PART VIII
THE JUDICIARY
40 Judicial
Authority
(1) The judicial authority of the United Kingdom
is vested in the courts.
(2) The courts are independent and subject only
to the Constitution and the law, which they must apply impartially
and without fear, favour or prejudice.[840]
(3) The courts shall operate in the separate
jurisdictions and legal systems of England and Wales, in Scotland,
and in Northern Ireland, subject to the Supreme Court of the United
Kingdom.
(4) An order or decision by a court binds all
persons to whom, or organs of state to which, it applies.
(5) The Minister for Justice and the executives
of the United Kingdom and the devolved territories are under a
duty to protect the courts to ensure their independence, impartiality,
dignity, accessibility, and effectiveness.
(6) No court or tribunal shall be established
to exercise judicial functions of a public nature in any part
of the United Kingdom except as provided or authorised by this
Constitution.
(7) The head of the judiciary in England and
Wales shall be the Lord Chief Justice; the head of the judiciary
in Scotland shall be the Lord President of the Court of Session;
and the head of the judiciary in Northern Ireland shall be the
Lord Chief Justice of Northern Ireland.
(8) The Supreme Court, the Court of Appeal and
High Court in England and Wales, the Court of Session and High
Court of Justice in Scotland, and the Court of Appeal and High
Court in Northern Ireland, have the inherent power to develop
the common law taking into account the interests of justice.
(9) The procedures of the courts shall function
under the authority of Acts of Parliament and Acts of the Assemblies,
and Rules Committees shall be established in each jurisdiction
for the purpose of making, amending and keeping under review the
rules and practices of the courts.
41 The
Supreme Court
(1) There is established by this Constitution
a Supreme Court for the United Kingdom, which shall be the final
court of appeal in the state and possess the jurisdiction as set
out in this Constitution and by Act of Parliament.
(2) The Court shall consist of twelve judges,
including a President and Deputy President, to be appointed by
the Head of State,[841]
and to be styled "Justice of the Supreme Court".[842]
(3) A Selection Committee comprising the President
and Deputy President of the Court and one member from each of
the Judicial Services Commissions in England and Wales, Scotland,
and Northern Ireland, shall be established to make recommendations
to the Prime Minister for the appointment or removal of Justices
of the Supreme Court by the Head of State.
(4) The Head of State may from time to time
by Order in Council increase the number of judges of the Court,
provided that no recommendation may be made to the Head of State
to make an Order under this paragraph unless a draft of the Order
has been laid before and approved by resolution of each House
of Parliament.
(5) The Court shall be duly constituted despite
any vacancy among the judges of the Court or in the office of
President or Deputy President.
(6) An Act of Parliament shall provide for the
appellate jurisdiction of the Supreme Court from decisions of
the courts in England and Wales, in Scotland, and in Northern
Ireland, and of the courts of countries outside the United Kingdom
on the invitation and at the request of the Parliaments of those
countries.
(7) Any decision of the Supreme Court, including
a decision that it has jurisdiction to hear an appeal, is final
and conclusive on all other courts.
(8) The Supreme Court is not bound by its own
previous decisions.
42 Courts
in the Three Jurisdictions
(1) An Act of Parliament[843]
shall establish the courts and matters of judicial administration
in England and Wales, including the membership and jurisdiction
of the courts, and shall make provision for -
(a) a Court of Appeal, being the highest appellate
court in England and Wales, consisting of the Master of the Rolls
and such number of other justices (not being less than twenty)
as an Act of Parliament may prescribe;
(b) a High Court for civil and public proceedings
of first instance, and appeals from inferior criminal courts by
case stated as may be prescribed by Act of Parliament, consisting
of the Lord Chief Justice and such number of other justices (not
being less than fifty) as an Act of Parliament may prescribe;
(c) a Crown Court for criminal proceedings on
indictment, consisting of the justices of the High Court and such
number of other judges as may be prescribed by Act of Parliament;
and
(d) such other courts[844]
and tribunals as may be established by Act of Parliament.
(2) An Act of Parliament or the Scottish Parliament[845]
shall establish the courts and matters of judicial administration
in Scotland, including the membership and jurisdiction of the
courts, and shall make provision for -
(a) a Court of Session for civil and public proceedings,
comprising an Inner House as court of first instance and an Outer
House as the highest appellate civil court in Scotland, consisting
of the Lord President (who shall preside over the First Division
of the Inner House), the Lord Justice Clerk (who shall preside
over the Second Division of the Inner House), and such number
of other judges (who shall compose the Outer House) as Act of
the Scottish Parliament may prescribe.
