APPOINTMENT AND REMOVAL OF JUDGES

HC Deb 19 May 1998 vol 312 cc777-85

Mr. McLeish

I beg to move amendment No. 50, in page 41, line 3, at end insert— `( ) Before making such a nomination the First Minister shall consult the Lord President and the Lord Justice Clerk (unless, in either case, the office is vacant).'.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following: Government amendments Nos. 51 to 55.

Amendment No. 74, in page 41, line 14, leave out `two-thirds' and insert 'three-quarters'.

Government amendments Nos. 56 and 57.

Mr. McLeish

The amendments to clause 89, and the linked amendment to schedule 7, concern the Scottish Land Court Act 1993, and have been tabled by the Government in response to points made by hon. Members in Committee about provisions relating to the appointment and removal of judges. Amendments Nos. 50 to 52 and No. 57 deal with appointment issues.

Amendment No. 50 will require the First Minister to consult the Lord President of the Court of Session and the Lord Justice Clerk, where available, before making a nomination to the Prime Minister for an appointment to either of those senior posts when a vacancy arises.

Amendment No. 51 similarly requires that the First Minister should consult the Lord President before making a recommendation to the Queen for the appointment of any other judge of the Court of Session or any sheriff principal or sheriff. Amendment No. 52 will oblige the First Minister to comply with any requirement relating to appointment matters which may be imposed by virtue of an enactment, including an Act of the Scottish Parliament. The amendment acknowledges that the Scottish Parliament would be competent, should it so wish, to impose other requirements on the First Minister, such as consideration of judicial nominations put forward by the judicial appointments committee. I should, however, make it clear that the First Minister would retain ultimate responsibility for making nominations or recommendations and for consulting the Lord President and the Lord Justice Clerk, where appropriate.

Amendment No. 57 makes it clear that the First Minister will take over the responsibilities of the Secretary of State for recommending to Her Majesty the appointment of any person as a member of the Scottish Land Court. It requires the First Minister to consult the Lord President of the Court of Session before recommending anyone for appointment to the post of chairman of the Scottish Land Court.

Mr. Ancram

I have a general inquiry. Have the Minister or his right hon. Friend had discussions with the Scottish judiciary about these proposals; and, if so, is it generally happy with them?

Mr. McLeish

I can say yes to that valid question.

Mr. Wallace

I have another general inquiry; if the Minister cannot answer straight away, perhaps he will write to me. Given that provision has been made for the chairman of the Land Court, what is the position regarding the appointment of Lords of Appeal in Ordinary from the Scottish Bench?

Mr. McLeish

I shall be moving on to that point later.

Amendments Nos. 53 to 56 deal with provisions on removal from office that are contained in clause 89. Amendment No. 53 adds the office of chairman of the Scottish Land Court to those posts to which the provisions on removal of judges will apply. That simply reflects the chairman's equivalent status to that of a judge of the Court of Session.

Amendment No. 54 provides that the Scottish Parliament will be asked to vote on a motion for removal of a judge in which the First Minister will be required to specify the ground of unfitness for office which he considers to merit that exceptional action, which touches on the point made by my hon. Friend the Member for Linlithgow (Mr. Dalyell).

Amendment No. 55 is a minor technical amendment which substitutes the word "motion" for "resolution", reflecting the wording of amendment No. 54.

Finally, amendment No. 56 will require the First Minister, before making a motion for removal, to be satisfied that the judge in question is unfit for office by reason of inability, neglect of duty or misbehaviour.

Mr. Dalyell

Perhaps this is little more than a drafting point, but it would be a calamity if it ever arose. I gather that the Lords of Appeal in Ordinary are not covered. Is that an oversight?

Mr. McLeish

I will clarify that point and convey the clarification to my hon. Friend.

