Commentary on Sections: Part 1
Schedule 3
68.Paragraph 1(2) provides that a person is eligible for appointment as a judge of the Upper Tribunal if he has 7 years of post-qualification experience (this is a standard qualification for judicial office). In addition, a person may be appointed to the Upper Tribunal if, in the Lord Chancellor’s opinion, he has gained experience in law which makes him as suitable for appointment as if he satisfied the 7-year qualification. Appointed judges of the Upper Tribunal are appointed by the Queen, on the recommendation of the Lord Chancellor. Appointment takes place after selection by the Judicial Appointments Commission.
69.Paragraph 3 ensures that appointed and transferred-in judges and other members of the Upper Tribunal are protected by a prohibition on removal unless there is first concurrence of the Lord Chief Justice of England and Wales, or if appropriate, the Lord President of the Court of Session or Lord Chief Justice of Northern Ireland.
70.Paragraph 4 provides that appointed and transferred-in judges and other members of the Upper Tribunal appointed on a salaried basis have the further protection that they may be removed only by the Lord Chancellor on the ground of inability or misbehaviour.
71.Both paragraphs 3 and 4 ensure that the independence of the tribunals is safeguarded.
72.Paragraph 6 allows for judges of the Upper Tribunal to be made up partly of judges by request of the Senior President of Tribunals. Their deployment is to be under the control of the Senior President of Tribunals in conjunction with the Lord Chief Justice of England and Wales, or if appropriate, the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland.
73.Paragraph 7 provides the Lord Chancellor with the power to appoint deputy judges of the Upper Tribunal. A person must have the same legal qualifications for appointment as a deputy judge as for appointment as a judge of the Upper Tribunal. The provision will enable the appointment to the Upper Tribunal of members with particular areas of expertise.
74.Paragraph 9 ensures that the Senior President of Tribunals has responsibility for maintaining arrangements for the training, welfare and guidance of judges and other members of the Upper Tribunal.
75.Paragraph 10 makes provision for judges and members of the Upper Tribunal to take the oath of allegiance and the judicial oath before the Senior President of Tribunals, or before an eligible person nominated by the Senior President. The requirement under paragraph 10 does not apply, however, in the case of transferred-in judges or transferred-in other members who have already taken the required oaths after accepting another office. Judges and members who carry out functions mainly or wholly in Northern Ireland may be required to take instead the oath, or the affirmation and declaration, set out in section 19 of the Justice (Northern Ireland) Act 2002.
