Office of Public Sector Information
PART 4 continued CHAPTER 2 continued
(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 Commission 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.
(6) Before exercising his powers under this section at any stage in relation to a selection for an appointment or recommendation, the Lord Chancellor must—
(a) consult any person whom he is required by any enactment to consult before making the appointment or recommendation, and
(b) consult the Scottish Ministers if it appears to him to be an appointment, or a recommendation for the appointment, of a person to exercise functions wholly or mainly in Scotland.
(1) The power of the Lord Chancellor under section 90 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 or particular functions of that office.
(2) The power of the Lord Chancellor under section 90 to require the Commission 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 particular functions of that office, or
(b) there is evidence that the person is not the best candidate on merit.
(3) The Lord Chancellor must give the Commission reasons in writing for rejecting or requiring reconsideration of a selection.
(1) If under section 90 the Lord Chancellor rejects or requires reconsideration of a selection at stage 1 or 2, the Commission must select a person in accordance with this section.
(2) If the Lord Chancellor rejects a selection, the Commission—
(a) may not select the person rejected, and
(b) where the rejection is following a requirement to reconsider, may not select the person (if different) whose selection it reconsidered.
(3) If the Lord Chancellor requires a selection to be reconsidered, the Commission—
(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) But if the Commission decides that the selection process has not identified a candidate of sufficient merit for it to make a selection under this section—
(a) section 93 applies;
(b) subsection (1) does not apply, but subsections (2) and (3) apply to any selection under section 93.
(5) The Commission must inform the Lord Chancellor of any person selected following a rejection or a requirement to reconsider.
(6) Subsections (2) and (3) do not prevent a person being selected on a subsequent request under section 87.
(1) The Lord Chancellor may require the Commission to reconsider a decision that the selection process has not identified candidates of sufficient merit for it to make a selection.
(2) The Commission must inform the Lord Chancellor of any person selected on reconsideration under this section.
(3) Sections 90 to 92 apply to such a person as if the Commission had selected him instead of making the decision reconsidered.
(1) If the Lord Chancellor gives the Commission notice of a request he expects to make under section 87 the Commission must—
(a) seek to identify persons it considers would be suitable for selection on the request, and
(b) submit a report to the Lord Chancellor containing any information it considers appropriate about—
(i) the extent to which it has identified suitable persons, and
(ii) other matters likely to assist the Lord Chancellor in exercising his functions relating to appointments and recommendations.
(2) For the purposes of subsection (1)(a) and (b)(ii), the Commission must in particular have regard to—
(a) the number of recommendations and appointments the Lord Chancellor expects to request selections for;
(b) the powers of the Lord Chancellor to reject or require reconsideration of a selection.
(3) As part of the process of identifying persons under subsection (1)(a), the Commission must consult—
(a) the Lord Chief Justice, and
(b) a person or persons, other than the Lord Chief Justice, with experience in the office or offices to which requests specified in the notice relate, or with other relevant experience.
(4) A report under subsection (1)(b) must—
(a) state any recommendation made in consultation under subsection (3) by a person consulted;
(b) give reasons in any case where the Commission has not followed such a recommendation.
(5) Where the Lord Chancellor makes a request for the purposes of which the Commission has identified persons under subsection (1)(a), the Commission must, in determining the selection process to be applied, consider whether selection should be from among those persons.
(1) This section applies to a request under section 69, 78 or 87.
(2) The Lord Chancellor may withdraw or modify a request only as follows—
(a) so far as a request relates to any recommendation or appointment to fill a vacancy, he may withdraw or modify it with the agreement of the Lord Chief Justice;
(b) so far as a request relates to any recommendation or appointment otherwise than to fill a vacancy, he may withdraw or modify it after consulting the Lord Chief Justice;
(c) he may withdraw a request as respects all recommendations or appointments to which it relates if, after consulting the Lord Chief Justice, he considers the selection process determined by the Commission or selection panel is not satisfactory, or has not been applied satisfactorily.
(3) If a request is withdrawn in part or modified, the Commission or selection panel may, if it thinks it appropriate because of the withdrawal or modification, change any selection already made pursuant to the request, except a selection already accepted.
(4) The Lord Chancellor may not withdraw a request under subsection (2)(c) if he has exercised any of his powers under section 73(2), 82(2) or 90(2) in relation to a selection made pursuant to the request.
(5) Any withdrawal or modification of a request must be by notice in writing to the Commission.
(6) The notice must state whether the withdrawal or modification is under subsection (2)(a), (b) or (c).
(7) In the case of a withdrawal under subsection (2)(c), the notice must state why the Lord Chancellor considers the selection process determined by the Commission or selection panel is not satisfactory, or has not been applied satisfactorily.
