HL Deb 25 October 1990 vol 522 cc1662-6

209A

That this House do disagree with the Commons in their Amendment No. 209.

Lord McCluskey

rose to move, That the House do disagree with the Commons in their Amendment No. 209.

The noble and learned Lord said: My Lords, this provision has a curious history. It is a matter of great constitutional importance. It is a tragedy that we should be debating it at this time of night in an almost empty Chamber.

At Report stage I expressed my concern on behalf of almost all the Scottish judges about the provision contained in the Bill. I shall not rehearse the arguments that I advanced on that occasion. In summary, they were that hitherto judges reached the appeal court in Scotland by seniority. That has been denigrated as Buggins' turn. However, that has been the position for centuries in Scotland and the system has worked very well.

In the original Bill it was proposed that instead of that system the judges should be selected and appointed by the Lord President and the Lord Justice Clerk. I know that the noble and learned Lord, Lord Emslie, and the late Lord Wheatley, refused to accept such a power which was offered to them at a time when increased salaries were introduced for appeal court judges. The noble and learned Lord, Lord Emslie, has told me that they said that they did not trust themselves to make proper appointments. It appears that the Lord President of the Court of Session and the Lord Justice Clerk who succeeded the noble and learned Lord, Lord Emslie, and the late Lord Wheatley took a different view, which they were entitled to do. I shall not criticise them for it.

The argument I advanced was supported by all the judges in Scotland whom I consulted, bar one. That is to say, I was supported by all the Outer House judges at that time. They said that it was invidious, in a small college of justice, to have people picked out for promotion over the heads of others and that it might affect the way that judges behaved. They might start looking over their shoulders in carrying out their judicial duties in order to be promoted.

However, the noble and learned Lord the Lord Advocate agreed that this matter should be considered. I believe that he took seriously the points I was making to him. At that stage there was no mention of the political power coming in to have a say or a veto in relation to appointments to the appeal court in Scotland. The matter was raised only once at Second Reading in another place on 12th June. Sir Nicholas Fairbairn opposed the proposal root and branch for the reasons that I have already outlined. He expressed himself in terms even stronger than I would care to adopt. He said: That is an unacceptable change in the collegiality of the College of Justice in Scotland."—[Official Report, Commons, 12/6/9C; col. 189.] Sadly, for reasons that I cannot define, he came forward at the First Scottish Standing Committee on 17th July [col. 895] and suddenly, out of nowhere, proposed: There must he a safeguard whereby the Secretary of State has some control over the power of the Lord President or Lord Justice Clerk to appoint whom they choose in their courts'. The Minister, Lord James Douglas-Hamilton, was here a short time ago, but alas he has departed. He accepted that proposal with gratitude. At col. 896 he said: I have carefully considered what my honourable and learned friend said…. Having taken various comments into account, I am inclined to agree with my honourable and learned Friend the Member for Perth and Kinross that there may be a case for the Secretary of State also to be involved". He said he would bring forward an amendment at Report stage. On 16th October—last week—at Report stage the same Minister began by saying: 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".—[Official Report, Commons, 16/10/90; col. 1125.] I do not believe that to be true. I put it more strongly: I believe it to be untrue. If there was considerable support, I believe that the noble and learned Lord the Lord Advocate has a duty to tell the House where that considerable support came from. I know not of it. To my astonishment (I can put it no differently to that) at col. 1126 the Minister went on to say: The Lord President and the Lord Justice Clerk have been consulted about the amendment and have expressed themselves content with it, for their interests". I should like to see the terms of that consultation because I understood that the Lord President and the Lord Justice Clerk were not in favour of that proposal. I know that the noble and learned Lord, Lord Emslie, was deeply opposed to it.

I believe that what has happened here is that the Secretary of State and the noble and learned Lord the Lord Chancellor have perhaps put their heads together and have realised that the Lord Chancellor has always had the power to determine who is promoted to the Court of Appeal in England. Therefore, the Secretary of State has said, "If you have the power, why should I not have it as well?" Thus we have the totally retrograde step in 1990 of introducing into the promotion of judges in Scotland and the elevation of judges from the Outer House to the Appeal Court a role for the political power. I believe that that is entirely wrong and that it is constitutionally bad. If a change is to be made in order to regulate the position between England and Scotland, in my view it ought to be made in England and not in Scotland.

