JUDICIAL APPOINTMENTS (Hansard, 16 October 1990)

§ Lord James Douglas-Hamilton
I beg to move amendment No. 54, in page 39, line 21, leave out 'and the High Court of Justiciary'.

Mr. Deputy Speaker
With this, it will be convenient to consider Government amendments Nos. 55 and 70 to 77.

§ Lord James Douglas-Hamilton
There has been considerable support for the principle underlying the new provisions contained in paragraph 4(2)(b) of schedule 4 relating to the filling of vacancies in the Inner House of the Court of Session. Under existing provisions, when a vacancy arises in a division of the Inner House, the most senior lord ordinary is automatically appointed. In many circumstances, it may well be that, not least by virtue of his experience, the most senior lord ordinary is indeed the best-fitted judge to fill the vacancy, but, equally, there is no reason to suppose that that will necessarily be true on each and every occasion.
The Buggins' turn principle, if I may so describe it, may have worked well enough in the past, but it hardly seems appropriate in modern circumstances. In recent years, there has been a very substantial increase in the work loads of the Supreme Courts, a significant increase in the number of judges and an increased use of extra divisions in the Inner House. Until 1988, judges of the Inner and Outer Houses received identical salaries but in that year, to 1126 reflect current circumstances, the Top Salaries Review Body recommended, and the Government accepted, that a salary differential should be introduced.
To reflect those changes, provision has been made in the Bill for vacancies in the Inner House to be filled by the Lord President and Lord Justice Clerk in consultation, as appropriate, with the other judges. In our deliberations in Committee on these new provisions, it was suggested that it would be appropriate for there to be statutory provision for the Secretary of State also to be involved in these appointments. My hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) was keen on that amendment. The Secretary of State is, of course, involved in other judicial appointments to the Supreme and Sheriff Courts, and with regard to appointments to the Inner House it would seem to be appropriate for there to be some measure of accountability to Parliament.
On that basis, the Government have tabled the amendment, which provides that the consent of the Secretary of State will be required for appointments to the Inner house. The Lord President and the Lord Justice Clerk have been consulted about the amendment and have expressed themselves content with it, for their interests. The amendment meets the concern expressed in Committee, and I commend it to the House.
The purpose of amendments Nos. 54, 55, and 71 to 77 is to put beyond doubt the jurisdiction of temporary judges appointed under the provisions of the Bill. It has been the intention since the outset that judges, whether permanent or temporary, appointed under the new provisions should, like the existing senators, be able to sit in the Court of Session and the High Court, and the amendments are designed to ensure that that will be so.

§ Mrs. Fyfe
Will political involvement mean that henceforth the Minister might take the opportunity to monitor the appointment of women judges, whether they be temporary or permanent, Inner or Outer or superior or inferior?

§ Lord James Douglas-Hamilton
The principle is that they are appointed on merit.

§ Sir Nicholas Fairbairn (Perth and Kinross)
I thank the Minister for making these changes, but during the recess I have had a better idea than the one that I suggested to him, and I should like to put it on record in Hansard.
The Bill provides that the Lord President and the Lord Justice Clerk shall consult such other judges as they think appropriate. It seems proper that they should consult all the judges. One of the greatest Scottish traditions, for judges, peers and other matters, is that those who are part of the fraternity should judge who is appropriate to act on their behalf. The Senate of the College of Justice is a collegiate court. Until the life peerage was introduced, which some of us greatly regret, the peers of Scotland elected from their number those whom they thought worthy to be in the House of Lords, and peers created before 1707—I am not sure whether the Dukes of Hamilton were—are entitled to nominate which of their children shall succeed them. I hope that the Minister appreciates that terrible duty. The concept of democratic selection is an important matter.
With the greatest respect to my hon. Friend the Minister, I must say that he is not being quite truthful with the House when he says that the purpose of the amendment, which seeks to leave out the words: 1127 and the High Court of Justiciary", is to put beyond doubt that the people named are allowed to appear. No judge is appointed as a judge in the High Court of Justiciary. He is appointed as a Senator of the College of Justice, and he takes the oath in the Court of Session and not in the High Court of Justiciary. He is entitled to appear in the High Court of Justiciary, although the amendment does not say that. It says merely that, for the purposes, he is a Lord Commissioner of the Senate. I say with respect through my hon. Friend to his civil servants that they have realised that they got it wrong historically and they have corrected it. However, when we correct a mistake, let us not pretend that we are trying to put matters beyond doubt.

§ Mr. Menzies Campbell
It seemed a rather curious provision when it was first put forward that promotion, as I suppose that it would be regarded, from the Outer House to the Inner House should be left to the Lord President of the Court of Session and the Lord Justice Clerk who, after all, are the people who occupy the chairs of the two appellate divisions of the court. What the Minister has now told the House that he is prepared to accept represents a proper compromise, not least because those appointed to the office of Senator of the College of Justice are appointed by the monarch, but on the recommendation of the Secretary of State for Scotland.
To introduce the Secretary of State into the procedure by which a judge may be promoted from the Outer House to the Inner House seems entirely consistent with the procedure adopted when judges are appointed in the first place. For that reason, I welcome what the Minister has said. It reflects a proper balance of the interests that we have discussed. The Minister has properly reflected the argument in Committee in what he has told the House that he is willing to accept.