APPOINTMENT AND REMOVAL OF JUDGES (Hansard, 11 November 1998)

§ Mr. Dewar
I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker
With this, it will be convenient to discuss Lords amendments Nos. 126 to 128, Lords amendment No. 129, amendments (a), (b) and (c) in lieu.

§ Mr. Dewar
I ask the House to agree to Lords amendments Nos. 125 to 127, but to disagree to amendments Nos. 128 and 129, to which there are amendments in lieu.
Amendment No. 125 has been much discussed at various times. It is odd that it has caused so much excitement. One would get the impression that we were in the habit of knocking down judges as if they were ninepins. In fact, I know of no attempt, at least in modern times, to remove a judge from office in Scotland. There have been occasional cases of resignation as a result of difficulties or special circumstances, but no attempt has been made to force out a judge. I do not expect that it will be a common occurrence in future, either. Indeed, so uncommon is the occurrence that, in drafting the Bill, the matter emerged as a gap in the law of Scotland. There is no provision for sacking a judge in Scotland; no one thought it necessary to have such a provision because no one had ever wanted to do such a thing. Perhaps that is a tremendous tribute to the quality of our judges; I say that in an even tone.
There is a distinction between judges and their more fallible brethren on the shrieval bench because there is machinery for the removal of a sheriff. In my long memory, which is now very long, I can think of two occasions on which that machinery was implemented. On both occasions, for very different reasons, the gentleman concerned left the bench. For judges, the matter has not come up and it has never been felt that there was a great need to deal with the issue. If it has caused much trouble, it is a rod that we made for our own back by trying to fill the gap in the interests of completeness. I stress that, while I regard it as important that we get it right, I regard it as likely to remain—I hope that no one misunderstands me—a somewhat academic exercise.
The Bill was amended in another place to provide for a tribunal composed exclusively of senior judges, with membership restricted to Lords of Appeal in Ordinary and holders of high judicial office who were either Members of another place or Privy Councillors. It was proposed that those persons should be given the task of reporting the case for removing a judge and so acting, to use a term of art, as gatekeeper to the whole process. That was suggested because it was felt that the proposition in the Bill was not entirely satisfactory. The Bill simply proposed that a judge 441 could be removed on a vote of the Scottish Parliament with a two-thirds majority, not of those voting but of the entire Parliament. That was meant to be an important safeguard, because it would be unlikely, particularly given the voting system that we have introduced, that one could succeed in removing a judge without putting together a coalition that covered several parties.

§ Mr. Dalyell
Has the Secretary of State consulted the Lord President of the Court of Session and the Lord Justice Clerk about safeguards? It would be of great importance if they have said that they are satisfied with the safeguards. What is their attitude?

§ Mr. Dewar
Before the amendments were tabled, there was discussion with the Lord President, Lord Rodger, and I understand that he was satisfied with our proposals, as the Opposition appeared to be when we outlined our intentions on Third Reading in another place. We are well equipped with support in this instance.
I found some of the arguments prayed in aid of the amendments moved in another place a little excitable. I say that with respect to a close personal friend of mine for whose intellectual capacity I have great respect. I refer to Lord McCluskey who, to put it in lay language, got the bit between the teeth to some effect. I was entertained to discover that the proposal for removal on a two thirds majority of the Parliament was a constitutional monstrosity … the greatest threat to the independence of the Scottish judiciary since the eighteenth century", and a threat to democracy itself. I felt quite important because I did not realise that I was a constitutional Genghis Khan, dealing death and destruction all around. I was pleased to discover that Lord McCluskey rightly emphasised having everyone equal before the law and said magisterially—or, indeed, judicially, in manner at least—that that principle applies to Donald Dewar, the Earl of Elgin, and the Governor of the Bank of Scotland. That was odd company in which to find myself.
I mock Lord McCluskey gently because I have great respect for him and realise that he had a genuine concern. Some of the arguments pushed the boat out a little far. He said: if the judges are not independent, if they can be sacked by the Government when the Government doesn't like the way they are deciding cases, the courts quickly degenerate into becoming tools of the executive, and democracy is dealt a fatal blow. I hope to reassure him that, whatever the nuances of the argument, and however the balance should fall, no one who has been engaged in it imagined that we would be dealing with a situation where the Government would sack someone because they did not like the way in which that person was deciding cases. Of course, that would be a very serious matter indeed. I do not think that that would have arisen, but he is entitled to say that we must deal with the worst case scenario and that if we are to fill this lacuna in the law, we should do it adequately and with care. I am happy to endorse that.

§ Mr. Douglas Hogg (Sleaford and North Hykeham)
The Government's amendment (c) states: Provision shall be made for a tribunal". 442 It is not clear whether such provision will be made ad hoc in response to a particular issue arising in respect of a particular judge or whether it is general. Will such provision be made soon so that it is in existence to deal with circumstances as they may arise?

§ Mr. Dewar
Our proposition is that we should broadly follow the procedure for removal of a sheriff. There should be a gatekeeper.

§ Mr. Hogg
Perhaps the fault is mine for not putting my point sufficiently clearly. I do not understand whether the provision will be made only if a particular case arises or whether it will be made generally so that it is always available to deal with circumstances that may never arise.

