House of Lords - Explanatory Note

House of Lords

Session 2003 - 04
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Constitutional Reform Bill [HL]

These notes refer to the Constitutional Reform Bill [HL]
as introduced in the House of Lords on 24th February 2004 [HL Bill 30]

CONSTITUTIONAL REFORM BILL [HL]



     EXPLANATORY NOTES

INTRODUCTION

     1.     These explanatory notes refer to the Constitutional Reform Bill [HL] as introduced in the House of Lords on 24th February 2004. They have been prepared by the Department for Constitutional Affairs in order to assist the reader of the Bill and to help inform the debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

OVERVIEW

3.     The Constitutional Reform Bill will abolish the office of the Lord Chancellor and make changes to the way in which the functions vested in that office are handled. This Bill will also create the Supreme Court of the United Kingdom, create the Judicial Appointments Commission and remove the right of the Lord President of the Council to sit judicially.

4.     The explanatory notes are divided into parts reflecting the structure of the Bill. In relation to each Part, there is a summary and background section. Commentary on particular clauses is then set out in number order, with the commentary on the various schedules included with the clause to which they relate.

5.     Notes on the effects of the Bill on: public expenditure; public sector manpower; cost to business and regulatory impact, follow the commentary on clauses, as does a brief note on the European Convention on Human Rights issues.

6.     The Bill is divided into 5 parts:

     Part 1: Arrangements to replace office of Lord Chancellor

Part 1: Makes provision for replacing the office of Lord Chancellor and abolishing that office. There are provisions in relation to the judiciary and the courts, the Great Seal, and the Speakership of the House of Lords. This Part also provides a guarantee of continued judicial independence.

Part 2: The Supreme Court

Part 2: Makes provisions for a Supreme Court to replace the existing system of Law Lords operating as a committee of the House of Lords. It provides for the appointment of judges, the Court's jurisdiction, its procedures, resources, including accommodation, and other matters.

     Part 3: Judicial appointments and discipline

Part 3: Makes provision for a Judicial Appointments Commission to be responsible for recruiting and selecting judges. It provides for it to report to the Minister on who has been selected, and for the Minister to make the appointment or the recommendation to The Queen. It also makes provision for a Judicial Appointments and Conduct Ombudsman, who will investigate any complaints, and for disciplinary procedures in relation to the judiciary.

     Part 4: Other provisions in relation to the judiciary

Part 4: Makes provisions regarding Parliamentary disqualification and the judicial functions of the Lord President of the Council.

     Part 5: General

Part 5: provides for interpretation, minor and consequential amendments, repeals and revocations, supplementary provisions, extent, commencement and the title of the Act.

     PART 1: ARRANGEMENTS TO REPLACE OFFICE OF LORD CHANCELLOR

SUMMARY

7.     Part 1 abolishes the offices of Lord High Chancellor of Great Britain and Lord Keeper of the Great Seal and provides for the future exercise of the functions of those offices. It provides:

a)     that the offices of Lord High Chancellor and Lord Keeper of the Great Seal of the United Kingdom are to be abolished;

b)     that the Secretary of State for Constitutional Affairs shall in future exercise the former functions of the Lord Chancellor relating to the Great Seal, (with certain consequential amendments to other enactments);

c)     for the amendment of certain statutory provisions that refer to the Lord Chancellor in his capacity as Speaker of the House of Lords, so that they will in future refer to the Speaker of the House of Lords in general terms; and

d)     in consequence of the abolition of the office of Lord Chancellor: for the transfer of his statutory functions relating to the judiciary to the Secretary of State for Constitutional Affairs or the Lord Chief Justice with requirements for consultation or concurrence between them as appropriate to the nature of the function and for the transfer of his Ministerial functions to the Secretary of State for Constitutional Affairs.

8.     Part 1 also defines the general statutory responsibilities of the Secretary of State for Constitutional Affairs, the Lord Chief Justice (as President of the Courts of England and Wales) and others in relation to the administration of justice, and imposes specific statutory duties on those persons and on Ministers of the Crown generally to uphold the independence of the judiciary.

