2005 Chapter 4

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These notes refer to the Constitutional Reform Act 2005 (c.4) which received Royal Assent on 24 March 2005

CONSTITUTIONAL REFORM ACT 2005

     EXPLANATORY NOTES

INTRODUCTION

     1.     These explanatory notes relate to the Constitutional Reform Act 2005 which received Royal Assent on 24 March 2005. They have been prepared by the Department for Constitutional Affairs in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

     2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

OVERVIEW

3.     The Constitutional Reform Act modifies the office of Lord Chancellor and makes changes to the way in which some of the functions vested in that office are to be exercised. The Act also creates the Supreme Court of the United Kingdom and abolishes the appellate jurisdiction of the House of Lords. It creates the Judicial Appointments Commission to select people for judicial appointments in England and Wales, and provides for judicial discipline in England and Wales. The Act modifies the jurisdiction of the Judicial Committee of the Privy Council and removes the right of the Lord President of the Council to sit judicially.

4.     The explanatory notes are divided into parts reflecting the structure of the Act. In relation to each Part, there is a summary and background section. Commentary on particular sections is then set out in number order, with the commentary on the various schedules included with the section to which they relate.

5.     Notes on the effects of the Act on: public expenditure; public sector manpower; cost to business and regulatory impact, follow the commentary on sections, as does a brief note on issues relating to the European Convention on Human Rights.

6.     The Act is divided into 7 parts:

     Part 1: The Rule of Law

• Part 1: provides that the Act does not adversely affect the Rule of Law or the Lord Chancellor's role in relation to that principle.

Part 2: Arrangements to modify the office of Lord Chancellor

• Part 2: Makes provision for modifying the office of Lord Chancellor so that the office-holder is no longer a judge nor exercises any judicial functions. It also sets out the qualifications for appointment to the office of Lord Chancellor. This Part also deals with functions relating to the judiciary and courts so that they are appropriately shared between the reformed ministerial office of Lord Chancellor and the Lord Chief Justice (and/or other senior members of the judiciary as appropriate). It also provides a guarantee of continued judicial independence. There are provisions in relation to the Speakership of the House of Lords. There are also provisions for the modification, abolition or transfer of other existing functions of the Lord Chancellor and provision that certain functions cannot be transferred from the Lord Chancellor to other Ministers by a Transfer of Functions Order under the Ministers of the Crown Act 1975.

Part 3: The Supreme Court

• Part 3: Makes provisions for a Supreme Court to replace the existing system of Law Lords operating as a committee of the House of Lords. It provides for the appointment of judges to the new Court, the Court's jurisdiction, its procedures, resources (including accommodation) and other matters.

Part 4: Judicial appointments and discipline

• Part 4: Makes provision for a Judicial Appointments Commission to be responsible for recruiting and selecting judges for the Courts of England and Wales and members of certain tribunals, and makes special arrangements for the appointment of the Lord Chief Justice and other Heads of Division and of the Lords Justices of Appeal. It provides for the Commission to report to the Lord Chancellor on who has been selected, and for the Lord Chancellor to make the appointment or the recommendation for appointment to The Queen. It also makes provision for a Judicial Appointments and Conduct Ombudsman, and for judicial discipline.

Part 5: Judicial appointments and removals: Northern Ireland

• Part 5 makes provision about the supply of information to the existing Northern Ireland Judicial Appointments Commission, creates a Northern Ireland Judicial Appointments Ombudsman, and provides a mechanism for the removal of judicial office holders in Northern Ireland. By virtue of section 147(2), Part 5 extends only to Northern Ireland.

Part 6: Other provisions relating to the judiciary

• Part 6: Makes provision regarding Parliamentary disqualification of certain judges; and makes amendments about the Judicial Committee of the Privy Council.

Part 7: General

• Part 7: Restricts the disclosure of confidential information obtained under certain provisions of the Act; makes provision about the interpretation of certain expressions used in the Act, including "enactment" and "subordinate legislation"; confers power to make supplementary provision by order; sets out the procedure for making orders and regulations under the Act; makes minor and consequential amendments and repeals and revocations; and makes provision about the extent, commencement and short title of the Act.

