PART VIII
THE JUDICIARY
Chapter 29: THE SUPREME COURT
193 The Supreme Court
(1) There is to be a Supreme Court of the United
Kingdom. [714]
(2) The Court consists of the persons appointed as
its judges appointed by Her Majesty by letters patent, but no
appointment may cause the full-time equivalent of judges of the
Court at any time to be more than 12. [715]
(3) Her Majesty may from time to time by Order in
Council amend subsection (2) so as to increase or further increase
the maximum full-time equivalent number of judges of the Court.
[716]
(4) No recommendation may be made to Her Majesty
in Council to make an Order under subsection (3) unless a draft
of the Order has been laid before and approved by resolution of
each House of Parliament. [717]
(5) Her Majesty may by letters patent appoint one
of the judges to be President and one to be Deputy President of
the Court. [718]
(6) The judges other than the President and Deputy
President are to be styled "Justices of the Supreme Court".
[719]
(7) The Court is to be taken to be duly constituted
despite any vacancy in the office of President or Deputy President.
[720]
(8) For the purposes of this section, the full-time
equivalent number of judges of the Court is to be calculated by
taking the number of full-time judges and adding, for each judge
who is not a full-time judge, such fraction as is reasonable.
[721]
194 First members of the Supreme Court
(1) On the commencement of section 23 of the Constitutional
Reform Act 2005 (c.4)—
(a) the persons who immediately before that commencement
are Lords of Appeal in Ordinary become judges of the Supreme Court,
[722]
(b) the person who immediately before that commencement
is the senior Lord of Appeal in Ordinary becomes the President
of the Court, and [723]
(c) the person who immediately before that commencement
is the second senior Lord of Appeal in Ordinary becomes the Deputy
President of the Court. [724]
195 Acting judges of the Supreme Court
(1) At the request of the President of the Supreme
Court any of the following may act as a judge of the Court—
(a) a person who holds office as a senior territorial
judge;
(b) a member of the supplementary panel under section
196. [725]
(2) A request under subsection (1) may be made by
the Deputy President of the Court if there is no President or
the President is unable to make that request. [726]
(3) In section 26(7) of the Judicial Pensions and
Retirement Act 1993 (c. 8) (requirement not to act in certain
capacities after the age of 75) for paragraph (b) substitute—"(b)act
as a judge of the Supreme Court under section 38 of the Constitutional
Reform Act 2005;". [727]
(4) Every person while acting under this section
is, subject to subsections (5) and (6), to be treated for all
purposes as a judge of the Supreme Court (and so may perform any
of the functions of a judge of the Court). [728]
(5) A person is not to be treated under subsection
(4) as a judge of the Court for the purposes of any statutory
provision relating to—
(a) the appointment, retirement, removal or disqualification
of judges of the Court,
(b) the tenure of office and oaths to be taken by
judges of the Court, or
(c) the remuneration, allowances or pensions of judges
of the Court. [729]
(6) Subject to section 27 of the Judicial Pensions
and Retirement Act 1993, a person is not to be treated under subsection
(4) as having been a judge of the Court if he has acted in the
Court only under this section. [730]
(7) Such remuneration and allowances as the Lord
Chancellor may with the agreement of the Treasury determine may
be paid out of money provided by Parliament to any person who
acts as a judge of the Court under this section. [731]
(8) In this section "office as a senior territorial
judge" means office as any of the following—
(a) a judge of the Court of Appeal in England and
Wales;
(b) a judge of the Court of Session, but only if
the holder of the office is a member of the First or Second Division
of the Inner House of that Court;
(c) a judge of the Court of Appeal in Northern Ireland,
unless the holder holds the office only by virtue of being a puisne
judge of the High Court. [732]
196 Supplementary panel for the Supreme Court
(1) There is to be a panel of persons known as the
supplementary panel.[733]
(2) On the commencement of section 39 of the Constitutional
Reform Act 2005 (c.4) any member of the House of Lords who—
(a) meets one of the conditions in subsection (3),
(b) does not hold high judicial office,
(c) has not attained the age of 75, and
(d) is not a person who was appointed to the office
of Lord Chancellor on or after 12 June 2003,
becomes a member of the panel. [734]
(3) The conditions are—
(a) that he ceased to hold high judicial office less
than 5 years before the commencement of this section;
(b) that he was a member of the Judicial Committee
of the Privy Council immediately before that commencement;
(c) that he ceased to be a member of that Committee
less than 5 years before that commencement. [735]
(4) A person becomes a member of the supplementary
panel on ceasing to hold office as a judge of the Supreme Court
or as a senior territorial judge, but only if, while he holds
such office—
(a) his membership of the panel is approved in writing
by the President of the Supreme Court, and
(b) the President of the Court gives the Lord Chancellor
notice in writing of the approval. [736]
