Crime and Courts Bill (HL Bill 4)

3 (1) Section 26 (selection of members of the Supreme Court) is amended as
follows.

(2) In subsection (5) (Lord Chancellor to convene selection commission to fill
any vacancy among the members, or in the presiding offices, of the Court)
5for “one of the offices mentioned in subsection (1),” substitute “the office of
President of the Court or in the office of Deputy President of the Court,”.

(3) After subsection (5) insert—

“(5A) If—

(a) the full-time equivalent number of judges of the Court is less
10than the maximum specified in section 23(2), or it appears to
the Lord Chancellor that the full-time equivalent number of
judges of the Court will soon be less than that maximum, and

(b) the Lord Chancellor, or the senior judge of the Court, after
consulting the other considers it desirable that a
15recommendation be made for an appointment to the office of
judge of the Court,

the Lord Chancellor must convene a selection commission for the
selection of a person to be recommended.

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

(a) 20the 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
ordinary judge.”

Selection of persons to be recommended for appointment to the Court

4 (1) 25In section 27 (selection process) after subsection (1) insert—

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

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

(a) at least one who is non-legally-qualified,

(b) 30at least one judge of the Court,

(c) at least one member of the Judicial Appointments
Commission,

(d) at least one member of the Judicial Appointments Board for
Scotland, and

(e) 35at least one member of the Northern Ireland Judicial
Appointments Commission,

and more than one of the requirements may be met by the same
person’s membership of the commission.

(1C) If the commission is convened for the selection of a person to be
40recommended for appointment as President of the Court—

(a) its members may not include the President of the Court,

(b) its members may include the Lord Chancellor,

(c) it is to be chaired by one of its non-legally-qualified members,
and

(d) 45it may not be chaired by the Lord Chancellor.

(1D) If 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) 5For the purposes of this section a person is non-legally-qualified if
the 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
10House of Commons), and

(b) is 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) 15The Lord Chancellor must by regulations made with the agreement
of 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
20in any case where a selection commission is required to be
convened 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
25selected person’s willingness and availability, by or on behalf
of the Prime Minister or 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),
30including post-acceptance process;

(b) make 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) 35in determining what that process is to be;

(c) provide 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, in cases where
40the Lord Chancellor is not a member of the selection
commission, to reject a selection under section 27(1) or any
subsequent selection;

(e) give other functions to the Lord Chancellor;

(f) provide for particular action to be taken by a selection
45commission after it has complied with section 27;

(g) provide for the dissolution of a selection commission;

(h) provide 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;

(i) provide for a person to become a member of a selection
commission already convened where another person ceases
5to 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;

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

(k) 10make 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) the First Minister in Scotland,

(b) 15the 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) the Lord Chief Justice of England and Wales.

(4) 20Regulations 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
meaning given by section 26(5B).”

25Lord 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) consult the senior judge of the Supreme Court;

(b) 30after 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
guidance in the form of the draft.

(3) 35In 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
consultation with the senior judge of the Court.

(5) 40Selection 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) 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—

• 5“40-day period” in relation to the draft of any proposed
  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)

  10in any other case, the period of 40 days beginning
  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
  15Houses are adjourned for more than 4 days;

• “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).”

20Consequential 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) sections 28 to 31 and 60(5) (detailed provision about selection
25process).

(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) 30For 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
appointment as President or Deputy President, the recommendation
35must 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
to convene a selection commission are suspended).

(7A) 40For 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
applied by the commission, and

(b) 45any 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) In section 27(1)(a) (selection commission to determine selection process to be
applied) after “applied” insert “by it”.

(7) 5In 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
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) 10In 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) regulations under section 27A;”

(10) In section 144(6) (certain orders are not subject to parliamentary procedure))
15after “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) 20In 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
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
25Transitional Provisions) Order 2007 (S.I. 2007/1388S.I. 2007/1388) in Schedule 1 omit
paragraph 110(a) and (b).

Part 2 Diversity

Diversity considerations where candidates for judicial office are of equal merit

9 (1) 30Section 63 of the Constitutional Reform Act 2005 (judicial appointments to
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) 35Neither “solely” in subsection (2), nor Part 5 of the Equality Act 2010
(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
40selection under this Part, or

(b) a sub-group of that group.”

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
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.”

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) 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.”

13 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

14 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

15 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,”.

16 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
officer-holders, practising lawyers and lay persons).

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

“3A 10The number of Commissioners who are holders of judicial office
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
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) and 20(5).”

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
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.”

19 For paragraph 11 (vice-chairman) substitute—

“11 The Lord Chancellor may by regulations made with the
agreement of the Lord Chief Justice—

(a) 15provide for the appointment of a Commissioner to be vice-
chairman of the Commission;

(b) provide for the carrying-out by the vice-chairman of
functions of the chairman.”

Commissioners’ terms of office

20 20For 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) 25Regulations 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) 30the total length of a person’s appointments or the total
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
35appointment) 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
on ceasing, or on ceasing for a particular reason, to be
40eligible 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
Commissioner of a particular description;

(c) 45provide 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
Commissioner,

on ceasing, or on ceasing for a particular reason, to be
eligible for appointment as the chairman;

(d) 5confer power to disapply or suspend the operation of
provision under paragraph (a), (b) or (c) in individual
cases.”

Supplementary amendments

22 After paragraph 17 insert—

10“Regulations

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
15Appointments Commission) in paragraph 20(5) (committee to which
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
20member” substitute—

• “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
25subject to affirmative parliamentary procedure) for “an order under
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
30Constitutional 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

27 (1) 35Schedule 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) 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

• 5Recorder

• Master, Queen’s Bench Division

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

• Admiralty Registrar

• 10Master, Chancery Division

• 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

• 15Chief Chancery Master

• Chief Taxing Master

• Chief Bankruptcy Registrar

• Senior District Judge of the Family Division

• District judge

• 20District Judge (Magistrates’ Courts) appointed under section 22(1) of
  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)—

• 25Judge of the Upper Tribunal by appointment under paragraph 1(1) of
  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
30experience gained in law) for “Lord Chancellor’s opinion” substitute
“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 35In section 16 of the Courts Act 1971 (appointment of Circuit judges) omit
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
40Lord Chancellor may decline to extend appointment or may terminate it)
substitute—

“(c) the circumstances in which the Lord Chancellor may
terminate the appointment (other than those in subsection
(6)(a) or (b));