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
36

82
Withdrawal of request
(1)
The Minister may not withdraw a request if a recommendation or appointment
has been made in pursuance of a selection made on the request.
(2)
At any other time he may withdraw a request after consulting the Lord Chief
Justice.
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(3)
Withdrawal of a request must be by notice in writing to the Commission.
(4)
The notice must state the Minister’s reasons for withdrawing the request.
(5)
If a request is withdrawn—
(a)
sections 76 to 81 cease to apply in relation to it, and
(b)
any selection made on it is to be disregarded.
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(6)
Withdrawal of a request does not affect the power of the Minister to make
another request in the same or different terms.
(7)
In this section “request” means a request under section 75.
83
Scotland and Northern Ireland
(1)
This section applies to consultation that a person is required to undertake
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under any of these provisions—
(a)
section 75(6);
(b)
section 76(3);
(c)
section 82(2).
(2)
If the consultation appears to that person to relate to the appointment (or a
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recommendation for the appointment) of a person to exercise functions wholly
or mainly in Scotland, any reference in the provision to the Lord Chief Justice
is to be read as a reference to the Lord President of the Court of Session.
(3)
If the consultation appears to that person to relate to the appointment (or a
recommendation for the appointment) of a person to exercise functions wholly
25
or mainly in Northern Ireland, any reference in the provision to the Lord Chief
Justice is to be read as a reference to the Lord Chief Justice of Northern Ireland.
Assistance in connection with other appointments
84
Assistance in connection with other appointments
(1)
The Commission must provide any assistance requested by the Minister under
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this section.
(2)
The Minister may request assistance for the making by him or by another
Minister of the Crown of an appointment or recommendation for appointment,
other than one to which section 23 or a provision of this Part applies.
(3)
The Minister may only request assistance under this section if it appears to him
35
appropriate because of the Commission’s other functions under this Part and
the nature of the appointment concerned.
(4)
Without limiting the assistance that may be requested, it may include—
(a)
determining a selection process;
(b)
applying a selection process;
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Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 2 — Appointments
37

(c)
selecting a person;
(d)
selecting a short list;
(e)
advice on any of those matters.
(5)
Before making a request the Minister must consult—
(a)
the Lord Chief Justice, and
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(b)
the Commission.
(6)
In this section “appointment” includes the conferring of any public function.
(7)
In this Part references to selection under this Part include references to
selection by the Commission pursuant to a request under this section (and
references to a person selected under this Part are to be read accordingly).
10
Complaints and references
85
Complaints: interpretation
(1)
This section applies for the purposes of this Part.
(2)
A Commission complaint is a complaint by a qualifying complainant of
maladministration by the Commission or a committee of the Commission.
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(3)
A departmental complaint is a complaint by a qualifying complainant of
maladministration by the Minister or his department in connection with any of
the following—
(a)
selection under this Part;
(b)
recommendation for or appointment to an office listed in Schedule 12.
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(4)
A qualifying complainant is a complainant who claims to have been adversely
affected, as an applicant for selection or as a person selected under this Part, by
the maladministration complained of.
86
Complaints to the Commission or the Minister
(1)
The Commission must make arrangements for investigating any Commission
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complaint made to it.
(2)
The Minister must make arrangements for investigating any departmental
complaint made to him.
(3)
Arrangements under this section need not apply to a complaint made more
than 28 days after the matter complained of.
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87
Complaints to the Ombudsman
(1)
Subsections (2) and (3) apply to a complaint which the complainant—
(a)
has made to the Commission or the Minister in accordance with
arrangements under section 86, and
(b)
makes to the Ombudsman not more than 28 days after being notified of
35
the Commission’s or Minister’s decision on the complaint.
(2)
If the Ombudsman considers that investigation of the complaint is not
necessary, he must inform the complainant.
(3)
Otherwise he must investigate the complaint.

Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 2 — Appointments
38

(4)
The Ombudsman may investigate a complaint which the complainant—
(a)
has made to the Commission or the Minister in accordance with
arrangements under section 86, and
(b)
makes to the Ombudsman at any time.
(5)
The Ombudsman may investigate a transferred complaint made to him, and no
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such complaint may be made under the Judicial Appointments Order after the
commencement of this section.
(6)
The Judicial Appointments Order is the Judicial Appointments Order in
Council 2001, which sets out the functions of Her Majesty’s Commissioners for
Judicial Appointments.
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(7)
A transferred complaint is a complaint that lay to those Commissioners
(whether or not it was made to them) in respect of the application of
appointment procedures before the commencement of this section, but not a
complaint that those Commissioners had declined to investigate or on which
they had concluded their investigation.
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(8)
Any complaint to the Ombudsman under this section must be in a form
approved by him.
88
Report and recommendations
(1)
The Ombudsman must prepare a report on any complaint he has investigated
under section 87.
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(2)
The report must state—
(a)
what findings the Ombudsman has made;
(b)
whether he considers the complaint should be upheld in whole or part;
(c)
if he does, what if any action he recommends should be taken by the
Commission or the Minister as a result of the complaint.
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(3)
The recommendations that may be made under subsection (2)(c) include
recommendations for the payment of compensation.
(4)
Such a recommendation must relate to loss which appears to the Ombudsman
to have been suffered by the complainant as a result of maladministration and
not as a result of any failure to be appointed to an office to which the complaint
30
related.
89
Report procedure
(1)
This section applies to a report under section 88.
(2)
The Ombudsman must submit a draft of the report—
(a)
to the Minister, and
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(b)
if the complaint was a Commission complaint, to the Commission.
(3)
In finalising the report the Ombudsman—
(a)
must have regard to any proposal by the Minister or the Commission
for changes in the draft report;
(b)
must include in the report a statement of any such proposal not given
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effect to.
(4)
The report must be signed by the Ombudsman.

Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 2 — Appointments
39

(5)
If the complaint was a Commission complaint the Ombudsman must send the
report in duplicate to the Minister and the Commission.
(6)
Otherwise the Ombudsman must send the report to the Minister.
(7)
The Ombudsman must send a copy of the report to the complainant, but that
copy must not include information—
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(a)
which relates to an identified or identifiable individual other than the
complainant, and
(b)
whose disclosure by the Ombudsman to the complainant would (apart
from this subsection) be contrary to section 111.
90
References by the Minister
10
(1)
If the Minister refers to the Ombudsman any matter relating to the procedures
of the Commission or a committee of the Commission, the Ombudsman must
investigate it.
(2)
The matter may relate to such procedures generally or in a particular case.
(3)
The Ombudsman must report to the Minister on any investigation under this
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section.
(4)
The report must state—
(a)
what findings the Ombudsman has made;
(b)
what if any action he recommends should be taken by any person in
relation to the matter.
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(5)
The report must be signed by the Ombudsman.
91
Information
The Commission and the Minister must provide the Ombudsman with such
information as he may reasonably require relating to the subject matter of any
investigation by him under section 87 or 90.
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Miscellaneous
92
Consultation on appointment of lay justices
In section 10 of the Courts Act 2003 (c. 39) (appointment of lay justices etc.) after
subsection (2) insert—
“(2A)
The Lord Chancellor must ensure that arrangements for the exercise, so
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far as affecting any local justice area, of functions under subsections (1)
and (2) include arrangements for consulting persons appearing to him
to have special knowledge of matters relevant to the exercise of those
functions in relation to that area.”
93
Disclosure of information to the Commission
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(1)
Information which is held by or on behalf of a permitted person (whether
obtained before or after this section comes into force) may be disclosed to the
Commission or a committee of the Commission for the purposes of selection
under this Part.

Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 3 — Discipline
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(2)
A disclosure under this section is not to be taken to breach any restriction on
the disclosure of information (however imposed).
(3)
But nothing in this section authorises the making of a disclosure—
(a)
which contravenes the Data Protection Act 1998 (c. 29), or
(b)
which is prohibited by Part 1 of the Regulation of Investigatory Powers
5
Act 2000 (c. 23).
(4)
This section does not affect a power to disclose which exists apart from this
section.
(5)
The following are permitted persons—
(a)
a chief officer of police of a police force in England and Wales;
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(b)
a chief constable of a police force in Scotland;
(c)
the Chief Constable of the Police Service of Northern Ireland;
(d)
the Director General of the National Criminal Intelligence Service;
(e)
the Director General of the National Crime Squad;
(f)
the Commissioners of Inland Revenue;
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(g)
the Commissioners of Customs and Excise.
(6)
The Minister may by order designate as permitted persons other persons who
exercise functions which he considers are of a public nature (including a body
or person discharging regulatory functions in relation to any description of
activities).
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(7)
Information must not be disclosed under this section on behalf of the
Commissioners of Inland Revenue or on behalf of the Commissioners of
Customs and Excise unless the Commissioners concerned authorise the
disclosure.
(8)
The power to authorise a disclosure under subsection (7) may be delegated
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(either generally or for a specific purpose)—
(a)
in the case of the Commissioners of Inland Revenue, to an officer of the
Board of Inland Revenue,
(b)
in the case of the Commissioners of Customs and Excise, to a customs
officer.
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(9)
For the purposes of this section a customs officer is a person commissioned by
the Commissioners of Customs and Excise under section 6(3) of the Customs
and Excise Management Act 1979 (c. 2).
Chapter 3
Discipline
35
Procedures
94
Disciplinary powers
(1)
Any power of the Minister to remove a person from an office listed in Schedule
12 is exercisable only after the Minister has complied with prescribed
procedures (as well as any other requirements to which the power is subject).
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Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 3 — Discipline
41

