§ 3.5 p.m.
§ The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel)
My Lords, I beg to move that the Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.—(Lord Sewel.)
§ On Question, Motion agreed to.11
§ Clause 87 [Maladministration]:
§ Lord Sewel moved Amendment No. 173C:
§ Page 41, line 18, leave out from ("authority") to second ("or") in line 19 and insert ("with mixed functions or no reserved functions,").
The noble Lord said: My Lords, in moving this amendment, I shall deal with Amendments Nos. 206L, 206M, 206N, 218D, 223A, 226A, 226B, 226C, 226L and 229B. These are drafting amendments which are designed to provide more user-friendly labels for certain of the Scottish public authorities for which provision is made at various points in the Bill. These amendments do not alter the effect of these provisions in any way. They merely replace the rather complicated references to,
a Scottish public authority to which paragraph 1 or 2 of Part III of Schedule 5 … applies",
with the more straightforward words,
Scottish public authority with mixed functions or no reserved functions".
Part III of Schedule 5 is amended to define this expression, and a reference is added to the index of defined expressions in Clause 119. With that explanation, I commend the amendment to the House. I beg to move.
§ Lord Mackay of Drumadoon
My Lords, one of the pleasures that I have experienced since I arrived in your Lordships' House this morning at about 12 o'clock has been to seek to understand the new government amendments which have been tabled since we last considered this Bill on Report. I may be wrong, but these amendments may fall within that category, although more important ones come later.
I have two questions for the noble Lord. First, is the amendment to Clause 87 designed to meet any of the concerns and questions which I raised at Committee stage about that clause? If not, may I gently request a reply to the questions that I posed on that occasion? Secondly, since these amendments are meant to clarify matters, it would be helpful if the noble Lord could give us an example of "mixed functions".
§ Lord Sewel
My Lords, I would gladly answer the noble and learned Lord, Lord Mackay of Drumadoon, as to whether these amendments deal with his reservations on and criticisms of Clause 87. However, I need to be reminded of what they were. Mixed public authorities are bodies which deal basically with reserved and devolved matters.
§ On Question, amendment agreed to.
§ Baroness Ramsay of Cartvale moved Amendment No. 173D:
§ After Clause 87, insert the following new clause—
§ QUEEN'S PRINTER FOR SCOTLAND
§ (".—(1) There shall be a Queen's Printer for Scotland who shall—
- (a) exercise the Queen's Printer functions in relation to Acts of the Scottish Parliament and subordinate legislation to which this section applies, and
- (b) exercise any other functions conferred on her by this Act or any other enactment.
§ (2) In subsection (1), "the Queen's Printer functions" means the printing functions in relation to Acts of Parliament and subordinate legislation of the Queen's Printer of Acts of Parliament.
§ (3) The Queen's Printer for Scotland shall also on behalf of Her Majesty exercise Her rights and privileges in connection with—
- (a) Crown copyright in Acts of the Scottish Parliament,
- (b) Crown copyright in subordinate legislation to which this section applies,
- (c) Crown copyright in any existing or future works (other than subordinate legislation) made in the exercise of a function which is exercisable by any office-holder in, or member of the staff of, the Scottish Administration (or would be so exercisable if the function had not ceased to exist),
- (d) other copyright assigned to Her Majesty in works made in connection with the exercise of functions by any such office-holder or member.
§ (4) This section applies to subordinate legislation made, confirmed or approved—
- (a) by a member of the Scottish Executive,
- (b) by a Scottish public authority with mixed functions or no reserved functions, or
- (c) within devolved competence by a person other than a Minister of the Crown or such a member or authority.
§ (5) The Queen's Printer of Acts of Parliament shall hold the office of Queen's Printer for Scotland.
§ (6) References in this Act to a Scottish public authority include the Queen's Printer for Scotland.").
§ The noble Baroness said: My Lords, Government Amendments Nos. 173D and 226N are technical amendments, which deal with the printing of and copyright in Acts of the Scottish Parliament, devolved subordinate legislation and other works produced by or in connection with the exercise of functions of, the Scottish Administration.
§ Government Amendment No. 173D establishes the office of the Queen's Printer for Scotland. The Queen's Printer for Scotland will exercise printing functions in relation to Acts of the Scottish Parliament and devolved subordinate legislation. She will also exercise all Her Majesty's rights and privileges in respect of copyright in what might conveniently be described as "Scottish works". Effectively she will perform the same functions in relation to these works as are presently carried out by the Queen's Printer of Acts of Parliament. In fact, to facilitate consistency and coherency of approach, in particular in relation to the publication of statute law throughout the United Kingdom, the holder of the office will be the holder of the office of Queen's Printer of Acts of Parliament, who also holds the office of Government Printer for Northern Ireland.
