Constitutional Reform Act 2005

Puisne judges and other office holdersU.K.

85Selection of puisne judges and other office holdersU.K.

(1)Sections 86 to [F188] apply to—

(a)a recommendation for an appointment to the office of puisne judge of the High Court;

(b)a recommendation for an appointment to an office listed in Part 1 of Schedule 14 in exercise of Her Majesty's function under the enactment listed opposite that office;

(c)an appointment to an office listed in [F2Table 1 of] Part 2 or 3 of that Schedule in exercise of the Lord Chancellor's function under the enactment listed opposite that office.

[F3(d)an appointment to an office listed in Table 2 of Part 2 of that Schedule in exercise of the Lord Chief Justice's function under the enactment listed opposite that office;

(e)an appointment to an office listed in Table 2 of Part 3 of that Schedule in exercise of the function of the Senior President of Tribunals under the enactment listed opposite that office.]

(2)Any such recommendation or appointment must be made in accordance with those sections and section [F494C and regulations made under it].

[F5(2A)This section is subject to—

(a)section 30(4) of the Courts-Martial (Appeals) Act 1951,

(b)sections 91(1ZB) and 102(1C) of the Supreme Court Act 1981,

(c)section 8(1ZC) of the County Courts Act 1984, and

(d)sections 94A [F6, 94AA] and 94B below.]

(3)The Lord Chancellor may by order make any of the following amendments to Schedule 14—

(a)an amendment which adds a reference to an enactment under which appointments are made to an office;

(b)an amendment which adds a reference to an office to which appointments are made under an enactment;

(c)an amendment consequential on the abolition or change of name of an office;

(d)an amendment consequential on the substitution of one or more enactments for an enactment under which appointments are made to an office.

[F7(4)The Lord Chancellor may by order amend section 94A [F8, 94AA] or 94B if he thinks that the amendment is consequential on an amendment made to Schedule 14 by an order under subsection (3).]

[F9(5)The Lord Chancellor may by order provide that this section does not apply to appointments to an office listed in Schedule 14 that is specified in the order.

(6)An office may not be specified in an order under subsection (5) if—

(a)the provisions governing appointment to the office provide that a person is eligible for appointment only where the person satisfies the single condition specified in the provisions, and

(b)that condition is one of the conditions listed in subsection (8).

(7)An office may not be specified in an order under subsection (5) if—

(a)the provisions governing appointment to the office provide that a person is eligible for appointment only where the person satisfies one or some other particular number or all, or at least one or at least some other particular number, of several conditions specified in the provisions, and

(b)at least one of the conditions specified in the provisions is listed in subsection (8).

(8)The conditions are—

(a)that the person satisfies the judicial-appointment eligibility condition on an N-year basis (where N is a particular number);

(b)that the person is a solicitor in Scotland of at least a particular number of years' standing;

(c)that the person is an advocate in Scotland of at least a particular number of years' standing;

(d)that the person is a solicitor in Northern Ireland of at least a particular number of years' standing;

(e)that the person is a barrister in Northern Ireland of at least a particular number of years' standing.

(9)Before making an order under subsection (5) the Lord Chancellor must consult the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland.

(10)An order under subsection (5)—

(a)may make different provision for different purposes;

(b)may make consequential, transitory, transitional or saving provision.]

86Duty to fill vacanciesU.K.

(1)The Lord Chancellor must make a recommendation to fill any vacancy in the office of puisne judge of the High Court or in an office listed in Part 1 of Schedule 14.

[F10(1A)The Lord Chancellor must, as soon as is reasonably practicable after being informed by the Lord Chief Justice that a selection under this Chapter for a recommendation for an appointment to an office listed in Table 2 of Part 1 of that Schedule has been accepted unconditionally or subject to conditions that have since been met, make a recommendation of the selected person for an appointment to that office.

(1B)The Lord Chancellor must, as soon as is reasonably practicable after being informed by the Senior President of Tribunals that a selection under this Chapter for a recommendation for an appointment to an office listed in Table 3 of Part 1 of that Schedule has been accepted unconditionally or subject to conditions that have since been met, make a recommendation of the selected person for an appointment to that office.]

(2)The Lord Chancellor must make an appointment to fill any vacancy in an office listed in [F11Table 1 of] Part 2 or 3 of that Schedule.

[F12(2A)The Lord Chief Justice must make an appointment to fill any vacancy in an office listed in Table 2 of Part 2 of that Schedule.

(2B)The Senior President of Tribunals must make an appointment to fill any vacancy in an office listed in Table 2 of Part 3 of that Schedule.]

(3)Subsections (1) and (2) do not apply to a vacancy while the Lord Chief Justice agrees that it may remain unfilled.

[F13(4)Subsections (2A) and (2B) do not apply to a vacancy while the Lord Chancellor agrees that it may remain unfilled.]

87Request for selectionU.K.

(1)The Lord Chancellor may request the Commission to select a person for a recommendation or appointment to which this section applies.

[F14(1A)The Lord Chancellor may request the Commission to select a person for membership of a pool for requests under section 9(1) of the Senior Courts Act 1981, and a person may become a member of such a pool only by selection on a request under this subsection.]

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

(3)A request may relate to more than one recommendation or appointment.

(4)[F15Section 88 applies] where the Lord Chancellor makes a request under this section.

