Select Committee on Constitutional Reform Bill Written Evidence

Annex B—Appointments Model

Convening and Composition of Supreme Court Appointment Commission (SCAC)

THE SCAC WOULD BE:

—Convened on an ad hoc basis if there is an actual or impending vacancy.

—It will consist of the President and Deputy President as ex officio members—the former being chair of the commission—plus one member each of the national appointing commissions.

—It will be up to each national appointing commission to recommend a candidate for the Commission but no member of the Commission can be put forward for appointment to the court.

—The Secretary of State will be obliged to accept these recommendations but will have a long-stop power to ensure that at least one member of the panel is lay.

—The Secretary of State will not formally convene the SCAC until he is satisfied that there is at least one lay member on the panel.

GENERAL PRINCIPLES:

—Merit will be the only criterion laid out on the face of the Bill (although it will not be defined and it will be the responsibility of the SCAC to define what constitutes merit).

—There will be a power in the Minister to give initial guidance to the SCAC, but no provision for further criteria.

—The general guidance issued by the Secretary of State to the SCAC should always set out the starting position of the Court—that there should always be at least two Scottish Judges and this must be maintained as the bottom line.

—The SCAC will also be under a duty to ensure the court has amongst its permanent members adequate knowledge and expertise of each jurisdictions within the UK (in practice this will mean retaining the convention that there are at least two Scottish Judges and normally one Northern Ireland Judge).

—The Secretary of State will pass a recommendation to the Prime Minister.

—The Prime Minister will pass this recommendation to Her Majesty.

—Her Majesty will appoint the candidate by letters patent.

THE PROCESS

SCAC stage

1.  The Secretary of State would invite the SCAC to fill an actual or impending vacancy in the Court.

2.  The Secretary of State would issue guidance to the SCAC as to any special factors that should be taken into account (eg issues of jurisdictional balance).

3.  Once convened the SCAC would canvass eligible candidates from across the UK and draw up a shortlist from which they would ultimately select one name with reasons to forward to the SofS along with details of all other candidates they considered appointable (in issuing general guidance the Secretary of State would make it clear to the SCAC that this means only the leading contenders and not all who are technically qualified).

4.  In so doing the SCAC would consider eligible candidates foremost on merit (to be laid out on the face of the Bill) but would also consider the territorial requirements of the court (in conjunction with any guidance given to it by the SofS).

5.  The SCAC will be required to consult the senior judiciary in each of the jurisdictions (as long as they are not candidates for appointment) and the other Justices of the Supreme Court and the First Minister of Scotland, First Minister of Wales, the Deputy First Minister and Secretary of State for Northern Ireland and the Secretary of State for Constitutional Affairs (representing the England and Wales viewpoint.)

SECRETARY OF STATE STAGE

6.  The Secretary of State on receiving a name from the SCAC will himself consult the senior judiciary in each jurisdiction (as long as they are not candidates) and the heads of the Devolved administrations

7.  The Secretary of State then has three options:

(a) Accept the recommendation.

(b) Ask the SCAC to reconsider.

(c) Reject the recommendation.

The SofS can invoke either of these three options at this stage eg he could ask the SCAC to reconsider or he could reject outright—See below

—Under a) the SofS would pass the name forward to the PM who would recommend the Queen accordingly.

—If the SofS selects option b) first, he would ask the SCAC to reconsider if he considers that the evidence submitted does not demonstrate that the recommended candidate meets the criteria (merit or territorial balance) or if the evidence suggests that recommended candidate is not the strongest candidate. (He would not be able to suggest another candidate from the other names considered.) He must give his reasons in writing. After reconsideration the SCAC can still put forward the same name with further reasons or recommend an alternative. The SofS would not be able to ask the SCAC to reconsider a second time, but he could then put forward either of the recommended candidates (unless he chooses to reject the second candidate put forward by the SCAC—See below.)

—Under c) the SofS can reject the name provided by the SCAC if he considers that there is evidence that the candidate cannot be considered for appointment to the Supreme Court. He must give his reasons in writing for this rejection.

—If rejection follows reconsideration on the basis that the Secretary of State considers that the second candidate cannot be considered for appointment to the Supreme Court, the SCAC must submit an alternative candidate. At this point the SofS can either:

(i) Accept this candidate

(ii) Accept the candidate originally put forward before reconsideration

—If the SofS rejects the original name provided by the SCAC on the basis that that he considers that the candidate cannot be considered for appointment to the Supreme Court (ie rejection before reconsideration), the SCAC must submit an alternative candidate giving reasons for their choice. At this point the SofS can either:

(i) accept the second candidate.

