Scotland Bill

HL Deb 02 November 1998 vol 594 cc41-80

5.2 p.m.

Consideration of amendments on Report resumed on Clause 90.

[Amendment No. 174A not moved.]

Lord McCluskey moved Amendment No.175: Page 42, line 35, leave out from ("ground") to end of line 38.

The noble and learned Lord said: My Lords, in moving Amendment No. 175, I should like to speak also to Amendments Nos. 176 and 177. They are all interconnected. We last discussed these matters at 1.20 in the morning. This afternoon we are debating them in the wake of discussing other matters of great economic importance.

All these amendments relate to the removal of the most senior judges in Scotland (once this Act comes into force). Again, I emphasise that my amendments are concerned to try to continue to secure the independence of the judiciary, especially its independence from the new executive, including the First Minister who, under the provisions of the Bill, is, in other matters, to have the sole power of appointment.

The reasons why these amendments are important have already been explained to the House both at Second Reading and in Committee. They have also been explained to the Government in correspondence. Indeed, I sent the Lord Advocate a copy of what I called a "briefing note", which I wrote just in case I was unable to be present when the matter came up for discussion today. The reasons underlying the amendments are well understood.

With regard to the removal of judges, when the Lord Advocate replied to the debate in Committee, he suggested that it was "inconceivable" that the First Minister would seek to remove a judge other than upon sound advice. With the greatest respect, that is somewhat circular and extremely naive. It simply begs the question: who decides whether the advice is sound? The answer is that the First Minister decides whether the advice is sound. It is naive to suppose that he is somehow inhibited by receipt of advice in relation to the matter.

The Lord Advocate also then said that it was "unimaginable" that the First Minister would seek the removal of a judge without taking certain steps, although the steps were not prescribed in the Act. He went on to use the expression "beyond belief". Again, those views fly in the face of all experience. Leaving aside the numerous countries where the independence of the judiciary is a sick joke—and there are many of those—there have been recent and profoundly disturbing attempts to interfere with the independence of judges in mature democracies, including the United States and parts of Canada. Concerns have also been expressed about Australia. We would be totally naive to suppose that our new politicians in Scotland will be immune to such temptations—not least because criticisms of judges' decisions are now the meat and drink of our daily newspapers, and populist politicians of whom we have always had our fair share in Scotland are likely to start calling for the removal of judges whose decisions have been criticised in the press, however unfounded the criticisms and however distorted the reporting of the decisions for which the judges have been responsible.

There is a great basis of agreement here and I should like to spell it out as briefly as I can. First, judges who are unfit for office must be able to be removed.

Secondly, there must be some statutory machinery to enable a judge to be removed if, after his unfitness for office has been established, he declines to resign—or even, indeed, if it is considered appropriate that he should be formally sacked, which might be entirely appropriate if he has been found guilty of a serious crime or of an offence involving moral turpitude.

Thirdly, we are all agreed that it is entirely appropriate that there must be formal machinery for the removal and that should be parliamentary. Therefore, the Scottish parliament should have powers such as are contained in subsections (6), (7) and (8) of Clause 90.

Fourthly, we are surely all agreed that the decision as to whether or not a judge of the Court of Session is unfit for office is not one that can be taken by the political executive. We must be agreed about that because it is fundamental to the independence of the judiciary. The Government agree, as can be seen from the Official Report when, in Committee, the Lord Advocate made his position quite plain. He said that the Bill contains minimum requirements, and, The Scottish parliament can and should build on these".—[Official Report, 6/10/98; col. 422.] In other words, the Lord Advocate envisaged that something more must be done. We must separate the responsibility for deciding upon fitness and unfitness from the formal mechanism for removal. It follows that the decision as to fitness or unfitness must be taken by a body which is independent of the political executive.

We in the United Kingdom are bound by certain obligations which require that the body must be a tribunal which is independent and impartial and is established by law. Those are all matters that are plain.

From that basis of agreement, I believe that it follows inevitably that when we are enacting, as we are, a new constitutional settlement, which devolves to an entirely new creation—the Scottish executive and the Scottish parliament—the overall responsibility for the judiciary, it must establish by law the necessary machinery for ensuring that no judge can be removed from office unless his unfitness, if it is in dispute, has been established to the satisfaction of a properly constituted independent tribunal.

The Bill does not do that. I acknowledge that it deals in a satisfactory way with the machinery for formal removal, but it does not create any machinery at all for determining fitness or unfitness before the First Minister places before the parliament a Motion seeking the judge's removal. The Bill, as drafted, requires him only to specify the particular ground of unfitness. It does not require him to prove it or to refer the matter for proof or examination by any independent body.

These questions as to the fitness or unfitness of judges are not easy questions, as the recent case involving Sheriff Stewart showed. That case was before your Lordships' House, ultimately, following a petition for judicial review. It was decided in this House on 22nd January. The noble and learned Lord, Lord Jauncey of Tullichettle, who, I believe, is with us today, delivered the leading speech in relation to that case. It sets forth the history of legislation in relation to the removal of sheriffs, who are not the most senior judges in Scotland. But it has been impossible to remove a sheriff since 1877 in Scotland without an independent inquiry by senior judges into his fitness for office.

In the context of that provision, which is Section 12 of the Sheriff Courts (Scotland) Act 1971, the noble and learned Lord, Lord Hutton, added to the leading speech. He said, The appellant"— that was Sheriff Stewart— also submitted that a power to remove a sheriff from office by reason of inability to perform his judicial functions arising from a defect of character or personality endangered the independence of the judiciary and would give rise to a risk that a judge might be removed from office because there was disapproval of the way in which he decided the cases coming before him". His Lordship continued, I do not accept that submission and am of opinion that the independence of the judiciary is fully protected by the requirement in Section 12 that the two most senior judges in Scotland, the Lord President and the Lord Justice Clerk, must first undertake an investigation into the fitness for office of the sheriff and then report that he is unfit for office before the Secretary of State can remove the sheriff from office".

That has been the position for 120 years. Even sheriffs cannot be removed without an independent investigation by the senior judges.

The principle behind these amendments has the support of, among others, the Lord President of the Court of Session and all the Scottish judges. The Lord President wrote on behalf of the judges to the Secretary of State on 4th June, We have … concluded that it is necessary to build into the Clause the necessary constitutional safeguard of an appropriate inquiry body since otherwise the Bill will not provide the protection of judicial independence, which is necessary". It was proposed that there should be Lords of Appeal or retired Senators of the College of Justice to constitute the tribunal.

That has the support of the Faculty of Advocates. The submission made by the Faculty of Advocates to the Government said 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". The faculty went on to say that it was of the view that, it is necessary to have some means of determining the fitness of judges that is independent of the political process". A provision was then sought on the lines of Section 12 of the Sheriff Courts (Scotland) Act 1971.

The Law Society of Scotland, in a letter to me dated 6th October 1988, says that it also supports the principle behind this Bill. It refers to the Latimer House guidelines. I need not refer to them in great detail but, essentially, following a meeting in Harare, the Commonwealth heads of government are considering, and will be asked to adopt, proposals drafted at Latimer House in June of this year to the effect that a judge who was at risk of removal … 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". These proposals are to be presented to the next meeting of the Commonwealth heads of government.

It is obvious that one of the persons not attending such a meeting will be the First Minister of the new Scottish executive. The Prime Minister of the United Kingdom will attend as a head of government. Presumably, he will have to undertake to provide for some such mechanism. So it is important that that should be done now.

I also have support expressed to me in a letter from Lord Murray, who was the Lord Advocate when the Scotland Bill was before this House in 1978. He strongly supports the position I and the Faculty of Advocates have taken. I would also refer your Lordships to Article 6 of the European Convention on Human Rights, which is incorporated into our own Human Rights Bill. That provides, In the determination of his civil rights and obligation or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

A good deal has been written about the meaning of those words in the European convention. "Independent" has been declared to be independent of the executive and also of the parties. Professor Harris writes in the leading work, Law of the European Convention on Human Rights, Clearly, a member of the Executive is not 'independent'". He goes on to write about the meaning of the words "established by law" and says the intention is that with a view to ensuring its independence, the judicial organisation in a democratic society must not depend on the discretion of the Executive but that it should be regulated by law emanating from parliament". There is reference to the same concept in the European case of Bryan v. The United Kingdom.

It has been suggested—and it may be suggested again today—that we should simply leave matters to the new executive and to the Scottish parliament to enact appropriate legislation to provide the machinery rendered necessary by Article 6 and by the Latimer House principles. That was suggested by the noble and learned Lord the Lord Advocate at 2 a.m. during the Committee stage. I am not quite sure that he meant what he then said. There are problems about it. They are these.

First, there would be no machinery at all for determining disputed questions of unfitness between the time that the executive came into existence and the Act took effect and enactment by the Scottish parliament of any further necessary legislation. I do not believe that the United Kingdom Government would readily fill the gap in relation to what is a devolved matter.

Everyone agrees that any such tribunal should consist of, or include, judges who are not too close to the person who is to be investigated. So my Amendment No. 177 faces up to that problem by giving the First Minister the right to select for membership of the tribunal those who are listed in the proposed new subsection (9); namely Lords of Appeal, Peers of Parliament who hold high judicial office, including retired judges or other suitably qualified members of the Judicial Committee of the Privy Council. I doubt very much whether the Scottish executive could confer this right on the First Minister, so it has to be done by this Parliament and not by the devolved parliament.

I have mentioned attacks on the independence of the judiciary. It can take many forms. In Canada there is considerable concern among judges and lawyers generally at attempts by politicians to put pressure on judges by reducing their salaries or cutting their pension entitlement. The Government here have wisely decided to avoid any risk of that happening in the United Kingdom, including Scotland, under the new constitutional dispensation. So Schedule 5 on page 85 of the present Bill says, Determination of the remuneration of—

1. (a) judges of the Court of Session,
2. (b) sheriffs principal and sheriffs,
3. (c) members of the Lands Tribunal for Scotland, and
4. (d) the Chairman of the Scottish Land Court".

are to be reserved matters. So it seems odd that the devolved administration is not to be entrusted with judicial remuneration, including pensions, but are to be given the power of removal of all those judges without further supervision.

The effect of the Bill is to preserve Section 12. The result is that a sheriff cannot be dismissed from office without an independent inquiry, but a Court of Session judge or the chairman of the Land Court can be so removed. As the noble and learned Lord, Lord Hope of Craighead, pointed out at Committee stage, The hostages to fortune which are created by allowing procedures to evolve [strictly] by experience are very great [indeed].—[Official Report, 6/10/98; col. 422.] That is particularly so in this field where it is to be hoped that experience will continue to be as limited in the future as it has been in the past.

There is one other point that I want to make about the Government's response on an earlier occasion to the effect that the Scottish executive or parliament are to be trusted. That is not a proposition that I want to challenge. But, oddly enough, the Government themselves do not exhibit any such trust because Clause 90(7)(b) provides that the First Minister cannot make a recommendation for the removal of a judge unless the number of votes in favour of the motion, is not less than two-thirds of the total number of seats for members of the Parliament". That is a unique provision in this Bill. It is the only one in which the Government say to the new parliament, "You cannot do what you want to do. You can do that only if you have a two-thirds majority of those who have the right to vote". That is an entrenched provision. The logic of it is that the parliament is not being trusted to behave in a proper and ordinary fashion. I can understand why that provision came in. It is the one that is referred to in my Amendment No. 175. I cannot see any reason at all why there should not be even a non-entrenched mechanism in the Bill which could be amended in the light of experience, which would enable judges' fitness or unfitness to be adjudicated upon by an independent and impartial tribunal.