(8) If or to the extent that a request is withdrawn—
(a) the preceding provisions of this Part cease to apply in relation to it, and
(b) any selection made on it is to be disregarded.
(9) Withdrawal of a request to any extent does not affect the power of the Lord Chancellor to make another request in the same or different terms.
(1) This section applies where the Lord Chancellor accepts a selection under this Chapter.
(2) Subject to the following provisions of this section, the Lord Chancellor—
(a) must make the appointment, or recommendation, for which the selection has been made, and
(b) must appoint, or recommend, the person selected.
(3) Before making the appointment or recommendation the Lord Chancellor may direct the Commission to make arrangements in accordance with the direction—
(a) for any assessment of the health of the person selected that the Lord Chancellor considers appropriate, and
(b) for a report of the assessment to be made to the Lord Chancellor.
(4) Subsection (5) applies in any of the following circumstances—
(a) the Lord Chancellor notifies the Commission that he is not satisfied on the basis of a report under subsection (3)(b), having consulted the Lord Chief Justice, that the health of the person selected is satisfactory for the purposes of the appointment or recommendation;
(b) the person selected declines to be appointed or recommended, or does not agree within a time specified to him for that purpose;
(c) the person selected is otherwise not available within a reasonable time to be appointed or recommended.
(5) Where this subsection applies—
(a) the selection accepted and any previous selection for the same appointment or recommendation are to be disregarded;
(b) the request pursuant to which the selection was made continues to have effect;
(c) any subsequent selection pursuant to that request may be made in accordance with the same or a different selection process.
(1) This section applies to consultation that a person is required to undertake under any of these provisions—
(a) section 87(2);
(b) section 88(3);
(c) section 94(3);
(d) section 95(2)(a), (b) or (c),
(e) section 96(4)(a).
(2) If the consultation appears to that person to relate to the appointment (or a recommendation for the appointment) of a person to exercise functions wholly or mainly in Scotland, any reference in the provision to the Lord Chief Justice is to be read as a reference to the Lord President of the Court of Session.
(3) If the consultation appears to that person to relate to the appointment (or a recommendation for the appointment) of a person to exercise functions wholly or mainly in Northern Ireland, any reference in the provision to the Lord Chief Justice is to be read as a reference to the Lord Chief Justice of Northern Ireland.
(1) The Commission must provide any assistance requested by the Lord Chancellor under this section.
(2) The Lord Chancellor may request assistance for the making by him or by another Minister of the Crown of an appointment or recommendation for appointment, other than one to which section 26 or a provision of this Part applies.
(3) The Lord Chancellor may only request assistance under this section if it appears to him appropriate because of the Commission’s other functions under this Part and the nature of the appointment concerned.
(4) Without limiting the assistance that may be requested, it may include—
(a) determining a selection process;
(b) applying a selection process;
(c) selecting a person;
(d) selecting a short list;
(e) advice on any of those matters.
(5) Before making a request the Lord Chancellor must consult—
(a) the Lord Chief Justice, and
(b) the Commission.
(6) In this section “appointment” includes the conferring of any public function.
(7) In this Part references to selection under this Part include references to selection by the Commission pursuant to a request under this section (and references to a person selected under this Part are to be read accordingly).
(1) This section applies for the purposes of this Part.
(2) A Commission complaint is a complaint by a qualifying complainant of maladministration by the Commission or a committee of the Commission.
(3) A departmental complaint is a complaint by a qualifying complainant of maladministration by the Lord Chancellor or his department in connection with any of the following—
(a) selection under this Part;
(b) recommendation for or appointment to an office listed in Schedule 14.
(4) A qualifying complainant is a complainant who claims to have been adversely affected, as an applicant for selection or as a person selected under this Part, by the maladministration complained of.
(1) The Commission must make arrangements for investigating any Commission complaint made to it.
(2) The Lord Chancellor must make arrangements for investigating any departmental complaint made to him.
(3) Arrangements under this section need not apply to a complaint made more than 28 days after the matter complained of.
(1) Subsections (2) and (3) apply to a complaint which the complainant—
(a) has made to the Commission or the Lord Chancellor in accordance with arrangements under section 100, and
(b) makes to the Ombudsman not more than 28 days after being notified of the Commission’s or Lord Chancellor’s decision on the complaint.
(2) If the Ombudsman considers that investigation of the complaint is not necessary, he must inform the complainant.
(3) Otherwise he must investigate the complaint.
(4) The Ombudsman may investigate a complaint which the complainant—
(a) has made to the Commission or the Lord Chancellor in accordance with arrangements under section 100, and
(b) makes to the Ombudsman at any time.
(5) The Ombudsman may investigate a transferred complaint made to him, and no such complaint may be made under the Judicial Appointments Order after the commencement of this section.
