cwh0103.393-399

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Committee of the whole House Proceedings: 1st March 2005
393

Constitutional Reform Bill–[ [], continued

Duty to fill vacancies (No. 3)

Mr Christopher Leslie

Added  NC15

To move the following Clause:—

‘(1)
The Lord Chancellor must make a recommendation to fill any vacancy in the

office of puisne judge of the High Court or in an office listed in Part 1 of Schedule

12.

(2)
The Lord Chancellor must make an appointment to fill any vacancy in an office

listed in Part 2 or 3 of that Schedule.

(3)
Subsections (1) and (2) do not apply to a vacancy while the Lord Chief Justice

agrees that it may remain unfilled.’.

Request for selection (No. 3)

Mr Christopher Leslie

Added  NC16

To move the following Clause:—

‘(1)
The Lord Chancellor may request the Commission to select a person for a

recommendation or appointment to which this section applies.

(2)
Before making a request the Lord Chancellor must consult the Lord Chief Justice.

(3)
A request may relate to more than one recommendation or appointment.

(4)
Sections 76 to 81 apply where the Lord Chancellor makes a request under this

section.

(5)
Those sections are subject to section (Withdrawal and modification of requests)

(withdrawal and modification of requests).’.

Duty to identify persons for future requests

Mr Christopher Leslie

Added  NC17

To move the following Clause:—

‘(1)
If the Lord Chancellor gives the Commission notice of a request he expects to

make under section (Request for selection (No. 3)) the Commission must—

(a)
seek to identify persons it considers would be suitable for selection on the

request, and

(b)
submit a report to the Lord Chancellor containing any information it

considers appropriate about—

(i)
the extent to which it has identified suitable persons, and

(ii)
other matters likely to assist the Lord Chancellor in exercising

his functions relating to appointments and recommendations.

(2)
For the purposes of subsection (1)(a) and (b)(ii), the Commission must in

particular have regard to—

Committee of the whole House Proceedings: 1st March 2005
394

Constitutional Reform Bill–[ [], continued

(a)
the number of recommendations and appointments the Lord Chancellor

expects to request selections for;

(b)
the powers of the Lord Chancellor to reject or require reconsideration of

a selection.

(3)
As part of the process of identifying persons under subsection (1)(a), the

Commission must consult—

(a)
the Lord Chief Justice, and

(b)
a person or persons, other than the Lord Chief Justice, with experience in

the office or offices to which requests specified in the direction relate, or

with other relevant experience.

(4)
A report under subsection (1)(b) must—

(a)
state any recommendation made in consultation under subsection (3) by

a person consulted;

(b)
give reasons in any case where the Commission has not followed such a

recommendation.

(5)
Where the Lord Chancellor makes a request for the purposes of which the

Commission has identified persons under subsection (1)(a), the Commission

must, in determining the selection process to be applied, consider whether

selection should be from among those persons.’.

Withdrawal and modification of requests

Mr Christopher Leslie

Added  NC18

To move the following Clause:—

‘(1)
This section applies to a request under section (Request for selection), (Request

for selection (No. 2)) or (Request for selection (No. 3)).

(2)
The Lord Chancellor may withdraw or modify a request only as follows—

(a)
so far as a request relates to any recommendation or appointment to fill a

vacancy, he may withdraw or modify it with the agreement of the Lord

Chief Justice;

(b)
so far as a request relates to any recommendation or appointment

otherwise than to fill a vacancy, he may withdraw or modify it after

consulting the Lord Chief Justice;

(c)
he may withdraw a request as respects all recommendations or

appointments to which it relates if, after consulting the Lord Chief

Justice, he considers the selection process determined by the

Commission or selection panel is not satisfactory, or has not been applied

satisfactorily.

(3)
If a request is withdrawn in part or modified, the Commission or selection panel

may, if it thinks it appropriate because of the withdrawal or modification, change

any selection already made pursuant to the request, except a selection already

accepted.

(4)
The Lord Chancellor may not withdraw a request under subsection (2)(c) if he has

exercised any of his powers under section 64(2), 71(2) or 78(2) in relation to a

selection made pursuant to the request.

(5)
Any withdrawal or modification of a request must be by notice in writing to the

Commission.

Committee of the whole House Proceedings: 1st March 2005
395

Constitutional Reform Bill–[ [], continued

(6)
The notice of withdrawal must state whether the withdrawal or modification is

under subsection (2)(a), (b) or (c).

(7)
In the case of a withdrawal under subsection (2)(c), the notice must state why the

Lord Chancellor considers the selection process determined by the Commission

or selection panel is not satisfactory, or has not been applied satisfactorily.

(8)
If or to the extent that a request is withdrawn—

(a)
the preceding provisions of this Part cease to apply in relation to it, and

(b)
any selection made on it is to be disregarded.

