Constitutional Reform Bill [HL]

House of Commons

Session 2004 - 05
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Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Schedule 10 — The Judicial Appointments Commission
Part 2 — The Commission
197

      (3)
The validity of proceedings of the Commission or a committee or sub-
committee is not affected by—
(a)
a vacancy among the members, or
(b)
a defect in the appointment of a member.
Staff
5
23    (1)
The Commission—
(a)
must appoint a chief executive, and
(b)
may appoint such other staff as it considers necessary to assist in the
performance of its functions.
      (2)
The Commission must not appoint a person as chief executive unless the
10
Minister approves the appointment.
      (3)
Staff are to be—
(a)
appointed on terms and conditions determined by the Commission,
and approved by the Minister, and
(b)
paid by the Commission in accordance with provision made by or
15
under the terms of appointment.
      (4)
In determining the terms and conditions the Commission must have regard
to the desirability of keeping remuneration and the other terms and
conditions broadly in line with those applying to employment in the civil
service of the State.
20
      (5)
In Schedule 1 to the Superannuation Act 1972 (c. 11) (kinds of employment
to which a scheme under section 1 of the Act may apply), at the end of the
list of “Royal Commissions and other Commissions” insert—
“Judicial Appointments Commission.”
      (6)
The Commission must pay to the Minister for the Civil Service, at such times
25
as he may direct, such sums as he may determine in respect of any increase
attributable to sub-paragraph (5) in the sums payable out of money
provided by Parliament under the Superannuation Act 1972.
      (7)
Staff of the Commission are not to be regarded as—
(a)
servants or agents of the Crown, or
30
(b)
enjoying any status, immunity or privilege of the Crown.
Arrangements for assistance
24    (1)
The Commission may make arrangements with such persons as it considers
appropriate for assistance to be provided to it.
      (2)
Arrangements may include the paying of fees to such persons.
35
      (3)
No arrangements may be made under this paragraph unless approved by
the Minister.
Appointments and arrangements by the Minister
25    (1)
The Minister may appoint a person to serve as chief executive until the first
appointment under paragraph 23(1)(a) takes effect.
40
      (2)
A chief executive serving under sub-paragraph (1) may incur expenditure
and do other things (including appointing staff and making arrangements

Constitutional Reform Bill [HL]
Schedule 10 — The Judicial Appointments Commission
Part 2 — The Commission
198

for assistance under paragraph 24) in the name and on behalf of the
Commission—
(a)
before the membership of the Commission is first constituted in
accordance with paragraph 1, and
(b)
thereafter, until the Commission determines otherwise.
5
      (3)
A chief executive’s powers under sub-paragraph (2) are exercisable subject
to any directions given to him by the Minister.
26    (1)
The Minister may—
(a)
appoint persons to serve as members of the Commission’s staff;
(b)
make arrangements in the name and on behalf of the Commission for
10
other assistance to be provided to the Commission.
      (2)
The Minister may not exercise his powers under sub-paragraph (1) later
than—
(a)
the end of 3 years after the day on which the Commission is first
constituted in accordance with paragraph 1, or
15
(b)
such earlier time as the Commission may determine.
      (3)
If there is a chief executive of the Commission the Minister may not exercise
his powers under sub-paragraph (1) without the agreement of the chief
executive.
Power to transfer staff to employment of the Commission
20
27    (1)
The Minister may by regulations provide for the employment of any
relevant person to be transferred to the Commission.
      (2)
A relevant person is any person who, immediately before the date
prescribed in regulations under sub-paragraph (1), is—
(a)
employed in the civil service of the State, and
25
(b)
providing assistance to the Commission in pursuance of
arrangements made under paragraph 24 or 26.
      (3)
But a person is not a relevant person if—
(a)
his employment in the civil service ends on the day immediately
before the date referred to in sub-paragraph (2), or
30
(b)
he is withdrawn from work with the Commission with effect from
that date.
      (4)
Before making any regulations under this paragraph the Minister must
consult such organisations as appear to him to represent the interests of
persons likely to be affected by the regulations.
35
      (5)
The Minister may only exercise his power under sub-paragraph (1)—
(a)
before the membership of the Commission is first constituted in
accordance with paragraph 1, and
(b)
with the agreement of the Commission, during the period of 3 years
beginning with the day on which the Commission is first constituted
40
in accordance with that paragraph.
Delegation
28    (1)
The Commission may delegate functions to—
(a)
any of its staff,

Constitutional Reform Bill [HL]
Schedule 10 — The Judicial Appointments Commission
Part 2 — The Commission
199