§ Mr. Dewar
That is an interesting point on which I shall no doubt get some advice. My view is that it will only arise when there is a need. I presume that the tribunal will not be a standing body. If it is, I might apply for the secretary's job, which I hope would carry suitable remuneration while being lightly worked. It would be the last sinecure, going back to Lord McCluskey's 18th century.

§ Mr. Hogg
I am pleased to make provision for the Secretary of State's retirement and future employment but I think that we are dealing with rules for the composition of a tribunal rather than setting up a tribunal. I am seeking to discover, so far unsuccessfully, whether the tribunal and rules will be set up to deal with a particular case or whether, early in the lifetime of the Parliament, general provision will be made to deal with a case that may or may not arise.

§ Mr. Dewar
May I say with beguiling honesty that I understood the right hon. and learned Gentleman's point perfectly but did not know the answer to it. I have been rescued from that predicament and I understand that the intention is that a tribunal can be set up as cases arise. It is not necessary to set up a standing body because we anticipate that it would be used rarely, if at all. There is no need to have it in permanent limbo, waiting for a client who never comes.

§ Mr. Grieve
In the amendment from the other place, the tribunal's form and structure are clear because they are defined. The Government's amendment is more nebulous and leaves much more room for interpretation. It is on that point that the Opposition seek clarification because the tribunal's composition is crucial.

§ Mr. Dewar
On that point, I have to disagree with the hon. Gentleman. As we are running towards the end of the Bill, I should say that I am delighted to see him yet again in his place. As an expatriate, he has stayed the pace remarkably well and given me much entertainment in recent months—and not many Conservatives do that.

§ Dr. Fox
Will the right hon. Gentleman give way?

§ Mr. Dewar
No—let me answer the hon. Member for Beaconsfield (Mr. Grieve), because he has raised a serious point. We intend to stipulate the qualifications of the 443 chairman, but we are not attempting to stipulate the entire membership of the panel—the individual members who may be called to their posts many years hence. Clearly, I assume that the panel will carry credibility, comprising people of expertise and standing—the sort of people who can offer genuine advice about a difficulty that has arisen in respect of judges of the Court of Session and the chairman of the Scottish Land Court, who has the same status as a judge. I do not think that we should try, in an ad hoc body, to stipulate a curriculum vitae that must be met, or a definition that has to be honoured. To allow a degree of flexibility makes sense.

§ Mr. Grieve
I am much obliged to the Secretary of State for half answering my next question. He clearly accepted that the amendment made in another place had some substance; otherwise, presumably, the Government would not have embarked on something similar. Therefore, my next question is to seek clarification as to why he felt that the form of the tribunal as proposed in another place was unsatisfactory.

§ Mr. Dewar
We anticipate that the panel will be judicially led in terms of its chairmanship, but not that it should be entirely or necessarily appointed from the ranks of the judiciary. When setting up a panel to deal with difficult circumstances pertaining to an individual judge, there is some merit in that approach. Judges do not come in crowds in Scotland: they tend to know each other and have long-standing connections and knowledge, which can be both an advantage and a disadvantage. It is important that there should be flexibility in the composition of the body that is called into being to look at a specific case. Nevertheless, we are anxious that the tribunal should be headed by a figure whose qualifications and knowledge are reassuring, and that is why we have stipulated the qualifications for the chair of the tribunal. These are difficult issues to balance, but I believe that ours is a sensible proposition.

§ Dr. Fox
The Secretary of State will understand that the target audience and acute readers of the clause will look for answers to the questions in rather more detail than most of us would care to delve. Will he confirm that my understanding of what he said to my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg)? The Government amendment (c) states that Provision—that is, provision for the tribunal— means provision by or under an Act of the Scottish Parliament". Therefore, it is intended that primary legislation will give overall form to the tribunal, and that any subsequent action would be taken through secondary legislation. Is that a correct reading of the right hon. Gentleman's intentions?

§ Mr. Dewar
I am not sure whether I followed that exactly, but no doubt others have done so and will advise me. We are trying to provide an impartial machinery to give advice to the Scottish Parliament should the unfortunate circumstances that we are debating crop up. I believe that we should all have an interest in that aim.
The intention is that the Parliament can make general provision in respect of the dismissal of judges, including the arrangements for appointing the members of the tribunal and its rules and procedures. The Government 444 amendments give the Parliament the flexibility that would not be available if the Lords amendments remain. The Lords amendments are prescriptive, whereas we are trying to allow a degree of—I was about to say room for manoeuvre, but that sounds somewhat shady, so I shall not adopt that phrase. We are trying to broaden the base, bearing in mind the need for suitable candidates who will command the confidence of everyone, including someone who might be the subject of investigation or consideration by the tribunal.

§ Dr. Godman
Is there a right of appeal in respect of a decision taken by the tribunal?

