House of Commons - Explanatory Note
Constitutional Reform Bill [HL] - continued          House of Commons

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Clause 14: Lord Chancellor's Oath

34.     Clause 14 provides a new oath that refers to the Lord Chancellor's roles in relation to the independence of the judiciary, the rule of law and supporting the running of the courts. It will be taken alongside existing ministerial oaths upon taking office.

Speakership of the House of Lords

Clause 15 and Schedule 5: Speakership of the House of Lords

35.     Clause 15 introduces Schedule 5. Some statutes make explicit reference to the 'Speaker of the House of Lords'. Others refer to the Lord Chancellor, but apply where he is acting in the capacity of Speaker. Schedule 5 provides for the replacement of references in primary legislation to the Lord Chancellor in his capacity as Speaker with references to the 'Speaker of the House of Lords'. This change would allow any speaker, howsoever entitled, to perform these functions. It will ensure that the House of Lords will be able to decide upon future arrangements for the its Speakership without the need to amend existing references in primary legislation.

Supplementary

Clause 16: Transfer, modification or abolition of functions by order

36.     Clause 16 allows "the Minister (which means the Lord Chancellor- see note on clause 114) by order to transfer, modify or abolish an existing function, or provide for it to be exercised concurrently with another person. Subsection (2) makes it clear that such an order can, if necessary, amend or repeal other enactments, subordinate legislation, and other instruments or documents. This new power is in addition to the power to transfer ministerial functions under the Ministers of the Crown Act 1975, and the power to make supplementary provision in clause 115. The new power does not duplicate the power under the 1975 Act. Where a public general Act is amended, the order will be subject to affirmative resolution procedure. One of the purposes of this power is to ensure that effect may be given to the Concordat agreed with the Lord Chief Justice, in particular with a regard to functions set out in subordinate legislation or Acts of Parliament passed since the introduction of the Bill. (The power is limited to amending legislation made in, or under, Acts passed up to and including in the session in which this Bill is enacted). These provisions are also intended to be used in relation to, for example, functions of the Lord Chancellor conferred by private, personal or local Acts which may have been missed and thus have not been addressed in the substantive provisions of the Bill. This power is also intended for use in relation to the functions of the Lord Chancellor under charters or other governing instruments of private institutions, such as colleges or universities. Where they wish to alter or remove the role of the Lord Chancellor, this power would avoid the need for each of the institutions concerned to make their own separate arrangements. This new power may not be used in relation to the functions listed in Schedule 6 to the Bill (protected functions of the Minister), which is introduced by this clause. The clause allows the Minister to add a function which has been modified by an order under this section to Schedule 6. The power to amend Schedule 6 is intended to avoid the need for separate orders under clause 18 where functions are modified under this clause. It is expected to be used principally in relation to functions of the Lord Chancellor created in primary legislation since the introduction of the Bill.

Schedule 6: Protected functions of the Minister

37.     Schedule 6 lists certain functions of the Minister (the Lord Chancellor), which relate to the Great Seal, the judiciary and the organisation of the courts. The listed functions cannot be transferred by an order under clause 16 or by an order under section 1 of the Ministers of the Crown Act 1975 (as amended by clause 17 of the Bill). Schedule 6 may be amended by an order under clause 16, certain Transfer of Functions Orders under section 1 of the Ministers of the Crown Act 1975, or by an order under clause 18.

Clause 17: Protected functions not transferable under Minister of the Crown Act 1975

38.     Clause 17 amends section 1 of the Ministers of the Crown Act 1975 so that it no longer applies to the functions of the Lord Chancellor listed in Schedule 6 to the Bill. This will mean that the listed functions cannot be transferred to another minister by a Transfer of Functions Order under the 1975 Act. The clause also amends the 1975 Act so that a Transfer of Functions Order that transfers a function to the Lord Chancellor may add that function to Schedule 6 to the Bill.

