Clause 101: Report and recommendations

291.     Clause 101 provides for the Ombudsman to issue a report on his findings on a complaint, with any recommendations, including any recommendations for the payment of compensation relating to any loss caused by maladministration.

     Clause 102: Report procedure

292.     Clause 102 provides for the Lord Chief Justice and the Minister to be sent the report in draft. 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 in duplicate to the Lord Chief Justice and the Minister. 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, disclosure of which would otherwise be in breach of clause 111.

     Clause 103: References to the Ombudsman relating to conduct

293.     Clause 103 provides for the Lord Chief Justice or the Minister to be able to refer to the Ombudsman any matters relating to the investigation or determination by either of them of alleged misconduct by judicial office holders, and for the Ombudsman to report on his investigations. The reference could relate to a specific complaint or to complaints of any description. The report, which must be signed by the Ombudsman, will include his findings and any action he recommends.

Chapter 4: General

Clause 104: Interpretation of Part 4

294.     Clause 104 provides definitions of the Commission, the Ombudsman, the Heads of Division and other terms used in this Part of the Bill.

PART 5: JUDICIAL DISCIPLINE: NORTHERN IRELAND

SUMMARY

295.     Part 5 provides for the removal of judicial office holders in Northern Ireland. By virtue of clause 119(2), Part 5 extends only to Northern Ireland.

BACKGROUND

296.     At present, the Lord Chief Justice, Lords Justices of Appeal and High Court Judges hold office during good behaviour subject to removal by Her Majesty after an address by Parliament. The Lord Chancellor can remove most other judicial office holders on grounds of misbehaviour or incapacity.

297.     The Justice (Northern Ireland) Act 2002, as amended by the Justice (Northern Ireland) Act 2004, makes provision for removal of judicial office holders when responsibility for judicial appointments is devolved to the Northern Ireland Assembly.

298.     The Bill makes provision for the removal of judicial office holders on reform of the office of the Lord Chancellor, taking account of the post devolution provisions in the 2002 Act. As at present, the Lord Chief Justice, Lords Justices of Appeal and High Court judges will hold office during good behaviour and may only be removed by Her Majesty after an address by Parliament. A motion for the presentation of an address may be made to the House of Commons by the Prime Minister and to the House of Lords by the Lord Chancellor. The Bill empowers the Lord Chancellor to remove judicial office holders below High Court judge level, on the ground of misbehaviour or inability to perform the functions of the office, after consultation with the Lord Chief Justice.

299.     A judicial office holder can only be removed from office following a recommendation by a removals tribunal. The Bill details how such a tribunal may be convened and provides for its membership. The power to convene and the membership of a removals tribunal varies depending on the level of judge whose removal is under consideration.

COMMENTARY ON CLAUSES

Clause 105: removal from most senior judicial offices

300.     Clause 105 inserts a new section 12B in the Judicature (Northern Ireland) Act 1978 to make provision for the removal of senior judicial office holders in Northern Ireland. Her Majesty may remove the Lord Chief Justice, a Lord Justice of Appeal or a High Court judge on an address presented by both Houses of Parliament. A motion for the presentation of an address may be made to the House of Commons by the Prime Minister and to the House of Lords by the Lord Chancellor. However, a motion for the presentation of an address can be made only if a removals tribunal convened under clause 107 of the Bill (see below) has reported to the Lord Chancellor recommending removal on the ground of misbehaviour. The report must be laid before each House of Parliament. Subsection (6) of the new section 12B provides for the suspension of a senior judicial office holder while the making of motions for the presentation of an address is under consideration. The Prime Minister may suspend the Lord Chief Justice. A Lord Justice of Appeal or a High Court judge may be suspended by the Prime Minister with the agreement of the Lord Chief Justice.

Clause 106: Removal from listed judicial offices

301.     Clause 106 gives the Lord Chancellor the power to remove a judicial office holder below the level of High Court judge but only if a tribunal convened under clause 107 of the Bill (see below) has recommended removal on the ground of misbehaviour or inability to perform the functions of the office and after consultation with the Lord Chief Justice. The clause also gives the Lord Chancellor the power to suspend a judicial office holder below the level of High Court judge pending a decision on their removal but only if a tribunal considering whether to recommend removal has recommended suspension and after consultation with the Lord Chief Justice.