§ Mr. Dewar
The decision is taken by the Scottish Parliament. The recommendation of the tribunal has to carry a majority vote in the Parliament, and I doubt that there is any formal appeal from that. However, the procedure is extremely special and would give all those involved in it pause for thought. I have only been involved in one similar case: I shall not go into details, but it involved a sheriff. At that time, I was shadow Secretary of State for Scotland, and the then Secretary of State invited me to come and see him in his room. The procedure was taken extremely seriously, even though, I regret to say, that there was no controversy about the matter. No one should imagine that such cases will be taken lightly, either by the Scottish Parliament or by anyone else.
The Bill provides a minimum framework—we are not trying to cross all the t's and dot all the i's—but we have always assumed that the Parliament will be able to choose, if it so wishes, to add to the framework by enacting further legislation. That is the point to which the hon. Member for Woodspring (Dr. Fox) referred. The removal of judges is not only a matter of private concern for the judges, but an issue of serious public interest. There is a legitimate debate to be had, into which Lord McCluskey entered with enthusiasm and, in so doing, threw up some interesting ideas. However, it is not always wise to leap to a conclusion either way during the final few days of a Bill's passage through Parliament.
The key point is that clause 89 is entrenched. The Scottish Parliament will have to live with what it says and will have no scope to replace any of its provisions; it will be able only to expand on them. That is why the essential safeguards should appear in the Bill, but the fleshing out and the determination of the final mix of experience and standing on the tribunal is a matter for the Scottish Parliament. We think it right that the Scottish Parliament should have that element of discretion, so that it can develop the procedures that apply in Scotland for the removal of judges.
The Government's alternative amendment to Lords amendments Nos. 128 and 129 therefore provides simply that provision shall be made—which, in this context, means provision by or under an Act of the Scottish Parliament—for the First Minister to constitute a tribunal of at least three persons to investigate and report on the case for the removal of a judge. Three is a minimum number and not a prescriptive figure. The amendment ensures that the chairman will be a person eligible under clause 94 to be a member of the Judicial Committee of the Privy Council. The First Minister still requires the Parliament's approval before being able to recommend to 445 Her Majesty that a judge be removed; but he may not seek that approval unless the tribunal has reported that the person is unfit.
We are giving the tribunal a key role, which is an important safeguard against the possibility of a Scottish Parliament taking a political dislike to a member of judiciary and attempting to act in the manner of Charles I during the 17th century. I believe that such circumstances are unlikely to occur, but I concede that I cannot exclude the possibility of their occurring in future years. That the chairman has to be eligible to be a member of the Judicial Committee of the Privy Council gives us a reasonably wide choice of distinguished legal figures, whose number currently includes several extremely distinguished Scottish judges.
The tribunal's report must be laid before Parliament. Given the addition of a statutory tribunal to the process, we see no need also to require the two-thirds majority. Having included in the Bill the body that has to report and without whose say-so the matter cannot proceed, we saw no reason to overburden the machinery by demanding the high test of a two-thirds majority; therefore, the amendments in lieu remove that test. We have retained the provision that, where the person who may be removed is either the Lord President or the Lord Justice Clerk, the First Minister must also consult the Prime Minister. We have been properly tender of the feelings of the judiciary. Some might accuse us of having been over-tender, but it is better to make it clear that the fears that have been expressed are not real.
I said in reply to an earlier remark by my hon. Friend the Member for Linlithgow (Mr. Dalyell) that the Lord President has been involved and, it would be fair to say, taken an active part in correspondence and discussion about the Bill's final formulation. He has helpfully put forward his opinions on this and other matters.
The proposals to some extent reflect the existing provisions for sheriffs under the Sheriff Courts (Scotland) Act 1971 and are therefore tried and tested.

§ Mr. Dalyell
Do we take it that there is no dissent from what is proposed from any of the senior judges? I am prepared to believe that there is no dissent, but I should like it to be stated on the record.

§ Mr. Dewar
I cannot pretend that I have discussed the matter with all the senior judges, but the Lord President has been consulted. The judges are collegiate; the Lord President is the leader and has a duty to reflect their opinion. I am not aware of any dissent on the matter. While strolling in a park in Edinburgh at the weekend, I had the advantage of having a discussion with Lord McCluskey. [Interruption.] I felt very safe in judicial company. I do not want to misunderstand his position, but I got the impression that he was at least mollified, and on that I rest my case.
As I said at the beginning of my remarks, there is no reason to fear for the future independence of the judiciary. If there were a risk of political interference, building a tribunal, even on the lines that we are proposing or those agreed in another place, would not stop a tyrannical Administration who were determined to bulldoze their 446 way through judicial independence. They would probably not find it too difficult to bulldoze their way through the committee as well. I do not imagine that that will happen, and we have made proper provision to build in safeguards that I hope will be deemed adequate.
I listened to some hon. Members saying that the proposals were the end, if not of the world, at least of judicial integrity. We should consider that south of the border, since the Supreme Court Act 1981—the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) will be aware of this, being a man learned in the law—a judge can be removed on a simple majority, admittedly of both Houses of Parliament, with no committee, panel or judicial inquiry. I find that position a little puzzling, although I recognise that there are important differences that no doubt justify it.
I accept that it is possible to argue that the House of Lords is such a bulwark of individual liberty and such a collection of people of integrity, expertise and skill that it was not necessary to have people to investigate the facts and reach an opinion that a recommendation could safely be made. However, judging by the fierce expression of the need for a safeguard and a proper inquiry into the individual case, I would have suspected that hon. Members would have wanted to amend the 1981 Act, but there does not seem to be a great enthusiasm for doing so. That is a matter for those who have a particular responsibility for the machinery south of the border.
We have properly listened to the fears that have been expressed, but I hold to my belief that there is no danger of abuse. I accept that, if those fears are even voiced, there is a case for including safeguards and ensuring that we all go home, if not happy, at least satisfied.

