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Lord Hardie: My Lords, we are considering the amendment tabled by the noble and learned Lord, Lord McCluskey. It is the amendment which he has tabled. I referred to our debate in Committee where the noble and learned Lord intervened when I was replying. He said:

If that is the noble and learned Lord's position, and if the desire were to secure an independent tribunal, it would have been possible for him to frame an amendment setting up a tribunal which included judges, but not exclusively. The whole point of our exchange is to show that in the course of two weeks the position seems to have shifted.

I submit that our aim should be that Clause 90 should be accepted as a fundamental part of the constitutional settlement. For that reason, it is fundamentals that the clause should contain and no more.

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The principal fear which has been voiced is that the procedures set out in Clause 90, particularly those for the removal of judges, do not provide enough protection against "political" abuse. I do not agree that this is a fair criticism and I would urge the House to look carefully at the provisions in the clause. Subsection (8) provides that:

    "The First Minister shall not make a motion under subsection (7) unless ... he is satisfied that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour".
He must be satisfied on one or other of those criteria before he can make the motion to parliament. In the case of the senior judges, the Lord President or the Lord Justice Clerk, there is the additional safeguard that he has consulted the Prime Minister.

As I have indicated, that goes much further than the Supreme Court Act 1981, which is entirely silent on procedures. There is no mention of the grounds on which a judge may be removed; far less any question of a tribunal. Subsection (8)(a) provides that the First Minister must be satisfied that the person is "unfit for office". Those are strong words. No other reason is admissible or admitted apart from inability, neglect of duty or misbehaviour.

Perhaps I may take up the point raised by the noble Lord, Lord Lester of Herne Hill. It is correct that if the First Minister decided to seek the removal of a judge for any other reason apart from those three, or if he took action which, applying any sense of reasonableness, did not amount to anyone being reasonably satisfied on any of those grounds, there would be a question for the judge to seek judicial review in the courts.

The noble and learned Lord, Lord Ackner, asked about judicial review. Of course it involves delays and there are opportunities properly to appeal to the Judicial Committee of this House. However, is the noble and learned Lord satisfied that even if a tribunal were in place there would be no opportunity for judicial review of the proceedings of the tribunal? If the judge felt aggrieved about the procedure that had been followed could he not seek judicial review of that?

The Earl of Balfour: My Lords, before the noble and learned Lord leaves that point, I wish to ask a question in respect of subsection (8)(b). The Lord Advocate has a staff behind him. Should not his successor in office be included in that provision? During our earlier proceedings, the noble and learned Lord, Lord McCluskey, stated that because of the Lord Advocate's staff and his position he held a special place in respect of the appointments of judges, sheriffs and so forth--

Lord Williams of Elvel: My Lords, as I understand it, we are on Report. It is for the Minister to respond on Report. There may be interventions of a very short nature, as I understand the Standing Orders, but I think the whole House would be grateful if we could get on with the business.

Lord Lester of Herne Hill: My Lords, I should like to ask a question arising directly out of the earlier exchange. Is the noble and learned Lord the Lord Advocate not able to assure the House, in answer to the

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points I put, that judicial review under the Scotland Bill, read with the Human Rights Bill, will go no further than a review of the legality of purpose; that it will not look at the merits of decisions and review the matter from the point of view of the basic civil right of the judge concerned to natural justice, or the loss of his office, as a valuable right, looked at on its merits? If that is the position, I can support the amendment. I hope that the Minister can assure noble Lords that judicial review would go much further.

6.45 p.m.

Lord Hardie: My Lords, I was dealing with the point of subsection 8(a), raised by the noble Lord, Lord Lester, in that context. Judicial review is a very wide remedy and, as I stated earlier, if there were reasons other than the three which are specified, clearly there would be a remedy of judicial review. Equally, if the view was taken that no reasonable Minister could have reached the view that on the information before him the test was satisfied, that would also give rise to judicial review. Of course there are questions of natural justice and that is what I was alluding to in my reference to the possibility of reviewing the proceedings of the tribunal. Questions of natural justice would be a ground for judicially reviewing an administrative decision of the First Minister. I hope that that answers the point.

I have not heard any persuasive account of how a political motive could be successfully dressed up as meeting the clearly limited criteria set out in subsection 8(a). Without such a persuasive account, fears of political abuse are simply not supported by a re-reading of the clause.

Noble Lords should bear in mind that the First Minister will have to be prepared to defend his view before the parliament and even before the courts if a judicial review were, for example, to be raised. No First Minister would embark on this road unless he was very sure of his ground. We have tended to discuss this clause so far as though there were only risk on one side of the equation; namely, that of the judge whose removal might be sought. But there are, it seems to me, very large risks for the First Minister if he attempts to subvert this process.

I invite the House to look at subsection (7)(b) of Clause 90 which requires members representing two-thirds of the seats to support a motion for removal. This point has featured in the contributions of a number of noble Lords. It has been correctly observed that when the Bill was first introduced in another place there was no such requirement; it was a simple majority. I can understand the concerns of noble Lords, including the noble Lord, Lord Hughes, and the noble Baroness, Lady Carnegy of Lour, about the effect on a judge if a two-thirds majority is not achieved. However, the proposal for a two-thirds majority was introduced after consideration as to how judges might be better protected. I understand that it found favour with senior members of the judiciary in Scotland at that time. It was seen as an important safeguard in protecting the judiciary. I understand that the noble and learned Lord, Lord Rodger of Earlsferry, the Lord President, thought that it was an improvement to the Bill.