My Amendment No. 175 suggests the removal of the provision which I have just quoted about the two-thirds majority for the removal of a judge. My reason for seeking the deletion of that provision is this. If we accept that the adjudication as to unfitness is to be carried out by an independent and impartial tribunal, then the role of parliament is a purely formal one of rubber-stamping the decision that the person to be removed is unfit. He is not entitled in these circumstances to the protection of a heavily weighted majority such as the clause provides for.

In all the circumstances, I would submit that the Government have simply got this wrong. It is a matter of great importance. I cannot see any difficulty in accepting the proposals which I make or some version of them which the Government themselves could redraft. I would not propose to invite the House to accept Amendment No. 175. If the Government indicate that they are willing to accept the principle behind Amendments Nos. 176 and 177, I should be happy to withdraw Amendment No. 175. Otherwise, I shall ask your Lordships in due course to divide in relation to Amendment No. 176. I beg to move.

Lord Hope of Craighead

My Lords, I support these amendments. I should like to say one or two things by way of supplement to the points made by the noble and learned Lord, Lord McCluskey. As I have made clear on a number of occasions, I do so against the background of experience. In this particular connection I have two aspects of experience to bring to bear on the problem.

The first is that it was from time to time my responsibility as Lord President to have to consider very carefully with the Secretary of State for Scotland and his advisers the procedures for the removal of judges, and how the procedures in the statute for the removal of sheriffs should be dealt with in a case where the necessity for using them arose. The second is that I shared with the then Lord Justice Clerk, Lord Ross, the responsibility for dealing with the case of Sheriff Stewart, to which the noble and learned Lord referred. It was borne in on me, perhaps more forcefully than ever before, how valuable the sheriff court procedure is for preserving the independence of the judiciary from political interference. I say that because there was political discussion about Sheriff Stewart's position, but it was at the request of the Secretary of State that the matter was dealt with by the judges in order to decide whether grounds for his removal were made out.

There are two aspects to the problem. The first relates to the independence of the judges. The noble and learned Lord, Lord McCluskey, explained the position much better than I can on that chapter. The other, which was of pressing concern to me as head of the court, was the need for clarity and for certainty as to what to do in these very serious cases where the public interest is so much at the root of the problem and where press scrutiny is so penetrating should things go wrong.

This part of the clause makes two assumptions in looking at the question of removal. The first is that a judge, or the chairman of the Scottish Land Court, may become unfit for office while he is still in post. The second is that if he is unfit for office it will be necessary for steps to be taken by some procedure to remove that person from office.

Like the noble and learned Lord, Lord McCluskey, I regard the first assumption—that a judge may, in the period of the Scottish parliament, become unfit for office—as one that it is proper to make for the purposes of the Bill. Despite our history, which has never encountered one of these problems of removal before, it would be a rash assumption to make that at no time in the history of the parliament could such a problem arise. But let us assume that such a problem has arisen. Let us assume that it is believed that there are grounds for saying that a judge is unfit for office. I believe that the Lord President of the court—the head of the court—is the first person to whom one turns in order to initiate the procedures to deal with the situation. It would be his responsibility to find out the facts as best he can, to offer advice to the judge in question, to offer warnings and perhaps even to advise him to resign. It may be that that advice will be taken. It is only if it is not taken that it will become necessary for further steps to be put in place, with the support of the Lord President, as I assume, in order to secure removal.

I mention in passing that in its present form the amendment of the noble and learned Lord, Lord McCluskey, faces up to the problem that the Lord President will almost inevitably be deeply involved in these problems from the very beginning in offering advice—perhaps offering warnings—and it is quite right that he should step back and that others should be brought in. I fully support the suggestion that Lords of Appeal in Ordinary should be included in the possible range of people who could provide membership of the necessary tribunal. I thought a very important point indeed was made by the noble and learned Lord, Lord McCluskey, when he doubted whether this matter could be dealt with by the Scottish parliament, with the limited powers it has under the Bill.

What then of the proceedings? What must one secure if this procedure, in the unhappy circumstances to which I have referred, has to be put into operation? I suggest that there are three qualities which it has to satisfy. The first is that the procedure must be independent—independent of political influence and independent of the senior judge who has the responsibility of taking the preliminary steps. Secondly, it must of course be fair and it must live up to the requirements of the convention. But, thirdly, it must be swift and it must be effective. I believe that in its present form the Bill fails to address any of those three requirements.

So far as concerns the necessity for swift and effective action, let me mention the case of Sheriff Stewart by way of example as to what may occur if one of these contested cases were to arise. I do this not in any sense to criticise Sheriff Stewart who was defending his position, as he was perfectly entitled to do, all the way down the line. But let us just contemplate what the consequences would be if one encountered such a person in the crisis to which this part of the clause refers.

Sheriff Stewart was suspended from duty but he remained on full pay. That meant that there was a vacancy which had to be filled in his local court at public expense. Therefore, double expenditure in a sense was being incurred by paying the sheriff and providing a replacement who could carry out his functions in that court. The operation to secure his removal from the point when the request was made by the Secretary of State to the moment at which the Secretary of State, on advice, placed the matter before Parliament occupied the best part of a year, during which time that expense was incurred. Following that, as he was perfectly entitled to do, Sheriff Stewart challenged the procedure for his removal and, as your Lordships have been told, he took the matter, step by step, up to your Lordships' House, where the matter was resolved by the Appellate Committee.

All these things were perfectly within Sheriff Stewart's rights, but I am bound to say that, if that kind of process had been going on within the Court of Session during my time as Lord President, I should have found it almost intolerable for the good of the court and for the public perception of the administration of justice in Scotland. The court has a limited number of judges and an immense amount of work to do. It cannot afford to have a judge suspended from duty at public expense for a long period, while people search around for the necessary procedures to secure removal.

Further, let us suppose that a challenge is made to the removal process and that that process is tripped up on the way because of some failure in putting together in the crisis the necessary procedures to be secure against challenge. Just imagine the effect of that on the morale of the court and the capacity of the judicial system in Scotland to serve the public interest.

My recollection of what the noble and learned Lord the Lord Advocate said in the early hours of the morning on the last occasion that we discussed the matter was that he believed that the Scottish parliament could deal with it by legislation in the light of experience. That sounds to me like a recipe for disaster if one considers the situation that one is being forced to contemplate.

We have enough experience now—and I speak having regard to the experience of the noble and learned Lord, Lord McCluskey, and, if I may be allowed, my own experience—to be able to design a system which will secure the aims to which I have referred. It is far better that we should have that system in place now so that those who are in positions of responsibility and have to take such decisions will have that framework available to them within which to work.

I suspect that there may be some concern which may underline the Government's resistance to the amendment; namely, that by taking the step proposed we would be innovating on the position that obtains at present in England and Wales. It is perfectly true that there is no procedure such as is being suggested to deal with the senior judiciary in England and Wales. However, if that does lie behind the Government's thinking, I have to say with the greatest respect that it is a totally misguided approach to the situation which we now face in this Bill. The reason is quite simple: it is that the Rubicon has been crossed by including in the Bill any procedure at all for the removal of judges.

If it is believed—and I may be wrong—that it is necessary to preserve the judiciary in England and Wales from such a procedure, the question of the removal of judges by bringing the Scottish parliament into the process should have been left out of the Bill. Indeed, we should have been left with the position as it remains today and the senior judiciary throughout the United Kingdom would be in the same position. For reasons which I can well understand, the Government have decided that that will not do and that Scottish judges must be considered and dealt with in Scotland. However, once that step has been taken it becomes inevitable for the necessary procedures to be written on the face of the Bill.

For those reasons, I strongly support the amendments to which the noble and learned Lord, Lord McCluskey, has spoken both in principle and, if I may say so, in detail.

5.30 p.m.

Lord Selkirk of Douglas

My Lords, I rise to express my very strong support for both noble and learned Lords. They made speeches which were persuasive, compelling and convincing. It seems that there is no adequate machinery under the Bill for removing judges who are considered unfit. I should perhaps make an admission here in that I have served as junior counsel to the noble and learned Lord, Lord McCluskey, in the past. I vividly remember a particular accident case in which most of the witnesses had died. It was not clear which law of which country applied. But, notwithstanding those obstacles, the noble and learned Lord still managed to get a very good settlement for the widow. That may perhaps be a good omen for a successful outcome to our debate this evening.

I am glad to support the noble and learned Lord most strongly. It is extremely important that the independence of the judiciary is appropriately safeguarded. It is a serious matter to remove a judge. I witnessed the case where a sheriff was removed from office by both Houses of Parliament. It was Sheriff Peter Thompson whom I had appeared before and who was a very good sheriff on the bench. However, he would campaign for referenda on constitutional issues and, because he persisted in doing so when he had been asked by the Lord President of the Court of Session to desist, an order was laid before both Houses of Parliament. The end to that sad saga was that the Government chose to employ the use of referenda, which is perhaps most ironical.

None of Scotland's most senior judges has ever been removed. Therefore, it is extremely important that we get this right tonight. I should point out that there are precedents for removing from politicians quasi-judicial decisions, taking them out of the their hands and putting them in the hands of tribunals. Perhaps I may mention one precedent which I believe serves to reinforce the noble and learned Lord's case. During the seven years that I was Home Affairs Minister in Scotland, cases where police officers appealed to the Secretary of State against dismissal would come to the Home Office Minister. He would read the papers carefully, make his recommendation to the Secretary of State and the latter, on the best advice of the solicitors' department, would issue a decision. That law has been changed. Such cases would not now be considered for hours and hours by the Secretary of State and his officials. Instead, they will go to a tribunal. I believe that to be the correct and appropriate procedure.

As a matter of principle, we wish to retain an independent judiciary which will not lightly be tampered with and which will remain highly respected. Supporting the principle of the noble and learned Lord's amendment should achieve just this. I am very glad to confirm that it has the complete support of the Law Society of Scotland.

Lord Lester of Herne Hill

My Lords, support for the principle behind these amendments is surely something that will come from every side of the House. Indeed, I believe that everyone in this Chamber will agree that the maintenance of the rule of law and protecting judicial independence are essential ingredients of a modern democracy. We must be quite clear in all the legislation that we pass that, whatever we do, it does not sap the independence of the judiciary in any way. I should have thought that that would be common ground everywhere; it certainly is on these Benches. That is one of the reasons why we organised the debate last week on the possibility of a constitutional court and the need for judicial independence.

The question is: what is the most effective means of safeguarding judicial independence in the context of this Bill? As I indicated when I spoke earlier, the means that we would prefer would be by creating a standing constitutional judicial commission which would deal with questions of removal as well as questions of appointment and matters of discipline. As the noble and learned Lord the Lord Advocate has rightly said, that goes wider than the Bill. Indeed, it ought to do so because it should protect the judges in every part of the United Kingdom—that is, in England and Wales and Northern Ireland as well as in Scotland.

As some noble Lords may remember, I was the unsuccessful counsel in an appeal from Trinidad and Tobago when my client, the chief justice, removed one of the judges, Mr. Justice Crane, in breach of the constitutional guarantees written into the constitution of Trinidad and Tobago. The reason he won was that there were criteria prescribed in the constitution and there was a proper constitutional commission. Unfortunately, the chief justice himself, showing that judges themselves may sometimes err as administrators, had not complied with the proper procedures. That would be our preferred option, but it is not before the House this evening.