Clause 107: Tribunals for considering removal

302.     Clause 107 provides for the convening of tribunals to consider the removal of holders of protected judicial office (as defined in clause 108 of the Bill). A tribunal to consider the removal of the Lord Chief Justice may be convened by the Lord Chancellor provided the Prime Minister has been consulted. A tribunal to consider the removal of a Lord Justice of Appeal may be convened by the Lord Chancellor after consulting the Lord Chief Justice and the Prime Minister, or by the Lord Chief Justice after consulting the Lord Chancellor and the Prime Minister. A tribunal to consider the removal of all other holders of protected judicial office may be convened by the Lord Chancellor after consulting the Lord Chief Justice, or by the Lord Chief Justice after consulting the Lord Chancellor.

303.     A tribunal will consist of three members: a judicial chairman, a judicial member and a layperson. The judicial members of a tribunal to consider the removal of the Lord Chief Justice, a Lord Justice of Appeal or a High Court judge are to be selected by the Lord Chancellor after consultation with the Lord Chief Justice (unless the tribunal is to consider his removal), the President of the Supreme Court of the United Kingdom, the Lord Chief Justice of England and Wales and the Lord President of the Court of Session. Such a tribunal will be chaired by a person who holds high judicial office (within the meaning of Part 3 of the Bill) and has never been a senior judicial office holder in Northern Ireland. The other judicial member will be a current or retired judge of the Court of Appeal of England and Wales or the Inner House of the Court of Session.

304.     The judicial members of a tribunal to consider the removal of any other holder of protected judicial office are to be selected by the Lord Chief Justice and such a tribunal will be chaired by a person who holds, or has held, the office of Lord Chief Justice or Lord Justice of Appeal. The other judicial member will be a High Court judge. The lay member of a tribunal will be appointed by the Lord Chancellor.

305.     This clause further provides that the procedure of a tribunal is to be determined by the Lord Chief Justice unless this office is vacant, he is unavailable or the tribunal is to consider his removal from office, in which case the procedure is to be determined by the chairman.

Clause 108: Interpretation of Part 5

306.     Clause 108 defines, for the purpose of Part 5 of the Bill, the meaning of "listed judicial office", "Lord Chief Justice", "Lord Justice of Appeal" and "protected judicial office".

PART 6: OTHER PROVISIONS RELATING TO THE JUDICIARY

COMMENTARY ON CLAUSES

Clause 109: Parliamentary Disqualification

307.     Clause 109 has the effect of barring members of the Supreme Court, and certain other holders of judicial office which exclude the holder from membership of the House of Commons, from sitting and voting in the House of Lords while they hold that office.

308.     Subsection (1) inserts the office of 'Judge of the Supreme Court' into Part 1 of Schedule 1 to the House of Commons Disqualification Act 1975. Subsection (2) makes corresponding provision for the Northern Ireland Assembly Disqualification Act 1975 (specific provision in relation to the Scottish Parliament and National Assembly for Wales being unnecessary because disqualification for membership of those bodies is tied to the House of Commons Disqualification Act). This of itself ensures that the holders of that office are, for as long as they hold them, disqualified for membership of the House of Commons. Taken with subsection (3), this has the effect of making it impossible to hold full-time high judicial office and at the same time be an active member of the House of Lords.

309.     Subsection (3) bars holders of any "disqualifying judicial office" (defined in subsection (4) as the offices in Schedule 1 to the House of Commons Disqualification Act 1975 and the corresponding list in the Northern Ireland Assembly Disqualification Act 1975) from sitting or voting in the House of Lords or in any Lords Committee or Joint Committee. Such a person does not cease to be a member of the House while this disqualification continues, however.

310.     Subsection (5) means that a person who is disqualified from sitting and voting in the House of Lords by virtue of subsection (3) is not disqualified from receiving a writ of summons to the House of Lords.