The wording of amendment No. 56 follows closely that of section 12 of the Sheriff Courts (Scotland) Act 1971 which deals with removal of sheriffs and sheriffs principal. The second part of amendment No. 56 places a requirement on the First Minister to consult the Prime Minister before bringing a motion for removal of the Lord President or Lord Justice Clerk. The provision reflects the important role that the Prime Minister plays in recommending an appointment to those two most senior posts.

I believe that the amendments strike an appropriate balance between the responsibilities of Parliament and the First Minister, and the independence of the judiciary. They provide a statutory safeguard, which the senior judiciary sought, in place of the informal arrangements currently enjoyed, for consultation with them on judicial appointments at the levels of the supreme court and shrieval benches. I hope this will meet with general approval; we have tried to take on board points made from all sides. I commend the amendments to the House.

Mr. Jenkin

We appreciate the efforts that the Minister has made to accommodate concerns expressed in Committee and elsewhere about the arrangements for the appointment and removal of judges. We stress that the real test of the provisions will come in the other place where more experts with judicial experience are available to raise concerns. We welcome the amendments as far as they go, but look forward to hearing what the other place may have to say.

Mr. Menzies Campbell (North-East Fife)

Perhaps I ought to declare an interest as an occasionally practising member of the Faculty of Advocates.

The amendments represent a substantial improvement, and the Government are to be commended for that. It seems right that the sort of difficulties that the Secretary of State and the Lord President and Lord Justice Clerk faced in relation to the case of Sheriff Ewan Stewart ought, as far as possible, to be eliminated by making more precise the grounds on which a motion may be made to seek dismissal of a judge. Those who have studied the report of that case, which went all the way to the House of Lords and was heard by several Lords of Appeal in Ordinary—I shall return to them shortly—will be aware that interpretation of certain provisions was required before a clear indication could be given of the basis on which, in that case, the removal from office of Sheriff Stewart was sought. To that extent, the amendments represent a substantial improvement.

I shall deal with the question of Lords of Appeal in Ordinary. There is always some confusion: a judge sitting in the outer house of the Court of Session is a lord ordinary, whereas a judge who sits as part of the Judicial Committee of the Privy Council is a Lord of Appeal in Ordinary. As I understand it, there is provision for a number of Lords of Appeal in Ordinary, but by convention, two are judges from Scotland, with Scottish experience. I do not believe—I am open to correction—that there is any statutory minimum number of such judges.

The point made by the hon. Member for Linlithgow (Mr. Dalyell) was that the Bill's provisions do not apply to those judges who go from Scotland to become members of the Judicial Committee of the Privy Council. That is entirely appropriate, because the Bill includes a scheme to devolve responsibility for those parts of the judicial system that operate in Scotland. It does not seem incongruous or illogical that the Lords of Appeal in Ordinary should not be subject to the provisions.

Mr. McLeish

Not being a member of the legal profession has its drawbacks, but help is always on hand. With reference to the points made by the hon. and learned Gentleman and also by my hon. Friend the Member for Linlithgow, the Bill contains no provision relating to the appointment of those Lords. They are appointed by the Queen, and that will continue.

6 pm

Mr. Campbell

On that footing, it would have been illogical for any reference to be made to the Lords of Appeal in Ordinary in a Bill the scheme of which is to devolve to a Scottish Parliament those parts of Scottish justice that are conducted in Scotland. In that sense, the Government's position is entirely logical.

I shall take the opportunity to speak to amendment No. 74, which seeks to introduce a majority of three quarters of the legislature for the motion for a removal of a judge to take effect. We discussed the matter to some extent in Committee, and it may help if I explain why raising the threshold from 66.6 to 75 per cent. is justifiable.

First, as has already been intimated in at least one intervention, the removal of a judge is an extremely serious business. By tradition, judges held office ad vitam aut culpam—that is, they kept office for as long as they lived or unless they were guilty of some very considerable indiscipline. The independence of the judiciary is an important part of our constitutional arrangements. Therefore, if we introduce a provision that may encroach on the independence of the judiciary, we must be satisfied that it provides adequate protection.

