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Lord Fraser of Carmyllie: My Lords, I do not know how my noble and learned friend will advise your Lordships on this amendment. I agree with the noble Lord that ultimately it must be correct that, where there are issues of ultra vires they should be determined by the courts. During the passage of this Bill, we have been trying to reduce the number of sets of circumstances in which there is the possibility that the courts will be drawn into determining issues which may have a political character, even though they contain issues of vires. For that reason, it seemed to me that the amendments we tabled previously were desirable. However, I would agree with the Minister on a personal basis that the line now taken by the Government is certainly preferable to that originally contained within the Bill. Once the Scottish parliament is established, I hope that where the presiding officer has concerns about ultra vires, he will make a clear statement to the parliament at an early opportunity. I trust that the parliament will listen carefully to what he has to say, even if it cannot be bound by it. If that is followed through, the risk that we would wish to avoid--namely, a conflict between the parliament and the courts--would be kept to a minimum.

Baroness Carnegy of Lour: My Lords, I too do not know what my noble and learned friend will say. Can the Minister, when he replies, give us an assurance that this will not load the Judicial Committee with even more issues to consider than it will already have? I know that noble and learned Lords who are likely to be on the Judicial Committee--they are not in their places this afternoon--are worried that the work is mounting up and that they have many other matters to deal with, as well as the affairs of Scotland. Therefore, it would be

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helpful to have a reassurance that this change, which on the face of it sounds sensible, will not mean that they will have more work than ever.

Lord Mackay of Drumadoon: My Lords, noble Lords will recall that at Third Reading we debated an amendment to what was previously Clause 30 which sought to provide that the presiding officer shall, on or before the introduction of a Bill in the parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the parliament and state his decision. The Minister may recall that on that occasion I foresaw that as laying the foundation for tabling an amendment which forms the basis of Amendment No. 34A which your Lordships are now invited to agree.

The Government's resistance to the form of the Bill when it was last before your Lordships' House was that it would effectively give the presiding officer--the speaker--a veto over which Bills could be introduced to the parliament and which Bills the parliament could consider. Indeed, it was suggested by the Minister on a previous occasion that that would place the presiding officer in a most uncomfortable and undesirable position. I suggested then, and I still adhere to the view, that it would be perfectly possible for the presiding officer to exercise such a jurisdiction which would not have been an absolute veto, as the noble Lord suggested; being a judicially reviewable decision it would be subject to review by the courts.

What is now proposed is that the procedure whereby the decision of the presiding officer could be overturned by a vote will now happen with either the Scottish executive or the Scottish parliament choosing to ignore the decision of the presiding officer. It is instructive to look at the words in the amendment to Clause 30: that the presiding officer shall decide whether or not in his view the provisions shall be within the legislative competence of the parliament.

The effect of the proposed amendment is that it would be perfectly competent for the executive and the parliament to proceed in the face of a decision by the presiding officer that a Bill was ultra vires. It has been recognised by noble Lords that any such decision would be reached after the taking of legal advice. Therefore I have a concern that the Bill as it is proposed to be amended would still lay open the possibility of the presiding officer's authority being weakened because he was not in a position to enforce a decision which he had reached on a question of vires. As the Minister said, it is true that ultimately a Law Officer could refer the matter to the Judicial Committee for a determination of any devolution issues involved. But that may be many months down the line and if the Bill had been debated and, in a situation of some political controversy, agreed to, I venture to suggest that if at that stage the Judicial Committee ruled against the vires of the Bill matters would be much worse than they would have been had the Bill been vetoed effectively at an earlier stage.

This is an example where those of us who sought to improve the Bill have unfortunately had our ideas rejected. As my noble and learned friend Lord Fraser of Carmyllie said, the Bill as it stands is better than when

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it was introduced into your Lordships' House. I accept that if Amendment No. 34A is allowed, that will still be the position. However, I remain concerned that if the presiding officer reaches a decision, announces that to the parliament and is effectively then overturned, he will not command the respect that he should command. He will not command the respect which will ensure that the parliament operates in as sensible and responsible a way as possible.

