Commentary on Sections Schedule 13: Judicial appointments Part 3: Judicial Appointments Commission
345.Part 3 makes changes to the number of members of, and composition of, the JAC by amending Schedule 12 to the CRA. In particular it removes some of the detailed provisions of that Schedule and introduces new regulation-making powers.
346.Paragraph 17 amends Schedule 12 to the CRA to enable the Lord Chancellor, with the agreement of the Lord Chief Justice, to determine the number of Commissioners of the JAC through regulations. Paragraph 1 of Schedule 12 currently requires that the JAC consist of a chairman and 14 other Commissioners.
347.Paragraph 18 repeals paragraphs 2(2) to (5) and 4 to 6 of Schedule 12 to the CRA which provide for the composition of the JAC. Currently the JAC must consist of five judicial members, two professional members, five lay members, one member holding an office listed in Part 3 of Schedule 14 to the CRA (which lists members of tribunals and other similar office holders appointed by the Lord Chancellor) or an office listed in paragraph 2(2A) of Schedule 12 to the CRA, and one lay justice member.
348.Paragraph 19 inserts new paragraphs 3A to 3C into Schedule 12 to the CRA. New paragraph 3A provides that the number of Commissioners who are judicial office holders must be less than the number of non-judicial office holders. New paragraph 3B enables the Lord Chancellor to make provision about the composition of the JAC in regulations agreed with the Lord Chief Justice. These regulations will make provision for the categories of different members of the JAC, but the Lord Chancellor must exercise his or her power so that the JAC includes judicial office holders, employed or practising lawyers and lay members. The regulations may include provisions about the number of Commissioners of any specified category (for example, the number of lay members) and may make provision about the eligibility for appointment as a Commissioner or chairman. New paragraph 3C enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to make regulations defining the terms:
	“lay member” for the purposes of Part 4 of Schedule 12 to the CRA; and
	“holder of judicial office” for the purposes of the exercise of the regulation-making powers in paragraph 3A (number of Commissioners), paragraph 3B(2)(a) (composition of Commission), paragraph 11 (vice-chairman) and also paragraph 20(5) (committees of the Commission must include at least one judicial member if exercising the function of selection) of Schedule 12 to the CRA.
349.Paragraph 20 substitutes paragraphs 7 to 10 of Schedule 12 to the CRA which deal with matters relating to the selection of Commissioners with new paragraphs 6A and 6B which provide that the Lord Chancellor may make regulations, with the agreement of the Lord Chief Justice, to make provision for or in connection with the selection or nomination of Commissioners. New paragraph 6A(2) provides details of the matters that may be addressed in such regulations, including provision that selection or nomination is to be by a person, or body, specified in or appointed under the regulations; the matters which the selecting body or person is to, or is not to, have regard to; that the selecting body or person can determine its own selection procedure for the purpose of appointing a Commissioner; and requiring that there is a Commissioner who has special knowledge of a particular geographical area or of a particular matter. However, it is also specified in new paragraph 6B that the power to make regulations should be exercised with a view to ensuring that as far as practicable at least one of the lay Commissioners has special knowledge of Wales. The regulations may also make provision for payment to selectors of remuneration, fees and expenses incurred while carrying out their duties.
350.Paragraph 21 amends paragraph 11 of Schedule 12 to the CRA which provides for the vice-chairman of the JAC. As now, the vice-chairman is to be the most senior of the judicial members of the Commission. However, the judicial member who ranks as the most senior will now be determined in accordance with regulations made by the Lord Chancellor with the agreement of the Lord Chief Justice (sub-paragraph (3)). Sub-paragraph (4) amends paragraph 11(3) of Schedule 12 to the CRA which lists those functions of the chairman of the JAC which the vice-chairman may not exercise in the absence of the chairman (on the grounds that, in the absence of the chairman, such functions should not be exercised by a judicial member of the JAC). The functions in question are sitting on the panel for selecting: judges of the UK Supreme Court; the Lord Chief Justice; a Head of Division; the Senior President of Tribunals; or a Lord Justice of Appeal.
351.Paragraph 22 replaces paragraph 13 of Schedule 12 to the CRA which deals with the maximum term of office for a Commissioner with a new paragraph 13 providing a regulation-making power for the Lord Chancellor, in agreement with the Lord Chief Justice, to determine the period for which a Commissioner may hold office. New paragraph 13(2) also sets out what may be included in any such regulations, including the number of times a person can be appointed, the length of appointment and the total period for which they may hold office as a Commissioner. Currently a Commissioner may serve a maximum of two terms of up to five years apiece.
352.Paragraph 23 replaces sub-paragraphs (1) and (2) of paragraph 14 of Schedule 12 to the CRA which deal with circumstances where persons cease to be a Commissioner or chairman on the basis that they are no longer eligible for appointment as a Commissioner or are no longer eligible to be a Commissioner of a particular description. New paragraph 14(1) of Schedule 12 to the CRA provides a regulation-making power for the Lord Chancellor, exercisable in agreement with the Lord Chief Justice, to provide when a Commissioner ceases to be a Commissioner or when the chairman ceases to be the chairman, and to provide a power to disapply or suspend these provisions in individual cases.
353.By virtue of the amendment made to section 144(5)(e) of the CRA by paragraph 27, all regulations made under Part 1 of Schedule 12 to the CRA, as amended, are subject to the affirmative resolution procedure.
354.Paragraphs 24 to 28 make supplementary and consequential amendments to the CRA and the Tribunals, Courts and Enforcement Act 2007.