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Lord Hughes of Woodside: My Lords, there is a matter which has been puzzling me. While I wholly accept the independence of the judiciary, I am asked to believe that it is necessary for an independent tribunal of some kind to rule on the competence of judges. Independence of politicians, yes, but all the people who are named are not independent of the judiciary. I do not understand how it can come about that the judges are presumed to be so independent they can independently rule upon themselves. The noble and learned Lord mentioned a scenario in which there would be a great furore about the referendum being denied. If the furore was so great, no tribunal composed of judges would wish away that political maelstrom. In my view, neither of those two points has been sufficiently answered for me to support the amendments.

Lord Mackay of Drumadoon: My Lords, I am grateful to the noble Lord, Lord Hughes, for his intervention, which illustrates the point I make. Judges are being pulled into highly political issues. They have to rule on an issue of law. Unless the Bill clearly states what should happen if there are calls for the sacking of the judges concerned--calls from people who may not have studied the history of this Bill, let alone the detail, with the same interest as the rest of us--I perceive there will be difficulty. On the other hand, if there are such calls, the First Minister can say to parliament, "This was decided back in 1998." That is the procedure which will have to be followed. If he could point to something in the Bill then that would serve to quell any calls which would inevitably arise for the removal of the judges concerned.

I return to the first point made by the noble Lord. That is a good example of a matter of detail. I can see the force of the argument that a tribunal could contain a mixture of judicial members and people without legal qualifications. A number of tribunals sit in this country which have such a mixed composition. Such an amendment, if tabled, would fall to be debated on its merits.

The style which the noble and learned Lord, Lord McCluskey has followed is already in legislation in the Sheriff Courts (Scotland) Act 1971 which

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provides for the removal of the sheriffs. The last time we debated this matter I believe the noble and learned Lord the Lord Advocate said that that has not given rise to any criticism as to the procedure followed, subject to one comment; namely that it may be unfortunate that the Lord President and the Lord Justice Clerk are the two judges concerned. As the noble and learned Lord, Lord Hope, said on more than one occasion, by the time it comes to such an inquiry, the judges are tainted by bias because they have practical experience of the failings of the sheriff concerned. Therefore, it may be difficult for them to stand back and be independent. That is why I believe that the tribunal, as defined by the noble and learned Lord, Lord McCluskey, in Amendment No. 177, is an improvement on the provisions in the 1971 Act. I have no absolute view that under no circumstances could lay people be involved. However, I have an absolute view that they should not be members of the parliament or active in any party politics. I am quite sure that an accommodation to that effect could be reached.

I return to the point I was making. I believe that this detail should be on the face of the Bill. The noble Lord, Lord Lester, may well be correct that principles of administrative law, and other principles, may come to the rescue of the judge concerned to ensure that the inquiry and procedures are fair. With the greatest respect to the noble Lord, I do not believe that we can afford to wait to see if he is correct. Like all noble Lords who are lawyers and have been in practice, occasionally the opinions one expresses on the law turn out not to be the ones supported by the court. I should prefer to see this provision in the Bill. That is why I firmly support the amendments.

Finally, I take the point raised by the noble Lord, Lord Hughes--

Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. I should like to clarify a point which may have been misunderstood. I said that there were three ways of achieving the objective; the first two are by means of statutory tribunal. I raised the possibility as to the effectiveness of judicial review as an alternative approach. I await the Government's reply. However, I see the force of the argument that the best way is by means of a judicial commission or tribunal.

Lord Mackay of Drumadoon: My Lords, I am grateful to the noble Lord for that clarification. As I have said, when this matter was last debated I put forward the very argument made by the noble Lord, Lord Hughes; namely that a judge who survived in the sense that only a simple majority was achieved and not the necessary two thirds would be in an impossible position. The noble Lord may well be right that any judge in such a position would resign but I should not want to see that possibility arise.