(6) The Judicial Appointments Order is the Judicial Appointments Order in Council 2001, which sets out the functions of Her Majesty’s Commissioners for Judicial Appointments.
(7) A transferred complaint is a complaint that lay to those Commissioners (whether or not it was made to them) in respect of the application of appointment procedures before the commencement of this section, but not a complaint that those Commissioners had declined to investigate or on which they had concluded their investigation.
(8) Any complaint to the Ombudsman under this section must be in a form approved by him.
(1) The Ombudsman must prepare a report on any complaint he has investigated under section 101.
(2) The report must state—
(a) what findings the Ombudsman has made;
(b) whether he considers the complaint should be upheld in whole or part;
(c) if he does, what if any action he recommends should be taken by the Commission or the Lord Chancellor as a result of the complaint.
(3) The recommendations that may be made under subsection (2)(c) include recommendations for the payment of compensation.
(4) Such a recommendation must relate to loss which appears to the Ombudsman to have been suffered by the complainant as a result of maladministration and not as a result of any failure to be appointed to an office to which the complaint related.
(1) This section applies to a report under section 102.
(2) The Ombudsman must submit a draft of the report—
(a) to the Lord Chancellor, and
(b) if the complaint was a Commission complaint, to the Commission.
(3) In finalising the report the Ombudsman—
(a) must have regard to any proposal by the Lord Chancellor or the Commission for changes in the draft report;
(b) must include in the report a statement of any such proposal not given effect to.
(4) The report must be signed by the Ombudsman.
(5) If the complaint was a Commission complaint the Ombudsman must send the report in duplicate to the Lord Chancellor and the Commission.
(6) Otherwise the Ombudsman must send the report to the Lord Chancellor.
(7) The Ombudsman must send a copy of the report to the complainant, but that copy must not include information—
(a) which relates to an identified or identifiable individual other than the complainant, and
(b) whose disclosure by the Ombudsman to the complainant would (apart from this subsection) be contrary to section 139.
(1) If the Lord Chancellor refers to the Ombudsman any matter relating to the procedures of the Commission or a committee of the Commission, the Ombudsman must investigate it.
(2) The matter may relate to such procedures generally or in a particular case.
(3) The Ombudsman must report to the Lord Chancellor on any investigation under this section.
(4) The report must state—
(a) what findings the Ombudsman has made;
(b) what if any action he recommends should be taken by any person in relation to the matter.
(5) The report must be signed by the Ombudsman.
The Commission and the Lord Chancellor must provide the Ombudsman with such information as he may reasonably require relating to the subject matter of any investigation by him under section 101 or 104.
In section 10 of the Courts Act 2003 (c. 39) (appointment of lay justices etc.) after subsection (2) insert—
“(2A) The Lord Chancellor must ensure that arrangements for the exercise, so far as affecting any local justice area, of functions under subsections (1) and (2) include arrangements for consulting persons appearing to him to have special knowledge of matters relevant to the exercise of those functions in relation to that area.”
(1) Information which is held by or on behalf of a permitted person (whether obtained before or after this section comes into force) may be disclosed to the Commission or a committee of the Commission for the purposes of selection under this Part.
(2) A disclosure under this section is not to be taken to breach any restriction on the disclosure of information (however imposed).
(3) But nothing in this section authorises the making of a disclosure—
(a) which contravenes the Data Protection Act 1998 (c. 29), or
(b) which is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).
(4) This section does not affect a power to disclose which exists apart from this section.
(5) The following are permitted persons—
(a) a chief officer of police of a police force in England and Wales;
(b) a chief constable of a police force in Scotland;
(c) the Chief Constable of the Police Service of Northern Ireland;
(d) the Director General of the National Criminal Intelligence Service;
(e) the Director General of the National Crime Squad;
(f) the Commissioners of Inland Revenue;
(g) the Commissioners of Customs and Excise.
(6) The Lord Chancellor may by order designate as permitted persons other persons who exercise functions which he considers are of a public nature (including a body or person discharging regulatory functions in relation to any description of activities).
(7) Information must not be disclosed under this section on behalf of the Commissioners of Inland Revenue or on behalf of the Commissioners of Customs and Excise unless the Commissioners concerned authorise the disclosure.
(8) The power to authorise a disclosure under subsection (7) may be delegated (either generally or for a specific purpose)—
(a) in the case of the Commissioners of Inland Revenue, to an officer of the Board of Inland Revenue,
(b) in the case of the Commissioners of Customs and Excise, to a customs officer.
(9) For the purposes of this section a customs officer is a person commissioned by the Commissioners of Customs and Excise under section 6(3) of the Customs and Excise Management Act 1979 (c. 2).
