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Lord Donaldson of Lymington: Perhaps I may intervene for one moment. I have always been worried about the aspects of the Bill and the concordat in so far as they produce something in the nature of a service disciplinary attitude. One of the strengths of the puisne judges—and a fortiori a bit further up—is that they are highly responsible people who can be relied on, with very few exceptions, to act responsibly. Peer pressure has a considerable effect. An open suspension of any judicial officer of the rank or seniority—whatever you would like to call it—of a puisne judge would be immensely damaging to him. In fact, it would really force his resignation. It would not be necessary in some cases.

Some people may know the sort of background history which moves me. There was a case where a puisne judge suffered from a curious form of mental illness whereby for much of the time he was perfectly rational and at times he was not. That was dealt with by simply not providing him with work at moments when he was not as rational as he might be. It is perfectly true that on one occasion something escaped the system, but that was obviously a judicial administrative error.

The point remains that I do not believe that High Court judges and above—and it may go a little further than that—should be subject to disciplinary proceedings other than the ultimate sanction of a joint address of both Houses Parliament. I have not checked it again, but I believe that at one stage I found that it was open to the Lord Chief Justice to censure, suspend or give formal advice to the Master of the Rolls. I suggested to the present Lord Chief Justice that that was not a good idea. He persuaded me not to take up arms on the subject by saying that he could not conceive of any Lord Chief Justice trying it on. That may be so. It is not actually a very happy basis for legislation.

I believe that the independence of the higher judiciary, to some extent, depends on maintaining traditions and not backing them up with judicial processes. It was possible for the Lord Chief Justice—he did not—to have taken a view on some of the rather peculiar things that I as president of the National Industrial Relations Court was doing. I was dealing with a very peculiar world in which it had to be recognised that what was said in private bore little relation to what was said in public.

Some people might have taken the view that that was improper on my part. I did not take that view, nor in fact did the Lord Chief Justice. However, it would have undermined my independence very considerably if people had been able to give me formal advice not to conduct that court in the way I saw fit. Indeed, in that context I was asked by the noble Lord, Lord Carr, the then Secretary of State for Employment, whether I was responsible to the Lord Chief Justice. I said, "No, certainly not". He said: "Well, I suppose then that you
 
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are responsible to the Lord Chancellor". I said, "No, the essence of my job is that I am responsible to the law and to my conscience and to no one else". I was convinced, particularly at that period in my career, that my ability to approach things—I may have got it wrong—without any feeling of pressure was dependent on my view that I was responsible to no one other than my conscience. I am troubled about the whole basis of this part of the concordat.

Lord Goodhart: It seems to me that the noble Viscount, Lord Bledisloe, has raised a number of interesting and important points. Certainly, I should be grateful if the Minister would agree to take these matters away and to look at them again because I think they deserve it.

I have one question. Clause 91(2) of the Bill states:

Does that mean that criminal proceedings for the purposes of Clause 90 refers only to criminal proceedings on indictment? That of course would somewhat alter the position.

Lord Kingsland: I have just one small additional question. As I understand it, Clause 90 refers to all the judges in Schedule 14; that is to say, it includes puisne judges. Clause 91, however, which purports to interpret Clause 90, appears to exclude puisne judges by virtue of subsection (4)(b). By that I mean that a puisne judge's status changes from being a judicial officeholder, under Schedule 14, to a senior judge. Can the noble Baroness shed light on what implications that has for the interpretation of Clause 90 in relation to puisne judges?

Baroness Ashton of Upholland: I am grateful to all noble Lords who have spoken in this important debate. I have a long answer and a short answer to give the noble Viscount, Lord Bledisloe. Having listened carefully to what he said, I shall stick with the short answer. My reason is that, rather than go through the specifics of each amendment, I take from the tenor of the debate and noble Lords' contributions that there is desire for me to say precisely what the Government will do—which, in a sense, is the short answer. We recognise that some of the provisions relating to judicial discipline require further refinement to bring them fully into line with the concordat. We intend to move amendments on Report following further discussions with the judiciary. In that context, I undertake to consider carefully the noble Viscount's amendments. Again, perhaps I could form part of the discussions.

The noble Viscount and the noble and learned Lord, Lord Donaldson, raised the issue of High Court judges. The power to suspend High Court judges will apply only while they are subject to parliamentary proceedings. But there should be the ability to consider complaints and, if necessary, to issue some form of reprimand. For example, in recent years, I understand, there has been a reprimand for delay in giving
 
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judgments. It is on such a basis that we are considering those matters. I would be delighted to hear more from the noble and learned Lord if there are other issues that he wishes us to think about in that context.

The noble Lord, Lord Goodhart, gets my prize of the evening; the issue of trial on indictment is a mistake. It should also apply to summary proceedings. The noble Lord is quite right; we will seek to amend the provision.

I cannot give a proper answer to the noble Lord, Lord Kingsland, on the relationship of Clause 91 with Clause 90, recognising the issue of puisne judges. I will write to him before Report and ensure that his question is answered appropriately and properly. On the basis of the commitment that I have given, I hope that the noble Viscount will feel able to withdraw his amendment.

Lord Donaldson of Lymington: If anything that the noble Baroness said constituted an invitation to me to put forward issues for consideration, perhaps I might suggest that it would be wrong to allow people, certainly at High Court level, to be censured over delays in judgments. As Master of the Rolls I was very concerned about it. I did two things. In jest I circulated to all Lords Justices a newspaper cutting in which a Chief Justice somewhere in the Far East said that it was intolerable that judgments should be delayed for 20 years or more. I made it clear that perhaps that was overdoing it.

More seriously, some judges, whether through conscientiousness or otherwise, take far too much time to prepare judgments. I dealt with it as I should have thought heads of division would deal with it: simply to say, "I understand that you have problems with this judgment. I propose to assist by not giving you work to do until you have done it". It would be very surprising if a judge at that level said, "Fine, I am off to play cricket".

Baroness Ashton of Upholland: The noble and learned Lord's points are well made. I did not wish to imply anything but wanted to give an instance of the reality of the situation. I will reflect as we look carefully at the concerns and amendments of the noble Viscount, Lord Bledisloe, and all that has been said by noble Lords on this particular amendment. I will take into account the noble and learned Lord's comments.

Viscount Bledisloe: Once again I am grateful to the noble Baroness for her very helpful and co-operative reply. I only hope that the appearance of the noble and learned Lord the Lord Chancellor to sit alongside her does not mean that this charming spirit of assistance and conciliation will be diminished.

I am also grateful to the noble Lord, Lord Goodhart, for his interesting point on Clause 91(2). If the criminal proceedings were only those on indictment, much of my worry would disappear. But the definition in Clause 91(2) relates only to any subject of criminal proceedings—that is to say, it relates to Clause 90(4)(a) and not 90(4)(b). If the provision could be adapted, that might solve quite a lot of our worries. I look forward to
 
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a helpful dialogue either with the noble Baroness or, if needs be, with the noble Baroness and her colleague. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 88CPG and 88CPH not moved.]

Clause 90 agreed to.

Clause 91 [Disciplinary powers: interpretation]:

[Amendments Nos. 88CPJ and 88CPK not moved.]

Clause 91 agreed to.

Clauses 92 to 100 agreed to.

Clause 101 [Parliamentary disqualification]:

[Amendment No. 88CQ not moved.]


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