§ It is necessary to create the office of Queen's Printer for Scotland to ensure that the Scottish parliament and Scottish administration have an appropriate degree of control over the arrangements for the publication of Acts of the Scottish parliament and material produced by the Scottish administration. The Scottish parliament will be able to legislate to confer additional functions on the Queen's Printer for Scotland for example, in relation to the printing and publication of Scottish works. As a Scottish public authority, the parliament could legislate about the funding and receipts of the office and would be able to provide for the Scottish Ministers to give directions in connection with the exercise of her functions.13
§ Amendment No. 226N is a technical amendment to ensure that works produced by the Scottish administration are subject to Crown copyright in the same way as works produced by other officers and servants of the Crown. Paragraph 23 of Schedule 8 to the Bill makes a number of amendments to the Copyright, Designs and Patents Act 1988. Amendment No. 226N amends the definition of "the Crown" in Section 178 of the Act so that it includes the Crown in right of the Scottish administration. I beg to move.
§ The Earl of Mar and Kellie
My Lords, I wish to ask a question about subsection (5) of the new clause. Is not the subsection rather anti-competitive; and do the Government expect there to be any challenge over that issue?
§ Baroness Carnegy of Lour
My Lords, I have a question which is linked to that of the noble Earl. The noble Baroness has explained—and one can detect it from the amendment—that the Queen's Printer for Scotland is the same person as the Queen's Printer for Acts of the United Kingdom Parliament. Who appoints the Queen's Printer for Acts of Parliament of the United Kingdom Parliament? Will there be consultation in Scotland about the appointment before the appointment is made in view of the fact that that person is automatically the Queen's Printer for Scotland? What consultation will there be?
§ Lord Lester of Herne Hill
My Lords, I share the concern expressed in the questions of my noble friend Lord Mar and Kellie and the noble Baroness, Lady Carnegy. As the Minister may know, there is concern, which I share, about the overcharging or charging in respect of what we call parliamentary copyright as well as Crown copyright. As I understand it, this matter is being considered at the moment in a separate consultation in the context of the freedom of information legislation.
My question is whether the Scottish parliament will be the body that decides what is to be done if the monopoly which is being transferred under this legislation were to be abused so that the public were being charged for Acts of the Scottish parliament either at all or at a profit. Who will be the quality controller in the interests of the consumer to ensure that these copyrights are not abused against the wider public interest? Will it be this Parliament, or the Minister, or the Scottish parliament, or some other body?
§ 3.15 p.m.
§ Lord Mackay of Drumadoon
My Lords, as soon as I hear the Minister beginning her speaking note with the words "This is a technical amendment", my ears prick up. It is far from a technical amendment. It is a very important amendment. Unless a Queen's Printer was appointed to publish the Acts of the Scottish parliament and the subordinate legislation coming out of it, a question might well arise as to whether it was competent for the courts to have regard to them. So I welcome the amendment which I am sure has been brought forward for very good reasons.
14 However, I have a number of questions to ask. First, can I be clear about what is intended by subsection (1)(b) of the new clause? It states:There shall be a Queen's Printer for Scotland who shall…exercise any other functions conferred on her by this Act or any other enactment".I understand by the reference to the word "her", even though there is a small "h", that the reference there is to Her Majesty. Subsection (1)(b) is very broadly drafted in that there is no limitation on what other functions could be conferred on Her Majesty. It may be that that matter merits further consideration.
Secondly, is there anything in the clause that would prevent the Queen's Printer for Scotland, whether or not he or she is also the Queen's Printer of Acts of Parliament, from contracting for the necessary printing and publication of the Acts of Parliament, the subordinate legislation and any other documents covered by Crown copyright, to be put into the private sector? In other words, is there anything in the clause that would make it necessary for all this work to be done by a government department?
Thirdly, I wish to ask what I believe to be a very important question. If the Scottish parliament wished from day one to ensure that all the primary legislation and subordinate legislation either coming out of the parliament or being made by the Scottish executive should be on a computer data base to be available to members of the public, is there anything to prevent that from happening, even though, unfortunately, we have not yet reached the stage where the statute law data base relating to the Acts of the United Kingdom Parliament is available to everyone who wishes to use it? That takes forward the point raised by the noble Lord, Lord Lester, about people who seek access to documents covered by Crown copyright, and who are not lawyers, who can pay for copies themselves or gain access to computer data bases. I have in mind people who work for charities. They could spend a small fortune getting copies of Bills and because quite frequently, when a Bill is amended slightly, there is no reprint of the revised Bill, they may end up having to buy several large documents costing £10 or £15 each. That may be nothing to a lawyer in private practice but it is quite a lot to a small charity helping the mentally disabled or some other group in society which requires support.
Those are practical questions which arise out of the new clause. It was not possible for me to give any notice of my questions but I hope that we may receive some further information by letter during the course of the week.
§ Baroness Ramsay of Cartvale
My Lords, I have been asked a plethora of questions. I shall try to answer as many as I can; and where I do not I undertake to write to noble Lords.