(5) Subsection (4) does not apply to a person who
ceases to hold office as a judge of the Supreme Court when he
ceases to be President of the Court. [737]
(6) Such a person becomes a member of the supplementary
panel on ceasing to be President of the Court, unless—
(a) while President, he gives the Lord Chancellor
notice that he is not to become a member of the panel,
(b) he ceases to be President on being removed from
office as a judge of the Court on the address of both Houses of
Parliament, or
(c) his office is declared vacant under section 36
of the Constitutional Reform Act 2005 (c.4). [738]
(7) A person does not become a member of the supplementary
panel under subsection (4) or (6) if—
(a) on ceasing to hold office as a judge of the Supreme
Court he takes office as a senior territorial judge, or
(b) on ceasing to hold office as a senior territorial
judge he takes office as a judge of the Supreme Court. [739]
(8) A member of the supplementary panel may resign
by notice in writing to the President of the Court. [740]
(9) Unless he resigns (and subject to sections 26(7)(b)
and 27 of the Judicial Pensions and Retirement Act 1993 (c. 8)),
a person ceases to be a member of the supplementary panel—
(a) at the end of 5 years after the last day on which
he holds his qualifying office, or
(b) if earlier, at the end of the day on which he
attains the age of 75. [741]
(10) In this section—
(a) "office as a senior territorial judge"
has the same meaning as in section 195;
(b) a person's "qualifying office" is the
office (that is, high judicial office, membership of the Judicial
Committee of the Privy Council, office as a judge of the Supreme
Court or office as a senior territorial judge) that he held before
becoming a member of the supplementary panel. [742]
196 Qualification for appointment of judges of
the Supreme Court
(1) A person is not qualified to be appointed a judge
of the Supreme Court unless he has (at any time)—
(a) held high judicial office for a period of at
least 2 years,
(b) satisfied the judicial-appointment eligibility
condition on a 15-year basis, or
(c) been a qualifying practitioner for a period of
at least 15 years. [743]
(2) A person is a qualifying practitioner for the
purposes of this section at any time when—
(a) he is an advocate in Scotland or a solicitor
entitled to appear in the Court of Session and the High Court
of Justiciary, or [744]
(b) he is a member of the Bar of Northern Ireland
or a solicitor of the Court of Judicature of Northern Ireland.
[745]
197 Selection of the members of the Supreme Court
(1) This section applies to a recommendation for
an appointment to one of the following offices—
(a) judge of the Supreme Court;
(b) President of the Court;
(c) Deputy President of the Court. [746]
(2) A recommendation may be made only by the Prime
Minister. [747]
(3) The Prime Minister—
(a) must recommend any person who is selected as
a result of the convening of a selection commission under this
section;
(b) may not recommend any other person. [748]
(4) Where a person who is not a judge of the Court
is recommended for appointment as President or Deputy President,
the recommendation must also recommend the person for appointment
as a judge. [749]
(5) If there is a vacancy in the office of the President
of the Court or in the office of Deputy President of the Court,
or it appears to him that there will soon be such a vacancy, the
Lord Chancellor must convene a selection commission for the selection
of a person to be recommended. [750]
(6) If—
(a) the full-time equivalent number of judges of
the Court is less than the maximum specified in section 193(2),
or it appears to the Lord Chancellor that the full-time equivalent
number of judges of the Court will soon be less than that maximum,
and
(b) the Lord Chancellor, or the senior judge of the
Court, after consulting the other considers it desirable that
a recommendation be made for an appointment to the office of judge
of the Court,
the Lord Chancellor must convene a selection commission
for the selection of a person to be recommended. [751]
(7) In subsection (6)(b) "the senior judge
of the Court" means—
(a) the President of the Court, or
(b) if there is no President, the Deputy President,
or
(c) if there is no President and no Deputy President,
the senior ordinary judge. [752]
(8) Schedule 8 of the Constitutional Reform Act 2005
(c.4) is about selection commissions.[753]
(9) Subsections (5) and (6) are subject to Schedule
8 of the Constitutional Reform Act 2005 (c.4) (cases where duty
to convene a selection commission are suspended). [754]
(10) For the purposes of this section and Schedule
8 of the Constitutional Reform Act 2005 (c.4), a person is selected
as a result of the convening of a selection commission if the
person's selection is the final outcome of—
(a) the selection process mentioned in section 198(1)
being applied by the commission, and
(b) any process provided for by regulations under
section 27A of the Constitutional Reform Act 2005 (c.4) being
applied in the particular case.[755]
(11) Section 198 applies where a selection commission
is convened under this section.[756]
198 Selection process for members of the Supreme
Court [757]
(1) The commission must—
(a) determine the selection process to be applied
by it,
(b) apply the selection process, and
(c) make a selection accordingly.
