Constitutional Reform Bill [HL] - continued | House of Lords |
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Supplementary Clause 14: Property, rights and liabilities 39. This clause provides for the transfer of the property, rights or liabilities of the Lord Chancellor to the Minister. Subsection (2) transfers the relevant property, rights or liabilities from the Lord Chancellor to the Minister, on commencement of any provision of this Bill ending the exercise of a function by the Lord Chancellor. Subsection (1) applies to such a transfer in relation to provisions in the Bill with the exception of clause 12 (the abolition of the office of Lord Chancellor). Subsection (3) gives effect to this in relation to clause 12 so that on the abolition of that office any remaining property, rights and liabilities are then transferred. Clause 15: Transfers: supplementary 40. Clause 15 provides for the continuing validity of actions taken by the Lord Chancellor, his Department or an officer of his Department in relation to any function which is transferred under the Bill, and of subsequent actions by the recipient of the function. References in Acts or other instruments are to be read as referring to the person who will undertake the function in the future. Legal proceedings involving the Lord Chancellor in relation to a function which is transferred can be continued by or against the person who assumes the function. Printed documents and forms in relation to a transferred function also continue to be valid despite references to the Lord Chancellor, his Department or his staff. Subsection (2) provides that where Her Majesty will in future perform a function of the Lord Chancellor, the Minister will take the Lord Chancellor's place in continuing action in relation to that function. PART 2 THE SUPREME COURT SUMMARY 41. Part 2 of the Bill creates a new Supreme Court for the United Kingdom and makes provision for the transfer of the appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. The new Supreme Court, will be separate from Parliament. BACKGROUND 42. At present the exercise of the highest level of jurisdiction in the United Kingdom is shared between the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. The Appellate Committee of the House of Lords receives appeals from the courts in England and Wales and Northern Ireland, and in civil cases from Scotland. The Judicial Committee of the Privy Council, in addition to its overseas and ecclesiastical jurisdiction, considers questions as to whether the devolved administrations, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly are acting within their legal powers. Support to the Appellate Committee is provided by the House of Lords administration under the Clerk of the Parliaments. Support for the Judicial Committee by staff supporting the Privy Council. 43. In addition to the Lords of Appeal in Ordinary certain other holders of high judicial office are also members of the House of Lords. A number of other members of the House of Lords hold other full-time or part-time judicial office and a number of members of the House of Commons hold part time judicial office. 44. The Bill seeks to make a distinct constitutional separation between the legislature and the judiciary. It creates a Supreme Court of the United Kingdom giving it the jurisdiction of the Appellate Committee and the devolution jurisdiction of the Judicial Committee of the Privy Council. It makes provision to allow for the appointment of members of the Court in a way that requires the participation of the judiciary and the devolved administrations throughout the United Kingdom. It makes provision to determine the practices and procedures of the court, to allow the Minister to provide staff, equipment, security arrangements and accommodation for the court. It also makes general provision for the proceedings of the court to be broadcast in certain circumstances. 45. As a counterpart to the creation of the Supreme Court the Bill restricts the right of members of the House of Lords to sit and vote for so long as they hold full time judicial office. Finally the Bill makes consequential and transitional provisions to allow the transfer of functions to the Court. COMMENTARY ON CLAUSES Clause 17: The Supreme Court 46. This clause establishes that there is a Supreme Court of the United Kingdom, and sets out the composition of the Supreme Court and the method of appointing judges, including the President and Deputy President (as distinct from the process for selection of candidates for appointment, the provision for which is to be found in clauses 20, 21 and 22). It also provides for the title of the judges of the Supreme Court. 47. Subsection (2) provides that the Court will comprise judges appointed by Her Majesty by letters patent. Her Majesty, under subsection (6) may appoint one of the judges to be President and one to be the Deputy President, also by letters patent. 