The proposal now put forward by the noble and learned Lord, Lord McCluskey, is for a special judicial tribunal to deal with such matters only in the context of Scotland. It does not arise in Northern Ireland in the same way because judicial removal and appointments will not be devolved to the elected Northern Ireland Assembly. The question which comes to my mind, and upon which I would very much welcome a detailed reply from the noble and learned Lord the Lord Advocate, is whether there are other effective judicial remedies to deal with the hypothetical problem that the First Minister acts outside the purposes prescribed in Clause 90—that is to say, his Motion is not made for the purpose of removing someone who is, unfit for office by reason of inability, neglect of duty or misbehaviour", but because of some other punitive or politically partisan improper reason. In that situation would there be an effective remedy by way of judicial review before an independent and impartial court to deal with that?

To take the second example, suppose there were a want of natural justice—this is one of the examples raised by the noble and learned Lord, Lord McCluskey—where the case against the judge had not been properly put, is it the Government's view that that would be able to be dealt with by the second principle of administrative law, of fairness or procedural propriety? Thirdly, let us suppose that the means of disciplining the judge were quite excessive and disproportionate, would the Government consider that that would be within the scope of the modern principle of rationality, and that it would be irrational for the First Minister, or a majority of the Scottish parliament, to seek to remove the judge on that basis?

Speaking for myself it seems to me that our principles of administrative law have moved sufficiently far—now strengthened by the Human Rights Act and Article 6—to enable our ordinary courts to provide perfectly effective remedies if there were to be a breach of legality, rationality or fairness. I now mention the only matter which gives me concern about that. The advantage of the tribunal of the noble and learned Lord, Lord McCluskey, is that it deals with merits review; that is to say, it can take the decision itself not by way of a supervisory jurisdiction. But, again, it seems to me that the supervisory jurisdiction of the judicial review court has now moved so far forward in developing principles of administrative law that in practice the merits of the First Minister's motion, and of any subsequent decision, could be effectively judicially reviewed. If that is the basis upon which we are legislating, I would reach the conclusion that a tribunal of this kind would not be necessary because ordinary judicial review on that basis would be sufficient.

If, on the other hand, the Government's view was that this was not a remedy that the ordinary courts could provide, speaking for myself, it seems to me that one should put the matter beyond doubt by creating a special tribunal, and, I would say, a special tribunal which in the long run goes beyond the Scottish judiciary. If we cannot be given an assurance of that kind this evening, I hope this measure will not be pressed to a Division to enable us to consider the matter in the light of what we are about to hear from the noble and learned Lord the Lord Advocate to see what is the best means of accomplishing an aim which everyone who has spoken—and I am sure everyone in the Chamber—shares; namely, to preserve judicial independence against arbitrary, unfair, partisan or punitive political removal of a judge.

5.45 p.m.

Baroness Carnegy of Lour

My Lords, I am not sure why the noble Lord, Lord Lester of Herne Hill, is not sufficiently keen on this amendment and why he wants to hear the noble and learned Lord the Lord Advocate suggest other ways that a solution might be found. This is an important amendment. I was not able to be present on the previous occasion at the late hour that this matter was discussed but I have read what was said with care. This amendment seeks to tackle in an extremely sensible way the weakest part of this Bill from the point of view of the public in Scotland, not just the lawyers. The danger of involving the Scots parliament in the removal of a judge in the way proposed in this legislation is great indeed.

The Government tell us—the noble and learned Lord, Lord Hope, has, of course, referred to this matter—that their reason for this measure is that the Westminster Parliament has a role (not unlike that which is suggested) in the removal of judges, if and when that is required, and it seldom is. But the point is that Scotland is a different place. Scotland is comparatively small. Edinburgh, where the law proliferates, is small. The Scots Bar is small. The noble Baroness, Lady Ramsay, smiles. She knows her Scotland well and I think that what I say rings true with her. Politicians and lawyers know one another and they meet socially. They gossip, if I dare say that. Many of them are interested in politics. It simply is not difficult to imagine a judge in Scotland making a controversial decision to strike down a Bill, or part of a Bill, which is dear to the hearts of the members of the Scottish parliament, or in some way cutting across some Scottish parliament members' interests, or the interests of their constituents. It will not be difficult to arouse political controversy almost immediately if one criticises a judge's competence. One can imagine the press comment, the gossip in Edinburgh within the law—perhaps it would stretch to Glasgow and even further—and the gossip among ordinary people.

The existing trust in the independence of judges which I referred to when I discussed the previous amendment—that trust is great in Scotland—will be damaged. That will happen whether or not the two-thirds majority is achieved. I can remember the political turmoil in a local authority when an education committee of which I was a member had to achieve a two-thirds majority for the removal of a teacher. We failed to do that but, my goodness, that teacher's life was difficult afterwards! Imagine being a judge after this process has failed to remove him.

The noble and learned Lord, Lord McCluskey, by insisting that a tribunal might be the hurdle which would have to be crossed before the parliament ever considered the matter, has given a good response. It is a good answer in the legal sense and from the public's point of view. People understand how tribunals can settle these matters, and they would accept that. One wonders how anyone in Scotland could conceivably not adopt that idea. I do not know whether a noble Lord from the Government Benches will join this discussion—I see that the noble Lord, Lord Hughes, is now present—as for a long time there has been no noble Lord present on those Benches, and no one has supported the Government on these matters previously. I do not know whether the noble Lord will do so on this occasion. I know that he is worried about other aspects of the Bill, as he has told me so. As I said, I do not understand how anyone in Scotland could not adopt this idea.

I believe that the noble and learned Lord, Lord Hope, has suggested my next point; namely, that the problems of the Scottish Office and of the Lord Advocate's Department lie outside Scotland. I wonder whether the saga of the students' fees is not about to be repeated. In that case the Scottish Office knew what to do and had the resources to do it but the department south of the Border refused to join in because of what it considered to be a potential knock-on effect for it. It may be that the Government's reluctance to adopt this idea has something to do with problems south of the Border and a fear that there may be a knock-on effect at Westminster. If that is the case, it is a total misreading of the needs of Scotland.

The Government must think again about this matter. It is enormously unwise to stick to their guns. This part of the clause will, above all, lay the Scottish judiciary open to politicisation. The amendment moved by the noble and learned Lord, Lord McCluskey, must be supported. As the noble and learned Lord pointed out, such a change can be made only by this Parliament. It is no good the Government saying that the Scots parliament can do it later. I hope that noble Lords on all sides of the House will support the noble and learned Lord.

Lord Jauncey of Tullichettle

My Lords, first I must confess that I was removed from shrieval office by resolution of both Houses of Parliament but in somewhat different circumstances when the last Labour government decided that it was no longer appropriate that there should be part-time sheriffs principal. Six of us were removed from office. However, I was in good company. I was removed together with the previous Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, and someone else who became senator of the College of Justice shortly thereafter.

At present, the Westminster Parliament is substantially sovereign. I use the word "substantially" rather than "wholly" because of the necessary abdication of that sovereignty in matters where European Community law is concerned—for example, the European Court of Justice directs United Kingdom courts to disapply provisions of primary legislation passed by Parliament. An outstanding example was the decision of the European Court that the Appellate Committee of this House must disapply provisions of the Merchant Shipping Act in relation to shipping vessels registered under the British flag but Spanish-owned. However, in general, the judiciary in the United Kingdom presently has the task of interpreting and applying primary legislation. It does not have the power to question why it was passed or to strike it down.

The position in Scotland under this Bill will be very different. As my noble and learned friend Lord Hope of Craighead lucidly pointed out at Second Reading, the Scottish parliament will have powers limited to those devolved to it by this Bill. Any legislation which it enacts which is outwith those powers will then be subject to challenge and will be brought before the courts in Scotland. That is likely to bring the Scottish courts into collision with the executive and the legislature in a manner previously unknown in the United Kingdom. I make no mention of the impact that the adoption of the European Convention on Human Rights into British law will have as well. It is therefore of critical importance that the independence of the judiciary from pressure by the executive and the legislature should be preserved. It is equally important that it should be seen by the public in Scotland to be preserved.

At present, the removal of a judge—always subject to the ultimate approval of Her Majesty—is placed by Clause 90 entirely in the hands of politicians: the First Minister and the parliament. The two-thirds majority presently written into the Bill, if anything, seems to emphasise the important part that Parliament is to play in any such exercise. That is hardly calculated to inspire confidence in the public at large in the independence of the judiciary, least of all in those litigants who happen to challenge legislation or other Acts of the Scottish parliament in the courts.

The temptation to get rid of a judge who may be a first-class judge and a first-class lawyer but who has had what might be termed the misfortune to deal with a number of cases involving the vires of legislation and who has perhaps come down on the side of ultra vires may be large. It will not do simply to say that it is all right and it can be left to the good sense of the First Minister, whoever he is at whatever time. We do not know how the Scottish parliament will develop. This is far too important a matter to be left purely to chance. I suggest that the First Minister, left to himself, will not be suitably qualified to evaluate at first instance the competence of a senior Scottish judge to do his duty.

The removal of the initial assessment of a judge's competence from politicians to an independent tribunal provides a constitutional safeguard which should be written into the Bill. The need for such an important safeguard is far too important a matter to be left to the whims of future Scottish politicians.

At present, Section 12 of the sheriff courts Act has machinery for the removal of a sheriff. My noble and learned friend Lord Hope of Craighead mentioned that point. However, such a sheriff can be removed only after a report in writing to the Secretary of State by the two senior judges, followed by action by the Secretary of State. The initial assessment of a sheriff's inability or ability is made by two senior judges.

That section was considered by the Appellate Committee of this House within the past year. One of the arguments addressed by the sheriff was that a broad construction of the words, "unfitness through inability", was to encroach upon the independence of the judiciary. The answer to that proposition which commended itself to the Appellate Committee was this: The two senior judges, who might be considered to be the persons best qualified to assess a sheriff's fitness and to recognise the importance of judicial independence, are thus the bulwark standing between the sheriff and any undue interference by the executive". I submit that the independent tribunal proposed by my noble and learned friend Lord McCluskey in this amendment would constitute just such a bulwark.

In conclusion, perhaps I may mention two matters raised by my noble and learned friend Lord Hope. He stated, and I entirely agree, that the practice and procedure for the removal of a judge must involve independence, fairness and speed. I merely add that it seems to me very important that the tribunal carrying out the function of determining whether a judge is or is not fit should be composed of persons who are qualified to assess that unfitness.

My noble and learned friend suggested that the Government were concerned about the fact that the innovation of a procedure for the removal of judges in the Bill might have some effect in England and Wales. It is a very different situation. So far as we see at present, no English judge is likely to be called upon to consider the vires of legislation passed by the Parliament at Westminster apart from questions on human rights. For those reasons I strongly support the amendment moved by my noble and learned friend Lord McCluskey.

Lord Ackner

My Lords, in view of the confession so recently made by my noble and learned friend Lord Jauncey, perhaps I should confess that there was an occasion when I was a judge of the Queen's Bench Court when a Humble Address was sought in this House to remove me from that office. I had made a wholly justified interlocutory injunction against a sensitive trade union which took it amiss. I am happy to say that Lord Broxbourne, formerly Sir Derek Walker-Smith, came to my rescue by putting down an amendment which provided for the deletion of everything except "That this House" and the insertion of, recognises in Mr. Justice Ackner", and there followed a string of qualities which even my best friends would not have associated with me. When, to my anxiety, he asked for the matter to be debated, the Leader of the House thought that this entertainment had gone too far and it was never put to the test.

Sadly, I cannot claim authorship for the fine words: an independent judiciary is an essential safeguard and key element in our constitution".—[Official Report, 6/10/98; col. 417.] They were the words with which the noble and learned Lord the Lord Advocate began his reply when the matter came before the Committee on 6th October. The need to safeguard the independence of the judiciary is therefore fully recognised. Yet, remarkably, by the terms of the Bill the First Minister is not required to prove that the judge is incompetent in any way. All that the Bill requires is that he should be satisfied that the judge should be removed and that he should specify the ground for the removal. No opportunity is given by the Bill for the judge to appear before an independent tribunal to be given the opportunity to defend himself against whatever accusation is made. I respectfully submit that that is a serious attack upon the independence of the judiciary.