(2)
The Lord Chief Justice may exercise any of the following powers but only with
the agreement of the Minister and only after complying with prescribed
procedures.
(3)
The Lord Chief Justice may give a judicial office holder any of the following for
disciplinary purposes—
5
(a)
advice;
(b)
a warning;
(c)
a formal reprimand.
(4)
He may suspend a person from a judicial office for any period during which
any of the following applies—
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(a)
the person is subject to criminal proceedings;
(b)
the person is serving a sentence imposed in criminal proceedings;
(c)
the person has been convicted of an offence and is subject to
disciplinary procedures to determine whether he should be removed
from office.
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(5)
He may suspend a person from a judicial office for any period if—
(a)
the person has been convicted of a criminal offence,
(b)
it has been determined under prescribed procedures that the person
should not be removed from office, and
(c)
it appears to the Lord Chief Justice with the agreement of the Minister
20
that the suspension is necessary for maintaining confidence in the
judiciary.
(6)
He may suspend a person from office as a senior judge for any period during
which the person is subject to proceedings for an Address.
(7)
He may suspend the holder of an office listed in Schedule 12 for any period
25
during which the person—
(a)
is under investigation for an offence, or
(b)
is subject to disciplinary procedures.
(8)
While a judicial office holder of any description is suspended under this
section he may not exercise any functions of his office.
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95
Disciplinary powers: interpretation
(1)
This section has effect for the purposes of section 94.
(2)
A person is subject to criminal proceedings if in any part of the United
Kingdom proceedings against him for an offence have been begun and have
not come to an end, and the times when proceedings are begun and come to an
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end for the purposes of this subsection are such as may be prescribed.
(3)
A person is subject to proceedings for an Address from the time when notice
of a motion is given in each House of Parliament for an Address for the
removal of the person from office, until the earliest of the following events—
(a)
either notice is withdrawn;
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(b)
either motion is amended so that it is no longer a motion for an address
for removal of the person from office;
(c)
either motion is withdrawn, lapses or is disagreed to;
(d)
where an Address is presented by each House, a message is brought to
each House from Her Majesty in answer to the Address.
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Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 3 — Discipline
42

(4)
“Judicial office” means—
(a)
office as a senior judge, or
(b)
an office listed in Schedule 12;

and “judicial office holder” means the holder of a judicial office.
(5)
“Senior judge” means any of these—
5
(a)
Master of the Rolls;
(b)
President of the Queen’s Bench Division;
(c)
President of the Family Division;
(d)
Chancellor of the High Court;
(e)
Lord Justice of Appeal;
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(f)
puisne judge of the High Court.
(6)
“Sentence” includes any sentence other than a fine (and “serving” is to be read
accordingly).
(7)
“Subject to disciplinary procedures” and “under investigation for an offence”
have such meaning as may be prescribed.
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96
Regulations about procedures
(1)
The Lord Chief Justice may, with the agreement of the Minister, make
regulations providing for the procedures that are to be followed in the
investigation and determination of allegations by any person of misconduct by
judicial office holders.
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(2)
The regulations are to be made in the form of a statutory instrument to which
the Statutory Instruments Act 1946 (c. 36) applies as if the regulations were
made by a Minister of the Crown.
(3)
Any such statutory instrument is subject to annulment in pursuance of a
resolution of either House of Parliament.
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97
Contents of regulations
(1)
Regulations under section 96 may include provision as to any of the
following—
(a)
circumstances in which an investigation must or may be undertaken
(on the making of a complaint or otherwise);
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(b)
steps to be taken by a complainant before a complaint is to be
investigated;
(c)
the conduct of an investigation, including steps to be taken by the office
holder under investigation or by a complainant or other person;
(d)
time limits for taking any step and procedures for extending time
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limits;
(e)
persons by whom an investigation or part of an investigation is to be
conducted;
(f)
matters to be determined by the Lord Chief Justice, the Minister, the
office holder under investigation or any other person;
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(g)
requirements as to records of investigations;
(h)
requirements as to confidentiality of communications or proceedings;
(i)
requirements as to the publication of information or its provision to any
person.