Constitutional Reform Bill [HL]

House of Commons

Session 2004 - 05
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Other Bills before Parliament

Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Part 2 — Arrangements to modify the office of Lord Chancellor
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[NOTE: The words marked in bold type were inserted by the Lords to avoid
questions of privilege.]
A
Bill
To
Make provision for modifying the office of Lord Chancellor, and to make
provision relating to the functions of that office; to establish a Supreme Court
of the United Kingdom, and to abolish the appellate jurisdiction of the House
of Lords; to make provision about the jurisdiction of the Judicial Committee of
the Privy Council and the judicial functions of the President of the Council; to
make other provision about the judiciary, their appointment and discipline;
and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
The rule of law
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The rule of law
This Act does not adversely affect—
(a)
the existing constitutional principle of the rule of law, or
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(b)
the Lord Chancellor’s existing constitutional role in relation to that
principle.
Part 2
Arrangements to modify the office of Lord Chancellor
Qualifications for office of Lord Chancellor
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Requirement of membership of the House of Lords
No person is qualified to be Lord Chancellor unless he is a member of the
House of Lords.

Bill 18 53/4

Constitutional Reform Bill [HL]
Part 2 — Arrangements to modify the office of Lord Chancellor
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Legal qualifications
(1)
A person is not qualified to be appointed Lord Chancellor unless he has at any
time—
(a)
held high judicial office for a period of at least 2 years; or
(b)
practised as a qualifying practitioner (as defined in section 22) for at
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least 12 years.
(2)
For the avoidance of doubt, a person serving as a law officer of the Crown is
practising as a qualified practitioner.
Continued judicial independence
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Guarantee of continued judicial independence
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(1)
The Lord Chancellor, other Ministers of the Crown and all with responsibility
for matters relating to the judiciary or otherwise to the administration of justice
must uphold the continued independence of the judiciary.
(2)
Subsection (1) does not impose any duty which it would be within the
legislative competence of the Scottish Parliament to impose.
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(3)
A person is not subject to the duty imposed by subsection (1) if he is subject to
the duty imposed by section 1(1) of the Justice (Northern Ireland) Act 2002
(c. 26).
(4)
The following particular duties are imposed for the purpose of upholding that
independence.
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(5)
The Lord Chancellor and other Ministers of the Crown must not seek to
influence particular judicial decisions through any special access to the
judiciary.
(6)
The Lord Chancellor (“the Minister”) must have regard to—
(a)
the need to defend that independence;
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(b)
the need for the judiciary to have the support necessary to enable them
to exercise their functions;
(c)
the need for the public interest in regard to matters relating to the
judiciary or otherwise to the administration of justice to be properly
represented in decisions affecting those matters.
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(7)
In this section “the judiciary” includes the judiciary of any of the following—
(a)
the Supreme Court;
(b)
any other court established under the law of any part of the United
Kingdom;
(c)
any international court.
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(8)
In subsection (7) “international court” means the International Court of Justice
or any other court or tribunal which exercises jurisdiction, or performs
functions of a judicial nature, in pursuance of—
(a)
an agreement to which the United Kingdom or Her Majesty’s
Government in the United Kingdom is a party, or
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(b)
a resolution of the Security Council or General Assembly of the United
Nations.

Constitutional Reform Bill [HL]
Part 2 — Arrangements to modify the office of Lord Chancellor
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Guarantee of continued judicial independence: Northern Ireland
(1)
For section 1 of the Justice (Northern Ireland) Act 2002 (c. 26) (guarantee of
continued judicial independence) substitute—
“1
Guarantee of continued judicial independence
(1)
The following persons must uphold the continued independence of the
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judiciary—
(a)
the First Minister,
(b)
the deputy First Minister,
(c)
Northern Ireland Ministers, and
(d)
all with responsibility for matters relating to the judiciary or
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otherwise to the administration of justice, where that
responsibility is to be discharged only in or as regards Northern
Ireland.
(2)
The following particular duty is imposed for the purpose of upholding
that independence.
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(3)
The First Minister, the deputy First Minister and Northern Ireland
Ministers must not seek to influence particular judicial decisions
through any special access to the judiciary.
(4)
In this section “the judiciary” includes the judiciary of any of the
following—
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(a)
the Supreme Court;
(b)
any other court established under the law of any part of the
United Kingdom;
(c)
any international court.
(5)
In subsection (4) “international court” means the International Court of
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Justice or any other court or tribunal which exercises jurisdiction, or
performs functions of a judicial nature, in pursuance of—
(a)
an agreement to which the United Kingdom or Her Majesty’s
Government in the United Kingdom is a party, or
(b)
a resolution of the Security Council or General Assembly of the
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United Nations.”
(2)
In section 91(2) of that Act (extent: provisions not restricted to Northern
Ireland), before paragraph (a) insert—
“(za)
section 1,”.
The judiciary and the courts
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Representations to Parliament
(1)
The chief justice of any part of the United Kingdom may lay before Parliament
written representations on matters that appear to him to be matters of
importance relating to the judiciary, or otherwise to the administration of
justice, in that part of the United Kingdom.
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(2)
But in relation to Scotland those matters do not include matters within the
legislative competence of the Scottish Parliament, unless they are matters to
which a bill for an Act of Parliament relates.

Constitutional Reform Bill [HL]
Part 2 — Arrangements to modify the office of Lord Chancellor
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(3)
In this section “chief justice” means—
(a)
in relation to England and Wales or Northern Ireland, the Lord Chief
Justice of that part of the United Kingdom;
(b)
in relation to Scotland, the Lord President of the Court of Session.
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President of the Courts of England and Wales
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(1)
The Lord Chief Justice holds the office of President of the Courts of England
and Wales and is Head of the Judiciary of England and Wales.
(2)
As President of the Courts of England and Wales he is responsible—
(a)
for representing the views of the judiciary of England and Wales to
Parliament, to the Minister and to Ministers of the Crown generally;
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(b)
for the maintenance of appropriate arrangements for the welfare,
training and guidance of the judiciary of England and Wales within the
resources made available by the Minister;
(c)
for the maintenance of appropriate arrangements for the deployment of
the judiciary of England and Wales and the allocation of work within
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courts.
(3)
The President of the Courts of England and Wales is president of the courts
listed in subsection (4) and is entitled to sit in any of those courts.
(4)
The courts are—
the Court of Appeal
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the High Court
the Crown Court
the county courts
the magistrates’ courts.
(5)
In section 1 of the Supreme Court Act 1981 (c. 54), subsection (2) (Lord
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Chancellor to be president of the Supreme Court of England and Wales) ceases
to have effect.
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Head and Deputy Head of Criminal Justice
(1)
There is to be a Head of Criminal Justice.
(2)
The Head of Criminal Justice is—
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(a)
the Lord Chief Justice, or
(b)
if the Lord Chief Justice appoints another person, that person.
(3)
The Lord Chief Justice may appoint a person to be Deputy Head of Criminal
Justice.
(4)
The Lord Chief Justice must not appoint a person under subsection (2)(b) or (3)
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unless these conditions are met—
(a)
the Lord Chief Justice has consulted the Minister;
(b)
the person to be appointed is an ordinary judge of the Court of Appeal.
(5)
A person appointed under subsection (2)(b) or (3) holds the office to which he
is appointed in accordance with the terms of his appointment.
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