Clause 18: Amendment of Schedule 6

39.     Clause 18 provides a power for the Lord Chancellor to add functions to Schedule 6. This only applies to statutory functions under legislation passed in the same Session as, or in prior Sessions to, the Session in which the Bill passes. Its principal purpose is to add to Schedule 6 functions of the Lord Chancellor created in primary legislation since the introduction of the Constitutional Reform Bill.

Clause 19: Transfers: supplementary

40.     Clause 19 provides for the continuing validity of actions taken by the Lord Chancellor, his Department or an officer of his Department in relation to any function which is transferred under the Bill, or by an order made under clause 16, and of subsequent actions by the recipient of the function. References in Acts or other instruments are to be read as referring to the person who will undertake the function in the future. Legal proceedings involving the Lord Chancellor in relation to a function which is transferred can be continued by or against the person who assumes the function. Printed documents and forms that relate to a transferred function also continue to be valid despite references to the Lord Chancellor, his Department or his staff. Subsection (2) provides that where Her Majesty will in future perform a function of the Lord Chancellor, the Lord Chancellor will still continue any associated action in relation to that function.

PART 3 THE SUPREME COURT

SUMMARY

41.     Part 3 of the Bill creates a new Supreme Court for the United Kingdom and makes provision for the transfer of the appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. The new Supreme Court will be separate from Parliament.

BACKGROUND

  • 42.     At present the exercise of the highest level of jurisdiction in the United Kingdom is shared between the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. The Appellate Committee of the House of Lords receives appeals from the courts in England and Wales and Northern Ireland, and in civil cases from Scotland. The Judicial Committee of the Privy Council, in addition to its overseas and ecclesiastical jurisdiction, considers questions as to whether the devolved administrations, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly are acting within their legal powers. Support to the Appellate Committee is provided by the House's administration under the Clerk of the Parliaments. Support for the Judicial Committee is provided by staff supporting the Privy Council.

43.     In addition to the Lords of Appeal in Ordinary certain other holders of high judicial office are also members of the House of Lords. A number of other members of the House of Lords hold other full-time or part-time judicial office and a number of members of the House of Commons hold part-time judicial-office.

44.     It creates a Supreme Court of the United Kingdom giving it the appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. It makes provision to allow for the appointment of members of the Court in a way that requires the participation of the judiciary and the devolved administrations throughout the United Kingdom. It makes provision to determine the practices and procedures of the court, to allow the Minister to provide staff, equipment, security arrangements and accommodation for the court. It also makes general provision allowing for the proceedings of the court to be broadcast in certain circumstances.

45.     The Bill restricts the right of members of the House of Lords to sit and vote for so long as they hold full time judicial office. Finally the Bill makes consequential and transitional provisions to allow the transfer of functions to the Court.

COMMENTARY ON CLAUSES

Clause 20: The Supreme Court

46.     This clause establishes (subsection (1)) that there is a Supreme Court of the United Kingdom, and sets out the composition of the Supreme Court and the method of appointing judges, including the President and Deputy President (as distinct from the process for selection of persons to be recommended for appointment, the provision for which is to be found in clauses 23-28). It also provides for the title of the judges of the Supreme Court other than the President and Deputy President.

47.     Subsection (2) provides both for complement and method of appointment. The Court will comprise 12 judges, who are to be appointed by Her Majesty by letters patent. By virtue of subsection (5), Her Majesty may, also by letters patent, appoint one of the judges to be President and one to be Deputy President. It will be possible for a person to be appointed as President or Deputy President without having first served as a judge of the Supreme Court (see clause 23(4)).

48.     Subsection (3) provides a power for Her Majesty to increase or further increase the number of judges of the Supreme Court by Order in Council. This may only be done, however, if, as set out in subsection (4), a draft of the Order has been laid before and approved by each House of Parliament (that is, by affirmative resolution procedure).

49.     Subsection (6) provides that the judges of the Supreme Court other than the President of the Supreme Court and the Deputy President of the Supreme Court (who will have those titles) will be styled 'Justices of the Supreme Court'.