7.     Parts 2 and 4 are intended to give substantial effect to the agreement between the Lord Chief Justice of England and Wales and the Lord Chancellor on the proposals relating to the transfer of the Lord Chancellor's judiciary-related functions. This was set out in a document called "Constitutional Reform. The Lord Chancellor's judiciary-related functions: Proposals" (usually referred to as the 'Concordat'). This was placed in the libraries of both Houses of Parliament at the time of the Oral Statement made to the House of Lords by the Lord Chancellor, and repeated in the House of Commons, on 26th January 2004. The text was also printed as Appendix 6 to the House of Lords Select Committee's Report on the Bill.

     PART 1: THE RULE OF LAW

8.     Part 1 provides that the Act does not adversely affect the existing constitutional principle of the Rule of Law or the Lord Chancellor's existing constitutional role in relation to that principle.

PART 2: ARRANGEMENTS TO MODIFY THE OFFICE OF LORD CHANCELLOR

SUMMARY

9.     Part 2 modifies the office of Lord Chancellor and provides for the future exercise of certain functions of that office and for continued judicial independence. It provides:

(a)     that in appointing a person to be Lord Chancellor the Prime Minister must be satisfied that the person is qualified for the post by relevant experience;

(b)     that the Lord Chancellor must take a specified oath, in addition to the other oaths required of Ministers;

(c)     a guarantee of continued judicial independence in England and Wales, and (separately) in Northern Ireland;

(d)     for general statutory responsibilities of the Lord Chief Justice, who will assume the new additional titles of President of the Courts of England and Wales and Head of the Judiciary of England and Wales;

(e)     that the most senior Judge within the three legal jurisdictions of the UK (England & Wales, Scotland and Northern Ireland) may make written representations to Parliament on justice-related matters;

(f)     for new offices of the Head and Deputy Head of Criminal Justice and Head and Deputy Head of Family Justice;

(g)     for the transfer of certain of the Lord Chancellor's statutory functions relating to the judiciary to the Lord Chief Justice (and/or other senior members of the judiciary as appropriate), and for consultation or concurrence between them in the exercise of such functions to reflect the agreement set out in the 'Concordat';

(h)     for the amendment of certain statutory provisions that refer to the Lord Chancellor in his capacity as Speaker of the House of Lords, so that they will in future refer to the Speaker of the House of Lords in general terms;

(i)     for the modification, transfer and abolition of existing functions of the Lord Chancellor created or modified in primary legislation since the introduction of the Act, and in secondary legislation, local or private acts, charters and other prerogative instruments; and

(j)     for the amendment of the Ministers of the Crown Act 1975 to disapply section 1 of that Act to specified functions of the Lord Chancellor, so that they cannot be transferred to another Minister of the Crown by an order under that Act.

BACKGROUND

10.     The office of Lord Chancellor is currently both a ministerial and a judicial office. In the main, ministerial powers currently exercisable by the Lord Chancellor that do not relate to the judiciary or the administration of the courts are not affected by the Act. However, some of the Lord Chancellor's functions have been exercised in his capacity as 'Head of the Judiciary' (although this has not historically been a formal or statutory title). Other functions, statutory and otherwise, are currently exercisable by the Lord Chancellor in relation to the judiciary or to the Lord Chancellor's judicial role. The Act ends the judicial role of the Lord Chancellor and precludes the office-holder from holding judicial office. It also modifies the Lord Chancellor's judiciary-related functions in line with the Concordat (see "Overview", above).

11.     Section 15 and Schedule 4 provide for judiciary-related functions currently vested in the Lord Chancellor to be transferred to another office holder or otherwise disposed of, and for the modification of certain other functions of the Lord Chancellor. Some of the judiciary-related functions are transferred to the Lord Chief Justice or to another member of the senior judiciary. In many instances, as appropriate to the nature of a particular function, the Lord Chancellor will be required to consult, or obtain the concurrence of, the Lord Chief Justice (or vice versa) before exercising the function. In others, functions may be exercised by the Lord Chancellor or the Lord Chief Justice acting alone. The division of functions into these categories is intended to reflect the principles set out in the Concordat referred to in paragraph 7 above, which are summarised in paragraph 36 below. While the Lord Chief Justice is named as having a role in exercising many of these functions, the Act enables him to delegate any of his functions to holders of other judicial offices, except those functions relating to removals from judicial office. The Act also provides a role for the Lord Chief Justice of Northern Ireland and the Lord President of the Court of Session as appropriate for functions that extend to the jurisdictions of Northern Ireland and Scotland.

