Paragraph 7 Selection of Commissioners

203.     Paragraph 7 provides that in appointing the three senior judicial members of the Commission (the judges drawn from the Court of Appeal and the High Court) the Minister may recommend to Her Majesty only people selected by the Judges' Council, which must give reasons for its selection. The Judges' Council is defined as the body designated for that purpose by the Lord Chief Justice. Other Commissioners will be appointed after being selected by a panel convened by the Minister.

     Paragraph 8 Panels

204.     Paragraph 8 provides for a panel to select the Commissioners, with the exception of the three senior Judges. The panel will comprise a chairman, chosen by the Minister with the agreement of the Lord Chief Justice (or if the post of Lord Chief Justice is vacant then with the agreement of the senior Head of Division); the Lord Chief Justice or his nominee, unless the office of the Lord Chief Justice is vacant, when it will be the senior Head of Division or his nominee; a third member chosen by the chairman; and the chairman of the Commission when there is one and that is not the post being appointed to. Members of the panel must not be civil servants. In addition the chairman of the panel must not be a Commissioner, a member of the Commission's staff, a practising lawyer, a judicial office holder listed in Schedule 12, or a member of the House of Commons. The third member must not be a member of the House of Commons. In selecting the first member, consideration must be given to whether the person being appointed has previously exercised any judicial functions or has any past service as a civil servant, a Commissioner, a member of the Commission's staff, a practising lawyer, a judicial office holder listed in Schedule 12, or any past or present political activity or affiliations which would make them inappropriate for appointment. The first member must apply the same considerations in nominating the third member. These provisions are intended to ensure the neutrality of the panel, including its political neutrality.

205.     Paragraph 9 provides for the Minister to pay the panel fees and expenses.

     Paragraph 10 Selection by a panel

206.     The panel must take account of any views expressed by the Bar Council and Law Society in appointing the barrister and solicitor members respectively. Before selecting the chairman and the other lay members, the panel must consider the same questions that apply in selecting the first and third members of the panel, in relation to whether they have exercised any functions or have any political affiliations which make them inappropriate for the appointment. Those functions are expressed in the same terms as for the first member as set out above. In selecting lay members, the panel must seek to ensure, as far as practicable, that one of the selected lay members has special knowledge of Wales.

Paragraph 11 Vice-chairman

207.     This paragraph provides that the most senior judicial member of the Commission will be the vice-chairman. In the absence of the chairman, the vice-chairman will be able to exercise the functions of the chairman, other than those of sitting on the panel for selecting members of the Commission and sitting on the selection panels for the Lord Chief Justice and Heads of Division and for Lords Justices of Appeal.

Paragraphs 12- 15 Term of office etc. of Commissioners

208.     Paragraphs 12 to 15 provide for the term of office of the Commissioners. They will serve for a fixed term of up to five years and they will be able to serve for further fixed terms of up to five years, making a total of ten years, but no longer. Commissioners lose their places if they cease to qualify for the category of membership under which they were appointed. However, the Minister may allow a Commissioner other than the chairman to continue in office for a specified period even if they have ceased to fall within the category to which they were appointed. For example, if a member had particular skills or a background which was required for a particular competition that was being run by the Commission, then the Minister might allow him to continue in office until the competition was over. Commissioners also lose office if they are appointed to the civil service, but they may not be continued in office where this is the case. If a Commissioner resigns he must do so in writing to the Queen. Commissioners can be removed from office by the Queen on the recommendation of the Minister. Paragraph 15 (2) specifies the conditions in which the Minister may recommend that a Commissioner be removed from office. They are that the person has failed to exercise their functions for a continuous period of six months; or they have been convicted of an offence; or have been made bankrupt; or are otherwise unfit to hold office or unable to exercise its functions.

Paragraph 16 Term of office etc. of chairman

209.     The chairman ceases to be a chairman if he ceases to be a Commissioner.

Paragraph 17 Salary, allowances and expenses

210.     This paragraph makes provision for the Commission to pay fees, expenses, pensions and any other allowances in respect of Commissioners and former Commissioners. These payments will be determined by the Minister.

