HL Deb 17 November 1998 vol 594 cc1175-80

128 Clause 89, page 43, line 18, 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,").

129 Page 43, line 22, at end insert— ("(9) A tribunal established for the purposes of this section shall consist of three 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 Commons disagree to Lords Amendments Nos. 128 and 129 but propose the following amendments in lieu thereof—

129A Page 43, line 11, leave out from ("Minister") to ("resolves") in line 12.

129B Page 43, line 13, leave out ("on that ground").

129C Page 43, leave out lines 17 to 22 and insert—

("(7A) Provision shall be made for a tribunal constituted by the First Minister to investigate and report on whether a judge of the Court of Session or the Chairman of the Scottish Land Court is unfit for office by reason of inability, neglect of duty or misbehaviour and for the report to be laid before the Parliament.

(7B) Such provision shall include provision—

  1. (a) for the constitution of the tribunal by the First Minister when requested by the Lord President to do so and in such other circumstances as the First Minister thinks fit, and
  2. (b) for the appointment to chair the tribunal of a member of the Judicial Committee who holds or has held any of the offices referred to in section 94(2),
and may include provision for suspension from office.

(7C) The First Minister may make a motion under subsection (7) only if—

  1. (a) he has received from a tribunal constituted in pursuance of subsection (7A) a written report concluding that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour and giving reasons for that conclusion.
  2. (b) where the person in question is the Lord President or the Lord Justice Clerk, he has consulted the Prime Minister, and
  3. (c) he has complied with any other requirement imposed by virtue of any enactment.

(7D) In subsections (7A) to (7C)— provision" means provision by or under an Act of the Scottish Parliament, tribunal" means a tribunal of at least three persons.").

The Lord Advocate (Lord Hardie)

My Lords, I beg to move that the House do not insist on their Amendments Nos. 128 and 129 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 129A to 129C in lieu thereof.

The House will see that the Government have gone very far to acknowledge the concerns raised by noble Lords and noble and learned Lords in earlier debates. As the House knows, in this Bill we are setting out for the first time a clear statutory framework for the removal of judges of the Court of Session and the chairman of the Land Court in Scotland, thus trying to clarify the law in an important area. The provisions apply only in certain tightly defined circumstances. The procedures in the Bill only come into play where it is felt that a judge is unfit to hold office on grounds of inability, neglect of duty or misbehaviour. No one, least of all the judiciary, thinks it appropriate that such procedures should not be in place.

While we do not share the fears which have been expressed about the threat to judicial independence, we wholly agree with those who have stressed the importance of this issue. In opposing the amendments made in this House at Report stage, we argued that the Bill should contain the minimum safeguards but that the Scottish parliament should have as much discretion as possible to develop the procedures which will apply in Scotland for the removal of judges.

The debate in this House was seen by us as merely the beginning of the process of debate. That is still the case. In that respect we prefer the amendments which we have tabled to those adopted by your Lordships.

Your Lordships amended the Bill to write on to its face a tribunal composed exclusively of senior judges, specifically one whose membership was to be restricted entirely to Lords of Appeal in Ordinary and holders of high judicial office who were either Members of this House or Privy Counsellors. Those persons, it was proposed, should be given the task of reporting on the case for removing a judge and so acting as "gatekeepers" to the whole process.

The Government's Amendments Nos. 129A to 129C provide instead that provision shall be made for the First Minister to constitute a tribunal of at least three persons to investigate and report on the case for removal of a judge. The number within the tribunal reflects the concerns of the noble and learned Lord, Lord Ackner, who is not in his place. However, I can also assure the House—it reflects another concern of that noble and learned Lord that there should be an uneven number—that if there are more than three there will be an odd number to avoid the difficulties to which the noble and learned Lord referred at an earlier stage.

The amendments ensure that the chairman will be a person who is eligible to be a member of the Judicial Committee of the Privy Council. The First Minister still requires the approval of the parliament before he may recommend to Her Majesty that a judge is removed, but he may not seek that approval unless the tribunal has reported that the person is unfit. The tribunal's report must be laid before parliament so that it is aware of the views of the tribunal.

The amendments also enable the Lord President of the Court of Session to request that such a tribunal be convened as we understand that that is the wish of the noble and learned Lord, Lord Rodger of Earlsferry, who is presently the Lord President. We have also retained a provision that where it is desirable that the Lord President or the Lord Justice Clerk be removed, then the First Minister must also consult the Prime Minister.

It is envisaged that the rules of procedure for the tribunal will be established under an Act of the Scottish parliament. That Act will also, if the parliament wishes, make other provision in relation to the membership of the tribunal. However, we expect that the tribunal itself would not be a standing body, but be convened on an ad hoc basis, given that that process is likely to be used very rarely, if at all.

Before laying these amendments, officials discussed them with the Lord President of the Court of Session, the noble and learned Lord, Lord Rodger of Earlsferry. I understand that he was satisfied with the proposals in these amendments.

The House will see that a key difference between the approach proposed by the Government and that adopted here at an earlier stage is that it leaves open a degree of choice about how the proposed tribunal should be constituted. In other words, it leaves space for the debate just begun in this House to be continued in the parliament. The removal of judges quite clearly is not simply a matter of private concern for the judges themselves. It is an issue of serious public interest. There are legitimate debates to be had on the question of composition. The noble and learned Lord, Lord McCluskey, recognised as much by admitting that there might be scope for lay involvement in any independent body charged with evaluating the case for removal.

