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 3 — Discipline
43

(2)
The regulations—
(a)
may require a decision as to the exercise of functions under section 94,
or functions mentioned in subsection (1) of that section, to be taken in
accordance with findings made pursuant to prescribed procedures;
(b)
may require that prescribed steps be taken by the Lord Chief Justice or
5
the Minister in exercising those functions or before exercising them.
(3)
The regulations may provide for any prescribed requirement not to apply if the
Lord Chief Justice and the Minister so agree.
(4)
Where the regulations impose any requirement on the office holder under
investigation or on a complainant, a person contravening the requirement does
10
not incur liability other than liability to such procedural penalty if any (which
may include the suspension or dismissal of a complaint)—
(a)
as may be prescribed by the regulations, or
(b)
as may be determined by the Lord Chief Justice and the Minister or
either of them in accordance with provisions so prescribed.
15
(5)
The regulations may make different provision for different purposes.
(6)
Nothing in this section limits the generality of section 96.
98
Procedural rules
(1)
Regulations under section 96 may provide for provision of a prescribed
description that may be included in the regulations to be made instead by rules
20
made by the Lord Chief Justice with the agreement of the Minister.
(2)
But the provision that may be made by rules does not include—
(a)
provision within section 97(2);
(b)
provision made for the purposes of section 97(4).
(3)
The rules are to be published in such manner as the Lord Chief Justice may
25
determine with the agreement of the Minister.
99
Extension of discipline provisions to other offices
(1)
This Chapter applies in relation to an office designated by the Minister under
this section as it would apply if the office were listed in Schedule 12.
(2)
The Minister may by order designate any office, not listed in Schedule 12, the
30
holder of which he has power to remove from office.
(3)
An order under this section may be made only with the agreement of the Lord
Chief Justice.
Complaints and references
100
Investigations by the Ombudsman relating to conduct
35
(1)
Subsections (2) and (3) apply to a complaint by a person within subsection (4)
of—
(a)
a failure by the Lord Chief Justice, the Minister or any other person to
comply with prescribed procedures, or

Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 3 — Discipline
44

(b)
other maladministration in an investigation or determination to which
such procedures apply.
(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.
5
(4)
The persons who may make a complaint under this section are these—
(a)
the judicial office holder who was the subject of the investigation or
determination concerned;
(b)
a complainant under regulations under section 96.
(5)
Subsection (1) does not apply to a complaint such as is mentioned there if it is
10
made to the Ombudsman more than 28 days after the latest of —
(a)
the matter complained of;
(b)
the complainant being notified of the conclusion or other termination
of an investigation to which the complaint relates;
(c)
the complainant being notified of a determination to which the
15
complaint relates.
(6)
A complaint under this section must be in a form approved by the
Ombudsman.
101
Report and recommendations
(1)
The Ombudsman must prepare a report on any complaint he has investigated
20
under section 100.
(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
25
Lord Chief Justice or the Minister as a result of the complaint.
(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.
30
102
Report procedure
(1)
This section applies to a report under section 101.
(2)
The Ombudsman must submit a draft of the report to the Lord Chief Justice
and to the Minister.
(3)
In finalising the report the Ombudsman—
35
(a)
must have regard to any proposal by the Lord Chief Justice or the
Minister for changes in the draft report;
(b)
must include in the report a statement of any such proposal not given
effect to.
(4)
The report must be signed by the Ombudsman.
40

Constitutional Reform Bill [HL]
Part 4 — Judicial appointments and discipline
Chapter 4 — Interpretation of Part 4
45

(5)
The Ombudsman must send the report in duplicate to the Lord Chief Justice
and to the Minister.
(6)
The Ombudsman must send a copy of the report to the complainant, but that
copy must not include information—
(a)
which relates to an identified or identifiable individual other than the
5
complainant, and
(b)
whose disclosure by the Ombudsman to the complainant would (apart
from this subsection) be contrary to section 111.
103
References to the Ombudsman relating to conduct
(1)
The Ombudsman must investigate any matter referred to him by the Lord
10
Chief Justice or the Minister relating to an investigation or determination to
which prescribed procedures apply.
(2)
The matter may relate to the investigation or determination of a particular
complaint or complaints of any description.
(3)
The Ombudsman must report to the Lord Chief Justice and the Minister on any
15
investigation under this 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.
20
(5)
The report must be signed by the Ombudsman.
Chapter 4
Interpretation of Part 4
104
Interpretation of Part 4
In this Part—
25
“appoint” includes nominate or designate (and “appointment” is to be
read accordingly);
the “Commission” means the Judicial Appointments Commission;
“Head of Division” means any of these—
(a)
the Master of the Rolls;
30
(b)
the President of the Queen’s Bench Division;
(c)
the President of the Family Division;
(d)
the Chancellor of the High Court;
“high judicial office” has the meaning given by section 54;
“lay member” of the Commission has the meaning given by paragraph 4
35
of Schedule 10;
“Lord Chief Justice”, unless otherwise stated, means the Lord Chief
Justice of England and Wales;
“office” includes a position of any description;
the “Ombudsman” means the Judicial Appointments and Conduct
40
Ombudsman;