9.     It also defines the new offices of the President of the Courts of England and Wales, the Head and Deputy Head of Criminal Justice and Head and Deputy Head of Family Justice.

     BACKGROUND

10.     A wide range of statutory powers is currently exercisable by the Lord Chancellor. The majority of such powers are exercisable by the Lord Chancellor in his Ministerial capacity and most of these will be transferred to the Secretary of State for Constitutional Affairs by means of Transfer of Functions Orders made under the Ministers of the Crown Act 1975.

11.     Statutory powers exercised by the Lord Chancellor in his capacity as Speaker of the House of Lords will be amended by the Bill so that they refer explicitly to the Speaker of the House of Lords in general terms. It will be a matter for the House of Lords to determine the specific arrangements for the office of Speaker.

12.     Clause 9 of the Bill provides that the Secretary of State for Constitutional Affairs shall assume the functions relating to custody of the Great Seal, hitherto exercised by the Lord Chancellor. These functions will not be transferable to any other officer of state without primary legislation. The Bill also preserves the existing prerogative power to place the Great Seal into commission, which is used in cases where the Secretary of State for Constitutional Affairs is unable to exercise them due to absence from the country or incapacity. It also makes various amendments consequential upon these changes.

13.     There also exist a range of functions, statutory and otherwise, which are currently exercisable by the Lord Chancellor which relate to the judiciary or to the Lord Chancellor's judicial role. Some of these functions have been exercised in the Lord Chancellor's capacity of 'Head of the Judiciary' (although this has not historically been a formal or statutory title).

14.     Clause 3 of the Bill provides for all of these statutory functions currently vested in the Lord Chancellor to be transferred to another office holder or otherwise disposed of. These functions are, in the main, transferred to the Secretary of State for Constitutional Affairs. Judiciary-related functions are transferred to the Secretary of State for Constitutional Affairs, the Lord Chief Justice or to another member of the senior judiciary. In a number of instances, the Secretary of State for Constitutional Affairs will be required to consult, or obtain the concurrence of, the Lord Chief Justice (or vice versa) before a particular function can be exercised.

15.     The Bill at clause 98 makes provision for the disposal of any remaining functions of the Lord Chancellor in local and private acts, not yet identified, or functions created by passed legislation in the 2003-04 Session. It also provides a power to amend charters and other prerogative instruments to take account of the consequences of abolishing the office of the Lord Chancellor. The Bill also makes a series of further consequential amendments to statutory references to the Lord Chancellor in primary and secondary legislation.

16.     Related to provisions in Schedule 1 that deal with the administration and resourcing of the courts, and in consequence of the abolition of the Lord Chancellor, it has been agreed that a senior member of the judiciary will be a non-executive member of the Board for the new Unified Courts Agency. At least two separate bilateral discussions between the Chief Executive of the Agency and representatives of the Judges' Council, concentrating on providing the opportunity for judicial input into future resource planning of the Agency, will be held each year. These arrangements will be set out in the Framework Document of the Agency, copies of which will be made available in the libraries of both Houses of Parliament. In addition, a senior member of the judiciary will also be a non-executive member of the Corporate Board of the Department for Constitutional Affairs. Further, in Spending Review years, the Director-General, Finance and the Permanent Secretary of the Department for Constitutional Affairs will meet the Lord Chief Justice (or his representative) when the Departmental bid and Public Service Agreement is being worked up, and then again before final Departmental allocations are made after the settlement. Such meetings will be held at a similar stage in non-Spending Review years, focussing on the delivery arms of the Department.

COMMENTARY ON CLAUSES

The Judiciary and the Courts

Clause 1: Guarantee of continued judicial independence

17.     Clause 1 places a duty on Ministers of the Crown and all others involved in the administration of justice to uphold the continued independence of the judiciary. It also sets out two particular duties that are to be exercised for the purpose of upholding that independence. The first is a duty on Ministers of the Crown not to seek to influence particular judicial decisions through any special access to the judiciary. The second requires the Secretary of State for Constitutional Affairs to have regard to the need to defend the continued independence of the judiciary, the need for the judiciary to have proper support to enable them to exercise their functions, and the need for the public interest in matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters. This clause should be read in conjunction with Part 1 of the Courts Act 2003, as amended by Schedule 1 to this Bill, which sets out the duty of the Secretary of State for Constitutional Affairs to ensure that there is an efficient and effective system to support the carrying on of the business of the courts of England and Wales. This clause also employs the term "the Minister", which is used throughout the Bill, and wherever used refers to the Secretary of State for Constitutional Affairs (see also clause 97). These Explanatory Notes accordingly also refer to "the Minister"; and when they do, they mean by that term the Secretary of State for Constitutional Affairs.

