House of Commons - Explanatory Note

House of Commons

Session 2004-05
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Constitutional Reform Bill [HL]

These notes refer to the Constitutional Reform Bill [HL] as brought from the House of Lords on 21 December 2004 [Bill 18]

CONSTITUTIONAL REFORM BILL [HL]



     EXPLANATORY NOTES

INTRODUCTION

1.     These revised explanatory notes refer to the Constitutional Reform Bill as brought from the House of Lords on 21^st December 2004.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

OVERVIEW

3.      The Constitutional Reform Bill will modify the office of Lord Chancellor and make changes to the way in which some of the functions vested in that office are to be handled. The Bill will also create the Supreme Court of the United Kingdom, create the Judicial Appointments Commission and remove the right of the Lord President of the Council to sit judicially.

4.     The explanatory notes are divided into parts reflecting the structure of the Bill. In relation to each Part, there is a summary and background section. Commentary on particular clauses is then set out in number order, with the commentary on the various schedules included with the clause to which they relate.

5.     Notes on the effects of the Bill on: public expenditure; public sector manpower; cost to business and regulatory impact, follow the commentary on clauses, as does a brief note on the European Convention on Human Rights issues.

6.     The Bill is divided into 7 parts:

     [Bill 18—EN]     53/4

     Part 1: The Rule of Law

Part 1: provides that the Act does not adversely affect the principle of the rule of law or the Lord Chancellor's role in relation to that principle

Part 2: Arrangements to modify the office of Lord Chancellor

Part 2: Makes provision for modifying the office of Lord Chancellor so that the office-holder is no longer a judge nor exercises any judicial functions. It also sets out the qualifications for appointment to the office of Lord Chancellor. This Part also deals with functions relating to the judiciary and courts so that they are appropriately shared between the reformed ministerial office of Lord Chancellor and the Lord Chief Justice (and/or other senior members of the judiciary as appropriate). This Part also provides a guarantee of continued judicial independence. There are provisions in relation to the Speakership of the House of Lords. There are also provisions for the modification, abolition or transfer of other existing Lord Chancellor functions and provision that certain functions cannot be transferred from the Lord Chancellor to other Ministers by a Transfer of Functions Order.

Part 3: The Supreme Court

Part 3: Makes provisions for a Supreme Court to replace the existing system of Law Lords operating as a committee of the House of Lords. It provides for the appointment of judges, the Court's jurisdiction, its procedures, resources including accommodation, and other matters.

Part 4: Judicial appointments and discipline

Part 4: Makes provision for a Judicial Appointments Commission for England and Wales to be responsible for recruiting and selecting judges, and makes special arrangements for the appointment of the Lord Chief Justice and Heads of Division and of the Lords Justices of Appeal. It provides for the Commission to report to the Lord Chancellor on who has been selected, and for the Lord Chancellor to make the appointment or the recommendation to the Queen. It also makes provision for a Judicial Appointments and Conduct Ombudsman.

Part 5: Judicial Discipline Northern Ireland

Part 5 provides for the removal of judicial office holders in Northern Ireland. By virtue of clause 119(2), Part 5 extends only to Northern Ireland.

Part 6: Other provisions in relation to the judiciary

Part 6: Makes provisions regarding Parliamentary disqualification and the Judicial Committee of the Privy Council.

     Part 7: General

Part 7: Provides for orders, regulations and supplementary provisions, confidentiality, enactment, subordinate legislation, interpretation, minor and consequential amendments, repeals and revocations, extent, commencement and the short title of the Act.

7.     Parts 2 and 4 are intended to give substantial effect to the agreement between the Lord Chief Justice of England and Wales and the Secretary of State for Constitutional Affairs on the proposals relating to the transfer of the Lord Chancellor's judiciary-related functions. This was set out in a document called "Constitutional Reform. The Lord Chancellor's judiciary-related functions: Proposals" (also referred to as the 'Concordat'). It was placed in the libraries of both Houses of Parliament at the time of the Oral Statement to the House of Lords by the Secretary of State for Constitutional Affairs, and also made in the House of Commons, on 26th January 2004. The text was also printed as Appendix 6 to the House of Lords Select Committee's Report on the Bill.

     PART 1: THE RULE OF LAW

8.     Part 1 provides that the Act does not adversely affect the principle of the rule of law or the Lord Chancellor's role in relation to that principle.