(1) Any power of the Lord Chancellor to remove a person from an office listed in Schedule 14 is exercisable only after the Lord Chancellor has complied with prescribed procedures (as well as any other requirements to which the power is subject).
(2) The Lord Chief Justice may exercise any of the following powers but only with the agreement of the Lord Chancellor and only after complying with prescribed procedures.
(3) The Lord Chief Justice may give a judicial office holder formal advice, or a formal warning or reprimand, for disciplinary purposes (but this section does not restrict what he may do informally or for other purposes or where any advice or warning is not addressed to a particular office holder).
(4) He may suspend a person from a judicial office for any period during which any of the following applies—
(a) the person is subject to criminal proceedings;
(b) the person is serving a sentence imposed in criminal proceedings;
(c) the person has been convicted of an offence and is subject to prescribed procedures in relation to the conduct constituting the offence.
(5) He may suspend a person from a judicial office for any period if—
(a) the person has been convicted of a criminal offence,
(b) it has been determined under prescribed procedures that the person should not be removed from office, and
(c) it appears to the Lord Chief Justice with the agreement of the Lord Chancellor that the suspension is necessary for maintaining confidence in the judiciary.
(6) He may suspend a person from office as a senior judge for any period during which the person is subject to proceedings for an Address.
(7) He may suspend the holder of an office listed in Schedule 14 for any period during which the person—
(a) is under investigation for an offence, or
(b) is subject to prescribed procedures.
(8) While a person is suspended under this section from any office he may not perform any of the functions of the office (but his other rights as holder of the office are not affected).
(1) This section has effect for the purposes of section 108.
(2) A person is subject to criminal proceedings if in any part of the United Kingdom proceedings against him for an offence have been begun and have not come to an end, and the times when proceedings are begun and come to an end for the purposes of this subsection are such as may be prescribed.
(3) A person is subject to proceedings for an Address from the time when notice of a motion is given in each House of Parliament for an Address for the removal of the person from office, until the earliest of the following events—
(a) either notice is withdrawn;
(b) either motion is amended so that it is no longer a motion for an address for removal of the person from office;
(c) either motion is withdrawn, lapses or is disagreed to;
(d) where an Address is presented by each House, a message is brought to each House from Her Majesty in answer to the Address.
(4) “Judicial office” means—
(a) office as a senior judge, or
(b) an office listed in Schedule 14;
and “judicial office holder” means the holder of a judicial office.
(5) “Senior judge” means any of these—
(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;
(e) Lord Justice of Appeal;
(f) puisne judge of the High Court.
(6) “Sentence” includes any sentence other than a fine (and “serving” is to be read accordingly).
(7) The times when a person becomes and ceases to be subject to prescribed procedures for the purposes of section 108(4) or (7) are such as may be prescribed.
(8) “Under investigation for an offence” has such meaning as may be prescribed.
(1) This section applies if an interested party makes an application to the Ombudsman for the review of the exercise by any person of a regulated disciplinary function, on the grounds that there has been—
(a) a failure to comply with prescribed procedures, or
(b) some other maladministration.
(2) The Ombudsman must carry out a review if the following three conditions are met.
(3) The first condition is that the Ombudsman considers that a review is necessary.
(4) The second condition is that—
(a) the application is made within the permitted period,
(b) the application is made within such longer period as the Ombudsman considers appropriate in the circumstances, or
(c) the application is made on grounds alleging undue delay and the Ombudsman considers that the application has been made within a reasonable time.
(5) The third condition is that the application is made in a form approved by the Ombudsman.
(6) But the Ombudsman may not review the merits of a decision made by any person.
(7) If any of the conditions in subsections (3) to (5) is not met, or if the grounds of the application relate only to the merits of a decision, the Ombudsman—
(a) may not carry out a review, and
(b) must inform the applicant accordingly.
(8) In this section and sections 111 to 113, “regulated disciplinary function” means any of the following—
(a) any function of the Lord Chancellor that falls within section 108(1);
(b) any function conferred on the Lord Chief Justice by section 108(3) to (7);
(c) any function exercised under prescribed procedures in connection with a function falling within paragraph (a) or (b).
(9) In this section, in relation to an application under this section for a review of the exercise of a regulated disciplinary function—
“interested party” means—
the judicial office holder in relation to whose conduct the function is exercised, or
any person who has made a complaint about that conduct in accordance with prescribed procedures;
“permitted period” means the period of 28 days beginning with the latest of—
the failure or other maladministration alleged by the applicant;
where that failure or maladministration occurred in the course of an investigation, the applicant being notified of the conclusion or other termination of that investigation;
where that failure or maladministration occurred in the course of making a determination, the applicant being notified of that determination.
(10) References in this section and section 111 to the exercise of a function include references to a decision whether or not to exercise the function.
Constitutional Reform Act 2005