Section 26: Selection of members of the Court

75.     This section, together with sections 27, 28, 29, 30, and 31 and Schedule 8, provides for the process by which candidates for appointment to the Supreme Court are to be selected and recommended to Her Majesty for appointment.

76.     Subsection (1) sets out the offices to which appointments are to be made by this process. Subsection (5) provides that the Lord Chancellor must convene a selection commission if there is a vacancy in one of those offices, or if it appears to the Lord Chancellor that there will soon be such a vacancy. Schedule 8, which is introduced by subsection (6), makes provision about the composition of selection commissions. Sections 27 to 29 set out the details of the process to be followed by a selection commission.

77.     At the final stage of that selection process, once sections 27, 28 and 29 (and, if necessary, sections 30 and 31) have been followed, the Lord Chancellor notifies the Prime Minister of the identity of the person selected by the commission. Then, under subsections (2), (3) and (4) of section 26, the Prime Minister must recommend the Queen to appoint the person notified to him by the Lord Chancellor.

Schedule 8: Supreme Court selection commissions

78.     This Schedule contains the rules governing the composition of the selection commission for the appointment of judges to the Supreme Court. It sets out who is eligible to sit on the commission, how it is to be convened, and the rules for its operation. This selection commission will put forward candidates for appointment to the Lord Chancellor, for notification to the Prime Minister and eventual recommendation by the Prime Minister to Her Majesty for appointment, according to the procedure set out in sections 26-31.

Part 1 Selection Commissions

Selection Commission

79.     Paragraph 1 makes provision for the membership of the Supreme Court selection commission which, under section 27, will select one candidate and put forward that candidate to the Lord Chancellor accordingly. The selection commission will consist of the President of the Supreme Court (who, by virtue of Paragraph 7, will chair the commission), the Deputy President of the Supreme Court and one member from each of the territorial appointing commissions (nominated under paragraph 6), one of whom must (by virtue of paragraph 6(3)) be a person who is not legally qualified.

Special rules where President or Deputy President's place unfilled

80.     Paragraphs 2- 4 make provision for the composition of the Selection Commission if the place of the President and / or the Deputy President on the commission is unfilled by reason of one of the situations set out in paragraph 5.

81.     Paragraph 2(2) provides for the next most senior ordinary judge in the Supreme Court to take the unfilled position on the selection commission if either the President or Deputy President is unable to sit. Paragraph 3(2) provides for the most senior ordinary judge and the second most senior ordinary judge to take the unfilled position if both the President and Deputy President are unable to sit.

82.     If the unfilled place or places are not taken in accordance with paragraph 2(2) or paragraph 3(2) (for example because all of the Supreme Court judges wish to be considered for a vacancy that has arisen) then paragraph 2(3) & (4) and paragraph 3(3), (4) & (5) provide for the most senior judiciary from the three jurisdictions of the UK to be members of the commission, unless one of the jurisdictions is already represented through the presence of the President, Deputy President or one of the ordinary judges (for example, if his "home jurisdiction", as defined in paragraph 4, is Scotland, Scotland is represented). In this event only two of the senior judiciary would be required - those from the jurisdictions not already represented (in the example above, from England and Wales and Northern Ireland, since Scotland is represented).

83.     Paragraph 4 provides for the determination of the home jurisdiction of a judge of the Supreme Court. Separate provision is made according to whether the judge in question became a member of the Court by virtue of being a Lord of Appeal in Ordinary at commencement, or was appointed to the Court subsequently, working in the former case by reference to the qualification requirement of the Appellate Jurisdiction Act 1876 (under which Lords of Appeal in Ordinary will have been appointed) rather than those of section 24 of the Act.

Disqualification

84.     Paragraph 5 details the circumstances in which judicial members of the commission are disqualified from sitting on the commission.

85.     Paragraph 5(1) provides for cases of illness or other incapacity: any judge who might be eligible to sit on the appointing commission is considered to be disqualified if the Lord Chancellor believes that the person is for the time being incapacitated from serving on the commission.

