Constitutional Reform Bill [HL]

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Session 2004 - 05
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Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Schedule 7 — Supreme Court selection commissions
Part 1 — Selection commissions
156

Schedule 7
Section 23

Supreme Court selection commissions
Part 1
Selection commissions
Selection commission
5
1     (1)
A selection commission consists of the following members—
(a)
the President of the Supreme Court;
(b)
the Deputy President of the Supreme Court;
(c)
one member of each of the following bodies—
(i)
the Judicial Appointments Commission;
10
(ii)
the Judicial Appointments Board for Scotland;
(iii)
the Northern Ireland Judicial Appointments Commission.
      (2)
Sub-paragraph (1)(a) does not apply if—
(a)
the office of President is vacant, or
(b)
the President is disqualified under paragraph 5.
15
      (3)
References in this Part of this Schedule to the President’s place on a selection
commission being unfilled are references to a case falling within paragraph
(a) or (b) of sub-paragraph (2).
      (4)
Sub-paragraph (1)(b) does not apply if—
(a)
the office of Deputy President is vacant, or
20
(b)
the Deputy President is disqualified under paragraph 5.
      (5)
References in this Part of this Schedule to the Deputy President’s place on a
selection commission being unfilled are references to a case falling within
paragraph (a) or (b) of sub-paragraph (4).
Special rules where President’s or Deputy President’s place unfilled
25
2     (1)
This paragraph applies if one (but not both) of the following conditions is
met—
(a)
the President’s place on a selection commission is unfilled;
(b)
the Deputy President’s place on a selection commission is unfilled.
      (2)
The unfilled place on the selection commission is to be taken by the most
30
senior ordinary judge of the Supreme Court.
      (3)
If the unfilled place on the selection commission is not taken in accordance
with sub-paragraph (2), the following are to be members of the commission
instead—
(a)
the most senior judge of the courts of England and Wales, unless that
35
jurisdiction is already represented;
(b)
the most senior judge of the courts of Scotland, unless that
jurisdiction is already represented;
(c)
the most senior judge of the courts of Northern Ireland, unless that
jurisdiction is already represented.
40
      (4)
For the purposes of this paragraph a jurisdiction is already represented if—

Constitutional Reform Bill [HL]
Schedule 7 — Supreme Court selection commissions
Part 1 — Selection commissions
157

(a)
in a case where the President’s place on the commission is unfilled,
that jurisdiction is the home jurisdiction of the Deputy President;
(b)
in a case where the Deputy President’s place on the commission is
unfilled, that jurisdiction is the home jurisdiction of the President.
      (5)
Any person disqualified under paragraph 5 is to be disregarded in
5
determining the most senior judge for the purposes of any provision of this
paragraph.
3     (1)
This paragraph applies if both of the following conditions are met—
(a)
the President’s place on a selection commission is unfilled;
(b)
the Deputy President’s place on a selection commission is unfilled.
10
      (2)
The unfilled places on the commission are to be taken by the following
persons—
(a)
the most senior ordinary judge of the Supreme Court;
(b)
the second most senior ordinary judge.
      (3)
If neither of the unfilled places on the selection commission is taken in
15
accordance with sub-paragraph (2), the following are to be members of the
commission instead—
(a)
the most senior judge of the courts of England and Wales;
(b)
the most senior judge of the courts of Scotland;
(c)
the most senior judge of the courts of Northern Ireland.
20
      (4)
If only one of the unfilled places on the selection commission is taken in
accordance with sub-paragraph (2), the following are also to be members of
the commission—
(a)
the most senior judge of the courts of England and Wales, unless that
jurisdiction is already represented;
25
(b)
the most senior judge of the courts of Scotland, unless that
jurisdiction is already represented;
(c)
the most senior judge of the courts of Northern Ireland, unless that
jurisdiction is already represented.
      (5)
For the purposes of sub-paragraph (4) a jurisdiction is already represented
30
if it is the home jurisdiction of the judge who has taken a place on the
selection commission in accordance with sub-paragraph (2).
      (6)
Any person disqualified under paragraph 5 is to be disregarded in
determining the most senior or second most senior judge for the purposes of
any provision of this paragraph.
35
4     (1)
The home jurisdiction of a judge of the Supreme Court is determined for the
purposes of paragraphs 2 and 3 in accordance with this paragraph.
      (2)
If the judge became, or first became, a member of the Supreme Court by
virtue of section 21, his home jurisdiction is—
(a)
the jurisdiction in which he held (or last held) any high judicial office
40
by which he was qualified for appointment as a Lord of Appeal in
Ordinary;
(b)
if he was qualified for that appointment only by a qualification listed
in section 6(a) to (c) of the Appellate Jurisdiction Act 1876 (c. 59), the
jurisdiction in which he held that qualification;
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Constitutional Reform Bill [HL]
Schedule 7 — Supreme Court selection commissions
Part 1 — Selection commissions
158