§ Mr. Evans
The Secretary of State rightly said that this issue has made many people excitable, and I suspect that I am at the Dispatch Box because it was thought that I was the most appropriate person to deal with the issue.
It was heart warming to hear the Secretary of State speak so highly of the other place as a bulwark within Parliament. I look forward to his contributions in a similar vein in the next Session when we shall discuss in more detail the qualities of the other place. The Bill has led us to consider the importance of the second Chamber because of the way in which the legislation has been improved by the amendment tabled by Lord McCluskey and the fact that the Government have reconsidered the matter and tabled their own amendment.
I have read Lord McCluskey's contributions in the early hours of 7 October in the other place and on Report on 2 November, when he was forced to call a Division. He had the support of two serving Law Lords, four retired Law Lords, one serving Court of Session judge—Lord Cooke of Thorndon, the retired chief justice of New Zealand and a member of the Judicial Committee of the Privy Council—and two former Lords Advocate. When someone of Lord McCluskey's stature is able to command the support of such individuals, it is only right that we take his amendment seriously.
We are discussing the independence of the judiciary, which I am sure Members on all sides of the House hold in high regard, especially when we are considering the establishment of a new body. We need to get that absolutely right. The fact that it is dealt with in the Bill means that attempts are being made to ensure that the 447 integrity of the judiciary will be upheld. The fact that the Government have tabled an amendment reveals that they are coming some way towards accepting the fears expressed by Lord McCluskey and others.
The removal of senior judges is a serious issue, and we must ensure that the practice continues to be rare and that it is fair and open and complies with our other obligations under the European convention on human rights and the Latimer house guidelines for the Commonwealth, which approve the Harare principles, about which Lord McCluskey so eloquently spoke in the other place. The Harare principles state: In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence, and to be judged by an independent and impartial tribunal. Grounds for removal of a judge should be limited to

a) inability to perform judicial duties

b) serious misconduct".

Article 6 of the European convention on human rights states: In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who is not in his place, was trying to establish with the Secretary of State that the tribunal would be impartial and independent. I hope that the Secretary of State will say a few more words about that.
Although the Lord Advocate stated in another place that it would be beyond belief and inconceivable that judges would be removed at the whim of fancy, judges will increasingly be involved in matters of political controversy. I am sure that the Secretary of State has, as I have, read many newspaper articles about the wisdom of some of our judges in their deliberations and decisions. My hon. Friend the Member for Woodspring (Dr. Fox) spoke earlier about worst case scenarios, and when we are passing legislation we should ensure that it is as watertight as possible and that we prepare for all eventualities.
I understand that the Secretary of State for Scotland hopes to achieve great heights in the Scottish Parliament. I am sure that he would never stoop to such base, earthy instincts as populist rhetoric, and that he will observe the high standards that we associate with him in his present capacity. However, others—possibly others not too far from him—may hold that new position. We should put in place safeguards and guidelines that everyone will have to follow.
We seek a fair and sound structure for the removal of judges, which separates political considerations from the initial assessment of unsuitability. That was the aim of the McCluskey amendment. An independent tribunal established by law would be the most appropriate way of achieving that. Lord McCluskey pointed out that, since 1877, it has not been possible to remove a sheriff without an independent inquiry by senior judges set in train by the Lord President and the Lord Justice Clerk.
The Faculty of Advocates stated that the tenure of judges should remain such that they cannot be removed from office other than on the basis of fitness or misconduct, and that this should be expressly stated in the legislation … it is necessary to have some means of determining the fitness of judges that is independent of the political process". 448 That is what we are seeking this evening. The value of the work that has been done in another place is demonstrated by the fact that, until now, the Government have been opposed to writing that into the Bill and accepting the proposal for some form of tribunal to examine the unsuitability of judges before the matter goes to the Scottish Parliament.

§ Mr. Dewar
Speaking from the Opposition Front Bench, the hon. Gentleman puts tremendous stress on the need for a judicial investigation rather than a general debate in Parliament. Is he happy with the present situation in England?

§ Mr. Evans
If the matter had not appeared in the Bill, I expect that it would not have been raised because it would have been on an equal footing in Scotland and in England. Because it is written into the Bill, it is the subject of debate today and was taken up by Lord McCluskey.
The Secretary of State mentioned that the two thirds vote of Parliament would no longer be required, and that a simple majority of the Scottish Parliament would be sufficient. I welcome that. Lord Mackay of Drumadoon in the other place outlined the problem that would arise because of that extra lock. Not only could the matter go before a tribunal, but a majority of two thirds of Parliament—not just two thirds of those voting—would be required. That would mean that, if the majority of MSPs, but not quite two thirds, voted against the judge, it would put him in an impossible position. Therefore, I welcome the fact that the simple majority has been introduced.
I have three questions for the Secretary of State. First, is the Government's reluctance to accept the full changes proposed by Lord McCluskey due to the fact that they wish the Scottish Parliament to lay down the procedure, building on the changes in the Bill? Does he see that as a process, rather than the destination?
Secondly, the provision for the tribunal is left more open than in the McCluskey amendment. We are not certain of the full number of tribunal members. We know that there is a minimum of three and that the chairman will have the high regard of everybody, but we do not know about the other members. Would it be possible for members of the tribunal to be Members of the Scottish Parliament or even Members of Parliament at Westminster? If the intention is to separate the political and the independent aspects of the deliberations, some people might be concerned if MSPs and Members of Parliament could sit on the tribunal.
Thirdly, will there be changes to the procedure for removing sheriffs and sheriffs principal, who will also be involved in devolution issues?

