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
14

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Tenure
A judge of the Supreme Court holds that office during good behaviour, but
may be removed from it on the address of both Houses of Parliament.
31
Salaries and allowances
(1)
A judge of the Supreme Court is entitled to a salary.
5
(2)
The amount of the salary is to be determined by the Minister with the
agreement of the Treasury.
(3)
Until otherwise determined under subsection (2), the amount is that of the
salary of a Lord of Appeal in Ordinary immediately before the commencement
of section 20.
10
(4)
A determination under subsection (2) may increase but not reduce the amount.
(5)
Salaries payable under this section are to be charged on and paid out of the
Consolidated Fund of the United Kingdom.
(6)
Any allowance determined by the Minister with the agreement of the Treasury
may be paid to a judge of the Court out of money provided by Parliament.
15
32
Resignation and retirement
(1)
A judge of the Supreme Court may at any time resign that office by giving the
Minister notice in writing to that effect.
(2)
The President or Deputy President of the Court may at any time resign that
office (whether or not he resigns his office as a judge) by giving the Minister
20
notice in writing to that effect.
(3)
In section 26(4)(a) of and Schedule 5 to the Judicial Pensions and Retirement
Act 1993 (c. 8) (retirement), for “Lord of Appeal in Ordinary” substitute “Judge
of the Supreme Court”.
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Medical retirement
25
(1)
This section applies if the Minister is satisfied by means of a medical certificate
that a person holding office as a judge of the Supreme Court—
(a)
is disabled by permanent infirmity from the performance of the duties
of his office, and
(b)
is for the time being incapacitated from resigning his office.
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(2)
The Minister may by instrument under his hand declare the person’s office to
have been vacated.
(3)
A declaration by instrument under subsection (2) has the same effect for all
purposes as if the person had, on the date of the instrument, resigned his office.
(4)
But such a declaration has no effect unless it is made—
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(a)
in the case of an ordinary judge, with the agreement of the President
and Deputy President of the Court;
(b)
in the case of the President, with the agreement of the Deputy President
and the senior ordinary judge;

Constitutional Reform Bill [HL]
Part 3 — The Supreme Court
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(c)
in the case of the Deputy President, with the agreement of the President
and the senior ordinary judge.
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Pensions
(1)
In the tables in sections 1 and 16 of the Judicial Pensions Act 1981 (c. 20)
(application and interpretation), for “Lord of Appeal in Ordinary”—
5
(a)
in the first column, substitute “Judge of the Supreme Court”, and
(b)
in the second column, in each place substitute “judge of the Supreme
Court”.
(2)
In Part 1 of Schedule 1 to the Judicial Pensions and Retirement Act 1993 (c. 8)
(qualifying judicial offices: judges), for “Lord of Appeal in Ordinary”
10
substitute “Judge of the Supreme Court”.
(3)
The amendments made by this section to the 1981 and 1993 Acts do not affect
the operation of any provision of or made under those Acts, or anything done
under such provision, in relation to the office of, or service as, Lord of Appeal
in Ordinary.
15
Acting judges
35
Acting judges
(1)
At the request of the President of the Supreme Court any of the following may
act as a judge of the Court—
(a)
a person who holds office as a senior territorial judge;
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(b)
a member of the supplementary panel under section 36.
(2)
A request under subsection (1) may be made by the Deputy President of the
Court if there is no President or the President is unable to make that request.
(3)
In section 26(7) of the Judicial Pensions and Retirement Act 1993 (requirement
not to act in certain capacities after the age of 75) for paragraph (b) substitute—
25
“(b)
act as a judge of the Supreme Court under section 35 of the
Constitutional Reform Act 2005;”.
(4)
Every person while acting under this section is, subject to subsections (5) and
(6), to be treated for all purposes as a judge of the Supreme Court (and so may
perform any of the functions of a judge of the Court).
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(5)
A person is not to be treated under subsection (4) as a judge of the Court for the
purposes of any statutory provision relating to—
(a)
the appointment, retirement, removal or disqualification of judges of
the Court,
(b)
the tenure of office and oaths to be taken by judges of the Court, or
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(c)
the remuneration, allowances or pensions of judges of the Court.
(6)
Subject to section 27 of the Judicial Pensions and Retirement Act 1993, a person
is not to be treated under subsection (4) as having been a judge of the Court if
he has acted in the Court only under this section.
(7)
Such remuneration and allowances as the Minister may with the agreement of
40
the Treasury determine may be paid out of money provided by Parliament to
any person who acts as a judge of the Court under this section.