PART 2: ARRANGEMENTS TO MODIFY THE OFFICE OF LORD CHANCELLOR

SUMMARY

9.     Part 2 modifies the office of Lord Chancellor and provides for the future exercise of certain functions of that office and for continued judicial independence. It provides:

a)     that to be Lord Chancellor a person must be a member of the House of Lords and hold specified legal qualifications;

b)     that the Lord Chancellor must take a specified oath, in addition to the other oaths required of Ministers;

c)     a guarantee of continued judicial independence in England and Wales, and (separately) in Northern Ireland;

d)     for general statutory responsibilities of the Lord Chief Justice, who will assume the new additional title of President of the Courts of England and Wales and is recognised as Head of the Judiciary of England and Wales;

e)     that the Chief Justices within the three legal jurisdictions of the UK may make written representations to Parliament on justice-related matters;

f)     for new offices of the Head and Deputy Head of Criminal Justice and Head and Deputy Head of Family Justice;

g)     for the transfer of certain of the Lord Chancellor's statutory functions relating to the judiciary to the Lord Chief Justice (and/or other senior members of the judiciary as appropriate), and for consultation or concurrence between them in the exercise of such functions to reflect the agreement set out in the 'Concordat';

h)     for the amendment of certain statutory provisions that refer to the Lord Chancellor in his capacity as Speaker of the House of Lords, so that they will in future refer to the Speaker of the House of Lords in general terms;

i)     for the modification, transfer and abolition of existing functions of the Lord Chancellor; and

j)     for the amendment of the Ministers of the Crown Act 1975, so that section 1 of that Act no longer applies to specified functions of the Lord Chancellor, with the result that they cannot be transferred to another Minister of the Crown by an order under that Act.

BACKGROUND

10.     The office of Lord Chancellor is currently both a ministerial and a judicial office. In the main, ministerial powers currently exercisable by the Lord Chancellor that do not relate to the judiciary or the administration of the courts are not affected by the Bill. However, some of the Lord Chancellor's functions have been exercised in his capacity as 'Head of the Judiciary' (although this has not historically been a formal or statutory title). Other functions, statutory and otherwise, are currently exercisable by the Lord Chancellor in relation to the judiciary or to the Lord Chancellor's judicial role. The Bill ends the judicial role of the Lord Chancellor and precludes the office-holder from holding judicial office. It also modifies the Lord Chancellor's judiciary-related functions in line with the Concordat (see "Overview", above).

11.     Clause 13 of, and Schedule 4 to the Bill provide for judiciary-related functions currently vested in the Lord Chancellor to be transferred to another office holder or otherwise disposed of, and for the modification of certain other functions of the Lord Chancellor. Some of the judiciary-related functions are transferred to the Lord Chief Justice or to another member of the senior judiciary. In many instances, as appropriate to the nature of a particular function, the Lord Chancellor will be required to consult, or obtain the concurrence of, the Lord Chief Justice (or vice versa) before exercising the function. In others, functions may be exercised by the Lord Chancellor or the Lord Chief Justice acting alone. The division of functions into these categories is intended to reflect the principles set out in the Concordat referred to in paragraph 7 above, which are summarised in paragraph 32 below. While the Lord Chief Justice is named as having a role in exercising many of these functions, the Bill enables him to delegate any of his functions except those relating to removals from judicial office. The Bill also provides a role for the Lord Chief Justice of Northern Ireland and the Lord President of the Court of Session as appropriate for functions that extend to the jurisdictions of Northern Ireland and Scotland.

12.     Statutory powers exercised by the Lord Chancellor in his capacity as Speaker of the House of Lords will be amended by the Bill so that they refer to the Speaker of the House of Lords in general terms, rather than the Lord Chancellor. It is a matter for the House of Lords itself to determine any changes to the current arrangements for the office of its Speaker.

13.     Clause 16 of the Bill also makes provision for the transfer, modification and abolition of other functions of the Lord Chancellor, for example functions in local and private acts, not yet identified, or functions created by primary legislation passed in the 2003-04 or 2004-05 Sessions or by secondary legislation made under such primary legislation. The clause also provides a power to amend charters and other prerogative instruments to take account of the transfer, modification or abolition of a function. In addition, clause 17 of the Bill will ensure that certain protected functions (set out in Schedule 6) may not be transferred away from the office of Lord Chancellor by an order under the Ministers of the Crown Act 1975. Clause 18 provides for further functions to be added to Schedule 6 (although functions will not be able to be removed from the Schedule by secondary legislation).

