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Lord Selkirk of Douglas moved Amendment No. 64:
The noble Lord said: My Lords, we have touched on this issue before. This amendment relates to the disqualification from membership of the Scots parliament of Lords of Appeal in Ordinary to bring this clause into line with other provisions in the Bill. The point of the amendment is that retired Lords of Appeal in Ordinary or retired judges can sit in the judicial committee of the Privy Council, and those retired judges would on the face of it not be subject to disqualification unless it was the Government's intention to include such office holders under the terms of Clause 14(1)(d) by making reference to them in an Order in Council.
Notwithstanding the practical arrangements which could be designed to make certain that retired judges who were also MSPs would not hear devolution issues, it nevertheless appears illogical in terms of the doctrine of separation of powers to allow that potential overlap. If there is a possibility of retired judges not being excluded from sitting on the judicial committee of the Privy Council, a retired judge who was an MSP could end up deciding a case in which he was legislator and on which he had deliberated earlier. I shall be grateful for the noble and learned Lord's reply.
Lord Hardie: My Lords, the Government are committed to ensuring that membership of the Scottish parliament is open to as wide a range of people as possible while ensuring appropriate disqualifications. In seeking to achieve that, we cannot support any of these amendments.
Before explaining our position in regard to the amendments, I wish to point out that in relation to Amendment No. 65 there is a technical defect in the sense that I suspect the Law Society has briefed the noble Lord with the wrong section of the Act. It should be Section 25 rather than Section 23.
That aside, the position is this. It was necessary in Clause 14 of the Bill to make special provision disqualifying serving Lords of Appeal in Ordinary from becoming MSPs. That reflects the separation between the judiciary and the legislature. The reason it was necessary in Clause 14 to make a specific exception for a serving Lord of Appeal in Ordinary is that there is an exception introduced in Clause 15 for Members of this House, so that Members of this House are not
I suspect that part of the concern is that past, as well as present, Lords of Appeal and other retired holders of high judicial office may become members of the Scottish parliament and may also be eligible to sit on the judicial committee of the Privy Council to consider devolution vires issues.
With respect, this is a worry without cause. There is quite rightly nothing to stop such well-qualified people from becoming members of the Scottish parliament. Indeed, there may be an advantage in having a retired judge as a member of the parliament, assuming that he or she gained favour with the electorate. However, it is not appropriate or necessary to disqualify them from membership of the parliament simply because it is theoretically possible for them to hear devolution issues in the judicial committee. In fact, some of those retired judges may not even be permitted to sit on the judicial committee because they are not Privy Counsellors. However, the composition of the judicial committee to hear devolution issues will be decided by the senior Lord of Appeal in Ordinary. Clearly, the noble and learned Lord would wish to consider whether it would be appropriate for an eligible member of the committee who was also a member of the Scottish parliament to consider a devolution case. I should expect that he would conclude that that was totally inappropriate.
In the light of that explanation, I invite the noble Lord to withdraw the amendment.
Lord Selkirk of Douglas: My Lords, I am grateful to the Lord Advocate. He is implying that he is giving a clear exhortation to the judge who would decide which Lord of Appeal in Ordinary should appear on the Judicial Committee of the Privy Council that it would be wholly inappropriate if he were also an MSP. In the light of that assurance, I withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 [Effect of disqualification]:
Lord Rowallan moved Amendment No. 66:
The noble Lord said: My Lords, this is a probing amendment because I am slightly confused about the provision in Clause 16(4). That subsection deals with the disqualification of people with mental illness and people who are sequestered. It provides that, if a member of the parliament becomes disqualified because of either mental illness or sequestration,
Lord Mackay of Drumadoon: My Lords, I rise briefly to support the probing amendment moved by my noble friend. I suppose it is unlikely that there will ever be recourse to the provisions in Clause 16, and subsection (4) in particular, because one expects that people who are selected as candidates will be in robust good health, that their financial position will have been explored and that we shall therefore not have to face any such difficulties. However, for understandable reasons, the subsection has been included. When I saw my noble friend's amendment I took the opportunity of reading the Notes on Clauses on this clause. It would be extremely helpful if the Minister could set out for the record, for the purposes of anyone who might have to consider the matter in the future, precisely what is intended by these provisions.
Lord Hardie: My Lords, the noble Lord, Lord Rowallan, is correct in his interpretation of the position. If a member were to suffer from a mental illness as defined, there would be a period of six months during which he would remain notionally a member, though he would obviously not be able to participate in the proceedings of the parliament.
The Government cannot accept these amendments. It would put a member of the Scottish parliament to whom Section 141 of the Mental Health Act 1983 may apply in a worse position than a Member of the other place who finds himself or herself suffering from a temporary mental illness. We think that there is merit in ensuring that members of the Scottish parliament receive the full benefit of the Section 141 procedure, as do Members of the other place.
Paragraph 17 of Schedule 8 provides for the application to members of the Scottish parliament of Section 141 of the Mental Health Act 1983, which makes special provision about the vacation of seats of Members of the other place who are detained in mental institutions. Where that section applies to a member of the Scottish parliament, as was observed by the noble Lord, Lord Rowallan, his seat will not be vacated immediately. That will happen only when the procedure provided in Section 141 has been complied with and he continues to be detained after a six-month period.
In the interim, Clause 16(4) provides that disqualification for such an MSP will mean that he is unable to take part in the proceedings for the duration of the disqualification and may have other rights and privileges withdrawn. This reflects the position of Members of the other place to whom Section 141 of the Mental Health Act applies, who will be unable to sit and vote.
Amendments Nos. 66, 67 and 68 would result in the immediate disqualification of a member if Section 141 applied. The member would immediately cease to be a member of the Scottish parliament and the seat would become vacant. The Section 141 procedure in his or her case would be rendered pointless.
I turn to the point raised by the noble and learned Lord. We all hope that Members of this place, the other place and the Scottish parliament will be healthy, but sadly occasionally people suffer from stress and require treatment for that. We consider it is appropriate that Section 141 should apply to members of the Scottish parliament in the same way that it applies to Members of the other place.
The Bill ensures that Section 141 allows a limited time for the member to recover from, say, a temporary breakdown or something of that nature. The six-month period would enable the member to recover and resume his or her seat and continue to represent the constituency. We believe that it is right that the member should not be able to participate in proceedings but may retake his or her seat once the cause of the disqualification is removed. We also consider that the procedures proposed in the amendments are unduly harsh. With that explanation, I invite the noble Lord to withdraw the amendment.
Page 7, line 18, leave out ("is a") and insert ("holds or has held the office of").
Page 8, line 13, after ("sitting,") insert ("including in consequence of section 141 of the Mental Health Act 1983 (mental illness),").
"The seat of a disqualified member of the Parliament is not vacant",
and,
"he shall not cease to be a Member of the Parliament until his seat becomes vacant but ... any of his other rights and privileges as a Member of the Parliament may be withdrawn by a resolution of the Parliament".
As I understand it, the seat has a member who is either mentally ill or is sequestered. The sequestered member of parliament is obviously still capable of looking after his constituency until the parliament decides that his rights and privileges should be withdrawn. There is nothing wrong with him other than that he has had a bad business failure of some kind and finds himself with no money. The mentally ill person, on the other hand, is surely totally incapable of looking after his constituency. It strikes me as illogical that the two are tied together. I should like to hear the views of the Government as to whether there should not be an immediate by-election when a member of the parliament becomes mentally ill. I beg to move.
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