Crime and Courts Bill (HL Bill 49)

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.”

(4) 5For 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
10as 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
15being 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) 20In 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 27 and regulations under section 27A”.

(9) 25In 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))
30after “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) 35In 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
40Transitional 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) Section 63 of the Constitutional Reform Act 2005 (judicial appointments to
5be 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
10(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) 15a 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
20judges 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)
25for “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
30ordinary 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) 35the 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) 40For 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
sections 2(1) and 4(1)) before “numbers” insert “full-time equivalent”.

5Part 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.

10Composition 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
15agreement of the Lord Chief Justice,”.

16 Omit 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).

17 After paragraph 3 (civil servants may not be appointed as Commissioners)
20insert—

“3A The 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
25agreement of the Lord Chief Justice, make provision about the
composition 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) 30holders of judicial office,

(b) persons 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
35minimum number of Commissioners of a particular
description;

(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
40particular description.”

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

5Selection 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
10recommended 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—

(i) 15provision 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;

(iii) 20provision 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
25remuneration, fees or expenses.”

19 (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
members” substitute “most senior of the holders of judicial office who are
30Commissioners”.

(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
Chancellor with the agreement of the Lord Chief Justice.”

(4) 35In 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
section 70(1), 75B(1) or 79(1) (including functions of
40chairing 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

20 For 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
5periods for which a Commissioner may be appointed or hold
office.

(2) Regulations under this paragraph may (in particular) make
provision about—

(a) the number of times a person may be appointed as a
10Commissioner;

(b) the length of any particular appointment;

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

21 15For 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) 20provide 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;

(b) provide for a Commissioner other than the chairman to
cease to be a Commissioner on ceasing, or on ceasing for a
25particular reason, to be eligible for appointment as a
Commissioner of a particular description;

(c) provide for the chairman—

(i) to cease to be the chairman without ceasing to be a
Commissioner, or

(ii) 30to 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
35provision under paragraph (a), (b) or (c) in individual
cases.”

Supplementary amendments

22 After paragraph 17 insert—

“Regulations

17A 40Regulations 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
45Commission 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—

• 5“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
10paragraph 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).

15Part 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
20Commission: 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
252 of that Part called “Appointments where the Commission reports to the
Lord Chief Justice” (and with the same column headings)—

• Circuit judge

• Recorder

• Master, Queen’s Bench Division

• 30Queen’s Coroner and Attorney and Master of the Crown Office and
  Registrar of Criminal Appeals

• Admiralty Registrar

• Master, Chancery Division

• Registrar in Bankruptcy of the High Court

• 35Taxing 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

• Chief Taxing Master

• 40Chief Bankruptcy Registrar

• Senior District Judge of the Family Division

• District judge

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

Crime and Courts BillPage 206

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

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

(4) 5In 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) 10Move 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

28 (1) 15Schedule 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
“opinion of the Senior President of Tribunals”.

(3) 20In 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
subsection (4) (health).

30 (1) 25Section 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)
substitute—

“(c) 30the circumstances in which the Lord Chancellor may
terminate the appointment (other than those in subsection
(6)(a) or (b));

(d) the circumstances in which the Lord Chief Justice may
decline to extend the term of the appointment (other than
35those in subsection (4C)(a) or (b)).”

(3) In subsection (4A) (Lord Chancellor must, subject to exceptions, extend term
of Recorder’s appointment) for “Lord Chancellor”, in the first place,
substitute “Lord Chief Justice”.

(4) In subsection (4B) (no extension without Recorder’s agreement) for “Lord
40Chancellor” substitute “Lord Chief Justice”.

(5) In subsection (4C) (Lord Chancellor may, with Lord Chief Justice’s
agreement, decline to extend term on certain grounds)—

(a) for “Lord Chancellor may, with the agreement of the Lord Chief
Justice,” substitute “Lord Chief Justice may, with the agreement of
45the Lord Chancellor,”, and

(b) in paragraph (c) for “(3)(c)” substitute “(3)(d)”.

(6) In subsection (5) (neither initial term nor extension under subsection (4) may
extend appointment beyond judicial retirement age) for “(4)” substitute
“(4A)”.

(7) 5After subsection (7) insert—

“(8) Subject to the preceding provisions of this section, a person
appointed under this section is to hold and vacate office as a
Recorder in accordance with the terms of the person’s appointment,
and those terms (including the terms specified under subsection (3))
10are (subject to subsection (4)) to be such as the Lord Chancellor may
determine.

(9) The Lord Chief Justice may nominate a senior judge (as defined in
section 109(5) of the Constitutional Reform Act 2005) to exercise
functions of the Lord Chief Justice under subsections (4) to (4D).”

(8) 15In list A in paragraph 4 of Schedule 7 to the Constitutional Reform Act 2005
(protected functions of Lord Chancellor) in the entries for the Courts Act
1971 for “Section 21(2), (4) and (7)” substitute “Section 21”.

31 In section 89(4) of the Senior Courts Act 1981 (additional offices and duties
of Senior Master appointed under subsection (3)(a)) for “appointed under
20subsection (3)(a)” substitute “of the Queen’s Bench Division”.

Deputy Circuit judges to be appointed by Lord Chief Justice

32 (1) Section 24 of the Courts Act 1971 (deputy Circuit judges and assistant
Recorders) is amended as follows.

(2) In subsection (1) (appointment to facilitate disposal of certain business) for
25“a county court” substitute “county court or any other court or tribunal to
which a person appointed under this subsection may be deployed”.