(9)
Withdrawal of a request to any extent does not affect the power of the Lord

Chancellor to make another request in the same or different terms.’.

Effect of acceptance of selection

Mr Christopher Leslie

Added  NC19

To move the following Clause:—

‘(1)
This section applies where the Lord Chancellor accepts a selection under this

Chapter.

(2)
Subject to the following provisions of this section, the Lord Chancellor—

(a)
must make the appointment, or recommendation, for which the selection

has been made, and

(b)
must appoint, or recommend, the person selected.

(3)
Before making the appointment or recommendation the Lord Chancellor may

direct the Commission to make arrangements in accordance with the direction—

(a)
for any assessment of the health of the person selected that the Lord

Chancellor considers appropriate, and

(b)
for a report of the assessment to be made to the Lord Chancellor.

(4)
Subsection (5) applies in any of the following circumstances—

(a)
the Lord Chancellor notifies the Commission that he is not satisfied on

the basis of a report under subsection (3)(b), having consulted the Lord

Chief Justice, that the health of the person selected is satisfactory for the

purposes of the appointment or recommendation;

(b)
the person selected declines to be appointed or recommended, or does not

agree within a time specified to him for that purpose;

(c)
the person selected is otherwise not available within a reasonable time to

be appointed or recommended.

(5)
Where this subsection applies—

(a)
the selection accepted and any previous selection for the same

appointment or recommendation are to be disregarded;

(b)
the request pursuant to which the selection was made continues to have

effect;

(c)
any subsequent selection pursuant to that request may be made in

accordance with the same or a different selection process.’.

Committee of the whole House Proceedings: 1st March 2005
396

Constitutional Reform Bill–[ [], continued

Applications to the Ombudsman

Mr Christopher Leslie

Added  NC21

To move the following Clause:—

‘(1)
This section applies if an interested party makes an application to the

Ombudsman for the review of the exercise by any person of a regulated

disciplinary function, on the grounds that there has been—

(a)
a failure to comply with prescribed procedures, or

(b)
some other maladministration.

(2)
The Ombudsman must carry out a review if the following three conditions are

met.

(3)
The first condition is that the Ombudsman considers that a review is necessary.

(4)
The second condition is that—

(a)
the application is made within the permitted period,

(b)
the application is made within such longer period as the Ombudsman

considers appropriate in the circumstances, or

(c)
the application is made on grounds alleging undue delay and the

Ombudsman considers that the application has been made within a

reasonable time.

(5)
The third condition is that the application is made in a form approved by the

Ombudsman.

(6)
But the Ombudsman may not review the merits of a decision made by any person.

(7)
If any of the conditions in subsections (3) to (5) is not met, or if the grounds of

the application relate only to the merits of a decision, the Ombudsman—

(a)
may not carry out a review, and

(b)
must inform the applicant accordingly.

(8)
In this section and sections (Review by the Ombudsman) to (References to the

Ombudsman relating to conduct), “regulated disciplinary function” means any of

the following—

(a)
any function of the Lord Chancellor that falls within section 94(1);

(b)
any function conferred on the Lord Chief Justice by section 94(3) to (7);

(c)
any function exercised under prescribed procedures in connection with a

function falling within paragraph (a) or (b).

(9)
In this section, in relation to an application under this section for a review of the

exercise of a regulated disciplinary function—

“interested party” means—

(a)
the judicial office holder in relation to whose conduct the

function is exercised, or

(b)
any person who has made a complaint about that conduct in

accordance with prescribed procedures;

“permitted period” means the period of 28 days beginning with the latest

of—

(c)
the failure or other maladministration alleged by the applicant;

(d)
where that failure or maladministration occurred in the course of

an investigation, the applicant being notified of the conclusion or

other termination of that investigation;

(e)
where that failure or maladministration occurred in the course of

making a determination, the applicant being notified of that

determination.

Committee of the whole House Proceedings: 1st March 2005
397

Constitutional Reform Bill–[ [], continued

(10)
References in this section and section (Review by the Ombudsman) to the exercise

of a function include references to a decision whether or not to exercise the

function.’.

Review by the Ombudsman

Mr Christopher Leslie

Added  NC22

To move the following Clause:—

‘(1)
Where the Ombudsman is under a duty to carry out a review on an application

under section (Applications to the Ombudsman), he must—

(a)
on the basis of any findings he makes about the grounds for the

application, decide to what extent the grounds are established;

(b)
decide what if any action to take under subsections (2) to (7).

(2)
If he decides that the grounds are established to any extent, he may make

recommendations to the Lord Chancellor and Lord Chief Justice.

(3)
A recommendation under subsection (2) may be for the payment of

compensation.

(4)
Such a recommendation must relate to loss which appears to the Ombudsman to

have been suffered by the applicant as a result of any failure or maladministration

to which the application relates.