Clearly it is not a matter on which it would be appropriate to insist on our amendments in the face of the views of another place. But I think it right that my concerns--I suspect that they may be shared by others--should be ventilated.

6.15 p.m.

Lord Sewel: My Lords, perhaps I may respond briefly to the points made by the noble Baroness, Lady Carnegy. I am always sensitive and conscious of the workload of noble and learned Lords. One would not want the Chamber to be deprived of their valuable observations on many issues if they were overworked on other matters. I do not think that there is any chance of the Judicial Committee of the Privy Council being overburdened with work. That is my understanding. I cannot give an assurance, but that is the projection: that they will not be overburdened.

Perhaps I may return to the point made by the noble and learned Lord, Lord Mackay of Drumadoon. First, there is a real, genuine difficulty with the position that he adopts. It is this. One could have a presiding officer who took a very narrow view of the vires issue and ruled over a long period of time that a series of Bills was ultra vires. With a change of presiding officer, a similar Bill coming into play might be accepted and perhaps might then go to the Judicial Committee of the Privy Council. It upholds that it was within vires. That would mean that a series of Bills had been rejected on the ground of vires by one person without the possibility of test by the Judicial Committee of the Privy Council, the body that was ultimately seen as providing the authoritative advice. I think that that in itself is unacceptable.

Secondly, we have to recognise that over, I imagine, a relatively limited period of time the advice that the presiding officer will receive from his advisers will be based on a developing body of law and decisions taken by the Judicial Committee. It is therefore a good idea to bring the Judicial Committee into play relatively early so that there is an authoritative set of decisions on which future presiding officers will be able to base their advice.

I ask the House not to insist on its amendments and to accept the Motion.

On Question, Motion agreed to.



Clause 89, page 43, line 18, at end insert--

("( ) he has asked an independent tribunal, established under subsection (9) of this section, to investigate and report on whether the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour,

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( ) he has received a written report from the tribunal, containing a finding that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour and a statement of their reasons for so finding,
( ) he has laid before the Parliament a copy of the written report on the person in question,").

Page 43, line 22, at end insert--

("(9) A tribunal established for the purposes of this section shall consist of three persons selected by the First Minister from--
(a) the Lords of Appeal in Ordinary;
(b) peers of Parliament who hold or have held high judicial office as defined by sections 5(3) and 25 of the Appellate Jurisdiction Act 1876;
(c) members of Her Majesty's Privy Council who hold or have held high judicial office as so defined.").
The Commons disagree to Lords Amendments Nos. 128 and 129 but propose the following amendments in lieu thereof--

Page 43, line 11, leave out from ("Minister") to ("resolves") in line 12.


Page 43, line 13, leave out ("on that ground").


Page 43, leave out lines 17 to 22 and insert--

("(7A) Provision shall be made for a tribunal constituted by the First Minister to investigate and report on whether a judge of the Court of Session or the Chairman of the Scottish Land Court is unfit for office by reason of inability, neglect of duty or misbehaviour and for the report to be laid before the Parliament.
(7B) Such provision shall include provision--
(a) for the constitution of the tribunal by the First Minister when requested by the Lord President to do so and in such other circumstances as the First Minister thinks fit, and
(b) for the appointment to chair the tribunal of a member of the Judicial Committee who holds or has held any of the offices referred to in section 94(2),
and may include provision for suspension from office.
(7C) The First Minister may make a motion under subsection (7) only if--
(a) he has received from a tribunal constituted in pursuance of subsection (7A) a written report concluding that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour and giving reasons for that conclusion,
(b) where the person in question is the Lord President or the Lord Justice Clerk, he has consulted the Prime Minister, and
(c) he has complied with any other requirement imposed by virtue of any enactment.
(7D) In subsections (7A) to (7C)--
"provision" means provision by or under an Act of the Scottish Parliament,
"tribunal" means a tribunal of at least three persons.").

The Lord Advocate (Lord Hardie): My Lords, I beg to move that the House do not insist on their Amendments Nos. 128 and 129 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 129A to 129C in lieu thereof.