     Clause 110 and Schedule 13- Judicial Committee of the Privy Council

311.     Clause 110 introduces Schedule 13 which amends statutory provisions to remove the right of the Lord President of the Council to be a member of the Judicial Committee of the Privy Council, and to sit judicially. Paragraph 2 of that Schedule recasts section 1 of the Judicial Committee Act of 1833 to redefine the membership of the Judicial Committee. This has the effect of removing not only the Lord President, but also the Lord Chancellor, Lord Keeper and Commissioners of the Great Seal. It also removes the (now in practice obsolete) power to appoint to the Judicial Committee other members of the Privy Council who do not fulfil the statutory requirements. Members of the Judicial Committee of the Privy Council from the United Kingdom will in future be only those Privy Councillors who have held high judicial office as defined by Part 2 of the present Bill (The Supreme Court). This will include judges of the new United Kingdom Supreme Court. Other enactments also provide for certain Commonwealth judges to be members of the Judicial Committee of the Privy Council. Paragraph 3 of the Schedule requires the appointment of the registrar of the Judicial Committee to be made only after consultation with the President of the Supreme Court.

PART 7: GENERAL

COMMENTARY ON CLAUSES

     Clause 111: Confidentiality

312.     Clause 111 is a general confidentiality provision which applies to the selection and appointment of judges of the Supreme Court under Clauses 23 to 28 in Part 3 of the Bill and to the selection, appointment and discipline of judicial office holders in England and Wales under Part 4 and under any regulations and rules made under Part 4. All information which relates to an identified or identifiable individual is confidential and can be disclosed only with lawful authority. Disclosure without lawful authority is made subject to a civil action for breach of statutory duty.

313.     Information may be lawfully disclosed with the consent of the person concerned; or where disclosure is necessary in order for a person to perform their functions in relation to the selection, appointment or disciplining of judicial office holders; or where disclosure is necessary in connection with the exercise of Parliamentary powers to remove a senior judge or a decision whether to exercise such powers; or where the disclosure is necessary in connection with the exercise of powers to remove, discipline or suspend a judicial office holder; or where the disclosure is required for the purposes of legal proceedings in order to comply with court rules or a court order.

314.     Where confidential information has been provided by one identifiable person about another identifiable person, it relates to both, and may only be disclosed to the subject of the information with the consent of its provider.

315.     Despite the confidentiality provisions, the Lord Chancellor and Lord Chief Justice may decide to disclose information about disciplinary action taken against an identifiable judicial office holder. Disclosure which would otherwise be prohibited by this clause is also permitted if the information concerned is already available to the public from other sources, or has been so in the past.

Clause 112: Enactment

316.     Clause 112 defines "enactment" for the purposes of the Bill. Different parts of the Bill extend to different parts of the United Kingdom. In those parts of the Bill that apply throughout the United Kingdom, "enactment" is defined to include Acts of the Scottish Parliament and Northern Ireland legislation. In those parts that extend only to England and Wales and Northern Ireland, "enactment" refers only to Acts of the Westminster Parliament and Northern Ireland legislation (and, where necessary, Measures of the Church of England). The aim is to remove any uncertainty about the meaning of the term "enactment" in different parts of the Bill.

Clause 113: Subordinate Legislation

317.     Clause 113 defines "subordinate legislation" for the purposes of the Bill, giving it the same meaning as in the Interpretation Act 1978, but also providing that in the context of making supplementary provisions about functions of the Lord Chancellor, and other transitional or consequential provisions, it also includes an enactment contained in an instrument made under Northern Ireland legislation.

     Clause 114: General Interpretation

318.     This clause provides for any reference to "the Minister" in the Bill to mean the Lord Chancellor (and these Explanatory Notes, when they refer to "the Minister", accordingly also mean by that the Lord Chancellor). The clause also defines "functions" to include powers and duties, and extends the definition of "Minister of the Crown" in the Ministers of the Crown Act 1975 so that it applies in this Bill.

Clause 115: Supplementary provision etc

319.     Clause 115 provides for the Minister to make, by order (made by statutory instrument), any supplementary, incidental, consequential, transitory, transitional or saving provision, as he considers necessary or expedient for the purposes of the Bill, in consequence of it, or to give it full effect. Subsection (2) makes it clear that such an order can, if necessary, amend or repeal other enactments, subordinate legislation, and other instruments or documents.