(b)
any person with whom arrangements are made under paragraph 24
or 26, or
(c)
any person providing assistance to the Commission in pursuance of
such arrangements.
      (2)
A committee, a sub-committee or the chief executive may delegate functions
5
(including functions delegated to them or him) to any of the persons listed
at sub-paragraph (1).
      (3)
Sub-paragraphs (1) and (2) do not apply to the functions of the Commission,
or of a selection panel appointed under section 61 or 68, of making a
selection under this Part of this Act.
10
Delegation and contracting out of superannuation functions
29    (1)
Section 1(2) of the Superannuation Act 1972 (c. 11) (delegation of functions
relating to civil service superannuation schemes by Minister for the Civil
Service to another officer of the Crown etc.) has effect as if the reference to
an officer of the Crown other than a Minister included a reference to the
15
Commission’s chief executive.
      (2)
Any administration function conferred on the chief executive under section
1(2) of that Act (in accordance with sub-paragraph (1)) may be exercised by,
or by employees of, any person authorised by the chief executive.
      (3)
“Administration function” means a function of administering schemes—
20
(a)
made under section 1 of that Act, and
(b)
from time to time in force.
      (4)
The chief executive may, under sub-paragraph (2), authorise a person to
exercise administrative functions—
(a)
to their full extent or to a specified extent;
25
(b)
in all cases or in specified cases;
(c)
unconditionally or subject to specified conditions.
      (5)
An authorisation under sub-paragraph (2)—
(a)
is to be treated for all purposes as given by virtue of an order under
section 69 of the Deregulation and Contracting Out Act 1994 (c. 40)
30
(contracting out of functions of Ministers and office-holders);
(b)
may be revoked at any time by the Commission or the chief
executive.
Inspection of documents
30    (1)
The Commission must permit any person authorised by the Minister to
35
inspect or make copies of accounts or other documents which in the opinion
of the Minister relate to costs and expenditure of the Commission.
      (2)
The Commission must provide such explanation of accounts or documents
inspected or copied by any person under this paragraph as that person or the
Minister may require.
40
Financial provisions and directions
31    (1)
The Minister must pay to the Commission such sums as he may determine
are appropriate for, or in connection with, the exercise by it of its functions.

Constitutional Reform Bill [HL]
Schedule 10 — The Judicial Appointments Commission
Part 2 — The Commission
200

      (2)
The Minister may by direction require the Commission—
(a)
not to incur costs and expenditure in excess of a specified amount
without his consent;
(b)
to follow specified procedures in relation to its costs and
expenditure.
5
      (3)
A direction under sub-paragraph (2) may relate to all of the Commission’s
costs and expenditure, or to costs and expenditure of a specified description.
Accounts and audit
32    (1)
The Commission must keep proper accounts and proper records in relation
to them.
10
      (2)
The Commission must prepare a statement of accounts in respect of each
financial year.
      (3)
The statement must give a true and fair view of the state of the
Commission’s affairs at the end of the financial year, and of its income and
expenditure and cash flows in the financial year.
15
      (4)
The statement must be in compliance with any directions given by the
Minister with the Treasury’s consent as to the information to be contained in
the statement, the manner in which the information is to be presented or the
methods and principles according to which the statement is to be prepared.
      (5)
The Commission must send the statement to the Minister at such time as he
20
may direct.
      (6)
The Minister must, on or before 31 August in any year, send to the
Comptroller and Auditor General the statement prepared by the
Commission for the financial year last ended.
      (7)
The Comptroller and Auditor General must examine, certify and report on
25
the statement sent to him under sub-paragraph (6) and must lay copies of it
and of his report before each House of Parliament.
Reports
33    (1)
The Commission must, as soon as practicable after the end of each financial
year, provide to the Minister a report about the performance of its functions
30
during that year.
      (2)
After consulting the Lord Chief Justice, the Minister may by direction
require the Commission to deal, in reports or a particular report under sub-
paragraph (1), with matters specified in the direction.
      (3)
The Commission must, as soon as practicable after a direction by the
35
Minister under this sub-paragraph, provide to the Minister a report about
any matter or matters specified in the direction.
      (4)
The Minister must lay before each House of Parliament a copy of any report
provided to him under sub-paragraph (1).
      (5)
The Commission must publish any report once copies of it have been laid
40
under sub-paragraph (4).

Constitutional Reform Bill [HL]
Schedule 11 — The Judicial Appointments and Conduct Ombudsman
201

Documentary evidence
34
The application of the seal of the Commission is to be authenticated by the
signature of any Commissioner or member of staff of the Commission who
has been authorised (whether generally or specifically) for the purpose.
35
Any contract or instrument which, if entered into or executed by an
5
individual, would not need to be under seal, may be entered into or executed
on behalf of the Commission by any person who has been authorised
(whether generally or specifically) for the purpose.
36
A document purporting to be—
(a)
duly executed under the seal of the Commission, or
10
(b)
signed on behalf of the Commission,

is to be received in evidence and, unless the contrary is proved, taken to be
executed or signed in that way.
General
37    (1)
“Financial year” in this Schedule, means—
15
(a)
the period beginning with the date on which section 55 comes into
force and ending with the following 31 March, and
(b)
each successive period of twelve months.
      (2)
In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975
(c. 24) (bodies of which all members are disqualified) at the appropriate
20
place insert—

“The Judicial Appointments Commission.”.
      (3)
In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (c. 36) (other
public bodies and offices which are public authorities) at the appropriate
place insert—
25