In different forms the question was asked, including in the question of the noble Baroness, Lady Carnegy of Lour, how the Queen's Printer is or will be appointed. The Queen's Printer is appointed by virtue of Letters Patent. She is in fact appointed by Her Majesty. The office of Queen's Printer of Acts of Parliament is held by a civil servant in the United Kingdom Government. 15 She is appointed by Her Majesty on recommendation by the head of the Home Civil Service. We would certainly expect administrative arrangements to be made to consult the Scottish administration before any future appointments were made.
I shall deal shortly with the question raised by the noble Lord, Lord Lester. In fact, I am not sure whether he or the noble and learned Lord, Lord Mackay of Drumadoon, asked whether the printer could contract out the work of publishing Acts to the private sector. I should point out that there is nothing in the Bill which would preclude contracting out the printing of Acts of the Scottish parliament if that was so desired.
The noble Lord, Lord Lester, asked about subsidising the publications. The provision actually facilitates a decision by the Scottish parliament to subsidise the publication of the Acts of the Scottish parliament—the ASPs. Therefore, the Scottish parliament can address the very concerns expressed by the noble Lord.
The noble Earl, Lord Mar and Kellie, raised a question as regards subsection (5) of the clause. What we are doing in this provision is providing a practical solution to ensure a coherent approach to the statute book and legislation generally. That is why we consider it the most sensible way forward to have the same person occupy these parallel, so to speak, posts.
I turn now to the concept of having a computerised database for ASPs. This possibility is being considered, as I am sure the noble and learned Lord knows. We are doing so in discussion with the current Queen's Printer. I am advised that the practicalities are being examined. I do not believe that I can add anything to that, even by letter. Therefore, I hope that that answer is satisfactory for the time being.
The noble and learned Lord also asked me about subsection (1)(b) of the new clause. I wonder whether the noble and learned Lord realises that the "her" refers to the Queen's Printer. That position is at present occupied by a lady—namely, Mrs. Carol Tullo. Therefore, in the case of any further functions being conferred upon the printer by this or any other Act, the reference to "her" relates to the Queen's Printer. It is perhaps unusual, but it is a refreshing change for some of us in this House to find a female holding such a post. That is why the provision refers to "she" and "her". Indeed, subsection (1)(b) will allow the parliament to confer additional functions on the Queen's Printer for Scotland as and when it considers fit. Therefore, with those answers, I hope that the House will agree to accept the amendment.
§ On Question, amendment agreed to.
§ Clause 88 [Agency arrangements]:
§ Lord Sewel moved Amendment No. 173E.
§ Leave out Clause 88 and insert the following new clause—
§ AGENCY ARRANGEMENTS
§ (".—(1) A Minister of the Crown may make arrangements for any of his specified functions to be exercised on his behalf by the Scottish Ministers; and the Scottish Ministers may make arrangements for any of their specified functions to be exercised on their behalf by a Minister of the Crown.16
§ (2) An arrangement under this section does not affect a person's responsibility for the exercise of his functions.
§ (3) In this section—
- "functions" does not include a function of making, confirming or approving subordinate legislation,
- "Minister of the Crown" includes government department,
- "specified" means specified in an Order in Council made by Her Majesty under this subsection,
§ The noble Lord said: My Lords with the leave of the House, I shall speak also to Amendment No. 206E when moving this amendment.
§ Amendment No. 173E amends Clause 88 so as to enable Ministers of the Crown and the Scottish Ministers to make arrangements to exercise functions on each other's behalf, subject to the proviso that the ministerial responsibility for the exercise of a function will not be affected by such an arrangement. The functions concerned must be specified in an Order in Council, and they cannot include functions of making, confirming or approving subordinate legislation. We expect that such arrangements will be used, for example, to permit the Minister of Agriculture, Fisheries and Food, in practice acting through his officials in the State Veterinary Service, to carry out certain functions in relation to animal health and welfare.
§ The amendment would also delete the existing text of Clause 88, which permits agency arrangements for the provision of "services", because we have concluded that it is unnecessary to have an express provision for that. It is considered that the Scottish Ministers will have sufficient powers to enter into such arrangements and to supply services under the ordinary law. If public bodies and office holders require powers to provide services to the Scottish Ministers on the same basis as they can to Ministers of the Crown, that can be made possible by consequential amendments where it is not permitted by the general glosses in the Bill.
§ Amendment No. 206E is related to Amendment No. 173E. It amends Schedule 7 to provide that an Order in Council made under the new Clause 88 listing the functions concerned will be subject to type-H procedure—the negative procedure at both parliaments. However, under paragraph 3 of Schedule 7 it would be subject to affirmative procedure if it amended an Act of Parliament.
§ These amendments provide necessary flexibility in the way in which ministerial functions can be exercised, allowing one administration to draw on expertise and resources in the other. I commend them to the House. I beg to move.
§ Lord Mackay of Drumadoon
My Lords, I have just one question about this amendment, which I believe to be one of the new ones. Would it technically be possible for the retained functions of the Lord Advocate to be covered by this new clause, or is that precluded by the provisions in Clause 48?