This approach seems to us to strike an acceptable balance between providing a more detailed statutory framework on the face of the Bill and allowing scope for further reflection on this subject in the parliament itself. I beg to move.

Moved, That the House do not insist on their Amendments Nos. 128 and 129 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 129A, 129B and 129C in lieu thereof.—(Lord Hardie.)

Baroness Carnegy of Lour

My Lords, I was one of the lay people who felt very strongly on this issue. The Government held their position so strongly right up to the vote and after saying that this House was wrong about the matter. That view was very mistaken. I believe that the people of Scotland will have cause to be very grateful to this House for bringing this matter so strongly to the Government's attention. The amendment changes somewhat the amendment tabled by this House, but for the better. I am extremely grateful to the Government for this notable U-turn.

Lord Mackay of Drumadoon

My Lords, since this Bill was first debated in your Lordships' House the important role the judiciary will play in implementing the Government's devolution settlement has been stressed on more than one occasion. Therefore, it is a matter of some surprise—I suspect also to a number of noble Lords it will be a matter of some regret—that at this very late stage there remains any dispute at all as to how the Bill may best provide for the appointment and removal of judges.

These ought to be non-political issues and yet, very late in the day, we are faced with a very welcome change of heart, as my noble friend Lady Carnegy of Lour has just said, on the part of the Government. The problem is that these amendments were tabled in another place recently. That left virtually very little time for those involved to digest them. More importantly, they have left no time at all for us to consult. When the amendments were debated in the other place recently, the Secretary of State said that it is not always wise to leap to a conclusion either way during the final few days of a Bill's passage through Parliament. Yet some noble Lords may take the view that that is precisely what is being expected today in more than one respect.

When the amendments standing in the name of the noble and learned Lord, Lord McCluskey, my own name and that of my noble friends Lord Mackay of Ardbrecknish and the noble and learned Lord, Lord Fraser of Carmyllie, were moved I made it clear that I was open to any suggestions to improve the composition of the tribunal and its role proposed in the amendment put forward and carried by your Lordships' House at Report stage. As the noble and learned Lord the Lord Advocate has made clear, that was also the position of the noble and learned Lord, Lord McCluskey.

Therefore, I have to record a note of disappointment that the Government did not find it possible to consult with the Opposition about the detail of these amendments before they were tabled. It was quite clearly indicated by the noble and learned Lord the Lord Advocate that there was consultation with the court and rightly so. But he will recall that at the very end of Third Reading when I raised this subject after the noble and learned Lord had made a statement, he said that amendments were to be tabled on the following day in the other place. Clearly, by that stage the practicalities of any proper consultation had passed.

As regards the details of the amendments, I would have preferred that the provision in (7D) set out at the foot of page 2 of the amendments should have been restricted to making provision by an Act of the Scottish parliament. I have some anxiety about that being made possible through subordinate legislation. As noble Lords will be aware, I am concerned that there are to be two forms of procedure for the removal of judges in Scotland whereas there is to be only one form of appointment. All Court of Session judges, the chairman of the Scottish Land Court, sheriff principals and sheriffs will have to deal with devolution issues. One suspects that in the early years of devolution it will be the lower sheriff courts where the bulk of the issues will first arise, however many ultimately reach the Judicial Committee. Therefore, it would have been helpful to have had the opportunity to comment on these amendments before they were tabled.

However, in the absence of the noble and learned Lord, Lord McCluskey, and some of his judicial colleagues, I suspect that I would be unable to persuade your Lordships to offer any further resistance. That would be inappropriate because the Government have moved a long way to meet the anxieties expressed at an early stage about Clause 89 of the Bill, as originally drafted. Therefore, I join with my noble friend Lady Carnegy of Lour in welcoming what has happened at this late stage.

Lord Clyde

My Lords, I am sorry that certain of my noble and learned colleagues who took a greater part in this debate than I are not here to express their views about it. Speaking for myself, I offer mild congratulations to the Government on producing a formula which appears to be a not unreasonable compromise between the views expressed. I am sorry that there is no time scale for the appointment of the body, but as I have every confidence that it will never have to meet and will never have problems to resolve—such is the confidence that I have in the Scottish judiciary—I am content with the formula as it stands.

Lord Hardie

My Lords, I am grateful to the noble and learned Lord, Lord Clyde, and to the noble Baroness, Lady Carnegy, for their support for this amendment. I say to the noble and learned Lord that there may be transitional provisions brought in by order to cover the unlikely eventuality of there being an immediate need for the provision. Thereafter the Scottish parliament will deal with the matter.

I agree with the noble and learned Lord, Lord Mackay of Drumadoon, that this is not a political issue. It is with regret that some may have interpreted his speech as political. The reason is that he is operating under a misunderstanding as to what the Government originally intended. Unfortunately, that misunderstanding was reflected in the media.

It is my fault if I did not make clear the position at an earlier stage. It has always been the Government's intention to put in place procedures. The sole issue was whether the matter should be left to the First Minister and the parliament in discussions with the Lord President, or whether it should be on the face of the Bill. We listened to that debate and we have come forward with this amendment.

As regards consultation, the senior judge, the Lord President—that is the noble and learned Lord, Lord Rodger of Earlsferry—was consulted before the amendment was tabled. With great respect, I believe it to be important that we carry the judiciary with us on such a matter. It is not a political matter and in those circumstances it is not necessary to discuss it with noble Lords opposite.

On Question, Motion agreed to.

6.30 p.m.