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Part 3 — The Supreme Court
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(8)
In this section “office as a senior territorial judge” means office as any of the
following—
(a)
a judge of the Court of Appeal in England and Wales;
(b)
a judge of the Court of Session, but only if the holder of the office is a
member of the First or Second Division of the Inner House of that
5
Court;
(c)
a judge of the Court of Appeal in Northern Ireland, unless the holder
holds the office only by virtue of being a puisne judge of the High
Court.
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Supplementary panel
10
(1)
There is to be a panel of persons known as the supplementary panel.
(2)
On the commencement of this section any member of the House of Lords
who—
(a)
meets one of the conditions in subsection (3),
(b)
does not hold high judicial office,
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(c)
has not attained the age of 75, and
(d)
is not a person who was appointed to the office of Lord Chancellor on
or after 12 June 2003,

becomes a member of the panel.
(3)
The conditions are—
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(a)
that he ceased to hold high judicial office less than 5 years before the
commencement of this section;
(b)
that he was a member of the Judicial Committee of the Privy Council
immediately before that commencement;
(c)
that he ceased to be a member of that Committee less than 5 years
25
before that commencement.
(4)
A person becomes a member of the supplementary panel on ceasing to hold
office as a judge of the Supreme Court or as a senior territorial judge, but only
if, while he holds such office—
(a)
his membership of the panel is approved in writing by the President of
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the Supreme Court, and
(b)
the President of the Court gives the Minister notice in writing of the
approval.
(5)
Subsection (4) does not apply to a person who ceases to hold office as a judge
of the Supreme Court when he ceases to be President of the Court.
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(6)
Such a person becomes a member of the supplementary panel on ceasing to be
President of the Court, unless—
(a)
while President, he gives the Minister notice that he is not to become a
member of the panel,
(b)
he ceases to be President on being removed from office as a judge of the
40
Court on the address of both Houses of Parliament, or
(c)
his office is declared vacant under section 33.
(7)
A person does not become a member of the supplementary panel under
subsection (4) or (6) if—
(a)
on ceasing to hold office as a judge of the Supreme Court he takes office
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as a senior territorial judge, or

Constitutional Reform Bill [HL]
Part 3 — The Supreme Court
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(b)
on ceasing to hold office as a senior territorial judge he takes office as a
judge of the Supreme Court.
(8)
A member of the supplementary panel may resign by notice in writing to the
President of the Court.
(9)
Unless he resigns (and subject to sections 26(7)(b) and 27 of the Judicial
5
Pensions and Retirement Act 1993 (c. 8)), a person ceases to be a member of the
supplementary panel—
(a)
at the end of 5 years after the last day on which he holds his qualifying
office, or
(b)
if earlier, at the end of the day on which he attains the age of 75.
10
(10)
In this section—
(a)
“office as a senior territorial judge” has the same meaning as in section
35;
(b)
a person’s “qualifying office” is the office (that is, high judicial office,
membership of the Judicial Committee of the Privy Council, office as a
15
judge of the Supreme Court or office as a senior territorial judge) that
he held before becoming a member of the supplementary panel.
Jurisdiction and relation to other courts etc
37
Jurisdiction
(1)
The Supreme Court is a superior court of record.
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(2)
An appeal lies to the Court from any order or judgment of the Court of Appeal
in England and Wales in civil proceedings.
(3)
An appeal lies to the Court from any order or judgment of a court in Scotland
if an appeal lay from that court to the House of Lords at or immediately before
the commencement of this section.
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(4)
Schedule 8—
(a)
transfers other jurisdiction from the House of Lords to the Court,
(b)
transfers devolution jurisdiction from the Judicial Committee of the
Privy Council to the Court, and
(c)
makes other amendments relating to jurisdiction.
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(5)
The Court has power to determine any question necessary to be determined for
the purposes of doing justice in an appeal to it under any enactment.
(6)
An appeal under subsection (2) lies only with the permission of the Court of
Appeal or the Supreme Court; but this is subject to provision under any other
enactment restricting such an appeal.
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38
Relation to other courts etc
(1)
Nothing in this Part is to affect the distinctions between the separate legal
systems of the parts of the United Kingdom.
(2)
A decision of the Supreme Court on appeal from a court of any part of the
United Kingdom, other than a decision on a devolution matter, is to be
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regarded as the decision of a court of that part of the United Kingdom.