86.     Paragraphs 5(2), (3) and (4) provide for cases where a person is a candidate for appointment to the vacancy under consideration: judges of the Supreme Court below the position of President and judges from territorial jurisdictions will be disqualified from membership of the commission unless they first give the Lord Chancellor notice that they do not wish to be considered for the vacancy being filled.

Non-judicial members of the selection commission

87.     Paragraph 6 sets out the rules governing the appointment of members of the territorial appointing commissions to the selection commission.

88.     Under paragraph 6(2), the Lord Chancellor will be responsible for nominating one member of each of the territorial appointing commissions; however, under paragraph 6(4) he may only do this on the recommendation of the territorial appointing commission of which the person is a member. Sub-paragraph (3) provides that at least one of the persons nominated from the territorial appointing commissions must be non-legally qualified (defined for the purposes of this paragraph in paragraph 6(6) and (7)). In effect this means that if at least one of the territorial commissions does not recommend a non-legally qualified person, the Lord Chancellor will, before the commission can be convened, have to broker a solution with the territorial commissions whereby one of them will agree to recommend a non-legally qualified member.

Chairing of a selection commission

89.     Paragraph 7 identifies the President of the Supreme Court as the person who shall normally chair the selection commission for the Supreme Court and provides that, if the President is not available, the most senior member of the commission will chair it.

Interpretation

90.     Paragraph 8 defines for the purpose of this Schedule what is meant by a reference to a selection commission for a particular office.. For example (sub-paragraph (a)): 'Selection commission for the office of President' means a selection commission convened in the case of a vacancy in the office of President.

91.     Paragraph 9(1) defines for the purposes of Part 1 of this Schedule the meaning of "Judicial Appointments Board for Scotland" and "territorial judge".

92.     Paragraph 9(2) defines for the purposes of Part 1 of this Schedule how the seniority of judges of the Supreme Court is to be determined (taking account, where appropriate, of seniority "inherited" from service in the House of Lords) and, in relation to the selection commission, how the seniority of the territorial judges appointed under paragraph 2(3) and Paragraph 3(3) & (4) is to be determined.

Part 2 Dissolution

Any Selection commission

93.     Part 2 of this Schedule sets out the circumstances in which a selection commission is dissolved.

94.     In the normal course of events the commission would be dissolved when the Lord Chancellor notifies a selection made by the commission. That is to say, when a selection of a person by the commission is accepted by the Lord Chancellor and the Lord Chancellor notifies the Prime Minister for recommendation of that person for appointment, the commission is dissolved, being functus officio (paragraph 10).

95.     Paragraphs 11 - 12 provide that the commission will also be dissolved in various circumstances in which it ceases to be properly constituted. These are: if a member of the commission dies or becomes incapacitated; if a person nominated from a territorial commission either resigns his membership of the selection commission or ceases to be a member of the territorial commission from which he has been appointed; if someone who is a member of the commission by virtue of holding high judicial office ceases to hold that office; or if the non-legally qualified member (or members) of the commission ceases (or all cease) to be non-legally qualified.

96.     Paragraphs 11(2) and 12(2) provide that in such cases, rather than the commission continuing with fewer members, or a changed balance of backgrounds, or a different balance of representation, a new selection commission has to be convened by the Lord Chancellor as soon as practicable after dissolution.

Part 3 Duty to Convene Commission: Special Rules

97.     This part of the Schedule modifies the Lord Chancellor's duty to convene a selection commission under certain circumstances.

Selection commission for the office of Deputy President

98.     Paragraph 13 provides that the duty on the Lord Chancellor to convene a selection commission for the office of Deputy President or for the office of Judge does not apply if a selection commission for the office of President has been convened or the Lord Chancellor is under a duty to convene such a selection commission. This means that if there is a vacancy or impending vacancy for the office of President this must be filled before any vacancy in the office of Deputy President which might arise at the same time. This "fill the senior office first" approach, which maximises the likelihood that there will be a President to chair commissions for other vacancies, is carried through for other vacancies by paragraph 14.