Secondly, if we have a Parliament elected by proportional representation—the Minister will not be surprised to hear that I heartily approve of that part of the Bill—it is not difficult to envisage circumstances in which the Administration is formed by two parties that achieve 66.6 per cent. of the vote, which means that the Administration would have within their power the right to bring about the dismissal of a judge. That does not provide adequate protection. However, it is difficult to envisage an Administration getting as much as 75 per cent. of the membership of the Scottish Parliament. That provides an additional protection.

There is now a far greater certainty, from the point of view of the Administration, as the grounds of unfitness for office are spelt out in much more detail than previously. Given that higher degree of specification, and as part of the balance necessary in such a matter, it is reasonable to make the hurdle that must be crossed before a judge may be dismissed from office rather higher than the Government propose.

Mr. Jenkin

As a matter of interest, if the Scottish Parliament abused its powers in the way that the hon. and learned Gentleman envisages, would it be appropriate for the Westminster Parliament to intervene?

Mr. Campbell

It would be appropriate in statutory terms, but intervention on such an issue would raise some very difficult questions where the devolving of responsibility for the administration of justice in Scotland was so all-embracing. If there was an intervention of the kind postulated in the question, the consequence would be some degree of political disturbance. It would be much better to avoid such issues by creating a threshold sufficiently high as to require that three quarters of the legislature indicate their assent to the serious matter of the removal of a judge from office through unfitness.

As far as I can remember—the Scottish Office records may go much further back than my memory—Sheriff Ewan Stewart is the only judge to have been removed from office since 1945, and possibly for a considerably longer period than that, which shows how rare such occurrences are. We are endeavouring to find a proper balance between the right of the legislature to ensure that there are proper standards of competence and ability on the Bench, and the traditional independence of the judiciary which, like many other parts of our constitution, is unwritten, but which none the less forms an important part of the checks and balances that are essential to our constitution. For that reason, my hon. Friends and I believe that the amendment is at least worthy of consideration. I hope that the Minister will be able to accept it.

Mr. Dalyell

The last time that I raised the subject of Lords of Appeal in Ordinary was during an Adjournment debate on Lockerbie. I requested that the evidence that the Crown Office purports to have in relation to Lockerbie should at least be seen by the Lords of Appeal in Ordinary. The Minister replied that the evidence could not be shown to "sundry third parties". I am not sure that Lord Hope and Lord Clyde enjoyed being so described. However, on this occasion, in relation to the Lords of Appeal in Ordinary, I am satisfied with the answer and believe that it is logical.

Mr. Edward Garnier (Harborough)

I intervene in the debate with considerable diffidence. Although I am a lawyer, I am very much an English rather than a Scottish lawyer. I hope that those who know more about the subject will forgive me if I wander into error.

Government amendment No. 52 states: The First Minister shall comply with any requirement…imposed by virtue of any enactment. Can the Minister explain what that is supposed to mean?

I fully agree—again, with diffidence—with the hon. and learned Member for North-East Fife (Mr. Campbell) in his description of the role of what I would call Law Lords, to avoid confusion—that is, Lords of Appeal in Ordinary who sit here. They are United Kingdom judges and therefore should be outside the ambit of any Scottish legislation.

Those who sit on the Judicial Committee of the Privy Council are not just United Kingdom judges, as they include the noble and learned Lord Cooke, a former senior judge from New Zealand who sits on the Judicial Committee as a life peer and a peer of the realm. I believe that Northern Ireland judges have also been promoted to the Judicial Committee. We should not think of the House of Lords in its judicial capacity in any other way than in its United Kingdom role. I agree with the hon. and learned Gentleman on that point.

I query the thrust of the Liberal Democrats' amendment on the matter of two thirds or three quarters. With proportional representation, it is likely to be difficult for any one party—although I accept the hon. and learned Gentleman's point about a group of parties—to command even two thirds of the total number of seats in the Scottish Parliament. It will be almost impossible for a coherent group to command three quarters of the seats—although I may be proved wrong on both points.