(b) a High Court of Justice, being the supreme
criminal court, consisting of the Lord President, as Lord Justice
General, and the other judges of the Court of Session;
(c) Sheriffs courts for criminal cases on indictment,
being the number and titles of whose judges shall be such as may
be prescribed by an Act of the Scottish Parliament;
(d) such other courts[846]
and tribunals as may be established
by an Act of Parliament or of the Scottish Parliament.[847]
(3) An Act of Parliament or the Northern Ireland
Assembly shall establish the courts and matters of judicial administration
in Northern Ireland, including the membership and jurisdiction
of the courts, and shall make provision for -
(a) a Court of Appeal, being the highest appellate
court in Northern Ireland, consisting of the Chief Justice of
Northern Ireland and such number of other Justices (not being
fewer than 3) as may be prescribed by an Act of the Northern Ireland
Assembly;
(b) a High Court for civil and public proceedings,
consisting of the Chief Justice of Northern Ireland and such number
of other Justices (not being fewer than 6) as an Act of the Northern
Ireland Assembly may prescribe;
(c) a Crown Court for criminal proceedings on
indictment, consisting of the Justices of the High Court and such
number of other judges as an Act of the Northern Ireland Assembly
may prescribe;
(d) such other courts[848]
and tribunals as may be established by under the authority of
an Act of Parliament [849]
or by the Northern Ireland Assembly.
Cross-Jurisdictional Relations
(4) Full faith and credit[850]
shall be given throughout the United Kingdom to the laws, acts
and records of the Scottish Parliament, Assembly for Wales and
Northern Ireland Assembly, and to the judicial proceedings of
the courts of England and Wales, Scotland and Northern Ireland.
(5) An Act of Parliament shall provide for the
enforcement in one part of the United Kingdom of the judgments
and orders of courts in another part of the United Kingdom.
43 Constitutional
Jurisdiction of the Courts
(1) The jurisdiction of the High Court in England
and Wales, of the Court of Session in Scotland, and of the High
Court in Northern Ireland, shall extend to the question of the
compatibility of any law with this Constitution; and no such question
shall be raised (whether by pleading, argument or otherwise) in
any other court or tribunal except for the Supreme Court of the
United Kingdom.
(2) The term "law" in paragraph (1)
for the purposes of this Article shall mean all or part of any
Act of Parliament, an Act of the Scottish Parliament or Assembly
for Wales or Northern Ireland Assembly, European Union law, local
government bye-law, Order in Council, statutory instrument or
other subordinate legislation, principle or doctrine of the common
law, or any other legal rule or principle arising from a source
of law recognised by the courts.
(3) When in the opinion of a court having jurisdiction
to review the compatibility of a law with the Constitution under
paragraph (1), an Act of Parliament or of the Scottish Parliament,
Assembly for Wales or Northern Ireland Assembly is wholly or in
part incompatible with the Constitution, it shall issue a declaration
of unconstitutionality to the extent of the inconsistency, provided
that -
(a) the declaration shall be conditional on its
confirmation by the Supreme Court, to whom the question shall
be directly referred;
(b) in all cases except for those specified in
paragraph (c) below, the declaration shall not affect the validity,
continuing operation or enforcement of the provision in respect
of which it is given, and shall not be binding on the parties
to the proceedings in which it is made;
(c) where the declaration unconstitutionality
engages with Articles 00, 00, 00, or 00, the court shall declare
the provision to be invalid, in which case pending the confirmation
or otherwise by the Supreme Court as required by paragraph (a)
the court may grant a temporary injunction or other temporary
relief to a party or may adjourn the proceedings.
(4) When in the opinion of a court having jurisdiction
to review the compatibility of a law with the Constitution under
paragraph (1), a law other than an Act of Parliament or of the
Scottish Parliament, Assembly for Wales or Northern Ireland Assembly
is incompatible with the Constitution, it shall declare that law
to the extent of its incompatibility to be invalid.
(5) If any question as to the compatibility
of an Act of Parliament or of the Scottish Parliament, National
Assembly for Wales or Northern Ireland Assembly, or any part thereof,
with the Constitution arises in the course of proceedings in a
court or tribunal other than the High Court in England and Wales,
or the Court of Session in Scotland, or the High Court in Northern
Ireland then it shall be referred to the Supreme Court for a preliminary
ruling unless it is satisfied that there is no substance in the
question.
(6) An appeal from any decision in the High Court
in England and Wales, or the Court of Session or High Court of
Justice in Scotland, or the High Court in Northern Ireland, holding
an Act of Parliament or Act of the Scottish Parliament, Assembly
for Wales or Northern Ireland Assembly wholly or partially incompatible
with the Constitution shall be taken directly, without leave,
to the Supreme Court.
