|Constitutional Reform Bill [HL] - continued||House of Commons|
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Clause 25: Report
90. This clause sets out the stage after the commission has made a selection under the process set out in clause 24.
91. Subsection (1) provides that after a selection has been made the commission must submit a report to the Minister stating who has been selected and containing the information set out in subsections (2), (3) and (4) (that information being essentially that which is required to enable the Minister to exercise his options under clause 26 on a properly informed basis).
92. Before choosing to exercise one of his options set out in Clause 26 the Minister, having received the report, must consult under subsection (5) the senior judges (or other judges) who were consulted by the commission, the First Minister in Scotland, the Assembly First Secretary in Wales and the Secretary of State for Northern Ireland.
Clause 26: The Minister's options
93. This clause sets out the Minister's options after he has received a name from the commission and carried out further consultation under clause 25. It works in conjunction with clause 27 which sets out the grounds on which the Minister can exercise two of his options - to reject the selection commission's recommendation or to ask the selection commission to reconsider its recommendation. It outlines the three possible stages of the process and the options the Minister has at those stages.
94. Subsection (1) outlines the three possible stages. The first stage is where a person has been selected under clause 24. The second stage is where a person has been selected following a rejection or reconsideration at stage 1. The third and final stage is where a person has been selected following a rejection or reconsideration at stage 2.
95. Subsection (2) provides the Minister with his options in dealing with stage 1 of the process. He may (a) notify the selection, (b) reject the selection or (c) require the commission to reconsider the selection. Should the Minister exercise options (b) or (c) the process enters stage 2.
96. Subsection (3) provides that during the second stage the Minister can (a) notify the selection (which is to say, notify the Prime Minister of the selection for the Prime Minister to recommend that person to Her Majesty for appointment), having exercised either option (b) or (c) in stage 1; (b) reject the selection if it was made following reconsideration at the first stage; or (c) require the commission to reconsider the selection, but only if it was made following a rejection at stage 1. Should the Minister exercise option (b) or (c) the process enters stage 3.
97. At the third stage, as provided for in subsection (4), the Minister must notify the selection although, as provided for in subsection (5), he may notify a candidate who was reconsidered at stage one or two but not rejected.
98. The Minister's options as set out in this clause can be summarised as follows. He can:
99. If the Minister selects option (b) first, he would ask the selection commission to reconsider. After reconsideration the commission, under clause 28, can still put forward the same name with further reasons or recommend an alternative. The Minister can then put forward either of the recommended candidates (unless he chooses to reject the second candidate put forward).
100. Under (c) the Minister can reject the name provided by the selection commission.
101. If rejection follows reconsideration, under clause 28 the selection commission must submit an alternative candidate. At this point the Minister can either:
102. If the Minister rejects the original name provided by the selection commission, under clause 28 it must submit an alternative candidate giving reasons for their choice. At this point the Minister can either:
Clause 27: Exercise of powers to reject or require reconsideration
103. This clause details the grounds upon which the Minster can exercise his powers to reject or require reconsideration of a selection, as provided for in clause 26.
104. The right of rejection is only exercisable according to subsection (1) when in the Minister's opinion the person selected is not suitable for the office concerned.
105. The right to require reconsideration, as stated in subsection (2), is exercisable under three conditions subject to the Minister's opinion. The Minister can ask for reconsideration if he considers that there is not enough evidence that the person is suitable for office; if he feels there is not enough evidence that person is the best candidate on merit; or if there is not enough evidence that the judges of the court will between them have enough knowledge of, and experience in the laws of each parts of the United Kingdom, following the new appointment.
106. Should the Minister exercise either of these options, under subsection (3) the Minister must provide his reasons in writing.
Clause 28: Selection following rejection or requirement to reconsider
107. This clause makes provision for the process that the selection commission must follow if the Minister requests reconsideration of a selection, or rejects a selection, under clause 26.
108. As provided by subsections (2) and (3) the commission can never put forward a candidate whose selection has been rejected at any stage of the process.
109. Subsection (3) provides that the commission can reselect a candidate whose selection the Minister has requested be reconsidered or provide another candidate, but not a candidate whose selection has already been rejected.
110. Subsection (4) states that the commission must inform the Minister of the person selected following rejection or requirement for reconsideration.
Clause 29: Oath of allegiance and judicial oath
111. This clause provides for every judge of the Supreme Court (which includes the President and Deputy President) to be required to take the oath of allegiance to the Sovereign and the Judicial Oath, as soon as practical, after accepting that office. The required oaths are described in subsection (6) and are those set out in the Promissory Oaths Act 1868. Separate provision is made for the taking of the oaths on appointment as President, Deputy President, and judge.
