Clause 66: Selection following rejection or requirement to reconsider

254.     If the Minister rejects a candidate at stage 1 or stage 2, the panel must make a new selection, and may not reselect the rejected candidate, or reselect a candidate whose selection it previously withdrew after reconsideration. If the Minister requires reconsideration at stage 1 or stage 2, the panel may confirm its selection, or may select a different person, but may not select a candidate who has already been rejected. The panel must inform the Minister of its selection. These provisions do not prevent a rejected candidate, or one whose selection was withdrawn after reconsideration, from being selected for appointment on a subsequent occasion when the Minister makes a request for a selection.

Lords Justices of Appeal

Clause 67: Selection of Lords Justices of Appeal

255.     A similar process applies to the appointment of Lords Justices of Appeal. Clause 67 provides that a person may only be recommended for appointment to one of these posts in accordance with the procedures in the Bill. If there is a vacancy, the Minister must make a recommendation to fill it unless the Lord Chief Justice agrees otherwise. A vacancy arises when a Lord Justice of Appeal vacates his office. Before asking the Commission to select someone, the Minister must consult the Lord Chief Justice.

Clause 68: Selection Process

256.     When the Minister makes a request the Commission must appoint a selection panel, which will determine the procedure to be applied, apply the process and make a selection of one person for each vacancy. The panel is a committee of the Commission, which will provide it with administrative support.

Clause 69: Selection Panel

257.     For the appointment of Lords Justices, the selection panel will consist of four members. The first member is the Lord Chief Justice or another senior judge nominated by him, who will chair and have a casting vote; the second member is one of the Heads of Division or a Lord Justice chosen by the Lord Chief Justice; the third member is the Chairman of the Commission or his nominee unless there is no chairman or he is unavailable and has not made a nomination, in which case the third member is a lay member of the Commission selected by the lay members of the Commission; and the fourth member is another lay member of the Commission chosen by the third member. No one who is willing to be considered for selection may be a member of the panel. No nominee may represent more than one person or be a person on the panel in another capacity.

Clause 70: Report

258.     When the panel has selected someone, it must report to the Minister, in a form approved by him, with the name of the person selected and any other information he requires. After submitting the report it must provide any further information the Minister requires.

Clause 71: The Minister's options

259.     As in relation to the appointment of the Heads of Division, 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 72: Exercise of powers to reject or require reconsideration

260.     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.

Clause 73: Selection following rejection or requirement to reconsider

261.     If the Minister rejects a selection, the panel cannot put forward the same candidate, or one whose selection has already been withdrawn after being reconsidered. If he requires reconsideration, the panel may reselect the same candidate, but not one who has already been rejected. In either case, the panel must inform the Minister of its new or reconsidered selection. A person who has been reconsidered or rejected is not prevented from being selected by the panel in response to a subsequent new request from the Minister to select someone for appointment as a Lord Justice.

Puisne Judges and other office holders

Clause 74: Selection of puisne judges and other office holders

262.     Clause 74 says that clause 75 applies to a recommendation for the appointment by the Queen of a puisne judge of the High Court; a recommendation for the appointment by the Queen to any of the offices listed in Part 1 of Schedule 12; and an appointment by the Minister to any of the offices listed in parts 2 and 3 of Schedule 12. The Minister has a power to amend the Schedule by adding offices, subject to the affirmative resolution procedure in Parliament, and may remove or amend a reference to an office, following the abolition or change of name of that office, subject to the negative resolution procedure in Parliament.

Schedule 12: the Judicial Appointments Commission: relevant functions and offices

263.     Schedule 12 lists in Part 1 judicial and tribunal appointments below the High Court which are formally made by the Queen, with the relevant appointing powers; Part 2 lists judicial and other appointments made by the Minister to posts whose holders will not be eligible to be appointed as a member of the Judicial Appointments Commission under Schedule 10 paragraph 2(2)(d); Part 3 lists appointments made by the Minister to those tribunal and similar posts whose holders will be eligible to be appointed as a member of the Judicial Appointments Commission under Schedule 10 paragraph 2(2)(d). None of these appointments may be made unless the Commission has selected the person concerned.

Clause 75: Request

264.     Appointments or recommendations for appointment as a puisne judge of the High Court or to any of the offices listed in Schedule 12 can only be made in accordance with the requirements of the Bill. If there is a vacancy, the Minister must make an appointment or a recommendation to fill it unless the Lord Chief Justice agrees otherwise. A vacancy arises when a High Court judge or Schedule 12 office holder vacates his office. Before asking the Commission to select someone, the Minister must consult the Lord Chief Justice.