Clause 2: President of the Courts of England and Wales

18.     Clause 2 provides a new, additional, statutory title of President of the Courts of England and Wales which will be assumed by the Lord Chief Justice. The clause sets out the responsibilities of the President of the Courts of England and Wales and the courts to which the presidency applies. In his role as President of the Courts of England and Wales, the Lord Chief Justice is to be responsible for representing the views of the judiciary of England and Wales to Parliament, the Minister (that is, the Secretary of State for Constitutional Affairs) and Ministers of the Crown generally. He is also to be responsible, within the resources made available by the Minister, for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary of England and Wales, and for maintaining appropriate arrangements for the deployment of the judiciary of England and Wales and allocating work within courts.

Clause 3: Functions of the Lord Chancellor and organisation of the Courts

19.     Clause 3 provides for existing judiciary-related functions of the Office of the Lord Chancellor set out in primary legislation to be transferred either to the Minister or the Lord Chief Justice of England and Wales. In the main these functions will be exercised with either the concurrence of or after consultation with the Minister or Lord Chief Justice of England and Wales, as appropriate.

Schedule 1: Functions of the Lord Chancellor and organisation of the Courts

20.     Schedule 1 makes the amendments referred to in clause 3. In summary, the effect of this Schedule is to provide that:

?     existing statutory functions of the Lord Chancellor that relate to (i) the framework for the organisation of the courts system, including setting the geographical and jurisdictional boundaries within England and Wales; (ii) the provision and allocation of financial, material and human resources for the administration of justice; (iii) the pay, pensions and terms and conditions of the judiciary and the provision of staff and resources for training of the judiciary; and (iv) the overall number of judges and the distribution of business between different levels of courts will be transferred to the Minister;

the existing statutory functions of the Lord Chancellor that relate to: (i) the posting and roles of individual judges within the framework of the court system; (ii) the responsibility to make rules relating to deployment of magistrates; (iii) the authorisation and assignment of judges, allocation of work and the distribution of business within the same level of the court system, (e.g. between divisions of the High Court); and (iv) the nomination of judges to deal with specific areas of business and to fill judicial leadership posts such as the Presiding Judges will be transferred to the Lord Chief Justice;

?     the existing statutory functions of the Lord Chancellor that enable him to determine the framework for the appointment of judicial office holders to committees, boards and similar bodies will be transferred to the Minister, while the statutory functions that enable him to appoint individual judges to such bodies will be transferred to the Lord Chief Justice;

as regards the making of court rules, where statutory committees presently exist, the relevant provisions will be modified to take account of the division of the Lord Chancellor's functions between the Minister and the Lord Chief Justice. The appointment of non-judicial members of rule committees will be made by the Minister and judicial members will be appointed by the Lord Chief Justice. In addition, there will be a new power for the Minister to require rule committees to change rules or to make new rules to achieve a specified purpose, and to allow rules made by such committees. He may disallow rules but is required to provide written reasons. (See clause 6 for rule making powers not related to rule making committees);

statutory references to the Vice-Chancellor are amended to provide for the new title of "Chancellor of the High Court". Statutory references within the Courts Act 2003 are amended to provide that the Master of the Rolls will assume the position of "Head of Civil Justice" ex officio. A new position of "President of the Queen's Bench Division" is also created; this post will not be held by the Lord Chief Justice;

the Lord Chief Justice will replace the Lord Chancellor as the office holder before whom judges will take their oaths. The Lord Chief Justice will take his oath before the Master of the Rolls; and

where amendments made to other Acts by the Schedule confer functions on the Lord Chief Justice, a provision is added in each case permitting him to delegate the function to another judicial office-holder.

