PART 3Selection of Heads of Division
Membership of selection panel11
1
A selection panel appointed under section 70(1) to select a person for appointment as a Head of Division must consist of five members.
2
The first member is the Lord Chief Justice or the Lord Chief Justice’s nominee, unless paragraph (8) applies.
3
Unless paragraph (8) applies, the second member is the most senior England and Wales Supreme Court judge who is neither disqualified nor incapacitated, or that judge’s nominee.
4
The third member is the chairman of the Commission or the chairman of the Commission’s nominee, unless paragraph (9) applies.
5
The fourth member is a lay member of the Commission designated by the third member.
6
The fifth member is a person designated by the first member after consulting the third member.
7
Paragraph (8) applies if—
a
there is no Lord Chief Justice;
b
the Lord Chief Justice is disqualified; or
c
the Lord Chief Justice is incapacitated.
8
In those cases—
a
the most senior England and Wales Supreme Court judge who is neither disqualified nor incapacitated, or that judge’s nominee, is the first member; and
b
the second member is the nominee of the first member.
9
If—
a
there is no chairman of the Commission;
b
the chairman of the Commission is incapacitated; or
c
the chairman of the Commission is unavailable and has not nominated a person under paragraph (4),
the third member is a lay member of the Commission selected by the lay members of the Commission other than the chairman of the Commission.
10
Only the following may be a nominee under paragraph (2) , (3) or (8)—
a
an England and Wales Supreme Court judge;
b
a Head of Division; or
c
a Lord Justice of Appeal.
11
Only a lay member of the Commission may be a nominee under paragraph (4).
12
Only the following may be designated under paragraph (6)—
a
an England and Wales Supreme Court judge;
b
a senior judge (as defined by section 109(5));
c
the holder of an office listed in Schedule 14; or
d
a member of the Commission.
13
The following also apply to nominees, or those designated, under this regulation—
a
a person may not be a nominee, or a designated member, if that person is disqualified;
b
a person may not be appointed to the selection panel as the nominee of, or designated by, more than one person;
c
a person appointed to the selection panel otherwise than as a nominee or as a designated member may not be a nominee or designated member.
14
The first member is the chairman of the selection panel.
15
A person is disqualified for the purposes of this regulation if—
a
the person is the holder of the office for which a selection is to be made;
b
the person is willing to be considered for selection.
16
Paragraph (17) applies where a person chooses a person to be a member of a selection panel (whether as a nominee, as a designated member or otherwise).
17
The person making the choice must, in doing so, have regard (alongside all other relevant considerations) to the fact that it is desirable that the members of the selection panel should include—
a
both women and men; and
b
members drawn from a range of different racial groups (within the meaning of section 9(3) of the Equality Act 2010).
Consultation12
1
If practicable the panel must consult, about the exercise of its functions under section 70, the current holder of the office for which a selection is to be made.
2
As part of the selection process under section 70(2), the selection panel must consult the Lord Chancellor.
Report13
1
After complying with section 70(2) the selection panel must submit a report to the Lord Chancellor.
2
The report must—
a
state who has been selected;
b
contain any other information required by the Lord Chancellor.
3
The report must be in a form approved by the Lord Chancellor.
4
After submitting the report the selection panel must provide any further information which the Lord Chancellor may require.
The Lord Chancellor’s options14
1
This regulation refers to the following stages—
a
Stage 1 – where a person has been selected under section 70(2) for appointment as a Head of Division.
b
Stage 2 – where a person has been selected following a rejection or reconsideration at stage 1.
c
Stage 3 – where a person has been selected following a rejection or reconsideration at stage 2.
2
At stage 1 the Lord Chancellor must do one of the following—
a
accept the selection;
b
reject the selection; or
c
require the selection panel to reconsider the selection.
3
At stage 2 the Lord Chancellor must do one of the following—
a
accept the selection;
b
reject the selection, but only if it was made following a reconsideration at stage 1; or
c
require the selection panel to reconsider the selection, but only if it was made following a rejection at stage 1.
4
At stage 3 the Lord Chancellor must accept the selection, unless paragraph (5) applies and the Lord Chancellor accepts a selection under it.
5
If a person whose selection the Lord Chancellor required to be reconsidered at stage 1 or 2 was not selected again at the next stage, the Lord Chancellor may, at stage 3, accept the selection made at that earlier stage.
Exercise of powers to reject or require reconsideration15
1
The power of the Lord Chancellor under regulation 14 to reject a selection at stage 1 or 2 is exercisable only on the ground that, in the Lord Chancellor’s opinion, the person selected is not suitable for the office concerned.
2
The power of the Lord Chancellor under regulation 14 to require the selection panel to reconsider a selection at stage 1 or 2 is exercisable only on the ground that, in the Lord Chancellor’s opinion—
a
there is not enough evidence that the person is suitable for the office concerned; or
b
there is evidence that the person is not the best candidate on merit.
3
The Lord Chancellor must give the selection panel reasons in writing for rejecting or requiring reconsideration of a selection.
Selection following rejection or requirement to reconsider16
1
If under regulation 14 the Lord Chancellor rejects or requires reconsideration of a selection at stage 1 or 2, the selection panel must select a person in accordance with this regulation.
2
If the Lord Chancellor rejects a selection, the selection panel—
a
may not select the person rejected; and
b
where the rejection is following reconsideration of a selection, may not select the person (if different) whose selection it reconsidered.
3
If the Lord Chancellor requires a selection to be reconsidered, the selection panel—
a
may select the same person or a different person; but
b
where the requirement to reconsider follows a rejection, may not select the person rejected.
4
The selection panel must inform the Lord Chancellor of the person selected following a rejection or a requirement to reconsider.
5
Paragraphs (2) and (3) do not prevent a person being selected on a subsequent request under section 69.