I expect the answer to the noble Lord, Lord Lester, to be that judicial review does lie. But, if that is the right answer, I wholly disagree that it is an alternative that we should consider. Judicial review takes time. It can be the subject of appeals, right up to the House of Lords, and that will delay what should be an urgent decision. As has recently been pointed out, with great respect, Scotland is a small place. To bring on judicial review would involve a considerable degree of embarrassment and difficulty.

I wholly support what is proposed in the amendments, with one minor exception, which can perhaps he reconsidered. I do not like tribunals consisting of two judges, particularly when a matter as serious as this is concerned. Have one judge, if you must, or three judges, or five judges; but do not let us have a tribunal that is almost constituted to disagree. I sat as the second judge in a two-judge court with the noble and learned Lord, Lord Denning, with whom I had the effrontery to disagree. He agreed with me that a two-judge court was merely a cost-saving mechanism and was undesirable. Cost saving should be no part of the consideration of this matter in the Scotland Bill. I therefore urge that in due course, once what the noble and learned Lord, Lord McCluskey, has proposed is agreed to by your Lordships, some thought should be given to the appropriateness of having an uneven number of judges for this very important tribunal.

6 p.m.

Lord Clyde

My Lords, I am sorry that I have no colourful judicial experience to add to that of the noble and learned Lords who have spoken before me on the matter of the removal of a judge. However, I assume that the noble and learned Lord the Lord Advocate would accept all the matters of principle that have been raised in the debate and the desirability of an independent tribunal of some kind in order to resolve the matter. What I suspect is at issue is whether the provision should be inserted in the Bill. The noble and learned Lord may say that it is inconceivable and unimaginable that some procedure will not be put in place in due course. It may be that he will say that he does not wish the Bill to be cluttered up with lengthy amendments of this kind. Those reasons will not do.

In this Bill we are launching a great vessel; we are giving it a captain and a crew; and we are letting it steer its own course into an uncharted sea. We cannot foresee with any confidence how that vessel will conduct itself and in what turns, twists and manoeuvres it may engage. It may well be that all will be well, but one cannot predict that with absolute confidence. There is therefore the greater necessity to provide for these matters at the stage of the launch. No doubt, when the "Titanic" was launched, people said, "It is unimaginable that this ship can sink"; and no doubt many said, "It is unacceptable to clutter up its decks with more lifeboats." I am concerned that in this Bill we should not launch a vessel which is doomed to catastrophe.

Lord Wilson of Tillyorn

My Lords, being a layman, I have some hesitation in speaking after the eloquent speeches of so many noble and learned Lords. Perhaps I may call in aid two matters. First, the independence of the judiciary is so important that it should be of concern to those who are not learned in the law. Secondly, to float a little vessel from what may seem an odd part of the compass, when we were negotiating the future of Hong Kong we strongly argued, quite rightly, that the independence of the judiciary was a key part of the system. The system had been such that to dismiss a senior judge was very complicated. It would not have satisfied the desire of the noble and learned Lord, Lord Hope of Craighead, for speed. It required a tribunal and a reference to the Judicial Committee of the Privy Council. I do not believe it had been used for many years. The Judicial Committee had to drop out, for obvious reasons. We argued strongly with China that judicial independence from the executive and from the legislature was crucial. A provision was put into the agreement that there should be an independent tribunal, which would be headed by the Chief Justice, and only after that tribunal had proclaimed would the matter go to the legislature, which had to give its approval. That was agreed with China. It was included in the agreement and is in the mini-constitution of Hong Kong, valid for at least the next 49 years. I believe it is also the case that within the Commonwealth after the late 1950s all new constitutions had some form of independent tribunal.

As a layman it seems to me that judicial independence is crucial and we should establish the right provisions for the future of Scotland that not only work in practice but are seen in advance to be sufficient to guarantee the independence of the judiciary from the executive or the legislature. It does not matter, does it, that the procedure will probably not be used for 50 or perhaps one hundred years? It is not sufficient to revise it when it comes to that time. We need to have in place a provision which is seen to be right by the broad public before this particular vessel is launched.

The amendments tabled by the noble and learned Lord, Lord McCluskey, do not in any way undermine the main purposes of the Bill, which for my part I support, but reinforce its effectiveness of it. I hope that the noble and learned Lord is able to say that the Government will take account of all that has been said and will either accept the amendment or produce an alternative of their own.

Lord Fraser of Carmyllie

My Lords, I have appended my name to the three amendments that have been spoken to by the noble and learned Lord. My support for what has been proposed remains as strong as, if not stronger than, ever. I am not in the least surprised to learn that the noble and learned Lord, Lord McCluskey, has received a wide range of senior legal support for this proposal from the length and breadth of Scotland.

I should like to make two points. In particular I address the argument that this is a matter which can be left to the Scottish parliament itself. First, whatever may be the good collective instinct of the Scottish judiciary not to trespass or to become unnecessarily involved in parts of the political process, I believe that in a very short space of time it is inevitable that a number of disputes will come before the courts which have a political quality that previously they would not have had. It is for that reason that I believe it to be wholly desirable to settle the matter of the independence of the judiciary before there is any risk of such disputes coming before the courts and any challenge being made as to the integrity and independence of the judiciary.

The second reason why I should like to see this amendment on the face of the Bill is that already advanced by the noble and learned Lords, Lord McCluskey and Lord Hope. Let us assume that at a future point the Scottish parliament decides that the best way to resolve the matter is along the lines advanced by the noble and learned Lord; namely, that an independent tribunal should be established. If such an approach were adopted the next important issue to be determined would be the composition of that tribunal. If one envisages, as one must, that from the Lord President downwards the judge may be at the centre of proceedings it is virtually impossible to conceive of a composition of a tribunal that is intra vires the Scottish parliament. I believe it is absolutely clear that it would have be along the lines of the three groupings advanced by the noble and learned Lord. I do not believe that the groups chosen by him for the purposes of his amendment are in any way an arbitrary selection of possible candidates; indeed, they are the only ones who would be appropriate to deal with holders of such high judicial office in Scotland.

I intended to say that provisions along the lines of subsection (9) would not be appropriate for the Scottish parliament to legislate upon, but now that we have had the opinion of the noble and learned Lords, Lord McCluskey and Lord Hope, that that would probably be outwith the powers of the parliament, the fact that I agree with them may be a rather redundant observation. Nevertheless, it is very important that before the parliament is established we try to ensure the independence of the judiciary. If the fitness of any Scottish judge at the most senior level is to be questioned it is wholly desirable at this stage before the parliament gets under way that we establish and secure the integrity of the judiciary and that if there is to be any challenge it is considered only by a tribunal of the distinction suggested by the noble and learned Lord.

6.15 p.m.

Lord Hughes

My Lords, I am not sure that I am wise to enter into this debate given the presence of so many legal luminaries. Although the University of St. Andrews conferred upon me an honorary doctorate of laws, the only judicial appointment I have ever held is that of a bailie sitting in the police court in Dundee. I do not claim any legal qualifications. I should like to make a very simple point. I understand that as the Bill originally stood a judge could be removed if a majority of the parliament voted for his removal. That was amended by making it a majority of two-thirds. I am not happy about that. Two-thirds would be 86 members of the parliament as presently composed. If it came to a vote and 65 or 70 members voted for a judge's removal he could not be removed because it would not amount to a two-thirds majority. But I suggest that in those circumstances any self-respecting judge would be forced to resign if parliament had shown that a majority of those voting did not believe that he was fit to hold office. Therefore, the two-thirds majority is no real safeguard.

I am minded to vote for this amendment unless my noble and learned friend the Lord Advocate can come up with something—perhaps a more simple proposal—which has the effect of enabling a judge to be removed only when it is obvious under the procedure adopted that he is unfit for office. Incidentally, in the past judges have been found to be unfit for office in Scotland but they have never been sacked. Their colleagues have always persuaded them to resign.

Lord Mackay of Drumadoon

My Lords, as the noble and learned Lord, Lord Hope observed, the background to this debate is the fact that when the Bill was first presented to Parliament it contained a clause which dealt with both the appointment and the removal of judges. The clause was necessary because on this issue this devolution settlement follows a different tack from that which gave rise to the Scotland Act 1978. For those of your Lordships who have followed the progress of this Bill through Parliament it must come as a surprise that at this very late stage in the history of the Bill there remains a very major dispute between noble Lords on all sides of the House and the Government. I hope very much that at this late stage we shall at long last see some movement on the part of the Government on these very important issues.

The simple question that arises is: what is objectionable in principle to the proposal in the three amendments tabled by the noble and learned Lord, Lord McCluskey, to which I and other noble Lords have also put our names? No doubt, like the noble and learned Lord, Lord Ackner, one can raise questions of detail as to whether it should be two or three judges; and perhaps one can criticise other points of detail. But what is objectionable in principle to separating the two stages in the process of removing judges: first, the determination of whether or not there is unfitness; and, second, once that matter has been established, the bringing of that matter before parliament for the appropriate resolution or motion to be moved? That was a point focused upon by the Faculty of Advocates many months ago in its memorandum to the Government, as the noble and learned Lord, Lord McCluskey, said. What it says is fundamental to a consideration of these amendments and I repeat it: The Faculty is also of the view that it is necessary to have some means of determining the fitness of judges that is independent of the political process". I believe that to be the nub of the matter, for the very obvious reason that when the Scottish parliament is up and running, either immediately or after a year or two, issues will inevitably come before the courts of the greatest political sensitivity. I give one example. Would it be within the competence of the Scottish executive to call a referendum on whether or not the people of Scotland wished to have independence or to enact legislation to that effect? One can picture the papers the following day if judges in the Court of Session in Edinburgh—or, more likely, judges who are sitting as Members of the Judicial Committee of the Privy Council—reach a decision that an Act of the Scottish parliament authorising such a referendum is ultra vires and cannot take place. The press will be full of criticism, not just from politicians but all parts of Scotland. Equally, the press will be full of messages and expressions of support for the judges who will be caught up in a highly political situation. For that reason, I believe that it is essential that the two stages of this process should be set down on the face of the Bill.

Lord Hughes of Woodside

My Lords, there is a matter which has been puzzling me. While I wholly accept the independence of the judiciary, I am asked to believe that it is necessary for an independent tribunal of some kind to rule on the competence of judges. Independence of politicians, yes, but all the people who are named are not independent of the judiciary. I do not understand how it can come about that the judges are presumed to be so independent they can independently rule upon themselves. The noble and learned Lord mentioned a scenario in which there would be a great furore about the referendum being denied. If the furore was so great, no tribunal composed of judges would wish away that political maelstrom. In my view, neither of those two points has been sufficiently answered for me to support the amendments.

Lord Mackay of Drumadoon

My Lords, I am grateful to the noble Lord, Lord Hughes, for his intervention, which illustrates the point I make. Judges are being pulled into highly political issues. They have to rule on an issue of law. Unless the Bill clearly states what should happen if there are calls for the sacking of the judges concerned—calls from people who may not have studied the history of this Bill, let alone the detail, with the same interest as the rest of us—I perceive there will be difficulty. On the other hand, if there are such calls, the First Minister can say to parliament, "This was decided back in 1998." That is the procedure which will have to be followed. If he could point to something in the Bill then that would serve to quell any calls which would inevitably arise for the removal of the judges concerned.

