Legalize / United Kingdom / Public General Act

Constitutional Reform Act 2005

Type Public General Act

Publication 2005-03-24

State In force

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — The rule of law

Judicial Appointments and Conduct Ombudsman

1

This Act does not adversely affect—

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor's existing constitutional role in relation to that principle.

Part 2 — Arrangements to modify the office of Lord Chancellor

Qualifications for office of Lord Chancellor

Lord Chancellor to be qualified by experience

2

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

(3) In this section “qualifying practitioner” means any of these—

(a) a person who has a Senior Courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary;

Continued judicial independence

Guarantee of continued judicial independence

3

(1) The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.

(2) Subsection (1) does not impose any duty which it would be within the legislative competence of the Scottish Parliament to impose.

(3) A person is not subject to the duty imposed by subsection (1) if he is subject to the duty imposed by section 1(1) of the Justice (Northern Ireland) Act 2002 (c. 26).

(4) The following particular duties are imposed for the purpose of upholding that independence.

(5) The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.

(6) The Lord Chancellor must have regard to—

(a) the need to defend that independence;

(b) the need for the judiciary to have the support necessary to enable them to exercise their functions;

(c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.

(7) In this section “the judiciary” includes the judiciary of any of the following—

(a) the Supreme Court;

(b) any other court established under the law of any part of the United Kingdom;

(7A) In this section “the judiciary” also includes every person who—

(a) holds an office listed in Schedule 14 or holds an office listed in subsection (7B), and

(b) but for this subsection would not be a member of the judiciary for the purposes of this section.

(7B) The offices are those of—

(a) Senior President of Tribunals;

(b) President of Employment Tribunals (Scotland);

(d) member of a panel of Employment Judges (Scotland);

(e) member of a panel of members of employment tribunals that is not a panel of Employment Judges;

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In subsection (7) “international court” means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—

(a) an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or

(b) a resolution of the Security Council or General Assembly of the United Nations.

Guarantee of continued judicial independence: Northern Ireland

4

(1) For section 1 of the Justice (Northern Ireland) Act 2002 (c. 26) (guarantee of continued judicial independence) substitute—

(1) (1) The following persons must uphold the continued independence of the judiciary— (a) the First Minister, (b) the deputy First Minister, (c) Northern Ireland Ministers, and (d) all with responsibility for matters relating to the judiciary or otherwise to the administration of justice, where that responsibility is to be discharged only in or as regards Northern Ireland. (2) The following particular duty is imposed for the purpose of upholding that independence. (3) The First Minister, the deputy First Minister and Northern Ireland Ministers must not seek to influence particular judicial decisions through any special access to the judiciary. (4) In this section “the judiciary” includes the judiciary of any of the following— (a) the Supreme Court; (b) any other court established under the law of any part of the United Kingdom; (c) any international court. (5) In subsection (4) “international court” means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of— (a) an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or (b) a resolution of the Security Council or General Assembly of the United Nations.

(2) In section 91(2) of that Act (extent: provisions not restricted to Northern Ireland), before paragraph (a) insert—

(za) section 1,

Representations by senior judges

Representations to Parliament

5

(A1) The President of the Supreme Court may lay before Parliament written representations on matters that appear to the President to be matters of importance relating to the Supreme Court or to the jurisdiction it exercises.

(1) The chief justice of any part of the United Kingdom may lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice, in that part of the United Kingdom.

(2) In relation to Scotland the matters mentioned in subsections (A1) and (1) do not include matters within the legislative competence of the Scottish Parliament, unless they are matters to which a Bill for an Act of Parliament relates.

(3) In relation to Northern Ireland the matters mentioned in subsections (A1) and (1) do not include transferred matters within the legislative competence of the Northern Ireland Assembly, unless they are matters to which a Bill for an Act of Parliament relates.

(4) In subsection (3) the reference to transferred matters has the meaning given by section 4(1) of the Northern Ireland Act 1998 (c. 47).

(5) In this section “chief justice” means—

(a) in relation to England and Wales or Northern Ireland, the Lord Chief Justice of that part of the United Kingdom;

(b) in relation to Scotland, the Lord President of the Court of Session.

