Constitutional Reform Bill [HL]

House of Commons

Session 2004 - 05
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Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 2 — Appointments
32

72
Exercise of powers to reject or require reconsideration
(1)
The power of the Minister under section 71 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 71 to require the selection panel to
5
reconsider a selection at stage 1 or 2 is exercisable only on the grounds that, in
the Minister’s opinion—
(a)
there is not enough evidence that the person is suitable for the office
concerned, or
(b)
there is evidence that the person is not the best candidate on merit.
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(3)
The Minister must give the selection panel reasons in writing for rejecting or
requiring reconsideration of a selection.
73
Selection following rejection or requirement to reconsider
(1)
If under section 71 the Minister rejects or requires reconsideration of a selection
at stage 1 or 2, the selection panel must select a person in accordance with this
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section.
(2)
If the Minister rejects a selection, the selection panel—
(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.
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(3)
If the Minister requires a selection to be reconsidered, the selection panel—
(a)
may select the same person or a different person, but
(b)
where the requirement is following a rejection, may not select the
person rejected.
(4)
The selection panel must inform the Minister of the person selected following
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a rejection or a requirement to reconsider.
(5)
Subsections (2) and (3) do not prevent a person being selected on a subsequent
request under section 67.
Puisne judges and other office holders
74
Selection of puisne judges and other office holders
30
(1)
Section 75 applies to—
(a)
a recommendation for an appointment to the office of puisne judge of
the High Court;
(b)
a recommendation for an appointment to an office listed in Part 1 of
Schedule 12 in exercise of Her Majesty’s function under the enactment
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listed opposite that office;
(c)
an appointment to an office listed in Part 2 or 3 of that Schedule in
exercise of the Minister’s function under the enactment listed opposite
that office.
(2)
The Minister may by order make any of the following amendments to Schedule
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12—

Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 2 — Appointments
33

(a)
an amendment which adds a reference to an enactment under which
appointments are made to an office;
(b)
an amendment which adds a reference to an office to which
appointments are made under an enactment;
(c)
an amendment consequential on the abolition or change of name of an
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office;
(d)
an amendment consequential on the substitution of one or more
enactments for an enactment under which appointments are made to
an office.
75
Request
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(1)
A recommendation or appointment to which this section applies may be made
only under section 78.
(2)
If there is a vacancy in the office of puisne judge of the High Court or in an
office listed in Part 1 of Schedule 12 the Minister must, unless the Lord Chief
Justice agrees otherwise, make a recommendation to fill the vacancy.
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(3)
If there is a vacancy in an office listed in Part 2 or 3 of that Schedule the Minister
must, unless the Lord Chief Justice agrees otherwise, make an appointment to
fill the vacancy.
(4)
For the purposes of subsections (2) and (3) a vacancy arises only on the holder
of an office vacating it after the commencement of this section.
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(5)
A request for the selection of a person to be recommended or appointed must
be made by the Minister to the Commission.
(6)
Before making a request the Minister must consult the Lord Chief Justice.
(7)
Sections 76 to 81 apply where the Minister makes a request under this section.
(8)
Those sections are subject to section 82 (withdrawal of request).
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76
Selection process
(1)
On receiving a request the Commission must—
(a)
determine the selection process to be applied,
(b)
apply the selection process, and
(c)
make a selection accordingly.
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(2)
But if or so far as the Commission decides that the selection process has not
identified candidates of sufficient merit for it to comply with subsection (1)(c),
section 81 applies and subsection (1)(c) does not apply.
(3)
At least once during any selection process (but before making a selection or a
decision under subsection (2)) the Commission must consult—
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(a)
the Lord Chief Justice; and
(b)
a person (other than the Lord Chief Justice) who has held the office for
which a selection is to be made or has other relevant experience.
(4)
Any selection under this section or section 80 must be of one person only (but
a request may be for a selection to be made for each of a number of
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appointments).

Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 2 — Appointments
34

77
Report
(1)
After complying with section 76 the Commission must submit a report to the
Minister.
(2)
The report must—
(a)
describe the selection process;
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(b)
state any selection made;
(c)
state any decision under section 76(2);
(d)
state any recommendation made in consultation under section 76(3) by
a person consulted;
(e)
give reasons in any case where the Commission has not followed such
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a recommendation;
(f)
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.
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78
The Minister’s options
(1)
This section refers to the following stages—

Stage 1:
where a person has been selected under section 76

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)
recommend or appoint the person selected;
(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)
recommend or appoint the person selected;
(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 recommend or appoint the person selected, unless
subsection (5) applies and he makes a recommendation or appointment under
it.
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(5)
If a person whose selection the Minister required to be reconsidered at stage 1
or 2 was not selected again at the next stage, the Minister may recommend or
appoint that person at stage 3.

Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 2 — Appointments
35

(6)
In this section references to recommending or appointing a person are
references to making the recommendation or appointment (as the case may be)
for which he has been selected.
79
Exercise of powers to reject or require reconsideration
(1)
The power of the Minister under section 78 to reject a selection at stage 1 or 2
5
is exercisable only on the grounds that, in the Minister’s opinion, the person
selected is not suitable for the office concerned or particular functions of that
office.
(2)
The power of the Minister under section 78 to require the Commission to
reconsider a selection at stage 1 or 2 is exercisable only on the grounds that, in
10
the Minister’s opinion—
(a)
there is not enough evidence that the person is suitable for the office
concerned or particular functions of that office, or
(b)
there is evidence that the person is not the best candidate on merit.
(3)
The Minister must give the Commission reasons in writing for rejecting or
15
requiring reconsideration of a selection.
80
Selection following rejection or requirement to reconsider
(1)
If under section 78 the Minister rejects or requires reconsideration of a selection
at stage 1 or 2, the selection panel must select a person in accordance with this
section.
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(2)
If the Minister rejects a selection, the Commission—
(a)
may not select the person rejected, and
(b)
where the rejection is following a requirement to reconsider, may not
select the person (if different) whose selection it reconsidered.
(3)
If the Minister requires a selection to be reconsidered, the Commission—
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(a)
may select the same person or a different person, but
(b)
where the requirement is following a rejection, may not select the
person rejected.
(4)
The Commission must inform the Minister of any person selected following a
rejection or a requirement to reconsider.
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(5)
Subsections (2) and (3) do not prevent a person being selected on a subsequent
request under section 75.
81
Reconsideration of decision not to select
(1)
The Minister may require the Commission to reconsider a decision that the
selection process has not identified candidates of sufficient merit for it to make
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a selection.
(2)
The Commission must inform the Minister of any person selected on
reconsideration under this section.
(3)
Sections 78 to 80 apply to such a person as if the Commission had selected him
instead of making the decision reconsidered.
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