48. Subsection (3) provides for the number of judges. There are to be a maximum of 12 Supreme Court judges, subject to a power by Her Majesty, in subsection (4), to change this maximum number of judges by Order in Council. This may only be done, however, if, as set out in subsection (5), a draft of the Order has been laid before and approved by each House of Parliament (that is, by affirmative resolution procedure). 49. Subsection (7) provides that the judges of the Supreme Court other than the President of the Supreme Court and Deputy President of the Supreme Court (who will have those titles) will be styled "Justices of the Supreme Court". 50. Subsection (8) provides that the Court will be presumed to be properly constituted even if there is a vacancy in the office of President or Deputy President. Clause 18: First members of the Court. 51. This clause provides for the first judges of the Supreme Court to be the Lords of Appeal in Ordinary holding office at the date of commencement. This is a one-off provision to provide for the transition of members of the Appellate Committee of the House of Lords from the Appellate Committee to the Supreme Court. 52. The effect of clause 18(a) is that on establishment of the Court (with the commencement of clause 17), Lords of Appeal in Ordinary immediately before commencement will become the first Supreme Court judges. 53. Clause 18(b) and (c) make provision for the first holders of the offices of President and Deputy President, providing that the senior Lord of Appeal in Ordinary prior to commencement will become the President and the second senior Lord of Appeal in Ordinary prior to commencement will become the Deputy President of the Court. Appointment of judges Clause 19: Qualification for Appointment 54. This clause defines eligibility for appointment as a judge of the Supreme Court, which will be the same as eligibility for appointment as a Lord of Appeal in Ordinary. 55. Subsection (1) sets out the qualifying requirements for appointment as a Supreme Court judge. There are two separate possible routes to qualification. First, a person is eligible if he has held high judicial office, as defined in subsections (1) and (2) of clause 48 for at least 2 years. 56. Alternatively, to qualify for appointment as a Supreme Court judge, a person would have to have been a qualifying practitioner (defined in subsection (2)) for at least 15 years. 57. Subsection (2) defines a qualifying practitioner, for the purposes of clarifying eligibility for appointment. Clause 20: Commission 58. This clause is the first of 3 clauses, the others being clauses 21 and 22 which together provide for the process by which candidates for appointment to the Supreme Court are to be selected and recommended to Her Majesty for appointment. This clause provides for the creation and membership of a body (an ad hoc commission, rather than a standing body) which will be responsible, as provided for in clause 21, to draw up a shortlist of candidates for the Supreme Court to be submitted to the Minister, if a vacancy arises in the Supreme Court (that is, if the office of President, or Deputy President, is vacant or is expected imminently to be vacated, or if the total number of judges of the Supreme Court is below 12 or is imminently expected to fall below 12). 59. Subsection (1) provides that the Secretary of State for Constitutional Affairs can convene the appointing commission if there is an actual or impending vacancy in the Supreme Court. 60. The Minister will have responsibility for appointing the commission. The commission as provided for in subsection (2) will consist of the President and Deputy President of the Supreme Court, the former as provided for in subsection (4) being Chair of the commission, and one member of each of the judicial appointing bodies of England and Wales (established by this Bill), Scotland and Northern Ireland. Only if all five members are appointed will the commission be properly constituted. 61. With regards to the appointment of the 3 members listed in subsection (2)(c) the Minister does not have a free choice of member. Each appointee may only, as set out in subsection (5), be appointed on the recommendation of the Commission or Board of which he is a member. 62. Subsection (6) provides that the Minister may pay to any person on the commission appointed under subsection (2), an allowance out of money provided by Parliament. Clause 21: Selection of Candidate 63. This clause provides for the process by which candidates for appointment to the Supreme Court are to be selected and recommended to Her Majesty for appointment. This clause provides for the commission constituted under clause 20 to draw up a shortlist of candidates if a vacancy arises in the Supreme Court; the process which must be followed by that appointments body in drawing up the shortlist; and subsequently the process which must be followed by the Minister in considering the shortlist, to arrive at a final recommendation for a single candidate to fill the vacancy. 