Clause 76: Selection Process

265.     Clause 76 requires the Commission to decide on and run a selection process and make a selection of one person for each post; in the course of doing so it must consult the Lord Chief Justice and another person who has held the office concerned or has relevant experience. If the selection process has not identified candidates of sufficient merit to be appointed, the Commission will not be able to make a selection, and clause 81 will come into effect.

Clause 77: Report

266.     Clause 77 provides that after it has run the selection process, the Commission must submit a report to the Minister which describes the process; names the person selected for each post, or states if it has not been able to make a selection; states any recommendations which the Lord Chief Justice and the other person with relevant experience made when they were consulted under clause 76 and gives reasons if the Commission has not followed their recommendations; and contains any other information required by the Minister. After submitting the report the Commission must provide any further information required by the Minister.

Clause 78: The Minister's options

267.     In the same way as in relation to more senior appointments, when the Minister receives the report informing him of the person selected by the Commission, he has three options. He can recommend or appoint the selected person; reject that person and require a different name to be put forward; or require the Commission 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 Commission 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 Commission 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 Commission after reconsideration, but who has not been rejected.

Clause 79: Exercise of powers to reject or require reconsideration

268.     The Minister can only use his power in clause 78 to reject a selection outright if, in his opinion, the person selected is not suitable for the office concerned, or for particular functions of that office. 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 for particular functions of that office, 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.

Clause 80: Selection following rejection or requirement to reconsider

269.     If the Minister rejects a selection, the Commission must submit a new name it has not previously selected for the post. If the Minister requires the Commission to reconsider, it may submit the same name, but not the name of someone who has already been selected and rejected. This does not prevent someone being selected in a subsequent appointments process. Having made its selection, the Commission must inform the Minister.

Clause 81: Reconsideration of decision not to select

270.     Clause 76, which provides for the Commission to apply a selection process in response to a request from the Minister, allows for the fact that the Commission may find that the selection process has not identified candidates of sufficient merit for them to make a selection. Clause 81 provides that if the Commission informs the Minister that it is unable to make a selection because there are no candidates of sufficient merit, he may require it to reconsider, and they must inform him of any person then selected. If the Commission makes a selection on reconsideration, the Minister will have the same options in relation to appointment as in ordinary cases.

     Clause 82: Withdrawal of request

271.     Clause 82 provides that, after consulting the Lord Chief Justice, the Minister may withdraw a request to the Commission to select candidates for appointment as puisne judges of the High Court or below. He may not do so, however, if he has acted on the selection and appointed or recommended for appointment the person or persons selected in response to his request. If a request is withdrawn, this must be done in writing, and the Minister must give his reasons for doing so. The Minister may make a new request for a selection to be made in the same or different terms. This power could be used, for example, either if the Minister were so concerned about the quality of a particular selection process that he wished to abort the whole process and start again, or, if the requirements of the courts changed during the course of a long selection process, and he no longer needed to appoint the number or kind of judicial office holders originally envisaged. In either case he would be able to request a new selection to be made.

Clause 83: Scotland and Northern Ireland

272.     The Lord Chancellor has responsibility for appointing members of certain tribunals with a UK-wide jurisdiction, some of whose members sit wholly or mainly in Scotland or in Northern Ireland. Clause 83 provides that where consultation is required under sections 75(6), 76(3) and 82(2) the Lord President of the Court of Session, or the Lord Chief Justice of Northern Ireland will be consulted if the consultation appears to relate to an appointment of a person that exercises functions wholly or mainly in Scotland or Northern Ireland respectively, rather than the Lord Chief Justice of England and Wales.

     Assistance in connection with other appointments

     Clause 84: Assistance in connection with other appointments

273.     In addition to his responsibilities for senior judicial appointments in England and Wales and the other judicial appointments listed in Schedule 12, the Lord Chancellor has a role in identifying, nominating or recommending candidates for other judicial posts, including, for example, members of various international courts and tribunals. Many of these are ad hoc appointments, they are not judicial appointments in England and Wales, and in some cases the appointments are not formally within the remit of the United Kingdom Government; it is therefore not possible for them to be listed in Schedule 12 and placed formally within the remit of the Judicial Appointments Commission. Clause 84 therefore gives the Lord Chancellor the power to ask the Commission for assistance in such cases. This assistance may range from merely giving advice on how to proceed to running a selection process and selecting a candidate. Before requiring the Commission to give ad hoc assistance of this kind, the Minister must consult the Lord Chief Justice and the Commission itself.