12.     Statutory provisions that refer to the Lord Chancellor in his capacity as Speaker of the House of Lords are amended by the Act so that they refer to the Speaker of the House of Lords in general terms, rather than the Lord Chancellor. It is a matter for the House of Lords itself to determine any changes to the current arrangements for the office of its Speaker.

13.     Section 19 of the Act also makes provision for the transfer, modification and abolition of other functions of the Lord Chancellor, for example those in local and private acts, not yet identified, or functions created by legislation passed in the 2003-04 or 2004-05 Sessions or in secondary legislation. The section also provides a power to amend charters and other prerogative instruments to take account of the reform of the office of the Lord Chancellor. In addition, section 20 of the Act will ensure that certain protected functions (set out in Schedule 7) may not be transferred away from the office of Lord Chancellor by an order under the Ministers of the Crown Act 1975. Section 21 provides for further functions to be added to Schedule 7 (although functions will not be able to be removed from the Schedule by secondary legislation).

COMMENTARY ON SECTIONS

Qualifications for office of Lord Chancellor

Section 2: Lord Chancellor to be qualified by experience

14.     Section 2 provides that a person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience. Relevant experience for this purpose could include experience as a Minister of the Crown, or as a Member of either House of Parliament. Experience as a qualifying legal practitioner or as a teacher of law in a University could also be taken into account, as could any other experience considered by the Prime Minister to be relevant.

Continued judicial independence

Section 3: Guarantee of continued judicial independence

15.     Section 3 places a duty on Ministers of the Crown (including the Lord Chancellor), and all others with responsibility for matters relating to the judiciary or otherwise to the administration of justice to uphold the continued independence of the judiciary. It also sets out two particular duties that are to be exercised for the purpose of upholding that independence.

16.     The first is a duty on Ministers of the Crown not to seek to influence particular judicial decisions through any special access to the judiciary. "Special access" is intended to refer to any access over and above that which might be exercised by a member of the general public. So the duty does not, for example, limit what may be said on a Minister's behalf in court in the course of presenting a case to the court in the usual way.

17.     The second duty requires the Lord Chancellor to have regard to the need to defend the continued independence of the judiciary, the need for the judiciary to have proper support necessary to enable them to exercise their functions, and the need for the public interest in matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters. This section should be read in conjunction with Part 1 of the Courts Act 2003, which sets out the duty of the Lord Chancellor to ensure that there is an efficient and effective system to support the carrying on of the business of the courts of England and Wales.

Section 4: Guarantee of continued judicial independence: Northern Ireland

18.     Section 4 substitutes a new section 1 of the Justice (Northern Ireland) Act 2002 to ensure that the provision made by that Act in relation to Northern Ireland is consistent with the provision made in section 3 of the Constitutional Reform Act.

19.     Section 1 of the 2002 Act, which has not yet been commenced, already contains provision designed to place those with responsibility for the administration of justice in Northern Ireland under a duty to uphold the continued independence of the judiciary. The new section 1 specifies and extends the range of persons upon whom the duty is imposed. Under the new section, the First Minister, the deputy First Minister, Northern Ireland Ministers and anyone with responsibility for the judiciary or the administration of justice specific to Northern Ireland, will be subject to the duty to uphold judicial independence. The new section will also provide that in upholding judicial independence, Ministers must not seek to interfere with particular judicial decisions through any special access to the judiciary. The duties imposed by section 1 have UK wide territorial extent and include the judiciary throughout the United Kingdom.

Representations by senior judges

Section 5: Representations to Parliament

20.     Section 5 provides that the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland and the Lord President of the Court of Session may table written representations to Parliament on matters relating to the judiciary or the administration of justice. In respect of the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland, this function is qualified by subsections (2) and (3) in order to respect the devolution settlements with Scotland and Northern Ireland respectively.

