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Lord Jauncey of Tullichettle: My Lords, first I must confess that I was removed from shrieval office by resolution of both Houses of Parliament but in somewhat different circumstances when the last Labour government decided that it was no longer appropriate that there should be part-time sheriffs principal. Six of us were removed from office. However, I was in good company. I was removed together with the previous Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, and someone else who became senator of the College of Justice shortly thereafter.

At present, the Westminster Parliament is substantially sovereign. I use the word "substantially" rather than "wholly" because of the necessary abdication of that sovereignty in matters where European Community law is concerned--for example, the European Court of Justice directs United Kingdom courts to disapply provisions of primary legislation passed by Parliament. An outstanding example was the decision of the European Court that the Appellate Committee of this House must disapply provisions of the Merchant Shipping Act in relation to shipping vessels registered under the British flag but Spanish-owned. However, in general, the judiciary in the United Kingdom presently has the task of

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interpreting and applying primary legislation. It does not have the power to question why it was passed or to strike it down.

The position in Scotland under this Bill will be very different. As my noble and learned friend Lord Hope of Craighead lucidly pointed out at Second Reading, the Scottish parliament will have powers limited to those devolved to it by this Bill. Any legislation which it enacts which is outwith those powers will then be subject to challenge and will be brought before the courts in Scotland. That is likely to bring the Scottish courts into collision with the executive and the legislature in a manner previously unknown in the United Kingdom. I make no mention of the impact that the adoption of the European Convention on Human Rights into British law will have as well. It is therefore of critical importance that the independence of the judiciary from pressure by the executive and the legislature should be preserved. It is equally important that it should be seen by the public in Scotland to be preserved.

At present, the removal of a judge--always subject to the ultimate approval of Her Majesty--is placed by Clause 90 entirely in the hands of politicians: the First Minister and the parliament. The two-thirds majority presently written into the Bill, if anything, seems to emphasise the important part that Parliament is to play in any such exercise. That is hardly calculated to inspire confidence in the public at large in the independence of the judiciary, least of all in those litigants who happen to challenge legislation or other Acts of the Scottish parliament in the courts.

The temptation to get rid of a judge who may be a first-class judge and a first-class lawyer but who has had what might be termed the misfortune to deal with a number of cases involving the vires of legislation and who has perhaps come down on the side of ultra vires may be large. It will not do simply to say that it is all right and it can be left to the good sense of the First Minister, whoever he is at whatever time. We do not know how the Scottish parliament will develop. This is far too important a matter to be left purely to chance. I suggest that the First Minister, left to himself, will not be suitably qualified to evaluate at first instance the competence of a senior Scottish judge to do his duty.

The removal of the initial assessment of a judge's competence from politicians to an independent tribunal provides a constitutional safeguard which should be written into the Bill. The need for such an important safeguard is far too important a matter to be left to the whims of future Scottish politicians.

At present, Section 12 of the sheriff courts Act has machinery for the removal of a sheriff. My noble and learned friend Lord Hope of Craighead mentioned that point. However, such a sheriff can be removed only after a report in writing to the Secretary of State by the two senior judges, followed by action by the Secretary of State. The initial assessment of a sheriff's inability or ability is made by two senior judges.

That section was considered by the Appellate Committee of this House within the past year. One of the arguments addressed by the sheriff was that a broad

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construction of the words, "unfitness through inability", was to encroach upon the independence of the judiciary. The answer to that proposition which commended itself to the Appellate Committee was this:

    "The two senior judges, who might be considered to be the persons best qualified to assess a sheriff's fitness and to recognise the importance of judicial independence, are thus the bulwark standing between the sheriff and any undue interference by the executive".
I submit that the independent tribunal proposed by my noble and learned friend Lord McCluskey in this amendment would constitute just such a bulwark.

In conclusion, perhaps I may mention two matters raised by my noble and learned friend Lord Hope. He stated, and I entirely agree, that the practice and procedure for the removal of a judge must involve independence, fairness and speed. I merely add that it seems to me very important that the tribunal carrying out the function of determining whether a judge is or is not fit should be composed of persons who are qualified to assess that unfitness.