14.     In connection with the provisions in Schedule 4 that deal with the administration and resourcing of the courts, and as a consequence of the ending of the judicial role of the Lord Chancellor, it has been agreed that a senior member of the judiciary will be a non-executive member of the Board for Her Majesty's Court Service (HMCS), to be established on 1^st April 2005. At least two separate bilateral discussions between the Chief Executive of HMCS and representatives of the Judges' Council, concentrating on providing the opportunity for judicial input into future resource planning of the Agency, will be held each year. These arrangements will be set out in the Framework Document of the Agency, copies of which will be placed in the Libraries of both Houses. In addition, a senior member of the judiciary will also be a non-executive member of the Corporate Board of the Department for Constitutional Affairs. Further, in Spending Review years, the Director-General, Finance and the Permanent Secretary of the Department for Constitutional Affairs will meet the Lord Chief Justice (or his representative) when the Departmental bid and Public Service Agreement is being worked up, and then again before final Departmental allocations are made after the settlement. Such meetings will be held at a similar stage in non-Spending Review years, focussing on the delivery arms of the Department.

COMMENTARY ON CLAUSES

Qualifications for office of Lord Chancellor

Clause 2: Requirement of membership of the House of Lords

15.     Clause 2 requires the Lord Chancellor to be a member of the House of Lords, preventing members of the House of Commons from holding the office.

Clause 3: Legal qualifications

16.     Clause 3 requires that the Lord Chancellor have legal qualifications and experience. It requires the Lord Chancellor to have either held high judicial office for a period of at least two years, or to have practised as a qualifying practitioner in any of the three UK jurisdictions for twelve years. ("High judicial office" is defined in clause 54 of the Bill, and "qualifying practitioner" is defined in clause 22).

     Continued judicial independence

Clause 4: Guarantee of continued judicial independence

17.     Clause 4 places a duty on Ministers of the Crown (including the Lord Chancellor), and all others with responsibility for matters relating to the judiciary or otherwise to the administration of justice to uphold the continued independence of the judiciary. It also sets out two particular duties that are to be exercised for the purpose of upholding that independence.

18.     The first is a duty on Ministers of the Crown not to seek to influence particular judicial decisions through any special access to the judiciary. "Special access" refers to any access over and above that which might be exercised by a member of the general public. So the duty does not, for example, limit what may be said on a Minister's behalf in court in the course of presenting a case to the court in the usual way.

19.     The second duty requires the Lord Chancellor to have regard to the need to defend the continued independence of the judiciary, the need for the judiciary to have proper support to enable them to exercise their functions, and the need for the public interest in matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters. This clause should be read in conjunction with Part 1 of the Courts Act 2003, which sets out the duty of the Lord Chancellor to ensure that there is an efficient and effective system to support the carrying on of the business of the courts of England and Wales.

Clause 5: Guarantee of continued judicial independence: Northern Ireland

20.     Clause 5 substitutes a new section 1 of the Justice (Northern Ireland) Act 2002 to ensure that the provision made by that Act in relation to Northern Ireland is consistent with the provision made by Clause 4 of the Bill.

21.     Section 1 of the 2002 Act, which has not yet been commenced, already contains provision designed to place those with responsibility for the administration of justice in Northern Ireland under a duty to uphold the continued independence of the judiciary. The new section 1 specifies and extends the range of persons upon whom the duty is imposed. Under the new section, the First Minister, the deputy First Minister, Northern Ireland Ministers and anyone with responsibility for the judiciary or the administration of justice specific to Northern Ireland, will be subject to the duty to uphold judicial independence. The new section will also provide that in upholding judicial independence, Ministers must not seek to interfere with particular judicial decisions through any special access to the judiciary. The duties imposed by the new section 1 have UK-wide territorial extent and include the judiciary throughout the United Kingdom.

The Judiciary and the Courts

Clause 6: Representations to Parliament

22.     Clause 6 provides that the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland or the Lord President of the Court of Session may table written representations to Parliament on matters relating to the judiciary or the justice system. In respect of the Lord President of the Court of Session, this function is qualified in order to respect the devolution settlement.