     Clause 116: Orders and Regulations

320.     Clause 116 regulates the way in which the Minister may exercise the order making powers conferred on him elsewhere in the Bill. These will generally be subject to the negative resolution procedure in Parliament, except for the following, which will be subject to the affirmative resolution procedure:

• orders made under clause 74(2)(a) or (b) (selection of puisne judges and other office holders) that amend Part 1 of Schedule 12 (The Judicial Appointments Commission: relevant offices and enactments);

• orders made under clause 16(1) (transfer, modification or abolition of functions by order) which amend a public general Act, except where the only amendment is to include a function of the Lord Chancellor in Schedule 6 (protected functions of the Minister);

• orders under clause 115 (supplementary provision etc) which amend a public general Act;

• orders under paragraph 5 of Schedule 10 (the Judicial Appointments Commission).

321.     In addition, commencement orders made under clauses 59(5) and 120 do not require Parliamentary scrutiny: these are standard provisions.

Clause 117 and Schedule 14: Minor and Consequential amendments

322.     Clause 117 introduces Schedule 14 which contains some minor and consequential amendments to other legislation that follow from the substantive clauses of the Bill.

Clause 118 and Schedule 15: Repeals and revocations

323.     Clause 118 introduces Schedule 15 which lists legislation repealed or revoked by other provisions in the Bill.

Clause 119: Extent

324.     This clause sets out the territorial extent of the Bill. Different parts of the Bill extend to different parts of the United Kingdom. Certain provisions relating to the President of the Courts of England and Wales and the Heads and Deputy Heads of Criminal and Family Justice extend to England and Wales only. Part 5 extends to Northern Ireland alone. Amendments made by the Bill will have the same extent as the provisions being amended. The Bill otherwise extends to the whole of the United Kingdom.

Clause 120: Commencement

325.     Provisions relating to interpretation, supplementary provision, ancillary provision for orders and regulations, extent, commencement and short title provisions will come into force on Royal Assent. Clause 5 (Guarantee of continued judicial independence: Northern Ireland) will be brought into force in accordance with an order made by the Secretary of State. All other provisions in the Bill will be brought into force by order by the Minister, who may make different arrangements for different purposes.

326.     Subsections (4) and (5) impose conditions on the making of an order by the Minister to bring into force the key provision establishing the Supreme Court. The effect is that the Minister may not make such an order unless and until he is satisfied that appropriate accommodation will be ready for the Supreme Court on the day the commencement order would take effect. The definition of appropriate accommodation for these purposes is accommodation in accordance with written plans that the Minister has approved after consultation with the Lords of Appeal in Ordinary (that is, those who are in office as Lords of Appeal in Ordinary at the time of consultation).

Clause 121: Short title

327.     As an Act, the Bill would be referred to as the Constitutional Reform Act 2005.

EFFECTS OF THE BILL ON PUBLIC EXPENDITURE

     Arrangements to modify the office of Lord Chancellor

328.     The provisions in Part 2 of the Bill are expected to have limited financial implications. The overall staff numbers required to support those office holders to whom functions are transferred are expected to remain broadly similar to those currently required. There may, however, be some transfer of staff resources internally to reflect the new arrangements.

     The Supreme Court

329.     At present, the Appellate Committee is funded through the House of Lords and its administrative support is provided by the House's administration under the Clerk of the Parliaments. Total expenditure in 2002-3 was £650,372 (623,548 in 2001-02; £590,988 in 2000-01; £605,060 in 1999-2000). These figures include staff salaries but do not include common services in the Palace such as library, security and accommodation costs. Nor do they include the Law Lords' salaries. Total receipts from fees charged on civil but not criminal judicial business and on assessment of lawyers' bills of costs were £499,715 (£443,220 in 2000-01; £496,708 in 1999-2000; and £494,435 in 1998-99). The Judicial Committee is funded through the Privy Council office. Revised arrangements will therefore have to be made for the new Court.

