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 3 — The Supreme Court
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Appointment of judges
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Qualification for appointment
(1)
A person is not qualified to be appointed a judge of the Supreme Court unless
he has (at any time)—
(a)
held high judicial office for a period of at least 2 years, or
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(b)
been a qualifying practitioner for a period of at least 15 years.
(2)
A person is a qualifying practitioner for the purposes of this section at any time
when—
(a)
he has a Supreme Court qualification, within the meaning of section 71
of the Courts and Legal Services Act 1990 (c. 41),
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(b)
he is an advocate in Scotland or a solicitor entitled to appear in the
Court of Session and the High Court of Justiciary, or
(c)
he is a member of the Bar of Northern Ireland or a solicitor of the
Supreme Court of Judicature of Northern Ireland.
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Selection of members of the Court
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(1)
This section applies to a recommendation for an appointment to one of the
following offices—
(a)
judge of the Supreme Court;
(b)
President of the Court;
(c)
Deputy President of the Court.
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(2)
A recommendation may be made only by the Prime Minister.
(3)
The Prime Minister—
(a)
must recommend any person whose name is notified to him under
section 26;
(b)
may not recommend any other person.
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(4)
A person who is not a judge of the Court must be recommended for
appointment as a judge if his name is notified to the Prime Minister for an
appointment as President or Deputy President.
(5)
If there is a vacancy in one of the offices mentioned in subsection (1), or it
appears to him that there will soon be such a vacancy, the Minister must
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convene a selection commission for the selection of a person to be
recommended.
(6)
Schedule 7 is about selection commissions.
(7)
Subsection (5) is subject to Part 3 of that Schedule.
(8)
Sections 24 to 28 apply where a selection commission is convened under this
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section.
24
Selection process
(1)
The commission must—
(a)
determine the selection process to be applied,
(b)
apply the selection process, and
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(c)
make a selection accordingly.

Constitutional Reform Bill [HL]
Part 3 — The Supreme Court
11

(2)
As part of the selection process the commission must consult each of the
following—
(a)
such of the senior judges as are not members of the commission and are
not willing to be considered for selection;
(b)
the Minister;
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(c)
the First Minister in Scotland;
(d)
the Assembly First Secretary in Wales;
(e)
the Secretary of State for Northern Ireland.
(3)
If for any part of the United Kingdom no judge of the courts of that part is to
be consulted under subsection (2)(a), the commission must consult as part of
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the selection process the most senior judge of the courts of that part who is not
a member of the commission and is not willing to be considered for selection.
(4)
Subsections (5) to (10) apply to any selection under this section or section 28.
(5)
Selection must be on merit.
(6)
A person may be selected only if he meets the requirements of section 22.
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(7)
A person may not be selected if he is a member of the commission.
(8)
In making selections for the appointment of judges of the Court the
commission must ensure that between them the judges will have knowledge
of, and experience of practice in, the law of each part of the United Kingdom.
(9)
The commission must have regard to any guidance given by the Minister as to
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matters to be taken into account (subject to any other provision of this Act) in
making a selection.
(10)
Any selection must be of one person only.
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Report
(1)
After complying with section 24 the commission must submit a report to the
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Minister.
(2)
The report must—
(a)
state who has been selected;
(b)
state the senior judges consulted under section 24(2)(a) and any judge
consulted under section 24(3);
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(c)
contain any other information required by the Minister.
(3)
The report must be in a form approved by the Minister.
(4)
After submitting the report the commission must provide any further
information the Minister may require.
(5)
When he receives the report the Minister must consult each of the following—
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(a)
the senior judges consulted under section 24(2)(a);
(b)
any judge consulted under section 24(3);
(c)
the First Minister in Scotland;
(d)
the Assembly First Secretary in Wales;
(e)
the Secretary of State for Northern Ireland.
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Constitutional Reform Bill [HL]
Part 3 — The Supreme Court
12

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The Minister’s options
(1)
This section refers to the following stages—

Stage 1:
where a person has been selected under section 24

Stage 2:
where a person has been selected following a rejection or

reconsideration at stage 1

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Stage 3:
where a person has been selected following a rejection or

reconsideration at stage 2.

(2)
At stage 1 the Minister must do one of the following—
(a)
notify the selection;
(b)
reject the selection;
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(c)
require the commission to reconsider the selection.
(3)
At stage 2 the Minister must do one of the following—
(a)
notify the selection;
(b)
reject the selection, but only if it was made following a reconsideration
at stage 1;
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(c)
require the commission to reconsider the selection, but only if it was
made following a rejection at stage 1.
(4)
At stage 3 the Minister must notify the selection, unless subsection (5) applies
and he makes a notification under it.
(5)
If a person whose selection the Minister required to be reconsidered at stage 1
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or 2 was not selected again at the next stage, the Minister may at stage 3 notify
that person’s name to the Prime Minister.
(6)
In this Part references to the Minister notifying a selection are references to his
notifying to the Prime Minister the name of the person selected.
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Exercise of powers to reject or require reconsideration
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(1)
The power of the Minister under section 26 to reject a selection at stage 1 or 2
is exercisable only on the grounds that, in the Minister’s opinion, the person
selected is not suitable for the office concerned.
(2)
The power of the Minister under section 26 to require the commission to
reconsider a selection at stage 1 or 2 is exercisable only on the grounds that, in
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the Minister’s opinion—
(a)
there is not enough evidence that the person is suitable for the office
concerned,
(b)
there is evidence that the person is not the best candidate on merit, or
(c)
there is not enough evidence that if the person were appointed the
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judges of the Court would between them have knowledge of, and
experience of practice in, the law of each part of the United Kingdom.
(3)
The Minister must give the commission reasons in writing for rejecting or
requiring reconsideration of a selection.

Constitutional Reform Bill [HL]
Part 3 — The Supreme Court
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Selection following rejection or requirement to reconsider
(1)
If under section 26 the Minister rejects or requires reconsideration of a selection
at stage 1 or 2, the commission must select a person in accordance with this
section.
(2)
If the Minister rejects a selection, the commission—
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(a)
may not select the person rejected, and
(b)
where the rejection is following reconsideration of a selection, may not
select the person (if different) whose selection it reconsidered.
(3)
If the Minister requires a selection to be reconsidered, the commission—
(a)
may select the same person or a different person, but
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(b)
where the requirement is following a rejection, may not select the
person rejected.
(4)
The commission must inform the Minister of the person selected following a
rejection or requirement to reconsider.
Terms of appointment
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Oath of allegiance and judicial oath
(1)
A person who is appointed as President of the Court must, as soon as may be
after accepting office, take the required oaths in the presence of—
(a)
the Deputy President, or
(b)
if there is no Deputy President, the senior ordinary judge.
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(2)
A person who is appointed as Deputy President of the Supreme Court must, as
soon as may be after accepting office, take the required oaths in the presence
of—
(a)
the President, or
(b)
if there is no President, the senior ordinary judge.
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(3)
A person who is appointed as a judge of the Supreme Court must, as soon as
may be after accepting office, take the required oaths in the presence of—
(a)
the President, or
(b)
if there is no President, the Deputy President, or
(c)
if there is no President and no Deputy President, the senior ordinary
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judge.
(4)
Subsections (1) and (2) apply whether or not the person appointed as President
or Deputy President has previously taken the required oaths in accordance
with this section after accepting another office.
(5)
Subsection (3) does not apply where a person is first appointed as a judge of
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the Court upon appointment to the office of President or Deputy President.
(6)
In this section “required oaths” means—
(a)
the oath of allegiance, and
(b)
the judicial oath,

as set out in the Promissory Oaths Act 1868 (c. 72).
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