Representations to the Northern Ireland Assembly

6

(1) The Lord Chief Justice of Northern Ireland may lay before the Northern Ireland Assembly written representations on matters within subsection (2) that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice, in Northern Ireland.

(2) The matters are—

(a) excepted or reserved matters to which a Bill for an Act of the Northern Ireland Assembly relates;

(b) transferred matters within the legislative competence of the Northern Ireland Assembly, unless they are matters to which a Bill for an Act of Parliament relates.

(3) In subsection (2) references to excepted, reserved and transferred matters have the meaning given by section 4(1) of the Northern Ireland Act 1998.

Judiciary and courts in England and Wales

President of the Courts of England and Wales

7

(1) The Lord Chief Justice holds the office of President of the Courts of England and Wales and is Head of the Judiciary of England and Wales.

(2) As President of the Courts of England and Wales he is responsible—

(a) for representing the views of the judiciary of England and Wales to Parliament, to the Lord Chancellor and to Ministers of the Crown generally;

(b) for the maintenance of appropriate arrangements for the welfare, training and guidance of the judiciary of England and Wales within the resources made available by the Lord Chancellor;

(c) for the maintenance of appropriate arrangements for the deployment of the judiciary of England and Wales and the allocation of work within courts.

(3) The President of the Courts of England and Wales is president of the courts listed in subsection (4) and is entitled to sit in any of those courts.

(4) The courts are—

the Court of Appeal

the High Court

the Crown Court

the family court

the county court

the magistrates' courts.

(5) In section 1 of the Supreme Court Act 1981 (c. 54), subsection (2)(Lord Chancellor to be president of the Supreme Court of England and Wales) ceases to have effect.

Head and Deputy Head of Criminal Justice

8

(1) There is to be a Head of Criminal Justice.

(2) The Head of Criminal Justice is—

(a) the Lord Chief Justice, or

(b) if the Lord Chief Justice appoints another person, that person.

(3) The Lord Chief Justice may appoint a person to be Deputy Head of Criminal Justice.

(4) The Lord Chief Justice must not appoint a person under subsection (2)(b) or (3) unless these conditions are met—

(a) the Lord Chief Justice has consulted the Lord Chancellor;

(b) the person to be appointed is a judge of the Court of Appeal.

(5) A person appointed under subsection (2)(b) or (3) holds the office to which he is appointed in accordance with the terms of his appointment.

Head and Deputy Head of Family Justice

9

(1) The President of the Family Division is Head of Family Justice.

(2) The Lord Chief Justice may appoint a person to be Deputy Head of Family Justice.

(3) The Lord Chief Justice must not appoint a person under subsection (2) unless these conditions are met—

(a) the Lord Chief Justice has consulted the Lord Chancellor;

(b) the person to be appointed is an ordinary judge of the Court of Appeal.

(4) A person appointed as Deputy Head of Family Justice holds that office in accordance with the terms of his appointment.

Judiciary and courts in Northern Ireland

The Lord Chancellor and Northern Ireland courts

10

In the Judicature (Northern Ireland) Act 1978 (c. 23) after section 68 insert—

(68A) (1) The Lord Chancellor is under a duty to ensure that there is an efficient and effective system to support the carrying on of the business of— (a) the Supreme Court, (b) county courts, (c) magistrates' courts, and (d) coroners' courts, and that appropriate services are provided for those courts. (2) The Lord Chancellor must, within 18 months of the coming into force of this section, and afterwards annually, prepare and lay before both Houses of Parliament a report as to the way in which he has discharged his duty under subsection (1).

Lord Chief Justice of Northern Ireland

11

For subsection (1) of section 12 of the Justice (Northern Ireland) Act 2002 (c. 26) (role of the Lord Chief Justice) substitute—

(1A) The Lord Chief Justice holds the office of President of the Courts of Northern Ireland and is Head of the Judiciary of Northern Ireland. (1B) As President of the Courts of Northern Ireland he is responsible— (a) for representing the views of the judiciary of Northern Ireland to Parliament, the Lord Chancellor and Ministers of the Crown generally; (b) for 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; (c) for the maintenance of appropriate arrangements for the welfare, training and guidance of the judiciary of Northern Ireland within the resources made available by the Lord Chancellor; (d) for the maintenance of appropriate arrangements for the deployment of the judiciary of Northern Ireland and the allocation of work within courts. (1C) The President of the Courts of Northern Ireland is president of the courts listed in subsection (1D) and is entitled to sit in any of those courts. (1D) The courts are— - the Court of Appeal - the High Court - the Crown Court - the county courts - the magistrates' courts.