Clause 4: Head and Deputy Head of Criminal Justice

21.     Clause 4 creates a new statutory post of Head of Criminal Justice, which will be held ex officio by the Lord Chief Justice of England and Wales or, after consultation with the Minister, by his nominee. This clause also provides that the Lord Chief Justice may appoint a Deputy Head of Criminal Justice. The creation of these new posts mirrors the existing statutory posts of Head and Deputy Head of Civil Justice, established by section 62 of the Courts Act 2003.

Clause 5: Head and Deputy Head of Family Justice

22.     Clause 5 creates a new statutory post of Head of Family Justice, which will be held ex officio by the President of the Family Division. This clause also provides that the Lord Chief Justice may appoint a Deputy Head of Family Justice. The creation of these new posts mirrors the existing statutory posts of Head and Deputy Head of Civil Justice, established by section 62 of the Courts Act 2003.

Clause 6: Powers to make rules

23.     Clause 6 provides for the transfer of functions relating to rule-making powers that are not made by rule committees but which are currently conferred on the Lord Chancellor alone. These functions will be exercised by the Lord Chief Justice with the concurrence of the Minister.

Schedule 2: Powers to make rules

24.     Schedule 2 makes the amendments referred to in clause 6. These rule-making powers will transfer to the Lord Chief Justice, but (to mirror the allowing and disallowing powers for rules made by rule committees) the concurrence of the Minister will be required. The new powers to change rules or to make new rules to achieve a specified purpose are to be applicable for such rule-making.

Clause 7: Powers to Give Directions

25.     Clause 7 provides for the transfer of functions relating to the making of practice directions. The Lord Chief Justice will make practice directions, with the concurrence of the Minister. The model introduced by Section 74 of the Courts Act 2003 regarding the making of criminal Practice Directions will be applied uniformly across civil and family business and in all levels of court. The concurrence of the Minister will not be required for directions relating to guidance as to the law or making of judicial decisions.

Schedule 3: Powers to Give Directions

26.     Schedule 3 makes the amendments referred to in clause 7. The Lord Chief Justice may, with the concurrence of the Minister, give directions as to the practice and procedure of the criminal, civil and family courts. The Lord Chief Justice, with the approval of the Minister, may delegate this function; the expectation is that the power would usually be delegated to the Heads of Criminal, Civil and Family Justice. The Lord Chief Justice may act without the concurrence of the Minister for directions concerning guidance as to the law or the making of judicial decisions.

     Appointments

Clause 8: Transfer of appointment functions and Schedule 4

27.     Clause 8 provides that the appointments listed in Part 1 of Schedule 4 will in future be made by Her Majesty The Queen rather than the Lord Chancellor. These appointments are those of civil District Judges, High Court Registrars and Masters, and the Senior District Judge (Chief Magistrate). The relevant appointing provisions are amended and the power to assign District Judges to districts and to district registries is transferred from the Lord Chancellor to the Lord Chief Justice. The power to determine the salaries of District Judges and High Court Masters and Registrars is transferred from the Lord Chancellor to the Minister with the concurrence of the Treasury. These appointments are also listed in Schedule 11, which will mean that these appointments are in future to be made on the basis of selection by the Judicial Appointments Commission.

28.     Clause 8 also provides that the appointments listed in Part 2 of Schedule 4 will in future be made by the Minister (the Minister) rather than the Lord Chancellor. Part 2 lists numerous other appointing powers of the Lord Chancellor, all of which are transferred to the Minister, and the relevant Acts of Parliament are all amended accordingly. Those appointments that are of judges or members of tribunals, or similar posts, are also listed in Schedule 12, which will mean that these appointments are in future to be made on the basis of selection by the Judicial Appointments Commission.

The Great Seal

     Clause 9: The Great Seal

29.     By convention, the Lord Chancellor has been custodian of the Great Seal of the Realm. As that office is to be abolished, the functions of the Lord Chancellor in relation to the Great Seal are to transfer to the Minister. Subsection (3) disapplies the power to transfer these responsibilities by means of subordinate legislation, so that where it is intended to shift away from the Minister those responsibilities conferred on him by this section, it would require primary legislation. Subsection (2) gives effect to consequential changes set out in Schedule 5.