64. The selection process goes through two distinct stages of narrowing the field of candidates. In the first stage the commission will, as set out in subsection (1), provide to the Minister a list which, as set out in subsection (3), comprises between 2 and 5 candidates, all of whom meet the eligibility criteria as laid out in clause 19. Subsection (3)(c) provides that the list must not include anyone who is actually on the commission and effectively serves to bar candidates for the Supreme Court vacancy sitting on the commission. 65. In preparing the list, subsection (2) provides that the commission must consider eligible candidates according to prescribed criteria (to be laid out in secondary legislation which is to be made by statutory instrument subject to affirmative resolution procedure: see subsection (7)) and must consult the "senior judges" which is to say (see subsection (7) (a-h)) the other judges of the Supreme Court and the senior judiciary in each jurisdiction within the United Kingdom. 66. In the second stage, on receipt of the appointments body's list, the Minister must carry out further consultation on the list, consulting the people designated in subsection (4). Subsection (5) provides that following this consultation, the Minister must make a decision on which of the candidates on the list is most suitable for appointment and then submit to the Prime Minister the name of that candidate. Subsection (6) provides that in making his decision, the Minister must take into account comments on the list submitted by the appointments body and the comments of those whom he has consulted under subsection (4). 67. On receipt of the name of a single candidate from the Minister, the Prime Minister must recommend to Her Majesty the appointment of this candidate (see clause 22). Clause 22: Recommendation to Her Majesty 68. This clause follows on from subsection (5) of clause 21 and deals with the last stage of the selection process; the recommendation to Her Majesty of a single candidate to be appointed. The recommendation comes from the Prime Minister who must recommend the name that has been passed to him by the Minister by virtue of subsection (5) of clause 21. Subsection (2) provides that no appointment of a judge of the Supreme Court can be made except through this process. Terms of Appointment Clause 23: Oath of allegiance and judicial oath 69. This clause provides for every judge of the Supreme Court (which includes the President and Deputy President) to be required to take the oath of allegiance to the Sovereign and the Judicial Oath, as soon as practical, after accepting that office. The oaths, which are those for these purposes set out in the Promissory Oaths Act 1868, are to be taken in the presence of the President of the Court. Clause 24: Tenure 70. This clause provides for the full time judges of the Supreme Court to hold office while they are of good behaviour, as is presently the case for Lords of Appeal in Ordinary. This is of course subject to the possibility of resignation, and the provision for retirement, set out in clauses 26 and 27. 71. This clause also provides, consistently with the position of all senior judicial office holders, that removal from office of any judge of the Supreme Court may only be effected following resolutions passed by both the House of Commons and the House of Lords. Clause 25: Salaries and allowances. 72. This clause provides, in terms which reproduce the effect of the provisions governing these matters for Lords of Appeal in Ordinary, for Justices of the Supreme Court to receive a salary and allowance, detailing how the salary and allowance is to be determined and from where the salary and allowance is paid. 73. Subsection (2) sets out that the amount of the salary is to be determined by the Minister with the agreement of the Treasury. Subsection (3) makes transitional provision to the effect that at the commencement of the provisions establishing the Supreme Court, the salaries of the first judges of the Supreme Court will remain the same as those received by them as Lords of Appeal in Ordinary immediately before commencement. Subsection (4) provides for these salaries, consistently with other judicial salaries, to be capable of being increased but not reduced. 74. Subsection (5) provides that the salary will be paid out of the Consolidated Fund of the United Kingdom. 75. Subsection (6) provides that the Minister may determine, in agreement with the Treasury an allowance to be paid to a judge of the Court, which will be paid out of money provided Parliament. This is in addition to the judicial salary, to provide flexibility. Clause 26: Resignation and retirement 76. This clause makes provision for the resignation or retirement of judges of the Supreme Court. 