Selection commission for the Office of Judge

99.     Paragraph 14 provides that the duty on the Lord Chancellor to convene a selection commission for the office of Judge does not apply if a selection commission for the office of President or Deputy President has been convened or the Lord Chancellor is under a duty to convene such a selection commission. This means that if there is a vacancy or impending vacancy for the office of President or Deputy President these must be filled before any vacancy for the office of Judge which might arise at the same time.

100.     Paragraphs 13(2) and 14(2) state that the Lord Chancellor must convene a selection commission for the unfilled vacancies (in the office of Deputy President or Judge) as soon as practicable after the Lord Chancellor has selected a candidate put forward by the selection commission for the office of President or Deputy President.

Section 27: Selection process

101.     This section sets out the overall process which must be undertaken by the selection commission (the composition of which is provided for in Schedule 8) before it makes a selection of one name (subsection 10) and puts this to the Lord Chancellor (under section 28). Subsection (1) sets out the duties of the commission with regard to the particular selection process to be applied to each vacancy under consideration.

102.     As provided for in subsections (5) and (6) selection must be made solely on merit. The task of setting out the criteria or competences against which merit will be tested lies with the commission. The commission can only recommend those who meet the eligibility requirements set out in section 25. Under subsection (7) anyone who is a member of the commission cannot be selected (hence the provisions in Schedule 8 for identifying persons who wish to be considered for a particular vacancy and disqualifying them from membership of the commission).

103.     Subsection (8) provides that the commission must, when making selections for the appointment of judges, also take into account the need for the Court to have among its judges those with knowledge and experience of practice in the law in every part of the United Kingdom. This is intended to maintain the convention that currently applies to the House of Lords that there should generally be at least 2 Scottish judges and usually 1 from Northern Ireland. The Lord Chancellor, as provided for by subsection (9), may issue non-binding guidance to the commission about the vacancy that has arisen, for example on the jurisdictional requirements of the Court, which the commission must have regard to.

104.     Subsections (2) and (3) list the persons the commission must consult during the selection process (although it may consult others). They are (subsection (2)): senior judges (as defined by Section 60) who are neither on the commission nor willing to be considered for selection, the Lord Chancellor, the First Minister in Scotland, the Assembly First Secretary in Wales and the Secretary of State for Northern Ireland. In addition (subsection (3)), the commission must, if all the "senior judges" for a part of the United Kingdom are not able to be consulted (because they are candidates or members of the commission), consult the next most senior judge in that part who is able to be consulted. This ensures that there will always be some senior judicial input from every part of the United Kingdom into every selection process.

Section 28: Report

105.     This section sets out the stage after the commission has made a selection under the process set out in Section 27.

106.     Subsection (1) provides that after a selection has been made the commission must submit a report to the Lord Chancellor stating who has been selected and containing the information set out in subsections (2), (3) and (4) (that information being essentially that which is required to enable the Lord Chancellor to exercise his options under section 29 on a properly informed basis).

107.     Before choosing to exercise one of his options set out in section 29 the Lord Chancellor, having received the report, must (under subsection (5)) consult the senior judges (or other judges) who were consulted by the commission, the First Minister in Scotland, the Assembly First Secretary in Wales and the Secretary of State for Northern Ireland.

Section 29: The Lord Chancellor's options

108.     This section sets out the Lord Chancellor's options after he has received a name from the commission and carried out further consultation under section 28. It works in conjunction with section 30 which sets out the grounds on which the Lord Chancellor can exercise two of his options - to reject the selection commission's recommendation or to ask the selection commission to reconsider its recommendation. It outlines the three possible stages of the process and the options the Lord Chancellor has at those stages.

109.     Subsection (1) outlines the three possible stages. The first stage is where a person has been selected under section 27. The second stage is where a person has been selected following a rejection or reconsideration at stage 1. The third and final stage is where a person has been selected following a rejection or reconsideration at stage 2.