Constitutional Reform Bill [HL]
Part 5 — Judicial Discipline: Northern Ireland
46

“prescribed” means prescribed by regulations under section 96 or by rules
under section 98.
Part 5
Judicial Discipline: Northern Ireland
105
Removal from most senior judicial offices
5
In the Judicature (Northern Ireland) Act 1978 (c. 23) before section 13 insert—
"12B
Tenure of office
(1)
The Lord Chief Justice, Lords Justices of Appeal and judges of the High
Court hold office during good behaviour (subject to section 26 of, and
Schedule 7 to, the Judicial Pensions and Retirement Act 1993).
10
(2)
Her Majesty may on an address presented to Her Majesty by both
Houses of Parliament remove a person from office as Lord Chief
Justice, a Lord Justice of Appeal or a judge of the High Court.
(3)
A motion for the presentation of an address to Her Majesty for the
removal of a person from any of those offices may be made—
15
(a)
to the House of Commons only by the Prime Minister; and
(b)
to the House of Lords only by the Lord Chancellor.
(4)
Neither the Prime Minister nor the Lord Chancellor may make a
motion for the presentation of such an address unless a tribunal
convened under section 107 of the Constitutional Reform Act 2005 has
20
reported to the Lord Chancellor recommending that the person be
removed from the office on the ground of misbehaviour.
(5)
The Prime Minister shall lay a copy of the report before the House of
Commons before making a motion for the presentation of an address in
that House; and the Lord Chancellor shall lay a copy of it before the
25
House of Lords before making such a motion in that House.
(6)
If the Prime Minister and Lord Chancellor are considering the making
of motions for the presentation of an address to Her Majesty in relation
to the Lord Chief Justice, the Prime Minister may suspend him from
office; and if they are considering the making of such motions in
30
relation to a Lord Justice of Appeal or a judge of the High Court the
Prime Minister may suspend him from office with the agreement of the
Lord Chief Justice.
(7)
If a person is suspended from an office under subsection (6), he may not
perform any of the functions of the office (but his other rights as holder
35
of the office are unaffected).”
106
Removal from listed judicial offices
(1)
A person holding a listed judicial office other than as a judge of the High Court
may be removed from office (and suspended from office pending a decision
whether to remove him) but only in accordance with this section.
40
(2)
The power to remove or suspend him is exercisable by the Lord Chancellor.

Constitutional Reform Bill [HL]
Part 5 — Judicial Discipline: Northern Ireland
47

(3)
He may only be removed if a tribunal convened under section 107 has reported
to the Lord Chancellor recommending that he be removed on the ground of
misbehaviour or inability to perform the functions of the office.
(4)
He may only be suspended if the tribunal, at any time when it is considering
whether to recommend his removal, has recommended to the Lord Chancellor
5
that he be suspended.
(5)
He may not be removed or suspended except after consultation with the Lord
Chief Justice.
(6)
If he is suspended he may not perform any of the functions of the office until
the decision whether to remove him has been taken (but his other rights as
10
holder of the office are unaffected).
107
Tribunals for considering removal
(1)
A tribunal to consider the removal of the Lord Chief Justice may be convened
by the Lord Chancellor.
(2)
A tribunal to consider the removal of the holder of any other protected judicial
15
office may be convened—
(a)
by the Lord Chancellor, after consulting the Lord Chief Justice, or
(b)
by the Lord Chief Justice, after consulting the Lord Chancellor.
(3)
A tribunal to consider the removal of the Lord Chief Justice or a Lord Justice of
Appeal may not be convened unless the Prime Minister has been consulted.
20
(4)
A tribunal to consider the removal of the Lord Chief Justice, a Lord Justice of
Appeal or a judge of the High Court is to consist of—
(a)
a person who holds high judicial office within the meaning of Part 3
and does not hold (and has never held) the office of Lord Chief Justice,
Lord Justice of Appeal or judge of the High Court,
25
(b)
a person who is, or has been, a judge of the Court of Appeal of England
and Wales or the Inner House of the Court of Session, and
(c)
a person who does not hold (and has never held) a protected judicial
office and is not (and has never been) a barrister or solicitor.
(5)
A tribunal to consider the removal of the holder of any other protected judicial
30
office is to consist of—
(a)
a person who holds, or has held, the office of Lord Chief Justice or Lord
Justice of Appeal,
(b)
a person who holds the office of judge of the High Court, and
(c)
a person who does not hold (and has never held) a protected judicial
35
office and is not (and has never been) a barrister or solicitor.
(6)
The chairman of a tribunal is the person mentioned in paragraph (a) of
subsection (4) or (5).
(7)
The selection of the persons to be the members of a tribunal under paragraphs
(a) and (b) of subsection (4) is to be made by the Lord Chancellor, after
40
consultation with—
(a)
the Lord Chief Justice (unless the tribunal is to consider his removal
from office),
(b)
the President of the Supreme Court of the United Kingdom,
(c)
the Lord Chief Justice of England and Wales, and
45

