Crime and Courts Bill (HL Bill 49)

(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
authority may make the request only if the person is a member of the
5pool for requests under subsection (1) to persons within that entry.”

Main change in selection process

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

(2) Omit—

(a) sections 71 to 75 (selection for appointment of Lord Chief Justice or
10Head 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
Court of Appeal),

(d) 15sections 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) 20The Lord Chancellor must by regulations made with the agreement
of the Lord Chief Justice—

(a) make further provision about the process to be applied in a
case where the Commission receives a request under section
87;

(b) 25make further provision about—

(i) membership of selection panels appointed under
section 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
30section 70, 75B or 79;

(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,
35either unconditionally or subject only to matters such as the
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
40applied under section 70(2), 75B(2), 79(2) or 88(1), including
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
4570(2), 75B(2), 79(2) or 88(1), or

(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
5extent 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—

(i) 10power 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
15under 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
20under 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
25Schedule 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
30under 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
351, or Table 2 of Part 3, of Schedule 14, 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
40mentioned in paragraph (d);

(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) 45provide for particular action to be taken by the Commission
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) 50provide for the dissolution of a selection panel appointed
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;

(m) 5provide 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;

(n) 10make 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
15given 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
20President 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.

(3) 25Regulations 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—

(i) 30is 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;

(b) 35the 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) 40This 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)—

(a) 45in 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)—

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

(b) 5in 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.

(2) After subsection (1) insert—

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

(1B) 10The 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
15be 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—

(a) its members may include the Lord Chancellor,

(b) it is to be chaired by one of its non-legally-qualified members,
20and

(c) it may not be chaired by the Lord Chancellor.”

(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 70 or 75)
25for “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
2007)—

(a) in subsection (1) for “Sections 75B to 75G apply” substitute “Section
3075B applies”, and

(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) 35The 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,

40and 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
“applied” insert “by it”.

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

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

(a) 5in subsection (1) for “84” substitute “79”, and

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

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

(a) 10in 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”.

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) 15After 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) 20at 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
“applied” insert “by it”.

(4) 25In 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
judges of the High Court or to offices listed in Schedule 14) is amended as
follows.

(2) 30In 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
35of 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
40Senior 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
apply to appointments to an office listed in Schedule 14 that is
specified in the order.

(6) 5An 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
person satisfies the single condition specified in the
provisions, and

(b) 10that 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
that a person is eligible for appointment only where the
person satisfies one or some other particular number or all, or
15at 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
listed in subsection (8).

(8) The conditions are—

(a) 20that the person satisfies the judicial-appointment eligibility
condition on an N-year basis (where N is a particular
number);

(b) that the person is a solicitor in Scotland of at least a particular
number of years’ standing;

(c) 25that 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
particular number of years’ standing;

(e) that the person is a barrister in Northern Ireland of at least a
30particular 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
of Session and the Lord Chief Justice of Northern Ireland.

(10) Regulations under subsection (5)—

(a) 35may 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
40puisne 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
45in 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
being informed by the Senior President of Tribunals that a selection
5under 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
to that office.”

(3) 10In 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
in an office listed in Table 2 of Part 2 of that Schedule.

(2B) 15The 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
Chancellor agrees that it may remain unfilled.”

62 (1) 20Section 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
for membership of a pool for requests under section 9(1) of the Senior
25Courts 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”.

(4) In subsection (5) for “Those sections are” substitute “That section is”.

63 30In section 88 (selection process: puisne judges of High Court and other office
holders)—

(a) omit subsection (2) (insufficient candidates of merit),

(b) omit subsection (3) (required elements of selection process),

(c) in subsection (4) (duty to arrange selection of one person for each
35recommendation 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,
92 or 93) for “section 92 or 93” substitute “regulations under section
94C”.

64 40For 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

(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
of the Lord Chief Justice, make provision about how the Commission
5is 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—

(i) in complying with such a duty, or

(ii) 10in 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;

(b) may make consequential, supplementary, transitory,
15transitional 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—

“(za) the Lord Chancellor may withdraw or modify a request in
20consequence 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;”.

(3) In that subsection after paragraph (b) insert—

“(ba) 25so 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
unsatisfactory)—

(a) 30for “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
consequence of modification or part-withdrawal of request) after “accepted”
35insert “unconditionally or subject only to matters such as the selected
person’s willingness and availability”.

(6) In subsection (4) (request may not be withdrawn on ground of
unsatisfactory process after exercise of power to accept, reject or require
reconsideration of selection) for the words after “if” substitute “a selection
40made pursuant to the request—

“(a) has been accepted unconditionally or subject only to matters
such as the selected person’s willingness and availability, or

(a) in exercise of power conferred by regulations under section
94C, has been rejected or required to be reconsidered.”

66 In section 97(1) (consultation under certain provisions to be with head of the
judiciary in Scotland or Northern Ireland instead of with Lord Chief Justice
of England and Wales) omit paragraphs (c) and (e).