110.     Subsection (2) provides the Lord Chancellor with his options in dealing with stage 1 of the process. He may (a) notify the selection (which is to say, notify the Prime Minister of the selection for the Prime Minister to recommend that person to Her Majesty for appointment), (b) reject the selection or (c) require the commission to reconsider the selection. Should the Lord Chancellor exercise options (b) or (c) the process enters stage 2.

111.     Subsection (3) provides that during the second stage the Lord Chancellor can (a) notify the selection to the Prime Minister (as above), having exercised either option b) or c) in stage 1; (b) reject the selection if it was made following reconsideration at the first stage; or (c) require the commission to reconsider the selection, but only if it was made following a rejection at stage 1. Should the Lord Chancellor exercise option (b) or (c) the process enters stage 3.

112.     At the third stage, as provided for in subsection (4), the Lord Chancellor must notify the selection although, as provided for in subsection (5), he may notify a candidate who was reconsidered at stage one or two but not rejected.

113.     The Lord Chancellor's options as set out in this section can be summarised as follows: He can:

a)     accept the recommendation;

b)     ask the commission to reconsider; or

c)     reject the recommendation.

114.     If the Lord Chancellor selects option b) first, he would ask the selection commission to reconsider. After reconsideration the commission, under section 31, can still put forward the same name with further reasons or recommend an alternative. The Lord Chancellor can then put forward either of the recommended candidates (unless he chooses to reject the second candidate put forward).

115.     Under option c) the Lord Chancellor can reject the name provided by the selection commission.

116.     If rejection follows reconsideration, under section 31 the selection commission must submit an alternative candidate. At this point the Lord Chancellor can either:

a)     accept this candidate; or

b)     accept the candidate originally put forward before reconsideration.

117.     If the Lord Chancellor rejects the original name provided by the selection commission, under section 31 it must submit an alternative candidate giving reasons for their choice. At this point the Lord Chancellor can either:

a)     accept the second candidate; or

b)     ask the selection commission to reconsider - The selection commission, under section 31, can then either resubmit the second candidate or an alternative candidate. If an alternative candidate is put forward the Lord Chancellor can then choose between the first name following rejection or the new name following reconsideration.

Section 30: Exercise of powers to reject or require reconsideration

118.     This section details the grounds upon which the Lord Chancellor can exercise his powers to reject or require reconsideration of a selection, as provided for in section 29.

119.     The right of rejection is only exercisable according to subsection (1) when in the Lord Chancellor's opinion the person selected is not suitable for the office concerned.

120.     The right to require reconsideration, as stated in subsection (2), is exercisable under three conditions subject to the Lord Chancellor's opinion. The Lord Chancellor can ask for reconsideration if he feels there is not enough evidence that the person is suitable for office; if he feels there is not enough evidence that person is the best candidate on merit; or if there is not enough evidence that the judges of the Court will between them have enough knowledge of, and experience in the laws of each parts of the United Kingdom, following the new appointment.

121.     Should the Lord Chancellor exercise either of these options, under subsection (3) the Lord Chancellor must provide his reasons in writing.

Section 31: Selection following rejection or requirement to reconsider

122.     This section makes provision for the process that the selection commission must follow if the Lord Chancellor requests reconsideration of a selection, or rejects a selection, under section 29.

123.     As provided by subsections (2) and (3) the commission can never put forward a candidate whose selection has been rejected at any stage of the process.

124.     Subsection (3) provides that the commission can reselect a candidate whose selection the Lord Chancellor has requested be reconsidered or provide another candidate, but not a candidate whose selection has already been rejected.

125.     Subsection (4) states that the commission must inform the Lord Chancellor of the person selected following rejection or requirement for reconsideration.

Terms of Appointment

Section 32: Oath of allegiance and judicial oath

126.     This section provides for every judge of the Supreme Court (which includes the President and Deputy President) to be required to take the oath of allegiance to the Sovereign and the Judicial Oath, as soon as may be after accepting that office. The required oaths are described in subsection (6) and are set out in the Promissory Oaths Act 1868. Separate provision is made for the taking of the oaths on appointment as President, Deputy President, and judge.