§ Lord Sewel
My Lords, it will come as no surprise to the noble and learned Lord to know that I did not actually anticipate his question, because I could not see 17 how this particular clause could be set in the context of the retained functions of the Lord Advocate. However, having applied my mind to it over the past few minutes, I can give the noble and learned Lord an unqualified, clear and irrevocable no in response to his question.
§ Lord Mackay of Drumadoon
My Lords, I am very pleased to hear that the answer is no. However, when looking at Amendment No. 202B which relates to a new subsection for Clause 100. I wonder whether it might be prudent to have such a provision in this new clause.
§ Lord Sewel
My Lords, I can assure the noble and learned Lord that we will ensure that everything is appropriately and properly covered.
§ Lord Monro of Langholm
My Lords, while this provision covers Ministers from both Parliaments representing each other, does it also include the physical presence of Ministers in, say, Luxembourg or Brussels? As the noble Lord knows, there is nothing like, for better or worse, being present at a council meeting in either Luxembourg or Brussels in order to know what is going on, rather than getting it second hand from another Minister. Will the new clause cover that point or is it covered in another part of the Bill?
§ Lord Sewel
My Lords, that subject is covered comprehensively in other parts of the Bill. The new clause presently under discussion does not relate to that sort of issue.
§ On Question, amendment agreed to.
§ Clause 90 [Appointment and removal of judges]:
§ Lord McCluskey moved Amendment No. 174:
§ Page 42, line 18, after ("President") insert ("and the Lord Advocate").
§ The noble and learned Lord said: My Lords, Clause 90 deals with the appointment and removal of higher ranking judges in Scotland. Amendment No. 174 deals with the matter of appointment, while the remaining amendments tabled in my name and that of the noble and learned Lord, Lord Mackay of Drumadoon, deal with removal.
§ I turn, first, to the question of appointment. My concern is to avoid any threat to the independence of the judiciary in Scotland after the new dispensation comes into effect. The independence of the judiciary is of fundamental importance in a democracy. Indeed, we are all agreed about that and it is surely unnecessary for me to take up any time of the House by dwelling upon that matter.
§ In Scotland, after the Scotland Bill comes into force as an Act of Parliament, the role of the higher judges in Scotland will not diminish; indeed, it will increase. It will increase for reasons which were explained fully by my noble and learned friend Lord Hope of Craighead at Second Reading and elsewhere. The role of the judges will increase not just because the Act itself is likely to increase the scope for judicial review, but also because the Human Rights Act is expected to come into force on 1st January 2000, and of course the Scotland Act creates in Scottish judges a power to declare certain 18 Acts of the Scottish parliament ultra vires if they contravene the provisions of the Human Rights Act. I should explain that I expect to retire from the Scottish Bench at about the time that Act comes into force and therefore I must remind the House that I have an interest, albeit a rather limited one, in the matters dealt with in the latter part of Clause 90; that is, the removal of judges.
§ The Government are already a party to a great many litigations in the civil courts in Scotland and it is the Government who bring all public prosecutions in Scotland. No one, least of all the Lord Advocate, would dispute that it is of the utmost importance to secure the continued independence of Her Majesty's judges. That most significantly includes independence from any kind of influence, pressure or interference stemming from the executive or indeed from members of the new parliament.
§ Against that background I can deal briefly with the first of the amendments standing in my name, Amendment No. 174. As the Bill now stands, the First Minister has the power to recommend the appointment of judges. He is obliged under the Bill as drafted to consult the Lord President of the Court of Session before recommending the appointment by Her Majesty the Queen of a person as a judge of the Court of Session or the High Court of Justiciary. This provision is entrenched. It cannot be altered by the Scottish parliament.
§ As regards the current practice in relation to the appointment of judges—despite what appears to be a power of the political authority to appoint judges—in point of fact what happens is that the Secretary of State for Scotland acts upon the advice of the Lord Advocate. The Lord Advocate stands back from the political process and seeks to exercise his role as a kind of Minister of Justice. He seeks to make a recommendation of the best person, regardless of that person's political antecedents, whether he has them or not. Therefore the role of the Lord Advocate in this matter is of vital importance in the appointment of judges.
§ As I said on Second Reading, the understanding between the Government and the Lord Advocate when I was privileged to be a member of the government in the late 1970s was that the Lord Advocate effectively nominated the new judge, but the Secretary of State had a right of veto. I believe that that is still the system; I certainly hope that it is. All that I seek is that this system be preserved when Scotland has its own parliament and executive.
§ As I understand the statements made by the Government in relation to this and similar matters, the Government are making the assumption—although there is no provision in this Bill—that the new First Minister will follow a practice similar to that of the Secretary of State for Scotland at present and consult with the Lord Advocate. However, that is a dangerous assumption to make. At this stage we can know absolutely nothing about the political or other character of the new executive, the legislature or the First Minister after devolution comes into effect. There is simply no basis whatsoever for assuming that the constitutional 19 conventions that make the United Kingdom constitution work would somehow be adopted in the new Scotland. Indeed it is more than likely that some of them will not be adopted because Scotland is to have a written constitution which will render at least some of these conventions superfluous. They will be overtaken by specific provisions contained in the written constitution which this Bill creates.