Section 6: Representations to the Northern Ireland Assembly

21.     Section 6 makes provision for the Lord Chief Justice of Northern Ireland to lay written representations before the Northern Ireland Assembly on matters relating to the judiciary, or to the administration of justice in Northern Ireland. The Lord Chief Justice may make such representations if they relate to excepted or reserved matters to which a Bill for an Act of the Assembly relates; or to transferred matters, unless they are transferred matters to which a Bill for an Act of Parliament relates.

The Judiciary and the Courts in England and Wales

Section 7: President of the Courts of England and Wales

22.     Section 7 provides a new, additional, statutory title of President of the Courts of England and Wales for the Lord Chief Justice. This section also recognises that the Lord Chief Justice is the Head of the Judiciary of England and Wales.

23.     The section sets out the responsibilities of the President of the Courts of England and Wales. It also sets out the courts to which the presidency applies. In his role as President of the Courts of England and Wales, the Lord Chief Justice is to be responsible for representing the views of the judiciary of England and Wales to Parliament, the Lord Chancellor and Ministers of the Crown generally. He is also to be responsible, within the resources made available by the Lord Chancellor, for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary of England and Wales, and for maintaining appropriate arrangements for the deployment of the judiciary of England and Wales and allocating work within courts. In relation to the issue of deployment, it should be noted that the Lord Chief Justice will also have a role in the appointment of judicial office holders to committees, boards and similar bodies, as set out in paragraphs 46-49 of the 'Concordat'; his role in such appointments so far as governed by statute is provided for by amendments made by Schedule 4.

Section 8: Head and Deputy Head of Criminal Justice

24.     Section 8 creates a new statutory post of Head of Criminal Justice, which will be held ex officio by the Lord Chief Justice of England and Wales or, after consultation with the Lord Chancellor , by his nominee. This section also provides that the Lord Chief Justice may appoint a Deputy Head of Criminal Justice. The creation of these new posts mirrors the existing statutory posts of Head and Deputy Head of Civil Justice, established by section 62 of the Courts Act 2003.

Section 9: Head and Deputy Head of Family Justice

25.     Section 9 creates a new statutory post of Head of Family Justice, which will be held ex officio by the President of the Family Division. This section also provides that the Lord Chief Justice may appoint a Deputy Head of Family Justice. The creation of these new posts mirrors the existing statutory posts of Head and Deputy Head of Civil Justice, established by section 62 of the Courts Act 2003.

     Judiciary and Courts in Northern Ireland

Section 10: The Lord Chancellor and Northern Ireland Courts

26.     Section 10 provides for a new section to be inserted into the Judicature (Northern Ireland) Act 1978, corresponding to section 1 of the Courts Act 2003. It places a statutory duty on the Lord Chancellor to ensure there is an efficient and effective system to support the Supreme Court of Northern Ireland and the county courts, magistrates' courts and coroners' courts in Northern Ireland and to ensure that appropriate services are provided for those courts. It also requires the Lord Chancellor to lay before Parliament a report as to the way in which this duty has been discharged.

Section 11: Lord Chief Justice of Northern Ireland

27.     At present, the Lord Chief Justice of Northern Ireland is President of the Court of Appeal, High Court, and Crown Court but has no role in relation to the county courts or the magistrates' courts. Section 12 of the Justice (Northern Ireland) Act 2002 Act provides for the Lord Chief Justice to be president of the Court of Appeal, Crown Court, High Court, county courts and magistrates' courts and head of the judges and magistrates who sit in them. It does not, however, bestow any formal title.

28.     Section 11 amends section 12(1) of the Justice (Northern Ireland) Act 2002 to take account of reform of the office of the Lord Chancellor. It provides for a new statutory office and title of President of the Courts of Northern Ireland to be assumed by the Lord Chief Justice of Northern Ireland. It also provides for the Lord Chief Justice of Northern Ireland to be Head of the Judiciary of Northern Ireland.

29.     The section sets out the responsibilities of the President of the Courts of Northern Ireland and the courts to which the presidency applies. The responsibilities, which are broadly similar to those of the Lord Chief Justice of England and Wales under section 7 of the Act, are:

• representing the views of the judiciary of Northern Ireland to Parliament, the Lord Chancellor and Ministers of the Crown generally;

• representing the views of the judiciary of Northern Ireland to the Northern Ireland Assembly, the First Minister and deputy First Minister and Northern Ireland Ministers;

• maintaining appropriate arrangements for the welfare, training and guidance of the judiciary of Northern Ireland within the resources made available by the Lord Chancellor; and

• maintaining appropriate arrangements for the deployment of the judiciary of Northern Ireland and the allocation of work within the courts.

