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Lord Hope of Craighead: My Lords, I support these amendments. I should like to say one or two things by way of supplement to the points made by the noble and learned Lord, Lord McCluskey. As I have made clear on a number of occasions, I do so against the background of experience. In this particular connection I have two aspects of experience to bring to bear on the problem.
The first is that it was from time to time my responsibility as Lord President to have to consider very carefully with the Secretary of State for Scotland and his advisers the procedures for the removal of judges, and how the procedures in the statute for the removal of sheriffs should be dealt with in a case where the necessity for using them arose. The second is that I shared with the then Lord Justice Clerk, Lord Ross, the responsibility for dealing with the case of Sheriff Stewart, to which the noble and learned Lord referred. It was borne in on me, perhaps more forcefully than ever before, how valuable the sheriff court procedure is for preserving the independence of the judiciary from political interference. I say that because there was political discussion about Sheriff Stewart's position, but it was at the request of the Secretary of State that the matter was dealt with by the judges in order to decide whether grounds for his removal were made out.
There are two aspects to the problem. The first relates to the independence of the judges. The noble and learned Lord, Lord McCluskey, explained the position much better than I can on that chapter. The other, which was of pressing concern to me as head of the court, was the need for clarity and for certainty as to what to do in
these very serious cases where the public interest is so much at the root of the problem and where press scrutiny is so penetrating should things go wrong.This part of the clause makes two assumptions in looking at the question of removal. The first is that a judge, or the chairman of the Scottish Land Court, may become unfit for office while he is still in post. The second is that if he is unfit for office it will be necessary for steps to be taken by some procedure to remove that person from office.
Like the noble and learned Lord, Lord McCluskey, I regard the first assumption--that a judge may, in the period of the Scottish parliament, become unfit for office--as one that it is proper to make for the purposes of the Bill. Despite our history, which has never encountered one of these problems of removal before, it would be a rash assumption to make that at no time in the history of the parliament could such a problem arise. But let us assume that such a problem has arisen. Let us assume that it is believed that there are grounds for saying that a judge is unfit for office. I believe that the Lord President of the court--the head of the court--is the first person to whom one turns in order to initiate the procedures to deal with the situation. It would be his responsibility to find out the facts as best he can, to offer advice to the judge in question, to offer warnings and perhaps even to advise him to resign. It may be that that advice will be taken. It is only if it is not taken that it will become necessary for further steps to be put in place, with the support of the Lord President, as I assume, in order to secure removal.
I mention in passing that in its present form the amendment of the noble and learned Lord, Lord McCluskey, faces up to the problem that the Lord President will almost inevitably be deeply involved in these problems from the very beginning in offering advice--perhaps offering warnings--and it is quite right that he should step back and that others should be brought in. I fully support the suggestion that Lords of Appeal in Ordinary should be included in the possible range of people who could provide membership of the necessary tribunal. I thought a very important point indeed was made by the noble and learned Lord, Lord McCluskey, when he doubted whether this matter could be dealt with by the Scottish parliament, with the limited powers it has under the Bill.
What then of the proceedings? What must one secure if this procedure, in the unhappy circumstances to which I have referred, has to be put into operation? I suggest that there are three qualities which it has to satisfy. The first is that the procedure must be independent--independent of political influence and independent of the senior judge who has the responsibility of taking the preliminary steps. Secondly, it must of course be fair and it must live up to the requirements of the convention. But, thirdly, it must be swift and it must be effective. I believe that in its present form the Bill fails to address any of those three requirements.
So far as concerns the necessity for swift and effective action, let me mention the case of Sheriff Stewart by way of example as to what may occur if one of these contested cases were to arise. I do this not in
any sense to criticise Sheriff Stewart who was defending his position, as he was perfectly entitled to do, all the way down the line. But let us just contemplate what the consequences would be if one encountered such a person in the crisis to which this part of the clause refers.Sheriff Stewart was suspended from duty but he remained on full pay. That meant that there was a vacancy which had to be filled in his local court at public expense. Therefore, double expenditure in a sense was being incurred by paying the sheriff and providing a replacement who could carry out his functions in that court. The operation to secure his removal from the point when the request was made by the Secretary of State to the moment at which the Secretary of State, on advice, placed the matter before Parliament occupied the best part of a year, during which time that expense was incurred. Following that, as he was perfectly entitled to do, Sheriff Stewart challenged the procedure for his removal and, as your Lordships have been told, he took the matter, step by step, up to your Lordships' House, where the matter was resolved by the Appellate Committee.