(c)
if he held such a qualification in more than one jurisdiction, the
jurisdiction with which he was, as the holder of such a qualification,
most closely associated.
      (3)
Sub-paragraph (4) applies if the following conditions are met—
(a)
the judge became, or first became, a member of the Supreme Court
5
by virtue of sections 22 to 28;
(b)
he qualified for appointment, or first appointment, to the Supreme
Court by virtue—
(i)
only of section 22(1)(a), or
(ii)
of section 22(1)(a) and (b).
10
      (4)
In such a case the judge’s home jurisdiction is—
(a)
if he was qualified for appointment, or first appointment, by virtue
of holding high judicial office in one jurisdiction, that jurisdiction;
(b)
if he was so qualified by virtue of holding high judicial office in more
than one jurisdiction, the jurisdiction in which he was appointed to
15
high judicial office most recently.
      (5)
Sub-paragraph (6) applies if the following conditions are met—
(a)
the judge became, or first became, a member of the Supreme Court
by virtue of sections 22 to 28;
(b)
he qualified for appointment, or first appointment, to the Supreme
20
Court by virtue only of section 22(1)(b).
      (6)
In such a case the judge’s home jurisdiction is—
(a)
if he was qualified for appointment, or first appointment, by virtue
of being a qualifying practitioner in one jurisdiction, that
jurisdiction;
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(b)
if he was so qualified by virtue of being a qualifying practitioner in
more than one jurisdiction, the jurisdiction with which he was, as a
qualifying practitioner, most closely associated.
Disqualification
5     (1)
The President, the Deputy President, an ordinary judge of the Court or a
30
territorial judge is disqualified for the purposes of membership of a selection
commission if it appears to the Minister that that person is for the time being
incapacitated from serving as a member of that commission.
      (2)
The Deputy President is disqualified for the purposes of membership of a
selection commission for the office of President unless he gives the Minister
35
notice that he is not willing to be appointed to the current vacancy.
      (3)
An ordinary judge of the Court is disqualified for the purposes of
membership of a selection commission for the office of President or Deputy
President unless he gives the Minister notice that he is not willing to be
appointed to the current vacancy.
40
      (4)
A territorial judge is disqualified for the purposes of membership of any
selection commission unless he gives the Minister notice that he is not
willing to be appointed to the current vacancy.

Constitutional Reform Bill [HL]
Schedule 7 — Supreme Court selection commissions
Part 1 — Selection commissions
159

Non-judicial members of the selection commissions
6     (1)
This paragraph applies in relation to those persons who are to be members
of a selection commission by virtue of paragraph 1(1)(c).
      (2)
The Minister must nominate one member of each Commission or Board
referred to in that provision to be a member of the selection commission.
5
      (3)
At least one of the persons nominated under sub-paragraph (2) to be a
member of the selection commission must be non-legally qualified.
      (4)
The Minister may nominate a person under sub-paragraph (2) only on the
recommendation of the Commission or Board of which the person is a
member.
10
      (5)
The Minister may, out of money provided by Parliament, pay to any person
nominated under sub-paragraph (2) such allowances as the Minister may
determine.
      (6)
For the purposes of this paragraph a person is non-legally qualified if—
(a)
he does not hold, and has never held, any of the offices listed in
15
Schedule 1 to the House of Commons Disqualification Act 1975
(c. 24) (judicial offices disqualifying for membership of the House of
Commons), and
(b)
he is not, and has never been, a practising lawyer.
      (7)
In sub-paragraph (6) “practising lawyer” has the same meaning as in
20
paragraph 6 of Schedule 10 to this Act.
Chairing of a selection commission
7
A selection commission is to be chaired—
(a)
by the President of the Supreme Court, or
(b)
by the Deputy President of the Supreme Court, if the President is not
25
a member of the commission, or
(c)
by the senior judge of the Supreme Court who is a member of the
commission, if neither the President nor the Deputy President is a
member, or
(d)
by the most senior of the territorial judges who are members of the
30
commission, if no judges of the Supreme Court are members.
Interpretation
8
In this Schedule—
(a)
“selection commission for the office of President” means a selection
commission convened in the case of a vacancy in the office of
35
President;
(b)
“selection commission for the office of Deputy President” means a
selection commission convened in the case of a vacancy in the office
of Deputy President;
(c)
“selection commission for the office of judge” means a selection
40
commission convened in the case of a vacancy among the ordinary
judges;
(d)
“current vacancy”, in relation to a selection commission, means the
vacancy in relation to which that commission has been convened.