Constitutional Reform Bill [HL]
Part 6 — Other provisions relating to the judiciary
48

(d)
the Lord President of the Court of Session.
(8)
The selection of the persons to be the members of a tribunal under paragraphs
(a) and (b) of subsection (5) is to be made by the Lord Chief Justice.
(9)
The selection of the person who is to be the member of a tribunal under
paragraph (c) of subsection (4) or (5) is to be made by the Lord Chancellor.
5
(10)
The procedure of a tribunal is to be determined by the Lord Chief Justice except
where—
(a)
the office of Lord Chief Justice is vacant,
(b)
he is not available, or
(c)
the tribunal is to consider his removal from office;
10

and in such a case its procedure is to be determined by its chairman.
(11)
The Lord Chancellor may pay to a member of a tribunal any such allowances
or fees as he may determine.
108
Interpretation of Part 5
In this Part—
15
“listed judicial office” means an office listed in Schedule 1 to the Justice
(Northern Ireland) Act 2002 (c. 26);
“Lord Chief Justice”, unless otherwise stated, means the Lord Chief
Justice of Northern Ireland;
“Lord Justice of Appeal” means a person styled as such under section 3 of
20
the Judicature (Northern Ireland) Act 1978 (c. 23);
“protected judicial office” means the office of Lord Chief Justice, the office
of Lord Justice of Appeal or a listed judicial office.
Part 6
Other provisions relating to the judiciary
25
109
Parliamentary disqualification
(1)
In Part 1 of Schedule 1 to the House of Commons Disqualification Act 1975
(c. 24) (judicial offices disqualifying for membership) at the beginning insert—

“Judge of the Supreme Court.”
(2)
In Part 1 of Schedule 1 to the Northern Ireland Assembly Disqualification Act
30
1975 (c. 25) (judicial offices disqualifying for membership) at the beginning
insert—

“Judge of the Supreme Court.”
(3)
A member of the House of Lords is, while he holds any disqualifying judicial
office, disqualified for sitting or voting in—
35
(a)
the House of Lords,
(b)
a committee of that House, or
(c)
a joint committee of both Houses.
(4)
In subsection (3) “disqualifying judicial office” means any of the judicial offices
specified in—
40

Constitutional Reform Bill [HL]
Part 7 — General
49

(a)
Part 1 of Schedule 1 to the House of Commons Disqualification Act
1975, or
(b)
Part 1 of Schedule 1 to the Northern Ireland Assembly Disqualification
Act 1975.
(5)
A member of the House of Lords who is disqualified under subsection (3) is not
5
for that reason disqualified for receiving a writ of summons to attend that
House, but any such writ is subject to that subsection.
110
Judicial Committee of the Privy Council
Schedule 13 contains amendments about the Judicial Committee of the Privy
Council.
10
Part 7
General
111
Confidentiality
(1)
A person who obtains confidential information, or to whom confidential
information is provided, under or for the purposes of a relevant provision
15
must not disclose it except with lawful authority.
(2)
These are the relevant provisions—
(a)
sections 23 to 28;
(b)
Part 4;
(c)
regulations and rules under Part 4.
20
(3)
Information is confidential if it relates to an identified or identifiable individual
(a “subject”).
(4)
Confidential information is disclosed with lawful authority only if and to the
extent that any of the following applies—
(a)
the disclosure is with the consent of each person who is a subject of the
25
information (but this is subject to subsection (5));
(b)
the disclosure is for (and is necessary for) the exercise by any person of
functions under a relevant provision;
(c)
the disclosure is for (and is necessary for) the exercise of functions
under section 11(3A) of the Supreme Court Act 1981 (c. 54) or a decision
30
whether to exercise them;
(d)
the disclosure is for (and is necessary for) the exercise of powers to
which section 94 applies, or a decision whether to exercise them;
(e)
the disclosure is required, under rules of court or a court order, for the
purposes of legal proceedings of any description.
35
(5)
An opinion or other information given by one identified or identifiable
individual (A) about another (B)—
(a)
is information that relates to both;
(b)
must not be disclosed to B without A’s consent.
(6)
This section does not prevent the disclosure with the agreement of the Lord
40
Chancellor and the Lord Chief Justice of information as to disciplinary action
taken in accordance with a relevant provision.