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Baroness Ashton of Upholland: My Lords, I hesitate to suggest that the noble Viscount has not given a perfectly adequate response. As I indicated, I have great sympathy with these amendments. In Committee we said that we would table amendments to provide proper arrangements for confidentiality in relation to the Supreme Court, appointments made on the advice of the Judicial Appointments Commission and in relation to judicial disciplinary matters. I must apologise that the amendments are not yet ready but I am told that they will be ready for Monday. We agree with the noble Viscount that they are of great importance. We shall indeed ensure that they are available as quickly as possible so that we can lay them and deal with them.
Noble Lords will have noted in the previous group of amendments to which I spoke what we have already done regarding the National Assembly for Wales and the Assembly First Minister in Wales. It is not that we are being tardy; there is simply a lot to do. The amendments will be ready for Monday and they will address the noble Viscount's point. I hesitate to say whether parliamentary counsel consider that the noble Viscount's drafting is inappropriate, but let us say that in order to fit in with other things parliamentary counsel need to draft these matters alongside other measures. I hope that on the basis of the assurance I have given the noble Viscount will feel able to withdraw the amendment.
Viscount Bledisloe: My Lords, as always it is a pleasure to have one's proposals responded to by the noble Baroness, Lady Ashton, as one gets so much
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more joy out of her than out of the noble and learned Lord the Lord Chancellor. On the basis of her delightful assurances I am very happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Oath of allegiance and judicial oath]:
[Amendment No. 100 not moved.]
The Duke of Montrose moved Amendment No. 101:
"(1) A judge of the Supreme Court may be removed from office only by Her Majesty and any such recommendation to Her Majesty shall be made by the Minister.
(2) The Minister shall make such recommendation if (and only if) the recommendation has been approved by both Houses of Parliament.
(3) Provision shall be made for a tribunal constituted by the Minister to investigate and report on whether a judge of the Supreme Court is unfit for office by reason of inability, neglect of duty, or misbehaviour and for the report to be laid before Parliament.
(4) The Minister may only seek the approval of Parliament under subsection (2) if—
(a) he has received from the tribunal constituted under subsection (3) a written report concluding that the judge is unfit for office by reason of inability, neglect of duty or misbehaviour and giving reasons for that conclusion, and
(b) he has consulted with the Prime Minister."
The noble Duke said: My Lords, this amendment deletes Clause 24 and inserts a new provision for the removal of a judge of the Supreme Court. The Bill currently provides that a judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament. There is no provision for investigation into the judge's behaviour, and no definition of good behaviour in the Bill.
This amendment, which closely follows Section 95 of the Scotland Act 1998, as mentioned in Committee, makes provision both for a process of investigation and for guidance on what constitutes unacceptable behaviour. Such behaviour is that which renders the judge unfit for office by reason of inability, neglect of duty or misbehaviour. These provisions clarify the provisions currently in the Bill and bring the process for removal of judges of the Supreme Court into line with recently approved legislation on the removal of judges.
Perhaps it is the unfortunate recent experience of the Scottish justice system in having had to remove a sheriff, and I believe possibly also one other officer, that has concentrated the minds of those north of the border of the need to be rather clearer in the headings that might trigger a move to remove a judge. They are included in Section 95 of the Scotland Act. This is particularly important in these days of the investigative press, who might try to undermine the reputation of a judge on criteria that they themselves have selected.
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At present, according to the noble Baroness, Lady Ashton, in her reply on 11 October, the Government are building their hopes on a,
The noble Baroness has kindly put me in touch with officials in her department on this matter, and they tell me that the draft procedures have been prepared and that the Secretary of State is currently consulting the noble and learned Lord, Lord Bingham, on his views. This, at present, would appear to have the form of an extra-statutory provision, which is not subject to parliamentary scrutiny, and neither will any future variations that are contained for it be available for scrutiny. It is really not a satisfactory way to proceed when we are dealing with matters of such fundamental constitutional importance.
We should ask the noble Baroness to lay the draft complaints and discipline protocol before the House, so that we can all consider its effect within this new development in our constitution. It surely is not something that needs to be treated as a secret. Then we can form a decision as to whether certain criteria, such as those contained in this amendment, should be in the Bill. I ask the Minister if we could have sight of this protocol. I beg to move.
Baroness Carnegy of Lour: My Lords, I support my noble friend in putting his amendment down again. When we discussed this last time, we had a positive response from the noble Baroness, but it has not really come to very much. We would like to know rather more strongly what the Government are going to do about this.
The main point of the amendment is the new situation in which we find ourselves. In future, a political Minister in charge might well take against a particular judge, and he might well be supported by the Home Secretary, who might want to put pressure on that judge. The Minister made the point in Committee that there was strong protection for the judge and the public—that of Parliament and the Queen, who would have to agree. However, we all know just how compliant the House of Commons can be with a big majority. Her Majesty would have great difficulty in agreeing to something that Parliament disagreed with.
The existing criteria for good behaviour have, I understand, never been tested in the context of the highest court in the land; that is a significant fact. The wording in the Scottish legislation, as my noble friend said, was included because of the problems that arose when a sheriff was unsatisfactory and had to be removed. It was found that the legislation was really too loose. The Government are being a little sanguine about this. They might be very wise either to accept the amendment, or to make a similar provision.
I notice that the noble Lord, Lord Goodhart, is not in his place. Perhaps he does not wish to support me on this occasion, and I am sorry, because his advice was most helpful.
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Lord Ackner: My Lords, I had the impression that there was provision made for dealing with a judge who has become ill and is unable, as a result of his illness, to carry out his duties. I recollect that there was a procedure under which you had to get the certification of two consultants to confirm the position—
Baroness Carnegy of Lour: My Lords, with the leave of the House, I think that the noble and learned Lord is speaking to the next amendment.
Lord Ackner: My Lords, I am speaking to Amendment No. 101.
Baroness Ashton of Upholland: My Lords, there is a change in the groupings, which may have affected what the noble and learned Lord, Lord Ackner, is looking at, in that this group now concerns itself with exactly what the noble Baroness and the noble Duke have indicated. There is shortly a group on the medical question.
Lord Ackner: My Lords, would you like me to leave that for the moment, then? Certainly.
Baroness Ashton of Upholland: My Lords, I presume that the noble and learned Lord, Lord Lloyd of Berwick, is not moving his Amendment No. 102.
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