Paragraph 18 Code of conduct

211.     This paragraph specifies that there may be a code of conduct to be observed by the Commissioners, which would be issued and revised as appropriate by the Minister.

Part 2 The Commission

212.     Part 2 sets out the status and functions of the Commission.

Paragraph 19 Status of the Commission and its property

213.     This paragraph specifies that the Commission is not to be regarded as part of the Crown or, therefore, of the Government; it will be a non-departmental public body.

Paragraph 20 Powers

214.     This paragraph allows the Commission to do anything to enable it to perform its functions, but does not allow the Commission to borrow money unless the Minister has given permission for it to do so.

Paragraph 21 Committees

215.     This paragraph allows the Commission to establish committees, and its committees to establish sub-committees, in order for it to undertake its business, and allows the Commission to delegate activities to these committees and sub-committees. Only Commissioners may be members of the committees and sub-committees. Committees or sub-committees charged with making selections for judicial appointments must include at least one judicial and one lay member. The Commission will of course be advised by its staff, and by anyone else invited to give advice, and it may rely on interviewing panels made up of non-Commissioners, but final decisions are the responsibility of the Commissioners. The requirements of this paragraph in relation to committees and sub-committees do not apply to the selection panels for senior appointments, which are provided for separately.

Paragraph 22 Procedure and proceedings

216.     This paragraph specifies that the Commission may control how it conducts its business and those of its committees and sub-committees including the numbers of members that must be present to make the proceedings valid, which in the case of a committee or sub-committee exercising functions of selection set out in Part 4 of the Act must be three. The proceedings of the Commission or a committee or a sub-committee are still valid even if one of the posts on the Commission is unoccupied or if the appointment of a member is defective.

Paragraph 23 Staff

217.     This paragraph makes provision for the Commission to appoint a Chief Executive and staff and to include staff who may transfer from other government departments to enable it to undertake its objectives. The Minister has to agree to the appointment of the Chief Executive. The terms and conditions of service with the Commission will be set by the Commission and agreed by the Minister. The Commission will pay staff, as set out in their terms and conditions and in doing so will take account of the pay and terms and conditions operating in the Civil Service. The Commission will appear in Schedule 1 to the Superannuation Act 1972. The Commission must pay for any increase attributable to its inclusion in the Schedule to the Superannuation Act 1972 that the Minister of the Civil Service requires. Staff in the Commission are not servants or agents of the Crown, neither do they have status, immunity or privilege of the Crown.

Paragraph 24 Arrangements for assistance

218.     This paragraph allows for the Commission, with the agreement of the Minister, to make arrangements for people to provide assistance to it. This would enable it to contract out services as it sees fit and in doing so to pay for such services.

Paragraph 25 Appointments and arrangements by the Minister

219.     This paragraph allows for the Minister to appoint a Chief Executive for an interim period prior to a Chief Executive being appointed in accordance with paragraph 23(1)(a). The Chief Executive appointed by the Minister may undertake matters on behalf of the Commission including incurring expenditure, appointing staff and making arrangements for people to provide assistance to the Commission subject to any directions given by the Minister.

Paragraph 26 Arrangements by the Minister

220.     This paragraph allows the Minister to appoint staff to the Commission and make contracting out arrangements as appropriate. The Minister's cannot exercise these powers after the end of three years from the date on which the Commission is first constituted under paragraph 1, or at such earlier time as the Commission itself may decide. If a Chief Executive has been appointed to the Commission, the Minister cannot exercise these powers without the Chief Executive's agreement.

Paragraph 27 Power to transfer staff to employment of the Commission

221.     This paragraph makes provision for the Minister to provide regulations for relevant staff to be transferred to the Commission. Such staff must be current civil servants who are providing assistance in the Commission. Before making these regulations the Minister must consult organisations that appear to him to represent the interests of those likely to be affected by the regulations, such as Trade Unions. The Minister can only exercise this power before the Commission is first constituted in accordance with paragraph 1 and, with the agreement of the Commission, during the period of three years from that time.

