Constitutional Reform Act 2005 (c. 4)

Part 4 U.K. Judicial appointments and discipline

Chapter 2 U.K. Appointments

Lord Chief Justice and Heads of Division U.K.

67 Selection of Lord Chief Justice and Heads of Division U.K.

(1) Sections 68 to 75 apply to a recommendation for an appointment to one of the following offices—

(a) Lord Chief Justice;

(b) Master of the Rolls;

(c) President of the Queen's Bench Division;

(d) President of the Family Division;

(e) Chancellor of the High Court.

(2) Any such recommendation must be made in accordance with those sections and section 96.

68 Duty to fill vacancies U.K.

(1) The Lord Chancellor must make a recommendation to fill any vacancy in the office of Lord Chief Justice.

(2) The Lord Chancellor must make a recommendation to fill any vacancy in any other office listed in section 67(1).

(3) Subsection (2) does not apply to a vacancy while the Lord Chief Justice agrees that it may remain unfilled.

69 Request for selection U.K.

(1) The Lord Chancellor may make a request to the Commission for a person to be selected for a recommendation to which this section applies.

(2) Before making a request the Lord Chancellor must consult the Lord Chief Justice.

(3) Subsection (2) does not apply where the office of Lord Chief Justice is vacant or where the Lord Chief Justice is incapacitated for the purposes of section 16 (functions during vacancy or incapacity).

(4) Sections 70 to 75 apply where the Lord Chancellor makes a request under this section.

(5) Those sections are subject to section 95 (withdrawal and modification of requests).

70 Selection process U.K.

(1) On receiving a request the Commission must appoint a selection panel.

(2) The panel must—

(a) determine the selection process to be applied,

(b) apply the selection process, and

(c) make a selection accordingly.

[F1 (2A) In determining the selection process to be applied, the panel must ensure that the process—

(a) includes consultation of the Lord Chancellor, and

(b) if the request relates to a recommendation for an appointment to the office of Lord Chief Justice, also includes consultation of the First Minister for Wales.]

(3) One person only must be selected for each recommendation to which a request relates.

(4) Subsection (3) applies to selection under this section and to selection under section 75.

(5) If practicable the panel must consult, about the exercise of its functions under this section, the current holder of the office for which a selection is to be made.

(6) A selection panel is a committee of the Commission.

Textual Amendments

F1 S. 70(2A) inserted (25.4.2013) by Crime and Courts Act 2013 (c. 22), s. 61(11)(a), Sch. 13 para. 82(2) (with Sch. 13 para. 82(5))

[F2 71 Selection panel for appointment of Lord Chief Justice U.K.

(1) This section applies where the request relates to a recommendation for an appointment to the office of Lord Chief Justice.

(2) The selection panel must consist of five members.

(3) The first member is the chairman of the Commission, unless there is no chairman of the Commission or the chairman of the Commission is incapacitated.

(4) If there is no chairman of the Commission or the chairman of the Commission is incapacitated, the first member is a lay member of the Commission selected by the lay members of the Commission other than the chairman.

(5) The second member is the most senior England and Wales Supreme Court judge who is neither disqualified nor incapacitated, or that judge's nominee.

(6) The third member is a lay member of the Commission designated by the first member.

(7) The fourth member is a member of the Commission designated by the first member.

(8) The fifth member is a person designated by the Lord Chief Justice, unless subsection (10) applies.

(9) Subsection (10) applies if—

(a) there is no Lord Chief Justice, or

(b) the Lord Chief Justice is incapacitated.

(10) In those cases the most senior England and Wales Supreme Court judge who is neither disqualified nor incapacitated must, after consulting the first member, designate a person as the fifth member.

(11) Only the following may be a nominee under subsection (5) or designated under subsection (8) or (10)—

(a) an England and Wales Supreme Court judge,

(b) a Head of Division, or

(c) an ordinary judge of the Court of Appeal in England and Wales.

(12) A person may not be a nominee under subsection (5), or be designated under this section, if the person is disqualified.

(13) Before designating a person under subsection (7) as the fourth member, the first member must, if practicable, consult the Lord Chief Justice.

(14) The first member is the chairman of the panel.

(15) A person is disqualified for the purposes of this section if—

(a) the person is the Lord Chief Justice,

(b) the office of Lord Chief Justice is vacant and the person is the immediate previous holder of that office, or

(c) the person is willing to be considered for selection.]

Textual Amendments

F2 Ss. 71-71B substituted for s. 71 (25.4.2013) by Crime and Courts Act 2013 (c. 22), s. 61(11)(a), Sch. 13 para. 82(3) (with Sch. 13 para. 82(5))

[F2 71A Selection panel for appointment of Head of Division U.K.