§ Accordingly, I suggest to your Lordships that it is quite unsafe to assume that Scotland will somehow adopt the current system. It may or it may not. There is a palpable risk that the First Minister will exercise greater control over the appointment of judges than the Secretary of State now exercises. I believe there is a greatly increased danger of politicising the judiciary and of political cronyism creeping into the appointment of judges. That is not unknown in the United Kingdom, including Scotland, in this century. It has happened repeatedly in the British Commonwealth of nations and elsewhere. It has even happened in the United States. I am anxious to avoid any increase of political influence in relation to the appointment of judges.
§ As a member of the International Bar Association and of the Judges' Forum I constantly meet people from all round the world who are disturbed at the fact that judges in their countries are appointed and can be dismissed by the political power. I have to confess that in our own country that is exactly the position. What saves the position in the United Kingdom is that conventions exist which prevent the abuse of that political power. There is nothing at all in this Bill to prevent such an abuse. It is for that reason that I beg your Lordships to accept this amendment. I beg to move.
§ 3.30 p.m.
§ Lord Hope of Craighead
My Lords, I put my name down in support of this amendment and I endorse everything that the noble and learned Lord, Lord McCluskey, has said. However, I wish to add some remarks in the light of my own experience because, as I mentioned when this matter was raised at Committee stage, I was for seven years the Lord President of the Court of Session. I was closely involved in the process of consultation which under the existing system precedes the making of these appointments.
Although the noble and learned Lord has quite rightly referred to the senior judiciary, the subsection which we are discussing deals with the appointment not only of judges of the Court of Session but also of sheriffs principal and of sheriffs. This brings me to the practical considerations which I suggest strongly underline the point which the noble and learned Lord has made.
The Lord President has great knowledge of what goes on in his own court—that is, in the Court of Session—but he has no staff, apart from one or two people in his private office who assist him with matters of administration and rule-making. Unlike the Lord Chancellor, with whom, incidentally, he shares certain functions, he does not have a department. The figure in the Scottish system who occupies the position of the gatherer of information and the provider of advice is the 20 Lord Advocate who has a department and who retains a great deal of information about the performance of various people throughout the legal system who might be considered for appointment. That is particularly so in the case of sheriffs, bearing in mind that most sheriffs nowadays are appointed to that position after service for a time as temporary sheriffs and after their performance as temporary sheriffs has been monitored.
If the Lord President is being asked to consider the making of an appointment of any of the group who are mentioned in this subsection, the first person to whom he would wish to turn for advice and information is the Lord Advocate, especially in the case of sheriffs and sheriffs principal. As I mentioned previously, if one imagines a discussion between the Minister and the Lord President—leaving aside, of course, the political point which the noble and learned Lord has made—the first question to be asked is what advice the Lord Advocate has to give as regards the people who are being considered for the appointment.
The position at present is that in the making of these appointments the Lord Advocate occupies a pivotal role. I believe it is important, in order that the public can perceive correctly what is being done in the making of these appointments, that his pivotal role should be recognised in this subsection. There used to be—perhaps there still is—a suggestion that the only way to get noticed for appointment to the Court of Session Bench was to appear in the court of the Lord President. I regret that. One recognises that many people have expertise that may not be revealed in the Lord President's Court and which only others who have the luxury of sitting in other courts can appreciate. If the clause were to give the perception that the pivotal figure in the making of these appointments, apart from the Minister, was the Lord President, that would be a false impression. He is certainly there to protect the interests of the judiciary, and he occupies a crucial role in support of the independence of judges. But when it comes to making the appointments, he is a person who is properly to be consulted but is not in the best position to give advice to the Minister.
Finally, in relation to an amendment to be debated shortly, we shall discuss the removal of judges. The crucial stage in securing a strong, independent judiciary is the appointment of judges. Removal is a step of last resort. It is very difficult to achieve. It is time-consuming, contentious and possibly extremely dangerous. It is crucial to the independence of the judiciary and a strong Bench at every level that the system of appointment is properly constructed and that those who are best equipped to secure the correct appointments to the correct offices are directly involved. For those reasons I strongly support the amendment.
§ Baroness Carnegy of Lour
My Lords, as a non-lawyer but someone who is extremely interested in the way in which the law operates in Scotland, and having in the past been a humble honorary sheriff, I wish to ask the House and the Government to pay a great deal of attention to what was just said by two noble and learned Lords who know as much as anybody in the 21 country about what the Government are doing and the dangers thereof in comparison with the way judges are presently appointed.