I return to the first point made by the noble Lord. That is a good example of a matter of detail. I can see the force of the argument that a tribunal could contain a mixture of judicial members and people without legal qualifications. A number of tribunals sit in this country which have such a mixed composition. Such an amendment, if tabled, would fall to be debated on its merits.

The style which the noble and learned Lord, Lord McCluskey has followed is already in legislation in the Sheriff Courts (Scotland) Act 1971 which provides for the removal of the sheriffs. The last time we debated this matter I believe the noble and learned Lord the Lord Advocate said that that has not given rise to any criticism as to the procedure followed, subject to one comment; namely that it may be unfortunate that the Lord President and the Lord Justice Clerk are the two judges concerned. As the noble and learned Lord, Lord Hope, said on more than one occasion, by the time it comes to such an inquiry, the judges are tainted by bias because they have practical experience of the failings of the sheriff concerned. Therefore, it may be difficult for them to stand back and be independent. That is why I believe that the tribunal, as defined by the noble and learned Lord, Lord McCluskey, in Amendment No. 177, is an improvement on the provisions in the 1971 Act. I have no absolute view that under no circumstances could lay people be involved. However, I have an absolute view that they should not be members of the parliament or active in any party politics. I am quite sure that an accommodation to that effect could be reached.

I return to the point I was making. I believe that this detail should be on the face of the Bill. The noble Lord, Lord Lester, may well be correct that principles of administrative law, and other principles, may come to the rescue of the judge concerned to ensure that the inquiry and procedures are fair. With the greatest respect to the noble Lord, I do not believe that we can afford to wait to see if he is correct. Like all noble Lords who are lawyers and have been in practice, occasionally the opinions one expresses on the law turn out not to be the ones supported by the court. I should prefer to see this provision in the Bill. That is why I firmly support the amendments.

Finally, I take the point raised by the noble Lord, Lord Hughes—

Lord Lester of Herne Hill

My Lords, I am grateful to the noble and learned Lord for giving way. I should like to clarify a point which may have been misunderstood. I said that there were three ways of achieving the objective; the first two are by means of statutory tribunal. I raised the possibility as to the effectiveness of judicial review as an alternative approach. I await the Government's reply. However, I see the force of the argument that the best way is by means of a judicial commission or tribunal.

Lord Mackay of Drumadoon

My Lords, I am grateful to the noble Lord for that clarification. As I have said, when this matter was last debated I put forward the very argument made by the noble Lord, Lord Hughes; namely that a judge who survived in the sense that only a simple majority was achieved and not the necessary two thirds would be in an impossible position. The noble Lord may well be right that any judge in such a position would resign but I should not want to see that possibility arise.

This matter was debated fully in Committee in the middle of the night. It has been debated fully today. I understand, from what the noble and learned Lord, Lord McCluskey, said earlier, that he does not intend to press Amendment No. 175 at this stage. However, if he presses Amendments Nos. 176 and 177 to a vote, I shall support him in the Division Lobbies. I should encourage my noble friends to do likewise.

Lord Hardie

My Lords, as the noble and learned Lord, Lord Mackay of Drumadoon, said, this has been a long and interesting debate. We have rehearsed many of the reservations about the provisions in the Bill for the removal of judges. Those reservations were also rehearsed in Committee over a considerable period, albeit early in the morning.

The noble and learned Lord, Lord McCluskey, acknowledged the many points of agreement between noble Lords who support this amendment and the Government. The noble and learned Lord, Lord Ackner, acknowledged in Committee that I recognise and place considerable importance on the independence of the judiciary. So we are agreed about that principle. We are also agreed that there must be a workable process for the removal of judges who are no longer competent to carry out their role. I think we are also agreed that robust arrangements will have to be made to determine whether a judge is unfit. In particular, we agreed that in any such case, the grounds for removal should be clearly stated. The only point on which we are divided is how much of the detailed procedure should be on the face of the Bill. In other words, should this matter be settled here and now at Westminster or left to Holyrood?

As I have said, the Government are committed, as I am, to protect the independence of the judiciary. The House should not doubt that we understand absolutely the need for the proper separation of powers between the legislature, the executive and the judiciary. We also recognise that such separation can never be absolute, as this House knows to its great benefit. However, we accept completely that a substantial degree of separation is needed if the legal process is to operate without fear or favour. In recognition of the fact that this is a key issue, we have gone much further than any provision currently in statute by spelling out in this Bill the only grounds on which a judge may be removed. I would invite the House to contrast that with the present position under the Supreme Court Act 1981, which governs the procedures for England and Wales, to which I shall return.

I say to noble Lords who raised the issue of England and Wales that that is not a reason for our resisting the amendment. We do not resist it in case there are repercussions for England and Wales. I assure noble Lord that that has not entered into our deliberations. The reference to England and Wales and the Supreme Court Act 1981 is simply to draw a distinction and to show that in this Bill we set out the specific grounds upon which the First Minister can put a Motion before parliament.

I submit that the task before us is to ensure that the Bill contains the fundamental safeguards required for the separation of powers; in other words, the protections which are essential to safeguard judicial independence. The other side of the task must be to ensure that those safeguards are framed in a way which will stand the test of time. That is an important consideration for noble Lords to bear in mind when considering what to do at the end of the debate. We must be careful that in a relatively short time the provisions may come to be seen as too inflexibly constructed to be able to cope with reasonable changes in the wider world.

I remind the House that the clause is entrenched; it can be amended only here at Westminster. If there are calls to amend the clause in five or 10 years' time because we have failed to leave room for the development of a significant role for, say, a ministry of justice, or a particular committee structure in the parliament, or simply a different type of investigative tribunal—perhaps one including a lay voice—the task here will not have been done correctly today. Indeed, we may build in detail here today which on further reflection, in very short order, we come to think as not right because it has been conceived in relative haste.

The House has doubtless noted that the detailed proposal put forward here already shifts the ground as compared to proposals suggested by noble and learned Lords a matter of weeks ago. For example, on 6th October, at col. 418 of Hansard, the noble and learned Lord, Lord McCluskey, admitted that this might not simply be an issue for determination by the judiciary alone. And yet we have before us this amendment, which seems to entrench that proposal—

6.30 p.m.

Lord McCluskey

My Lords, the noble and learned Lord the Lord Advocate was offered that particular carrot by me. I was perfectly happy to accept the government amendment under which the determination as to fitness or unfitness was given to persons other than judges. The Lord Advocate did not accept that and the Government showed no willingness to do so. I therefore consulted extremely widely in Scotland and decided that the appropriate amendment for me to table was this one. If the Government want to have a lay element I am perfectly happy to accept it. I should be delighted to welcome it.

Lord Hardie

My Lords, we are considering the amendment tabled by the noble and learned Lord, Lord McCluskey. It is the amendment which he has tabled. I referred to our debate in Committee where the noble and learned Lord intervened when I was replying. He said: Does the noble and learned Lord recognise that I accept that there does not have to be a complete adjudication by judges for reasons that are easy to understand? What is required is that there should be an impartial, independent tribunal which may include judges but does not have to include nothing but judges".—[ Official Report, 6/1 0/98: col. 418.] If that is the noble and learned Lord's position, and if the desire were to secure an independent tribunal, it would have been possible for him to frame an amendment setting up a tribunal which included judges, but not exclusively. The whole point of our exchange is to show that in the course of two weeks the position seems to have shifted.

I submit that our aim should be that Clause 90 should be accepted as a fundamental part of the constitutional settlement. For that reason, it is fundamentals that the clause should contain and no more.

The principal fear which has been voiced is that the procedures set out in Clause 90, particularly those for the removal of judges, do not provide enough protection against "political" abuse. I do not agree that this is a fair criticism and I would urge the House to look carefully at the provisions in the clause. Subsection (8) provides that: The First Minister shall not make a motion under subsection (7) unless … he is satisfied that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour". He must be satisfied on one or other of those criteria before he can make the motion to parliament. In the case of the senior judges, the Lord President or the Lord Justice Clerk, there is the additional safeguard that he has consulted the Prime Minister.

As I have indicated, that goes much further than the Supreme Court Act 1981, which is entirely silent on procedures. There is no mention of the grounds on which a judge may be removed; far less any question of a tribunal. Subsection (8)(a) provides that the First Minister must be satisfied that the person is "unfit for office". Those are strong words. No other reason is admissible or admitted apart from inability, neglect of duty or misbehaviour.

Perhaps I may take up the point raised by the noble Lord, Lord Lester of Herne Hill. It is correct that if the First Minister decided to seek the removal of a judge for any other reason apart from those three, or if he took action which, applying any sense of reasonableness, did not amount to anyone being reasonably satisfied on any of those grounds, there would be a question for the judge to seek judicial review in the courts.

The noble and learned Lord, Lord Ackner, asked about judicial review. Of course it involves delays and there are opportunities properly to appeal to the Judicial Committee of this House. However, is the noble and learned Lord satisfied that even if a tribunal were in place there would be no opportunity for judicial review of the proceedings of the tribunal? If the judge felt aggrieved about the procedure that had been followed could he not seek judicial review of that?

The Earl of Balfour

My Lords, before the noble and learned Lord leaves that point, I wish to ask a question in respect of subsection (8)(b). The Lord Advocate has a staff behind him. Should not his successor in office be included in that provision? During our earlier proceedings, the noble and learned Lord, Lord McCluskey, stated that because of the Lord Advocate's staff and his position he held a special place in respect of the appointments of judges, sheriffs and so forth—

Lord Williams of Elvel

My Lords, as I understand it, we are on Report. It is for the Minister to respond on Report. There may be interventions of a very short nature, as I understand the Standing Orders, but I think the whole House would be grateful if we could get on with the business.

Lord Lester of Herne Hill

My Lords, I should like to ask a question arising directly out of the earlier exchange. Is the noble and learned Lord the Lord Advocate not able to assure the House, in answer to the points I put, that judicial review under the Scotland Bill, read with the Human Rights Bill, will go no further than a review of the legality of purpose; that it will not look at the merits of decisions and review the matter from the point of view of the basic civil right of the judge concerned to natural justice, or the loss of his office, as a valuable right, looked at on its merits? If that is the position, I can support the amendment. I hope that the Minister can assure noble Lords that judicial review would go much further.

6.45 p.m.

Lord Hardie

My Lords, I was dealing with the point of subsection 8(a), raised by the noble Lord, Lord Lester, in that context. Judicial review is a very wide remedy and, as I stated earlier, if there were reasons other than the three which are specified, clearly there would be a remedy of judicial review. Equally, if the view was taken that no reasonable Minister could have reached the view that on the information before him the test was satisfied, that would also give rise to judicial review. Of course there are questions of natural justice and that is what I was alluding to in my reference to the possibility of reviewing the proceedings of the tribunal. Questions of natural justice would be a ground for judicially reviewing an administrative decision of the First Minister. I hope that that answers the point.

I have not heard any persuasive account of how a political motive could be successfully dressed up as meeting the clearly limited criteria set out in subsection 8(a). Without such a persuasive account, fears of political abuse are simply not supported by a re-reading of the clause.

Noble Lords should bear in mind that the First Minister will have to be prepared to defend his view before the parliament and even before the courts if a judicial review were, for example, to be raised. No First Minister would embark on this road unless he was very sure of his ground. We have tended to discuss this clause so far as though there were only risk on one side of the equation; namely, that of the judge whose removal might be sought. But there are, it seems to me, very large risks for the First Minister if he attempts to subvert this process.

