Clause 33: Changes in Composition

100.     This clause provides for the eventuality of the Court being reduced in number, for example due to death or illness, before the end of proceedings. The basic rule in subsection (2) is that, as long as the court is not thereby reduced to fewer than three judges, it will remain properly constituted, even through it may be taken below a number specified by the President as the minimum for proceedings of that class, or as the number for those specific proceedings; or if it thereby ceases to include a permanent judge. This is, however, subject to any directions which the President may make, under subsection (3), to address the particular circumstances (for example, to recommence proceedings with a full complement, if the reduction occurred very close to the start of proceedings). Subsection (4) makes provision for the possibility that the Court may be reduced to an even number of judges and proceed to its decision, and be evenly divided. In such a case, the matter will be reheard before a court properly formed in accordance with clause 32.

     Practice and Procedure

     Clause 34: Specially qualified advisers

101.     This clause makes provisions for the Supreme Court to have specially qualified advisers to assist it in its work for the purpose of hearings that may require specialist support. This derives from existing provision in the Supreme Court of Judicature Act 1891 (section 3) and Judicial Standing Orders of the House of Lords (Order XVI).

102.     Subsection (1) makes the basic provision empowering the Court, if it thinks it is necessary, to hear and dispose of proceedings, either wholly or in part, with the assistance of one or more specially qualified advisers.

103.     Subsection (2) provides that any remuneration payable to an expert adviser is to be determined by the Court unless otherwise agreed between the adviser and the parties to the proceedings. This remuneration as set out in subsection (3) will form part of the costs of the proceedings.

     Clause 35: Making of Rules

104.     This clause, together with clause 36, sets out how Rules of Court will be made for the Supreme Court.

105.     Subsection (1) provides for the President of the Supreme Court to make rules dealing with the Court's practice and procedure. This broad power is analogous to the way in which the House of Lords regulates its work through its Standing Orders and Practice Directions.

106.     Subsection (2) provides that the power to make rules includes the power to provide rules for different cases, including different proceedings such as civil and criminal proceedings and on devolution matters.

107.     Under Subsection (3) the President is obliged to exercise the rule-making power with a view to ensuring that the Court is accessible, fair and efficient and the rules are simple and simply expressed.

     Clause 36 Procedure after Rules made

109.     By virtue of clause 36, rules made by the President are to be submitted to the Minister, who may allow or disallow (but not amend) them. Rules so allowed are by virtue of subsection (3) to come into force on such day as the Minister directs, and be contained in a statutory instrument to which the Statutory Instruments Act 1946 will apply as if it contained rules made by a Minister of the Crown, which instrument is, by virtue of subsection (4), to be subject to negative resolution procedure.

     Clause 37: Photography etc

110.     This clause removes the prohibition on photography in Section 41 of the Criminal Justice Act 1925 and in Section 29 of the Criminal Justice Act (Northern Ireland) 1945 (both of which prohibit the taking of photographs in all courts) in relation to the Supreme Court, by changing the definition of 'court' in those provisions to include all courts of justice except the Supreme Court.

Resources

     Clause 38: Minister's duty

111.     Subsection (1) of this clause places a general statutory duty (referred to hereafter, by virtue of subsection (2), as the Minister's general duty in relation to the Supreme Court) upon the Minister to ensure both that there is an efficient and effective administrative system put in place so that the Supreme Court can carry on its business and that appropriate services are provided for the Supreme Court.

     Clause 39: Officers and staff: appointment by Minister

112.     This clause enables the Minister to ensure that the Supreme Court is provided with appropriate administrative support, by empowering him to appoint such officers and staff to the administration of the Supreme Court as he thinks fit in order to discharge his general duty under clause 38.

     Clause 40: Staff: provision by third parties

113.     This clause allows the Minister to make staffing arrangements as defined by subsection (2) for the Supreme Court by entering into contracts with other persons, including sub-contractors, in order to fulfil his obligations under the general duty.