(7) The Supreme Court has original and exclusive
jurisdiction -
(a) in any proceedings brought by the Government
of the United Kingdom seeking a ruling that any Act of the Scottish
Parliament, Assembly for Wales or Northern Ireland Assembly is
wholly or partly invalid under this Constitution;
(b) in any proceedings brought by the Executive
of the Scottish Parliament, Assembly for Wales or Northern Ireland
Assembly seeking a ruling that any Act of Parliament is wholly
or partly incompatible with this Constitution.
44 Judicial
Appointments and Removal
(1) A judge's salary shall not be reduced, and
no adverse changes shall be made in other conditions of service
during tenure of office.[851]
(2) There shall be a Commission established in
each of England and Wales, of Scotland, and of Northern Ireland,
Judicial Services Commission (collectively and individually referred
to in this Article as the Judicial Services Commission)[852],
which -
(a) shall make recommendations on the appointment
and removal of judges and perform such other functions and duties
as may be provided by Act of Parliament;
(b) shall comprise a lay President, five judges
from the jurisdiction of the Commission, two members of the legal
profession in the jurisdiction of the Commission (not each holding
the same qualification as each other), five lay members, one tribunal
judge, and one non-legally qualified judicial member;[853]
(c) shall adopt procedures for the identification
of candidates for judicial office which will ensure, so far as
practicable, that adequate numbers of candidates of both sexes
and from diverse racial, religious and social backgrounds are
considered for appointment;
and shall be further provided for by Act of Parliament
or of the appropriate devolved Parliament or Assembly.
(3) Judges are appointed -
(a) in the case of a judge of the Court of Appeal
or High Court in England and Wales, of the Court of Session or
High Court of Justice in Scotland, or the Court of Appeal or High
Court in Northern Ireland, by the Head of State acting on the
advice of the Minister of Justice following a recommendation from
the Judicial Services Commission; or
(b) in the case of all other courts or tribunals,
by the Minister of Justice following a recommendation from the
Judicial Services Commission;
(c) and in all cases, from persons who have such
qualifications as may be prescribed by Act of Parliament or of
the appropriate devolved Parliament or Assembly.
(4) A judge ceases to hold office -
(a) upon attaining the age of 70 years (or, in
the case of judges below the High Court in England and Wales,
the Court of Session and High Court of Justice in Scotland, or
High Court in Northern Ireland, such lower age as an Act of Parliament
or the appropriate devolved Parliament or Assembly may prescribe);
or
(b) upon receipt by the Prime Minister, Minister
of Justice, or Chief Executive, as the case may be, of a letter
of resignation from the judge; or
(c) upon removal from office in accordance with
the relevant provisions in this Article; or
(d) upon membership of either House of Parliament
or acceptance of any office or position of emolument;
(e) in the case of a judge in a court beneath
the High Court in England and Wales, the Court of Session and
High Court of Justice in Scotland, or High Court in Northern Ireland,
upon the expiration of any fixed term for which the appointment
was made without the appointment having been renewed;
subject that a judge who attains the retiring age
may continue to act in any proceedings the hearing of which had
commenced before attaining that age.
(5) No judge may be removed from office except
on the ground of -
(a) physical or mental incapacity which is likely
to be permanent or prolonged; or
(b) serious judicial misconduct; or
(c) failure in the due execution of office; or
(d) having been placed, by personal conduct or
otherwise, in a position incompatible with the due execution of
office.
and no judge may be removed from office except by
the specified procedure in paragraph (4).
(6) A judge may be removed from office only if
-
(a) in the case of a Justice of the Supreme Court,
a recommendation for dismissal of the judge has been presented
by the Selection Committee provided for in Article 40(3) to the
Prime Minister which is then confirmed by affirmative resolution
in each House of Parliament;
(b) in the case of a judge of the Court of Appeal
or High Court in England and Wales, of the Court of Session or
High Court of Justice in Scotland, or the Court of Appeal or High
Court in Northern Ireland, a recommendation for dismissal of the
judge has been presented by the Judicial Services Commission to
the Minister of Justice which is then confirmed by affirmative
resolution in each House of Parliament;
(c) in the case of all other courts or tribunals,
where a recommendation for dismissal of the judge has been presented
by the Judicial Services Commission to the Minister for Justice,
who shall then give reasons for any proposed removal and allow
the judge to make representations.