The noble and learned Lord, Lord Hope, referred to the importance of the appointment of judges in achieving that independence as opposed to the very important function of getting rid of a judge. I agree as I hope will other noble Lords. I, too, feel that the importance of making an appointment is paramount. It must be done in the right way. Not having experience of the process, I can understand the noble Lord's remarks, although I do not know everything about it from the matters in which I have been involved. The people of Scotland hugely value the independence of judges. They are beginning to realise that there is to be some politicisation of judges. Although they do not quite understand how it is to happen, they are beginning to understand that it will happen. They are frightened of that, and very anxious that it should not happen.
If the amendment can do something to secure the independence of judges, the Government should accept it or a similar proposal. I see no reason why they cannot accept the amendment. It is of great importance.
On a small point, sheriffs are included in this clause. Who in fact appoints honorary sheriffs, and will the clause have any effect on them?
§ Lord Mackay of Drumadoon
My Lords, a similar amendment was debated in Committee on 6th October. I offered support to the noble and learned Lord, Lord McCluskey, on that similar amendment and indeed on other amendments. I do so again today. On that occasion the noble and learned Lord the Lord Advocate indicated that he intended to reflect further on the views expressed in the debate. Those views echoed the points made again this afternoon by the noble and learned Lords, Lord McCluskey and Lord Hope.
It is important to bear two matters in mind. The first is that the additional obligation to consult the Lord Advocate which this amendment seeks to introduce into the Bill is entirely without prejudice to subsection (5) of Clause 90. The subsection requires any consultation to take place in addition to any other requirement that may be imposed by virtue of any enactment. It will therefore be perfectly competent for the Scottish parliament, if so advised, to set up some form of judicial appointments board, commission or any other statutory scheme for addressing the issue of who should be appointed, High Court judges, sheriffs principal or sheriffs. This additional requirement is in no sense subservient to the possibility of further steps if that is what the Scottish parliament wishes.
My second observation is this. In the absence of any reason why it would be harmful for the First Secretary to be under an obligation to consult the Lord Advocate—and it is difficult to conceive how there could be any harm from such an obligation—the proposal seems to send the right message to everyone involved in devolution after the Scots parliament is up and running that this Parliament would wish the Lord Advocate, who will be the senior Law Officer in Scotland, to be consulted in the same way as it wishes 22 the Lord President to be consulted. That would seem to build in two valuable safeguards to ensure, as the noble and learned Lord, Lord Hope, observed, that the need to invoke the provisions in the latter part of the clause regarding the removal of judges or sheriffs will require to be turned to as infrequently as possible. Therefore I support the amendment.
§ 3.45 p.m.
§ Lord Lester of Herne Hill
My Lords, the problem referred to affects the whole of the United Kingdom, not only Scotland. It arises because the independence of judges in this country—their appointment and removal—is largely protected by rubbery and elusive constitutional conventions and customs rather than by anything prescribed by law. I looked at Stair's encyclopaedia of the laws of Scotland. There is a volume edited by the learned Lord Fraser of Tullybelton in which he reminds us that judicial independence in Scotland is protected by the Claim of Right of 1689, but in a rather Latin and indirect way. The same is true in a different way in England and Wales and in Northern Ireland.
My first point is that this is a real problem. The way in which we on these Benches propose to address it is much wider than under this Bill. There ought by now to be a proper constitutional judicial commission, independent of the Government and dealing with appointments, discipline and removal in exactly the way or a similar way to that which happens in genuine modern democracies elsewhere in the Commonwealth. I am sorry that that has been put on the back burner by the noble and learned Lord the Lord Chancellor. I am also sorry that some senior judges regard that as a threat to their independence when it is intended to be a bulwark against improper direct or indirect executive interference.
I am not in any position to judge whether adding the Lord Advocate as an office holder to be consulted would contribute significantly in alleviating the problem so far as concerns the appointment of judges in Scotland. However, we sympathise with the objective; namely, to do all that we can to strengthen judicial independence as regards appointments, as well as disciplining and removal.
My other point is that, oddly enough—and particularly oddly since this amendment is tabled by the noble and learned Lord, Lord McCluskey—it is the new Bill of Rights, the Human Rights Act, read with the Scotland Act, which will go far to come to the rescue in relation to this particular problem. That is because paragraph 1(d) of Schedule 6 to the Scotland Bill includes as a devolution issue the question whether the purported exercise of a function is, or would be, in breach of a convention right. The relevant convention right is, of course, the right to an independent and impartial court. Were the First Minister or any other office-holder in Scotland to be so foolish as to appoint on a political basis, to make a recommendation leading to a political appointment or to produce a court that lacked the institutional independence of the executive, the effect of Clause 92, together with the schedule, would be to give our courts, and finally the Judicial 23 Committee of the Privy Council, oversight of the matter. It would be a very embarrassing way of doing so, but they would be able to decide that a particular appointment or series of appointments breached institutional independence under Article 6 of the European Convention on Human Rights. I do not commend that as the best way of dealing with the problem. It would be much better to have prophylactic safeguards of the kind that these amendments seek rather than a most embarrassing form of judicial review of the appointment of judges by judges.