Clause 7: President of the Courts of England and Wales

23.     Clause 7 provides a new, additional, statutory title of President of the Courts of England and Wales for the Lord Chief Justice. This clause also recognises that the Lord Chief Justice is the Head of the Judiciary of England and Wales.

24.     The clause sets out the responsibilities of the President of the Courts of England and Wales and the courts to which the presidency applies. In his role as President of the Courts of England and Wales, the Lord Chief Justice is to be responsible for representing the views of the judiciary of England and Wales to Parliament, the Lord Chancellor and Ministers of the Crown generally. He is also to be responsible, within the resources made available by the Lord Chancellor, for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary of England and Wales, and for maintaining appropriate arrangements for the deployment of the judiciary of England and Wales and allocating work within courts. In relation to the issue of deployment, it should be noted that the Lord Chief Justice will also have a role in the appointment of judicial office holders to committees, boards and similar bodies, as set out in paragraphs 46-49 of the 'Concordat'; his role in such appointments so far as governed by statute is provided for in Schedule 4.

Clause 8: Head and Deputy Head of Criminal Justice

25.     Clause 8 creates a new statutory post of Head of Criminal Justice, which will be held ex officio by the Lord Chief Justice of England and Wales or, after consultation with the Minister, by his nominee. This clause also provides that the Lord Chief Justice may appoint a Deputy Head of Criminal Justice. The creation of these new posts mirrors the existing statutory posts of Head and Deputy Head of Civil Justice, established by section 62 of the Courts Act 2003.

Clause 9: Head and Deputy Head of Family Justice

26.     Clause 9 creates a new statutory post of Head of Family Justice, which will be held ex officio by the President of the Family Division. This clause also provides that the Lord Chief Justice may appoint a Deputy Head of Family Justice. The creation of these new posts mirrors the existing statutory posts of Head and Deputy Head of Civil Justice, established by section 62 of the Courts Act 2003.

Clause 10: Powers to make rules

27.     Clause 10 provides for the transfer of functions relating to rule-making powers that are not made by rule committees but which are currently conferred on the Lord Chancellor alone. These functions will be exercised by the Lord Chief Justice with the concurrence of the Minister, in accordance with the process set out in Part 1 of Schedule 1 to the Bill.

Schedule 1: Powers to make rules

28.     Schedule 1 sets out the process and makes the amendments referred to in clause 10. Rule making powers currently exercised by the Lord Chancellor are transferred to the Lord Chief Justice. To mirror the existing statutory powers of the Lord Chancellor to allow or disallow rules made by rule committees, the concurrence of the Lord Chancellor to any rules made by the Lord Chief Justice will be required. A new power to direct that the Lord Chief Justice make rules to achieve a specified purpose is vested in the Lord Chancellor. Again, this mirrors the situation for rules made by rule committees. In relation to certain family procedure rules, the procedure under part 1 of Schedule 1 to the Bill will only have temporary effect, until sections 75 to 80 of the Courts Act 2003 are brought into effect and the Family Procedure Rule Committee is established.

Clause 11: Powers to Give Directions

29.     Clause 11 provides for the transfer of the Lord Chancellor's functions relating to the making of practice directions. The Lord Chief Justice will be empowered to make practice directions, with the concurrence of the Lord Chancellor, in a procedure similar to that which will apply to the rules dealt with in clause 10 and Schedule 1 (see paragraphs 27 and 28 above). The concurrence of the Minister will not be required for directions relating to guidance as to the law or the making of judicial decisions.

Schedule 2: Powers to Give Directions

30.     Schedule 2 sets out the procedure and makes the amendments referred to in clause 11. In accordance with the procedure in Part 1 of Schedule 2, the Lord Chief Justice may, with the concurrence of the Minister, give those directions as to practice and procedure contained in the enactments amended by Part 2 of the Schedule. The Lord Chief Justice may, with the approval of the Minister, delegate his functions under the new procedure; the expectation is that the power would usually be delegated to the Heads of Criminal, Civil and Family Justice. The Lord Chief Justice may act without the concurrence of the Minister for directions concerning guidance as to the law or the making of judicial decisions.