The House will see that the Government have gone very far to acknowledge the concerns raised by noble Lords and noble and learned Lords in earlier debates. As the House knows, in this Bill we are setting out for

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the first time a clear statutory framework for the removal of judges of the Court of Session and the chairman of the Land Court in Scotland, thus trying to clarify the law in an important area. The provisions apply only in certain tightly defined circumstances. The procedures in the Bill only come into play where it is felt that a judge is unfit to hold office on grounds of inability, neglect of duty or misbehaviour. No one, least of all the judiciary, thinks it appropriate that such procedures should not be in place.

While we do not share the fears which have been expressed about the threat to judicial independence, we wholly agree with those who have stressed the importance of this issue. In opposing the amendments made in this House at Report stage, we argued that the Bill should contain the minimum safeguards but that the Scottish parliament should have as much discretion as possible to develop the procedures which will apply in Scotland for the removal of judges.

The debate in this House was seen by us as merely the beginning of the process of debate. That is still the case. In that respect we prefer the amendments which we have tabled to those adopted by your Lordships.

Your Lordships amended the Bill to write on to its face a tribunal composed exclusively of senior judges, specifically one whose membership was to be restricted entirely to Lords of Appeal in Ordinary and holders of high judicial office who were either Members of this House or Privy Counsellors. Those persons, it was proposed, should be given the task of reporting on the case for removing a judge and so acting as "gatekeepers" to the whole process.

The Government's Amendments Nos. 129A to 129C provide instead that provision shall be made for the First Minister to constitute a tribunal of at least three persons to investigate and report on the case for removal of a judge. The number within the tribunal reflects the concerns of the noble and learned Lord, Lord Ackner, who is not in his place. However, I can also assure the House--it reflects another concern of that noble and learned Lord that there should be an uneven number--that if there are more than three there will be an odd number to avoid the difficulties to which the noble and learned Lord referred at an earlier stage.

The amendments ensure that the chairman will be a person who is eligible to be a member of the Judicial Committee of the Privy Council. The First Minister still requires the approval of the parliament before he may recommend to Her Majesty that a judge is removed, but he may not seek that approval unless the tribunal has reported that the person is unfit. The tribunal's report must be laid before parliament so that it is aware of the views of the tribunal.

The amendments also enable the Lord President of the Court of Session to request that such a tribunal be convened as we understand that that is the wish of the noble and learned Lord, Lord Rodger of Earlsferry, who is presently the Lord President. We have also retained a provision that where it is desirable that the Lord President or the Lord Justice Clerk be removed, then the First Minister must also consult the Prime Minister.

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It is envisaged that the rules of procedure for the tribunal will be established under an Act of the Scottish parliament. That Act will also, if the parliament wishes, make other provision in relation to the membership of the tribunal. However, we expect that the tribunal itself would not be a standing body, but be convened on an ad hoc basis, given that that process is likely to be used very rarely, if at all.

Before laying these amendments, officials discussed them with the Lord President of the Court of Session, the noble and learned Lord, Lord Rodger of Earlsferry. I understand that he was satisfied with the proposals in these amendments.

The House will see that a key difference between the approach proposed by the Government and that adopted here at an earlier stage is that it leaves open a degree of choice about how the proposed tribunal should be constituted. In other words, it leaves space for the debate just begun in this House to be continued in the parliament. The removal of judges quite clearly is not simply a matter of private concern for the judges themselves. It is an issue of serious public interest. There are legitimate debates to be had on the question of composition. The noble and learned Lord, Lord McCluskey, recognised as much by admitting that there might be scope for lay involvement in any independent body charged with evaluating the case for removal.

This approach seems to us to strike an acceptable balance between providing a more detailed statutory framework on the face of the Bill and allowing scope for further reflection on this subject in the parliament itself. I beg to move.

Moved, That the House do not insist on their Amendments Nos. 128 and 129 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 129A, 129B and 129C in lieu thereof.--(Lord Hardie.)

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