112. Subsection (1) requires the President to take the oaths in the presence of the Deputy President, or, if there is no Deputy President, the senior ordinary judge ("senior ordinary judge" being defined in clause 54(3)(b)).
113. Subsection (2) requires the Deputy President to take the oaths in the presence of the President, or, if there is no President, the senior ordinary judge.
114. Subsection (3) provides that a judge of the Court (excluding the President and Deputy President - see subsection (5)) must take the oaths in the presence of the President, or, if there is no President, the Deputy President, or if there is no Deputy President, the senior ordinary judge.
115. Subsection (4) provides that the President and Deputy President are required to take the oaths in terms of subsections (1) and (2) whether or not the person appointed as President or Deputy President has previously taken the oaths after accepting another office. For example, a person appointed as President having previously served as Deputy President will be required to take the oaths on appointment as President even though he took them on appointment as Deputy President.
116. Subsection (5) provides that a judge of the Court who becomes a Supreme Court judge by virtue of his appointment directly to the Court as President or Deputy President does not have to take the oaths in terms of subsection (3) - that is to say, in those circumstances, the person appointed as President or Deputy President takes the oaths only once, on account of the appointment as President.
Clause 30: Tenure
117. This clause provides for the full time judges of the Supreme Court to hold office while they are of good behaviour, as is presently the case for Lords of Appeal in Ordinary. This is of course subject to the possibility of resignation, and the provision for retirement, set out in clauses 32 and 33.
118. This clause also provides, consistently with the position of all senior judicial office holders, that removal from office of any judge of the Supreme Court may only be effected following resolutions passed by both the House of Commons and the House of Lords.
Clause 31: Salaries and allowances
119. This clause provides, in terms which reproduce the effect of the provisions governing these matters for Lords of Appeal in Ordinary, for Justices of the Supreme Court to receive a salary and allowance, detailing how the salary and allowance is to be determined and from where the salary and allowance is paid.
120. Subsection (1) states that a judge of the Supreme Court is entitled to a salary, and subsection (2) that the amount of the salary is to be determined by the Minister with the agreement of the Treasury. Subsection (3) makes transitional provision to the effect that at the commencement of the provisions establishing the Supreme Court, the salaries of the first judges of the Supreme Court will remain the same as those received by them as Lords of Appeal in Ordinary immediately before commencement. Subsection (4) provides for these salaries, consistently with other judicial salaries, to be capable of being increased but not reduced.
121. Subsection (5) provides that the salary will be paid out of the Consolidated Fund of the United Kingdom.
122. Subsection (6) provides that the Minister may determine, in agreement with the Treasury an allowance to be paid to a judge of the Court, which will be paid out of money provided Parliament. This is in addition to the judicial salary, to provide flexibility.
Clause 32: Resignation and retirement
123. This clause makes provision for the resignation or retirement of judges of the Supreme Court.
124. Under subsection (1) any judge of the Supreme Court (including the President and Deputy President) may at any time resign from that office. Resignation is effected by being given in writing to the Minister.
125. Subsection (2) makes separate provision for resignation from the office of President or Deputy President. The holder may so resign without resigning from the office of a judge of the Supreme Court. The resignation is again effected by being given in writing to the Minister.
126. Subsection (3) provides for a consequential amendment for section 26(4)(a) of and Schedule 5 to the Judicial Pensions and Retirement Act 1993 (retirement), so that references to "Judge of the Supreme Court" will be substituted for "Lord of Appeal in Ordinary". The effect of this amendment is that the retirement age and associated provisions as to retirement which apply to Lords of Appeal in Ordinary will apply in the same way to judges of the Supreme Court.
Clause 33: Medical Retirement
127. This clause makes provision analogous to that for other senior judicial office holders for vacation of the office of a judge of the Supreme Court (including the President and Deputy President) on medical grounds.
128. Subsection (1) provides for the scope of the clause: it applies if the Minister is satisfied by means of a medical certificate that the person holding office as a judge of the Supreme Court is both disabled by permanent infirmity from performing his duties and for the time being is incapacitated from resigning from his office.
129. In such circumstances, subsection (2) enables the Minister to declare the office of the person in question to be vacated (subject to the conditions in subsection (4)). Subsection (3) provides for this declaration to have effect as though the person in question had himself or herself resigned on the date of the declaration. Subsection (4) requires the Minister, before making a declaration, to secure the agreement of the appropriate judges of the Supreme Court (depending on the office which would be vacated). Without that agreement, the declaration will have no effect. In the case of an ordinary judge (as defined in clause 54(3)(a)), the agreement required is that of the President and Deputy President of the Court; in the case of the President, the agreement required is that of the Deputy President and the senior ordinary judge (as defined in clause 54(3)(b)); and in the case of the Deputy President, the agreement required is that of the President and the senior ordinary judge.