Clause 12 and Schedule 3: Transfer of appointment functions to Her Majesty

31.     Clause 12 introduces Schedule 3, which provides that appointments to the offices listed in it will in future be made by Her Majesty The Queen on the recommendation of the Lord Chancellor, rather than by the Lord Chancellor himself, as currently. These appointments are those of civil District Judges, High Court Registrars and Masters, and the Senior District Judge (Chief Magistrate). The relevant appointing provisions are amended and the power to assign District Judges to districts and to district registries is transferred from the Lord Chancellor to the Lord Chief Justice. The power to determine the salaries of civil District Judges and High Court Masters and Registrars is made subject to the proviso that their salaries cannot be reduced, which brings them into line with District Judges (Magistrates' Courts) and more senior members of the judiciary. These appointments are also listed with others in Schedule 12, meaning that these appointments are in future to be made on the basis of selection by the Judicial Appointments Commission.

Clause 13: Other functions of the Lord Chancellor and organisation of the Courts

32.     Clause 13 introduces Schedule 4 which provides for the transfer of certain functions of the Lord Chancellor and the modification of other functions of the Lord Chancellor. Modification refers in general to those functions that will be exercised with either the concurrence of, or after consultation with, the Lord Chief Justice of England and Wales or another senior judge, as appropriate. For some of those functions that are transferred away from the Lord Chancellor, there is also provision for them to be exercised with either the concurrence of, or after consultation with, the Lord Chancellor.

Schedule 4: Other functions of the Lord Chancellor and organisation of the Courts

33.     Schedule 4 makes the amendments referred to in clause 13 by modifying enactments containing or relating to the functions in question. In summary, the effect of this Schedule is to provide as follows :

?     The following statutory functions will remain with the Lord Chancellor: (i) those concerning the framework for the organisation of the courts system, including setting the geographical and jurisdictional boundaries within England and Wales; (ii) the provision and allocation of financial, material and human resources for the administration of justice; (iii) those relating to the pay, pensions and terms and conditions of the judiciary and the provision of staff and resources for training of the judiciary; and (iv) the determination of the overall number of judges and the distribution of business between different levels of courts in England and Wales. Those functions that do not require the Lord Chief Justice to be consulted or his concurrence have therefore been removed from this version of the Bill, following the decision of the House of Lords to retain the office of Lord Chancellor.

The existing statutory functions of the Lord Chancellor that relate to the following matters will be transferred to the Lord Chief Justice: (i) the posting and roles of individual judges within the framework of the court system; (ii) the responsibility to make rules relating to deployment of magistrates; (iii) the authorisation and assignment of judges, allocation of work and the distribution of business within the same level of the court system, (e.g. between divisions of the High Court); and (iv) the nomination of judges to deal with specific areas of business and to fill judicial leadership posts such as the Presiding Judges.

?     The existing statutory functions of the Lord Chancellor that enable him to determine the framework for the appointment of judicial office holders to committees, boards and similar bodies will remain with the Lord Chancellor, while the statutory functions that enable him to appoint individual judges to such bodies will be transferred to the Lord Chief Justice.

As regards the making of court rules, where statutory committees presently exist, the relevant provisions will be modified to take account of the division of the Lord Chancellor's functions between him and the Lord Chief Justice. The appointment of non-judicial members of rule committees will continue to be made by the Lord Chancellor and judicial members will be appointed by the Lord Chief Justice. In addition, there will be a new power for the Lord Chancellor to require rule committees to change rules or to make new rules to achieve a specified purpose, and to allow rules made by such committees. He may disallow rules but is required to provide written reasons. (See clause 10 and Schedule 1 for rule making powers not related to rule making committees).

Statutory references to the Vice-Chancellor are amended to provide for the new title of "Chancellor of the High Court". Statutory references within the Courts Act 2003 are amended to provide that the Master of the Rolls will assume the position of "Head of Civil Justice" ex officio. A new position of "President of the Queen's Bench Division" is also created; this post will not be held by the Lord Chief Justice;

The Lord Chief Justice will replace the Lord Chancellor as the office holder before whom judges will take their oaths. The Lord Chief Justice will take his oath before the Master of the Rolls, the President of the Queen's Bench Division, the President of the Family Division and the Chancellor of the High Court (formerly the Vice-Chancellor).

Where amendments are made to other Acts by the Schedule to confer functions on the Lord Chief Justice, a provision is added in each case permitting him to delegate the function to another judicial office-holder, except where the function relates to removals from judicial office.

Lord Chancellor's Oath

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Prepared: 10 January 2005