(3) In subsection (1)(a) (Lord Chancellor’s power to appoint deputy circuit
judges) for “Lord Chancellor may, with the concurrence of the Lord Chief
Justice,” substitute “Lord Chief Justice may, with the concurrence of the
30Lord Chancellor,”.

(4) In subsection (1A) (appointment as deputy Circuit judge not to be such as to
continue beyond person’s 75th birthday) after “such as to” insert “, or be
extended under subsection (5B) below so as to,”.

(5) After subsection (5) (remuneration) insert—

“(5A) 35A person may be removed from office as a deputy Circuit judge—

(a) only by the Lord Chancellor with the agreement of the Lord
Chief Justice, and

(b) only on—

(i) the ground of inability or misbehaviour, or

(ii) 40a ground specified in the person’s terms of
appointment.

(5B) Subject to subsections (1A) and (5C), the Lord Chief Justice must
extend the period of a person’s appointment as a deputy Circuit
judge (including a period already extended under this subsection)

before its expiry; and for this purpose a person appointed to be a
deputy Circuit judge on certain occasions is to be treated as having
been appointed for a period that expires when the occasions end.

(5C) Extension under subsection (5B)—

(a) 5requires the person’s agreement,

(b) is to be for such period as the Lord Chancellor thinks fit, and

(c) may be refused on—

(i) the ground of inability or misbehaviour, or

(ii) a ground specified in the person’s terms of
10appointment.

(5D) Subject to the preceding provisions of this section, a person
appointed under this section is to hold and vacate office as a deputy
Circuit judge in accordance with the terms of the person’s
appointment, which are to be such as the Lord Chancellor may
15determine.”

(6) In subsection (6) (Lord Chief Justice’s power to delegate under section
24(1)(a))—

(a) for “judicial office holder (as defined in section 109(4)” substitute
“senior judge (as defined in section 109(5)”, and

(b) 20after “subsection (1)(a)” insert “, (5A)(a), (5B) or (5C)(c)”.

(7) In Schedule 4 to the Constitutional Reform Act 2005 omit paragraph 71(2)(c)
(superseded amendment of section 24(1)(a) of the Courts Act 1971).

Deputy and temporary Masters etc to be appointed by Lord Chief Justice

33 (1) Section 91 of the Senior Courts Act 1981 (deputy and temporary Masters,
25Registrars etc of the High Court) is amended as follows.

(2) In subsection (1) (Lord Chancellor’s power of appointment)—

(a) for “the Lord Chancellor”, in the first place, substitute “the Lord
Chief Justice”, and

(b) after “to facilitate the disposal of business in the Senior Courts” insert
30“or any other court or tribunal to which a person appointed under
this subsection may be deployed”.

(3) For subsection (1ZA) (if person to be appointed is a current or former holder
of certain judicial offices, Lord Chief Justice must concur) substitute—

“(1ZA) The Lord Chief Justice may not appoint a holder of relevant office
35under subsection (1) without the concurrence of the Lord
Chancellor.”

(4) After subsection (6) (remuneration) insert—

“(6A) A person appointed under subsection (1) may be removed from
office—

(a) 40only by the Lord Chancellor with the agreement of the Lord
Chief Justice, and

(b) only on—

(i) the ground of inability or misbehaviour, or

(ii) a ground specified in the person’s terms of
45appointment.

(6B) Subject to subsection (6C), the period of a person’s appointment
under subsection (1) (including a period already extended under this
subsection) must be extended by the Lord Chief Justice before its
expiry; and for this purpose a person appointed under subsection (1)
5to act under this section on certain occasions is to be treated as
having been appointed for a period that expires when the occasions
end.

(6C) Extension under subsection (6B)—

(a) requires the person’s agreement,

(b) 10is to be for such period as the Lord Chancellor thinks fit, 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.

(6D) 15Subject to the preceding provisions of this section (but subject in the
first place to the Judicial Pensions and Retirement Act 1993), a person
appointed under subsection (1) is to hold and vacate office in
accordance with the terms of the person’s appointment, which are to
be such as the Lord Chancellor may determine.”

(5) 20In subsection (7) (delegation of functions by Lord Chief Justice)—

(a) for “judicial office holder (as defined in section 109(4)” substitute
“senior judge (as defined in section 109(5)”, and

(b) for “subsection (1ZA)” substitute “subsection (1), (6A)(a), (6B) or
(6C)(c)”.

(6) 25In list A in paragraph 4 of Schedule 7 to the Constitutional Reform Act 2005
(protected functions of Lord Chancellor) in the entries for the Senior Courts
Act 1981 for “Section 91(1), (1A) and (6)” substitute “Section 91”.

(7) In consequence of the previous provisions of this paragraph, in the
Tribunals, Courts and Enforcement Act 2007 omit sections 57(2)(a) and (5)
30and 144(5).

Deputy district judges to be appointed by Lord Chief Justice

34 (1) Section 102 of the Senior Courts Act 1981 (deputy district judges for the High
Court) is amended as follows.

(2) In subsection (1) (Lord Chancellor’s power of appointment)—

(a) 35for “Lord Chancellor” substitute “Lord Chief Justice”, and

(b) after “to facilitate the disposal of business in the High Court” insert
“or any other court or tribunal to which a person appointed under
this subsection may be deployed”.

(3) In subsection (1B) (Lord Chief Justice’s concurrence needed in certain cases)
40for “Lord Chancellor may not appoint a person under subsection (1) without
the concurrence of the Lord Chief Justice” substitute “Lord Chief Justice may
not appoint a person under subsection (1) without the concurrence of the
Lord Chancellor”.

(4) After subsection (5) (remuneration) insert—

“(5ZA) 45A person appointed under this section may be removed from office
as a deputy district judge—