All these things were perfectly within Sheriff Stewart's rights, but I am bound to say that, if that kind of process had been going on within the Court of Session during my time as Lord President, I should have found it almost intolerable for the good of the court and for the public perception of the administration of justice in Scotland. The court has a limited number of judges and an immense amount of work to do. It cannot afford to have a judge suspended from duty at public expense for a long period, while people search around for the necessary procedures to secure removal.
Further, let us suppose that a challenge is made to the removal process and that that process is tripped up on the way because of some failure in putting together in the crisis the necessary procedures to be secure against challenge. Just imagine the effect of that on the morale of the court and the capacity of the judicial system in Scotland to serve the public interest.
My recollection of what the noble and learned Lord the Lord Advocate said in the early hours of the morning on the last occasion that we discussed the matter was that he believed that the Scottish parliament could deal with it by legislation in the light of experience. That sounds to me like a recipe for disaster if one considers the situation that one is being forced to contemplate.
We have enough experience now--and I speak having regard to the experience of the noble and learned Lord, Lord McCluskey, and, if I may be allowed, my own experience--to be able to design a system which will secure the aims to which I have referred. It is far better that we should have that system in place now so that those who are in positions of responsibility and have to take such decisions will have that framework available to them within which to work.
I suspect that there may be some concern which may underline the Government's resistance to the amendment; namely, that by taking the step proposed we would be innovating on the position that obtains at present in England and Wales. It is perfectly true that
there is no procedure such as is being suggested to deal with the senior judiciary in England and Wales. However, if that does lie behind the Government's thinking, I have to say with the greatest respect that it is a totally misguided approach to the situation which we now face in this Bill. The reason is quite simple: it is that the Rubicon has been crossed by including in the Bill any procedure at all for the removal of judges.If it is believed--and I may be wrong--that it is necessary to preserve the judiciary in England and Wales from such a procedure, the question of the removal of judges by bringing the Scottish parliament into the process should have been left out of the Bill. Indeed, we should have been left with the position as it remains today and the senior judiciary throughout the United Kingdom would be in the same position. For reasons which I can well understand, the Government have decided that that will not do and that Scottish judges must be considered and dealt with in Scotland. However, once that step has been taken it becomes inevitable for the necessary procedures to be written on the face of the Bill.
For those reasons, I strongly support the amendments to which the noble and learned Lord, Lord McCluskey, has spoken both in principle and, if I may say so, in detail.
5.30 p.m.
Lord Selkirk of Douglas: My Lords, I rise to express my very strong support for both noble and learned Lords. They made speeches which were persuasive, compelling and convincing. It seems that there is no adequate machinery under the Bill for removing judges who are considered unfit. I should perhaps make an admission here in that I have served as junior counsel to the noble and learned Lord, Lord McCluskey, in the past. I vividly remember a particular accident case in which most of the witnesses had died. It was not clear which law of which country applied. But, notwithstanding those obstacles, the noble and learned Lord still managed to get a very good settlement for the widow. That may perhaps be a good omen for a successful outcome to our debate this evening.
I am glad to support the noble and learned Lord most strongly. It is extremely important that the independence of the judiciary is appropriately safeguarded. It is a serious matter to remove a judge. I witnessed the case where a sheriff was removed from office by both Houses of Parliament. It was Sheriff Peter Thompson whom I had appeared before and who was a very good sheriff on the bench. However, he would campaign for referenda on constitutional issues and, because he persisted in doing so when he had been asked by the Lord President of the Court of Session to desist, an order was laid before both Houses of Parliament. The end to that sad saga was that the Government chose to employ the use of referenda, which is perhaps most ironical.
None of Scotland's most senior judges has ever been removed. Therefore, it is extremely important that we get this right tonight. I should point out that there are precedents for removing from politicians quasi-judicial decisions, taking them out of the their hands and putting
them in the hands of tribunals. Perhaps I may mention one precedent which I believe serves to reinforce the noble and learned Lord's case. During the seven years that I was Home Affairs Minister in Scotland, cases where police officers appealed to the Secretary of State against dismissal would come to the Home Office Minister. He would read the papers carefully, make his recommendation to the Secretary of State and the latter, on the best advice of the solicitors' department, would issue a decision. That law has been changed. Such cases would not now be considered for hours and hours by the Secretary of State and his officials. Instead, they will go to a tribunal. I believe that to be the correct and appropriate procedure.
As a matter of principle, we wish to retain an independent judiciary which will not lightly be tampered with and which will remain highly respected. Supporting the principle of the noble and learned Lord's amendment should achieve just this. I am very glad to confirm that it has the complete support of the Law Society of Scotland.
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