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

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Clause 40: Changes in Composition

156.     This clause provides for flexibility in the event of the Court being reduced in number (for example due to death or illness) before the end of proceedings.

157.     Subsection (1) provides for this clause to apply if the Court ceases to be duly constituted "because one or more members of the Court are unable to continue". In such a case, subject to any directions which the President may give (subsection (4)), the presiding judge (defined in subsection (6) as the judge who is to preside over the proceedings, or is presiding if they have already commenced) may direct that the Court is still duly constituted (subsection (2)), but only if (subsection (3)) the parties agree, the Court still consists of at least three judges, and at least half of those judges are permanent judges. So the Court may continue with an even number of judges; and if it does, and the judges divide evenly in their decisions, the case must be re-argued before a Court constituted in accordance with clause 39 (subsection (5)).

158.     Because the clauses apply (by virtue of clause 39(6)) to any proceedings from the time that judges are designated to hear proceedings (rather than when the proceedings commence), the Court is able to start the hearing with four judges where five were designated but one is unable to continue, as long as at least two of the four are permanent judges. The provision in clause 40(1), that the section applies to a court constituted in accordance with a direction 'under this section', is to allow for the possibility of two judges falling out of a panel which started off with at least five. This might occur if, for example, a panel of five is designated, and before the hearing commences, one judge is unable to continue, and the presiding judge directs (the parties being in agreement and there still being four judges of whom at least two are permanent) that the Court is still duly constituted; and then another judge is unable to continue, leaving three, of whom two are permanent, and the parties are still in agreement that the proceedings should continue. Then there would be a Court which ceases to be duly constituted "in accordance with this section", but the presiding judge may direct that it is still duly constituted.

Practice and Procedure

Clause 41: Specially qualified advisers

159.     This clause makes provision for the Supreme Court to have specially qualified advisers to assist it in its work for the purpose of hearings that may require specialist support. This derives from existing provision in the Supreme Court of Judicature Act 1891 (section 3) and the Judicial Standing Orders of the House of Lords (Order XVI).

160.     Subsection (1) makes the basic provision empowering the Court, if it thinks it is necessary, to hear and dispose of proceedings, either wholly or in part, with the assistance of one or more specially qualified advisers.

161.     Subsection (2) provides that any remuneration payable to an expert adviser is to be determined by the Court unless otherwise agreed between the adviser and the parties to the proceedings. This remuneration as set out in subsection (3) will form part of the costs of the proceedings.

Clause 42: Making of Rules

162.     This clause, together with clause 43, sets out how Rules of Court will be made for the Supreme Court.

163.     Subsection (1) provides for the President of the Supreme Court to make rules dealing with the Court's practice and procedure. This power is in part analogous to the way in which the House of Lords regulates its work through its Standing Orders and Practice Directions.

164.     Subsection (2) provides that the power to make rules includes the power to provide rules for different cases, including different proceedings such as civil and criminal proceedings and on devolution matters.

165.     Under subsection (3) the President is obliged to exercise the rule-making power with a view to ensuring that the Court is accessible, fair and efficient and the rules are simple and simply expressed.

166.     Subsection (4) places a duty on the President, before making Supreme Court Rules, to consult the Minister, the principal legal professional bodies of the different parts of the United Kingdom (listed in subsection (5)), and such other bodies, representing persons likely to be affected by the Rules, as the President considers it appropriate to consult.

Clause 43: Procedure after Rules made

167.     By virtue of subsection (1), rules made by the President are to be submitted to the Minister, and by virtue of subsection (2), rules so submitted are to come into force on such day as the Minister directs, and be contained in a statutory instrument to which the Statutory Instruments Act 1946 will apply as if it contained rules made by a Minister of the Crown. Such an instrument is, by virtue of subsection (3), to be subject to negative resolution procedure.

Clause 44: Photography etc

168.     This clause removes the prohibition on photography in section 41 of the Criminal Justice Act 1925 and in section 29 of the Criminal Justice Act (Northern Ireland) 1945 (both of which prohibit the taking of photographs in all courts) in relation to the Supreme Court, by changing the definition of 'court' in those provisions to include all courts of justice except the Supreme Court.

