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Lord Hardie: I was going to recognise that the noble and learned Lord said that. I intended to deal with that point later in my response. This is an important issue, as noble Lords have recognised. I am anxious to give as full a reply as possible to all the points that have been raised.
We do not support any procedure which ensures that there is a judicial input preceding the moving by the first minister of the motion under Clause 89(7).
Amendment No. 291E goes further and specifies a pool of judges who might be called on to prepare such a report, and requires that they should include in any report a statement of their reasons for reaching their conclusions.
In advancing the amendments, the noble and learned Lord, Lord McCluskey, is giving tangible form to the general expressions of concern he expressed at Second Reading and again more recently in a different way.
I repeat that I entirely agree with him that the procedures for the removal of judges are matters of the greatest sensitivity and importance. The Government understand this concern for the independence of the judiciary. I trust that the noble and learned Lord will agree that I, too, am committed to preserving the independence of the judiciary as much as the independence of the office of the Lord Advocate.
I agree with the noble and learned Lord, Lord McCluskey, that we should not seek in the Bill to replicate the provisions in Clause 12 of the Sheriff Courts (Scotland) Act 1971 which would enable judges to be removed only following a report by the Lord President and the Lord Justice Clerk. I can see that that would lead to some practical difficulties.
The noble and learned Lord made the point that it is not necessary to have judges, and that other procedures may be available. While it is not impossible that the first minister might want to develop a mechanism not dissimilar to that outlined by the noble and learned Lord, before presenting a motion to the parliament, we do not think that it is appropriate to entrench it in the Bill. There should be scope for procedures to evolve in the light of experience.
Amendment No. 291ZCB takes a different approach and simply deletes from the Bill all provisions dealing with the removal of judges. Let us be quite clear: the appointment and, by extension, the removal of judges, will be a matter which is devolved. We have included express provisions in the Bill, and therefore entrenched them, for the purpose of preserving the independence of the judiciary. I do not see how the noble and learned Lord, with his deeply-held and strongly expressed concerns, can reconcile the amendment, which simply removes any such framework. The amendment would leave the Scottish parliament with a completely free hand.
Amendment No. 291CA would extend to sheriffs and sheriffs principal the provisions in Clause 89 relating to the removal of judges of the Court of Session and the Chairman of the Scottish Land Court. There are already powers under Section 12 of the 1971 Act dealing with this matter. Under the general provisions of the Bill these powers will pass to Scottish ministers in the Scottish parliament, and I can see no reason to include anything in the Scotland Bill which would make any additional provision. The noble and learned Lord will be aware that under the provisions of the Sheriff Courts (Scotland) Act 1971 there requires to be an inquiry by the two senior judges, and unless they make a recommendation or finding to the Secretary of State for Scotland that in their opinion the sheriff is unfit to hold office, the matter cannot proceed any further. The matter stops at their report unless they make an adverse finding.
It then goes on to the Secretary of State who considers the matter and does not need to follow the recommendation or finding of the senior judges.
Lord Mackay of Drumadoon: Does the noble and learned Lord accept the point which I raised that there may be an argument that the 1971 legislation would not survive scrutiny against convention rights? We do not need to decide whether or not the argument is well founded but there is an argument which may have figured in the Stewart case which went to the Appellate Committee of your Lordships' House not so long ago. If it is to be the case that all the judges in Scotland--whether High Court judges, sheriffs principal or sheriffs--are dealing with similar issues under the Bill and under the human rights legislation, there is an argument for treating them all the same so far as concerns their removal from office. It would be unfortunate in the extreme if the Government missed the opportunity of dealing with it in this Bill and a year or two down the line were faced with the problem of the Court of Session being invited to make a declaration of incompatibility of Section 12 with convention rights. I suspect that that is a problem we could well do without.
All I ask is that the matter be looked at. That is one of the reasons why the amendment was tabled.
Lord Hardie: I intend to deal with the question of human rights which was raised in another context by the noble and learned Lords, Lord McCluskey and Lord Hope. I shall deal with the point at that stage.