Clause 34: Pensions
130. Subsections (1) and (2) make amendments to the Judicial Pensions Act 1981 and Judicial Pensions and Retirements Act 1993 respectively, to substitute 'Judge of the Supreme Court' for 'Lord of Appeal in Ordinary'. These amendments are to ensure that the pension provision currently enjoyed by the Lords of Appeal in Ordinary will transfer over to the Justices of the Supreme Court, and that individual members of the Supreme Court who were previously Lords of Appeal in Ordinary will retain the pension benefits accrued in the former capacity and that those benefits will continue to accrue in the same way relative to their service as judges of the Supreme Court as they did relative to their service as Lords of Appeal in Ordinary.
131. Furthermore, subsection (3) provides that the amendments made to the 1981 and 1993 acts do not affect the operation of any provision or anything done under a provision in relation to the office of, or service of, Lord of Appeal in Ordinary. This ensures that any retired Lords of Appeal in Ordinary are not affected adversely by the changes to legislation.
Clause 35: Acting Judges
132. This clause makes provision enabling the Supreme Court to have access to additional judges beyond its permanent membership to supplement the permanent members of the Supreme Court where necessary; sets out the mechanism for determining the "pool" from which acting judges will be drawn; and sets out the terms and conditions of any service as an acting judge.
133. Subsection (1) sets out the basic proposition that certain persons may act as judges of the Court if the President so requests. The persons who may be so requested are those who presently hold office as "senior territorial judges" (defined in subsection (8)), and those who are members of the supplementary panel (about which provision is made in clause 36). As provided for in subsection (2) the Deputy President can make such a request if circumstances require.
134. Subsection (3) amends the Judicial Pensions and Retirement Act 1993 with the effect that acting judges cannot sit in the Supreme Court after the age of 75, bringing them into line with the provisions for continued sitting by retired Lords of Appeal in Ordinary and other "Lords of Appeal" (other than the Lord Chancellor) entitled to sit in the House of Lords at present.
135. Subsection (4) provides that any acting judge sitting in the Supreme Court should be treated for all purposes as a permanent judge of the Supreme Court (with the exception of the provisions as to appointment, tenure, remuneration, etc. listed in subsections (5) and (6)), and may accordingly perform any of the functions of a permanent judge of the court.
136. Subsection (7) provides for the remuneration and allowances for acting judges, which is to be determined by the Minister with the agreement of the Treasury and paid from money provided by Parliament.
137. Subsection (8) defines "senior territorial judge", as judges of the Court of Appeal in England and Wales and their counterparts at senior appellate level in Scotland and Northern Ireland.
Clause 36: Supplementary panel
138. This clause makes provision for the constitution of the Court's supplementary panel (from which judges can be drawn to supplement the permanent membership of the court).
139. Subsection (1) provides that there is to be a supplementary panel, and subsections (2) and (3) make provision for its membership on commencement - in effect the same persons, with the exception of the Lord Chancellor and the Lords of Appeal in Ordinary (who will have become the judges of the Supreme Court), who are presently "Lords of Appeal" and able, by virtue of section 5(3) of the Appellate Jurisdiction Act 1876, to sit in proceedings in the Appellate Committee.
140. After commencement, by virtue of subsection (4), a person will become a member of the supplementary panel on ceasing to hold office as a judge of the Supreme Court or as a senior territorial judge, provided approval is given as laid out in paragraphs (a) and (b), unless the person in question is the President of the Court (subsection (5)), in which case, by virtue of subsection (6), that person automatically becomes a member of the supplementary panel, unless he or she notifies unwillingness to become a member of the panel, was removed from office for misbehaviour, or retired from office on grounds of incapacity, as set out in paragraphs (a)-(c). Subsection (7) makes it clear that ceasing to hold office as a senior territorial judge in order to take up office as a judge of the Supreme Court (and vice versa) does not trigger membership of the supplementary panel.
141. Subsection (8) provides for resignation from the panel (by notice in writing to the President). Subsection (9) provides for retirement from the panel, which is to be at the age of 75 or five years after joining the panel, whichever is earlier. Subsection (10) defines "senior territorial judge" in accordance with clause 36(8), and defines the term "qualifying judicial office" as being the office held by a person prior to becoming a member of the supplementary panel and on account of the holding of which that person was entitled to become a member of the panel.
Clause 37: Jurisdiction
142. This clause makes provision for the jurisdiction of the Supreme Court, which is in essence that of the House of Lords in appellate matters together with the jurisdiction of the Judicial Committee of the Privy Council in relation to devolution issues under the Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland Act 1998.