(2) The commission must have an odd number of members
not less than five.
(3) The members of the commission must include—
(a) at least one who is non-legally-qualified,
(b) at least one judge of the Court,
(c) at least one member of the Judicial Appointments
Commission,
(d) at least one member of the Judicial Appointments
Board for Scotland, and
(e) at least one member of the Northern Ireland Judicial
Appointments Commission,
and more than one of the requirements may be met
by the same person's membership of the commission.
(4) If the commission is convened for the selection
of a person to be recommended for appointment as President of
the Court—
(a) its members may not include the President of
the Court, and
(b) it is to be chaired by one of its non-legally-qualified
members.
(5) If the commission is convened for the selection
of a person to be recommended for appointment as Deputy President
of the Court, its members may not include the Deputy President
of the Court.
(6) Subsections (7) to (13) apply to any selection
under this section or regulations under section 27A of the Constitutional
Reform Act 2005 (c.4).
(7) Selection must be on merit.
(8) Where two persons are of equal merit—
(a) section 159 of the Equality Act 2010 (positive
action: recruitment etc) does not apply in relation to choosing
between them, but
(b) Part 5 of that Act (public appointments etc)
does not prevent the commission from preferring one of them over
the other for the purpose of increasing diversity within the group
of persons who are the judges of the Court.
(9) A person may be selected only if he meets the
requirements of section 25 of the Constitutional Reform Act 2005
(c.4).
(10) A person may not be selected if he is a member
of the commission.
(11) In making selections for the appointment of
judges of the Court the commission must ensure that between them
the judges will have knowledge of, and experience of practice
in, the law of each part of the United Kingdom.
(12) The commission must have regard to any guidance
given by the Lord Chancellor as to matters to be taken into account
(subject to any other provision of this Act) in making a selection.
(13) Any selection must be of one person only.
(14) For the purposes of this section a person is
non-legally-qualified if the person—
(a) does not hold, and has never held, any of the
offices listed in Schedule 1 to the House of Commons Disqualification
Act 1975 (judicial offices disqualifying for membership of the
House of Commons), and
(b) is not practising or employed as a lawyer, and
never has practised or been employed as a lawyer.
199 Lord Chancellor to make regulations about
the selection process for the Supreme Court
The Lord Chancellor must make regulations about the
selection process in accordance with sections 27A and 27B of the
Constitutional Reform Act 2005 (c.4).
200 Oath of allegiance
and judicial oath
(1) A person who is appointed as President of the
Court must, as soon as may be after accepting office, take the
required oaths in the presence of—
(a) the Deputy President, or
(b) if there is no Deputy President, the senior ordinary
judge. [758]
(2) A person who is appointed as Deputy President
of the Supreme Court must, as soon as may be after accepting office,
take the required oaths in the presence of—
(a) the President, or
(b) if there is no President, the senior ordinary
judge. [759]
(3) A person who is appointed as a judge of the Supreme
Court must, as soon as may be after accepting office, take the
required oaths in the presence of—
(a) the President, or
(b) if there is no President, the Deputy President,
or
(c) if there is no President and no Deputy President,
the senior ordinary judge.[760]
(4) Subsections (1) and (2) apply whether or not
the person appointed as President or Deputy President has previously
taken the required oaths in accordance with this section after
accepting another office. [761]
(5) Subsection (3) does not apply where a person
is first appointed as a judge of the Court upon appointment to
the office of President or Deputy President. [762]
(6) In this section "required oaths" means—
(a) the oath of allegiance, and
(b) the judicial oath,
as set out in the Promissory Oaths Act 1868 (c. 72).[763]
201 Salaries and allowances of judges of the Supreme
Court
(1) A judge of the Supreme Court is entitled to a
salary. [764]
(2) The amount of the salary is to be determined
by the Lord Chancellor with the agreement of the Treasury.