Other provisions about the judiciary and courts

Powers to make rules

12

(1) Part 1 of Schedule 1 sets out a process for the exercise of rule-making powers.

(2) Part 2 of the Schedule contains amendments of Acts that contain rule-making powers.

(3) Those amendments—

(a) provide for those powers to be exercised in accordance with the process set out in Part 1 of the Schedule, and

(b) make consequential provision.

Powers to give directions

13

(1) Part 1 of Schedule 2 sets out a process for the exercise of powers to give directions.

(2) Part 2 of the Schedule contains amendments of Acts that contain powers to give directions.

(3) Those amendments—

(a) provide for those powers to be exercised in accordance with the process set out in Part 1 of the Schedule, and

(b) make consequential provision.

Transfer of appointment functions to Her Majesty

14

Schedule 3 provides for—

(a) Her Majesty instead of the Lord Chancellor to make appointments to certain offices, and

(b) the modification of enactments relating to those offices.

Other functions of the Lord Chancellor and organisation of the courts

15

(1) Schedule 4 provides for—

(a) the transfer of functions to or from the Lord Chancellor,

(b) the modification of other functions of the Lord Chancellor,

(d) the modification of enactments relating to the organisation of the courts.

(2) Schedule 5 makes similar provision about functions under legislation relating to Northern Ireland.

Functions of the Lord Chief Justice during vacancy or incapacity

16

(1) This section applies during any period when—

(a) the office of Lord Chief Justice is vacant, or

(b) the Lord Chief Justice is incapacitated.

(2) During such a period—

(a) any function of the Lord Chief Justice may be exercised by the senior Head of Division;

(b) anything which falls to be done in relation to the Lord Chief Justice may be done in relation to the senior Head of Division.

(3) The senior Head of Division is—

(a) the Master of the Rolls, or

(b) the President of the Queen's Bench Division, if the office in paragraph (a) is vacant, or

(d) the Chancellor of the High Court, if the offices in paragraphs (a), (b) and (c) are vacant.

(4) For the purposes of this section—

(a) the Lord Chief Justice is to be regarded as incapacitated only if at least three of the Heads of Division declare in writing that they are satisfied that he is incapacitated;

(b) in such a case, the Lord Chief Justice is to be regarded as incapacitated until at least three of the Heads of Division declare in writing that they are satisfied that he is no longer incapacitated.

(5) In this section—

(a) “Lord Chief Justice” means the Lord Chief Justice of England and Wales;

(b) “incapacitated”, in relation to the Lord Chief Justice, means unable to exercise the functions of that office;

Lord Chancellor's oath

Lord Chancellor’s oath

17

(1) In the Promissory Oaths Act 1868 (c. 72) after section 6 insert—

(6A) (1) The oath set out in subsection (2) shall be tendered to and taken by the Lord Chancellor, after and in the same manner as the official oath, as soon as may be after his acceptance of office. (2) The oath is— “I, , do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.”.

(2) The section inserted by subsection (1) does not apply in the case of acceptance of office before the coming into force of this section.

Speakership of the House of Lords

18

Schedule 6 contains amendments relating to the Speakership of the House of Lords.

Functions subject to transfer, modification or abolition

Transfer, modification or abolition of functions by order

19

(1) The Lord Chancellor may by order make provision for any of these purposes—

(a) to transfer an existing function of the Lord Chancellor to another person;

(b) to direct that an existing function of the Lord Chancellor is to be exercisable concurrently with another person;

(c) to direct that an existing function of the Lord Chancellor exercisable concurrently with another person is to cease to be exercisable by the Lord Chancellor;

(d) to modify an existing function of the Lord Chancellor;

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