Acting Judges
Section 38: Acting Judges
147.This section 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.
148.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 those who presently hold office as “senior territorial judges” (defined in subsection (8)), and those who are members of the supplementary panel (about which provision is made in section 39). As provided for in subsection (2) the Deputy President can make such a request if circumstances require.
149.Subsection (3) amends the Judicial Pensions and Retirement Act 1993 with the effect that acting judges cannot sit in the Supreme Court after the age of 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.
150.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 (6)), and may accordingly perform any of the functions of a permanent judge of the Court.
151.Subsection (7) provides for the remuneration and allowances for acting judges, which are to be determined by the Lord Chancellor with the agreement of the Treasury and paid from money provided by Parliament.
152.Subsection (8) defines “senior territorial judge”, as judges of the Court of Appeal in England and Wales and their counterparts at senior appellate level in Scotland and Northern Ireland.
Section 39: Supplementary panel
153.This section 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).
154.Subsection (1) provides that there is to be a supplementary panel, and subsections (2) and (3) make provision for its membership on commencement – in effect the same persons, with the exception of the Lord Chancellor and the Lords of Appeal in Ordinary (who will have become the judges of the Supreme Court), who are presently “Lords of Appeal” and able, by virtue of section 5(3) of the Appellate Jurisdiction Act 1876, to sit in proceedings in the Appellate Committee.
155.After commencement, by virtue of subsection (4), a person will become a member of the supplementary panel on ceasing to hold office as a judge of the Supreme Court or as a senior territorial judge, provided approval is given as laid out in sub-paragraphs (a) and (b). There is a special rule if the person in question is the President of the Court (subsection (5)). In this case, by virtue of subsection (6), 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 paragraphs (a)-(c). Subsection (7), for the avoidance of doubt, makes it clear that ceasing to hold office as a senior territorial judge in order to take up office as a judge of the Supreme Court (and vice versa) does not trigger membership of the supplementary panel.
156.Subsection (8) provides for resignation from the panel (by notice in writing to the President). Subsection (9) 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. Subsection (10) provides that “senior territorial judge” has the same meaning as in section 38(8), and defines the term “qualifying judicial office” as being the office held by a person prior to becoming a member of the supplementary panel and on account of the holding of which that person was entitled to become a member of the panel.