Commentary on Sections Acting Judges Section 39: Supplementary panel
153.This section makes provision for the constitution of the Court’s supplementary panel (from which judges can be drawn to supplement the permanent membership of the Court).
154.Subsection (1) provides that there is to be a supplementary panel, and subsections (2) and (3) make provision for its membership on commencement – in effect the same persons, with the exception of the Lord Chancellor and the Lords of Appeal in Ordinary (who will have become the judges of the Supreme Court), who are presently “Lords of Appeal” and able, by virtue of section 5(3) of the Appellate Jurisdiction Act 1876, to sit in proceedings in the Appellate Committee.
155.After commencement, by virtue of subsection (4), a person will become a member of the supplementary panel on ceasing to hold office as a judge of the Supreme Court or as a senior territorial judge, provided approval is given as laid out in sub-paragraphs (a) and (b). There is a special rule if the person in question is the President of the Court (subsection (5)). In this case, by virtue of subsection (6), that person automatically becomes a member of the supplementary panel, unless he or she notifies unwillingness to become a member of the panel, was removed from office for misbehaviour, or retired from office on grounds of incapacity, as set out in paragraphs (a)-(c). Subsection (7), for the avoidance of doubt, makes it clear that ceasing to hold office as a senior territorial judge in order to take up office as a judge of the Supreme Court (and vice versa) does not trigger membership of the supplementary panel.
156.Subsection (8) provides for resignation from the panel (by notice in writing to the President). Subsection (9) provides for retirement from the panel, which is to be at the age of 75 or five years after joining the panel, whichever is earlier. Subsection (10) provides that “senior territorial judge” has the same meaning as in section 38(8), and defines the term “qualifying judicial office” as being the office held by a person prior to becoming a member of the supplementary panel and on account of the holding of which that person was entitled to become a member of the panel.