     Complaints and references

     Clause 85: Complaints: interpretation

274.     Clause 85 describes two types of complaint about the appointment process: a Commission complaint, where the complaint is about the Commission's handling of a candidate for judicial appointment's application; and a departmental complaint, where the complaint is about the Minister or his department's handling of the application. Those entitled to complain are those who have applied for selection or have been selected, and claim to have been adversely affected by the maladministration about which they are complaining. It will not be possible under the Act for other members of the public to complain about the fact that someone else has, or has not, been selected for judicial appointment.

Clause 86: Complaints to the Commission or the Minister

275.     Clause 86 requires the Commission and the Minister to make arrangements for handling the complaints made to them. However, it will not be mandatory for either of them to investigate a complaint that is made more than 28 days after the matter complained of. Complainants will need to make a complaint under this clause before they can complain to the Ombudsman about maladministration in making an appointment.

     Clause 87: Complaints to the Ombudsman

276.     Clause 87 provides that the Ombudsman must consider complaints which have been made under clause 86 if the complainant refers the complaint on to the Ombudsman within 28 days of the complainant being notified of the Commission or Minister's decision in relation to their original complaint. If the Ombudsman does not think the complaint requires investigation he must inform the complainant; otherwise he must conduct an investigation. The Ombudsman has a discretion to consider complaints received out of time. Any complaints made to the Ombudsman must be in a form approved by him. Clause 82 goes on to provide that unresolved complaints made to the existing Commissioners for Judicial Appointments at the time these provisions are brought into force will be transferred to the Ombudsman, who will have a discretion to investigate them. No further complaints to the Commissioners for Judicial Appointments about such matters will be possible.

     Clause 88: Report and recommendations

277.     The Ombudsman must prepare a report on his findings on a complaint, with any recommendations, including any recommendation for the payment of compensation. Compensation would only be payable for loss suffered as a result of maladministration, and not in respect of any earnings the complainant would have received had his application for appointment been successful.

Clause 89: Report procedure

278.     The Ombudsman must submit his report in draft to the Minister, and to the Commission, if it was a Commission complaint. The Ombudsman must have regard to their proposals for amendment, and if their proposals are not reflected in his final report he must include a statement of those proposals. The Ombudsman must send the final report to the Minister and, if it was a Commission complaint, to the Commission. He will also send a copy of the report to the complainant, but this version is not to contain confidential information relating to someone other than the complainant and the disclosure of which would otherwise be prohibited by Clause 111.

     Clause 90: References by the Minister

279.     Clause 90 allows the Minister to refer to the Ombudsman any matters relating to the Commission's procedures, and for the Ombudsman to report on his investigations. The report, which must be signed by the Ombudsman, will include his findings and any action he recommends.

     Clause 91: Information

280.     The Commission and the Minister must provide the Ombudsman with the information he needs relating to his investigations.

     Miscellaneous

Clause 92 : Consultation on appointment or assignment of lay justices

281.     This clause inserts a new subsection (2A) into Section 10 of the Courts Act 2003, which sets out the appointments process for lay justices. This provision provides that, following the two stage process of appointment and assignment provided for in the Courts Act, the Minister will be obliged to consult people who have special knowledge of matters relevant to the appointment of a lay justice for a particular area. In practice, the Minister is likely to meet this requirement by consulting the Local Advisory Committee.

Clause 93: Disclosure of information to Commission

282.     Clause 93 allows the Commission to carry out confidential checks on applicants for judicial appointment. If an applicant is selected for appointment, checks are carried out with the police, the National Criminal Intelligence Service, the National Crime Squad, the Inland Revenue and Customs and Excise. The Minister will also be able to designate other bodies with which confidential checks may be made by order under the negative resolution procedure. These are likely to include the Law Society in relation to solicitors, the Bar Council in relation to barristers, and the General Medical Council in relation to the appointment of medical practitioners to certain tribunals. The material that is required is for the purposes of deciding whether the applicant is suitable to hold judicial office.

Chapter 3: Discipline

     Procedures

     Clause 94: Disciplinary Powers

283.     Clause 94 provides for there to be a disciplinary system in relation to senior judicial office holders in England and Wales and the holders of offices listed in Schedule 12. The Minister may only exercise his statutory powers to remove judicial office holders in accordance with prescribed procedures (which are defined by clause 104 as procedures prescribed by the Lord Chief Justice with the agreement of the Minister in regulations made under Clause 96 or rules made under clause 98). Following the formal disciplinary process the Lord Chief Justice may advise, warn or formally reprimand a judicial office holder, but only in accordance with prescribed procedures and with the agreement of the Minister.