114.     Subsection (3) places a limit on the powers of the Minister to enter into contracts, by ensuring that he cannot make contracts containing arrangements which have not been authorised by an order made under subsection (4).

115.     Subsection (4) provides the statutory authority for the Minister to make orders with regard to staffing arrangements. Orders made under this clause will be made by statutory instrument subject to negative resolution procedure, by virtue of clause 99, and no order may be made unless the Minister has first consulted the senior judges listed in subsection (5) about the effect that the order in question might have on the proper and efficient administration of justice.

          Clause 41: Services: provision by third parties

116.     Clause 41 allows the Minister to make service arrangements, as defined in subsection (2), including sub-contracting to third parties, for the provision of services to the Supreme Court, such as catering, cleaning and security, in order to fulfil his obligations under the general duty.

     Clause 42: Accommodation

117.     Subsection (1) of this clause enables the Minister to provide accommodation and facilities for the use of the Supreme Court in order to discharge his general duty under clause 38.

118.     Subsection (2) allows the Minister to enter into contracts with other persons to provide accommodation and facilities for the use of the Supreme Court.

119.     Subsection (3) defines 'accommodation arrangements' for the purposes of subsections (1)-(2).

120.     Subsection (4) makes provision extending certain powers to acquire land so that they are available to the Minister for the purpose of providing accommodation under this clause.

121.     Subsection (5) defines a "court-house" for these purposes to include the precincts of any building in which the Supreme Court sits.

     Clause 43: Annual Report

122.     This clause places a statutory duty on the Minister, by virtue of subsection (1) to prepare an annual report on the way in which he has discharged his general duty in relation to the Supreme Court, and by virtue of subsection (2), to lay that Report before both Houses of Parliament.

Fees

     Clause 44: Fees

123.     This clause should be read together with clause 45, which makes supplementary provision about fees. Subsection (1) of this clause provides for the Minister to have a power by order (which by virtue of clause 99 is to be by statutory instrument subject to negative resolution procedure) to prescribe the fees payable in respect of any matter dealt with by the Supreme Court. By virtue of subsection (2), the power encompasses a power to exempt, remit or reduce fees, and to specify the criteria by which exemptions, reductions and remissions are to operate. Its exercise is, by virtue of subsection (3), subject to a duty on the Minister to have regard to the principle that access to the courts should not be denied. By virtue of subsection (4), the exercise of the power is also subject to a requirement of prior consultation of the President and Deputy President of the new Supreme Court, and the senior judiciary in each of the three jurisdictions.

     Clause 45: Fees: Supplementary

124.     This clause supplements clause 44. Subsection (1) provides that Supreme Court fees are to be recoverable as a civil debt (mirroring the general position in relation to court fees).

125.     Subsection (2) places the Minister under a duty to take such steps as are reasonably practicable to bring information about fees to the attention of those who are likely to have to pay them.

126.     Subsection (3) defines "Supreme Court fees" (as fees prescribed in an order under the foregoing clause).

     Clause 46: Records of the Supreme Court

127.     This clause amends the Public Records Act 1958 to ensure that records of the Supreme Court are included among the "court records" under the general supervision of the Public Records Office. This is achieved by amending the list in paragraph 4(1) of Schedule 1 to the Public Records Act 1958 to add to the list of courts therein an entry for the Supreme Court.

     Clause 47: Proceedings under jurisdiction transferred to Supreme Court

128.     This clause introduces Schedule 9, which makes transitional provision relating to proceedings which are pending in the House of Lords or Judicial Committee of the Privy Council under jurisdiction which is transferred from the House of Lords or the Judicial Committee to the Supreme Court by the Constitutional Reform Act 2004. The essence of the approach is that proceedings under such a transferred jurisdiction, which were begun in the House of Lords or Judicial Committee before the date of transfer of that jurisdiction, may be continued thereafter in the Supreme Court as if they had commenced in the Supreme Court, and anything done in accordance with the rules applicable to proceedings in the House of Lords or Judicial Committee (as the case may be) is to be treated as having been done in accordance with the corresponding rules of the Supreme Court. In addition, there is a saving for any acts, decisions or orders of the House of Lords or Judicial Committee in proceedings under a transferred jurisdiction, which will have the same effect, with further proceedings pursuant to or in respect of them being possible, as if they were acts, decisions or orders of the Supreme Court.