[765]
(3) Until otherwise determined under subsection (2),
the amount is that of the salary of a Lord of Appeal in Ordinary
immediately before the commencement of section 23 of the Constitutional
Reform Act 2005 (c.4). [766]
(4) A determination under subsection (2) may increase
but not reduce the amount. [767]
(5) Salaries payable under this section are to be
charged on and paid out of the Consolidated Fund of the United
Kingdom. [768]
(6) Any allowance determined by the Lord Chancellor
with the agreement of the Treasury may be paid to a judge of the
Court out of money provided by Parliament.[769]
202 Resignation and retirement of judges of the
Supreme Court
(1) A judge of the Supreme Court may at any time
resign that office by giving the Lord Chancellor notice in writing
to that effect. [770]
(2) The President or Deputy President of the Court
may at any time resign that office (whether or not he resigns
his office as a judge) by giving the Lord Chancellor notice in
writing to that effect. [771]
(3) In section 26(4)(a) of and Schedule 5 to the
Judicial Pensions and Retirement Act 1993 (c. 8) (retirement),
for "Lord of Appeal in Ordinary" substitute "Judge
of the Supreme Court". [772]
Chapter 30: THE JUDICIARY AND
THE COURTS
203 Head of the judiciary in England and Wales
[773]
(1) The Lord Chief Justice holds the office of President
of the Courts of England and Wales and is Head of the Judiciary
of England and Wales.
(3) As President of the Courts of England and
Wales he is responsible—
(a) for representing the views of the judiciary of
England and Wales to Parliament, to the Lord Chancellor and to
Ministers of the Crown generally;
(b) for the maintenance of appropriate arrangements
for the welfare, training and guidance of the judiciary of England
and Wales within the resources made available by the Lord Chancellor;
(c) for the maintenance of appropriate arrangements
for the deployment of the judiciary of England and Wales and the
allocation of work within courts.
(3) The President of the Courts of England and Wales
is president of the courts listed in subsection (4) and is entitled
to sit in any of those courts.
(4) The courts are the Court of Appeal, the High
Court, the Crown Court, the county courts, and the magistrates'
courts.
204 Head of the Scottish Judiciary
(1) The Lord President is the Head of the Scottish
Judiciary.
(2) As Head of the Scottish Judiciary the Lord President
is responsible—
(a) for making and maintaining arrangements for securing
the efficient disposal of business in the Scottish courts,
(b) for representing the views of the Scottish judiciary
to the Scottish Parliament and the Scottish Ministers,
(c) for laying before the Scottish Parliament written
representations on matters that appear to the Head of the Scottish
Judiciary to be matters of importance relating to (i) the Scottish
judiciary, or (ii) the administration of justice,
(d) for making and maintaining appropriate arrangements
for the welfare, training and guidance of judicial office holders,
and
(e) for making and maintaining, in accordance with
section 28, appropriate arrangements for (i) the investigation
and determination of any matter concerning the conduct of judicial
office holders, and (ii) the review of such determinations.
(3) If, in carrying out the responsibility mentioned
in subsection (2)(a), the Lord President gives a direction of
an administrative character to a sheriff principal, the sheriff
principal must comply with the direction.
(4) In carrying out the responsibility for making
and maintaining arrangements for training mentioned in subsection
(2)(d) the Lord President must require any judicial office holder,
or class of judicial office holder, to attend such training as
the Lord President determines.
(5) References in this section to the Scottish judiciary
are references to the judiciary of any court established under
the law of Scotland (other than the Supreme Court of the United
Kingdom).
(6) In this section, "the Scottish courts"
means—
(a) the Court of Session,
(b) the High Court of Justiciary,
(c) the court for hearing appeals under section 57(1)(b)
of the Representation of the People Act 1983 (c. 2),
(d) the election court in Scotland constituted under
section 123 of that Act,
(e) the Lands Valuation Appeal Court,
(f) the sheriff courts,
(g) justice of the peace courts, and
(h) such other courts as the Scottish Ministers may
by order specify.
(7) Before making an order under subsection (6)(h),
the Scottish Ministers must consult the Lord President.
205 Role of the Lord Chief Justice in Northern
Ireland[774]
(1) The Lord Chief Justice holds the office of President
of the Courts of Northern Ireland and is Head of the Judiciary
of Northern Ireland.
(2) As President of the Courts of Northern Ireland
he is responsible—
(a) for representing the views of the judiciary of
Northern Ireland to Parliament, the Lord Chancellor and Ministers
of the Crown generally;
(b) for representing the views of the judiciary of
Northern Ireland to the Northern Ireland Assembly, the First Minister
and deputy First Minister and Northern Ireland Ministers;
(c) for the maintenance of appropriate arrangements
for the welfare, training and guidance of the judiciary of Northern
Ireland within the resources made available by the Lord Chancellor;
(d) for the maintenance of appropriate arrangements
for the deployment of the judiciary of Northern Ireland and the
allocation of work within courts.
(3) The President of the Courts of Northern Ireland
is president of the following courts and is entitled to sit in
any of those courts -
(a) the Court of Appeal
(b) the High Court
(c) the Crown Court
(d) the county courts
(e) the magistrates' courts.