(7) A judge's dismissal under paragraph (6) shall
be made -
(a) in the case of paragraphs (6)(a) and (6)(b)
by the Head of State;
(b) in the case of paragraph (6)(c) by the Minister
of Justice, whose decision is subject to judicial review.
45 Administrative
Justice
Judicial Review
(1) An Act of Parliament shall provide for
(a) judicial review of acts or omissions of persons
or bodies in the performance of any public functions; and
(b) a general duty upon public authorities to
give reasons for their decisions;
(c) effective remedies including the payment
of compensation in cases where applications for judicial review
are upheld; and
(d) a process by which application for judicial
review may be made by any person having a sufficient interest
in the matter to which the application relates.
Commissioner for Public Administration
(2) An Act of Parliament shall establish a Commission
for Public Administration, which may operate through associated
Commissioners operating in England, Scotland, Wales and Northern
Ireland, and through divisions concerned with particular categories
of public authority, to receive complaints of maladministration
causing injustice in the public services, and to undertake inquiries
into practices of any public authority that appear to constitute
unfair administration, making provision for -
(a) its composition and membership, which shall
be subject to the approval of the House of Commons or, with the
consent of Parliament, by the Assemblies;[854]
(b) the acts and omissions of public authorities,
and all public authorities, to be subject to investigation by
the Commission, unless Parliament expressly provides otherwise;
(c) it possessing powers to require the production
of documents and information from the public authorities, unless
Parliament expressly provides otherwise with respect to particular
areas of government;
(d) means of effective redress, including the
payment of compensation, for persons whom the Commission finds
to have been adversely affected by failure of administration or
unfair administration; and
(e) an annual report to Parliament, the appropriate
devolved Parliament or Assembly, or local authorities, on its
work including the findings of its investigations with r recommendations
for improvements in any aspect of administrative justice.
Power of Mercy
(3) The Head of State, acting on the advice of
the Minister of Justice, may -
(a) grant a pardon, either free or subject to
lawful conditions, to a person convicted of an offence; or
(b) grant a delay, either indefinite or for a
specified period, from the enforcement of any sentence or order
imposed on a person for an offence; or
(c) substitute a less severe form of punishment
for any punishment imposed on a person for an offence; or
(d) remit the whole or part of any punishment
imposed on a person for an offence or of any penalty, fine or
forfeiture otherwise due to the Government on account of an offence.
840 This reproduces the universal principle as expressed
in Article 165(1) of the Constitution of the Republic of South
Africa Act, No. 108 or 1996. Back
841
Under Article 4(10) the Head of State will appoints Justices on
the advice of the Prime Minister. Back
842
Paragraphs (3) to (8) of this Article summarise the present situation
as laid down in the Constitutional Reform Act 2005. Back
843
Currently the Senior Courts Act 1981 performs this function. Back
844
This includes the Magistrates Courts dealing with less-serious
criminal cases without jury under the terms of the various Magistrates
Courts Acts, and the County Courts dealing with civil cases involving
lesser sums of money under the terms of the Courts Act 1984 (as
amended). Back
845
Currently the legislation performing this function includes the
Court of Session Act 1988 (UK Parliament) and the Judiciary and
Courts (Scotland) Act 2008 (Scottish Parliament). Back
846
This includes the Justice of the Peace Courts dealing with minor
criminal cases without jury. Back
847
Scottish Acts currently performing this function include the Criminal
Proceedings etc. (Reform) (Scotland) Act 2007. Back
848
This includes the Magistrates Courts dealing with less-serious
criminal cases without jury, and County Courts dealing with civil
cases involving lesser sums of money. Back
849
Legislation currently performing this function include the Magistrates
Courts Act (Northern Ireland) 1964 (as amended) and the County
Courts (Northern Ireland) Order 1980 (as amended. Back
850
This adopts the constitutional principle facilitating respect
and co-operation across different state jurisdictions laid down
in the US Constitution ("Full faith and credit shall be given
in each state to the public acts, records, and judicial proceedings
of every other state. And the Congress may by general laws prescribe
the manner in which such acts, records, and proceedings shall
be proved, and the effect thereof", Article IV, 1). Back
851
This re-enacts in modern language the constitutional provision
in the Act of Settlement 1700 protecting the judiciary from executive
penalties for handing down decisions of which the government or
Parliament disapproves. Back
852
The existing analogous bodies are the Judicial Appointments Commission
in England and Wales, the Judicial Appointments Board for Scotland,
and the Northern Ireland Judicial Appointments Commission. Back
853
Such as a lay magistrate. Back
854
In practice, this would be delegated to a committee. Back
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