§ Mr. Wallace
I welcome the Government's stance following Lord McCluskey's amendments in another place. I share the Secretary of State's view that Lord McCluskey couched his arguments in pretty apocalyptic terms, but by over-egging the pudding, he at least got some pudding—bread and butter pudding.
We debated these matters when the Bill was previously before the House. My recollection is that the purpose of the provisions was to give some structure to the ways in 449 which judges could be dismissed. I understand—no doubt I will be corrected if I am wrong-that, until that point, it was unclear how Court of Session judges or the chairman of the Scott—sh Land Court could be dismissed. The intention was to put a procedure in place. The two-thirds majority was meant to give security to the judiciary. Motives that never existed were attributed to the Government for that, but the opposite was the case.
We now have a better procedure. It is interesting that the hon. Member for Ribble Valley (Mr. Evans), speaking from the Opposition Front Bench, shied away from the question whether the provisions for England were satisfactory. I suspect that they do not meet his international test of the convention on human rights or the Harare principles. The Government may have to revisit the matter to rectify the position in England.
The amended Bill will provide suitable machinery if the issue ever arises. I assume from what has been said that the tribunal could include lay people. That is welcome. The House will recall that, during the passage of the Bill, we proposed the inclusion of lay people in the appointment of judges. It might be appropriate if lay people, as well as senior members of the judiciary, were involved in a tribunal to assess their unfitness.

§ Mr. Oliver Heald (North-East Hertfordshire)
The hon. and learned Gentleman will recall that one of the points that Lord McCluskey made in another place is that, in order to judge those issues, it is important to know how the judiciary operates. He proposed in an amendment that the tribunal should consist of past or present members of the judiciary, who have such knowledge. Surely it would be wrong for those decisions to be made by lay people, who may not understand why a judge made a particular decision in a particular case.

§ Mr. Wallace
Under the amendment, the chairman of the tribunal would have to be a person who had held high judicial office, so a crucial position in the tribunal will undoubtedly be filled by someone equipped with judicial knowledge and the judicial approach. It is almost inevitable that other members of the tribunal would be members of the judiciary.
However, it is not unreasonable that there should be the possibility of a lay person being appointed. If, for example, the question at issue was the psychiatric condition of the judge concerned, it might well be thought that a leading psychiatric doctor—a person with the appropriate medical expertise—could make a valuable contribution to the tribunal. That is speculation, but I welcome the possibility that the tribunal could include a lay person.

§ Mr. Heald
I am grateful to the hon. and learned Gentleman for letting me come back into the debate—that is generous of him. Suppose the issue that was causing concern about a judge was that he had made a decision about the vires of an Act of the Scottish Parliament, and suppose that was a highly controversial matter in Scotland. The chairman of the tribunal might take the view that the judge had made a perfectly sensible decision on the law, but the two lay people on the tribunal might be incensed by the issue, and might argue that, although 450 the decision was acceptable legally, they did not agree with it. That occasionally happens in an industrial tribunal, albeit on a slightly different issue.

Mr. Deputy Speaker
Order. Will the hon. Gentleman please be brief?

§ Mr. Heald
I will be brief, Mr. Deputy Speaker. Will the hon. and learned Member for Orkney and Shetland (Mr. Wallace) comment on whether the provision may lead to dangers?

§ Mr. Wallace
The tribunal will be constituted only at the request of the Lord President; so there is a judicial trigger. The circumstances in which a decision is made—

§ Mr. Evans
rose—

§ Mr. Wallace
I must answer the question raised by the hon. Member for North-East Hertfordshire (Mr. Heald). If the trigger for constituting the tribunal is unhappiness about a judicial decision, that does not pass any test of inability, neglect of duty or misbehaviour; therefore, the question simply will not arise.

§ Mr. Grieve
I believe that the hon. and learned Gentleman is mistaken. He said that the Lord President would be the trigger, but, in fact, the tribunal may be constituted in such circumstances as the First Minister thinks fit. There is provision for the Lord President not to be involved in that decision.

§ Mr. Wallace
I was about to turn to that issue as I assumed that, in such a situation, we might call the ability of the Lord President into question. Will the Secretary of State confirm that that is what he had in mind? That is a hypothetical question, and I make no reference whatsoever to the incumbent, who is fit in many respects to hold that high office.
I agree also with the removal of the two thirds majority. The provision was proposed as a safeguard and, with the creation of the tribunal, it is no longer necessary. I agree with the hon. Member for Ribble Valley, who said that it would be intolerable if the tribunal recommended that a judge was unfit to hold office and that decision was subsequently overturned by Parliament. I think that we have struck a good balance. I sincerely hope that the mechanism will never need to be activated but, if it does, I think that we have struck the proper balance between protecting the judiciary and upholding its integrity.