50.     Subsection (7) provides that the Court will still be properly constituted even if there is a vacancy among the judges of the Court or in the office of President or Deputy President.

Clause 21: First members of the Court.

51.     This clause provides for the first judges of the Supreme Court to be the Lords of Appeal in Ordinary holding office at the date of commencement. This is a one-off provision to provide for the transition of members of the Appellate Committee of the House of Lords from the Appellate Committee to the Supreme Court.

52.     The effect of clause 21(a) is that on establishment of the Court (with the commencement of clause 20), Lords of Appeal in Ordinary immediately before commencement will become the first Supreme Court judges.

53.     Clause 21(b) and (c) make provision for the first holders of the offices of President and Deputy President, providing that the senior Lord of Appeal in Ordinary prior to commencement will become the President and the second senior Lord of Appeal in Ordinary prior to commencement will become the Deputy President of the Court.

Appointment of judges

Clause 22: Qualification for Appointment

54.     This clause defines eligibility for appointment as a judge of the Supreme Court, which will be the same as eligibility for appointment as a Lord of Appeal in Ordinary.

55.     Subsection (1) sets out the qualifying requirements for appointment as a Supreme Court judge. There are two separate possible routes to qualification. First, a person is eligible if he has held high judicial office, as defined in subsections (1) and (2) of clause 54, for at least 2 years.

56.     Alternatively, to qualify for appointment as a Supreme Court judge, a person would have to have been a qualifying practitioner (defined in subsection (2)) for at least 15 years.

57.     Subsection (2) defines a qualifying practitioner, for the purposes of clarifying eligibility for appointment.

Clause 23: Selection of members of the Court

58.     This clause is the first of 6 clauses, the others being 24, 25, 26, 27, and 28, which together provide for the process by which candidates for appointment to the Supreme Court are to be selected and recommended to Her Majesty for appointment. Under subsection (8) these latter clauses apply where a selection commission as provided for in Schedule 7 is convened.

59.     This clause defines the process whereby members of the Supreme Court are recommended for selection, and introduces Schedule 7 (which makes provision for the convening and membership of the selection commission by way of which the process operates).

60.     Subsection (1) sets out the offices to which appointments are to be made by this process.

61.     At the final stage of the selection process, following the process set out in clauses 24, 25 and 26 the Prime Minister, under subsections (2), (3) and (4) must recommend the selection passed to him by the Minister to the Queen.

62.     Subject to Part 3 of Schedule 7, the Minister, under subsection (5) must convene a selection commission the composition of which is provided for in Schedule 7.

Schedule 7: Supreme Court selection commissions

63.     This Schedule contains the rules governing the composition of the selection commission for the appointment of judges to the Supreme Court. It sets out who is eligible to sit on the commission, how it is to be convened, and the rules for its operation. This selection commission will put forward candidates for appointment to the Minister, for notification to the Prime Minister and eventual recommendation by the Prime Minister to Her Majesty for appointment, according to the procedure set out in Clauses 23-28.

Part 1 Selection commissions

Selection commission

64.     Paragraph 1 makes provision for the membership of the Supreme Court selection commission which, under clause 24, will select one candidate and put forward that candidate to the Minister accordingly. The selection commission will consist of the President of the Supreme Court (who, by virtue of paragraph 7, will chair the commission), the Deputy President of the Supreme Court and one member from each of the territorial appointing commissions, nominated under paragraph 6, one of whom must (by virtue of paragraph 6 (3)) be a person who is not legally qualified.

Special rules where President or Deputy President's place unfilled

65.     Paragraphs 2- 4 make provision for the composition of the Selection Commission if the place of the President and / or the Deputy President on the commission is unfilled by reason of one of the situations set out in paragraph 5.

66.     Paragraph 2(2) provides for the next most senior ordinary judge in the Supreme Court to take the unfilled position on the selection commission if either the President or Deputy President is unable to sit. Paragraph 3(2) provides for the most senior ordinary judge and the second most senior ordinary judge to take the unfilled position if both the President and Deputy President are unable to sit.