Chapter 31: JUDICIAL INDEPENDENCE
206 Judicial independence: general principles
(1) There is a duty to uphold the continued independence
of the judiciary extending to the Lord Chancellor, ministers of
the Crown and all with responsibility for matters relating to
the judiciary or otherwise to the administration of justice, including
civil servants and members of Parliament. There is also a duty
not to seek to influence judicial decision-making through special
access; for example, individual cases should not be discussed
between ministers and judges. [775]
(2) The Lord Chief Justice may make written representations
to Parliament on matters which he or she believes are of importance
relating to the judiciary or the administration of justice. However,
principles of judicial independence mean that the judiciary should
not be asked to comment on the merits of proposed government policy,
and individual judicial office-holders should not be asked to
comment on matters that may then require the judge to disqualify
him or herself in subsequent litigation. [776]
207 Guarantee of continued judicial independence
in England and Wales
(1) The Lord Chancellor, other Ministers of the Crown
and all with responsibility for matters relating to the judiciary
or otherwise to the administration of justice must uphold the
continued independence of the judiciary. [777]
(2) Subsection (1) does not impose any duty which
it would be within the legislative competence of the Scottish
Parliament to impose. [778]
(3) A person is not subject to the duty imposed by
subsection (1) if he is subject to the duty imposed by section
1(1) of the Justice (Northern Ireland) Act 2002 (c. 26).
[779]
(4) The following particular duties are imposed for
the purpose of upholding that independence. [780]
(5) The Lord Chancellor and other Ministers of the
Crown must not seek to influence particular judicial decisions
through any special access to the judiciary. [781]
(6) The Lord Chancellor must have regard to—
(a) the need to defend that independence;
(b) the need for the judiciary to have the support
necessary to enable them to exercise their functions;
(c) the need for the public interest in regard to
matters relating to the judiciary or otherwise to the administration
of justice to be properly represented in decisions affecting those
matters. [782]
(7) In this section "the judiciary" includes
the judiciary of any of the following—
(a) the Supreme Court;
(b) any other court established under the law of
any part of the United Kingdom;
(c) any international court. [783]
(8) In this section "the judiciary" also
includes every person who—
(a) holds an office listed in Schedule 14 to the
Constitutional Reform Act 2005 (c.4) or holds an office listed
in subsection (9), and
(b) but for this subsection would not be a member
of the judiciary for the purposes of this section. [784]
(9) The offices are those of—
(a) Senior President of Tribunals;
(b) President of Employment Tribunals (Scotland);
(c) Vice President of Employment Tribunals (Scotland);
(d) member of a panel of Employment Judges (Scotland);
(e) member of a panel of members of employment tribunals
that is not a panel Employment Judges. [785]
(10) In subsection (7) "international court"
means the International Court of Justice or any other court or
tribunal which exercises jurisdiction, or performs functions of
a judicial nature, in pursuance of—
(a) an agreement to which the United Kingdom or Her
Majesty's Government in the United Kingdom is a party, or
(b) a resolution of the Security Council or General
Assembly of the United Nations. [786]
208 Guarantee of continued judicial independence
in Scotland[787]
(1) The following persons must uphold the continued
independence of the judiciary—
(a) the First Minister,
(b) the Lord Advocate,
(c) the Scottish Ministers,
(d) members of the Scottish Parliament, and
(e) all other persons with responsibility for matters
relating to (i) the judiciary, or (ii) the administration of justice,
where that responsibility is to be discharged only in or as regards
Scotland.
(2) In particular, the First Minister, the Lord Advocate
and the Scottish Ministers—
(a) must not seek to influence particular judicial
decisions through any special access to the judiciary, and
(b) must have regard to the need for the judiciary
to have the support necessary to enable them to carry out their
functions.
(3) In this section "the judiciary" means
the judiciary of (a) the Supreme Court of the United Kingdom,
(b) any other court established under the law of Scotland, and
(c) any international court.
(4) In subsection (3)(c) "international court"
means the International Court of Justice or any other court or
tribunal which exercises jurisdiction, or performs functions of
a judicial nature, in pursuance of (a) an agreement to which the
United Kingdom or Her Majesty's Government in the United Kingdom
is a party, or (b) a resolution of the Security Council
or General Assembly of the United Nations.
209 Guarantee of continued judicial independence
in Northern Ireland [788]
(1) For section 1 of the Justice (Northern Ireland)
Act 2002 (c. 26) (guarantee of continued judicial independence)
substitute—
"1 Guarantee of continued judicial independence
(1) The following persons must uphold the continued
independence of the judiciary—
(a) the First Minister,
(b) the deputy First Minister,
(c) Northern Ireland Ministers, and
(d) all with responsibility for matters relating
to the judiciary or otherwise to the administration of justice,
where that responsibility is to be discharged only in or as regards
Northern Ireland.
