JUDICIAL APPOINTMENTS (Hansard, 17 October 1990)

§ Mr. Dewar
I beg to move amendment No. 140, in page 70, line 17, leave out 'had a right of audience in both the Court of Session and the High Court of Judiciary' and insert
'been admitted as a solicitor in Scotland'. I cannot find the amendment—[Interruption.] It is obviously an interesting amendment of great importance. [Interruption.] I cannot find it and the House will have to bear with me for a moment. I have found it, and I am confirmed in my opinion that it is an interesting amendment about which the House will no doubt feel strongly. Unfortunately, it is not one that I can debate at any great length in the present circumstances. I shall briefly state my grievance, take it away and nurse it until another occasion.
I accuse the Minister—but not in any unparliamentary sense—of, if not fraud, at least a little sleight of hand. We are dealing with the right of a solicitor to be considered for a place on the bench of the Court of Session. When that was first mooted, I had the impression that any solicitor could be considered, provided that he had met the time qualification of one year in practice. It now appears that, in fact, he must have had right of audience in both the Court of Session and the High Court of Justiciary for the requisite number of years. In other words, he must be one of those strange hybrid animals—a solicitor—advocate. That is unduly restrictive.
Although it will not be common, it is possible that someone such as a senior partner in a big commercial practice, whose views on commercial law, company law and a whole range of issues are widely respected, and who would have the standing that might tempt his brother professionals to ask for his professional opinion, might aspire to that position. I hasten to add that I would never aspire to be, nor ever would be, in such a category. I am not sure that it would be right to say that, if such a person wished to aspire to what is, in many ways, the highest honour in his trade—a place on the bench of the Court of Session—he should have to go through such an odd, and at the moment untried, formula of gaining right of audience in the Court of Session and the High Court of Justiciary.
1259 It may be unlikely that someone will be considered for the High Court bench who has not had direct Court of Session experience. However, the spirit behind the widening of the selection was that solicitors should at least be possible candidates and, in exceptional circumstances, might even be chosen. I understand that it is now possible for a solicitor to go to the shrieval bench and therefore come up that way rather than having had active life in the Court of Session.
I shall not press the amendment, but its intention was to make it clear that a solicitor was a solicitor under the new proposals, considered on his merits, who did not have to go through the hoop or over the hurdle of becoming a solicitor-advocate in the way described in the Bill. I do not expect the Minister to accept the amendment, but as we have a few minutes in hand I hope that he will explain why the Bill will rule out a large number of solicitors from consideration—many of whom, I suspect, are the most respected members of the profession, whom many of us might think to be the most appropriate for consideration.

§ Lord James Douglas-Hamilton
Eligibility of criteria for appointment as a Court of Session judge was discussed in the Secretary of State's consultation paper issued in March 1989. As a result, it was suggested that the application of that principle to situations where solicitors had rights of audience in supreme courts would require the introduction of changes in statute. It was suggested that, if they had rights of audience for five years, they should be eligible. That was widely welcomed by those consulted, including the representative bodies concerned.
The hon. Member for Glasgow, Garscadden (Mr. Dewar) has proposed a major amendment, and in considering it we do not have the benefit of the views of all the different groups and organisations that have an interest in judicial appointments. The response to the consultations last year on behalf of my right hon. and learned Friend the Secretary of State did not suggest that his proposals relating to the eligibility of criteria for judicial appointments were over-restrictive. In fact, the Bill ensures that in future all lawyers, whether advocates or solicitors, who have served as sheriffs principal or sheriffs for five years or more, should be eligible for appointment as a senator of the Court of Justice.
The amendment not only has technical deficiencies, but more importantly it would serve to weaken the eligibility criteria for the most senior judicial appointments in Scotland. Therefore, reluctantly, I must say that I cannot accept it.

§ Mr. Dewar
The Minister is always a man of charity and I am grateful for the word "reluctantly" in his last sentence. I shall have to be content with that.
I hope that, as the new arrangements unfold—I concede that that will be over a number of years—the restrictions about which I have complained will be reassessed and, perhaps, a more generous and unreluctant view taken of my case.
I beg to ask leave to withdraw the amendment.