I agree with the hon. and learned Gentleman that a judge could—I hope that I shall be forgiven for such a colloquialism—get up the nose of the Scottish Parliament or of a large part of it for having done something that the Parliament considers politically unacceptable. I recall some of the decisions made by English judges over the past 10 or so years that offended the trade unions. The judges were interpreting the law of England, as passed by the House, whether we like it or not.

I fear that a Scottish judge, carrying out the law of the United Kingdom Parliament or of the Scottish Parliament, might upset a majority, which goes after him for purely political reasons. I accept the hon. and learned Gentleman's point, but it is a nice judgment. Where the line should be drawn is a matter of debate and opinion, which we may not be able to resolve this evening.

Mr. Menzies Campbell

The hon. and learned Gentleman might like to consider another instance. If it was believed that a particular judge was being unduly lenient in respect of a certain class of criminal cases that appeared before him, it could create an atmosphere—led by a prurient press—in which that judge would come under scrutiny. In addition, a judge who appeared to be more willing than others to grant applications for judicial review—accepting that there had been an abuse of discretion by Ministers—might find himself in similar circumstances.

Mr. Garnier

Those points are perfectly good. We can only hope, as the hon. Member for Linlithgow (Mr. Dalyell) said, that we never have to worry about that. The hon. and learned Member for North-East Fife is correct: one Scottish sheriff in living memory has been removed from his post. I do not think that the equivalent of a High Court judge has ever been removed—although in the not-too-distant past one judge jumped before he was pushed; but let us draw a veil over that.

There appears to be some sort of a muddle. Clause 89 of the Bill as drafted, and as it is proposed it should be amended, grants the First Minister and the Scottish Parliament powers over the removal and appointment of judges, from the highest to the lowest, within the Scottish judicial system. I refer hon. Members to page 77 of the Bill and to head 11 of schedule 5 dealing with judicial remuneration. Unless I have wholly misunderstood the position, judicial remuneration is reserved for the United Kingdom Parliament. If the Scottish Parliament is able to remove judges, why is it not allowed to decide on the level of pay for judges? Does the Minister believe that there is any inconsistency in that position?

Mr. Grieve

I have only one question. I find it difficult to understand amendment No. 56 in so far as it refers to the Lord President and the Lord Justice Clerk. If the appointments continue to be made on the recommendation of the Prime Minister, does it not constitute a reserved matter? In those circumstances, how can a motion by the Scottish Parliament affect the Prime Minister in the discharge of his functions? That matter, if it rests with the Prime Minister, must be the responsibility of this House. I should be grateful if the Minister would answer that question. The amendment does not tally with the original wording of clause 89, which makes it clear that it is a reserved matter.

Mr. McLeish

I shall take the latter point first. There is no confusion about that matter. The essential prerequisite is the role of the Prime Minister in making those recommendations. The points that I have made in relation to amendment No. 56 are very straightforward, and there is no conflict or inconsistency inherent in them. Similarly, the satisfactory way of dealing with the question of judges' remuneration is as the hon. and learned Member for Harborough (Mr. Garnier) describes. It is a question of striking a balance in relation to both issues.

Mr. Grieve

I confess that I still do not understand—it may be a failing on my part. If the Prime Minister may recommend that a judge should be removed from office, should not the House—the Prime Minister will certainly not be answerable to the Scottish Parliament—scrutinise that decision and approve or disapprove of it? I do not see how that can be done on the recommendation of the First Minister through the Scottish Parliament.

Mr. McLeish

Amendment No. 56 places a requirement on the First Minister to consult the Prime Minister before bringing a motion for the removal of the Lord President or the Lord Justice Clerk—it is not a question of wider removals. As I said before, this provision measures the important role of the Prime Minister. The Prime Minister is taking an executive role and it is not an issue for the Westminster Parliament.

Mr. Menzies Campbell

It is an executive appointment.