(2) The following particular duty is imposed for
the purpose of upholding that independence.
(3) The First Minister, the deputy First Minister
and Northern Ireland Ministers must not seek to influence particular
judicial decisions through any special access to the judiciary.
(4) In this section "the judiciary" includes
the judiciary of any of the following—
(a) the Supreme Court;
(b) any other court established under the law of
any part of the United Kingdom;
(c) any international court.
(5) In subsection (4) "international court"
means the International Court of Justice or any other court or
tribunal which exercises jurisdiction, or performs functions of
a judicial nature, in pursuance of—
(a) an agreement to which the United Kingdom or Her
Majesty's Government in the United Kingdom is a party, or
(b) a resolution of the Security Council or General
Assembly of the United Nations.
210 Judicial immunity from civil liability
(1) Judges are immune at common law from civil
claims in respect of acts that would otherwise be tortious providing
they are done in a judicial capacity in a court of justice.[789]
(2) Statutory protection provides immunity from
civil liability to certain offices in the administration of justice
in respect of what is done or omitted to be done in the executive
of his duty and in relation to matters within his jurisdiction.
[790]
(£) No proceedings shall lie against the
Crown by virtue of section of the Crown Proceedings Act 1947 (c.44)
in respect of anything done or omitted to be done by any person
while discharging or purporting to discharge any responsibilities
of a judicial nature vested in him, or any responsibilities which
he has in connection with the execution of judicial process.
[791]
211 Judicial appointment and removal
(1) Judicial appointments are made by the Sovereign
on the advice of the appropriate Minister, as provided for by
Acts of the United Kingdom Parliament, the Scottish Parliament,
the National Assembly of Wales, and the Northern Ireland Assembly.
(2) Minimum qualifications for judicial office-holders
are provided for by statute.[792]
(3) Statutory commissions assist in the process of
judicial appointments, being -
(a) in England and Wales, the Judicial Appointments
Commission, under the Constitutional Reform Act 2005 (as amended);[793]
(b) in Scotland, the Judicial Appointments Board
for Scotland, under the Judiciary and Courts (Scotland) Act 2008
(as amended);
(c) in Northern Ireland, the Judicial Appointments
Commission (under the Justice (Northern Ireland) Act 2002.
(4) Acts of the United Kingdom Parliament, Scottish
Parliament, National Assembly of Wales, and Northern Ireland Assembly,
make further provision for the selection procedures of judicial
office-holders and judicial members of the courts in their respective
jurisdictions.[794]
(5) A Justice of the Supreme Court holds that office
during good behaviour, but may be removed from it on the address
of both Houses of Parliament.[795]
The tenure of other judicial office-holders is regulated by statute
according to the court in which the judge belongs.[796]
(6) Any power to remove a person from a judicial
office is exercisable only after the responsible minister in the
jurisdiction has complied with prescribed procedures, as well
as any other requirements to which the power is subject, as provided
by statute.[797]
Chapter 32: JUDICIAL REVIEW OF
ADMINISTRATIVE ACTION
212 Administrative justice [798]
(1) The principles of administrative law governing
the acts and decisions of public bodies in the exercise of their
public functions are derived from the common law.
(2) Private sector bodies may be subject to administrative
law when they are carrying out public functions. Generally bodies
are to be regarded as performing public functions when they act,
and have the authority to act, for the collective benefit of the
general public.
(3) Acts of the United Kingdom Parliament, the Scottish
Parliament, the National Assembly for Wales, and the Northern
Ireland Assembly, provide for independent Tribunals for the adjudication
of disputes between citizens and public bodies.[799]
213 Judicial review procedure
[800]
(1) A 'claim for judicial review' means a claim to
review the lawfulness of
(a) an enactment; or
(b) a decision, action or failure to act in relation
to the exercise of a public function.
(2) The judicial review procedure
must be used[801] in
a claim for judicial review where the claimant is seeking -
(a) a mandatory order;
(b) a prohibiting order;
(c) a quashing order; or
(d) an injunction under section 30
of the Senior Courts Act 1981(restraining a person from acting
in any office in which he is not entitled to act).
214 When the judicial review procedure may be
used [802]
(1) THE
JUDICIAL REVIEW PROCEDURE MAY BE USED IN A CLAIM FOR JUDICIAL
REVIEW WHERE THE CLAIMANT IS SEEKING -
(a) a declaration; or
(b) an injunction.
(2) A claim for judicial review may
include a claim for damages, restitution or the recovery of a
sum due but may not seek such a remedy alone.