This matter was debated fully in Committee in the middle of the night. It has been debated fully today. I understand, from what the noble and learned Lord, Lord McCluskey, said earlier, that he does not intend to press Amendment No. 175 at this stage. However, if he

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presses Amendments Nos. 176 and 177 to a vote, I shall support him in the Division Lobbies. I should encourage my noble friends to do likewise.

Lord Hardie: My Lords, as the noble and learned Lord, Lord Mackay of Drumadoon, said, this has been a long and interesting debate. We have rehearsed many of the reservations about the provisions in the Bill for the removal of judges. Those reservations were also rehearsed in Committee over a considerable period, albeit early in the morning.

The noble and learned Lord, Lord McCluskey, acknowledged the many points of agreement between noble Lords who support this amendment and the Government. The noble and learned Lord, Lord Ackner, acknowledged in Committee that I recognise and place considerable importance on the independence of the judiciary. So we are agreed about that principle. We are also agreed that there must be a workable process for the removal of judges who are no longer competent to carry out their role. I think we are also agreed that robust arrangements will have to be made to determine whether a judge is unfit. In particular, we agreed that in any such case, the grounds for removal should be clearly stated. The only point on which we are divided is how much of the detailed procedure should be on the face of the Bill. In other words, should this matter be settled here and now at Westminster or left to Holyrood?

As I have said, the Government are committed, as I am, to protect the independence of the judiciary. The House should not doubt that we understand absolutely the need for the proper separation of powers between the legislature, the executive and the judiciary. We also recognise that such separation can never be absolute, as this House knows to its great benefit. However, we accept completely that a substantial degree of separation is needed if the legal process is to operate without fear or favour. In recognition of the fact that this is a key issue, we have gone much further than any provision currently in statute by spelling out in this Bill the only grounds on which a judge may be removed. I would invite the House to contrast that with the present position under the Supreme Court Act 1981, which governs the procedures for England and Wales, to which I shall return.

I say to noble Lords who raised the issue of England and Wales that that is not a reason for our resisting the amendment. We do not resist it in case there are repercussions for England and Wales. I assure noble Lord that that has not entered into our deliberations. The reference to England and Wales and the Supreme Court Act 1981 is simply to draw a distinction and to show that in this Bill we set out the specific grounds upon which the First Minister can put a Motion before parliament.

I submit that the task before us is to ensure that the Bill contains the fundamental safeguards required for the separation of powers; in other words, the protections which are essential to safeguard judicial independence. The other side of the task must be to ensure that those safeguards are framed in a way which will stand the test of time. That is an important consideration for noble Lords to bear in mind when considering what to do at

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the end of the debate. We must be careful that in a relatively short time the provisions may come to be seen as too inflexibly constructed to be able to cope with reasonable changes in the wider world.

I remind the House that the clause is entrenched; it can be amended only here at Westminster. If there are calls to amend the clause in five or 10 years' time because we have failed to leave room for the development of a significant role for, say, a ministry of justice, or a particular committee structure in the parliament, or simply a different type of investigative tribunal--perhaps one including a lay voice--the task here will not have been done correctly today. Indeed, we may build in detail here today which on further reflection, in very short order, we come to think as not right because it has been conceived in relative haste.

The House has doubtless noted that the detailed proposal put forward here already shifts the ground as compared to proposals suggested by noble and learned Lords a matter of weeks ago. For example, on 6th October, at col. 418 of Hansard, the noble and learned Lord, Lord McCluskey, admitted that this might not simply be an issue for determination by the judiciary alone. And yet we have before us this amendment, which seems to entrench that proposal--

6.30 p.m.

Lord McCluskey: My Lords, the noble and learned Lord the Lord Advocate was offered that particular carrot by me. I was perfectly happy to accept the government amendment under which the determination as to fitness or unfitness was given to persons other than judges. The Lord Advocate did not accept that and the Government showed no willingness to do so. I therefore consulted extremely widely in Scotland and decided that the appropriate amendment for me to table was this one. If the Government want to have a lay element I am perfectly happy to accept it. I should be delighted to welcome it.

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