77. Under subsection (1) any judge of the Supreme Court (including the President and Deputy President) may at any time resign from that office. Resignation is effected by being given in writing to the Minister. 78. Subsection (2) makes separate provision for resignation from the office of President or Deputy President. The holder may so resign without resigning from the office of a judge of the Supreme Court. The resignation is again effected by being given in writing to the Minister. 79. Subsection (3) provides for a consequential amendment for section 26(4)(a) of and Schedule 5 to the Judicial Pensions and Retirement Act 1993 (retirement), so that references to "Judge of the Supreme Court" will be substituted for "Lord of Appeal in Ordinary". The effect of this amendment is that the retirement age and associated provisions as to retirement which apply to Lords of Appeal in Ordinary will apply in the same way to judges of the Supreme Court. Clause 27: Medical Retirement 80. This clause makes provision analogous to that for other senior judicial office holders for vacation of the office of a judge of the Supreme Court (including the President and Deputy President) on medical grounds. 81. Subsection (1) provides for the scope of the clause: it applies if the Minister is satisfied by means of a medical certificate that the person holding office as a judge of the Supreme Court is both disabled by permanent infirmity from performing his duties and for the time being is incapacitated from resigning from his office. 82. In such circumstances, subsection (2) enables the Minister to declare the office of the person in question to be vacated (subject to the conditions in subsection (4)). Subsection (3) provides for this declaration to have effect as though the person in question had himself or herself resigned on the date of the declaration. Subsection (4) requires the Minister, before making a declaration, to secure the agreement of the appropriate judge of the Supreme Court (depending on the office which would be vacated). Without that agreement, the declaration will have no effect. In the case of an ordinary judge (as defined in subsection (7)), the agreement required is that of the President and Deputy President of the Court; in the case of the President, the agreement required is that of the Deputy President and the senior ordinary judge (as defined in subsection (5)); and in the case of the Deputy President, the agreement required is that of the President and the senior ordinary judge. 83. Subsection (5) defines the "senior ordinary judge" as the ordinary judge (defined in subsection (7) as a judge of the Supreme Court other than the President or Deputy President) who has served longest as a judge of the court (whether over one or more periods and whether or nor always as an ordinary judge). Subsection (6) "carries over" seniority for this purpose, providing that service as a Lord of Appeal in Ordinary counts as service as judge of the court in defining the senior ordinary judge. Clause 28: Pensions 84. This clause makes amendments to the Judicial Pensions Act 1981 and Judicial Pensions and Retirements Act 1993 to substitute 'Judge of the Supreme Court' for 'Lord of Appeal in Ordinary'. These amendments are to ensure that the pension provision currently enjoyed by the Lords of Appeal in Ordinary will transfer over to the Justices of the Supreme Court, and that individual members of the Supreme Court who were previously Lords of Appeal in Ordinary will retain the pension benefits accrued in the former capacity and that those benefits will continue to accrue in the same way relative to their service as judges of the Supreme Court as they did relative to their service as Lords of Appeal in Ordinary. 85. Furthermore, subsection (3) provides that the amendments made to the 1981 and 1993 acts do not affect the operation of any provision or anything done under a provision in relation to the office of, or service of, Lord of Appeal in Ordinary. This ensures that any retired Lords of Appeal in Ordinary are not effected adversely by the changes to legislation. Acting Judges Clause 29: Acting Judges 86. This clause makes provision enabling the Supreme Court to have access to additional Judges beyond its permanent membership to supplement the permanent members of the Supreme Court where necessary; sets out the mechanism for determining the "pool" from which acting judges will be drawn; and sets out the terms and conditions of any service as an acting judge. 87. Subsection (1) sets out the basic proposition that certain persons may act as judges of the Court if the President so requests. The persons who may be so requested are the present holders of high judicial office (defined in clause 48(1)) who are also members of the Privy Council and in addition those who are members of the supplementary panel (about which provision is made in clause 30. As provided for in subsection (2) the Deputy President can make this request if circumstances require. 