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Constitutional Reform Bill [HL]


Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments

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71      

Reconsideration of decision not to select

(1)   

The Minister 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 Minister of any person selected on

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reconsideration under this section.

(3)   

Sections 69 and 70 apply to such a person as if the Commission had selected

him instead of making the decision reconsidered.

72      

Withdrawal of request

(1)   

The Minister may not withdraw a request if a recommendation or appointment

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has been made in pursuance of a selection made on the request.

(2)   

At any other time he may withdraw a request by notice in writing to the

Commission.

(3)   

The notice must state the Minister’s reasons for withdrawing the request.

(4)   

If a request is withdrawn—

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(a)   

sections 67 to 71 cease to apply in relation to it, and

(b)   

any selection made on it is to be disregarded.

(5)   

Withdrawal of a request does not affect the power of the Minister to make

another request in the same or different terms.

(6)   

In this section “request” means a request under section 66.

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Complaints and references

73      

Qualifying complaints

(1)   

This section applies for the purposes of this Part.

(2)   

A complaint is a qualifying complaint if it is—

(a)   

a Commission complaint, or

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(b)   

a departmental complaint.

(3)   

It is a Commission complaint if it is a complaint that the complainant has

suffered injustice because of maladministration by the Commission or a

committee of the Commission.

(4)   

It is a departmental complaint if it is a complaint that the complainant has

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suffered injustice because of maladministration by the Minister 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 12;

(c)   

appointment as a justice of the peace other than a District Judge

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(Magistrates’ Courts);

(d)   

appointment as a General Commissioner of Income Tax.

 

 

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments

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74      

Complaints to the Commission or the Minister

(1)   

The Commission must make arrangements for investigating any Commission

complaint made to it.

(2)   

The Minister must make arrangements for investigating any departmental

complaint made to him.

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(3)   

Arrangements under this section need not apply to a complaint made more

than 28 days after the matter complained of.

75      

Complaints to the Ombudsman

(1)   

The Ombudsman must investigate any complaint which the complainant—

(a)   

has made to the Commission or the Minister in accordance with

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arrangements under section 74, and

(b)   

makes to the Ombudsman not more than 28 days later.

(2)   

The Ombudsman may investigate a complaint which the complainant—

(a)   

has made to the Commission or the Minister in accordance with

arrangements under section 74, and

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(b)   

makes to the Ombudsman at any later time.

(3)   

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.

(4)   

The Judicial Appointments Order is the Judicial Appointments Order in

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Council 2001, which sets out the functions of Her Majesty’s Commissioners for

Judicial Appointments.

(5)   

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

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complaint that the Commission had declined to investigate or on which they

had concluded their investigation.

(6)   

Any complaint to the Ombudsman under this section must be in a form

approved by him.

76      

Report and recommendations

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(1)   

The Ombudsman must prepare a report on any complaint he has investigated

under section 75.

(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;

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(c)   

if he does, what if any action he recommends should be taken by the

Commission or the Minister 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

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to have been suffered by the complainant as a result of maladministration and

 

 

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments

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not as a result of any failure to be appointed to an office to which the complaint

related.

77      

Report procedure

(1)   

This section applies to a report under section 76.

(2)   

The Ombudsman must submit a draft of the report—

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(a)   

to the Minister, 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 Minister or the Commission

for changes in the draft report;

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(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 Minister and the Commission.

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(6)   

Otherwise the Ombudsman must send the report to the Minister.

(7)   

The Ombudsman must send a copy of the report to the complainant, but that

copy must not include confidential information within the meaning of section

92 which relates to an individual other than the complainant.

78      

References by the Minister

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(1)   

If the Minister 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 Minister on any investigation under this

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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.

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(5)   

The report must be signed by the Ombudsman.

79      

Information

The Commission and the Minister must provide the Ombudsman with such

information as he may reasonably require relating to the subject matter of any

investigation by him under section 75 or 78.

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Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 2 — Appointments

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Miscellaneous

80      

Consultation on appointment of lay justices

In section 10 of the Courts Act 2003 (c. 39) (appointment of lay justices etc.) after

subsection (2) insert—

“(2A)   

The Secretary of State for Constitutional Affairs must ensure that

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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.”

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81      

Confidentiality

(1)   

A person who is or has been a Commissioner, a member of the Commission’s

staff or an agent of the Commission must not disclose confidential information

except with lawful authority.

(2)   

Information is confidential if each of the following applies—

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(a)   

it has been obtained by or provided to the Commission under or for the

purposes of this Part;

(b)   

it relates to an identified or identifiable individual;

(c)   

it is not, and has never been, available to the public from other sources.

(3)   

Confidential information is disclosed with lawful authority only if and to the

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extent that any of the following applies—

(a)   

the disclosure is with the consent of the individual;

(b)   

the information was provided in order to be made available to the

public (in whatever way) under any provision of this Part;

(c)   

the disclosure is for (and is necessary for) the discharge of functions of

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the Commission under this Part;

(d)   

the disclosure is for (and is necessary for) the purposes of proceedings

(whether civil or criminal and whether or not arising under this Part);

(e)   

having regard to the rights and freedoms or legitimate interests of any

person, the disclosure is necessary in the public interest.

