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Lord Hope of Craighead: May we take it from those comments that if the Lord President were to ask the First Minister to consult the Lord Advocate before he--that is the Lord President--expressed his view in reply to the inquiry from the First Minister, that the First Minister would comply with that request?

Lord Hardie: I cannot give any guarantee as to what would be the reaction of the First Minister. But, again, I would be very surprised, given the relationship which exists at present between the holder of the office of Secretary of State for Scotland and the Lord President and the relationship which I fully expect to continue to exist between the First Minister and the Lord President, if the holder of that office did not take on board what the Lord President said and seek the advice of the Lord Advocate.

However, my position is that that stage would not be reached. It is inconceivable that the First Minister would not follow the traditions which have existed in the past and particularly in view of the Lord Advocate's membership of the Scottish executive.

Indeed, if Members of the Committee accept that I am correct in that approach, I suggest that that obligation or requirement to consult should not be enshrined in

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legislation. Such a step might have the undesirable effect of discouraging the First Minister from undertaking wider consultation. The First Minister should be free to consult as widely as he thinks appropriate.

I turn to the second amendment in the name of the noble and learned Lord, Lord McCluskey. Clause 89(5) was introduced by the Government as a means of enabling the Scottish parliament, if it wished, to propose changes in the way in which judicial appointments should be recommended. The final responsibility for making nominations and recommendations lies with the First Minister. But Clause 89(5) would allow parliament to add to those basic arrangements, perhaps through the establishment of a judicial appointments committee, for example. If one is talking about openness, then that is one option which is available to be considered by the parliament. It is not for us to provide that there should be such a committee, but that is an option which Members of the Committee will be aware has been much discussed by people of different political persuasions.

If the parliament introduced a judicial appointments committee, Clause 89(5) would have the effect of requiring the First Minister to take its recommendations into account. Such a committee could have a role in advising the First Minister on the choice of candidates to be recommended or nominated for judicial office.

Lord McCluskey: Can the noble and learned Lord explain the words he just used in relation to taking the recommendation into account? The words of the statute are that he "shall" comply with any requirement in the enactment; it is not a question of taking into account. He "shall" comply. Surely the Lord Advocate will agree that he was wrong about that.

Lord Hardie: Perhaps I was anticipating what the legislation might say. It will depend on what the legislation says about the judicial appointments committee; it would depend on what form the committee took--whether it was an advisory committee, as one has in the Republic of Ireland, or whether it was a committee which comprised the senior judge and the Lord Advocate as members who would make the recommendation to the First Minister. That is what is behind the subsection to enable the arrangements to give effect to any changes of that nature which the Scottish parliament may introduce.

The subsection provides parliament with such flexibility while preserving and entrenching certain basic requirements on judicial appointments in the Bill. I believe that that is the correct approach.

I turn to Amendments Nos. 291AC and 291BA. I do not find anything in those amendments that the Government can support. They simply add to the number of people the First Minister is required to consult when considering nominations for Lord President or Lord Justice Clerk on recommending judicial or shrieval appointments to Her Majesty. While Members of the Committee have put forward arguments that such consultation should take place, it would not be

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appropriate to enshrine those arrangements in statute. We should allow the procedures to develop. I am sure that the First Minister will consult all those he or she feels it is appropriate to consult and I am sure that that will include the Lord Advocate.

I turn to the point raised by the noble and learned Lord, Lord Clyde, in relation to the question of payment of salary and pensions of the judges. Although the terms and conditions are regulated by the United Kingdom Parliament, the payment of rations of salary and pensions for the Scottish judiciary will actually come out of the Scottish Consolidated Fund. Therefore the level of salary and the level of pension will be fixed by the United Kingdom Parliament but the actual payment will be a charge on the Scottish Consolidated Fund. I hope that that is of some assistance to the noble and learned Lord.

With those explanations, I invite the noble and learned Lord to withdraw his amendment.

Lord Steel of Aikwood: I hesitate to intervene in the judicial section of this Chamber. However, I was impressed by the argument put forward by the noble and learned Lord, Lord Clyde, in relation to the current criticism of the appointment of judges as being too much wrapped in secrecy. I believe that to be true. Several times it was said that it was "inconceivable" that the Lord Advocate would not be consulted, or that the noble and learned Lord would be "astonished" that he would not be consulted. If that is so, why not, in the interests of open government and clear legislation, accept Amendment No. 291B and have that practice enshrined quite clearly for everybody to read and understand and not keep this as a cosy matter to be understood only by those who are deeply involved? That seems to me to be an argument in favour of including this on the face of the Bill.

Lord Hardie: Perhaps I may deal with that point. I apologise to the noble and learned Lord, Lord Clyde, for not dealing earlier with it more fully. Putting it on the face of the Bill may have the effect of restricting what the Scottish parliament can do by way of a judicial appointments commission. It would depend on the form of the commission that the parliament decided on, if it decided on any. If it decided on a commission which followed the Southern Ireland approach of making a recommendation to the First Minister, then the legislation might simply require that he considers the commission's recommendation, although the Lord Advocate may be a member of it. By requiring a specific reference to the advice of the Lord Advocate as opposed to him being a part of the commission might have a restricting effect on the wishes of the Scottish parliament.

1.15 a.m.

Lord Steel of Aikwood: I do not follow that at all because subsection (5) would still be in the Bill and still apply. Therefore, it does not seem to me to inhibit in any way a future enactment of the Scottish parliament.

Lord Hope of Craighead: Perhaps I may follow that point. The Bill already mentions the Lord President who

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has to be consulted. It is very hard to see why there should be a restriction in mentioning the Lord Advocate. It is quite likely that he will either sit on or be represented on any appointments commission. So it seems to me that the argument that it restricts the freedom of the Scottish parliament to build an appointments commission around this system is quite ill-founded.

Lord Mackie of Benshie: Perhaps I may make one point on this matter. The Lord Advocate constantly used the phrase, "It is inconceivable" that they should not consult the Lord Advocate. One must realise that this is a new parliament and that one is not talking about a traditional parliament in this building, with hundreds of years of tradition. There is probably some excitement which might lead people astray in a new parliament. It would be conceivable that they might not consult because there is a great difference between the influence of tradition and a settled system and the excitement of power in a new parliament. In this case it would be wise to put these measures on the face of the Bill.

Lord McCluskey: The Lord Advocate is ignoring the ordinary, every day device that we see in legislation, which is the use of the words "without prejudice". If the Bill says that one should consult the Lord Advocate, one can avoid the restriction of which he spoke by saying "without prejudice to his consultation with anyone else". So it is perfectly simple. What we seek is that there should continue to be consultation with the Lord Advocate.

The noble and learned Lord said that we have not set out any more than is contained in legislation at present. But with all due respect, that totally ignores the vital point, which is that the rules do not derive from legislation at present but from constitutional convention which will not be born in Scotland after this Bill is enacted in the way in which it exists now in the United Kingdom. So we cannot talk about how these matters will, as he said, "continue to work". They will not continue to do so because this is an entirely new beginning. It is very important that we should put these matters into the Bill. I hope that the Government will consider the debate tonight very carefully. I hope that we shall also be able to move on to the second part of the clause, which raises even more important matters, without further delay at 20 minutes past one in the morning.

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