67.     If the unfilled place or places are not taken in accordance with paragraph 2(2) or paragraph 3(2) (for example because all of the Supreme Court judges wish to be considered for a vacancy that has arisen) then paragraph 2(3) & (4) and paragraph 3(3), (4) & (5) provide for the most senior judiciary from the three jurisdictions of the UK to be members of the commission, unless one of the jurisdictions is already represented through the presence of the President, Deputy President or one of the ordinary judges (for example, if his "home jurisdiction", as defined in paragraph 4, is Scotland, Scotland is represented). In this event only two of the senior judiciary would be required from the jurisdictions not already represented (i.e. in the example above, from England and Wales and Northern Ireland, since Scotland is represented).

68.     Paragraph 4 provides for the determination of the home jurisdiction of a judge of the Supreme Court. Separate provision is made according to whether the judge in question became a member of the court by virtue of being a Lord of Appeal in Ordinary at commencement, or was appointed to the court subsequently, working in the former case by reference to the qualification requirement of the Appellate Jurisdiction Act 1876 (under which Lords of Appeal in Ordinary will have been appointed) rather than those of clause 22 of the Bill.

Disqualification

69.     Paragraph 5 details the circumstances in which judicial members of the commission are disqualified from sitting on the commission.

70.     Paragraph 5(1) provides for cases of illness or other incapacity: any judge who might be eligible to sit on the appointing commission is considered to be disqualified if the Minister believes that the person is for the time being incapacitated from serving on the commission.

71.     Paragraphs 5(2), (3) and (4) provide for cases where a person is a candidate for appointment to the vacancy under consideration: judges of the Supreme Court below the position of President and judges from territorial jurisdictions will be disqualified from membership of the commission unless they first give the Minister notice that they do not wish to be considered for the vacancy being filled.

Non-judicial members of the selection commission

72.     Paragraph 6 sets out the rules governing the appointment of members of the territorial appointing commissions to the selection commission.

73.     Under paragraph 6(2), the Minister will be responsible for nominating one member of each of the territorial appointing commissions; however, under paragraph 6(4) he may only do this on the recommendation of the territorial appointing commission of which the person is a member. Sub-paragraph (3) provides that at least one of the persons nominated from the territorial appointing commissions must be non-legally qualified (defined for the purposes of this paragraph in paragraph 6(7)). In effect this means that if at least one of the territorial commissions does not recommend a non-legally qualified person, the Minister will, before the commission can be convened, have agreed with the territorial commissions an arrangement whereby one of them will agree to recommend a non-legally qualified member.

Chairing of a selection commission

74.     Paragraph 7 identifies the President of the Supreme Court as the person who shall normally chair the selection commission for the Supreme Court and provides alternatives if the President is not available.

Interpretation

75.     Paragraph 8 defines for the purpose of this Schedule what is meant by the term 'selection commission for the office of'. For example (sub-paragraph (a)): 'Selection commission for the office of President' means a selection commission convened in the case of a vacancy in the office of President.

76.     Paragraph 9(1) defines for the purposes of Part 1 of this schedule the meaning of "Judicial Appointments Board for Scotland" and "territorial judge".

77.     Paragraph 9(2) defines for the purposes of Part 1 of this schedule how the seniority of judges of the Supreme Court is to be determined (taking account, where appropriate, of seniority "inherited" from service in the House of Lords) and, in relation to the Selection Commission, how the seniority of the territorial judges appointed under paragraph 2(3) and paragraph 3(3) & (4) is to be determined.

Part 2 Dissolution

78.     Part 2 of this Schedule describes when the process by which a selection commission is to be dissolved and the process by which this is to be done.

79.     In the normal course of events the commission would be dissolved when the Minister notifies a selection made by the commission. That is to say, when a selection of a person by the commission is accepted by the Minister and the Minister notifies the Prime Minister for recommendation of that person for appointment, the commission is dissolved, its work having then been completed (Paragraph 10).