127.     Subsection (1) requires the President to take the oaths in the presence of the Deputy President, or, if there is no Deputy President, the senior ordinary judge ("senior ordinary judge" being defined in section 60(3)(b)).

128.     Subsection (2) requires the Deputy President to take the oaths in the presence of the President, or, if there is no President, the senior ordinary judge.

129.     Subsection (3) provides that a judge of the Court (excluding the President and Deputy President - see subsection (5)) must take the oaths in the presence of the President, or, if there is no President, the Deputy President, or if there is no Deputy President, the senior ordinary judge.

130.     Subsection (4) provides that the President and Deputy President are required to take the oaths in terms of subsections (1) and (2) whether or not the person appointed as President or Deputy President has previously taken the oaths after accepting another office. For example, a person appointed as President having previously served as Deputy President will be required to take the oaths on appointment as President even though he took them on appointment as Deputy President.

131.     Subsection (5) provides that a judge of the Court who becomes a Supreme Court judge by virtue of his appointment directly to the Court as President or Deputy President does not have to take the oaths twice, by virtue of subsection (1) or (2) and of subsection (3) - that is to say, in those circumstances, the person appointed as President or Deputy President takes the oaths only once, on account of the appointment as President.

Section 33: Tenure

132.     This section provides for the judges of the Supreme Court to hold office while they are of good behaviour, as is presently the case for Lords of Appeal in Ordinary. This is of course subject to the possibility of resignation, and the provision for retirement, set out in sections 35 and 36. (This provision does not apply to persons who, under section 38 of the Act, are acting judges of the Supreme Court. See section 38(5)(b).)

133.     This section also provides, consistently with the position of all senior judicial office holders, that removal from office of any judge of the Supreme Court may only be effected following resolutions passed by both the House of Commons and the House of Lords.

Section 34: Salaries and allowances

134.     This section provides for judges of the Supreme Court to receive a salary and allowance, detailing how the salary and allowance is to be determined and from where the salary and allowance is paid. It is in terms which reproduce the effect of the provisions governing these matters for Lords of Appeal in Ordinary.

135.     Subsection (1) states that a judge of the Supreme Court is entitled to a salary, and subsection (2) that the amount of the salary is to be determined by the Lord Chancellor with the agreement of the Treasury. Subsection (3) makes transitional provision to the effect that at the commencement of the provisions establishing the Supreme Court, the salaries of the first judges of the Supreme Court will remain the same as those received by them as Lords of Appeal in Ordinary immediately before commencement. Subsection (4) provides for these salaries, consistently with other judicial salaries, to be capable of being increased but not reduced.

136.     Subsection (5) provides that the salary will be charged on and paid out of the Consolidated Fund of the United Kingdom.

137.     Subsection (6) provides that the Lord Chancellor may determine, in agreement with the Treasury, an allowance to be paid to a judge of the Court, which will be paid out of money provided Parliament. This is in addition to the judicial salary, to provide flexibility.

Section 35: Resignation and retirement

138.     This section makes provision for the resignation or retirement of judges of the Supreme Court.

139.     Under subsection (1) any judge of the Supreme Court (including the President and Deputy President) may at any time resign from that office. Resignation is effected by giving notice in writing to the Lord Chancellor.

140.     Subsection (2) makes separate provision for resignation from the office of President or Deputy President. The holder may so resign without resigning from the office of a judge of the Supreme Court. The resignation is again effected by giving notice in writing to the Lord Chancellor.

141.     Subsection (3) amends section 26(4)(a) of, and Schedule 5 to, the Judicial Pensions and Retirement Act 1993 (retirement), so that references to "Judge of the Supreme Court" will be substituted for "Lord of Appeal in Ordinary". The effect of this amendment is that the retirement age and associated provisions as to retirement which apply to Lords of Appeal in Ordinary will apply in the same way to judges of the Supreme Court.