(5)[F16That section is] subject to section 95 (withdrawal and modification of requests).

88Selection processU.K.

(1)On receiving a request the Commission must—

(a)determine the selection process to be applied,

(b)apply the selection process, and

(c)make a selection accordingly.

F17(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F18(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)One person only may be selected for each recommendation [F19, appointment or pool membership] to which a request relates.

(5)Subsection (4) applies to selection under this section and to selection under [F20regulations under section 94C].

F2189ReportU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2190The Lord Chancellor's optionsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2191Exercise of powers to reject or require reconsiderationU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2192Selection following rejection or requirement to reconsiderU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2193Reconsideration of decision not to selectU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F2294Power to require persons to be identified for future requestsU.K.

(1)If the Lord Chancellor gives the Commission notice of a request which the Lord Chancellor expects to make under section 87, the Commission must seek to identify persons it considers would be suitable for selection on the request.

(2)The Lord Chancellor may, by regulations made with the agreement of the Lord Chief Justice, make provision about how the Commission is to comply with a duty imposed on it by subsection (1).

(3)The regulations may in particular—

(a)make provision as to things that are, or as to things that are not, to be done—

(i)in complying with such a duty, or

(ii)in determining how to comply with such a duty;

(b)provide for the making of reports.

(4)Regulations under this section—

(a)may make different provision for different purposes;

(b)may make consequential, supplementary, transitory, transitional or saving provision.]

[F2394AAppointments not subject to section 85: courtsU.K.

(1)Where this section applies to an appointment—

(a)section 85 does not apply, but

[F24(b)the person who has the power to make the appointment, whether the Lord Chancellor or the Lord Chief Justice, may not make the appointment without the concurrence of the other of them.]

(2)This section applies to the appointment of a person, on a fee-paid basis, to an office in the table below (the “proposed appointment”) if the person—

(a)holds the corresponding qualifying office (or one of them) on a salaried basis, or

(b)ceased to hold the corresponding qualifying office (or one of them) within two years ending with the date when the proposed appointment takes effect and, immediately before ceasing to hold that office, held it on a salaried basis.

(3)The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4)) to exercise his function [F25of concurring] under subsection (1)(b).

(4)In this section “salaried” and “fee-paid” have the meaning given by paragraph 1(2) of Schedule 7 to the Judicial Pensions and Retirement Act 1993 (c. 8).

[F2694AAAppointments not subject to section 85: High Court deputy judgeU.K.

(1)Where this section applies to an appointment, section 85 does not apply.

(2)This section applies to the appointment of a person as a deputy judge of the High Court if it appears to the Lord Chief Justice, after consulting the Lord Chancellor, that—

(a)there is an urgent need to take steps in order to facilitate the disposal of particular business in the High Court or Crown Court [F27or any other court or tribunal to which a deputy judge of the High Court may be deployed],

(b)it is expedient as a temporary measure to make the appointment in order to facilitate the disposal of the business, and

(c)there are no other reasonable steps that it is practicable to take within the time available in order to facilitate the disposal of the business.

(3)An appointment to which this section applies is to be made—

(a)so as not to extend beyond the day on which the particular business concerned is concluded, or

(b)so as not to extend beyond the later of—

(i)the day on which the business is concluded, or

(ii)the day expected when the appointment is made to be the day on which the business is concluded.]

94BAppointments not subject to section 85: tribunalsU.K.

(1)Where this section applies to a recommendation or appointment—

(a)section 85 does not apply, but

[F28(b)the person who has the power to make the appointment, whether the Lord Chancellor or the Senior President of Tribunals, may not make the appointment without the concurrence of the other of them.]

(2)In the case of the appointment of a person as a deputy judge of the Upper Tribunal, if the person holds or has held an office listed in section 6(1) of the Tribunals, Courts and Enforcement Act 2007, the [F29Senior President of Tribunals] must also consult the Lord Chief Justice before making the appointment.

(3)This section applies to, or to a recommendation to Her Majesty for, the appointment of a person, on a fee-paid basis, to an office in the table below (the “proposed appointment”) if the person—

(a)holds the corresponding qualifying office (or one of them) on a salaried basis, or

(b)subject to subsection (4), ceased to hold the corresponding qualifying office (or one of them) within two years ending with the date when the proposed appointment takes effect and, immediately before ceasing to hold that office, held it on a salaried basis.

(4)In subsection (3)(b) the words “within two years ending with the date when the proposed appointment takes effect” do not apply if—

(a)the proposed appointment is to the office of deputy judge of the Upper Tribunal, and

(b)the corresponding qualifying office is—

(i)ordinary judge of the Court of Appeal in England and Wales,

(ii)Lord Justice of Appeal in Northern Ireland,

(iii)judge of the Court of Session, or

(iv)puisne judge of the High Court in England and Wales or Northern Ireland.

(5)In this section “salaried” and “fee-paid” have the meaning given by paragraph 1(2) of Schedule 7 to the Judicial Pensions and Retirement Act 1993.

[F31(6)Section 8(1) of the Tribunals, Courts and Enforcement Act 2007 (power of Senior President of Tribunals to delegate functions) does not apply to—

(a)the Senior President of Tribunals' function of concurring under subsection (1)(b), or

(b)the Senior President of Tribunals' function under subsection (2).]]