(5)
If the Ombudsman decides that a determination made in the exercise of a function

under review is unreliable because of any failure or maladministration to which

the application relates, he may set aside the determination.

(6)
If a determination is set aside under subsection (5)—

(a)
the prescribed procedures apply, subject to any prescribed modifications,

as if the determination had not been made, and

(b)
for the purposes of those procedures, any investigation or review leading

to the determination is to be disregarded.

(7)
Subsection (6) is subject to any direction given by the Ombudsman under this

subsection—

(a)
for a previous investigation or review to be taken into account to any

extent, or

(b)
for any investigation or review which may form part of the prescribed

procedures to be undertaken, or undertaken again.

(8)
This section is subject to section (Reports on reviews).’.

Reports on reviews

Mr Christopher Leslie

Added  NC23

To move the following Clause:—

Committee of the whole House Proceedings: 1st March 2005
398

Constitutional Reform Bill–[ [], continued

‘(1)
In this section references to the Ombudsman’s response to an application are

references to the findings and decisions referred to in section (Review by the

Ombudsman)(1).

(2)
Before determining his response to an application the Ombudsman must prepare

a draft of a report of the review carried out on the application.

(3)
The draft report must state the Ombudsman’s proposed response.

(4)
The Ombudsman must submit the draft report to the Lord Chancellor and the

Lord Chief Justice.

(5)
If the Lord Chancellor or the Lord Chief Justice makes a proposal that the

Ombudsman’s response to the application should be changed, the Ombudsman

must consider whether or not to change it to give effect to that proposal.

(6)
The Ombudsman must produce a final report that sets out—

(a)
the Ombudsman’s response to the application, including any changes

made to it to give effect to a proposal under subsection (5);

(b)
a statement of any proposal under subsection (5) that is not given effect

to.

(7)
The Ombudsman must send a copy of the final report to each of the Lord

Chancellor and the Lord Chief Justice.

(8)
The Ombudsman must also send a copy of the final report to the applicant, but

that copy must not include information—

(a)
which relates to an identified or identifiable individual other than the

applicant, and

(b)
whose disclosure by the Ombudsman to the applicant would (apart from

this subsection) be contrary to section 111.

(9)
Each copy must be signed by the Ombudsman.

(10)
No part of the Ombudsman’s response to an application has effect until he has

complied with subsections (2) to (9).’.

References to the Ombudsman relating to conduct

Mr Christopher Leslie

Added  NC24

To move the following Clause:—

‘(1)
The Ombudsman must investigate any matter referred to him by the Lord

Chancellor or the Lord Chief Justice that relates to the exercise of one or more

regulated disciplinary functions.

(2)
A matter referred to the Ombudsman under subsection (1) may relate to the

particular exercise of a regulated disciplinary function or to specified descriptions

of the exercise of such functions.’.

Committee of the whole House Proceedings: 1st March 2005
399

Constitutional Reform Bill–[ [], continued

Reports on references

Mr Christopher Leslie

Added  NC25

To move the following Clause:—

‘(1)
Where the Ombudsman carries out an investigation under section (References to

the Ombudsman relating to conduct) he must prepare a draft of a report of the

investigation.

(2)
If the investigation relates to a matter which is the subject of a review on an

application under section (Applications to the Ombudsman), subsection (1)

applies only when the Ombudsman has sent a copy of the final report on that

review to the Lord Chancellor, the Lord Chief Justice and the applicant.

(3)
The draft report must state the Ombudsman’s proposals as to—

(a)
the findings he will make;

(b)
any recommendations he will make for action to be taken by any person

in relation to the matter subject to investigation.

(4)
Those findings and recommendations are referred to in this section as the

Ombudsman’s response on the investigation.

(5)
The Ombudsman must submit the draft report to the Lord Chancellor and the

Lord Chief Justice.

(6)
If the Lord Chancellor or the Lord Chief Justice makes a proposal that the

Ombudsman’s response on the investigation should be changed, the Ombudsman

must consider whether or not to change it to give effect to that proposal.

(7)
The Ombudsman must produce a final report that sets out—

(a)
the Ombudsman’s response on the investigation, including any changes

made to it to give effect to a proposal under subsection (6);

(b)
a statement of any proposal under subsection (6) that is not given effect

to.

(8)
The Ombudsman must send a copy of the final report to each of the Lord

Chancellor and the Lord Chief Justice.

(9)
Each copy must be signed by the Ombudsman.’.

Delegation of functions

Mr Christopher Leslie

Added  NC28

To move the following Clause:—

‘(1)
The Lord Chief Justice may nominate a judicial office holder (as defined in

section 95(4)) to exercise any of his functions under the relevant sections.

(2)
The relevant sections are—

(a)
section 94(3) to (7);

(b)
section (Review by the Ombudsman) (2);

(c)
section (Reports on reviews);