Schedule 5: Amendments relating to the Great Seal

30.     Schedule 5 sets out amendments arising from the transfer of responsibilities in relation to the Great Seal from the Lord Chancellor to the Minister. It also removes the power for fees to be taken in the Crown Office in relation to the duties of the purse-bearer.Clause 10: Commissioners of the Great Seal

31.     This clause provides for the repeal of the Great Seal Act 1688. This Act applies in circumstances where the Great Seal is held by a Commission and provides that such Commissioners have the powers and entitlements of the Lord Chancellor or Lord Keeper. Her Majesty under the Royal prerogative may appoint Commissioners who can act in place of the Lord Chancellor when he is for some reason unavailable. Subsection (2) provides that the repeal of the Great Seal Act 1688 does not affect this power.

32.     Subsection (3) limits the responsibilities of the Commissioners of the Great Seal so appointed by Her Majesty only to those functions relating to the Great Seal and transferred by clause 9, rather than to all Lord Chancellor's powers and entitlements permitted in earlier legislation. The subsection acknowledges that the powers of Commissioners can be further limited by the terms of the Commission itself, as now.

33.     Subsection (4) re-enacts the provision in the 1688 Act in relation to the placing of Commissioners of the Great Seal in the order of precedence.

Speakership of the House of Lords

     Clause 11 and Schedule 6: Speakership of the House of Lords

34.     Clause 11 gives effect to Schedule 6. Some statutes make explicit reference to the 'Speaker of the House of Lords'. Others refer to the Lord Chancellor, but apply where he is acting in the capacity of Speaker. Schedule 6 provides for the replacement of these references to the Lord Chancellor with the 'Speaker of the House of Lords' in primary legislation which sets out functions the Lord Chancellor exercises in relation to his role as Speaker as the House of Lords. This change would allow any speaker, whether or not the Lord Chancellor, to perform these functions.

Abolition of the Lord Chancellor

     Clause 12: Abolition of the office of Lord Chancellor

35.     Clause 12 provides for the abolition of the office of Lord High Chancellor of Great Britain, and also Lord Keeper of the Great Seal. The holder of the office of Lord Keeper has by convention held the Great Seal when there is no Lord Chancellor and had the same authority and jurisdiction as the Lord Chancellor.

Clause 13: Salary and pension

36.     Schedule 7 (Parts 1 and 2) removes provisions relating to the salary and pensions of the Lord Chancellor in current legislation and makes provision having the effect that the Secretary of State for Constitutional Affairs will in future only have the same salary and pensions entitlements as any other Secretary of State. It provides the present Lord Chancellor with pension entitlements, equivalent to a Secretary of State, for his period of office as Lord Chancellor; and reinstates pension entitlements accrued as a minister before his appointment as Lord Chancellor.

Schedule 7: Salary and Pension of the Lord Chancellor

Part 1: Salary and Pension: Consequential Provision

37.     Part 1 of Schedule 7 removes the Lord Chancellor's entitlements to pay and pension from the Consolidated Fund in respect of his service as Lord Chancellor and as Speaker of the House of Lords. It amends statutory references to the salary and pension of the Lord Chancellor which will no longer be needed once the office is abolished. It also adjusts the limit on the numbers of ministerial salaries which can be paid to reflect the appointment of an additional Secretary of State - the Secretary of State for Constitutional Affairs - in place of the Lord Chancellor.

     Part 2: Pension Arrangements of the Last Lord Chancellor: Special Provision

38.     Part 2 makes provision for the pension of the last Lord Chancellor. It sets out arrangements to provide for a pension for the last Lord Chancellor which is the equivalent to that to which he would be entitled as a Secretary of State in the House of Lords, having regard to his previous service as a Minister, as if he had not been appointed Lord Chancellor. It revives any previous pension entitlements earned by the last Lord Chancellor before he assumed that office and which were extinguished by current legislation in relation to the pension of the Lord Chancellor.

© Parliamentary copyright 2004
Prepared: 26 February 2004