Amendment No. 291CC attempts to provide that before the First Minister can recommend the removal of the judge of the Court of Session or chairman of the Land Court, Members of another place would need to support a Motion to do so. We presume that Amendment 291CB, removing the special majority, is linked to that proposal, as the noble and learned Lord explained. The Government cannot accept any suggestion that Westminster should be involved in this process. It is a matter for the Scottish executive and the Scottish parliament and is quite inappropriate that their actions should be subject to review in Westminster. We are devolving responsibility for judicial appointments to the Scottish parliament and we should allow it the freedom to exercise its powers properly without the interference of Westminster.
I take some comfort from the response of the noble and learned Lord, Lord Hope, to my noble friend earlier. He expressed some reservations about having a mixed jurisdiction.
Amendments Nos. 291DA, 291F and 291FA attempt to prescribe how the First Minister should satisfy himself that the judge of the Court of Session or sheriff is unfit for office. I have already explained that the procedures for the removal of a sheriff are provided in the 1971 Act, and we do not intend to amend them in this Bill. The Bill does not specify what steps the first minister should take to inform his decision to move a motion specifying grounds of unfitness. It is inconceivable that he would move such a motion other than on sound advice. The advice might be medical or it might come from other sources. I see no reason to
prescribe this on the face of the Bill. Indeed, if it is medical, the decision of the First Minister may well be informed simply by the production of appropriate medical certificates (assuming that the judge concerned submitted himself or herself to examination).I see no reason to prescribe the procedure on the face of the Bill. It is appropriate for us to rely on the First Minister to take advice, and we would not want to prescribe how he should take such advice.
Amendment No. 291FA adds to Amendments Nos. 291DA and 291F and specifies that no report recommending the removal of the judge, sheriff principal or sheriff may be submitted to the First Minister without the person who is the subject of the report having first been interviewed as far as this is reasonably practical and given an opportunity to comment on the factual basis of any proposed finding that he is unfit for office. Again, I think that it is unimaginable, with all due respect to the fears expressed by the noble and learned Lord, that in except the most extreme cases the entire process of the First Minister satisfying himself that a person is unfit, moving a recommendation and gaining the agreement of two-thirds of the parliament could be completed without the person in question being offered a reasonable opportunity to make representations, including comments on their factual basis at some, and possibly more than one, stage in the proceedings.
It is beyond belief that the parliament would not ask the First Minister what his reasons were. It is beyond belief that if there were a dispute as to fact members of the Scottish parliament would not ask the First Minister what the attitude of the judge was. That is so particularly in view of the two-thirds safeguard and given the background of the change in the electoral system which will probably ensure that no one party can achieve a two-thirds majority of all the members elected to the parliament.
There is a further attempt to write into the Bill details of procedures which we are sure should be left to the First Minister and to parliament to develop and defend in each particular case. I believe that these details should be left to the parliament. We should not try to second-guess every aspect of the process. What matters is that the Bill should contain certain minimum safeguards and provide a framework within which the parliament can operate. I believe that Clause 89 achieves that. On that basis, I shall in due course invite noble Lords to withdraw their amendments.
Lord Hope of Craighead: I am grateful to the noble and learned Lord for giving way. A few moments ago and at the beginning of his remarks he said that we should leave these procedures to be evolved in the light of experience. Can he explain a little more what he means by that?
Bear in mind that if a judge is unfit for one reason or another the first step that everyone will want to take is to persuade him to resign without the need to go through these procedures. Therefore, the procedures will almost certainly be required only where the judge is resisting his removal. If he is resisting his removal, he will in all
likelihood take every opportunity to challenge his removal at every stage in the process. The more one leaves to chance the more the risk of the procedure breaking down after an inquiry, after a vote has been taken in Parliament or even later on. The hostages to fortune which are created by allowing procedures to evolve by experience are very great. I wonder whether the Government have taken on board the risks to which they are exposing Scotland if they allow the matter to evolve in the way suggested by the noble and learned Lord.
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