Staff and resources

169.     Clauses 45-48 together make provision for the resourcing and funding arrangements for the Supreme Court. They establish the post of Chief Executive of the Supreme Court within a statutory framework, which places certain duties on the Chief Executive and the Minister. The Chief Executive will be responsible for the non-judicial functions of the Court and anything delegated to him by the President under clause 46 (in effect allowing the Chief Executive to be formally responsible for appointing staff to the Court). In doing so the Chief Executive will be answerable to the President, in accordance with whose directions he will be required to act in carrying out his functions (although not so as to override any other duty or restriction on his powers). The Chief Executive will be responsible for ensuring that the court's resources are used to provide an efficient and effective system to support the court in carrying on its business. The Minister has a corresponding duty under clause 47 to provide accommodation for the Court and to provide other resources to allow the Chief Executive to carry out his responsibilities.

170.     The resourcing arrangements will operate as follows: -

  • The Minister will be responsible for directly dealing with the Treasury to secure resources for the Court;

  • The administrative service for the Supreme Court will be headed by a Chief Executive, a civil servant appointed by a process involving an ad hoc commission;

  • The staff of the Court will be civil servants, accountable to the Chief Executive and not to the Minister;

  • The Chief Executive will be principally answerable to, and operating under the day-to-day guidance of, the President of the Court;

  • The President of the Supreme Court and the Chief Executive will determine the bid for resources for the Court in line with Governmental spending review timescales;

  • The bid will be passed to the Minister, who will include it as a separate line in the overall DCA bid submitted to the Treasury;

  • The Treasury will scrutinise the overall DCA bid and approve the overall financial expenditure before putting the bid before the House of Commons as part of the overall Estimates;

  • The House of Commons will approve the overall estimates and transfer resources accordingly;

  • Because the Supreme Court will have its own estimate, the funds approved will be transferred to the Court direct from the Consolidated Fund, not via the DCA;

  • The Chief Executive will be the Accounting Officer for the Supreme Court and so directly accountable to the Court and to Parliament, rather than being subject to the DCA Permanent Secretary as Principal Accounting Officer.

Clause 45: Chief Executive

171.     Subsection (1) establishes the office of Chief Executive, to be appointed under subsection (2) by the Minister after consulting the President of the Court. In accordance with subsection (3) the Chief Executive will be responsible for all the non-judicial functions of the Court and anything delegated to him by the President of the Supreme Court under Clause 46. This means that in effect the Chief Executive will appoint staff for the Supreme Court. Under subsection (4), the Chief Executive will carry out his functions in accordance with any directions given by the President.

Clause 46: Officers and Staff

172.     Subsection (1) makes provision for the President of the Supreme Court to have formal responsibility for appointing staff to the Supreme Court. This function may (under clause 45(3)(a)) be delegated to the Chief Executive who will be able to determine the staffing needs and arrangements in agreement with the Minister and in accordance with the Court's overall budget. Subsections (3) and (4) ensure that, as both the staff of the Court and the Chief Executive will be civil servants, the relevant civil service pension arrangements will apply accordingly.

Clause 47: Accommodation and Other Resources

173.     Under subsection (1) the Minister is responsible for ensuring that the Supreme Court is provided with such accommodation as he thinks appropriate for the Court to carry on its business. The Minister is also responsible for providing such other resources as he thinks appropriate for the Court to carry on its business. This is a complementary clause to clause 48 setting out the duties of the Chief Executive. The Chief Executive will not be able to carry out his duties if the Minister does not provide appropriate resources.

174.     Subsection (2) provides that the Minister can discharge his general duty by directly providing accommodation or other resources or by entering into arrangements with third parties for their provision; and subsection (3) makes available for this purpose certain powers to acquire land for public service.

175.     This clause additionally, under subsection (4), enables the Scottish Ministers to make a proportionate contribution towards the resource running costs of the court. This contribution (which will be directed to the costs of civil business) will be made by a PES transfer from an appropriate budget.

Clause 48: System to support Court in carrying on business

176.     Subsection (1) places the Chief Executive under the duty to ensure that the resources provided under the preceding clause are used to provide an efficient and effective system to support the Court in carrying on its business. The Chief Executive is therefore responsible for the effective administration of the Court. Subsection (2) makes provision for the key responsibilities of the Chief Executive in undertaking his general duty under subsection (1).


Clause 49: Fees

177.     This clause should be read together with clause 50, which makes supplementary provision about fees. Subsection (1) of clause 49 provides for the Minister to have a power, by order (which by virtue of clause 116 is to be by statutory instrument subject to negative resolution procedure) to prescribe the fees payable in respect of any matter dealt with by the Supreme Court. By virtue of subsection (2), this encompasses a power to exempt, remit or reduce fees, and to specify the criteria by which exemptions, reductions and remissions are to operate. Its exercise is, by virtue of subsection (3), subject to a duty on the Minister to have regard to the principle that access to the courts should not be denied.