88. Subsection (3) amends the Judicial Pensions and Retirement Act 1993 with the effect that acting judges cannot sit in the Supreme Court once they are 75, bringing them into line with the provisions for continued sitting by retired Lords of Appeal in Ordinary and other "Lords of Appeal" (other than the Lord Chancellor) entitled to sit in the House of Lords at present. 89. Subsection (4) provides that any acting judge sitting in the Supreme Court should be treated for all purposes as a permanent judge of the Supreme Court (with the exception of the provisions as to appointment, tenure, remuneration, etc. listed in subsections (5) and subsection (6)), and may accordingly perform any of the functions of a permanent judge of the court. 90. Subsection (7) provides for the remuneration and allowances for acting judges, which is to be determined by the Minister with the agreement of the Treasury and paid from money provided by Parliament. Clause 30: Supplementary panel 91. This clause makes provision for the constitution of the Court's supplementary panel (from which judges can be drawn to supplement the permanent membership of the court). 92. Subsection (1) provides that a person will become a member of the Supplementary panel on ceasing to hold high judicial office as defined in subsection (1) of clause 48 provided approval is given as laid out in sub-paragraphs (a) and (b), unless the person ceasing to hold high judicial office is the President of the Court (subsection (2)), in which case, by virtue of subsection (3), that person automatically becomes a member of the supplementary panel, unless he or she notifies unwillingness to become a member of the panel, was removed from office for misbehaviour, or retired from office on grounds of incapacity, as set out in sub-paragraphs (a-c). 93. Subsection (4) provides for resignation from the panel (by notice in writing to the Minister). Subsection (5) provides for retirement from the panel, which is to be at the age of 75 or five years after joining the panel, whichever is earlier. Jurisdiction Clause 31: Jurisdiction 94. This clause makes provision for the jurisdiction of the Supreme Court, which is in essence that of the House of Lords in appellate matters together with the jurisdiction of the Judicial Committee of the Privy Council in relation to devolution issues under the Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland Act 1998. 95. Subsection (1) provides that the Supreme Court is to be, as is the House of Lords, a superior court of record. 96. Subsections (2) and (3) effectively reproduce the effect of section 3 of the Appellate Jurisdiction Act 1876, conferring on the Supreme Court the same appellate jurisdiction exercised by virtue of that section by the House of Lords. Other appellate jurisdiction of the House of Lords, and the devolution issues jurisdiction of the Judicial Committee of the Privy Council, is transferred by virtue of subsection (4) and Schedule 8 brought in by that subsection. 97. Since the provisions work by transferring the existing jurisdiction, the appeal process and the types of appeal from each jurisdiction, including leave requirements, and the routes of recourse otherwise, will remain the same as is currently the case for the House of Lords and Judicial Committee of the Privy Council. 98. Subsection (5) makes provision to put beyond doubt that the Supreme Court will have the power, as does the House of Lords, to determine any questions it deems necessary to determine, for the purposes of doing justice in an appeal to it, under this Act or any other Act. Composition for Proceedings Clause 32: Composition 99. The Supreme Court will, like the House of Lords, be able to sit in panels. Clause 32, together with clause 33, makes provision for the composition of panels. The basic rule, provided in subsection (1), is that the Court will be duly constituted if it comprises an uneven number of judges greater than three, at least one of whom is a permanent member of the Court (which is to say, not an acting judge: see subsection (5)). This is however subject to the possibility, set out in subsections (2) and (3), of directions by the President requiring a higher quorum, both for certain classes of proceedings, and for specific proceedings (for example, an individual appeal of particular significance where a seven-judge panel might be considered appropriate). It is also subject to the provision made in clause 33 for cases where the composition of the panel is affected during the course of proceedings. |
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© Parliamentary copyright 2004 | Prepared: 26 February 2004 |