Other provisions about the judiciary and courts

Section 12 and Schedule 1: Powers to make rules

30.     Section 12 introduces Schedule 1, which deals with powers to make rules of court that are currently vested in the Lord Chancellor alone, rather than in a rule Committee. By virtue of these provisions, the rules will now be made by the Lord Chief Justice with the concurrence of the Lord Chancellor. Part 1 of Schedule 1 sets out the procedure by which the rules will now be made. Part 2 of the Schedule amends the statutes which confer the rule-making powers so as to incorporate the new procedure.

31.     . The requirement that the Lord Chancellor should concur with any rules made by the Lord Chief Justice mirrors the existing statutory powers of the Lord Chancellor to allow or disallow rules made by rule committees. A new power to direct that the Lord Chief Justice make rules to achieve a specified purpose is vested in the Lord Chancellor. Again, this mirrors the situation for rules made by rule committees which are dealt with in Schedule 4 to the Act. In relation to certain family procedure rules, the procedure under part 1 of Schedule 1 to the Act will only have temporary effect, until sections 75 to 80 of the Courts Act 2003 are brought into effect and the Family Procedure Rule Committee is established.

Section 13 and Schedule 2: Powers to Give Directions

32.     Section 13 introduces Schedule 2, which deals with powers to give directions that are currently vested in the Lord Chancellor. By virtue of these provisions, the directions will now be given by the Lord Chief Justice, generally with the concurrence of the Lord Chancellor. Part 1 of Schedule 2 sets out the procedure by which the directions will now be given. Part 2 of the Schedule amends the statutes which confer the direction-giving powers so as to incorporate the new procedure. The Lord Chief Justice may, with the approval of the Lord Chancellor, delegate his functions under the new procedure; the expectation is that the powers would usually be delegated to the Head of Criminal, Civil or Family Justice (as appropriate). The new procedure is similar to that which will apply to the rules dealt with in section 12 and Schedule 1 (see paragraphs 30 and 31 above).

33.      The concurrence of the Lord Chancellor is not needed for directions concerning guidance as to the application or interpretation of the law or the making of judicial decisions. Nor is the Lord Chancellor's concurrence needed for directions that relate to criteria for determining which judges may be allocated to hear particular categories of case; but the Lord Chancellor must be consulted before such directions are given.

Section 14 and Schedule 3: Transfer of appointment functions to Her Majesty

34.     Section 14 introduces Schedule 3, which provides that appointments to the judicial offices listed will in future be made by Her Majesty The Queen rather than the Lord Chancellor as currently. Paragraph 1 of the Schedule transfers to Her Majesty the power under section 6 of the County Courts Act 1984 to appoint civil District Judges to county courts and gives the Lord Chief Justice the power to assign them to their districts. It also provides that their salaries shall be determined by the Lord Chancellor with the concurrence of the Treasury, and may not be reduced. This protection brings civil District Judges more closely into line with District Judges (Magistrates' Courts) and with more senior members of the judiciary. Paragraph 2 makes corresponding provision for the assignment of civil District Judges to District Registries of the High Court. Paragraph 3 transfers to Her Majesty the power to appoint High Court Masters and Registrars, and re-enacts with amendments the qualifications for appointment or promotion to the posts of the senior High Court Masters and Registrars. The table in paragraph 3(4) refers to the qualifying office for appointment as Senior District Judge of the Family Division as 'Registrar of the Principal Registry of the Family Division'. This office was renamed 'District Judge of the Principal Registry of the Family Division' by the Courts and Legal Services Act 1990, and the reference is to that office. Paragraphs 5 and 6 transfer to Her Majesty the power to appoint the Senior District Judge (Chief Magistrate).

35.      All of these offices are also listed in Schedule 14, and appointments will in future be made by Her Majesty on the advice of the Lord Chancellor, after selection by the Judicial Appointments Commission.