I shall be grateful if the noble and learned Lord the Lord Advocate will confirm whether my interpretation of the Scotland Bill, read with the Human Rights Bill, is correct; namely, that there would be effective judicial safeguards were a court that lacked the necessary institutional independence to be appointed as a result of these procedures being abused. If that is not so, it seems to me that the case for this amendment and the other amendments is overwhelming.
§ The Lord Advocate (Lord Hardie)
My Lords, noble and learned Lords were surprised in Committee that we had not specified on the face of the Bill that the Lord Advocate should be consulted on the appointment of judges, and the issue has been returned to today. Similar points have been made today as were made by the noble and learned Lord, Lord McCluskey, the noble and learned Lord, Lord Hope of Craighead, and other noble Lords.
I suggest that the task before the House is to ensure that the Bill contains the fundamental elements of the process for the appointment of judges. We do not consider it appropriate to legislate for every detail of the process, a point to which I shall return when dealing with later amendments. But, as the noble and learned Lord, Lord Mackay of Drumadoon, said, I indicated at Committee stage, in the early hours of the morning, that I would consider the points made, in particular whether there was a case for making an exception and writing on the face of the Bill a requirement of the kind suggested.
The Government have considered the matter carefully but remain unpersuaded that it is necessary to have such an amendment. As I stated at Committee stage, it is unimaginable that the First Minister would not consult the Lord Advocate about such appointments, for three reasons. The first is that the Lord Advocate will remain the senior Law Officer in Scotland and will be in charge of criminal prosecutions. Clearly, he will have an interest in ensuring that the appropriate people are appointed to the High Court bench. Related to that, the second reason is that the Lord Advocate is a member of the executive under the terms of the Bill, and one of his ministerial colleagues will be the First Minister. In the context of a government, it would be surprising if the ministerial colleague responsible for making the recommendation to Her Majesty did not consult the Law Officer. The third reason is the one referred to by the noble and learned Lord, Lord Hope of Craighead, both today and at Committee stage: that the Lord President, who has to be consulted under the terms of the Bill, would obviously ask the First Minister what the views 24 of the Lord Advocate were. If that were the outcome—and I accept that that is the position which is likely to be adopted by any Lord President—the Lord Advocate's input would come into play at that stage.
The Government believe that it is not necessary to provide for consultation within the Scottish administration and that it should be left for the First Minister and the Lord Advocate to decide between them as to what arrangements are appropriate in particular situations. As has been observed, the Bill makes provision for consultation with others outside the Scottish administration who have relevant advice to offer, in particular the Lord President of the Court of Session. That consultation with the Lord President provides a useful safeguard against the fears, which I suggest are unreasonable and unrealistic, about politicisation of the process which have been referred to this afternoon.
The thrust of the discussion at Committee stage and today was this. If that were the position, why should it not be written into the Bill? I am pleased to hear that the noble Lord, Lord Mackay of Ardbrecknish, accepts that I have identified the matter which concerns him. Noble Lords argued during the first debate on Report that we should not clutter the statute book with unnecessary provisions. In that context, we explained that we disagreed with the arguments put forward at that stage. But in this case the Government do not consider it necessary to dictate when the First Minister should seek the advice of his own Law Officer, the Lord Advocate.
The noble and learned Lord, Lord McCluskey, raised a point concerning the greater politicisation of the process, a point also alluded to by the noble Baroness, Lady Carnegy of Lour. He said that it would be unfortunate if the process of appointment became overtly political and the bench comprised simply of appointees acceptable to the government of the day. While I am not convinced that that would happen, given the safeguards already in place in the Bill—the fact that the Lord Advocate is a member of the Scottish executive, along with First Minister, and that the Lord President would in all probability indirectly seek the advice of the Lord Advocate by asking the question to which the noble and learned Lord referred—the ultimate sanction would be for this Parliament to legislate for this matter and to take back the devolved issue if politicisation were considered a threat.
To respond to the point raised by the noble Baroness, Lady Carnegy of Lour, I have considered the question of who appoints summary sheriffs. My understanding—I shall notify to the noble Baroness if I am wrong—is that honorary sheriffs are appointed by the sheriff principal whereas temporary and full-time sheriffs are appointed by Her Majesty on the recommendation of the Secretary of State following advice from the Lord Advocate.
§ 4 p.m.
§ Baroness Carnegy of Lour
My Lords, I thank the noble and learned Lord for giving way. He answered a question about the present system. I am already aware 25 of that. My question is whether under the Bill the system will continue as it is. Will the Lord Advocate be consulted and therefore does the clause affect the appointment of honorary sheriffs?
§ Lord Hardie
My Lords, I apologise to the noble Baroness. I had not appreciated that that was the question. The Bill does not affect the position of honorary sheriffs. The sheriff principal would still be able to appoint honorary sheriffs if he or she considered it necessary.