Mr. McLeish

That is correct.

Mr. Grieve

It may be an executive appointment, but the executive roles of the Prime Minister are subject to the scrutiny of the House. How can the Prime Minister exercise an executive capacity over which the House has no power of scrutiny? We have that power now if we wish to exercise it.

6.15 pm

Mr. McLeish

The point has not been well made in that it is a tradition of the House as part of the devolution settlement. We shall continue with what works. It is absolutely right—this is a matter for the judiciary as well as for us, and there is agreement on it—that the Prime Minister should continue to recommend appointments. The proper process in the amendments reflects much constructive discussion and many suggestions made by the House. The Government see no particular dilemma in that.

The other point concerns amendment No. 52 and the question of enactments. The hon. and learned Member for Harborough (Mr. Garnier) seemed a little confused about that. It provides an opportunity for a judicial appointments committee, for example, to be established—it is nothing more sinister than that. It obliges the First Minister to comply with any requirement relating to appointment matters. That opens up the possibility that the Scottish Parliament could take a decision that will establish a judicial appointments committee within the Parliament to reflect what was said by Liberal Members and also to take cognisance of the fact that the situation surrounding appointments to the judiciary may change in the future. It allows the Parliament that facility.

Mr. Garnier

I am grateful to the Minister for explaining that point. It is now quite clear—although it appeared confusing on the amendment paper. The Minister said a moment ago that the inconsistency between remuneration in section 1, head 11 of schedule 5 and the amendments and main drafting of clause 89 was satisfactory. Will he explain why he thinks that is so?

Mr. McLeish

The Government believe that, given the Government amendments, we now have a balanced package in place. There is consistency between the two different interpretations. As always in these situations, I am happy to reconfirm that and I shall write to the hon. and learned Gentleman about that point. The Government believe that there is no inconsistency. This is a straightforward measure and each part of the Bill is consistent with that objective. We have no difficulty with it.

Amendment No. 74 is similar to the amendment tabled by my hon. Friend the Member for Linlithgow (Mr. Dalyell) in Committee. As I said then, the proportion of two thirds suggested in the clause as it stands already represents a very high threshold required to vote in favour of any resolution—particularly having regard to the fact that it is not just two thirds of those voting, but two thirds of the total number of Members of the Scottish Parliament. In proposing that figure, the Government—and I in particular—have recognised the seriousness of the act of removing one of Her Majesty's judges from his post. That is why we have not proposed a simple majority in the normal way, but instead will require that a significant number of Members of the Scottish Parliament should be satisfied that the Government's actions are justified and appropriate.

I agree with the hon. and learned Member for North-East Fife (Mr. Campbell) that it is a question of balance. The Government believe that we have struck the right balance. It is a serious issue—I hope that my comments reflect that fact—and, on that basis, I ask the hon. and learned Gentleman not to press his amendment.

Amendment agreed to.

Amendments made: No. 51, in page 41, line 4, after `Minister', insert `, after consulting the Lord President,'. No. 52, in page 41, line 8, at end insert— `( ) The First Minister shall comply with any requirement in relation to—

1. (a) a nomination under subsection (2), or
2. (b) a recommendation under subsection (3),

imposed by virtue of any enactment.'. No. 53, in page 41, line 9, after 'Session', insert `and the Chairman of the Scottish Land Court'. No. 54, in page 41, leave out from beginning of line 12 to first 'the' in line 13 and insert— '(a) the Parliament, on a motion made by the First Minister and specifying the particular ground of unfitness, resolves that such a recommendation should be made on that ground, and (b)'. No. 55, in page 41, line 13, leave out 'resolution' and insert 'motion'.

No. 56, in page 41, line 15, at end insert— `( ) The First Minister shall not make a motion under subsection (5) unless—

1. (a) he is satisfied that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour, and
2. (b) where the person in question is the Lord President or the Lord Justice Clerk, he has consulted the Prime Minister.'.— [Mr. McFall.]