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Lord Hardie: My Lords, I am always happy to consider any matter which the noble Lord raises. I thank all noble Lords for their support on the amendment.
On Question, amendment agreed to.
Lord Ackner moved Amendment No. 42:
The noble and learned Lord said: My Lords, this amendment has all the appearance of a drafting amendment but it is a little more important than that because it deals with the tribunal which has that significant role to play with regard to deciding whether or not there is a situation in which a judge should have his appointment terminated. That is a great responsibility given to that tribunal. If it consists only of two persons, then there is a risk either of a disagreement or of an unsatisfactory compromise decision.
I sat many times in the Court of Appeal with a tribunal of two. I rarely found it a comfortable occasion because one was deeply anxious as to whether one's colleague would suddenly depart in a direction with which one did not agree. A two-judge court is an invitation to the possibility of disagreement and if you have the disagreement, what then? You have to start all over again and if there is no provision for three judges, you will have to start all over again with two other judges who may disagree. And so it may go on.
Therefore, on the occasion when this matter was last raised on Report, I suggested that the two should become three. My noble and learned friend Lord McCluskey, whose amendment I was referring to in that very moderately critical way, accepted that there should be three judges, if that were the will of parliament.
I wish to take this opportunity to amend the record in a small way. I must have been suffering from ideas above my station when I sought to recollect what occurred 20 years ago when a humble Address was moved, or was likely to be moved, to remove me from the office which I held as a Justice of the High Court. That Address was not made in this House. It was made in another place.
As I indicated to your Lordships, an amendment was tabled. I said that it was tabled by Lord Broxbourne. He was not then Lord Broxbourne. The amendment was tabled by Sir Derek Walker-Smith. His proposal was to delete all that was in the humble Address and to put in its place what I suggested contained a list of qualities that even my best friends may not have recognised in me.
By way of mitigation, in support of what I have said, I shall read out the amendment tabled by Sir Derek Walker-Smith, and your Lordships can see the strength of my observation. His proposal was to,
Lord Lester of Herne Hill: My Lords, I am delighted to speak after the noble and learned Lord, Lord Ackner.
Lord Hardie: My Lords, I hesitate to interrupt the noble Lord, Lord Lester, but perhaps I can assist. I indicated to the noble and learned Lord, Lord Ackner, that we will be accepting this amendment.
Lord Lester of Herne Hill: My Lords, I shall be brief and wish to make only two points. First, there was one lapse in the career of Mr. Justice Ackner in his extra judicial capacity which is that I recall he sponsored me for Silk. That showed a certain cloud in his judgment at the time. In all other respects Sir Derek Walker-Smith--Lord Broxbourne--understated the position.
In relation to two-judge courts, I am delighted to hear that the amendment is to be supported by the Government. In my experience as an advocate there is nothing worse than a two-judge court; it is a recipe for weakness. Finally, it seems to me that a three-judge court recognises the gravity of what is at stake when a judge is being considered for possible removal.
Lord Hope of Craighead: My Lords, it is only right that I should confess that it was at my suggestion that the noble and learned Lord, Lord McCluskey, changed his original proposal, which was a tribunal of two or three, to a tribunal of two.
I have sat on a two-judge court which was responsible for removing a sheriff under statute. Perhaps it was against the background of that experience that I made the suggestion. It was made largely having regard to the strain on manpower that might be caused if three Lords of Appeal in Ordinary--that was the suggestion at one time--had to sit on the tribunal. However, I am content to give way to those wiser than myself who recognise the virtues of a three-judge court. No doubt in the framing of the amendment to be considered in another place, the Scottish parliament will be given power to select a suitable three-person tribunal from a sufficient body of people to avoid the kind of strain on manpower that I had in mind.
Lord Hardie: My Lords, as I indicated, the Government are happy to accept the amendment of the noble and learned Lord, Lord Ackner. We intend to take his arguments into account in moving amendments of our own in another place.
I should have said in respect of the previous amendment that the noble and learned Lord, Lord McCluskey, regrets that he is unable to be here this evening as he is undertaking judicial duties.
Lord Ackner: My Lords, I am grateful to my noble and learned friend the Lord Advocate for his willingness to accept this amendment and for agreeing to deal with the major proposals which this House accepted on Report in the way he indicated.
On Question, amendment agreed to.
Clause 103 [The Judicial Committee]:
Lord Lester of Herne Hill moved Amendment No. 44:
The noble Lord said: My Lords, the purpose of Amendment No. 44 is simply to enlarge the potential pool in the Judicial Committee of the Privy Council to include not only British judges from the four corners of the United Kingdom, but also senior Commonwealth judges who have a considerable body of experience in deciding constitutional and human rights cases.