I invite the House to look at subsection (7)(b) of Clause 90 which requires members representing two-thirds of the seats to support a motion for removal. This point has featured in the contributions of a number of noble Lords. It has been correctly observed that when the Bill was first introduced in another place there was no such requirement; it was a simple majority. I can understand the concerns of noble Lords, including the noble Lord, Lord Hughes, and the noble Baroness, Lady Carnegy of Lour, about the effect on a judge if a two-thirds majority is not achieved. However, the proposal for a two-thirds majority was introduced after consideration as to how judges might be better protected. I understand that it found favour with senior members of the judiciary in Scotland at that time. It was seen as an important safeguard in protecting the judiciary. I understand that the noble and learned Lord, Lord Rodger of Earlsferry, the Lord President, thought that it was an improvement to the Bill.

The effect of the two-thirds majority is that 86 people will have to vote in favour of removal of a judge before that could be achieved, and it would require an exceptional degree of cross-party support before the judge could be removed. If we are to amend the Bill for fear of political abuse of power, we owe it to the electorate to make a cool-headed assessment of the political realities of the situation. With great respect, I have gained the impression recently that some noble Lords are concerned that the steady good sense of the people of Scotland is somehow no longer to be relied upon. I did not find the comparisons with the former USSR helpful and thought them slightly over the top.

If ever the time comes when 86 members of the Scottish parliament wish to remove a judge for political reasons and are prepared to risk not only their public standing but also that of the judicial process as a whole, I suggest that we would be facing a constitutional crisis of such dimensions that what is said on the face of the Scotland Bill will, frankly, be neither here nor there.

Furthermore, as I have already noted and as I indicated in Committee, as matters stand judges in England and Wales have only the protection of a motion agreed by both these Houses under Section 11(3) of the Supreme Court Act 1981. I am not aware that this has come under any pressure for review, nor have I heard any serious suggestion that there has been political abuse of these powers. We are asked to disregard this absolutely crucial point on the grounds that the advent of "devolution questions" and the Human Rights Bill will so dramatically change the relationship between the courts and the Government that the long history of absence of political abuse of these powers ceases to be of any relevance. We are also asked to assume that the introduction of the parliament will void the existing conventions about the use of such powers. That simply is not tenable. The courts have long had, and on occasions have used, the capacity to greatly embarrass on occasion the executive. We should not exaggerate the extent to which the role of the judiciary is going to change, nor the extent to which the political realities which underpin existing conventions will be altered.

I do not seek to suggest that there is no scope to elaborate on what is in the Bill. We intend that the Scottish parliament should be able to add to the procedures which must be observed by the First Minister before he makes his Motion to the parliament. This afternoon and evening and in earlier debates, many distinguished holders of judicial office have made thoughtful and thought-provoking contributions regarding what additions to the process set out here there may be.

This is an important debate. It is one that the Scottish parliament itself is empowered to take forward. But the more we write into the Bill now, the more we limit the ways in which this process can be developed in future. Significant debates which have been opened in this House will, for all practical purposes, be closed down again before they have barely begun. We should be in no doubt that were we to accept these amendments, it would be practically impossible to add significantly to the process for weighing up the case for and against removal. The amendments clearly assign that task exclusively to the proposed tribunal. The two senior members of the judiciary involved would become the gate-keepers, with absolute power to decide whether a case should progress. Once they have opined, there can be no practical role for any other body. Earlier, I touched on the scope for involvement in this debate. It cannot be right for this House to take a decision today that the gate-keepers should be the senior judiciary and no one else.

Further, the amendments do not specify which other procedures the tribunal is to follow. We have heard that there is a need to allow the judge himself to know the case against him and make representations. Those points were made by the noble and learned Lord, Lord Hope of Craighead. But the amendments here do not provide that safeguard. Is there to be a hearing at which the judge concerned is to be entitled to be heard? If not, what are the procedures? The Government consider that it would be preferable if the matter could be left in the hands of the Scottish parliament to devise a properly worked-out procedure, rather than adopting a procedure which has not been worked out in detail and which, as a proper solution, does not go far enough.

The noble and learned Lord again referred to the Latimer House guidelines. When we discussed this matter earlier in Committee, the noble and learned Lord mentioned those guidelines. As he has said, they were the product of a conference in June 1998 which adopted a series of principles and guidelines for consideration by the next meeting of the Commonwealth Heads of Government in November 1999. For the present therefore the guidelines have not been formally adopted by any government and I am not persuaded that they ought to influence the way in which your Lordships' House should reach decisions on what needs to go into the Scotland Bill now.

As regards ECHR, the noble and learned Lord referred to Article 6 of the European Convention on Human Rights, as he did in Committee. Since then, we have considered that point and are satisfied that there is no difficulty on that score. The Government take the view that the termination of office of a judge does not involve the determination of a civil right. That is because the European Court of Human Rights has drawn, in its decisions, a distinction between rights of appointment and termination in the public sector, which are matters of public law, and economic rights, such as rights to payment of salaries or pension, which are matters of private law, giving rise to civil rights. I can give the noble and learned Lord the necessary authorities, if he wishes.

I would urge noble Lords to think carefully about these amendments. I repeat the point I made at the start of my reply. There is not an essential difference between us about the need for the independence of the judiciary and the need for a robust, workable procedure for the removal of judges which is not open to abuse. However, the Government submit that our aim should be that Clause 90 of the Bill should be accepted as a fundamental part of the constitutional settlement and for that reason it should contain no more than it does at present. If we write more into this clause than is strictly required and create an unnecessarily tight straitjacket which causes problems in the future, I am afraid we shall not have done our task properly. The Government accept that there is clearly a significant debate to be had about how the framework in the Bill might be augmented. But if we choose in this House not only to begin this debate but also to end it, we indeed do the Scottish parliament—and I would argue the judiciary itself—a great injustice.

I very much hope that the noble and learned Lords will consider those arguments and withdraw their amendments.

Lord McCluskey

My Lords, the noble and learned Lord will be disappointed by my response. I have a right to reply and I shall be as brief as I possibly can. I shall allow the speech of the noble and learned Lord the Lord Advocate to lie where it fell.

I trust that the noble Lord, Lord Lester of Herne Hill, is now satisfied, having heard the noble and learned Lord the Lord Advocate, that judicial review is not an adequate way of dealing with the matter because it cannot review the merits.

The noble and learned Lord referred to the propensity of politicians. The most distinguished and in some ways admirable politician of my lifetime was Franklin Delano Roosevelt, who came into office in 1932. He immediately tried to pack the Supreme Court with his own appointees because they seemed to him to be standing in the way of his political programme. Therefore, even the best of democrats will interfere with the judiciary if they can.

As regards the details, I do not care whether it is two or three judges. My original amendment provided for two or more judges. Some noble Lords did not like that and so I should be happy to have one judge or three or five judges, whatever is suitable to the Government. It is for the Government to make those proposals. It is not for me to write details of procedures about how judges should be given the opportunity to reply to charges of impropriety. That is not my job. I am here to raise a point of principle and I have sought to do so.

I agree entirely with the noble Lord, Lord Hughes, that to require a two-thirds majority is to say, in effect, to the legislature, "You have the power", whereas the present position is that constitutionally Parliament simply rubber-stamps the decision which is taken behind the scenes or, in my system, by a tribunal.

I have a lot of sympathy with what the noble Lord, Lord Hughes of Woodside, said, and he made the same point in Committee. We do not have to have a body which consists entirely of judges. There may be good reasons for including laymen or making it consist only of laymen. As I said on another occasion, one does not have to be a judge to determine whether a man is dishonest. If a man is beating his wife or molesting children, people other than judges can decide whether he is unfit on that ground. I should be perfectly happy and should welcome a move by the Government to make the tribunal embrace people of that kind.

A point was made about the length of my amendments. They are quite modest. I do not suppose that size matters in this context, but my amendment is only 19 lines long. We have already agreed to add 34 lines to the Bill to introduce the Queen's Printer. If the Queen's Printer is worth 34 lines, surely a modest 16 to save the judiciary is not too much.

The noble and learned Lord the Lord Advocate says that the question is as regards how much of the detail should be in the Bill. He misses the point. We are perfectly happy with the mechanics of removal. There is no detail at all in the Bill in relation to determination of the question of unfitness. It is that which is lacking and I regret that the Government have failed to see that.

The Government ask how the First Minister could get away with dressing up his particular political prejudices as unfitness. It happens every day. It is happening now in Sri Lanka, where some of the judges who are against the government are facing bogus charges of assault and so on. Therefore, it is quite possible for politicians to come forward with such charges. It is vitally important that judgments on those matters should be made by those who are other than politicians.

Today your Lordships have heard that the Scottish judges, the Lords of Appeal in Ordinary, retired Lords of Appeal in Ordinary, former Lords Advocate, the Law Society of Scotland, the Faculty of Advocates and others support these amendments. It is arrogant of the Government to say that they cannot agree and see no need for this provision. I have no troops. I have no Whip to bring people to the House. But I hope that your Lordships in all parts of the House, not least those on the Liberal Benches, who have listened carefully to the argument and taken part in it, will support me. I shall not press Amendment No. 175 because that is necessary if the Government win in relation to the other amendments. I will ask your Lordships to support me in relation to Amendment No. 176. In the meantime, I beg leave to withdraw mendment No. 175.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 176:

Page 42, line 40, at end insert— ("( ) he has asked an independent tribunal, established under subsection (9) of this section, to investigate and report on whether the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour, ( ) he has received a written report from the tribunal, containing a finding that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour and a statement of their reasons for so finding. ( ) he has laid before the Parliament a copy of the written report on the person in question.").

The noble and learned Lord said: My Lords, I beg to move.

7 p.m.

On Question, Whether the said amendment (No. 176) shall be agreed to?

Their Lordships divided: Contents, 144; Not-Contents, 108.

Division No. 1
CONTENTS
Ackner, L.	Jauncey of Tullichettle, L.
Addington, L.	Jeffreys, L.
Addison, V.	Jenkin of Roding, L.
Alderdice, L.	Jenkins of Hillhead, L.
Anelay of St. Johns, B.	Jopling, L.
Attlee, E.	Kingsland, L.
Baker of Dorking, L.	Kinnoull, E.
Balfour, E.	Leigh, L.
Beaumont of Whitley, L.	Lester of Herne Hill, L.
Beaverbrook, L.	Linklater of Butterstone, B.
Blaker, L.	Long, V.
Blatch, B.	Lucas of Chilworth, L.
Brougham and Vaux, L.	Ludford, B.
Bruntisfield, L.	Luke, L.
Burnham, L.	Lyell, L.
Byford, B.	McCluskey, L. [Teller.]
Caithness, E.	McConnell, L.
Cameron of Lochbroom, L.	Mackay of Ardbrecknish, L.
Campbell of Alloway, L.	Mackay of Drumadoon, L.
Carlisle, E.	Mackie of Benshie, L.
Carnegy of Lour, B.	McNair, L.
Charteris of Amisfield, L.	Maddock, B.
Chesham, L	Mancroft, L.
Clancarty, E.	Mar and Kellie, E.
Clyde, L.	Marlesford, L.
Colwyn, L.	Masham of Ilton, B.
Cooke of Thorndon, L.	Massereene and Ferrard, V.
Cope of Berkeley, L.	Meston, L.
Craigavon, V.	Molyneaux of Killead, L.
Cranborne, V.	Monro of Langholm, L.
Crathorne, L.	Monteagle of Brandon, L.
Crickhowell, L.	Montrose, D.
Dartmouth, E.	Mountevans, L.
Denham, L.	Moyne, L.
Dixon-Smith, L.	Napier and Ettrick, L.
Dundee, E.	Nelson, E.
Dundonald, E.	Newall, L.
Elliott of Morpeth, L.	Newton of Braintree, L.
Elton, L.	Northbourne, L.
Falkland, V.	Northbrook, L.
Feldman, L.	Northesk, E.
Ferrers, E.	Norton, L.
Fraser of Carmyllie, L.	O'Cathain, B.
Freyberg, L.	Palmer, L.
Geddes, L.	Park of Monmouth, B.
Gisborough, L.	Phillips of Sudbury, L.
Greenway, L.	Razzall, L.
Hamwee, B.	Redesdale, L.
Harlech, L.	Rees, L.
Harris of Greenwich, L.	Renton, L.
Harrowby, E.	Renwick, L.
Hayhoe, L.	Rowallan, L.
Henley, L.	St. John of Bletso, L.
Higgins, L.	Saltoun of Abernethy, Ly.
Holderness, L.	Seccombe, B.
HolmPatrick, L.	Selkirk of Douglas, L.
Home, E.	Sempill, L.
Hooper, B.	Shaw of Northstead, L.
Hope of Craighead, L.	Simon of Glaisdale, L.
Hothfield, L.	Skelmersdale, L.
Howell of Guildford, L.	Soulsby of Swaffham Prior, L.
Hughes, L.	Stair, E.

