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Constitutional Reform Bill [HL]


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

32

 

(b)   

may require that prescribed steps be taken by the Lord Chief Justice or

the Minister in exercising those functions or before exercising them.

(3)   

The regulations may provide for any prescribed requirement not to apply if the

Lord Chief Justice and the Minister so agree.

(4)   

Where the regulations impose any requirement on the office holder under

5

investigation or on a complainant, a person contravening the requirement does

not incur liability other than liability to such procedural penalty if any (which

may include the suspension or dismissal of a complaint)—

(a)   

as may be prescribed by the regulations, or

(b)   

as may be determined by the Lord Chief Justice and the Minister or

10

either of them in accordance with provisions so prescribed.

(5)   

The regulations may make different provision for different purposes.

(6)   

Nothing in this section limits the generality of section 85.

87      

Procedural rules

(1)   

Regulations under section 85 may provide for provision of a prescribed

15

description that may be included in the regulations to be made instead by rules

made by the Lord Chief Justice with the agreement of the Minister.

(2)   

But the provision that may be made by rules does not include—

(a)   

provision within section 86(2);

(b)   

provision made for the purposes of section 86(4).

20

(3)   

The rules are to be published in such manner as the Lord Chief Justice may

determine with the agreement of the Minister.

Complaints and references

88      

Investigations by the Ombudsman relating to conduct

(1)   

The Ombudsman must investigate any complaint that a complainant within

25

subsection (2) has suffered injustice because of—

(a)   

a failure by the Lord Chief Justice, the Minister or any other person to

comply with prescribed procedures, or

(b)   

other maladministration in an investigation or determination to which

such procedures apply.

30

(2)   

The persons who may make a complaint under this section are these—

(a)   

the judicial office holder the subject of the investigation or

determination concerned;

(b)   

a complainant under regulations under section 85.

(3)   

Subsection (1) does not apply to a complaint such as is mentioned there if it is

35

made to the Ombudsman more than 28 days after the latest of —

(a)   

the matter complained of;

(b)   

the conclusion or other termination of an investigation to which the

complaint relates;

(c)   

the making of a determination to which the complaint relates.

40

 

 

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

33

 

(4)   

A complaint under this section must be in a form approved by the

Ombudsman.

89      

References to the Ombudsman relating to conduct

(1)   

The Ombudsman must investigate any matter referred to him by the Lord

Chief Justice or the Minister relating to an investigation or determination to

5

which prescribed procedures apply.

(2)   

The matter may relate to the investigation or determination of a particular

complaint or complaints of any description.

(3)   

The Ombudsman must report to the Minister on any investigation under this

section.

10

(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.

15

90      

Report and recommendations

(1)   

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

under section 88.

(2)   

The report must state—

(a)   

what findings the Ombudsman has made;

20

(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

Lord Chief Justice 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.

25

91      

Report procedure

(1)   

This section applies to a report under section 90.

(2)   

The Ombudsman must submit a draft of the report to the Lord Chief Justice

and to the Minister.

(3)   

In finalising the report the Ombudsman—

30

(a)   

must have regard to any proposal by the Lord Chief Justice or the

Minister 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.

35

(5)   

The Ombudsman must send the report in duplicate to the Lord Chief Justice

and to the Minister.

(6)   

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.

40

 

 

Constitutional Reform Bill [HL]
Part 3 — Judicial appointments and discipline
Chapter 4 — General

34

 

Chapter 4

General

92      

Confidentiality

(1)   

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

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

5

except with lawful authority.

(2)   

Information is confidential if each of the following applies—

(a)   

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

purposes of this Part;

(b)   

it relates to an identified or identifiable individual;

10

(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

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 comply with any provision of

15

this Part;

(c)   

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

the Ombudsman 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).

20

(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.

25

93      

Interpretation of Part 3

In this Part—

the “Commission” means the Judicial Appointments Commission;

“Head of Division” means any of these—

(a)   

the Master of the Rolls;

30

(b)   

the President of the Family Division;

(c)   

the Chancellor of the High Court;

(d)   

the President of the Queen’s Bench Division;

“high judicial office” has the meaning given by section 48;

“lay member” of the Commission has the meaning given by paragraph 3

35

of Schedule 10;

the “Ombudsman” means the Judicial Appointments and Conduct

Ombudsman;

“prescribed” means prescribed by regulations under section 85 or by rules

under section 87.