§ Mr. Andrew Welsh (Angus)
I join the Secretary of State in hoping that these cases will remain entirely hypothetical and that the measures will never have to be implemented in practice. I hope also that it will never be necessary—in the words of the Secretary of State—to "knock down judges like ninepins". However, the Bill must provide for even the most unusual circumstances. Therefore, we must ask how best to do that in the interests of justice and democracy, while allowing the new Parliament to take its own decisions in its own way.
There is widespread agreement that some form of independent tribunal is necessary to investigate the behaviour of any senior judge who faces the threat of dismissal. My party believes that neither of the two 451 alternatives before us this evening fully fits the bill. The amendments introduced in the other place by the noble Lord McCluskey would create a tribunal of the great and the good, which could be accused of involving an old boys' network of peers, judges and Privy Councillors in the decision making. However, I think that the Government's amendments are equally at fault in ensuring a central role for a judicial member of the Privy Council as the tribunal chairperson.
The Government have clearly sought to compromise with their amendment but, as with most off-stage deals, the result fails somewhat to make the grade. Why cannot the details of the proposed tribunal be left to the Scottish Parliament? Why must those restrictive provisions appear in the Bill? My party favours opening up the procedure for appointing judges through a judicial appointments commission. That would bring the fresh air of democratic scrutiny to the procedure. Such a body could also play a role in the investigation of misbehaviour or incompetence that is required before the removal of any senior judge.
In contrast, the new Scottish Parliament will have its hands tied by both sets of amendments. It will be unable to create a tribunal that it believes will be the most effective and suitable body. We must instead have a body conjured up by the Government in the short time since their defeat in the House of Lords. The Secretary of State may like to detail his discussions and consultations with the legal profession on his proposal in order to allow the House to judge whether the tribunal is born out of hasty compromise or genuine consideration. With whom has the Secretary of State spoken and whom has he consulted in the short time that has elapsed?
The Scottish National party certainly oppose the Lords amendments, but we remain to be convinced by the Government's alternative proposal before us tonight.

§ Mrs. Fyfe
Listening to the debate, it occurs to me that the grounds for considering a person to be unfit for office certainly include inability, neglect of duty and misbehaviour. However, when a judge is occasionally criticised in the media, that usually has more to do with the social attitudes that he has adopted in conducting a case or deciding a sentence. "Inability" may be narrowly defined in the Bill or it may cover a wide area. If it simply means incompetence, that would not apply in the situation that I envisage.
I am concerned that judges are often criticised very strongly—and sometimes correctly—because of the social attitudes that they display in their handling of court work, which places them in the last, rather than in this, century. Will my right hon. Friend the Secretary of State offer his thoughts on that point?

§ Mr. Grieve
I am most grateful to the Secretary of State for explaining the way in which he has approached the amendments. The amendment before us has great merit. However, two aspects cause me slight concern. In this place, we tend to knock politicians excessively on their ability to be objective. Nevertheless, it seems to be undesirable that a member of the initial tribunal may also vote subsequently to ratify that tribunal's recommendation. To that extent, it seems inappropriate for a member of the tribunal also to be a Member of the Scottish Parliament that subsequently carries out the ratification process—not because such a person is a 452 parliamentarian, but because an independent tribunal that is acting as a gatekeeper should be seen to be composed of different people from those who subsequently vote to ratify its decision.
That is the only extent to which I disagree with the way in which the Secretary of State has approached this matter. I am certainly reassured by the fact that, broadly speaking, he has suggested that the members of the judiciary north of the border are happy with the proposed arrangements. I do not wish to digress too much, but I believe that the Secretary of State makes a perfectly valid point when he says that the arrangements south of the border may have to be reviewed.
I had always understood—although I stand to be corrected—that no mechanism exists for removing the judiciary north of the border before this legislation, because of an indirect consequence of the Act of Union 1707. Protecting the Scottish independent judicial system meant that the United Kingdom Parliament never saw fit to interfere with the process for fear it would be suggested that it was interfering with the wording of the Act of Union.
It may be an interesting by-product—I pay tribute to the Secretary of State, who made some kind remarks about me earlier—of this constitutional development that certain logjams in the way in which Scotland has been governed by virtue of the ring-fencing in the Act of Union will henceforth be more open to scrutiny. That is one matter where the Secretary of State may claim some credit.
I should be grateful if the Secretary of State would consider my points about the undesirability of the person who serves on the tribunal also subsequently ratifying its recommendations. Save for that, the Secretary of State has satisfied me on the Government's approach.