143. Subsection (1) provides that the Supreme Court is to be, as is the House of Lords, a superior court of record.
144. Subsections (2) and (3) effectively reproduce the effect of section 3 of the Appellate Jurisdiction Act 1876, conferring on the Supreme Court the same appellate jurisdiction exercised by virtue of that section by the House of Lords. Other appellate jurisdiction of the House of Lords, and the devolution issues jurisdiction of the Judicial Committee of the Privy Council, is transferred by virtue of subsection (4) and Schedule 8 (which is introduced by that subsection).
145. Since the provisions work by transferring the existing jurisdiction, the appeal process and the types of appeal from each jurisdiction, including leave requirements, and the routes of recourse otherwise, will remain the same as is currently the case for the House of Lords and Judicial Committee of the Privy Council.
146. Subsection (5) makes provision that the Supreme Court will have the power, as does the House of Lords, to determine any questions it deems necessary to determine, for the purposes of doing justice in an appeal to it, under this Act or any other Act.
Clause 38: Relations to other courts etc.
147. This clause makes provision as to the effect of decisions of the Supreme Court as judicial precedents. The essence of the provision is that, as for decisions of the House of Lords at present, a decision on an appeal from one jurisdiction within the United Kingdom should not have effect as a binding precedent in any other such jurisdiction, or in a subsequent appeal before the Supreme Court from another such jurisdiction. There is an exception to this approach for decisions on devolution matters in the exercise of the devolution jurisdiction transferred from the Judicial Committee of the Privy Council, to reflect the existing position for decisions on devolution issues by the Judicial Committee (which are binding in all legal proceedings except for proceedings before the Judicial Committee itself).
148. Subsection (1) provides that nothing in the Bill is to affect the distinctions between the separate legal systems of the parts of the United Kingdom.
149. Subsection (2) provides that a decision of the Supreme Court on an appeal from a court in one part of the United Kingdom is to be regarded as the decision of a court of that part of the United Kingdom. So, for example, a decision on appeal from the Court of Session would be regarded as a decision of a Scottish court, and would have binding effect in Scottish courts accordingly, but would not have binding effect in English courts (although it might, particularly where the law in issue is effectively the same in both jurisdiction, as with the decision of the House of Lords in Donoghue v. Stevenson, be found by English courts to be so persuasive an authority as to be readily followed).
150. Subsections (3) and (4) make provision to maintain the status quo in relation to the effect of decisions in devolution proceedings. The status quo is that, by virtue of section 103(1) of the Scotland Act 1998 (and the corresponding provisions of section 82(1) of the Northern Ireland Act 1998 and paragraph 32 of Schedule 8 to the Government of Wales Act 1998), a decision of the Judicial Committee of the Privy Council in the exercise of its devolution jurisdiction is "binding in all legal proceedings (other than proceedings before the Committee)".
151. Subsection (3) accordingly provides that a decision of the Supreme Court on a devolution matter will not bind the Court itself when subsequently making a decision on a devolution matter, but will otherwise be "binding in all legal proceedings".
152. Subsection (4) defines "devolution matter" by reference not only to those matters which are "devolution issues" in the Scotland Act, Northern Ireland Act and Government of Wales Act, but also to the possibility of a reference to the Court, under the Scotland Act and Northern Ireland Act alone, of the question whether a Bill or part of a Bill of the Scottish Parliament or Northern Ireland Assembly is within the Parliament's or Assembly's legislative competence.
Composition for Proceedings
153. The Supreme Court will, like the House of Lords, be able to sit in panels. Clause 39, together with clause 40, makes provision for the composition of panels. The underlying rule is that no panel should ever consist wholly or predominantly of non-permanent judges, but that otherwise, the Court should have considerable flexibility (essentially mirroring that of the Appellate Committee), including the flexibility, subject to the agreement of the parties, to commence or continue hearing proceedings notwithstanding that a judge is unable to continue.
Clause 39: Composition
154. Subsections (1), (2) and (3) provide for the basic rule that an uneven number of judges equal to or greater than three must be designated to hear any proceedings - there is no flexibility to designate an even number of judges. Given that an uneven number must be designated, permanent judges have to be in the majority in order to ensure that the composition is never wholly or predominantly of non-permanent judges (subsection (1)(c)).
155. This does not mean that the actual hearing cannot commence before an even number of judges, as the judges will by definition have been designated to hear proceedings in advance of the beginning of the hearing proper, and clause 39 is, as subsection (4) makes clear, subject to clause 40, which allows for additional flexibility. Subsection (5) makes it clear that the power to require more than three judges to be designated for particular proceedings or a particular class or classes of proceedings is exercisable by the President of the Court; and subsection (6) makes provision which ensures that the clauses work on the basis that the Court is constituted for proceedings when the judges are designated to hear those proceedings (rather than when the hearing commences).
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