with section
70, 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
15
under section 70, 75B or 79;
(l)
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;
20
(m)
provide 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;
25
(n)
make provision for or in connection with assessments,
whether pre-acceptance or post-acceptance, of the health of
persons selected;
(o)
provide for the Lord Chief Justice to nominate a judicial office
holder (as defined in section 109(4)) to exercise functions
30
given to the Lord Chief Justice by the regulations (including
functions, such as functions as a consultee, given otherwise
than in reliance on paragraph (f));
(p)
make provision prohibiting or restricting delegation by the
Senior President of Tribunals of functions given to the Senior
35
President of Tribunals by the regulations (including
functions, such as functions as a consultee, given otherwise
than in reliance on paragraph (g));
(q)
make provision as to the meaning of “non-legally-qualified”
and “judicial member” in sections 70, 75B and 79.
40
(3)
Regulations under this section—
(a)
may make different provision for different purposes;
(b)
may make transitory, transitional or saving provision.
(4)
In subsection (1)(c) “the appropriate authority” means—
(a)
the Lord Chancellor where the selection—
45
(i)
is on a request under section 69 or 78,
(ii)
relates to the office of Senior President of Tribunals or
puisne judge of the High Court, or
(iii)
relates to an office listed in Table 1 of Part 1, 2 or 3 of
Schedule 14;
50

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
194

(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)
the 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
(5)
This section is subject to section 95.”
Other changes in relation to selection process and complaints
51
The Constitutional Reform Act 2005 is amended as follows.
52
In section 67 (sections 68 to 75 apply in relation to appointment of Lord Chief
Justice or Head of Division)—
10
(a)
in subsection (1) for “75” substitute “70”, and
(b)
in subsection (2) for “96” substitute “94C and regulations made
under it”.
53
In section 69 (sections 70 to 75 apply where request made under section
69)—
15
(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”.
54    (1)
Section 70 (process for selecting person to be recommended for appointment
as Lord Chief Justice or Head of Division) is amended as follows.
20
      (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
25
(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)
If the panel is convened for the selection of a person to be
recommended for appointment as Lord Chief Justice—
30
(a)
its members may include the Lord Chancellor,
(b)
it is to be chaired by one of its non-legally-qualified members,
and
(c)
it may not be chaired by the Lord Chancellor.”
      (3)
In subsection (2)(a) (panel to determine selection process to be applied) after
35
“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”.
55
In section 75A (sections 75B to 75G apply where request made under
paragraph 2(5) of Schedule 1 to the Tribunals, Courts and Enforcement Act
40
2007)—
(a)
in subsection (1) for “Sections 75B to 75G apply” substitute “Section
75B applies”, and

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
195

(b)
in subsection (2) for “Those sections are” substitute “That section is”.
56    (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.
5
(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
10
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
“applied” insert “by it”.
      (4)
In subsection (4) (subsection (3) applies to selection under section 75B or
75G) for “section 75G” substitute “regulations under section 94C”.
15
57
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)
in subsection (2) for “96” substitute “94C and regulations made
under it”.
20
58
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”.
25
59    (1)
Section 79 (process for selecting person to be recommended for appointment
as 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—
30
(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.”
35
      (3)
In 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 79 or 84)
for “section 84” substitute “regulations under section 94C”.
60    (1)
Section 85 (sections 86 to 93 apply in relation to appointment of puisne
40
judges of the High Court or to offices listed in Schedule 14) is amended as
follows.

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
196

      (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)
an appointment to an office listed in Table 2 of Part 2
5
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
of that Schedule in exercise of the function of the
10
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)
The Lord Chancellor may by order provide that this section does not
15
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
that a person is eligible for appointment only where the
20
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—
(a)
the provisions governing appointment to the office provide
25
that a person is eligible for appointment only where the
person satisfies one or some other particular number or all, or
at least one or at least some other particular number, of
several conditions specified in the provisions, and
(b)
at least one of the conditions specified in the provisions is
30
listed in subsection (8).
(8)
The conditions are—
(a)
that the person satisfies the judicial-appointment eligibility
condition on an N-year basis (where N is a particular
number);
35
(b)
that the person is a solicitor in Scotland of at least a particular
number of years’ standing;
(c)
that the person is an advocate in Scotland of at least a
particular number of years’ standing;
(d)
that the person is a solicitor in Northern Ireland of at least a
40
particular number of years’ standing;
(e)
that the person is a barrister in Northern Ireland of at least a
particular number of years’ standing.
(9)
Before making an order under subsection (5) the Lord Chancellor
must consult the Lord Chief Justice, the Lord President of the Court
45
of Session and the Lord Chief Justice of Northern Ireland.
(10)
Regulations under subsection (5)—