     Supplementary

     Clause 48: Interpretation of Part 2

129.     Subsection (1) defines the term 'high judicial office' for the purpose of setting out the requirements of eligibility for qualification as a Supreme Court judge in Clause 19. This definition replaces that in section 25 of the Appellate Jurisdiction Act 1876.

130.     Subsection (2) makes transitional provision so that in relation to the period before commencement of the new Supreme Court, the holding of "high judicial office" will include the holding of office as a Lord of Appeal in Ordinary.

PART 3: JUDICIAL APPOINTMENTS AND DISCIPLINE

SUMMARY

131.     Chapter 1 of Part 3 creates a Judicial Appointments Commission (which is subject to more detailed provisions in Schedule 10), and a Judicial Appointments and Conduct Ombudsman (which is subject to more detailed provisions in Schedule 11). Chapter 2 sets out the process to be followed by the Commission and by the Minister in appointing the Lord Chief Justice and other Heads of Division, the Lords Justices of Appeal, and Puisne High Court Judges and other judicial office holders. Chapter 2 also provides for complaints about the appointments process to be made to the Judicial Appointments and Conduct Ombudsman. Chapter 3 makes provision for a disciplinary procedure in relation to the judiciary, applicable when the Minister is considering whether to exercise his statutory power to remove a judicial office-holder with the concurrence of the Lord Chief Justice, and when the Lord Chief Justice is considering whether to impose any lesser disciplinary sanction on such an office-holder. There are new powers enabling the Lord Chief Justice to advise, warn or formally reprimand judicial office holders, and to suspend them in certain circumstances, subject to the agreement of the Minister, and to make regulations and rules about the process, with the agreement of the Minister. Chapter 3 also allows complaints to be made to the Judicial Appointments and Conduct Ombudsman about judicial disciplinary cases. Chapter 4 makes provisions in relation to confidentiality in relation to the Judicial Appointments and Conduct Ombudsman and about interpretation.

BACKGROUND

132.     The selection for appointment of judges in England and Wales has been primarily the responsibility of the Lord Chancellor. In carrying out this function, he is supported by officials from the Department for Constitutional Affairs. The precise responsibility for the actual appointments themselves varies according the type of judicial appointment:

• Appointments to the offices of Lord of Appeal in Ordinary, the Heads of Division of the Supreme Court and Lord Justice of Appeal are made by The Queen on the recommendation of the Prime Minister as the Sovereign's principal adviser. It has been practice that the Prime Minister seeks advice from the Lord Chancellor in the first instance.

• Appointment to the offices of High Court Judge, Circuit Judge, Recorder, District Judge (Magistrates' Courts), Social Security Commissioners, the Judge Advocate General and the Judge Advocate of Her Majesty's Fleet are made by The Queen on the recommendation of the Lord Chancellor.

• The Lord Chancellor bears personal responsibility for making a wide range of full-time and part-time appointments to the judiciary, including to the offices of District Judge (Civil) and Deputy District Judge, and to a wide range of tribunals.

133.     The administration of the judicial appointments system is carried out on the Lord Chancellor's behalf by staff of the Legal and Judicial Services Group in the Department for Constitutional Affairs. A principal function of the Group is to supply all the information and advice which the Lord Chancellor requires to enable him to fulfil his responsibilities in this field, and to provide him with the material on which to make a fair and informed judgement about every appointment. This includes corresponding with, informing and interviewing those who are, or may become, candidates for appointment; consulting judges, members of the profession and others as required; administering the selection procedures; following and executing the Lord Chancellor's instructions and guidance, both on individual appointments and candidates; providing feedback as required on individual applications and on his general policy.