I turn finally to the matters raised by the noble Lord, Lord Lester of Herne Hill. The first point concerns the position in the United Kingdom in relation to the judicial commission. I appreciate that the noble Lord is anxious that such a commission should be established to deal with appointments not only in Scotland but in other parts of the United Kingdom. I hope the noble Lord will forgive me if I say that that goes beyond the particular amendment and raises much wider considerations than those in the Scotland Bill.
As to Clause 92 and paragraph 1(d) of Schedule 6, the noble Lord is correct in interpreting those provisions as indicating that the European Convention on Human Rights will be incorporated and that the actions of the executive will be subject to scrutiny in terms of those articles. However, I do not share his interpretation insofar as concerns the appointment of a particular judge. If the appointment of a particular judge was considered overtly political I would find it difficult to envisage in the abstract how that matter could be raised in appropriate judicial proceedings. It is very tempting to agree with the noble Lord on the second point, and if I did he might be more sympathetic to my position. It is therefore very tempting. However, I have some reservations.
§ Lord Ackner
My Lords, before the noble and learned Lord sits down perhaps he will help me on one simple matter. He said it was unimaginable that the Lord Advocate would not be consulted. I do not understand why, if that is the case, it cannot be enshrined in the Bill, particularly since the noble and learned Lord said in terms that the Bill should contain fundamental points. Since it is unimaginable that in this case the contrary would occur this is one of the fundamental points, the more so since it cannot be said that by the addition of one name one is cluttering up a Bill with unnecessary provisos.
§ Lord Hardie
My Lords, I thought I had explained the reasons why it was unnecessary to incorporate that on the face of the Bill. I listed three reasons. If enshrined in the legislation it would mean that for all time the Lord Advocate was required to be consulted in the face of the possibility of the creation of a ministry of justice. If there were a minister of justice who was legally qualified and had equal knowledge of the senior members of the profession, he or she could perform the role of the Lord Advocate. But if the Scottish parliament wished to make a change of that nature and the Lord Advocate was mentioned on the face of this Bill, the 26 effect would be to require the legislation to be amended in this Parliament as opposed to leaving the matter to Scotland.
§ Lord Lester of Herne Hill
My Lords, I am most grateful to the noble and learned Lord for giving way. I believe he indicated, when the noble and learned Lord, Lord Ackner, intervened, that he regarded the Scottish administration as being under a duty to comply with the convention. It would very much help to have the matter clarified; it might make the whole amendment unnecessary. Is it recognised by the Government that the Scottish parliament, the Scottish administration, the Secretary of State and the judges themselves are all under an obligation to ensure the independence of the judiciary because of the incorporation through the Human Rights Bill and the Scotland Bill of Article 6 into our domestic legal system? If so, that would make me much more sympathetic to the Government's point of view. I understand his reservations about committing himself to questions of judicial review and legal standing, but it is the obligation in which I am interested. As a result of this legislation is it now a binding constitutional obligation to secure judicial independence in appointment, disciplining and removal?
§ Lord McCluskey
My Lords, I express grave disappointment at the answers I have heard today from the noble and learned Lord the Lord Advocate. Perhaps I may reiterate the point made by my noble and learned friend Lord Ackner. This is not a matter of detail but something that is fundamental to democracy: the independence of the judiciary. As my noble and learned friend Lord Hope said, appointments to the higher judiciary are of great importance in safeguarding democratic values. I was more than surprised and somewhat disappointed to hear the Lord Advocate suggest that this Parliament could, if the Scottish executive began to misbehave in this regard, take back the power and make different provisions about appointments. That is an astonishing answer and one that I am surprised the Lord Advocate should make on behalf of the Government at this stage of the Bill.
One important point of detail is that it is almost impossible to detect political influence in appointments. One may see individuals being appointed to the Bench and wonder why they have suddenly climbed the ladder by several rungs and why others have not been appointed but one cannot prove political favour. Therefore, it is impossible to make a case that the First Minister is exercising political favour even if everyone in the profession agrees that that is happening.
There is also the point that it does not have to be done for all time. The Government can table an amendment which would introduce but not entrench the provision that the noble and learned Lord the Lord Advocate should be consulted. They could give power in a subsection to the Scottish parliament to repeal the provision if experience showed that to be justified.
27 I am deeply disappointed by the answers. I shall refer later to the constant use of the word "unimaginable" by the noble and learned Lord the Lord Advocate. The Lord Advocate of 2nd November 1998 has no capacity to judge what will be imaginable or unimaginable post-devolution when an entirely different administration may be in office. Therefore, it is difficult for him to give those assurances to the House. I express my grave disappointment but I do not propose to divide the House. We are coming to what I regard as an even more important matter on which I intend to divide the House unless I receive a satisfactory answer.
§ Amendment, by leave, withdrawn.
§ Lord Hoyle
My Lords, before we move to the Statement on international finance, I should like to take this opportunity to remind the House that the Companion indicates that discussion on the Statement should be confined to comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.