330.     The cost of establishing the Supreme Court has two main elements: initial accommodation set up and annual running costs. Middlesex Guildhall on Parliament Square is the preferred option for housing the Supreme Court. This will, of course, require the normal planning approvals and designs are under discussion with English Heritage and Westminster City Council, as well as the Lords of Appeal in Ordinary. Set up costs for refurbishing Middlesex Guildhall will be approximately £30m in current terms. This £30m estimate comprises both base costs and 'optimism bias'. The base costs are construction costs and statutory fees of £15m; £2m professional fees; and £3m VAT. Those figures are then inflated by 50% 'optimism bias' in accordance with HM Treasury guidance on financial appraisal and evaluation. However, this does not necessarily equate to the amount of capital funding that the Government will have to find; there are procurement solutions under consideration which would enable the costs to be spread across a number of years. In addition, it will be necessary to provide additional courtrooms to take on Middlesex Guildhall's Crown Court work. Provision of the additional courtrooms will cost a further £15m in current terms (including 'optimism bias'). The aim is that the first sitting of the Supreme Court would be in 2008.

331.     The approximate annual cash running costs following establishment of the Supreme Court would be £8.8m (£8.4m relating to the Supreme Court; the remainder being the ongoing costs from courtroom reprovision). This figure includes £2.1m judicial remuneration; £1.1m staff salaries; £1.0m administrative costs; £0.4m utilities and rates; and £3.8m building costs (including capital charge/lease costs and building maintenance costs) Approximately 32% of judicial remuneration and 80% of the remaining Supreme Court running costs will be recovered through fee income or through defrayment across the UK.

332.     The costs of the United Kingdom Supreme Court attributable to civil business will be recovered through fee recovery. The Supreme Court will, like the House of Lords, be the final court of appeal for all civil matters in the United Kingdom. The development of the law by the Supreme Court in the exercise of the jurisdiction transferred to it from the House of Lords and Judicial Committee of the Privy Council will be of benefit in each of the parts of the United Kingdom in the same way as is the development of the law by the House of Lords and Judicial Committee in exercising that same jurisdiction at present.

333.     The fee structure for the Supreme Court will be based upon that applicable to the Appellate Committee, but will be restructured in order to bring it into line with fee structures in the lower courts. On the basis of the running cost figures above, the total revenue for the court is projected to amount to £6.3 million per annum.

334.     The costs of the court attributed to criminal appeals and devolution cases are likely to amount to approximately £2.1 million and will be met by direct taxation via the Department for Constitutional Affairs vote.

     Judicial Appointments Commission

335.     At present the Judicial Appointments Directorate is funded through the Department of Constitutional Affairs' vote. The Judicial Appointments Commission will be funded via grant-in-aid also through the Department for Constitutional Affairs vote.

336.     The cost of establishing the Judicial Appointments Commission is estimated to be £3.2 million. This is based on the Commission being located within existing Department of Constitutional Affairs estate in the early part of its life. These set up costs for the Commission will be split over three financial years. £0.2m costs preparing for implementation have already been incurred in 2003-4, and the remainder of set up costs will be split between 2004-2005 and 2005/2006. There are also plans for the greater part of the Commission to relocate out of London and the South east in 2008, leaving it with twin locations. Estimated costs for this relocation are in the region of £1.7 million.

337.     The annual running cost of the Commission has been estimated at approximately £8.5 million, reducing to £8 million in 2007/2008, due to its partial relocation of out of London and the Southeast. Approximately £2 million of this running cost is attributable to indirect costs such as accommodation, and the remainder of the costs will be the "running costs" of the Commission. The actual running cost of the appointment process will be in the region of £5.5 million of which £4.2 million will be spent on salaries. It is estimated that the cost of the Commissioners will be £665 000 per annum.

The Judicial Appointments and Conduct Ombudsman

338.     The Ombudsman will be funded through the Department for Constitutional Affairs' vote as it is likely to be an associated office of the Department for Constitutional Affairs.

339.     The cost of establishing the Ombudsman office will be between approximately £1.2m and £1.5m, depending on the location of the Ombudsman's office. These costs will be split across two financial years, 2004/05 and 2005/06.

340.     The maximum annual cost of running the Ombudsman's office will be £1.4m. This is dependent on whether the Ombudsman is based in existing Department of Constitutional Affairs estate or landlord serviced estate. The cost mentioned above is based on the Ombudsman being located in a landlord serviced building. The current Commission for Judicial Appointments, which currently carries out a part of the function that will be covered by the Ombudsman, costs the Department of Constitutional Affairs approximately £340k per annum. The Commission for Judicial Appointments is based in the Department for Constitutional Affairs estate.