(1) This section applies where the request relates to a recommendation for an appointment to one of the following offices—

(a) Master of the Rolls;

(b) President of the Queen's Bench Division;

(c) President of the Family Division;

(d) Chancellor of the High Court.

(2) The selection panel must consist of five members.

(3) The first member is the Lord Chief Justice or the Lord Chief Justice's nominee, unless subsection (9) applies.

(4) Unless subsection (9) 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.

(5) The third member is the chairman of the Commission or the chairman's nominee, unless subsection (11) applies.

(6) The fourth member is a lay member of the Commission designated by the third member.

(7) The fifth member is a person designated by the first member after consulting the third member.

(8) Subsection (9) applies if—

(a) there is no Lord Chief Justice,

(b) the Lord Chief Justice is disqualified, or

(c) the Lord Chief Justice is incapacitated.

(9) 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 a person designated by the first member.

(10) Subsection (11) applies if—

(a) there is no chairman of the Commission, or

(b) the chairman of the Commission is incapacitated.

(11) In those cases the third member of the Commission is a lay member of the Commission selected by the lay members of the Commission other than the chairman.

(12) Only the following may be a nominee under subsection (3), (4) or (9)(a) or designated under subsection (9)(b)—

(a) an England and Wales Supreme Court judge,

(b) a Head of Division, or

(c) an ordinary judge of the Court of Appeal in England and Wales.

(13) Only a lay member of the Commission may be a nominee under subsection (5).

(14) Only the following may be designated under subsection (7)—

(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.

(15) A person may not be a nominee under this section, or be designated under this section, if the person is disqualified.

(16) The first member is the chairman of the panel.

(17) A person is disqualified for the purposes of this section if—

(a) the person is the current holder of the office for which a selection is to be made, or

(b) the person is willing to be considered for selection.]

Textual Amendments

F2 Ss. 71-71B substituted for s. 71 (25.4.2013) by Crime and Courts Act 2013 (c. 22), s. 61(11)(a), Sch. 13 para. 82(3) (with Sch. 13 para. 82(5))

[F2 71B Sections 71 and 71A: diversity and interpretation U.K.

(1) Subsection (2) applies where a person chooses a person to be a member of a selection panel under section 71 or 71A (whether as a nominee, as a designated member or otherwise).

(2) 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 panel should include—

(a) both women and men, and

(b) members drawn from a range of different racial groups;

and in this subsection “racial group” has the same meaning as in section 9 of the Equality Act 2010.

(3) Section 16 does not apply to functions of the Lord Chief Justice under section 71 or 71A; and references in sections 71 and 71A to a person being incapacitated are to the person being incapacitated in the opinion of the Lord Chancellor.

(4) Seniority amongst the judges of the Supreme Court who are England and Wales Supreme Court judges is to be determined for the purposes of sections 71 and 71A as follows—

(a) the President of the Supreme Court, if an England and Wales Supreme Court judge, is senior to all other England and Wales Supreme Court judges;

(b) the Deputy President of the Supreme Court, if an England and Wales Supreme Court judge, is senior to all ordinary England and Wales Supreme Court judges;

(c) one ordinary England and Wales Supreme Court judge is senior to another if that first judge has served longer as a judge of the Supreme Court (whether over one or more periods and whether or not including one or more previous periods as President or Deputy President of the Court).

(5) In subsection (4) “ordinary England and Wales Supreme Court judge” means an England and Wales Supreme Court judge who is neither the President of the Court nor the Deputy President.

(6) Service as a Lord of Appeal in Ordinary counts as service as a judge of the Supreme Court for the purposes of subsection (4)(c).

(7) In sections 71 and 71A and this section “England and Wales Supreme Court judge” means a judge of the Supreme Court who has held high judicial office in England and Wales before appointment to the Court.]

Textual Amendments

F2 Ss. 71-71B substituted for s. 71 (25.4.2013) by Crime and Courts Act 2013 (c. 22), s. 61(11)(a), Sch. 13 para. 82(3) (with Sch. 13 para. 82(5))

72 Report U.K.

(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 panel must provide any further information the Lord Chancellor may require.

73 The Lord Chancellor's options U.K.

(1) This section refers to the following stages—

Stage 1:	where a person has been selected under section 70
Stage 2:	where a person has been selected following a rejection or reconsideration at stage 1
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;

(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;

(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 subsection (5) applies and he 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.

74 Exercise of powers to reject or require reconsideration U.K.

(1) The power of the Lord Chancellor under section 73 to reject a selection at stage 1 or 2 is exercisable only on the grounds 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 section 73 to require the selection panel to reconsider a selection at stage 1 or 2 is exercisable only on the grounds 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.

75 Selection following rejection or requirement to reconsider U.K.

(1) If under section 73 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 section.

(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 is following 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) Subsections (2) and (3) do not prevent a person being selected on a subsequent request under section 69.