40

 

 

Constitutional Reform Bill [HL]
Part 5 — General

35

 

Part 4

Other provisions relating to the judiciary

94      

Parliamentary disqualification

(1)   

In Part 1 of Schedule 1 to the House of Commons Disqualification Act 1975

(c. 24) (judicial offices disqualifying for membership) at the beginning insert—

5

           

“Judge of the Supreme Court.

           

Member of the supplementary panel under section 30 of the

Constitutional Reform Act 2004.”

(2)   

A member of the House of Lords is, while he holds any of the judicial offices

specified in Part 1 of Schedule 1 to the House of Commons Disqualification Act

10

1975, disqualified for sitting or voting in—

(a)   

the House of Lords,

(b)   

a committee of that House, or

(c)   

a joint committee of both Houses.

(3)   

A member of the House of Lords who is disqualified under subsection (2) is not

15

for that reason disqualified for receiving a writ of summons to attend that

House, but any such writ is subject to that subsection.

95      

Judicial functions of the Lord President of the Council

(1)   

Schedule 13 contains amendments relating to the judicial functions of the Lord

President of the Council.

20

(2)   

The amendment made by paragraph 2 of that Schedule also relates to the

keeper and commissioners of the great seal.

Part 5

General

96      

Functions of the Minister not to be transferred by order

25

Section 1 of the Ministers of the Crown Act 1975 (c. 26) (powers to transfer

functions between Ministers of the Crown) does not apply to functions

conferred on the Minister by any provision of this Act (including any

amendment made by this Act to another enactment).

97      

Interpretation: the Minister

30

In this Act “the Minister” means the Secretary of State for Constitutional

Affairs.

98      

Supplementary provision etc

(1)   

The Minister may by order make—

(a)   

any supplementary, incidental or consequential provision, and

35

(b)   

any transitory, transitional or saving provision,

 

 

Constitutional Reform Bill [HL]
Part 5 — General

36

 

   

which he considers necessary or expedient for the purposes of, in consequence

of, or for giving full effect to, any provision of this Act.

(2)   

An order under this section may in particular—

(a)   

provide for any provision of this Act which comes into force before

another such provision has come into force to have effect, until that

5

other provision has come into force, with such modifications as are

specified in the order;

(b)   

amend or repeal any of the following—

(i)   

an enactment other than one contained in an Act passed in a

Session after that in which this Act is passed;

10

(ii)   

subordinate legislation other than subordinate legislation made

under an Act passed in a Session after that in which this Act is

passed;

(iii)   

any other instrument or document, including a prerogative

instrument.

15

(3)   

The amendments that may be made by virtue of subsection (2)(b) are in

addition to those made by or under any other provision of this Act.

(4)   

In this section—

   

“enactment” has the same meaning as in the Interpretation Act 1978 (c. 30)

and also includes a local, personal or private Act;

20

   

“prerogative instrument” means an Order in Council, warrant, charter or

other instrument made under the prerogative;

   

“subordinate legislation” has the same meaning as in the Interpretation

Act 1978.

99      

Orders and regulations

25

(1)   

Any power of the Minister to make an order or regulations under this Act is

exercisable by statutory instrument.

(2)   

A statutory instrument containing such an order or regulations is subject to

annulment in pursuance of a resolution of either House of Parliament; but that

is subject to the following subsections.

30

(3)   

A statutory instrument containing an order or regulations under any of the

following provisions may not be made unless a draft of the instrument has

been laid before and approved by a resolution of each House of Parliament.

(4)   

Those provisions are—

(a)   

section 21;

35

(b)   

section 51;

(c)   

paragraph 7 of Schedule 10.

(5)   

A statutory instrument containing an order under section 65(3)(a) or (b) which

amends Part 1 of Schedule 12 may not be made unless a draft of the instrument

has been laid before and approved by a resolution of each House of Parliament.

40

(6)   

Subsection (2) does not apply to an order under section 103.

100     

Minor and consequential amendments

Schedule 14 (minor and consequential amendments) has effect.

 

 

 
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