178.     By virtue of subsections (4)-(6), the exercise of the power is also subject to a requirement of prior consultation of the President and Deputy President of the new Supreme Court and the senior judiciary in each of the three jurisdictions of the United Kingdom, and the principal legal professional bodies in those jurisdictions.

Clause 50: Fees: Supplementary

179.     This clause supplements clause 49. Subsection (1) provides that Supreme Court fees are to be recoverable as a civil debt (mirroring the general position in relation to court fees).

180.     Subsection (2) places the Minister under a duty to take such steps as are reasonably practicable to bring information about fees to the attention of those who are likely to have to pay them.

181.     Subsection (3) defines "Supreme Court fees" to mean fees prescribed in an order under clause 49.

Annual report

Clause 51: Annual Report

182.     Subsection (1) places a duty on the Chief Executive of the Supreme Court to prepare a report as soon as practicable after the end of each financial year (defined in subsection (3)) about the business of the Supreme Court, and to send it to the Minister and to the heads of the three devolved administrations. By virtue of subsection (2), the Minister is required to lay that Report before both Houses of Parliament.


Clause 52: Records of the Supreme Court

183.     This clause amends the Public Records Act 1958 to ensure that records of the Supreme Court are included among the "court records" under the general supervision of the Public Records Office. This is achieved by amending the list in paragraph 4(1) of Schedule 1 to the Public Records Act 1958 to add to the list of courts therein an entry for the Supreme Court.

Clause 53: Proceedings under jurisdiction transferred to Supreme Court

184.     This clause introduces Schedule 9, which makes transitional provision relating to proceedings which are pending in the House of Lords or Judicial Committee of the Privy Council under jurisdiction which is transferred from the House of Lords or the Judicial Committee to the Supreme Court by the Constitutional Reform Act 2005 (as the Bill is to become on enactment). The essence of the approach is that proceedings under such a transferred jurisdiction, which were begun in the House of Lords or Judicial Committee before the date of transfer of that jurisdiction, may be continued thereafter in the Supreme Court as if they had commenced in the Supreme Court, and anything done in accordance with the rules applicable to proceedings in the House of Lords or Judicial Committee (as the case may be) is to be treated as having been done in accordance with the corresponding rules of the Supreme Court. In addition, there is a saving for any acts, decisions or orders of the House of Lords or Judicial Committee in proceedings under a transferred jurisdiction, which will have the same effect, with further proceedings pursuant to or in respect of them being possible, as if they were acts, decisions or orders of the Supreme Court.

Clause 54: Interpretation of Part 3

185.     Subsection (1) defines 'part of the United Kingdom', 'the senior judges' and 'the Supreme Court' for the purposes of the Bill.

186.     Subsection (2) defines the term 'high judicial office' for the purpose of the requirements of eligibility for qualification as a Supreme Court judge in clause 22, and for the purposes of eligibility to serve as an acting judge under clauses 35 and 36. This definition replaces that in section 25 of the Appellate Jurisdiction Act 1876.

187.     Subsection (3) defines the terms 'ordinary judge' and "senior ordinary judge" (which are of particular importance in determining the person before whom oaths are to be taken on appointment, and who will chair and sit on the selection commission provided for in schedule 7, should the President and Deputy President be unable to sit). The "senior ordinary judge" is defined in subsection (3)(b) as the ordinary judge (defined in subsection (3)(a) as a judge of the Supreme Court other than the President or Deputy President) who has served longest as a judge of the court (whether over one or more periods and whether or nor always as an ordinary judge). Subsection (4) "carries over" seniority for this purpose, providing that service as a Lord of Appeal in Ordinary counts as service as judge of the court in defining the senior ordinary judge.