§ Mr. Syms
I feel somewhat more reassured than when I sat down earlier this evening. I agree with the points raised by my hon. Friend the Member for Beaconsfield (Mr. Grieve). One of my main concerns is that the tribunal could include a Member of the Scottish Parliament who, at a later stage, could have a second bite of the cherry by influencing his or her colleagues to vote to remove a judge. Lord Mackay of Drumadoon asked whether we ought to preclude the appointments of MSPs or Members of Parliament whose motives might be called into question—even if we are all honourable Members. It is sometimes better to be seen explicitly not to be involved in such issues.
The hon. Member for Glasgow, Maryhill (Mrs. Fyfe) made the important point that, sometimes, the problem is caused by the attitudes of judges, rather than their conduct. I think that that is partly why the issue has become so explosive, not only in the other place but during this debate. It is important to get the issue absolutely right.
8.30 pm
One or two other points were raised by Lord Mackay. The First Minister should be under an obligation to lay the report of a tribunal before the Scottish Parliament but only if he intends to proceed with the necessary motion to remove the judge. It would be preferable for the tribunal to be set up by an Act of the Scottish Parliament rather than by subordinate legislation. My hon. Friend the Member for Ribble Valley (Mr. Evans) mentioned that. 453 Another issue raised has been partly answered by the interventions of my hon. Friends earlier. It is said that the Government will not accept the proposed changes because they wish the Scottish Parliament to lay down the procedure for the tribunal so that they can refine it in the near future. I think that we had an answer, and the answer is probably yes.
It has been said that it is unfortunate that the provisions do not apply to sheriffs and sheriffs principal because they, as well as judges, will be involved with devolution issues. However, I feel somewhat reassured by the debate and by the assurances given by the Secretary of State. The Lords, as always, have done us a favour by bringing these matters to our attention and enabling us to consider them again and perhaps come up with the right conclusions.

§ Mr. Dewar
I have listened with interest to what has been said. This is one of those happy occasions when there are few discordant notes, although the hon. Member for Angus (Mr. Welsh) has done his best. I think that he has been reading the somewhat remarkable press release issued today by one of his colleagues under the rather intriguing headline Roseanna calls on Commons to reject McCluskey amendments". I presume that we shall be expecting a vote in only a few minutes. Those who are not aware of who "Roseanna" is will think that we are in the business, perhaps, of glasses, globes and tents and foreseeing the future. In fact, "Roseanna" turns out merely to be a Scottish National party member, the hon. Member for Perth (Ms Cunningham), which is much less romantic.
I pay tribute to the hon. Member for Angus. As always, he could not quite rise to the flood of excitable invective which he promises when he rises in his place. I shall put that right by quoting one passage from the "Roseanna" press release. It reads: The amendments put forward by Lord McCluskey would plunge us into the unsustainable and anti-democratic position of allowing the old boys' network an effective veto on attempts to dismiss senior judges. I pay tribute to the nationalists, who are clearly prepared to go out on a limb on this matter. It is nice to know that the rhetoric of "unsustainable and anti-democratic" and so on is a banner still being carried bravely even in the fag end of the debate.
I say to the hon. Member for Angus—perhaps I should take his point a little seriously—that there is a case for a judicial commission that is broad based in terms of the appointment of judges. It is not necessarily one that the House would want to support, but it is one for which there is a strong argument. However, that is rather a different matter and different remit from a body that is being asked to look into the particular circumstances that might lead to the dismissal of a judge. The two matters are not necessarily linked and I think that it would be unwise to link them. I hope that, on mature reflection, particularly as the hon. Gentleman appears to be the only nationalist in the Chamber, he will decide not to divide the House, otherwise he might find some difficulty in running between the Lobbies and his arithmetic might not quite stand the strain.
I shall deal with one or two other points comparatively briefly. Self-evidently, we are trying, with the support of almost all the House, to put in place machinery that allows 454 proper discretion to rest with the Scottish Parliament in due course but provides for the essential safeguards that were felt necessary in another place, which I think enjoy a broad element of agreement.
The hon. Member for Ribble Valley (Mr. Evans) raised one or two specific points and some were picked up by his colleagues. I think that they felt that they had to do their duty. It is the oldest game and I played it for 20 years. One drops in on the debate, listens to what is said from one's Front Bench and then repeats it. It is a perfectly fair way of proceeding, particularly if someone is looking for a career.

§ Mr. Wallace
It clearly worked.

§ Mr. Dewar
It works.
We were asked whether we need to adapt the current machinery for sheriffs. The answer is quite clearly not. The sheriff procedure is being imported into the procedure to deal with the dismissal of judges. As I said earlier, their position is rather different from that of judges. Unfortunately there have been cases where sheriffs have had to be removed. In at least one case, a great deal of litigation has surrounded the proceedings. A panel has to sit to examine the matter and be satisfied. The matter is then brought to the House, where a majority is required. Those are robust and in-place proceedings and we certainly would not see any need to abandon them, particularly as we are, in effect, almost extending them.

§ Mr. Evans
I understand that there is precedent for the removal of a sheriff. I am aware of the time that it sometimes takes to do it. I think that, in one instance, it took a year. Can we be assured that, in the removal of judges, with the procedure that will be set in train, there will be a given time by which the exercise will be completed?