215 Permission required [803]
The court's permission to proceed
is required in a claim for judicial review whether started under
Part 54 of the Civil Procedure Rules or transferred to the Administrative
Court.
216 TIME LIMIT FOR FILING CLAIM FORM [804]
(1) The claim form must be filed -
(a) promptly; and
(b) in any event not later than 3
months after the grounds to make the claim first arose.
(2) The time limit in this rule may
not be extended by agreement between the parties.
(3) This rule does not apply when
any other enactment specifies a shorter time limit for making
the claim for judicial review.
217 PERMISSION GIVEN [805]
(1) Where permission to proceed is
given the court may also give directions.
(2) Directions under subsection (1)
may include -
(a) a stay of proceedings
to which the claim relates;
(b) directions requiring the proceedings
to be heard by a Divisional Court.
218 SERVICE OF ORDER GIVING OR REFUSING PERMISSION
[806]
The court will serve -
(a) the order giving or refusing permission;
and
(b) any directions, on -
(i) the claimant;
(ii) the defendant; and
(iii) any other person who filed an
acknowledgment of service.
219 DEFENDANT ETC. MAY NOT APPLY TO SET ASIDE [807]
Neither the defendant nor any other
person served with the claim form may apply to set aside an order
giving permission to proceed.
220 Grounds for judicial review
(1) The decision maker must understand correctly
the law that regulates his decision-making power and must give
effect to it. Whether he has or not is essentially a justiciable
question. [808]
(a) When a body is described as acting ultra vires
it is acting beyond its prescribed powers. An action can be
ultra vires where it the body has taken an action which
is incompatible with a higher legal authority.
(b) A public body is not entitled either to improperly
delegate its powers or to act under a completely inflexible policy.
In particular, while it is accepted that Ministers cannot personally
make every decision issued in their name where legislation confers
a power on a specified individual or body, the power cannot be
delegated to another person or body.
(c) A claim for judicial review can lie where a body
or tribunal has either disregarded a relevant consideration, or
taken into account an irrelevant consideration when reaching a
decision. [809]
(2) A decision must not be so outrageous in its defiance
of logic or of accepted moral standards that no sensible person
who had his mind to the question to be decided could have arrived
at it. [810]
(3) A decision-maker must not fail to observe basic
rules of natural justice or fail to act with procedural fairness
towards the person who will be affected by the decision.[811]
714 Constitutional Reform Act (hereafter 'CRA') 2005
c.4 s23(1) Back
715
CRA 2005 c.4 s23(2) Back
716
CRA 2005 c.4 s23(3) Back
717
CRA 2005 c.4 s23(4) Back
718
CRA 2005 c.4 s23(5) Back
719
CRA 2005 c.4 s23(6) Back
720
CRA 2005 c.4 s23(7) Back
721
CRA 2005 c.4 s23(8) Back
722
CRA 2005 c.4 s24(a) Back
723
CRA 2005 c.4 s24(b) Back
724
CRA 2005 c.4 s24(c) Back
725
CRA 2005 c.4 s38(1) Back
726
CRA 2005 c.4 s38(2) Back
727
CRA 2005 c.4 s38(3) Back
728
CRA 2005 c.4 s38(4) Back
729
CRA 2005 c.4 s38(5) Back
730
CRA 2005 c.4 s38(6) Back
731
CRA 2005 c.4 s38(7) Back
732
CRA 2005 c.4 s38(8) Back
733
CRA 2005 c.4 s39(1) Back
734
CRA 2005 c.4 s39(2) Back
735
CRA 2005 c.4 s39(3) Back
736
CRA 2005 c.4 s39(4) Back
737
CRA 2005 c.4 s39(5) Back
738
CRA 2005 c.4 s39(6) Back
739
CRA 2005 c.4 s39(7) Back
740
CRA 2005 c.4 s39(8) Back
741
CRA 2005 c.4 s39(9) Back
742
CRA 2005 c.4 s39(10) Back
743
CRA 2005 c.4 s25(1) Back
744
CRA 2005 c.4 s25(2)(b) Back
745
CRA 2005 c.4 s25(2)(c) Back
746
CRA 2005 c.4 s26(1) Back
747
CRA 2005 c.4 s26(2) Back
748
CRA 2005 c.4 s26(3) Back
