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Clause 94

Disciplinary powers

Amendments made: No. 21, in page 40, line 38, leave out 'Minister' and insert 'Lord Chancellor'.

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No. 22, in page 40, line 39, leave out 'Minister' and insert 'Lord Chancellor'.

No. 23, in page 41, line 2, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]

Mr. Leslie: I beg to move amendment No. 11, page 41, line 4, leave out subsection (3) and insert—

'(3)   The Lord Chief Justice may give a judicial office holder formal advice, or a formal warning or reprimand, for disciplinary purposes (but this section does not restrict what he may do informally or for other purposes or where any advice or warning is not addressed to a particular office holder).'.

The Chairman of Ways and Means: With this it will be convenient to consider Government amendments Nos. 12 to 15.

Mr. Leslie: These are mainly drafting amendments, but the provisions that they amend are important.

Clause 94 puts the judicial disciplinary system for England and Wales on a statutory basis for the first time. The judicial disciplinary system will involve the Lord Chancellor and the Lord Chief Justice working together. The Lord Chancellor will have the power to remove judicial office-holders below the level of the High Court, with the agreement of the Lord Chief Justice. The Lord Chief Justice will have power to give formal advice, warnings or reprimands to judicial office-holders as a result of the disciplinary process, with the agreement of the Lord Chancellor.

The provisions faithfully reflect the concordat agreed with the judiciary. They build on the judicial disciplinary system that already exists, but involve the Lord Chief Justice more fully in decisions to reflect the fact that he will henceforth be the head of the judiciary in England and Wales. The Lord Chancellor's continuing role in disciplinary matters reflects the need for a Minister to be accountable to Parliament, and a representative of the public interest. The more detailed framework of the disciplinary process will be contained in regulations made by the Lord Chief Justice, with the agreement of the Lord Chancellor, under clause 96. The regulations will be subject to the negative procedure in Parliament.

The Lord Chief Justice also has power, under clause 98, to make subordinate rules, with the agreement of the Lord Chancellor, which must be published but are not subject to parliamentary approval. That is because we envisage that the rules will contain a lot of detail on how complaints and disciplinary procedures will work, and they may need to be revised and reissued fairly frequently.

6.15 pm

Government amendment No. 11 removes a possible problem arising from the drafting of clause 94 by making it clear that subsection (2), which states that the Lord Chief Justice may exercise his disciplinary power

and in accordance with "prescribed procedures", does not affect what he may do informally. That ensures that the existing arrangements for informal guidance and counselling can continue within the new framework.
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Government Amendments Nos. 12 and 13 correct references to "disciplinary procedures" by replacing them with references to "prescribed procedures". Disciplinary procedures will be prescribed by the Lord Chief Justice under clauses 96 and 98. The former clause allows him to make regulations with the agreement of the Lord Chancellor, and subject to Parliament's negative procedure; the latter clause allows him to make rules with the agreement of the Lord Chancellor.

Government Amendment No. 14 clarifies the effect of suspending a judge. Clause 94 allows the Lord Chief Justice, with the agreement of the Lord Chancellor, to suspend a judge in certain circumstances when that judge is subject to disciplinary procedures. The amendment makes it clear that a judge who is suspended may not exercise the functions of his office, but that his other rights—concerning pay and pension, for example—are unaffected.

Government Amendment No. 15 makes it clear that disciplinary regulations made by the Lord Chief Justice will define when someone is subject to prescribed procedures or is under investigation for an offence. That will govern the exercise of the new power in clause 94(7), which allows the Lord Chief Justice, with the agreement of the Lord Chancellor, to suspend a judicial office holder in those circumstances.

These are tidying-up amendments, but they also relate to the important issues with which clauses 94 and 95 deal. I therefore urge the Committee to support them.

Mr. Grieve: Is not the difference between "disciplinary procedures" and "prescribed procedures" merely an exercise in semantics? I am slightly puzzled by the Minister's belief that it is necessary to alter the wording, and I am not sure, having listened to him, that I have completely grasped why he believes that.

Mr. Leslie: It is necessary for completeness' sake. Although such alteration might not be vital for the purposes of reading the Bill, it is necessary in a technical sense to ensure that this part of the Bill is consistent with the other parts in which references to "prescribed procedures" are made. With that in mind, I hope that the Committee will support the amendments.

Mr. Grieve: The Minister has succeeded at this late stage in becoming persuasive. I did have the slight suspicion that the use of the word "prescribed" rather than "disciplinary" had its origin in the enormous reluctance in certain government circles to call a spade a spade. Being subjected to "prescribed procedures" sounds a little less onerous than being subjected to "disciplinary procedures". Save for that, the other amendments are coherent and merit support. I am particularly pleased that it will be possible for the Lord Chief Justice to have an informal system of dealing with judges, but I have to say that I did not read clause 94(3) as preventing that. However, if the Minister thinks it advisable to spell out such a possibility openly, so be it; doing so does not detract from the intention behind subsection (3).
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Keith Vaz: I want to speak briefly about this issue now because the various remaining amendments might be dealt with quite quickly. That shows that the Government were right to give the Committee of the whole House the opportunity to debate the Bill over two full days. The Government were also right to table these particular amendments, because it is important that an informal procedure be put in place that allows the Lord Chief Justice to speak directly to a judge who might be the subject of disciplinary procedures. Obviously, clear procedures also have to be in place, and I am glad that the regulations to be produced by the Lord Chief Justice will be the subject of consultation. I am not clear—I hope that the Minister will tell us in his reply—whether that means consultation with the Lord Chancellor. I hope that the wider judiciary will be consulted. If we want a fair system that enables judges to be treated with respect and dignity, it is important to consult the judiciary as widely as possible.

At some stage, I hope that we can also deal with the broader issue of the training of judges. It is important to give them the widest possible training on a wide range of issues. The provisions that we are debating now deal specifically with the incidents mentioned in clause 94(1), (2) and (3). I want us to reflect on the wider issues and ensure that, when judges are appointed, they are acquainted with the reasons why they might be disciplined. The clause allows the disciplinary procedures to be put into effect and the amendments would allow the informal procedures to take place, which is very important, but it does not detract from the importance of being absolutely clear about why a judge is being subject to any of these proceedings.

Mr. Garnier: What makes the hon. Gentleman think that the reasons are not already clear to judges?

Keith Vaz: I hope that they are, but in keeping with the spirit of compromise and the passion displayed by the hon. Member for Beaconsfield (Mr. Grieve), who urges the Government to build everything into the Bill, I stress that the Government are doing precisely that. We are clarifying the position and making it clear where the informal procedures can take place, which is perfectly right and proper.

Mr. Grieve: I have to disappoint the hon. Gentleman, because it is simply not the case that I have encouraged the Government to put everything into the Bill. Indeed, one of the major problems of the legislation—it will become more apparent on the last day of our consideration of the Bill—is that moving away from convention makes it appear that everything has to be spelled out line by line if progress is to be made. However, until the Minister proposed the amendment on providing informal advice to, or reprimanding, judges, it had never crossed my mind that it might not be possible to achieve those aims through the Bill. I rather took the view that the Bill could achieve them, so the amendment was necessary only because the Bill could not.

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