188.     Chapter 1 of Part 4 creates a Judicial Appointments Commission (which is subject to more detailed provisions in Schedule 10), and a Judicial Appointments and Conduct Ombudsman (which is subject to more detailed provisions in Schedule 11). Chapter 2 sets out the process to be followed by the Commission and by the Lord Chancellor (referred to in this part as "the Minister") in appointing the Lord Chief Justice and Heads of Division, the Lords Justices of Appeal, and puisne High Court Judges and other judicial office holders. It provides for the Commission to assist the Minister in relation to other appointments or recommendations for appointment by a Minister of the Crown. Chapter 2 also provides for complaints about the appointments process to be made to the Judicial Appointments and Conduct Ombudsman. Chapter 3 makes provision for a disciplinary procedure in relation to the members of the judiciary, listed in Schedule 12 (which can by order also be applied to office holders whom the Minister has powers to remove from office, such as coroners), applicable when the Minister is considering whether to exercise his statutory powers to remove a judicial office-holder, (powers which, under the enactments conferring them, are exercisable with the concurrence of the Lord Chief Justice); and when the Lord Chief Justice is considering whether to impose any lesser disciplinary sanction on such an office-holder, with the concurrence of the Minister. These lesser disciplinary sanctions include new powers enabling the Lord Chief Justice to advise, warn or formally reprimand judicial office holders as a result of the disciplinary process, and to suspend them in certain circumstances. The Lord Chief Justice also has a power to make regulations and rules about the process, with the agreement of the Minister. Chapter 3 also allows complaints to be made to the Judicial Appointments and Conduct Ombudsman about the handling of judicial disciplinary cases, and for matters to be referred to him by the Lord Chief Justice or the Minister for investigation. Chapter 4 makes provision about interpretation.


189.     The selection for appointment of judges in England and Wales has been primarily the responsibility of the Lord Chancellor. In carrying out this function, he is supported by officials from the Department for Constitutional Affairs. The precise responsibility for the actual appointments themselves varies according to the type of judicial appointment:

  • Appointments to the offices of Lord of Appeal in Ordinary, the Heads of Division of the Supreme Court and Lord Justice of Appeal are made by The Queen on the recommendation of the Prime Minister as the Sovereign's principal adviser. It has been practice that the Prime Minister seeks advice from the Lord Chancellor in the first instance.

  • Appointment to the offices of High Court Judge, Circuit Judge, Recorder, District Judge (Magistrates' Courts), Social Security Commissioners, the Judge Advocate General and the Judge Advocate of Her Majesty's Fleet are made by The Queen on the recommendation of the Lord Chancellor.

  • The Lord Chancellor bears personal responsibility for making a wide range of full-time and part-time appointments to the judiciary, including to the offices of District Judge (Civil) and Deputy District Judge, and to a wide range of tribunals, including certain tribunals with a UK-wide jurisdiction.

190.     The administration of the judicial appointments system is carried out on the Lord Chancellor's behalf by staff of the Legal and Judicial Services Group in the Department for Constitutional Affairs. A principal function of the Group is to supply all the information and advice which the Lord Chancellor requires to enable him to fulfil his responsibilities in this field, and to provide him with the material on which to make a fair and informed judgement about every appointment. This includes corresponding with and informing and interviewing those who are, or may become, candidates for appointment; consulting judges, members of the profession and others as required; administering the selection procedures; following and executing the Lord Chancellor's instructions and guidance, both on individual appointments and candidates; providing feedback as required on individual applications and on his general policy.

191.     The Bill creates a new independent Judicial Appointments Commission, which will assume responsibility for the process of selecting people for judicial appointments in England and Wales and for those appointments to UK-wide tribunals made by the Lord Chancellor. The Judicial Appointments Commission will select one candidate for each vacancy, or several candidates where several vacancies may arise, and report that selection to Minister. The Commission will make selections for appointment of the Lord Chief Justice, Heads of Division, Lords Justices of Appeal and puisne judges of the High Court, and Schedule 12 of the Bill lists the offices below the High Court for which the Commission will make selections (with tribunal members being the largest group of appointments). No one may be appointed to any of these offices who has not been selected by the Commission. The Minister will either appoint or recommend for appointment the selected candidate, or reject a candidate, once, or ask the Commission to reconsider, once. Having exhausted these options of rejection and reconsideration, the Minister must appoint or recommend for appointment whichever candidate is selected. The Bill makes special provision for the appointment of the Lord Chief Justice and Heads of Division and of Lords Justices of Appeal; in these cases the Commission will establish a selection panel of four members, consisting of two senior judges (normally including the Lord Chief Justice) and two lay members of the Commission. The appointments of Lords Justices and above will continue to be made by The Queen formally on the advice of the Prime Minister after the Commission has made a recommendation to the Minister.

