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Lord Hardie: The noble and learned Lord, Lord McCluskey, is well aware that there is a professional family connection between him and me. Having listened to him and to other noble and learned Lords and others, it is appropriate that I agree to reflect further on including consultation with the Lord Advocate on the face of the Bill.

Lord Mackay of Drumadoon: I hope, while that reflection is being undertaken, that the noble and learned Lord and his colleagues will reflect on all the amendments and not just the one relating to consultation with the Lord Advocate.

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On the basis that we have achieved some success in persuading the Government to think again, I shall not press the amendment.

Amendment, by leave, withdrawn.

Lord Hardie moved Amendment No. 291AAA:

Page 42, line 37, leave out ("making such a nomination") and insert ("nominating persons for such appointment").

On Question, amendment agreed to.

[Amendments Nos. 291AB to 291C not moved.]

[Amendment No. 291ZCA had been withdrawn from the Marshalled List.]

The Chairman of Committees: We now come to Amendment No. 291ZCB. I must inform the Committee that if this amendment is agreed to, I cannot call Amendments Nos. 291CA to 291DA inclusive.

Lord McCluskey moved Amendment No. 291ZCB:

Page 43, line 6, leave out subsections (6) to (8).

The noble and learned Lord said: I shall speak also to those amendments grouped with Amendment No. 291ZCB and I shall also address my remarks to the Question that Clause 89 stand part of the Bill.

The point of principle which lies behind this matter in relation to the removal of judges was first raised in this House by my noble and learned friend Lord Hope of Craighead on 17th June 1998 (at col. 1639 of Hansard) and I took up the same point at col. 1660. It was supported by other noble Lords: the noble Lords, Lord Campbell of Croy, Lord Mackie of Benshie and Lord Mackay of Drumadoon; and the Lord Advocate referred at col. 1783 to the willingness of the Government to wait to hear what suggestions were made.

My first point is that in relation to the removal of judges it should not be for other Members of this House to make suggestions about how that should be done. The suggestions ought to come from Her Majesty's Government, and they ought to respect Her Majesty's Government's commitment both under the Human Rights Bill, to which I shall refer, and under agreements made with the Commonwealth Heads of Government, to which I shall also refer. It should not be for us to make suggestions.

In the absence of any suggestions from the Government, I have made certain suggestions, and I am happy to say that others support them to some extent. We do not have in our constitution any full separation of powers. Obviously, if we had full separation of powers I would not be standing on my feet here in this legislature as a judge.

We have an independent judiciary, to which there are two main aspects: one is the appointment of judges and the other is the removal of judges. At present the appointment of judges is, and is likely to remain, under political control. Although formally it is under political control, it is rarely alleged that politics or cronyism affect appointments. But those factors are not unknown, and, if pressed, I could give several examples in my life-time of judges who have been appointed to the bench who should not have been appointed and would

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not have been appointed but for political and crony-ist influences. I am conscious of those things and I am anxious to avoid their repetition under the new regime.

I should not have to argue the case for an independent judiciary in this country. We need independent judges because judges are involved in all litigations and the Government are involved in a great many of them. The Government are a frequent litigator in civil and criminal cases, and they will be more so in the future because of two Bills which are passing through Parliament at present: the Human Rights Bill, which enlarges the role of judges a good deal and the Scotland Bill, which also enlarges the role of judges.

We must avoid the danger that judges can be removed from office by politicians. Judges who can be so removed cannot be independent because independence in practice means freedom from government pressure, freedom from populist pressure and freedom from political pressure. It means that we, the judges, do not have to look over our shoulders at what others are saying about the kind of decisions we take.

I refer for brevity to an article I wrote in fairly strong terms, which was published in the Herald, I was going to say today, but it appeared substantially yesterday, 6th October.

In Clause 89 the Bill gives the power of removal entirely to politicians. The wickedness, if you like, of the Government's thinking is seen in the fact that in the original draft of the Bill all that was required to remove a judge was a simple majority of members of the Scottish parliament. The first minister was to move such a motion, and the majority then had to approve that removal. An amendment was made in another place with the result that the first minister can now move a motion for the removal; a two-thirds majority is then required. He 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 removal.

I want to draw the Government's attention to certain matters that they seem to have missed. First, the Human Rights Bill sets out Article 6 of the convention which states:

    "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
According to that, it would be illegal for the first minister, even with a two-thirds or unanimous vote in the Scottish parliament, to remove a judge from office. I want to be informed--I am sure that the Committee will want to know--what is the basis for the Government ignoring the terms of Article 6 of the Europe Convention on Human Rights, which is contained in the Human Rights Bill currently before Parliament?

Secondly, I draw attention to the fact that the recently approved Latimer House guidelines for the Commonwealth, discussed when the Commonwealth Heads of Government meeting in Edinburgh approved the Harare Principles, contain the following provision.

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Under the heading of "Accountability and judicial accountability" and the general heading of "discipline" it is stated:

    "In cases where a judge is at risk of removal, the judge 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. Grounds for removal of a judge should be limited to,

(a) inability to perform judicial duties, and
(b) serious misconduct".

All such matters, whether in the Human Rights Bill, the Harare Declaration or the Latimer House principles, are completely and utterly ignored in this Bill.

It is also a matter of some importance that at present--this has been so for more than a century--a mere sheriff or a sheriff principal cannot be removed from office without an inquiry conducted by an independent and impartial tribunal. It so happens that under the legislation, that consists of the Lord President and the Lord Justice Clerk, but I do not contend that such a mechanism should be adopted in the case of judges of the Court of Session because such office holders may be too close to the persons concerned and they may have been involved in other matters concerning conduct in the past. However, I envisage that there must be an independent and impartial tribunal. Whether it consists of judges or non-judges is not of great importance, but it must be independent and impartial.

We cannot put the independence of the judiciary in the new Scotland at risk by enacting this clause. Unless the Government table their own amendments I hope to move a suitable amendment at another stage, recognising that the tribunal does not have to consist of judges but may include others--that is, if the Government do not accept the principle behind the amendment. I beg to move.

1.30 a.m.

Lord Steel of Aikwood: Could the noble and learned Lord explain one other matter to Members of the Committee? As regards the Harare Declaration and the human rights legislation, how would these affect the present procedure for removing judges who I understand would fall foul of them?

Lord McCluskey: The interesting point is that no one really knows what the present procedure is for removing judges of the Court of Session or the President of the Land Court. There is a very learned article written by the noble and learned Lord, Lord Jauncey, in the Stair Encyclopedia which suggests that this has to be done by an Act of Parliament. As far as I am aware, no judge of the Court of Session has been removed. There are two possibilities: the first is that an Act of Parliament is required and the second is that a petition to the noble mobile officium of the Court of Session is required.

If you have an Act of Parliament, that involves bicameral legislature. What worries me about the present proposals in the Bill is the fact that there is a single body--the Scottish parliament--sitting in Holyrood, with a motion by the first minister without any proof of incompetence being required. In relation to

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judges of the Sheriff Court, as I said, the present system has stood for more than a century and that requires an independent investigation. I am satisfied that judges ought to be removed if they are shown to be incompetent or guilty of serious misconduct as the Harare Declaration and the Latimer House principles recognise, but I want to see that established not by politicians but by impartial and independent persons as our other obligations require.

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