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The effect of the two-thirds majority is that 86 people will have to vote in favour of removal of a judge before that could be achieved, and it would require an exceptional degree of cross-party support before the judge could be removed. If we are to amend the Bill for fear of political abuse of power, we owe it to the electorate to make a cool-headed assessment of the political realities of the situation. With great respect, I have gained the impression recently that some noble Lords are concerned that the steady good sense of the people of Scotland is somehow no longer to be relied upon. I did not find the comparisons with the former USSR helpful and thought them slightly over the top.

If ever the time comes when 86 members of the Scottish parliament wish to remove a judge for political reasons and are prepared to risk not only their public standing but also that of the judicial process as a whole, I suggest that we would be facing a constitutional crisis of such dimensions that what is said on the face of the Scotland Bill will, frankly, be neither here nor there.

Furthermore, as I have already noted and as I indicated in Committee, as matters stand judges in England and Wales have only the protection of a motion agreed by both these Houses under Section 11(3) of the Supreme Court Act 1981. I am not aware that this has come under any pressure for review, nor have I heard any serious suggestion that there has been political abuse of these powers. We are asked to disregard this absolutely crucial point on the grounds that the advent of "devolution questions" and the Human Rights Bill will so dramatically change the relationship between the courts and the Government that the long history of absence of political abuse of these powers ceases to be of any relevance. We are also asked to assume that the introduction of the parliament will void the existing conventions about the use of such powers. That simply is not tenable. The courts have long had, and on occasions have used, the capacity to greatly embarrass on occasion the executive. We should not exaggerate the extent to which the role of the judiciary is going to change, nor the extent to which the political realities which underpin existing conventions will be altered.

I do not seek to suggest that there is no scope to elaborate on what is in the Bill. We intend that the Scottish parliament should be able to add to the procedures which must be observed by the First Minister before he makes his Motion to the parliament. This afternoon and evening and in earlier debates, many distinguished holders of judicial office have made thoughtful and thought-provoking contributions regarding what additions to the process set out here there may be.

This is an important debate. It is one that the Scottish parliament itself is empowered to take forward. But the more we write into the Bill now, the more we limit the ways in which this process can be developed in future. Significant debates which have been opened in this House will, for all practical purposes, be closed down again before they have barely begun. We should be in no doubt that were we to accept these amendments, it would be practically impossible to add significantly to the process for weighing up the case for and against removal. The amendments clearly assign that task

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exclusively to the proposed tribunal. The two senior members of the judiciary involved would become the gate-keepers, with absolute power to decide whether a case should progress. Once they have opined, there can be no practical role for any other body. Earlier, I touched on the scope for involvement in this debate. It cannot be right for this House to take a decision today that the gate-keepers should be the senior judiciary and no one else.

Further, the amendments do not specify which other procedures the tribunal is to follow. We have heard that there is a need to allow the judge himself to know the case against him and make representations. Those points were made by the noble and learned Lord, Lord Hope of Craighead. But the amendments here do not provide that safeguard. Is there to be a hearing at which the judge concerned is to be entitled to be heard? If not, what are the procedures? The Government consider that it would be preferable if the matter could be left in the hands of the Scottish parliament to devise a properly worked-out procedure, rather than adopting a procedure which has not been worked out in detail and which, as a proper solution, does not go far enough.

The noble and learned Lord again referred to the Latimer House guidelines. When we discussed this matter earlier in Committee, the noble and learned Lord mentioned those guidelines. As he has said, they were the product of a conference in June 1998 which adopted a series of principles and guidelines for consideration by the next meeting of the Commonwealth Heads of Government in November 1999. For the present therefore the guidelines have not been formally adopted by any government and I am not persuaded that they ought to influence the way in which your Lordships' House should reach decisions on what needs to go into the Scotland Bill now.

As regards ECHR, the noble and learned Lord referred to Article 6 of the European Convention on Human Rights, as he did in Committee. Since then, we have considered that point and are satisfied that there is no difficulty on that score. The Government take the view that the termination of office of a judge does not involve the determination of a civil right. That is because the European Court of Human Rights has drawn, in its decisions, a distinction between rights of appointment and termination in the public sector, which are matters of public law, and economic rights, such as rights to payment of salaries or pension, which are matters of private law, giving rise to civil rights. I can give the noble and learned Lord the necessary authorities, if he wishes.

I would urge noble Lords to think carefully about these amendments. I repeat the point I made at the start of my reply. There is not an essential difference between us about the need for the independence of the judiciary and the need for a robust, workable procedure for the removal of judges which is not open to abuse. However, the Government submit that our aim should be that Clause 90 of the Bill should be accepted as a fundamental part of the constitutional settlement and for that reason it should contain no more than it does at present. If we write more into this clause than is strictly

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required and create an unnecessarily tight straitjacket which causes problems in the future, I am afraid we shall not have done our task properly. The Government accept that there is clearly a significant debate to be had about how the framework in the Bill might be augmented. But if we choose in this House not only to begin this debate but also to end it, we indeed do the Scottish parliament--and I would argue the judiciary itself--a great injustice.

I very much hope that the noble and learned Lords will consider those arguments and withdraw their amendments.

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