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Lord Hope of Craighead: I wish to say a few words in support of the noble and learned Lord, Lord McCluskey. I do so against the background of having been Lord President of the Court of Session for seven years. During that period, I was consulted by a succession of Lords Advocate about the appointment of a substantial number of those who are at present serving as judges on the Court of Session Bench.

I wish to make two points. First, from the point of view of the Lord President, the skill, knowledge and ability of the Lord Advocate is absolutely crucial to the selection of people who are appropriate for service on the Court of Session Bench. I do not wish in advance of his appointment to suggest that the First Minister would be unable to take proper advice in various ways, but the crucial person in giving advice to the First Minister is bound to be the Lord Advocate. After all, he has experience of appearing in court, probably has very close contacts with those who are equipped with the necessary skills to serve on the Bench and therefore is a person whose advice the Lord President and the first minister can have confidence in.

It should not be forgotten that the circuit described in the subsection to which Amendment No. 291B refers involves the Lord President as well as the First Minister. If I were still the Lord President and was consulted by the First Minister the first question I would ask is: what is the view of the Lord Advocate about the proposal? That is said in order to emphasise the point which the noble and learned Lord made about the crucial position of the Lord Advocate in this whole process.

As to the need for a reference on the face of the Bill, I endorse entirely what the noble and learned Lord said. I know that the noble and learned Lord, Lord Rodger of Earlsferry, shares this view because he has made the point several times in Committee. We are facing a new situation, with no conventions to guide us. On crucial matters such as the appointment of judges, we should

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err on the side of caution by writing on to the face of the Bill the necessary steps which should be taken in order to ensure that properly qualified persons are appointed to serve.

I can see no reason why the Lord Advocate should not be mentioned expressly in the terms suggested by the noble and learned Lord. It is inevitable that the Lord Advocate will be involved and it is far better that that matter should be recognised expressly on the face of the Bill to avoid any possible confusion.

Lord Clyde: I wish to add my pennyworth to this discussion by endorsing the speeches made by my noble and learned friend Lord McCluskey and the noble and learned Lord, Lord Hope of Craighead.

As to the last point, it may be thought that one of the current criticisms of the appointment of judges is that the whole process appears to be conducted in secrecy. It may well be that there is no system which would satisfactorily operate without a degree of secrecy, but it is right that at the very least the public should know what the system is. It may well be that we will be told that in practice those who are making the recommendations or nominations will consult with various people. It is right--and it is the length to which one can go to avoid the criticism of secrecy--that the people who are to be consulted should be clearly laid down. In that way the public will know what the process is. I strongly support the suggestion that the people who are to be consulted and whose advice is to be taken should be specified in the Bill.

The other curiosity is that the money, the remuneration for the judges, comes from Westminster. I understand that remuneration is a reserved matter. It is somewhat curious to have the appointments made by people who will not be answerable to the Westminster Parliament, apart from the appointment of the Lord President and the Lord Justice Clerk. If it is made clear that someone is to be consulted who would be answerable to that Parliament, in the one House or the other, then at least there may be some attachment to the source of the remuneration.

My final comment is by way of a question. I do not understand who is to dictate the terms and conditions of service of these judges. In particular, who is to organise their pensions and pay for them?

Lord Hardie: I shall confine my comments at this stage to the issue of the appointment of judges in the knowledge that the second issue of the removal of judges is embodied in the next group of amendments.

As to the background, which the noble and learned Lord, Lord Mackay of Drumadoon, set out under reference to the 1978 Act, paragraph 2.4 of the White Paper, which was endorsed overwhelmingly by the people of Scotland in the referendum more than a year ago, made clear that unlike 1978 judicial appointments would be a devolved matter. Apart from the appointments of the Lord President of the Court of Session and the Lord Justice Clerk being made by Her Majesty on the advice of the Prime Minister, all other

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judicial appointments would be made on the basis of nominations by the Scottish executive and first minister. Clause 89 delivers that commitment in the White Paper.

Subsections (1) to (3) deal with the special position of the Lord President and the Lord Justice Clerk. As has been observed, these appointments will continue to be based on the recommendation from the Prime Minister to the Queen, but we have provided that the Prime Minister's recommendation must be a person nominated by the First Minister, who in turn must consult with the Lord President and the Lord Justice Clerk, assuming that they are both in office at that time. Subsection (4) deals with judges of the Court of Session other than the two senior judges. It also deals with sheriffs principal and sheriffs. For other appointments, the recommendation to Her Majesty will come directly from the First Minister. Apart from those details, we have not set out in any further detail the precise processes which are to be followed any more than for those that are provided for in legislation at present.

The various amendments here seek to add to the statutory provision for judicial appointments. With one exception, to which I shall come in a few minutes, we do not think that they are suggestions which we should take on board, either because we disagree with the principle of what is proposed or because we do not think that the Bill requires to enshrine in so much detail how those matters will continue to work. I do not think that is inconsistent with the principles which the noble and learned Lord, Lord Clyde, set out a few moments ago about avoiding secrecy. In one case we are happy to accept the principle of the amendment but hope we can persuade the Committee to adopt a slightly different form of words by accepting the government amendment.

I propose to take each amendment in turn. Amendment No. 291AA provides that the First Minister should nominate to the Prime Minister a person who is suitably qualified and experienced to be appointed as Lord President or Lord Justice Clerk. It would be inconceivable, as the noble and learned Lord, Lord Mackay of Drumadoon, acknowledged, that the First Minister would ever nominate a person who was not suitably qualified. I would go further and say that even in the context of a list of people it would be inconceivable that anyone on the list would not be suitably qualified. Therefore, I do not believe that this amendment is a necessary or an appropriate addition to the Bill.

The next amendment is Amendment No. 291AB. But in the light of Government Amendment No. 291AAA, I would hope that the noble and learned Lord will not seek to move his amendment. The Government have accepted the intention behind Amendment No. 291AB. I agree that the First Minister should be able to nominate more than one person for the appointment of Lord President or Lord Justice Clerk for the Prime Minister to consider. Once again, that reflects what currently happens. Although I have not been involved in any appointment of either of the judges who are presently holders of these offices, I am aware that the practice is to nominate two or three people. Amendment

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No. 291AAA is designed to make it clear that this will be the case. I would urge Members of the Committee to support the Government's amendment.

I turn to Amendment No. 291B, which stands in the name of the noble and learned Lord, Lord McCluskey. The amendment is similar to that tabled by the noble and learned Lord, Lord Mackay of Drumadoon, and the noble Lord, Lord Mackay of Ardbrecknish, in the previous group and would place a duty on the First Minister to take the advice of the Lord Advocate before consulting the Lord President about possible nomination for judges, sheriffs or sheriffs principal.

The traditional role of the Lord Advocate in advising about judicial appointments has already been outlined. I suggest that it is honourable and important, but it has never been a statutory role. Of course, I take on board what the noble and learned Lord, Lord McCluskey, said about setting up a new arrangement. Nevertheless, I am confident that the tradition of the involvement of the Lord Advocate will continue.

It is inconceivable that the First Minister would not consult the Lord Advocate, even more so as the Lord Advocate will be a member of the Scottish executive. But in view of the comments of the noble and learned Lord, Lord Hope of Craighead, it is equally clear that, had the noble and learned Lord still held the high office of Lord President, he would have insisted on knowing what was the attitude of the Lord Advocate and would have asked the First Minister that question. I anticipate that the present holder of that office would adopt a similar attitude, and subsequent holders of the office, understandably, would wish to know what was the attitude of the Lord Advocate. It is inconceivable that the First Minister would not be aware that he should consult the Lord Advocate and that he would not consult him.

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