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(4)   

A contravention of this section in respect of any information is actionable

subject to the defences and other incidents applying to actions for breach of

statutory duty.

(5)   

But it is actionable only at the suit of the individual to whom the information

relates.

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82      

Disclosure of information to Commission

(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.

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(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—

 

 

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 3 — Discipline

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(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.

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(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;

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(e)   

the Director General of the National Crime Squad;

(f)   

the Commissioners of Inland Revenue;

(g)   

the Commissioners of Customs and Excise.

(6)   

The Minister may by order designate as permitted persons other persons who

exercise functions which he considers are of a public nature (including a body

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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

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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,

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(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).

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Chapter 3

Discipline

Procedures

83      

Disciplinary powers

(1)   

Any power of the Minister to remove from office the holder of an office listed

35

in Schedule 12 is exercisable only after the Minister has complied with

prescribed procedures.

(2)   

The Lord Chief Justice may exercise any of the following powers but only with

the agreement of the Minister and only after complying with prescribed

procedures.

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(3)   

The Lord Chief Justice may give a judicial office holder any of the following for

disciplinary purposes—

 

 

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 3 — Discipline

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(a)   

advice;

(b)   

a warning;

(c)   

a formal reprimand.

(4)   

He may suspend a judicial office holder for any period during which any of the

following applies—

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(a)   

the office holder is subject to criminal proceedings;

(b)   

the office holder is serving a sentence imposed in criminal proceedings;

(c)   

the office holder has been convicted of an offence and is subject to

disciplinary procedures to determine whether he should be removed

from office.

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(5)   

He may suspend a judicial office holder for any period if—

(a)   

the office holder has been convicted of a criminal offence,

(b)   

it has been determined under prescribed procedures that the office

holder should not be removed from office, and

(c)   

it appears to the Lord Chief Justice with the agreement of the Minister

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that the suspension is necessary for maintaining confidence in the

judiciary.

(6)   

He may suspend a senior judge for any period during which the judge is

subject to proceedings for an Address.

(7)   

He may suspend the holder of an office listed in Schedule 12 for any period

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during which the office holder—

(a)   

is under investigation for an offence, or

(b)   

is subject to disciplinary procedures.

(8)   

While a judicial office holder of any description is suspended under this

section he may not exercise any functions of his office.

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84      

Disciplinary powers: interpretation

(1)   

This section has effect for the purposes of section 83.

(2)   

A judicial office holder is subject to criminal proceedings from the time when

he is committed for trial on indictment for an offence to the time when the

proceedings against him for the offence, including any appeal by him or by the

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prosecution, are concluded.

(3)   

A senior judge 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 judge from office, until the earliest of the following events—

(a)   

either notice is withdrawn;

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(b)   

either motion is withdrawn or lapses;

(c)   

either motion is amended or 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 holder” means—

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(a)   

a senior judge, or

(b)   

the holder of an office listed in Schedule 12, other than a puisne judge

of the High Court.

(5)   

“Senior judge” means any of these—

 

 

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 3 — Discipline

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(a)   

puisne judge of the High Court;

(b)   

Lord Justice of Appeal;

(c)   

Master of the Rolls;

(d)   

President of the Family Division;

(e)   

Chancellor of the High Court;

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(f)   

President of the Queen’s Bench Division.

(6)   

“Sentence” includes any sentence other than a fine (and “serving” is to be read

accordingly).

(7)   

“Subject to disciplinary procedures” and “under investigation for an offence”

have such meaning as may be prescribed.

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85      

Regulations about procedures

(1)   

The Lord Chief Justice may, with the agreement of the Minister, make

regulations providing for the procedures that are to be followed in the

investigation and determination by the Lord Chief Justice or the Minister of

alleged misconduct by judicial office holders.

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(2)   

The regulations are to be made in the form of a statutory instrument to which

the Statutory Instruments Act 1946 (c. 36) applies as if the regulations were

made by a Minister of the Crown.

(3)   

Any such statutory instrument is subject to annulment in pursuance of a

resolution of either House of Parliament.

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86      

Contents of regulations

(1)   

Regulations under section 85 may include provision as to any of the

following—

(a)   

circumstances in which an investigation must or may be undertaken

(on the making of a complaint or otherwise);

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(b)   

steps to be taken by a complainant before a complaint is to be

investigated;

(c)   

the conduct of an investigation, including steps to be taken by the office

holder under investigation or by a complainant or other person;

(d)   

time limits for taking any step and procedures for extending time

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limits;

(e)   

persons by whom an investigation or part of an investigation is to be

conducted;

(f)   

matters to be determined by the Lord Chief Justice, the Minister, the

office holder under investigation or any other person;

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(g)   

requirements as to records of investigations;

(h)   

requirements as confidentiality of communications or proceedings;

(i)   

requirements as to the publication of information or its provision to any

person.

(2)   

The regulations—

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(a)   

may require a decision by the Lord Chief Justice or the Minister as to

the exercise of functions under section 83, or functions mentioned in

subsection (1) of that section, to be taken in accordance with findings

made pursuant to prescribed procedures;

 

 

 
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