“The Judicial Appointments Commission.”
Schedule 11
Section 56

The Judicial Appointments and Conduct Ombudsman
The Ombudsman
1     (1)
The Ombudsman is appointed by Her Majesty on the recommendation of
30
the Minister.
      (2)
A person may be appointed as the Ombudsman only if he has never been
any of these—
(a)
a practising barrister in England and Wales;
(b)
a practising solicitor of the Supreme Court of England and Wales;
35
(c)
a practising advocate in Scotland;
(d)
a practising solicitor in Scotland;
(e)
a practising member of the Bar of Northern Ireland;
(f)
a practising solicitor of the Supreme Court of Judicature of Northern
Ireland;
40

Constitutional Reform Bill [HL]
Schedule 11 — The Judicial Appointments and Conduct Ombudsman
202

(g)
the holder of an office listed in Schedule 12.
2     (1)
In this Schedule “practising” is to be read in accordance with sub-
paragraphs (2) and (3).
      (2)
A barrister in England and Wales, an advocate in Scotland or a member of
the Bar of Northern Ireland is practising if he is—
5
(a)
practising as such,
(b)
employed to give legal advice, or
(c)
providing legal advice under a contract for services.
      (3)
A solicitor of the Supreme Court, a solicitor in Scotland or a solicitor of the
Supreme Court of Judicature of Northern Ireland is practising if he is—
10
(a)
acting as such,
(b)
employed to give legal advice, or
(c)
providing legal advice under a contract for services.
Term of office etc. of Ombudsman
3     (1)
The Ombudsman must be appointed for a fixed period.
15
      (2)
But an appointment is subject to paragraphs 4 and 5.
4     (1)
A person—
(a)
may not be appointed as the Ombudsman for more than 5 years at a
time, and
(b)
may not hold office as the Ombudsman for periods (whether or not
20
consecutive) totalling more than 10 years.
5     (1)
The Ombudsman may at any time—
(a)
resign his office by notice in writing addressed to Her Majesty;
(b)
be removed from office by the Minister.
      (2)
The Minister may not remove the Ombudsman from office unless he is
25
satisfied that the Ombudsman—
(a)
has, within the preceding nine months, failed to discharge the
functions of his office for a continuous period of at least six months,
(b)
has been convicted of an offence,
(c)
is an undischarged bankrupt, or
30
(d)
is otherwise unfit to hold his office or unable to discharge its
functions.
Salary, allowances and expenses
6     (1)
The Minister may—
(a)
pay to the Ombudsman such remuneration, fees or expenses as the
35
Minister may determine;
(b)
pay, or make provision for the payment of, such pension, allowance
or gratuity as the Minister may determine to or in respect of a person
who is or has been the Ombudsman.
      (2)
If—
40
(a)
the Ombudsman ceases to hold office other than on the expiry of his
term of appointment, and

Constitutional Reform Bill [HL]
Schedule 11 — The Judicial Appointments and Conduct Ombudsman
203

(b)
it appears to the Minister that there are special circumstances that
would warrant the payment of compensation to him,

the Minister may make to or in respect of him a payment of such amount as
the Minister may determine.
Acting Ombudsman
5
7     (1)
The Minister may appoint a person to exercise the functions of the
Ombudsman if—
(a)
the Ombudsman’s office becomes vacant,
(b)
the Minister determines that the Ombudsman is incapable of
exercising his functions, or
10
(c)
the Ombudsman notifies the Minister that it would be inappropriate
for him to exercise any of his functions in connection with a
particular matter because of a possible conflict of interests or for any
other reason.
      (2)
But a person may be appointed under this paragraph only if he is eligible
15
under paragraph 1(2) to be appointed as Ombudsman.
      (3)
The Minister may—
(a)
pay to a person appointed under this paragraph such remuneration,
fees or expenses as the Minister may determine;
(b)
pay, or make provision for the payment of, such pension, allowance
20
or gratuity as the Minister may determine to or in respect of a person
who is or has been a person appointed under this paragraph.
      (4)
A person appointed under this paragraph is to exercise the functions of the
Ombudsman in accordance with the terms of his appointment.
      (5)
The Minister may end an appointment under this paragraph at any time.
25
      (6)
Otherwise any appointment of a person under this paragraph ends on the
earliest of—
(a)
that person’s ceasing to be eligible to be appointed as Ombudsman;
(b)
the expiry of the appointment in accordance with its terms and
conditions;
30
(c)
the date on which with the agreement of the Minister the
Ombudsman resumes the exercise of his functions;
(d)
the appointment of a new Ombudsman;
(e)
the end of twelve months beginning with the relevant date.
      (7)
The relevant date is—
35
(a)
if the appointment was under sub-paragraph (1)(a), the date when
the vacancy arose;
(b)
if the appointment was under sub-paragraph (1)(b), the date of the
Minister’s determination;
(c)
if the appointment was under sub-paragraph (1)(c), the date of the
40
notification.
Status of the Ombudsman
8
The person for the time being holding the office of the Ombudsman is by the
name of that office a corporation sole.