192.     Schedule 10 sets out the membership of the Judicial Appointments Commission, and its powers and responsibilities, which will reflect its status as an Executive Non-Departmental Public Body. There will be a lay Chairman and five other lay members, five judicial members, two legal professionals, the holder of an office listed in Schedule 12 and a justice of the peace. They will be supported by a Chief Executive and staff. The Bill requires that selections by the Commission and by any selection panels that it appoints shall be made solely on merit. The Minister will be able to issue guidance to the Commission, which they must have regard to, but subject to that it will be for them to determine the detailed appointments procedures they will follow. Guidance can only be issued after consultation with the Lord Chief Justice and after being approved in draft by both Houses of Parliament.

193.     The Lord Chancellor has statutory powers to remove judicial office holders below the High Court (including tribunal members and lay magistrates) from office for incapacity or misbehaviour. These powers are amended by Schedule 4 so that they can be exercised only with the agreement of the Lord Chief Justice (or in the case of certain UK tribunal members who sit mainly in Scotland or Northern Ireland, with the agreement of the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland as appropriate). The Lord Chancellor has also had a more general disciplinary power in relation to judicial office holders, and has considered complaints about judicial conduct, and where necessary has advised, warned or formally reprimanded office holders. Part 4 of the Bill makes statutory provision for a disciplinary system in relation to judicial office holders, in cases falling short of removal, in which the Lord Chief Justice will have the power to advise, warn or reprimand judicial office holders following disciplinary proceedings, with the agreement of the Minister (the Lord Chancellor). This will not affect the Lord Chief Justice's general ability to speak informally to any judge on any matter which concerns him, without having to inform or obtain the agreement of the Minister. The Lord Chief Justice will also be given a new statutory power to suspend judges from sitting in certain circumstances, with the agreement of the Minister. The Lord Chief Justice will also have the power to make regulations and rules governing disciplinary cases, with the agreement of the Minister, and subject to Parliamentary annulment in the case of regulations. The Judicial Appointments and Conduct Ombudsman will be able to consider complaints about the handling of disciplinary cases.

194.     It will remain the case that judges of the High Court and above can be removed only by the Queen on an Address from both Houses of Parliament.


Chapter 1: Commission and Ombudsman

     Clause 55: The Judicial Appointments Commission

195.     Clause 55 establishes a Judicial Appointments Commission. Schedule 10 makes further provision about the Commission itself. The appointments below the High Court in which the Commission will be involved are listed in Schedule 12.

     Schedule 10: The Judicial Appointments Commission

     Part 1 The Commissioners

196.     This part of Schedule 10 sets out the number and balance of membership of the Judicial Appointments Commission.

     Paragraphs 1-6 The Commissioners

197.     Paragraph 1 requires there to be one chairman and 14 other Commissioners, to be appointed by the Queen on the recommendation of the Minister.

198.     Paragraph 2 provides for the chair to be a lay member. Of the other Commissioners, 5 must be judicial members, 2 must be professional members, 5 must be lay members, 1 other must be the holder of an office listed in Part 3 of Schedule 12 (which lists members of tribunals and other similar office holders who will be appointed by the Minister), and one other must be a lay justice member. The judicial members must be made up of one Lord Justice of Appeal, one puisne judge of the High Court, one judge who is either a Lord Justice of Appeal or a puisne judge of the High Court, one Circuit Judge and one District Judge, Master or Registrar. The two professional members must be a practising barrister and a practising solicitor. A Commissioner only counts towards the total in the category to which he was appointed, so that a lay member, for example, does not become a professional member if he qualifies as a practitioner.

199.     Paragraph 3 specifies that a person cannot be appointed as a Commissioner if he is a civil servant. This is to ensure that the Commission is not subject to any covert governmental influence.

200.     Paragraph 4 sets out further definitions of what is meant by judicial, professional, lay and lay justice member. A judicial member holds one of the offices specified in paragraph 2 and is not a practising lawyer. A professional member is a barrister or solicitor practising in England and Wales (further defined in paragraph 6 as including lawyers who give legal advice under a contract for services). A lay member is an England and Wales resident who has never been a holder of a listed judicial office (that is an office listed in schedule 11) or a practising lawyer. A lay justice member is a justice of the peace who is not a practising England and Wales lawyer and who has never held a listed judicial office (except, optionally, as General Commissioner of Income Tax).

201.     Paragraph 5 allows the Minister to increase the size of the Commission, by increasing the size of any or all of the different categories of Commissioner. He can only do this by order, subject to affirmative resolution in both Houses and with the agreement of the Lord Chief Justice. This is to prevent a Minister seeking improperly to influence selections by altering the balance of the Commission in one direction or another at his own unchecked discretion.

202.     Paragraph 6 provides definitions of terms used in the Schedule.

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Prepared: 10 January 2005