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Lord Lloyd of Berwick: My Lords, no.
Baroness Ashton of Upholland: My Lords, in that case I will not address it.
I am grateful to the noble Baroness and the noble Duke. They have indicated that they have raised this, I have corresponded with them, and I have put the noble Duke in touch with officials. The critical point is that we are in detailed discussions with the Law Lords, as the noble Duke indicated. I am told that these are now at a very advanced stage, which is good news, and that an announcement will be made shortly. The critical thing, as the noble Duke particularly indicated, but the noble Baroness was also concerned about, is what will happen with that document. I understand that the agreed protocol will be a public document and will be made available—
The Duke of Montrose: My Lords, I am most grateful to the Minister for giving way. It interests me that it appears that the Government wish to present this document as a complete fait accompli that is all tidied up and about which there is no further question. We would appreciate seeing it in the draft stage; especially given the timing of this Bill's progression, even if it was not completely agreed and tidied up, we would still appreciate seeing it.
Baroness Ashton of Upholland: My Lords, we very much wish to be guided by the Law Lords on what the protocol ought to say. I understand the concern of the noble Duke, but it is appropriate to be guided in this
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context by the Law Lords. Certainly, when I have something to give the noble Duke, I shall be very happy to do so at the earliest opportunity. I am sure that he will appreciate that we want to have it in the form agreed with the Law Lords in order to present it. I shall happily undertake to do so.
The Duke of Montrose: My Lords, I am grateful to the Minister for her reply, although we are looking for slightly more than she can give us at present. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 102 not moved.]
Clause 25 [Salaries and allowances]:
[Amendment No. 103 not moved.]
Clause 26 [Resignation and retirement]:
[Amendment No. 104 not moved.]
Clause 27 [Medical retirement]:
The Duke of Montrose moved Amendment No. 105:
The noble Duke said: My Lords, I shall speak also to Amendment No. 106, for which Amendment No. 105 is merely a paving amendment. Amendment No. 106 is designed to require at least two medical certificates of incapability before a Supreme Court judge can be medically retired. Clause 27 currently allows medical retirement on ministerial order if a Minister obtains one medical certificate stating that,
"a judge of the Supreme Court . . . is disabled by permanent infirmity from the performance of the duties of his office, and . . . is for the time being incapacitated from resigning".
The Law Society of Scotland believes that those provisions are inadequate to guard against political interference, and that further safeguards are necessary. The reports should come from two medical practitioners who have adequate experience in assessing capacity. Section 57 of the Adults with Incapacity (Scotland) Act 2000 is the most recent Scottish legislation in the area and provides an example of how the provision may operate. It is not a question of a Minister asking the Chief Medical Officer for an opinion, because he is a civil servant. One issue that comes up is that people can lose their capacity very quickly, but it is a Minister who has the job of signing them off. I beg to move.
Baroness Carnegy of Lour: My Lords, I would again like to support my noble friend's amendment. I had hoped that the noble Lord, Lord Goodhart, would be able to support us. He did last time and seemed to feel quite strongly about the matter, but is not able to be here.
Having reflected on the Minister's reply last time, I notice that she strongly defended the status quo. She argued that we could trust a doctor, and that if a second opinion were needed he would get one. She said that that was,
She also questioned whether the amendment was fair for the person concerned, and suggested that it might add to the stress on the judge and his or her family.
I see the issue the other way round; it is rather important. In the new situation, in which a political Minister may be tempted to use deterioration in a judge's health as a means of getting rid of him or her because he or she has been awkward, he can do that simply by declaration on the basis of one doctor's certificate. That seems extraordinary. Surely the judge concerned and his or her family would actually want a second opinion and should be entitled to have it in law.
We are talking about the highest court in the land, and the career and contribution of a top-quality, highly distinguished lawyer. The Minister said last time that we,
"must always take into account that the future may be different from the past".—[Official Report, 11/10/04; col. 98.]
That is the point. The future will indeed be different. In suggesting this change to the Bill, the Law Society of Scotland is right—there should be two medical certificates. Simply because we are apparently in a hurry, we should not disregard the future of judges who may, perhaps very temporarily, become incapacitated and can so easily be removed from the court.
Lord Ackner: My Lords, I support the amendment. I recall that a provision in the past provided for medical certificates by two consultants. Its weakness was that it did not cover the very senior judiciary, particularly the Lord Chief Justice. That gave rise to problems.
I certainly remember appearing before one judge who was a Lord of Appeal in Ordinary. He made up the majority against me and, by common agreement, was beyond his capacity to follow the argument any longer. I remember one case in which I had a consultant present to assist me on the medical issue of a case, and he was so fascinated by the mental condition of the judge trying the case that when I asked him for assistance, he said, "One moment. I find the judge a most interesting personality. You can virtually hear the needle coming on and off the record during the course of his discussion".
The provision has improved the situation very much by providing what should occur where the president of the court is concerned. However, retirement should be on the basis of two medical practitioners, with preferably one at least of consultant status. As it stands, the amendment is certainly an improvement.
Lord Crickhowell: My Lords, I am neither a lawyer nor a doctor, and I have listened to the debate simply on the basis of sensible principle. One's experience of dealing with the medical profession indicates that there is a good deal of wisdom in it. When we are talking about possibly disqualifying or removing a judge, we have to get that right. If the future will be different from the past, we should surely take every possible precaution to make sure that we make it different in the right way. I have not yet heard an
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argument to suggest that the amendment could be wrong. In principle, we ought to make sure that we get the matter absolutely right. The amendment gives us the opportunity to do so, so I support it.
Baroness Ashton of Upholland: My Lords, I join the noble Lord, Lord Crickhowell, in not being a lawyer or doctor; it is a positive advantage on occasions. It is also very important to take from the past what is relevant to the future. We start from the principle that, in Section 12 of the Administration of Justice Act 1973, we have provisions that have worked well until now and have never been criticised in the past. The clause also mirrors the provisions that cover such matters with respect to the senior judiciary of England and Wales and of Northern Ireland.
The noble Baroness and the noble Duke have been concerned that the purpose of a second medical certificate is to ensure that we do not have political interference. Retirement of a judge of the Supreme Court is simply not possible without the concurrence of the two most senior judges available, usually the president and deputy president of the court. My contention is, as in Committee, that that provides a far stronger safeguard against political interference than simply a second medical certificate.
I also contended in Committee that one should be mindful of distress caused to people, and I am still mindful of that. I pick up the point of the noble and learned Lord, Lord Ackner, about relevant status in saying that, where a medical certificate is sought, it is right to find an appropriate person able to deal with the issue. If a doctor felt unable to give a certificate, the "patient" would be referred on. In terms of the specific desire of the noble Duke and the noble Baroness to ensure that political interference could not happen, my contention remains the same—that having those two very senior members of the judiciary involved in the resignation or retirement is a much better safeguard.
I looked at the Scottish provisions. They are different, because in Scotland it is necessary to seek a guardianship order under the Adults with Incapacity (Scotland) Act 2000 in respect of a judge. Therefore, requiring two medical certificates in those circumstances is an understandable precaution. But the background and the legal framework are very different. Indeed, as the noble Duke and the noble Baroness will know, the amendment departs from the Scottish model in its use of language and what it describes.
I could go into more detail, but I am mindful that my contention is that what the noble Duke and noble Baroness, supported by the noble and learned Lord, Lord Ackner, wish for is achieved through my comments about the senior judiciary and a medical certificate being appropriate, causing the least possible distress but the right level of medical intervention. On that basis I hope that the amendment will be withdrawn.
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