How senior Judges are selected under the Constitutional Reform Act (CRA) 2005

The Constitutional Reform Act (CRA) 2005 sets out the different processes that must be followed for appointments above High Court level. 

Supreme Court
The procedure for the selection of members of the Supreme Court is set out in sections 23-31 of the CRA. In summary, when a vacancy arises the Lord Chancellor convenes a selection commission, comprised as set out in Schedule 8 to the CRA. One member is recommended to the Lord Chancellor by the JAC, but this member  does not chair the selection commission.

This selection commission decides which process to apply and when that process has been completed, reports its selection to the Lord Chancellor. The Lord Chancellor then undertakes further consultation (under s28(5) of the CRA) and can either notify the selection to the Prime Minister, reject it, or ask the commission to reconsider.

In 2007 the then Lord Chancellor (Lord Falconer) announced the immediate adoption of the selection process set out in the CRA, on a voluntary basis, for appointments to the Appellate Committee of the House of Lords made before the creation of the Supreme Court in October 2009.

Lord Chief Justice and Heads of Division
Sections 67-75 and section 96 of the CRA set out the processes to be followed for appointments to the office of Lord Chief Justice of England and Wales and Heads of Division.

In summary, when a vacancy arises the Lord Chancellor must consult the Lord Chief Justice before making a request to the Commission to convene a panel (as a committee of the JAC) to make a selection.

The selection panel comprises the President of the Supreme Court (the new title of the Senior Lord of Appeal in Ordinary) or his nominee as Chair, the Lord Chief Justice or his nominee, the Chairman of the JAC or their nominee and a lay member of the JAC. The Chairman of the panel has a casting vote in the event of a tie.

The panel determines the process it will follow, makes a selection, and reports to the Lord Chancellor, who can then accept the selection, reject it, or require the panel to reconsider. If practical the panel must consult the current holder of the office for which a selection is being made.

Court of Appeal
Sections 76-84 of the CRA set out the process to be followed for the appointment of Lords Justices of Appeal.

In summary, when a vacancy arises the Lord Chancellor must consult the Lord Chief Justice before making a request to the Commission to convene a panel (as a committee of the JAC) to make a selection.

The Chairman of the selection panel is the Lord Chief Justice or his nominee (who must be a Head of Division or a Lord Justice of Appeal). The members are a Head of Division or Lord Justice of Appeal designated by the Lord Chief Justice, the Chairman of the JAC or their nominee, and a lay member of the JAC. The Chairman of the panel has a casting vote in the event of a tie.

The panel determines the process it will follow, makes a selection and reports to the Lord Chancellor, who can then either accept the selection, reject it, or require the panel to reconsider.

A joint note on the Court of Appeal selection process has been agreed by the JAC and the Judicial Executive Board. This sets out some approaches and principles for selection panels to consider.  The note can be downloaded from the right hand side of this page.