Stewartby, L.	Waddington, L.
Strathclyde, L.	Waverley, V.
Taverne, L.	Weatherill, L.
Thomson of Monifieth, L.	Weir, V.
Tope, L.	Westbury, L.
Tordoff, L.	Wigoder, L.
Trenchard, V.	Wilberforce, L.
Trumpington, B.	Wilcox, B.
Ullswater, V.	Wilson of Tillyorn, L. [Teller.]
Vivian, L.	Winchilsea and Nottingham, E.

NOT-CONTENTS
Acton, L.	Jay of Paddington, B. [Lord Privy Seal.]
Ahmed, L.
Alli, L.	Jenkins of Putney, L.
Amos, B.	Lockwood, B.
Archer of Sandwell, L.	Lofthouse of Pontefract, L.
Ashley of Stoke, L.	Lovell-Davis, L.
Bach, L.	McCarthy, L.
Barnett, L.	Macdonald of Tradeston, L.
Berkeley, L.	McIntosh of Haringey, L. [Teller.]
Biffen, L.
Blackstone, B.	Mackenzie of Framwellgate, L.
Blease, L.	Mallalieu, B.
Borrie, L.	Mason of Barnsley, L.
Bragg, L.	Merlyn-Rees, L.
Brooks of Tremorfa, L.	Milner of Leeds, L.
Burlison, L.	Molloy, L.
Carmichael of Kelvingrove, L.	Monkswell, L.
Carter, L. [Teller.]	Montague of Oxford, L.
Chandos, V.	Morris of Castle Morris, L.
Christopher, L.	Morris of Manchester, L.
Clarke of Hampstead, L.	Nicol, B.
Clinton-Davis, L.	Orme, L.
Cocks of Hartcliffe, L	Peston, L.
Crawley, B.	Pitkeathley, B.
David, B.	Ponsonby of Shulbrede, L.
Davies of Coity, L.	Puttnam, L.
Dean of Beswick, L.	Ramsay of Cartvale, B.
Dixon, L.	Randall of St. Budeaux, L.
Donoughue, L.	Rendell of Babergh, B.
Dormand of Easington, L.	Renwick of Clifton, L.
Eatwell, L.	Richard, L.
Evans of Parkside, L.	Scotland of Asthal, B.
Farrington of Ribbleton, B.	Sefton of Garston, L.
Gallacher, L.	Serota, B.
Gilbert, L.	Sewel, L.
Gladwin of Clee, L.	Shepherd, L.
Gordon of Strathblane, L.	Simon, V.
Goudie, B.	Smith of Gilmorehill, B.
Gould of Potternewton, B.	Stoddart of Swindon, L.
Graham of Edmonton, L.	Stone of Blackheath, L.
Grenfell, L.	Strabolgi, L.
Hardie, L.	Symons of Vernham Dean, B.
Hardy of Wath, L.	Taylor of Blackburn, L.
Harris of Haringey, L.	Thomas of Macclesfield, L.
Haskel, L.	Thornton, B.
Hayman, B.	Tomlinson, L.
Hilton of Eggardon, B.	Turner of Camden, B.
Hogg of Cumbernauld, L.	Uddin, B.
Hollis of Heigham, B.	Varley, L.
Howie of Troon, L.	Walker of Doncaster, L.
Hoyle, L.	Warner, L.
Hughes of Woodside, L.	Whitty, L.
Hunt of Kings Heath, L.	Williams of Elvel, L.
Islwyn, L.	Williams of Mostyn, L.
Janner of Braunstone, L.	Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

7.8 p.m.

Lord McCluskey moved Amendment No. 177:

Page 42, line 44, at end insert—

("(9) A tribunal established for the purposes of this section shall consist of two persons selected by the First Minister from—

1. (a) the Lords of Appeal in Ordinary;
2. (b) peers of Parliament who hold or have held high judicial office as defined by sections 5(3) and 25 of the Appellate Jurisdiction Act 1876;
3. (c) members of Her Majesty's Privy Council who hold or have held high judicial office as so defined.").

The noble and learned Lord said: My Lords, this amendment follows directly upon the one on which we have just voted. I beg to move.

On Question, amendment agreed to.

7.10 p.m.

Lord Sewel moved Amendment No. 177A:

After Clause 91, insert the following new clause—

ASSISTANCE FOR OPPOSITION PARTIES

(".—(1) Her Majesty may by Order in Council provide for the Parliamentary corporation to make payments to registered political parties for the purpose of assisting members of the Parliament who are connected with such parties to perform their Parliamentary duties.

(2) The corporation shall not make any payment to a party in pursuance of such an Order if any of the members of the Parliament who are connected with the party are also members of the Scottish Executive or junior Scottish Ministers.

(3) But such an Order may, in any circumstances specified in the Order, require the fact that any members who are connected with a party are also members of the Scottish Executive or junior Scottish Ministers to be disregarded.

(4) Such an Order may determine the circumstances in which a member of the Parliament and a registered political party are to be regarded for the purposes of this section as connected.").

The noble Lord said: My Lords, the amendment confers the power of Her Majesty, by Order in Council, to make provision for the Scottish parliamentary corporate body (SPCB) to make payments to any Opposition political party represented by MSPs in the Scottish parliament to assist those MSPs in performing their parliamentary duties. This money, as an expense of the SPCB, would come out of the Scottish consolidated fund.

It is intended that that should enable provision to be made for payments to Opposition parties in the parliament equivalent to the so-called Short money that is provided for Opposition parties in this parliament. That accords with the recommendation of the committee on the funding of political parties which was chaired by the noble and learned Lord, Lord Neill. It is envisaged that such money paid will be applied by the parties to obtain research and support facilities for Opposition Front-Bench spokesmen, assistance in the Opposition Whips' Office, and other staff for the leaders of the Opposition parties.

Although the amendment does not give full effect to the recommendations made by the noble and learned Lord, Lord Neill, and his committee for the provision of financial support to parties in the Scottish parliament, it provides a mechanism whereby some funding can be provided for Opposition parties in the Scottish parliament until such time as the Neill recommendations are considered fully by the Government and put on the statute book. We believe that it is important to act now as an interim measure so that a mechanism to provide financial support for Opposition parties in the Scottish parliament is in place as soon as the parliament is established.

Amendment No. 206F ensures that an Order in Council under the new clause will be subject to approval by resolution of both the UK and Scottish parliaments. That ensures that the Scottish parliament will have a say on what moneys are to be paid out of the Scottish consolidated fund. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, we warmly welcome the new clause which the Government seek to insert. It is unfortunate that the Government have not taken on board all of the recommendations of the Neill committee on this matter. One hopes that in the fullness of time—and not too long away at that—that the Government will take on board all the recommendations of the Neill committee and will not pick and choose between those that suit them and those that do not.

One point slightly puzzles me. Subsection (2) states: The corporation shall not make any payment to a party…if any of the members of the Parliament who are connected with the party are also members of the Scottish Executive". I presume that that envisages a coalition with two parties forming the Government. The "junior partner", if I may call it that, would not be eligible for the money. However, subsection (3) states: But such an Order may, in any circumstances specified in the Order, require the fact that any members who are connected with a party are also members of the Scottish Executive or junior Scottish Ministers to be disregarded". The two subsections seem contradictory. On the one hand, subsection (2) says that if your party is involved in the Government at all, you cannot have the money, whereas subsection (3) says that an order may state that you can have it. I am not sure whether I am reading that correctly, but perhaps the Minister could justify that contradiction.

Lord Renton

My Lords, before the Minister does so, I wonder whether I may be very daring and say that I am not in complete agreement with what has been said from both Front Benches. I must confess that I have not read what the noble and learned Lord, Lord Neill, said on this, but I am puzzled about the payments. Are they in lieu of salaries or in lieu of expenses? I find strange the idea that registered political parties should be given that responsibility instead of Parliament and the Government. The parties are not public bodies. They are not statutory bodies although they are to become registered. Parties are not elected by the people; members of various parties are elected by the people. I hope that I may be forgiven for raising that doubt, but I am puzzled. I was relieved when I heard the noble Lord, Lord Sewel, when moving the amendment, say, in effect, that the provision is experimental.

7.15 p.m.

Lord Sewel

My Lords, I did not say that it was "experimental"; I said that it was "interim". It is nice to hear the iconoclastic, independent voice of the noble Lord, Lord Renton, on this. He clearly has not checked his position with his own Front Bench. His noble friends may find that they are losing quite a bit of support in your Lordships' House on this question of the essential work of, and support for, Opposition parties that is necessary in the parliamentary process. We are not talking about payment in lieu of salaries or anything like that. We are talking about money that is made available in both Houses of this Parliament, the so-called Short money. It is made available so that the Opposition can employ researchers and to provide the Opposition Whips' Office with administrative and technical support. It has been in place for some considerable time now and is an accepted feature of the way in which we order our party affairs in parliament. I should have thought that there is no exception to it.

On the point made by the noble Lord, Lord Mackay of Ardbrecknish, I must admit that when I read the provisions I came up with a similar degree of puzzlement. He is right that it is the intention that a junior party in a coalition executive would normally be excluded from receiving Short money. However, if a party had just a single junior minister involved in the executive, that in itself might be felt not to be sufficient automatically to exclude it from Short money support. That is what the subsections would achieve.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 177B:

After Clause 92, insert the following new clause—

RIGHTS AND LIABILITIES OF THE CROWN IN DIFFERENT CAPACITIES

(".—(1) Rights and liabilities may arise between the Crown in right of Her Majesty's Government in the United Kingdom and the Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment as they may arise between subjects.

(2) Property and liabilities may be transferred between the Crown in one of those capacities and the Crown in the other capacity as they may be transferred between subjects; and they may together create, vary or extinguish any property or liability as subjects may.

(3) Proceedings in respect of—

1. (a) any property or liabilities to which the Crown in one of those capacities is entitled or subject under subsection (1) or (2), or
2. (b) the exercise of, or failure to exercise, any function exercisable by an office-holder of the Crown in one of those capacities,

may be instituted by the Crown in either capacity; and the Crown in the other capacity may be a separate party in the proceedings.

(4) This section applies to a unilateral obligation as it applies to a contract.

(5) In this section— office-holder", in relation to the Crown in right of Her Majesty's Government in the United Kingdom, means any Minister of the Crown or other office-holder under the Crown in that capacity and, in relation to the Crown in right of the Scottish Administration, means any office-holder in the Scottish Administration, subject" means a person not acting on behalf of the Crown.").