Paragraph 28 Delegation to staff

222.     This paragraph provides for the Commission, a committee or sub committee or the Chief Executive to delegate any activities to staff, secondees, and to people providing assistance e.g. those with whom contracting out arrangements are made or who are providing services in connection with such arrangements. The Commission, a committee or a sub committee cannot delegate its function of making selections in relation to judicial appointments.

Paragraph 29 Delegation and contracting out of superannuation functions

223.     This paragraph allows for the Chief Executive to assume powers in relation to the Superannuation Act 1972 and such powers can be delegated by the Chief Executive to anyone he authorises. The Chief Executive or his delegate may authorise the contracting out of any superannuation functions but the Commission or the Chief Executive may revoke such actions at any time.

Paragraph 30 Inspection of documents

224.     This paragraph allows for the Commission to allow anyone authorised by the Minister, for example auditors, to look at or to copy accounts and any other papers which the Minister considers relate to the Commission's expenditure. In doing this, the Commission must give details of the information contained in the accounts and any other material.

Paragraph 31 Financial provisions and directions

225.     This paragraph provides for the Minister to pay the amount of money to the Commission that he determines to be appropriate for it to exercise its functions. It also allows the Minister to require the Commission not to incur specific or total expenditure above a specified threshold without the consent of the Minister and to follow specified procedures in relation to it's costs and expenditure, to ensure he has the appropriate financial control over the Commission, for which he will be ultimately accountable to Parliament.

Paragraph 32 Accounts and audit

226.     This paragraph obliges the Commission to maintain proper financial systems and to prepare accounts each financial year, which are an accurate reflection of its income and expenditure. In preparing its accounts, which must be sent to the Minister when he directs, the Commission must comply with any instructions from the Minister and the Treasury. The accounts must be sent to the Comptroller and Auditor General by the 31st August for the financial year last ended, who will scrutinise them and prepare a report which, together with the accounts, will be laid before each House of Parliament.

Paragraph 33 Reports

227.     This paragraph specifies that the Commission will produce annually for the Minister a report detailing its activities. The Minister, after consulting the Lord Chief Justice, may oblige the Commission to deal with any particular subject in all or any of its annual reports. In addition, the Minister may require the Commission to report at any time on any matter he directs. The annual report must be laid before Parliament and published. Other reports which, for example, might contain confidential information, would not be laid before Parliament.

Paragraphs 34 - 36 Documentary evidence

228.     These paragraphs allow for a Commissioner or an authorised member of the Commission's staff to sign under the Seal of the Commission to authorise documentary evidence. Contracts and instruments need not be under the Seal if entered into by properly authorised individuals designated for a general or specific purpose. A document that is under the Seal of the Commission or signed on behalf of the Commission is to be received in evidence and is to be taken to be duly authorised unless the contrary is proved.

Paragraph 37 General

229.     This paragraph specifies that the Commission's first financial year begins when the Commission is established and ends the following 31st March. Subsequent financial years run from 1st April to 31st March. Commissioners are disqualified from election to the House of Commons by inserting a reference to the Judicial Appointments Commission into Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975. The Commission is included in the list of public authorities for the purposes of the Freedom of Information Act 2000 by inserting a reference to the Commission into Part 6 of Schedule 1 to that Act.

     Clause 56: The Judicial Appointments and Conduct Ombudsman

230.     Clause 56 establishes a Judicial Appointments and Conduct Ombudsman, which is covered in greater detail in clauses 85 to 91, clauses 100 to 103 and in Schedule 11.

     Schedule 11: The Judicial Appointments and Conduct Ombudsman

231.     Schedule 11 provides for the constitution and procedure of the Judicial Appointments and Conduct Ombudsman.

     Paragraphs 1 and 2 The Ombudsman

232.     These paragraphs provide for the Ombudsman to be appointed by the Queen on the recommendation of the Minister, and for him not to be a practising lawyer or a holder of a judicial office listed in Schedule 12.