§ Mr. Dewar
We cannot give that assurance. That is not in the Bill. I suppose that the Scottish Parliament might decide to put in some sort of time limit but I think that that would be unwise. At what point should a time limit start running? It could be a matter for perhaps endless debate. I think that it is the spirit of the House that, if those unfortunate circumstances arose, proper and careful inquiries should be made. Presumably, it would be agreed that they would not be hurried. If anyone were involved, including obviously and inevitably as chairman a senior judge, he or she would have in mind at once the need to make thorough and proper inquiry, and also the need to remove the shadow over the colleague who in practice would probably be suspended. In a sense, he would not be actively engaged in work as a judge. He would obviously be entitled to get a decision which clarified his position one way or the other. That is a matter for proper and careful process and not for arbitrary time limits.
The matter was raised of the people who would serve upon the committee. I have made the point that I think that it is a matter for decision by the Scottish Parliament. We would certainly not want to rule out fairly broad representation if suitable people of standing and integrity had particular skills to offer in particular circumstances. I think that that is the sensible way in which to proceed. Obviously, the person who will chair must be eligible to be a member of the Judicial Committee of the Privy 455 Council, and to take part in the proceedings over any question of vires. That means that they are not going to be over 75, which seems a good rule on the whole. As I approach 75, I might take a different view, but, at the moment, I think that that is sound.
The point was made, and I understand it, about whether we should be prohibiting Members of the Scottish Parliament from serving on the committee. The way that the question was actually put, I think, was whether parliamentarians could serve, or Members of Parliament. Self-evidently, Members of the United Kingdom Parliament could serve. Many of the people who are qualified to be chairman are likely to be life peers, or to have a seat in the House of Lords, and therefore be members of Parliament at UK level.
The question arises whether we should specifically prohibit Members of the Scottish Parliament. I do not think that that is necessary. I cannot envisage circumstances in which someone who will vote in the final decisions would be likely to be chosen or put on such a tribunal, as that would be, or could be, open to criticism. That is very unlikely to happen, but we should not start to rule out unsuitables, because we would never end. Should we specifically rule out anyone who, for example, at any time had served in the same chambers as, had a business relationship with, or was related to, the person in question? Common sense rules those people out. The same matter would self-evidently apply in this case.
The sort of people who will chair the tribunal will obviously be people of great weight. To quote a few of the likely candidates—if per chance this were brought into effect in the foreseeable future—Lord Mackay of Clashfern, Lord Cameron of Lochbroom, Lord Jauncey of Tullichettle, Lord Rodger of Earlsferry and Lord Hope of Craighead are likely to look a little askance if, having been appointed chairman, they found someone manifestly unsuitable or open to criticism among the membership of their panel. There are plenty of ways in which that situation can be avoided.
On the point that was raised in an intervention on the hon. and learned Member for Orkney and Shetland (Mr. Wallace) by the hon. Member for Beaconsfield (Mr. Grieve) regarding the First Minister, whatever the trigger mechanism may or may not be, the important fact is that the First Minister may make a motion under clause 89(7)—that is, he may lay before Parliament a motion to remove a judge—only if he has received from a tribunal, constituted in pursuance of subsection 7(a), a written report concluding that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour and giving reasons for that conclusion. Therefore, unless that report is available, unless it can be laid before Parliament, the whole procedure would come to a halt. That is a reasonable situation in which to leave the matter.
I am satisfied that there is a proper balance here between protection for the judiciary—protection against errant politicking in an area where politicking is inappropriate—and, at the same time, a proper range of discretion to allow the Scottish Parliament to develop what seems to it to be the right machinery, working within the framework that has been laid down in law.
I appreciated the point that was made by the hon. and learned Member for Orkney and Shetland. He is, of course, absolutely right. Whatever the false start may have 456 been, whatever the way in which the argument snaked and was manipulated by hon. Members on both sides of the House, as it appeared in Committee, on Report in another place and so on, the whole foundation of this process was a recognition that there was a gap in the law of Scotland, and a wish to fill that gap properly and to remove some form of indecision.

§ Mrs. Fyfe
We have been hearing at some length tonight about the protection of judges, but I should be grateful if, before my right hon. Friend sat down, he would answer my point about protecting the public from judges who are out of touch with the society that they serve.

§ Mr. Dewar
That is a helpful question, in that it raises an important point. Obviously, judges have to use their discretion in a way that is responsible and befitting their office, but it would be wrong to get into the situation where, because one disagreed with an individual judgment or some statement from the bench that one felt was objectionable or did not properly recognise the social realities of a situation, we should consider using the processes in these clauses.
If there were a feeling that a wrong approach had been taken, some guidance might be appropriate from the Lord President, for example. I am not privy to what happens among the senators of the college of justice, but, presumably, they do on occasions consult. However, it is important that we do not make the mistake of thinking that, because there has been a disagreement with one particular judgment, that necessarily gives grounds for wanting to remove a judge.

§ Mrs. Fyfe
I am sorry to pursue the point again. I do not think that anyone—certainly not me—is suggesting that a judge should be sacked because of one judgment with which people disagree, but, if there were a consistent pattern of reactionary social attitudes, I would certainly argue that that was a case for sacking the judge.

§ Dr. Fox
There—we get it right at the end.

§ Mr. Dewar
I do not get it. I can think of some very interesting social arguments where my hon. Friend and I might approach a problem from a slightly different angle; that is conceivable. Indeed, I have known it to happen. I do not think that that necessarily brings it into the ambit of what would trigger the use of this particular machinery. Of course, I accept that my hon. Friend is right.
If a judge, over a lengthy period, is so awry in his judicial attitudes as to become a threat to public confidence and justice, that might well be something that a panel would want to consider. However, it would want to approach it with a great deal of caution. There may be other ways to deal with the problem. It is a matter of balance, reason and a sense of responsibility. The machinery that we have put in place is likely to achieve that balance and restore public confidence, without in any way threatening the integrity and independence of the judiciary.