749
CRA 2005 c.4 s26(4) Back
750
CRA 2005 c.4 s26(5) Back
751
CRA 2005 c.4 s26(5A) Back
752
CRA 2005 c.4 s26(5B) Back
753
CRA 2005 c.4 s26(6) Back
754
CRA 2005 c.4 s26(7) Back
755
CRA 2005 c.4 s26(7A) Back
756
CRA 2005 c.4 s26(8) Back
757
CRA 2005 c.4 s27 Back
758
CRA 2005 c.4 s32(1) Back
759
CRA 2005 c.4 s32(2) Back
760
CRA 2005 c.4 s32(3) Back
761
CRA 2005 c.4 s32(4) Back
762
CRA 2005 c.4 s32(5) Back
763
CRA 2005 c.4 s32(6) Back
764
CRA 2005 c.4 s34(1) Back
765
CRA 2005 c.4 s34(2) Back
766
CRA 2005 c.4 s34(3) Back
767
CRA 2005 c.4 s34(4) Back
768
CRA 2005 c.4 s34(5) Back
769
CRA 2005 c.4 s34(6) Back
770
CRA 2005 c.4 s35(1) Back
771
CRA 2005 c.4 s35(2) Back
772
CRA 2005 c.4 s35(3) Back
773
CRA 2005 c.4 s7 Back
774
Justice (Northern Ireland)Act 2002, s12 Back
775
The Cabinet Manual: A Guide to Laws, Conventions and Rules
on the Operation of Government (2011) Ed.1 Ch.6 para 6.38 Back
776
The Cabinet Manual: A Guide to Laws, Conventions and Rules
on the Operation of Government (2011) Ed.1 Ch.6 para 6.40 Back
777
Constitutional Reform Act ('CRA') 2005 c.4 s3(1) Back
778
CRA 2005 c.4 s3(2) Back
779
CRA 2005 c.4 s3(3) Back
780
CRA 2005 c.4 s3(4) Back
781
CRA 2005 c.4 s3(5) Back
782
CRA 2005 c.4 s3(6) Back
783
CRA 2005 c.4 s3(7) Back
784
CRA 2005 c.4 s3(7A) Back
785
CRA 2005 c.4 s3(7B) Back
786
CRA 2005 c.4 s3(8) Back
787
Judiciary and Courts (Scotland)Act 2008, s.1 Back
788
CRA 2005 c.4 s4(1) Back
789
See Floyd v Barker (1607) 12 Co Rep 23; Anderson v Gorrie
[1895] 1QB 668; Sirros v Moore [1975] QB 118 Back
790
For example justices of the peace in England and Wales: Courts
Act 2003 c.39 s31 Back
791
Crown Proceedings Act 1947 c.44 s2(5) Back
792
They include the Senior Courts Act 1981, the Constitutional Reform
Act 2005, the Judiciary and Courts (Scotland) Act 2008, and the
Justice (Northern Ireland) Act 2002 (each as amended). Back
793
Schedule 12. Back
794
Such as by the Constitutional Reform Act 2005, the Senior Courts
Act 1981, the Judiciary and Courts (Scotland( Act 2008, and Justice
(Northern Ireland) Act 2002, each as amended. Back
795
Constitutional Reform Act ('CRA') 2005 c.4 s33. Back
796
Similar tenure to that of Supreme Court Justices is possessed
by other senior judges: for example Court of Appeal and High Court
judges in England and Wales under the Senior Courts Act 1981 c.54
s11. The lower ranks of the judiciary have less statutory protection:
in England and Wales, for example, the Lord Chancellor may, if
he thinks fit and if the Lord Chief Justice agrees, remove from
office a Circuit judge or a District Judge (Magistrates' Courts)
on the ground of incapacity or misbehaviour): Courts Act 1971
c.23 s17(4) and s22(5). Back
797 See
Constitutional Reform Act 2005, the Senior Courts Act 1981, the
Judiciary and Courts (Scotland) Act 2008, and Justice (Northern
Ireland) Act 2002, each as amended. Back
798 Treasury
Solicitor, The Judge Over Your Shoulder, 4th
Edition, 2006, para 1.1, 1.2 Back
799
Such as the Tribunals, Courts and Enforcement Act 2007. Back
800
Civil Procedure Rules r54.1(2) Back
801
Civil Procedure Rules r54.2 Back
802
Civil Procedure Rules r54.3 Back
803
Civil Procedure Rules r54.4 Back
804
Civil Procedure Rules r54.5 Back
805
Civil Procedure Rules r54.10 Back
806
Civil Procedure Rules r54.11 Back
807
Civil Procedure Rules r54.13 Back
808
Council of Civil Service Unions v Minister for the Civil Service
[1985] 1 AC 374, 410 Back
809
Judicial Review: A short Guide to Claims in the Administrative
Court (2006) HC Lib 06/44 Back
810
Council of Civil Service Unions v Minister for the Civil Service
[1985] 1 AC 374, 410 Back
811
Council of Civil Service Unions v Minister for the Civil Service
[1985] 1 AC 374, 411 Back
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