134.     The Bill creates a new independent Judicial Appointments Commission, which will assume responsibility for the process of selecting judges for appointment in England and Wales. The Judicial Appointments Commission will make recommendations to the Minister. No one may be appointed to the offices listed in Schedule 12 to the Bill who has not been selected by the Commission. The Commission will recommend one candidate for each vacancy. The Minister will either appoint or recommend for appointment the selected candidate, or will have the ability to reject a candidate, once, and to ask the Commission to reconsider, once. Having exhausted these options, the Minister must appoint or recommend for appointment whichever candidate is selected. The Bill makes special provision for the appointment of the Lord Chief Justice and Heads of Division and of Lords Justices of Appeal; in these cases the Commission will establish a selection panel of four members, consisting of two senior judges (normally including the Lord Chief Justice) and two lay members of the Commission. The appointments of Lords Justices and above will continue to be made by The Queen formally on the advice of the Prime Minister after the Commission has made a recommendation to the Minister.

135.     Schedule 10 sets out the membership of the Judicial Appointments Commission, and its powers and responsibilities, which will reflect its status as an Executive Non-Departmental Public Body. There will be 6 lay members including the chairman, five judicial members, two legal professionals, a tribunal member and a lay magistrate. They will be supported by a Chief Executive and staff. The Bill requires that selections shall be made on merit. The Minister will be able to issue guidance to the Commission, which they must have regard to, but the detailed appointments procedures they will follow are a matter for them, and not prescribed in the Bill.

136.     The Lord Chancellor has had statutory powers to remove judicial office holders below the High Court (including tribunal members and lay magistrates) from office for incapacity or misbehaviour. These powers will be transferred by Schedule 1 to the Minister, to be exercised only if the Lord Chief Justice agrees. The Lord Chancellor has also had a more general disciplinary power in relation to judicial office holders, and has considered complaints about judicial conduct, and where necessary has advised, warned or formally reprimanded office holders. Part 3 of the Bill makes statutory provision for a disciplinary system in relation to judicial office holders, in cases falling short of removal, in which the Lord Chief Justice will have the power to advise, warn or reprimand judicial office holders, with the agreement of the Minister. The Lord Chief Justice will be given a power to suspend judges from sitting in certain circumstances, with the agreement of the Minister. The Lord Chief Justice will also have the power to make regulations and rules governing disciplinary cases, with the agreement of the Minister, and subject to Parliamentary approval in the case of regulations. The Judicial Appointments and Conduct Ombudsman will be able to consider complaints about disciplinary cases.

137.     It will remain the case that judges of the High Court and above can be removed only by The Queen on an Address from both Houses of Parliament.

     COMMENTARY ON CLAUSES

Chapter 1: Commission and Ombudsman

     Clause 49: The Judicial Appointments Commission

138.     Clause 49 establishes a Judicial Appointments Commission (clauses 51 to 82 inclusive and in Schedule 10). The appointments below the Court of Appeal in which the Commission will be involved are listed in Schedule 12.

     Schedule 10: The Judicial Appointments Commission

     Part 1 The Commissioners

139.     This Schedule sets out the number and balance of membership of the Judicial Appointments Commission.

     Paragraphs 1-8 The Commissioners

140.     Paragraph 1 requires there to be 15 Commissioners, to be appointed by The Queen on the recommendation of the Minister (the Minister).

141.     Paragraph 2 provides that 5 Commissioners must be judicial members, 2 must be professional members, 6 must be lay members, 1 must be the holder of an office listed in Part 3 of Schedule 12 (which lists members of tribunals and other similar office holders who will be appointed by the Minister) and one a lay justice.

142.     Paragraph 3 defines what is meant by judicial, professional and lay members.

143.     Paragraph 4 makes provision for The Queen, following the recommendation of the Minister, to appoint one of the lay Commissioners as chairman.