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(3)
A decision of the Supreme Court on a devolution matter—
(a)
is not binding on that Court when making such a decision;
(b)
otherwise, is binding in all legal proceedings.
(4)
In this section “devolution matter” means—
(a)
a question referred to the Supreme Court under section 33 of the
5
Scotland Act 1998 (c. 46) or section 11 of the Northern Ireland Act 1998
(c. 47);
(b)
a devolution issue as defined in Schedule 8 to the Government of Wales
Act 1998 (c. 38), Schedule 6 to the Scotland Act 1998 or Schedule 10 to
the Northern Ireland Act 1998.
10
Composition for proceedings
39
Composition
(1)
The Supreme Court is duly constituted in any proceedings only if all of the
following conditions are met—
(a)
the Court consists of an uneven number of judges;
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(b)
the Court consists of at least three judges;
(c)
more than half of those judges are permanent judges.
(2)
Paragraphs (a) and (b) of subsection (1) are subject to any directions that in
specified proceedings the Court is to consist of a specified number of judges
that is both uneven and greater than three.
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(3)
Paragraph (b) of subsection (1) is subject to any directions that in specified
descriptions of proceedings the Court is to consist of a specified minimum
number of judges that is greater than three.
(4)
This section is subject to section 40.
(5)
In this section—
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(a)
“directions” means directions given by the President of the Court;
(b)
“specified”, in relation to directions, means specified in those
directions;
(c)
references to permanent judges are references to those judges of the
Court who are not acting judges under section 35.
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(6)
This section and section 40 apply to the constitution of the Court in any
proceedings from the time judges are designated to hear the proceedings.
40
Changes in composition
(1)
This section applies if in any proceedings the Court ceases to be duly
constituted in accordance with section 39, or in accordance with a direction
35
under this section, because one or more members of the Court are unable to
continue.
(2)
The presiding judge may direct that the Court is still duly constituted in the
proceedings.
(3)
The presiding judge may give a direction under this section only if—
40
(a)
the parties agree;

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(b)
the Court still consists of at least three judges (whether the number of
judges is even or uneven);
(c)
at least half of those judges are permanent judges.
(4)
Subsections (2) and (3) are subject to directions given by the President of the
Court.
5
(5)
If in any proceedings the Court is duly constituted under this section with an
even number of judges, and those judges are evenly divided, the case is to be
re-argued in a Court which is constituted in accordance with section 39.
(6)
In this section—
(a)
“presiding judge” means the judge who is to preside, or is presiding,
10
over proceedings;
(b)
references to permanent judges have the same meaning as in section 39.
Practice and procedure
41
Specially qualified advisers
(1)
If the Supreme Court thinks it expedient in any proceedings, it may hear and
15
dispose of the proceedings wholly or partly with the assistance of one or more
specially qualified advisers appointed by it.
(2)
Any remuneration payable to such an adviser is to be determined by the Court
unless agreed between the adviser and the parties to the proceedings.
(3)
Any remuneration forms part of the costs of the proceedings.
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42
Making of rules
(1)
The President of the Supreme Court may make rules (to be known as “Supreme
Court Rules”) governing the practice and procedure to be followed in the
Court.
(2)
The power to make Supreme Court Rules includes power to make different
25
provision for different cases, including different provision—
(a)
for different descriptions of proceedings, or
(b)
for different jurisdiction of the Supreme Court.
(3)
The President must exercise the power to make Supreme Court Rules with a
view to securing that—
30
(a)
the Court is accessible, fair and efficient, and
(b)
the rules are both simple and simply expressed.
(4)
Before making Supreme Court Rules the President must consult all of the
following—
(a)
the Minister;
35
(b)
the bodies listed in subsection (5);
(c)
such other bodies that represent persons likely to be affected by the
Rules as the President considers it appropriate to consult.
(5)
The bodies referred to in subsection (4)(b) are—
The General Council of the Bar of England and Wales;
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The Law Society of England and Wales;

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The Faculty of Advocates of Scotland;
The Law Society of Scotland;
The General Council of the Bar of Northern Ireland;
The Law Society of Northern Ireland.
43
Procedure after rules made
5
(1)
Supreme Court Rules made by the President of the Supreme Court must be
submitted by him to the Minister.
(2)
Supreme Court Rules submitted to the Minister—
(a)
come into force on such day as the Minister directs, and
(b)
are to be contained in a statutory instrument to which the Statutory
10
Instruments Act 1946 (c. 36) applies as if the instrument contained rules
made by a Minister of the Crown.
(3)
A statutory instrument containing Supreme Court Rules is subject to
annulment in pursuance of a resolution of either House of Parliament.
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Photography etc
15
(1)
In section 41 of the Criminal Justice Act 1925 (c. 86) (prohibition on taking
photographs etc in court), for subsection (2)(a) substitute—
“(a)
the expression “court” means any court of justice (including the
court of a coroner), apart from the Supreme Court;”.
(2)
In section 29 of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 N.I.)
20
(prohibition on taking photographs etc in court), for subsection (2)(a)
substitute—
“(a)
the expression “court” means any court of justice (including the
court of a coroner), apart from the Supreme Court;”.
Staff and resources
25
45
Chief executive
(1)
The Supreme Court is to have a chief executive.
(2)
The Minister must appoint the chief executive, after consulting the President of
the Court.
(3)
The President of the Court may delegate to the chief executive any of these
30
functions—
(a)
functions of the President under section 46(1);
(b)
non-judicial functions of the Court.
(4)
The chief executive must carry out his functions (under subsection (3) or
otherwise) in accordance with any directions given by the President of the
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Court.
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Officers and staff
(1)
The President of the Supreme Court may appoint officers and staff of the
Court.