I regard this as utterly deplorable. It is disgraceful that this House should be asked to consider such a matter at a time when there is practically no one in the Chamber. In those circumstances, there is no way in which we can test the opinion of the House. Those who are listening to me are mainly Government Whips and they would undoubtedly vote against me if I pressed this Motion; and I may in fact do so. I deplore this situation and I wait to hear what justification there is for it. I am not satisfied that proper justification was given on Report in another place by the Minister who spoke on the matter.

Moved, That the House do disagree with the Commons in their Amendment No. 209.—(Lord McCluskey.)

The Earl of Balfour

My Lords, surely the courts should be above Parliament. Has that not been our tradition?

Lord Morton of Shuna

My Lords, I regret to have to say that I do not agree with my noble and learned friend Lord McCluskey on this point. However, I should make clear that I wholly agree with him when he says that these proposals in regard to the appointment of Inner House judges are wholly and utterly unsatisfactory.

It seems to me that what is proposed in the Bill —that is, without the insertion of the amendment—is to substitute for a political appointment an oligarchy appointment. There are considerable difficulties in the idea that the chairs of the two appeal divisions in the Court of Session should have choice of who sits with them. That is basically and obviously wrong. I make no criticism at all of the present occupants of those positions, but it is obviously a difficult matter.

As I understand it, up until now anyone appointed to be a judge has been appointed by Her Majesty on the recommendation of a member of Her Majesty's Government, who, one suspects, may have had certain consultations with the Lord President, the Lord Justice Clerk and possibly a good few others. That system has worked.

If we are to have a situation where the Appeal Court judges are to be chosen other than by straight seniority—and that is a situation which has worked, as the noble and learned Lord pointed out—it would be more appropriate that they should be appointed in the same way by the Monarch on the advice of the Government, after appropriate consultation. It is wholly wrong that Appeal Court judges should in effect choose who sits with them.

The amendment which has emerged from another place and with which we are asked to agree at least gives some measure of control over what I regard as an inherently bad proposal of an oligarchic system. Therefore, if we must have this unpleasant situation it is better that the Secretary of State should come into it openly in this way rather than that we should be left with two judges choosing who shall sit in the Appeal Court.

Lord Fraser of Carmyllie

My Lords, in relation to this vexed matter, we have heard an extraordinary variety of views not only from serving members of the judiciary but, as the noble and learned Lord has pointed out, in the case of one individual the view changed from one day to the next in another place. However, whatever the arguments have been hitherto, it would appear that we have avoided the complaint that there are one or two persons who should be elevated to the Inner House. As the noble Lord, Lord Morton of Shuna, intimated, we are spelling out on the face of the matter what would have probably happened in any event if there was to be some process of elevation to the Inner House which did not simply depend upon seniority. The matter is open: the Secretary of State is involved, also the Lord President and the Lord Justice Clerk. It is the best that we can hope to achieve.

I should have been very unhappy if the system had been left as it was, relating as it did to seniority. I appreciate that the situation creates some difficulty for those who are senators in the College of Justice in a small judiciary, but I should have thought that in 1990 it is time to recognise that those who go to the appellate part of our system in Scotland should go there on merit and not on Buggins' turn or on any other derogatory basis.

Lord McCluskey

My Lords, I should have explained that when I spoke about this matter at Report stage I had a deep personal interest because I was number one of the judges who might have been passed over. Since that time I have arrived on a distant shore and I am now a member of the Inner House. Therefore I have no personal interest in this provision.

Having said that, I should like to say that I deplore the statement made by my noble and learned friend Lord Morton of Shuna, with the agreement of the Lord Advocate, that this situation would have come about in any case. I do not believe that that is an acceptable point of view. I cannot believe that if the power had been conferred upon the Lord President and the Lord Justice Clerk they would have consulted the Secretary of State. Have I misunderstood the Lord Advocate?

Lord Fraser of Carmyllie

My Lords, let me put the matter the other way round. There are those who argue very strongly that constitutionally it should have been left to the Secretary of State to represent the Monarch. If that had been the arrangement, I think that the noble and learned Lord will appreciate that there would have been consultation with senior members of the judiciary in Scotland.

Lord McCluskey

My Lords, I can understand that position, but I know of no one who had come out in the open in favour of that solution.

I am told that if I divide the House there is a possibility that we might be counted out and that, therefore, business would come to an end. I am sure that the Leader and the Chief Whip know that there are people lurking in various parts of the building who could be brought in to avoid that terrible eventuality. However, I should not like to take that risk at this time of night. Accordingly, I beg leave to withdraw the Motion.

Amendment No. 209A, as an amendment to Commons Amendment No. 209, by leave, withdrawn.

On Question, Motion agreed to.