My noble and learned friend suggested that the Government were concerned about the fact that the innovation of a procedure for the removal of judges in the Bill might have some effect in England and Wales. It is a very different situation. So far as we see at present, no English judge is likely to be called upon to consider the vires of legislation passed by the Parliament at Westminster apart from questions on human rights. For those reasons I strongly support the amendment moved by my noble and learned friend Lord McCluskey.

Lord Ackner: My Lords, in view of the confession so recently made by my noble and learned friend Lord Jauncey, perhaps I should confess that there was an occasion when I was a judge of the Queen's Bench Court when a Humble Address was sought in this House to remove me from that office. I had made a wholly justified interlocutory injunction against a sensitive trade union which took it amiss. I am happy to say that Lord Broxbourne, formerly Sir Derek Walker-Smith, came to my rescue by putting down an amendment which provided for the deletion of everything except "That this House" and the insertion of,

    "recognises in Mr. Justice Ackner",
and there followed a string of qualities which even my best friends would not have associated with me. When, to my anxiety, he asked for the matter to be debated, the Leader of the House thought that this entertainment had gone too far and it was never put to the test.

Sadly, I cannot claim authorship for the fine words:

    "an independent judiciary is an essential safeguard and key element in our constitution".--[Official Report, 6/10/98; col. 417.]
They were the words with which the noble and learned Lord the Lord Advocate began his reply when the matter came before the Committee on 6th October. The need to safeguard the independence of the judiciary is therefore fully recognised. Yet, remarkably, by the terms of the Bill the First Minister 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

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should be removed and that he should specify the ground for the removal. No opportunity is given by the Bill for the judge to appear before an independent tribunal to be given the opportunity to defend himself against whatever accusation is made. I respectfully submit that that is a serious attack upon the independence of the judiciary.

I expect the answer to the noble Lord, Lord Lester, to be that judicial review does lie. But, if that is the right answer, I wholly disagree that it is an alternative that we should consider. Judicial review takes time. It can be the subject of appeals, right up to the House of Lords, and that will delay what should be an urgent decision. As has recently been pointed out, with great respect, Scotland is a small place. To bring on judicial review would involve a considerable degree of embarrassment and difficulty.

I wholly support what is proposed in the amendments, with one minor exception, which can perhaps be reconsidered. I do not like tribunals consisting of two judges, particularly when a matter as serious as this is concerned. Have one judge, if you must, or three judges, or five judges; but do not let us have a tribunal that is almost constituted to disagree. I sat as the second judge in a two-judge court with the noble and learned Lord, Lord Denning, with whom I had the effrontery to disagree. He agreed with me that a two-judge court was merely a cost-saving mechanism and was undesirable. Cost saving should be no part of the consideration of this matter in the Scotland Bill. I therefore urge that in due course, once what the noble and learned Lord, Lord McCluskey, has proposed is agreed to by your Lordships, some thought should be given to the appropriateness of having an uneven number of judges for this very important tribunal.

6 p.m.

Lord Clyde: My Lords, I am sorry that I have no colourful judicial experience to add to that of the noble and learned Lords who have spoken before me on the matter of the removal of a judge. However, I assume that the noble and learned Lord the Lord Advocate would accept all the matters of principle that have been raised in the debate and the desirability of an independent tribunal of some kind in order to resolve the matter. What I suspect is at issue is whether the provision should be inserted in the Bill. The noble and learned Lord may say that it is inconceivable and unimaginable that some procedure will not be put in place in due course. It may be that he will say that he does not wish the Bill to be cluttered up with lengthy amendments of this kind. Those reasons will not do.

In this Bill we are launching a great vessel; we are giving it a captain and a crew; and we are letting it steer its own course into an uncharted sea. We cannot foresee with any confidence how that vessel will conduct itself and in what turns, twists and manoeuvres it may engage. It may well be that all will be well, but one cannot predict that with absolute confidence. There is therefore the greater necessity to provide for these matters at the stage of the launch. No doubt, when the "Titanic" was launched, people said, "It is unimaginable that this ship can sink"; and no doubt many said, "It is unacceptable

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to clutter up its decks with more lifeboats." I am concerned that in this Bill we should not launch a vessel which is doomed to catastrophe.

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