Clause 11 (Hansard, 3 April 1973)

§ Mr. S. C. Silkin

I beg to move Amendment No. 11, in page 10, line 26, leave out 'but is for the time being incapacitated from resigning it'. I make no apology for moving again an amendment that I moved in Committee. At the end of the debate on that amendment I said that I hoped the Government would keep an open mind on the matter and look at it again before Report. Naturally I hope that that has been done and that in due course the result will be manifested through the mouth of the Solicitor-General.

Clause 11 introduces a new concept into our procedure for senior judges in that it enables the Lord Chancellor, subject to various qualifications, to remove a High Court judge if that judge is disabled by permanent infirmity from the performance of the duties of his office. But before doing so he has to be satisfied that that is so by a medical certificate and in addition by consulting various senior judges who are in a position to know whether the infirmity is likely to be a disabling and permanent one.

In a major constitutional matter which I concede this to be, all that obviously is right. The clause provides not merely that the judge should be disabled by permanent infirmity from performing his duties but also, as a second test, that the judge should for the time being be incapacitated from resigning his office. 392 There are two conditions precedent before the Lord Chancellor can exercise this power.

I invite the House to look at the position where, unhappily, a judge is disabled by permanent infirmity from the performance of the duties of his office, where this is certified to the Lord Chancellor by the necessary medical certificate and where he has satisfied himself by consulting the senior judges whom he is required to consult under the terms of the clause.

11.45 p.m.

Three possibilities exist. The first is that a judge who is so disabled may voluntarily resign, realising that he cannot carry on his duties. No doubt that happens frequently. If that happens the problem disappears. The second possibility is that a judge is unable to record his resignation because his incapacity prevents him from doing so. If that is the position, without the words which I seek to leave out the Lord Chancellor would be enabled by the clause to remove the judge. He would be able to remove him if he was disabled by permanent infirmity from performing the duties of his office. It adds nothing in those circumstances that in addition he is incapacitated from resigning.

The third possibility is that, being disabled by permanent infirmity from performing the duties of his office, a judge, not recognising that that is the position, declines to resign.

That is the difficult case. That is the one case in which the Lord Chancellor would wish and need to have the power to remove a judge, and that is the case when under the clause he is unable to do so.

I appreciate, as the Solicitor-General said in Committee, that constitutional issues are involved. Of course, we wish to avoid trespassing upon the independence of the judiciary any more than is necessary. Nevertheless it is an odd way in which to comply with that correct principle when that is the one case when the clause does not enable the Lord Chancellor to act. The only means by which he could require a judge to resign, or by which a judge could be required to do so is by the procedure which happily is so rare and which I hope will be even more rare—namely, the removal of the judge by an address of both Houses. It 393 is the one difficult case that may arise and arises when, unhappily, people are disabled by permanent infirmity from performing their duties and do not see why they should resign.

The Solicitor-General said in Comhmittee that he fully understood the logic of the amendment but on constitutional grounds he came down against it. Because it is a logical necessity, if such a clause is to be introduced at all the amendment should be accepted. As to constitutional considerations, it is the clause and not the particular wording that is the important innovation, and by the amendment the Opposition are giving effect to what was manifestly the Government's intention in drafting the clause.

I hope that the Solicitor-General, having had time to reflect upon the matter, will appreciate the reasons for the amendment. I hope he will accept that they are not only logical, as he did, but desirable and that he will accordingly accept the amendment.