Constitutional Reform Bill [HL]
Schedule 7 — Supreme Court selection commissions
Part 2 — Dissolution
160

9     (1)
In this Part of this Schedule—
“Judicial Appointments Board for Scotland” means the body of persons
known collectively by that name (being persons appointed by the
Scottish Ministers to carry out in Scotland functions corresponding
to those of the Judicial Appointments Commission);
5
“territorial judge”, in relation to a selection commission, means a judge
of the courts of England and Wales, of Scotland or of Northern
Ireland who is, or would be, a member of the commission by virtue
of paragraph 2(3), 3(3) or 3(4).
      (2)
For the purposes of this Part of this Schedule—
10
(a)
the seniority of the judges of the Supreme Court is to be determined
according to length of service as a judge of the Court (including for
this purpose service over one or more periods);
(b)
in relation to a selection commission, the seniority of the territorial
judges is to be determined according to length of service in the office
15
by virtue of which each is, or would be, a member of the commission
(including for this purpose service over one or more periods).
      (3)
Service as a Lord of Appeal in Ordinary counts as service as a judge of the
Court for the purposes of sub-paragraph (2).
Part 2
20
Dissolution
10
A selection commission is dissolved if the Minister notifies a selection made
by the commission.
11    (1)
A selection commission is dissolved if—
(a)
a member of the commission dies,
25
(b)
a person nominated in accordance with paragraph 6 resigns his
membership of the commission, or
(c)
the Minister gives the commission notice that it appears to him that
a member of the commission is incapacitated from continuing to
serve as a member.
30
      (2)
Where sub-paragraph (1) applies, the Minister must convene a new selection
commission as soon as practicable after dissolution.
12    (1)
A selection commission is dissolved if—
(a)
a person who is a member of that commission by virtue of holding
judicial office ceases to hold that office,
35
(b)
a person nominated in accordance with paragraph 6 ceases to be a
member of a Commission or Board referred to in paragraph 1(1)(c),
or
(c)
every person nominated in accordance with paragraph 6 who was
non-legally qualified at the time of his nomination ceases to be non-
40
legally qualified.
      (2)
Where sub-paragraph (1) applies, the Minister must convene a new selection
commission as soon as practicable after dissolution.

Constitutional Reform Bill [HL]
Schedule 7 — Supreme Court selection commissions
Part 3 — Duty to convene commission: special rules
161

Part 3
Duty to convene commission: special rules
Selection commission for the office of Deputy President
13    (1)
Any duty imposed on the Minister under this Act to convene a selection
commission for the office of Deputy President does not apply if any of the
5
following conditions are met at the time when the Minister should convene
that commission—
(a)
a selection commission for the office of President has been convened
and not dissolved;
(b)
the Minister is under a duty to convene such a selection commission.
10
      (2)
Where sub-paragraph (1) applies, the Minister must convene a selection
commission for the office of Deputy President as soon as practicable after the
Minister notifies a selection made by a selection commission in respect of the
vacancy in the office of President.
      (3)
Sub-paragraph (1) applies to the duty under sub-paragraph (2) to convene a
15
commission as it applies to all other such duties.
Selection commission for the office of judge
14    (1)
Any duty imposed on the Minister under this Act to convene a selection
commission for the office of judge does not apply if any of the following
conditions are met at the time when the Minister should convene that
20
commission—
(a)
a selection commission for the office of President has been convened
and not dissolved;
(b)
the Minister is under a duty to convene such a selection commission;
(c)
a selection commission for the office of Deputy President has been
25
convened and not dissolved;
(d)
the Minister is under a duty to convene such a selection commission.
      (2)
Where sub-paragraph (1) applies, the Minister must convene a selection
commission for the office of judge as soon as practicable after the Minister
notifies a selection made by a selection commission in respect of the vacancy
30
in the office of President or Deputy President.
      (3)
Sub-paragraph (1) applies to the duty under sub-paragraph (2) to convene a
commission as it applies to all other such duties.