284.     The Lord Chief Justice may also, with the agreement of the Minister, suspend a judicial office holder from exercising the functions of his office if the office holder is subject to criminal proceedings; is serving a sentence for a criminal offence; is subject to disciplinary proceedings following a conviction; or if, following a criminal conviction, it has been decided not to remove the judicial office holder from office, but the Lord Chief Justice and Minister agree that a period of suspension is required in order to maintain confidence in the judiciary. Senior judges may be suspended during proceedings for an Address in Parliament to remove them from office. Office holders who are listed in Schedule 12 may be suspended during criminal or disciplinary investigations, prior to any conviction.

     Clause 95: Disciplinary powers: interpretation

285.     Clause 95 defines for the purposes of clause 94 when a judge is subject to criminal proceedings, or to proceedings for an Address in Parliament, and what the meaning of 'judicial office', 'senior judge' and 'sentence' is. It provides that 'subject to disciplinary procedures' and 'under investigation for an offence' may be defined in regulations.

     Clause 96: Regulations about procedures

286.     Clause 96 provides that the Lord Chief Justice may, with the agreement of the Minister make regulations governing the handling of judicial disciplinary cases. These regulations will be made by statutory instrument as though they had been made by a Minister, and will be subject to the negative resolution procedure in Parliament. It is intended that the regulations will provide the structure of the complaints and discipline system, and will include, for example, provisions relating to the judicial investigation of serious complaints and the possibility of referring serious complaints to a review body to consider the relevant facts and allegations and advise the Lord Chief Justice and Minister.

     Clause 97: Contents of Regulations

287.     Clause 97 provides some more detail about what regulations made by the Lord Chief Justice under clause 96 may contain. These matters include the procedures to be followed; any time limits for an investigation; the persons by whom an investigation is to be conducted; the matters to be decided by the Lord Chief Justice, the Minister or anyone else; any requirements as to record-keeping and confidentiality; or any requirements as to publicity. Regulations may require the Lord Chief Justice and Minister to make their eventual decision in accordance with findings of fact made by some other person or body (such as a review body); they may require that prescribed procedural steps be taken by the Lord Chief Justice or the Minister before they can exercise their functions, or in exercising those functions. Regulations may provide for the Lord Chief Justice and Minister to disapply requirements if they both agree. Where the regulations impose a requirement on an office holder or complainant, they may provide a procedural penalty (such as suspension or dismissal of a complaint) for failure to comply.

     Clause 98: Procedural Rules

288.     Clause 98 allows the regulations made under clause 96 to provide for a more limited category of detailed procedural rules in relation to complaints and discipline to be made by the Lord Chief Justice with the agreement of the Minister. It is envisaged that these would address the detailed matters covered by the existing Protocol governing complaints against judges, which was agreed by the Lord Chancellor and the judiciary and published in 2003. These rules will not be subject to Parliamentary approval and might change from time to time, but they must be published.

     Clause 99: Extension of discipline provisions to other offices

289.     Clause 99 allows the Lord Chancellor to extend the new judicial disciplinary regime by order to office holders who are not senior judges and not listed in Schedule 12. It is envisaged that this will include certain office holders, such as Coroners and some tribunal members, whom the Lord Chancellor has the power to remove but who are not currently appointed by him and who are therefore not currently included in Schedule 12. Such an order can only be made with the agreement of the Lord Chief Justice and subject to the negative approval procedure in Parliament.

     Complaints and references

     Clause 100: Investigations by the Ombudsman relating to conduct

290.     Clause 100 provides that the Ombudsman must consider any complaint by the original complainant, or the judicial office holder against whom an original complaint was made, about a failure by the Lord Chief Justice or the Minister to comply with the complaints procedures prescribed under clauses 96 or 98, or about other maladministration in the way the complaint was investigated or decided. If the Ombudsman decides not to conduct an investigation, he must inform the complainant; otherwise he must investigate the complaint. However, there is no obligation to investigate a complaint if it is made more than 28 days after the final step in the matter complained of, or the complainant being informed of the outcome of his original complaint, whichever is later. Any complaint made to the Ombudsman must be in a form approved of by the Ombudsman.