     Paragraphs 3-5 Term of office etc. of Ombudsman

233.     These paragraphs provide that the Ombudsman will be appointed for a fixed period of no more than five years in the first instance. He may serve for no more than ten years in all. There are provisions for his resignation or removal from office, and grounds for the latter are set out. They are that the Ombudsman has failed to exercise their functions for a continuous period of six months; or they have been convicted of an offence; or have been made bankrupt; or are otherwise unfit to hold office or unable to exercise its functions.

     Paragraph 6 Salary, allowances and expenses

234.     This paragraph provides for the Ombudsman's remuneration and pension, and for the possibility of the payment of compensation in special circumstances on his ceasing to hold office.

     Paragraph 7 Acting Ombudsman

235.     This paragraph allows for the appointment of an acting Ombudsman in the circumstances set out in sub-paragraph 7(1). These are where the office became vacant, if the Minister considered that the Ombudsman was unable to exercise his functions or if there was a conflict of interest in relation to a particular matter. The person so appointed would have to be eligible for appointment as Ombudsman. The paragraph also provides for the payment and pension of the acting Ombudsman and for the circumstances in which his appointment may come to an end, for instance because the situation that gave rise to him being needed has come to an end.

     Paragraph 8 Status of the Ombudsman

236.     This paragraph provides that the Ombudsman is to be a corporation sole. The Ombudsman will be an independent statutory office holder.

     Paragraph 9 Powers of the Ombudsman

237.     Paragraph 9 allows the Ombudsman to do anything to enable him to perform his functions, but does not allow him to borrow money or acquire real property unless the Minister has given permission, or to appoint staff other than in accordance with paragraph 10.

     Paragraph 10 Arrangements for assistance

238.     Paragraph 10 allows the Ombudsman, with the agreement of the Minister, to make arrangements for assistance to be provided to him. This would include contracting out services as it sees fit and in doing so to pay for such services. It is intended that the Ombudsman will be supported by civil servants seconded to his office, as happens with the Parliamentary Commissioner.

     Paragraph 11 Arrangements by the Minister

239.     Paragraph 11 allows the Minister to make such arrangements for assistance for the Ombudsman if the latter has not done so.

     Paragraph 12 Delegation of functions

240.     Paragraph 12 allows the Ombudsman to delegate his functions, but requires him to sign any report or recommendation.

     Paragraph 13 Financial provisions and directions

241.     Paragraph 13 provides for the Ombudsman's expenses to be met by the Minister, and for the latter to be able to issue him with directions on the procedures to be used in relation to his costs and expenditure, and on limits in relation to expenditure, or any particular type of expenditure, above which the Minister's prior approval must be obtained.

     Paragraph 14 Reports

242.     Paragraph 14 provides that the Ombudsman must produce an annual report which must be laid before Parliament and published. The Minister may direct him to deal with a particular matter in either that report or an ad hoc one. There will be no statutory requirement for an ad hoc report to be laid before Parliament or published.

     Paragraph 15 Documentary evidence

243.     Paragraph 15 provides that a document signed by or on behalf of the Ombudsman is to be received in evidence, unless proved to be inauthentic.

Paragraph 16 General

244.     Paragraph 16 specifies what is meant by financial year, the first of which will begin when the Commission is established and end the following 31st March. The Ombudsman will be barred from election to the House of Commons by inserting a reference to the post into Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 and will be listed as a public authority for the purposes of the Freedom of Information Act 2000 by inserting a reference to the post into Part 6 of Schedule 1 to that Act.

     Chapter 2: Appointments

     General Provisions

     Clause 57: Merit and good character

245.     Clause 57 requires that selections by the Commission (or a selection panel, in relation to senior appointments) must be solely on merit, and that the selecting body must be satisfied that the person selected is of good character.

Clause 58: Guidance about procedures

246.     Clause 58 provides a power for the Minister to issue guidance to the Commission or a selection panel about the exercise of its functions of identifying persons willing to be considered for selection and assessing them. The purposes for which guidance may be given include the encouragement of diversity in the range of persons available for selection. The Commission and any selection panel under it must have regard to such guidance. Guidance cannot overrule the statutory requirements that selections be made solely on merit, and that those selected be of good character. The procedure for issuing the guidance is set out in clause 59.