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
197

(a)
may make different provision for different purposes;
(b)
may make consequential, transitory, transitional or saving
provision.”
61    (1)
Section 86 (duty to fill vacancies) is amended as follows.
      (2)
After subsection (1) (duty to make a recommendation to fill vacancy for a
5
puisne judge of the High Court or in an office listed in Part 1 of Schedule 14)
insert—
“(1A)
The Lord Chancellor must, as soon as is reasonably practicable after
being informed by the Lord Chief Justice that a selection under this
Chapter for a recommendation for an appointment to an office listed
10
in Table 2 of Part 1 of that Schedule has been accepted
unconditionally or subject to conditions that have since been met,
make a recommendation of the selected person for an appointment
to that office.
(1B)
The Lord Chancellor must, as soon as is reasonably practicable after
15
being informed by the Senior President of Tribunals that a selection
under this Chapter for a recommendation for an appointment to an
office listed in Table 3 of Part 1 of that Schedule has been accepted
unconditionally or subject to conditions that have since been met,
make a recommendation of the selected person for an appointment
20
to that office.”
      (3)
In subsection (2) (Lord Chancellor must fill vacancy in office listed in Part 2
or 3 of Schedule 14) after “listed in” insert “Table 1 of”.
      (4)
After that subsection insert—
“(2A)
The Lord Chief Justice must make an appointment to fill any vacancy
25
in an office listed in Table 2 of Part 2 of that Schedule.
(2B)
The Senior President of Tribunals must make an appointment to fill
any vacancy in an office listed in Table 2 of Part 3 of that Schedule.”
      (5)
After subsection (3) insert—
“(4)
Subsections (2A) and (2B) do not apply to a vacancy while the Lord
30
Chancellor agrees that it may remain unfilled.”
62    (1)
Section 87 (request for selection of person to fill vacancy for High Court
judge or in an office listed in Schedule 14) is amended as follows.
      (2)
After subsection (1) insert—
“(1A)
The Lord Chancellor may request the Commission to select a person
35
for membership of a pool for requests under section 9(1) of the Senior
Courts Act 1981, and a person may become a member of such a pool
only by selection on a request under this subsection.”
      (3)
In subsection (4) (sections 88 to 93 apply where request made under section
87) for “Sections 88 to 93 apply” substitute “Section 88 applies”.
40
      (4)
In subsection (5) for “Those sections are” substitute “That section is”.
63
In section 88 (selection process: puisne judges of High Court and other office
holders)—
(a)
omit subsection (2) (insufficient candidates of merit),

Crime and Courts Bill [HL]
Schedule 12 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
198

(b)
omit subsection (3) (required elements of selection process),
(c)
in subsection (4) (duty to arrange selection of one person for each
recommendation or appointment to which a request relates) for “or
appointment” substitute “, appointment or pool membership”, and
(d)
in subsection (5) (subsection (4) applies to selection under section 88,
5
92 or 93) for “section 92 or 93” substitute “regulations under section
94C”.
64
For section 94 (Commission’s duty to identify persons suitable for selection
on a future request) substitute—
“94
Power to require persons to be identified for future requests
10
(1)
If the Lord Chancellor gives the Commission notice of a request
which the Lord Chancellor expects to make under section 87, the
Commission must seek to identify persons it considers would be
suitable for selection on the request.
(2)
The Lord Chancellor may, by regulations made with the agreement
15
of the Lord Chief Justice, make provision about how the Commission
is to comply with a duty imposed on it by subsection (1).
(3)
The regulations may in particular—
(a)
make provision as to things that are, or as to things that are
not, to be done—
20
(i)
in complying with such a duty, or
(ii)
in determining how to comply with such a duty;
(b)
provide for the making of reports.
(4)
Regulations under this section—
(a)
may make different provision for different purposes;
25
(b)
may make consequential, supplementary, transitory,
transitional or saving provision.”
65    (1)
Section 95 (Lord Chancellor’s power to withdraw or modify a request) is
amended as follows.
      (2)
In subsection (2) before paragraph (a) insert—
30
“(za)
the Lord Chancellor may withdraw or modify a request in
consequence of a vacancy, or perceived need for an
additional office-holder, having been filled or partly filled by
change in the amount of time required to be devoted to the
duties of office by an existing holder of the office concerned;”.
35
      (3)
In that subsection after paragraph (b) insert—
“(ba)
so far as a request relates to any pool membership, the Lord
Chancellor may withdraw or modify it after consulting the
Lord Chief Justice;”.
      (4)
In subsection (2)(c) (withdrawal of request where selection process
40
unsatisfactory)—
(a)
for “he”, in both places, substitute “the Lord Chancellor”, and
(b)
for “or appointments” substitute “, appointments or pool
memberships”.
      (5)
In subsection (3) (selection already accepted may not be changed in
45
consequence of modification or part-withdrawal of request) after “accepted”