80.     Paragraphs 11 - 12 provide that the commission can also be dissolved in various circumstances in which it ceases to be properly constituted. These are: if a member of the commission dies or becomes incapacitated; if a person nominated from a territorial commission either resigns his membership of the selection commission or ceases to be a member of the territorial commission from which he has been appointed from; if someone who is a member of the commission by virtue of holding high judicial office ceases to hold that office; or where in the event of there being only one non-legally qualified member on the commission that member ceases to be non-legally qualified.

81.     Paragraphs 11(2) and 12(2) provide that in such cases, rather than the commission continuing with fewer members, or a changed balance of backgrounds, or a different balance of representation, a new selection commission has to be convened by the Minister as soon as practicable after dissolution.

Part 3 Duty to convene commission: Special rules

82.     This part of the schedule modifies the Minister's duty to convene a selection commission under certain circumstances.

Selection commission for the office of Deputy President

83.     Paragraph 13 provides that the duty on the Minister to convene a selection commission for the office of Deputy President or for the office of judge does not apply if a selection commission for the office of President has been convened or the Minister is under a duty to convene such a selection commission. This means that if there is a vacancy or impending vacancy for the office of President this must be filled before any vacancy in the office of Deputy President which might arise at the same time. This "fill the senior office first" approach, which maximises the likelihood that there will be a President to chair commissions for other vacancies, is carried through for other vacancies by paragraph 14.

Selection commission for the office of judge

84.     Paragraph 14 provides that the duty on the Minister to convene a selection commission for the office of judge does not apply if a selection commission for the office of President or Deputy President has been convened or the Minister is under a duty to convene such a selection commission. This means that if there is a vacancy or impending vacancy for the office of President or Deputy President these must be filled before any vacancy for the office of Judge which might arise at the same time.

85.     Paragraphs 13(2) and 14(2) state that the Minister must convene a selection commission for the unfilled vacancies (in the office of Deputy President or judge) as soon as practicable after the Minister has selected a candidate put forward by the selection commission for the office of President or Deputy President.

Clause 24: Selection process

86.     This clause sets out the overall process which must be undertaken by the selection commission, the composition of which is provided for in Schedule 7, before it makes a recommendation of one name (subsection 10) to the Secretary of State, under clause 24. Subsection (1) sets out the duties of the commission with regard to the particular selection process to be applied to each vacancy under consideration.

87.     Subsections (5), (6) and (7) provide that selection must be made on merit (which is not defined in the Bill and is not to be defined by the Minister); that the commission can only recommend those who meet the eligibility requirements set out in clause 22; and that anyone who is a member of the commission cannot be selected (hence the provisions in Schedule 7 for identifying persons who wish to be considered for a particular vacancy and disqualifying them from membership of the commission).

88.     Subsection (8) provides that the commission must, when making selections for the appointment of judges, also take into account the need for the court to have among its judges knowledge and experience of practice in the law in every part of the United Kingdom. This is intended to allow for the maintenance of the convention that there should generally be at least 2 Scottish judges and 1 from Northern Ireland. The Minister, as provided for by subsection (9), may issue non-binding guidance to the commission about the vacancy that has arisen, for example on the jurisdictional requirements of the court, which the commission must have regard to.

89.     Subsections (2) and (3) list the persons the commission must consult during the selection process (although it may consult others). They are (subsection (2)): senior judges (as defined by clause 54) who are neither on the commission nor willing to be considered for selection, the Minister, the First Minister in Scotland, the Assembly First Secretary in Wales and the Secretary of State for Northern Ireland. In addition (subsection 3), the commission must, if all the "senior judges" for a part of the United Kingdom are not able to be consulted (because they are candidates or members of the commission), consult the next most senior judge in that part who is able to be consulted. This ensures that there will always be some senior judicial input from every part of the United Kingdom into every selection process.

 
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Prepared: 10 January 2005