The noble and learned Lord said: My Lords, this is an amendment which clarifies that legal relations may be entered into between the Crown in right of the UK Government and the Crown in right of the Scottish administration.

The Bill already draws a distinction between the Crown in right of the UK Government and the Crown in right of the Scottish administration. It makes provision for the Crown in both capacities to sue and to be sued.

It is also intended, however, that legal relations should be capable of being entered into between the UK Government and the Scottish administration so as to transfer rights, liabilities and other property between them. It is also intended that, when a UK Minister of the Crown makes an order under Clause 54 requiring some action to be taken by Scottish ministers, it should be possible for Scottish ministers to seek a judicial review of that order and for the UK Minister to seek a court order enforcing his order against Scottish ministers, subject of course to the provisions of the Crown Proceedings Act 1947. In other words, it is intended that the UK Government and the Scottish administration should be able to enter into legal relations and to sue each other.

It was thought that, without an express provision in the Bill, the view may be taken that the doctrine of Crown indivisibility would prevent this. Government Amendment No. 177B therefore clarifies the position. It makes clear that the Crown in right of the UK Government should be able to enter into legal relations with the Crown in right of the Scottish administration and vice versa. This puts the Crown in right of the UK Government and the Crown in right of the Scottish administration in the same relationship to each other as they are, or would be, to a subject. In other words, legal relationships can be created and enforced in the courts, subject of course to the provisions of the Crown Proceedings Act 1947 as to the nature of remedies which can be granted against the Crown. This amendment makes it clear that the Crown in right of the UK Government and the Crown in right of the Scottish administration would be able to sue each other. I beg to move.

Lord Fraser of Carmyllie

My Lords, I am grateful to the noble and learned Lord the Lord Advocate for his explanation. When I looked at Schedule 8, I thought that the matter had already been dealt with pretty comprehensively, if somewhat obscurely. The noble and learned Lord mentioned the Crown Proceedings Act and the Crown Suits Act, both of which are to be modified by Schedule 8. Do I understand from his explanation that the Government are now so concerned that the Bill brings about such an attack on the concept of the indivisibility of the Crown that something more substantial is taking place here, or is this just a matter of procedural adjustment to ensure that the Lord Advocate in one capacity does not decide to sue himself in another capacity, which is what I thought that Schedule 8 was trying to avoid? Therefore, when the Westminster Government wish to take legal proceedings against the Scottish executive they get the Advocate General for Scotland to raise such proceedings. I am anxious to discover whether the noble and learned Lord the Lord Advocate, in his fairly brief speech in support of this amendment, was indicating that something more fundamental is being adjusted in the Bill, and whether there is a matter at which, in future, constitutional lawyers ought to look with a great degree of interest with regard to the constitutional principle of the indivisibility of the Crown.

Baroness Carnegy of Lour

My Lords, it is difficult for a lay person to understand this amendment. I received it only on Saturday. It was posted on Friday. I had to be here on Monday. This makes it difficult for Back-Bench Peers to examine what are clearly very important amendments. However, I may misunderstand it. I hope that the noble and learned Lord will forgive me if I appear to be asking a stupid question. It seems that the Crown can now have two entities. There is the, Crown in right of Her Majesty's Government in the United Kingdom", as expressed in subsection (1) of the new clause, and there is the, Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment". Does that mean that when the Crown gives Royal Assent to Bills the Queen is doing so in a different legal capacity in the Scottish parliament from that which she has when she gives assent to Bills in the United Kingdom Parliament? It sounds as though she now has two entities. Does that affect her capacity when giving Royal Assent?

Lord Mackay of Drumadoon

My Lords, I am not in the favoured position of my noble friend Lady Carnegy. Undoubtedly my copy of the amendments was posted on Friday, but they had not reached me this morning when I left. I saw this amendment for the first time when I arrived today. As my noble and learned friend Lord Fraser suggested, at first blush it is a somewhat unusual amendment although, having listened to what the noble and learned Lord the Lord Advocate said, I can well understand why the view is taken that it is necessary. For that reason I do not oppose the principle of the amendment. But I believe it right that the Government should be aware that it will be necessary to look at the detail over the next few days to see whether what is now brought forward very much at the eleventh hour concerning a fundamental issue will give trouble not only to those of us who sit on these Benches, but also, and more importantly, to those who will have to adjudicate between the Crown in one capacity and in another.

Lord Hardie

My Lords, perhaps I may deal with the point raised by the noble Baroness, Lady Carnegy of Lour. The Queen is not acting in a different capacity when she gives Royal Assent. I referred to the doctrine of indivisibility of the Crown. Normally one cannot sue the Crown. But because there are different legislatures and executives exercising different functions, and because the Scottish executive or administration may well wish to enter into contracts or other arrangements, for the transfer of property or whatever, with the United Kingdom Government, it may wish to enforce them. I hope that this difficulty will not arise. But if there were a difficulty between the two parties, this amendment would enable one party to sue the other.

Equally, as I said, if a Minister of the UK Government made an order requiring the Scottish parliament to do something and it wished to challenge it, the Scottish parliament could review the decision by virtue of this provision. It would give the ability to litigate about that particular matter just as this provision will give United Kingdom Ministers the ability to litigate about the failure of the Scottish executive to give effect to the order. That is what is behind the order. It relates to any arrangement with the Scottish executive as a whole; for example, a contract or something of that kind.

Baroness Carnegy of Lour

My Lords, I am grateful to the noble and learned Lord. I would like to be quite clear that there is no suggestion that the Queen gives Royal Assent to legislation passed by the Scottish parliament in a different legal capacity from that in which she gives assent to legislation passed by the Westminster Parliament.

Lord Hardie

My Lords, I can give the noble Baroness that assurance. The Queen is acting throughout as Sovereign of the United Kingdom.

On Question, amendment agreed to.

Schedule 6 [Devolution issues]:

[Amendments Nos. 178 to 191 not moved.]

Clause 93 [Human rights]:

Lord Mackay of Drumadoon moved Amendment No. 191A:

Page 43, line 27, at end insert—

("(5) Proceedings to which subsection (1) applies may only be brought in an appropriate court or tribunal.

(6) In subsection (5) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules; and "proceedings" includes a counterclaim or similar proceeding.

(7) In subsection (6) "rules" means—

1. (a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court;
2. (b) in relation to proceedings before a court or tribunal in Scotland, rules made for the purposes of this section;
3. (c) in relation to proceedings before a tribunal in Northern Ireland
   1. (i) which deals with transferred matters; and
   2. (ii) for which no rules made under paragraph (a) are in force,
   rules made by a Northern Ireland department for those purposes, and includes provision made by order under section 1 of the Courts and Legal Services Act 1990.").

The noble and learned Lord said: My Lords, this amendment seeks to amend the provisions of Clause 93 of the Bill, which, as I recollect, was introduced at Committee stage in your Lordships' House. Its purpose is to seek to ensure that the Bill is compatible with the provisions of the Human Rights Bill which, I understand, completed its parliamentary passage last Thursday. The Human Rights Act, as it now is, provides in Section 7 that, A person who claims that a public authority has acted (or proposes to act) in a way which is unlawful [by the previous Section 6] may bring proceedings against the authority under this Act in the appropriate court or tribunal, or rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act". That was described as the "victim test" on more than one occasion in the debates on the Human Rights Bill.

The practical problem—as the noble and learned Lord the Lord Advocate, confirmed last week when we were debating the position of the Lord Advocate himself and the procurators fiscal who serve under him—is that members of the Scottish executive will be required to comply with the convention rights. If they fail to do so, either because a particular act is contrary to convention rights or because a particular failure to act is incompatible with any convention right, they will be liable to be challenged under this Bill as well. Clause 93 is directed to that.

The practical problem is that whereas the Human Rights Bill gives power to the Secretary of State—or the Lord Chancellor in England—power in Scotland for rules of court to be made to lay down which is the appropriate court or tribunal where such proceedings can be raised, there is no similar power in the Scotland Bill. The purpose of my amendment is to include similar powers in this Bill so that parties in Scotland in particular can seek to challenge the act or omission of the Scottish executive or of any official of the Scottish executive on the grounds that it is not compatible with convention rights. They will not have a choice as to which court or tribunal can initiate proceedings unless that choice complies with the rules which have been enacted. In the absence of such a provision there is scope for confusion. That is why I have brought forward this amendment. I beg to move.

7.30 p.m.

Lord Lester of Herne Hill

My Lords, I must be thick, but I cannot see any reason for this amendment. It seems to me that the point is taken care of in Clause 7 of the Human Rights Bill. Clause 7(2) of the Bill says that, 'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules". Clause 7(11)(a) refers to rules in relation to proceedings before a court or tribunal in Scotland. Therefore, it seems to me that there is adequate power in the Human Rights Bill, but I have probably missed something.

Lord Hardie

My Lords, as the noble and learned Lord explained, this amendment was taken from Clause 7 of the Human Rights Bill. The purpose of the amendment is to probe why we have not made similar provisions here. The reason is quite simple. We consider that it would be inappropriate and incorrect to make such a provision in this Bill.

As the noble Lord, Lord Lester of Herne Hill, said during the previous debate, Schedule 6 provides that questions of whether the exercise of a function by a member of the Scottish executive or a failure to act is compatible or incompatible with convention rights is a devolution issue. With one exception, it is not intended to specify the courts or tribunals in which devolution issues may be raised. It will depend on the ordinary law as to what proceedings can competently be brought before a court or tribunal at present. It may be felt that most devolution issues will be raised competently only by way of judicial review in the Court of Session. However, we do not consider it would be appropriate to provide that such issues can be raised only in the Court of Session because Schedule 6 provides for a fast-track procedure for the Law Officers to raise such issues directly in the Judicial Committee of the Privy Council. That has no counterpart in the Human Rights Bill.

Furthermore, the amendments do not have the effect of bringing the provisions of the Scotland Bill into line with the Human Rights Bill because they contain no counterpart to Clause 7(1)(b) of the Human Rights Bill entitling a person to rely upon convention rights in any legal proceedings before any court or tribunal.

Clause 93 is intended only to bring the Scotland Bill more into line with the Human Rights Bill in certain limited respects. It is not intended that the Scotland Bill should be brought so completely into line with the Human Rights Bill that it destroys the common procedures for dealing with devolution issues no matter in which legal proceedings they arise and for determination ultimately by the Judicial Committee. However, that would be the effect of these amendments. With that explanation, I hope that the noble and learned Lord will withdraw the amendment.

Lord Mackay of Drumadoon

My Lords, I should explain that at present I speak only to Amendment No. 191A. As I understood the noble and learned Lord's answer, he appeared to be admitting the possibility that if someone was the victim of an act or omission of a member of the Scottish executive or one of such member's officials and suffered loss, he would be able to raise the appropriate proceedings in, let us say, the sheriff's court irrespective of the fact that under Clause 7 of the Human Rights Bill the appropriate court or tribunal had been designated for the purposes of the Bill in Scotland as being the Court of Session. With respect, that seems to give rise to confusion. I cannot see any good reason why, under one Act, one can start in the sheriff's court; and if one goes under another Act which provides the same remedy one can start only at the Court of Session.

As the noble and learned Lord rightly said, this is a probing amendment. I do not intend to press it to a Division. However, I am surprised, notwithstanding the expressed intention of the Government, repeated on a number of occasions, to bring the two pieces of legislation together so that there is no inconsistency between them, that in relation to this matter we have a quite obvious inconsistency. However, if that is what the Government wish, I do not intend to insist on my opposition. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Hoyle

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, perhaps I may suggest that the Report stage begins again not before 8.35 p.m.

Moved accordingly, and, on Question, Motion agreed to.