(ii) ask the SCAC to reconsider—The SCAC can then either resubmit the second candidate with further evidence or an alternative candidate. If an alternative candidate is put forward the SofS can then choose between the first name following rejection or the new name following reconsideration.

SPECIAL SCENARIOS

Composition of the SCAC when appointing Ordinary Justices of the Court where there is no President and or Deputy President

The selection process for appointing Ordinary Justices of the Court if there is no President and or Deputy President to sit on the SCAC will remain the same but the composition of the SCAC will vary:

If there is no President but there is a Deputy President

—The Deputy President will chair the Commission and he will nominate the second most senior Permanent Justice of the court to sit on the Commission.

If there is a President but no Deputy President

—The President will chair the Commission and he will nominate the second most senior justice to sit on the Commission.

If there is no President and no Deputy President

—The most senior permanent Justice of the Court will chair the Commission and will nominate the second most senior Justice to sit on the Commission.

Composition of the SCAC when appointing President and Deputy President

—The Selection process for appointing a President and Deputy President will be the same as when appointing an ordinary Justice of the Supreme Court. However the composition of the SCAC may vary.

WHEN SELECTING A PRESIDENT

—The general principle is that if the office of President becomes vacant the Deputy President should not sit as a member of the SCAC, unless he explicitly expresses his wish not to be considered for the office of President.

If there is a President and Deputy President who does not want to be considered

—Nothing in the present arrangement need change ie the President will chair the SCAC and the Deputy President will sit as the second judicial representative.

If there is no president and a Deputy President who does not want to be considered

—The Deputy President will chair and nominate from amongst the Permanent members of the court the next most senior Justice (so long as he is not a candidate.)

If the Deputy President is a candidate and the President is available to chair the SCAC

—The President will nominate amongst the permanent Justices of the court the next most Senior Justice (so long as he is not a candidate)

If the President and Deputy President are both unable to sit on the commission

—The next most senior permanent Justice of the Court (if he is not a candidate) will chair the commission and nominate the second most senior judge (if he is not a candidate) to sit on the Commission. Should the most senior Justice be a candidate for the position he will nominate the two most senior ordinary Justices from amongst permanent members of the Supreme Court (provided these Judges are not candidates).

If there is no President and Deputy President and if all of the ordinary Justices are unable to sit because they are candidates

—The Secretary of State would convene a special commission comprising the Senior Judge in each of the UK Jurisdictions who is not himself a candidate for appointment. The most senior of these Judges based on tenure will chair the commission.

If the President is available to chair the commission but the Deputy and all Justices wish to be considered for selection OR:

if there is no President and the Deputy does not want to be considered for selection but all Justices wish to be considered for selection

—The Secretary of State would convene a special commission as above but would take into account the jurisdiction from which the President or Deputy President is from and then convene two further judges—one from each of the jurisdictions not represented by the President and Deputy President.

If there is not President and Deputy President and all bar one of the ordinary Justices are unable to sit because they are candidates

—The Secretary of State would convene a special commission as above but would take into account the jurisdiction from which the Ordinary Justice able to sit is from and then convene two further judges—one from each of the jurisdictions not represented by the President and Deputy President. The Ordinary Justice would chair.

WHEN SELECTING A NEW DEPUTY PRESIDENT:—

If there is a President but no Deputy President

—The President will nominate the most senior permanent Justice who is not a candidate for the position of Deputy President to the SCAC .

If there is no President but there is a Deputy President

—The Deputy President will chair the commission and nominate the most senior permanent Justice who is not a candidate for the position of the Deputy President to the SCAC.

If there is neither a President nor Deputy President

—The most senior permanent Justice of the Court (who is not candidate for the position of Deputy President) will chair the commission and nominate the next most senior member of the court (who is not a candidate for the position of Deputy President) to sit on the commission.

If there is neither a President nor Deputy President and if all of the ordinary Justices are unable to sit because they are candidates

—The Secretary of State would convene a special Commission comprising the Senior Judge in each of the UK Jurisdictions who is not himself a candidate for appointment. The most senior of these Judges based on tenure will chair the commission.

If one of the President or Deputy President is available but if all of the ordinary Justices are unable to sit because they are candidates

—The Secretary of State would convene a special commission as above but would take into account the jurisdiction from which the President or Deputy President is from and then convene two further judges—one from each of the jurisdictions not represented by the President and Deputy President. The President or Deputy President would chair.

If there is neither a President and Deputy President and all bar one of the ordinary Justices are unable to sit because they are candidates

—The Secretary of State would convene a special commission as above but would take into account the jurisdiction from which the Ordinary Justice able to sit is from and then convene two further judges—one from each of the jurisdictions not represented by the President and Deputy President. The Ordinary Justice would chair.

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