On the second day of Report the noble and learned Lord the Lord Chancellor said,
We have the enormous benefit of senior judges such as the noble and learned Lord, Lord Cooke of Thorndon, who sit at present both on the Appeal Committee and on the Judicial Committee of the Privy Council. We will be depriving ourselves of a source of judicial experience and wisdom if we narrow the pool. It will be strange to narrow the pool so that a retired Court of Appeal judge from England, who may have no great experience of public law cases or constitutional issues, is to be within the pool, but a constitutional judge from the Commonwealth who can sit, for example, on the final court in Hong Kong, for precisely similar reasons would be disqualified from sitting as a member of the Judicial Committee.
We are happy that the Government will take an inclusive rather than an exclusive view of membership of the Judicial Committee by widening the pool. There will be the added practical advantage that the great burdens that are now being imposed through the heavy caseload upon Lords of Appeal in Ordinary will be better shared if one can widen the pool so that there are more potential members of the Judicial Committee to deal with cases of that kind.
The amendment seeks to enhance rather than to diminish the authority and experience of the Judicial Committee. It is difficult to think of any good reason against it other than a kind of blinkered English, Scottish or Northern Irish insularity of which I am sure the Government will plead not guilty. I beg to move.
Lord Kingsland: My Lords, I rise to endorse entirely what the noble Lord, Lord Lester, said. The fact that we are in danger of being deprived of the remarkable intellect and enormous experience of the noble and learned Lord, Lord Cooke of Thorndon, on these devolution issues is the best possible reason for supporting this amendment.
Lord Cooke of Thorndon: My Lords, I can hardly fail to rise to that bait. It is obvious from the remarks that preceded me that I have to declare some sort of interest, small and highly contingent though it is.
I hope to be forgiven for claiming your Lordships' attention for a few moments, if only on the score of time. I have been a member of the Judicial Committee of the Privy Council since 1977. If the Gods are kind, I have yet a few more years of judicial service before time takes off the bails at the age of 75. Astonishingly enough, it would seem that there is no other presently serving member of the Judicial Committee who happens to have enjoyed the privilege for so long.
It seems to me that two points are worth bearing in mind in relation to Amendment No. 44. It is partly repetition of what the noble Lord, Lord Lester, said but, first, if the Judicial Committee is to be the final tribunal for Scottish constitutional issues, why change its ordinary membership by excluding the handful of Commonwealth judges? For long the Judicial Committee has decided constitutional issues, even the most arcane of them from former colonial territories now independent. Some of the judges by now have more extensive experience of human rights issues than the United Kingdom judiciary have yet had the opportunity of gaining. Why reject all possibility of some little help from that quarter or indeed of augmenting the currently circumscribed membership of the Judicial Committee?
Secondly, there is a development in the direction of international judicial co-operation. I have previously ventured to mention to your Lordships the composition of the Bloody Sunday inquiry in Northern Ireland. There, an English Law Lord is chairman. Two retired Commonwealth judges are the other members. One is my former colleague from New Zealand, Sir Edward Somers, and the other is Mr. Justice Hoyt of Canada. Both Sir Edward Somers and the chairman, the noble and learned Lord, Lord Saville, are members of the Judicial Committee of the Privy Council.
As the noble Lord, Lord Lester of Herne Hill, has already done, I add a further example, of Hong Kong. Under the Sino-British agreement, the way of life in Hong Kong--the capitalist system and the rule of law there--is to remain unchanged for 50 years. The Hong Kong court of Final Appeal at present consists of four permanent local judges, residents of Hong Kong, plus
In population, Hong Kong is rather larger than Scotland but one may hazard a guess that no Scot will feel any inferiority on that account. Might not something broadly similar be advantageous and far-sighted in the present constitutional system or, may I respectfully ask the noble and learned Lord the Lord Advocate, is a more insular view to prevail and, if so, why?
Page 46, line 4, leave out ("two") and insert ("three").
"leave out from 'That' to end and add 'this House recognises in Mr Justice Ackner the qualities of fairness, clarity, patience and courtesy which make him eminently fitted for high judicial office; deprecates ill-considered criticism of him, whether deriving from ignorance or political partisanship; and hopes that he will for many years continue to serve successfully the cause of British justice'".
Having read that out, my only regret is that my noble and learned friend the Lord Chancellor is not present to hear it. I beg to move.
8.45 p.m.
Page 49, line 4, leave out from ("1876") to end of line 5.
"We should stick for the time being with the Judicial Committee. It has a long history of dealing with cases and appeals of a constitutional character from the Commonwealth".--[Official Report, 28/10/98; col. 1985.]
I respectfully agree with that and it is precisely that experience in hearing constitutional appeals from the Commonwealth which will be so beneficial in the determination of devolution issues, with or without human rights implications.
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