144.     Paragraph 5 provides that in advising The Queen on whom to appoint, the Minister must consult an advisory panel consisting of a person who will effectively function as a independent chairman, the Lord Chief Justice or his nominee and an independent third member (who will be the Chairman of the Judicial Appointments Commission, unless that post is vacant or is the office to which an appointment is to be made); in relation to the appointments of judicial members he must also consult the Judges' Council; in relation to the appointment of a barrister member he must consult the Bar Council; and in relation to the appointment of a solicitor member, he must consult the Law Society.

145.     Paragraph 6 sets out further requirements as to the members of the Commission. The Minister must make recommendations with a view to securing that the judicial members comprise three judges of the Court of Appeal or High Court (including at least one Lord Justice of Appeal and at least one High Court Judge), one Circuit Judge and one District Judge or a person appointed to an office under section 89 of the Supreme Court 1981. His recommendations must also seek to ensure that one of the lay members will have special knowledge of Wales.

146.     Paragraph 7 provides that the Minister may by order change the number of members of the Commission, after consulting the Lord Chief Justice, subject to the affirmative resolution procedure in Parliament. But he may not decrease the total number of Commissioners below 15.

147.     Paragraph 8 provides definitions of terms used in the Schedule.

     Paragraphs 9-12 Term of office etc. of Commissioners

148.     Paragraphs 9 to 12 provide for the term of office of the Commissioners. The length of tenure will be for up to five years and they will be able to serve for a further term of up to five years making a total of ten years but no longer. A Commissioner will have to vacate the post if he no longer fulfils the requirements applicable to his category of membership or if he applies for a judicial office which comes under the remit of the Commission. The Minister will in certain instances allow a Commissioner to continue in office even if they do not fulfil the requirement of that office. For example, if a member had particular skills or background which were required for a particular competition that is being run by the Commission, then the Minister can allow him to continue in office. Commissioners are able to resign by writing to The Queen. Commissioners can be removed from office by The Queen on the recommendation of the Minister. Paragraph 12 (2) specifies that they can be removed if the Minister is satisfied they have ceased (in the case of a judicial member) to hold the judicial office which qualified them for appointment; or have failed to exercise their functions for a continuous period of six months; or they have been convicted of an offence; or have been made bankrupt; or are otherwise unfit to hold office or unable to exercise their functions.

Paragraph 13 Term of office etc. of chairman

149.     This paragraph sets out the terms of office for the chairman of the Commission. The chairman will have a specified length of tenure and will only be able to be appointed as chairman to serve for up to two terms. The chairman may resign by giving notice in writing to The Queen.

     Paragraph 14 Salary, allowances and expenses

150.     This paragraph makes provision for the Commission to pay fees, expenses, pensions and any other allowances in respect of Commissioners. These payments will be determined by the Minister.

Paragraph 15 Code of conduct

151.     This paragraph specifies that there will be a code of conduct, which the Commissioners will be required to observe, which will be issued and revised as appropriate by the Minister.

Part 2

The Commission

152.     Part 2 sets out the status and functions of the Commission.

Paragraph 16 Status of the Commission and its property

153.     This paragraph specifies that the Commission is not to be regarded as part of the Government; it will be a non-departmental public body.

Paragraph 17 Powers

154.     This paragraph allows the Commission to do anything to enable it to perform its activities but does not allow the Commission to borrow money unless the Minister has given permission.

Paragraph 18 Committees

155.     This paragraph allows the Commission to establish committees and sub-committees of these committees in order for it to undertake its business and the Commission can delegate activities to these committees and subcommittees.

Paragraph 19 Procedure and proceedings

156.     This paragraph specifies that the Commission may control how it conducts its business and those of its committees and sub committees including the numbers of members that must be present to make the proceedings valid, which in the case of a committee or sub-committee exercising certain functions must be 3. The proceedings of the Commission or a committee or a sub-committee are still valid even if one of the posts on the Commission is unoccupied or if a member has been appointed in a defective way.