Clause 59: Guidance: supplementary

247.     Clause 59 provides that before issuing any guidance under clause 58 the Minister must consult the Lord Chief Justice and lay a draft of the proposed guidance before Parliament. The draft guidance will be subject to the affirmative resolution procedure. Guidance may be revised and reissued from time to time, in which case the same procedures must be complied with. Guidance may also be revoked by order; such an order is subject to the negative resolution procedure by virtue of clause 116(5).

Lord Chief Justice and Heads of Division

     Clause 60: Selection of Lord Chief Justice and Heads of Division

248.     Clause 60 provides that recommendations to the Queen to appoint candidates to the senior judicial posts of Lord Chief Justice and Heads of Division (the Master of the Rolls, President of the Queen's Bench Division, President of the Family Division and Chancellor of the High Court) can only be made in accordance with the procedures set out in the Bill. If the post of Lord Chief Justice is vacant the Minister must trigger procedures to fill the vacancy. If one of the other posts is vacant the Minister must recommend an appointment unless the Lord Chief Justice agrees that the post should be left vacant. Before asking the Commission to start the process of making a selection the Minister must first consult the Lord Chief Justice, unless that is the vacant post.

Clause 61: Selection Process

249.     Clause 61 provides that on receiving a request to select a person for appointment as Lord Chief Justice or one of the Heads of Division, the Commission must appoint a selection panel, which will decide the process to be followed and make the selection, of one person for each vacant post. The panel must consult the current holder of the relevant office, if that is practicable, and will be given administrative support by the Commission, of which it will be a committee. Selection panels for senior appointments are a special form of committee of the Commission.

Clause 62: Selection Panel

250.     The selection panel will have four members. The first member will be the most senior Supreme Court judge who was a judge of England and Wales before being appointed to the Supreme Court and who is not disqualified, or another senior Judge nominated by him. He will chair and will have a casting vote. The second member will be the Lord Chief Justice or his nominee, except where that is the post being considered or there is no Lord Chief Justice, in which case it will be another senior judge chosen by the most senior Supreme Court Judge. The third member will be the chairman of the Commission or his nominee, or if that post is vacant or the chairman is unavailable and has been unable to make a nomination, one of the lay members of the Commission chosen by themselves. The fourth member will be a lay member of the commission chosen by the third member. A judge who is the current holder of the office being selected for, or who is willing to be considered for selection, is disqualified from being a member of the panel.

     Clause 63: Report

251.     After making its selection the panel must report to the Minister, in a form approved by him, telling him who has been selected and providing him with any other information he requires. After submitting its report the panel must provide any further information the Minister requires.

Clause 64: The Minister's options

252.     When the Minister receives the report informing him of the person selected by the panel, he has the options of recommending that person for appointment; rejecting that person and requiring a different name to be put forward; or requiring the selection panel to reconsider its selection. This is stage 1 of the process. If the Minister rejects the selection or requires reconsideration, the process moves into stage 2: the panel puts a name to the Minister, and the Minister may recommend the appointment of the candidate; he may reject the selection (but only if he has not already used that power at stage 1); or he may require reconsideration (but only if he has not already used that power at stage 1). If the Minister rejects the selection or requires reconsideration, the process moves into stage 3: the panel again puts a name to the Minister. This time he must recommend the appointment of the latest selected candidate, or of a candidate selected in stage 1 or stage 2 whose name was not resubmitted by the panel after reconsideration, but who has not been rejected.

     Clause 65: Exercise of powers to reject or require reconsideration

253.     The Minister can only reject a selection outright if, in his opinion, the person selected is not suitable for the office concerned. He can only require reconsideration if, in his opinion, there is not enough evidence that the selected person is suitable for the office concerned, or there is evidence that the person is not the best candidate on merit. If the Minister either rejects a selection or requires it to be reconsidered, he must give his reasons in writing.