67 (1) In section 99 (judicial appointments: complaints) after subsection (3) insert—

“(3A) 5An LCJ complaint is a complaint by a qualifying complainant of
maladministration by the Lord Chief Justice or the Lord Chief
Justice’s nominee, or anyone acting on behalf of either of them, in
connection with—

(a) selection under this Part for an office listed in Table 2 of Part
101 or 2 of Schedule 14,

(b) appointment to an office listed in Table 2 of Part 2 of that
Schedule, or

(c) selection under this Part for membership of a pool for
requests under section 9(1) of the Senior Courts Act 1981,

15or of maladministration by the Lord Chief Justice or the Master of the
Rolls or the Lord Chief Justice’s nominee, or anyone acting on behalf
of any of them, in connection with the making of requests under
section 9(1) of that Act.

(3B) An SPT complaint is a complaint by a qualifying complainant of
20maladministration by the Senior President of Tribunals or a person
to whom the Senior President has delegated functions, or anyone
acting on behalf of either of them, in connection with—

(a) selection under this Part for an office listed in Table 3 of Part
1 of Schedule 14 or in Table 2 of Part 3 of that Schedule, or

(b) 25appointment to an office listed in Table 2 of Part 3 of that
Schedule.”

68 In section 100 (duty to make arrangements to investigate complaints) after
subsection (2) insert—

“(2A) The Lord Chief Justice must make arrangements for investigating
30any LCJ complaint made to the Lord Chief Justice.

(2B) The Senior President of Tribunals must make arrangements for
investigating any SPT complaint made to the Senior President of
Tribunals.”

69 (1) Section 101 (complaints to the Judicial Conduct and Appointments
35Ombudsman) is amended as follows.

(2) In subsections (1)(a) and (4)(a) (investigation of complaints previously made
to Judicial Appointments Commission or Lord Chancellor) for “or the Lord
Chancellor” substitute “, the Lord Chancellor, the Lord Chief Justice or the
Senior President of Tribunals”.

(3) 40In subsection (1)(b) for “Commission’s or Lord Chancellors’ decision”
substitute “decision of the Commission, the Lord Chancellor, the Lord Chief
Justice or the Senior President of Tribunals”.

70 In section 102 (Ombudsman’s reports and recommendations)—

(a) in subsection (2)(c) (recommended action) for “or the Lord
45Chancellor” substitute “, the Lord Chancellor, the Lord Chief Justice
or the Senior President of Tribunals”, and

(b) in subsection (4) (compensation not to be recommended for failure to
be appointed to an office) after “office” insert “, or selected for
membership of a pool,”.

71 (1) Section 103 (Ombudsman’s reports) is amended as follows.

(2) 5For subsection (2) (drafts of reports) substitute—

“(2) The Ombudsman must submit a draft of the report to the Lord
Chancellor and to—

(a) the Commission if the complaint was a Commission
complaint;

(b) 10the Lord Chief Justice if the complaint was an LCJ complaint;

(c) the Senior President of Tribunals if the complaint was an SPT
complaint.”

(3) In subsection (3) (duty to have regard to comments on draft) for “or the
Commission” substitute “the Commission, the Lord Chief Justice or the
15Senior President of Tribunals”.

(4) After subsection (5) insert—

“(5A) If the complaint was an LCJ complaint the Ombudsman must send
the report in duplicate to the Lord Chancellor and the Lord Chief
Justice.

(5B) 20If the complaint was an SPT complaint the Ombudsman must send
the report in duplicate to the Lord Chancellor and the Senior
President of Tribunals.”

72 (1) Section 104 (referrals to Judicial Conduct and Appointments Ombudsman of
matters relating to Judicial Appointments Commission) is amended as
25follows.

(2) In subsection (1) (duty to investigate matter referred by Lord Chancellor)
after “Lord Chancellor” insert “, the Lord Chief Justice or the Senior
President of Tribunals”.

(3) In subsection (3) (report on referred matter) after “Lord Chancellor” insert
30“, the Lord Chief Justice and the Senior President of Tribunals”.

73 In section 105 (provision of information to Ombudsman) after “The
Commission” insert “, the Lord Chief Justice, the Senior President of
Tribunals”.

74 In section 144(5) (orders and regulations subject to affirmative procedure)
35after paragraph (a) insert—

“(aa) an order under section 85(5);

(ab) regulations under section 94 or 94C;”.

75 In paragraph 2 of Schedule 7 (functions of Lord Chancellor under the Act are
protected from transfer to other Ministers etc) after “under this Act” insert
40“, including any function under provision inserted into this Act by—

“(a) the Crime and Courts Act 2013, or

(b) any earlier or later enactment”.

76 In Schedule 12 (the Judicial Appointments Commission) in paragraphs 20(6)
and 27(3) (selection panels under section 70 or 79) after “70” insert “, 75B”.