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Baroness Ramsay of Cartvale moved Amendment No. 291ZC:

Page 41, line 36, at end insert--
("( ) any action taken by or on behalf of the Parliamentary corporation,").

The noble Baroness said: Amendments Nos. 291ZC and 293ZAA are intended to clarify the various references in the Bill to Scottish public authorities and the extent to which those references should apply to the SPCB.

The only provision in the Bill applying to Scottish public authorities which was intended to apply to the SPCB was Clause 86(3) which deals with maladministration. Rather than leave the matter unclear, we think that Clause 86 should be amended so that there is an express reference to the SPCB. Clause 112(1) should also be amended so that the SPCB does not fall within the definition of Scottish public authority. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 86, as amended, shall stand part of the Bill?

Lord Mackay of Drumadoon: I oppose clause stand part for the purpose of raising certain questions about the clause which I hope can be answered tonight or by letter. What would happen if the complaint made by a member of the public to the member of the Scottish parliament touched upon issues which fall within the remit of the existing parliamentary commissioner and of any official established by the Scottish parliament under Clause 86 to investigate complaints? In other words, within the factual situation which has given rise to the member of the public's complaint there are issues which fall within the responsibilities of those two bodies: the existing parliamentary commissioner and the new one. Has any thought been given as to how such an investigation would be carried out?

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Secondly, I should be grateful for clarification of the relationship between Clause 86(1) and Clause 86(3). The fault may be entirely mine, but I have some difficulty in understanding what is added to the clause which provides in subsection (1) (b) that it can be in relation to action taken by or on behalf of any other office holder in the Scottish administration by the provision set out in subsection (3)(a) which seems to refer to the same words; namely:

    "any action taken by or on behalf of an office-holder in the Scottish Administration".

Thirdly, it would be helpful if it could be confirmed that the intention which lies behind the clause is that members of the Scottish executive and their officials should, in practical terms, be investigated only to the same extent as is possible with Ministers of the Crown. Fourthly, I should be interested to know whether it is intended that the procedures set up under the clause should be subject to the scrutiny of the courts. That is another example of a matter raised from time to time, which is the additional role to be given to the courts in Scotland in supervising the organs of government. These are discrete questions. I accept that it may not be possible to answer all of them on this occasion. I hope that at least an undertaking will be given that they will be addressed.

Lord Sewel: I am happy to take away the points made by the noble and learned Lord. We shall endeavour to provide him with answers in due course.

Clause 86, as amended, agreed to.

Clause 87 [Agency arrangements]:

[Amendment No. 291ZD not moved.]

Clause 87 agreed to.

Clause 88 [Private legislation]:

Lord Sewel moved Amendment No. 291A:

Page 42, line 29, leave out subsection (3).

On Question, amendment agreed to.

Clause 88, as amended, agreed to.

Clause 89 [Appointment and removal of judges]:

Lord Mackay of Drumadoon moved Amendment No.291AA:

Page 42, line 35, at end insert ("as suitably qualified and experienced").

The noble and learned Lord said: This is a series of important amendments dealing with the appointment of judges. It is unfortunate that we come to these amendments at such a late hour.

In considering these amendments and the amendments in the next grouping in regard to the removal of judges from office, it is important to bear in mind that back in 1978, when the Scotland Act was enacted, the approach taken to the courts and the appointment of judges was entirely different.

In the White Paper that was published prior to the introduction of the Bill which gave rise to the Scotland Act 1978 it was stated that the Government had considered with special care where responsibility should lie for the main Scottish courts: the Supreme Court, the Sheriff Court and the District Court. The Government

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were satisfied that responsibility for the different levels ought not to be split because separation would pose difficult problems in relation to jurisdiction, procedure and administration. They believed that Supreme Court judges should continue to be appointed by the Queen on the recommendation of the Government and that responsibility for their tenure and conditions of office should not be devolved.

The Government also believed that questions affecting the right of appeal from the court of Session to the House of Lords and the court of final appeal in civil matters from the courts in every part of the United Kingdom must remain the responsibility of the United Kingdom.

An entirely different approach is followed in this Bill and the amendments seek to challenge that approach. However, I believe that it is right to draw attention to it when considering the amendments in this grouping and the next.

Amendment No. 291AA should be read in tandem with the subsequent amendment, Amendment No. 291AB. I fully accept that it is inconceivable that the Prime Minister would recommend to Her Majesty the appointment of a person as Lord President of the Court of Session or Lord Justice Clerk who was not suitably qualified and experienced. But because Amendment No. 291AB seeks to deal with the situation where the convention is that there is more than one name on the list provided to the Prime Minister by the Secretary of State of the day, it seems to me that subsection (1) also falls to be amended.

The purpose of Amendment No. 291AB is identical to that in government Amendment No. 291AAA. For obvious reasons I prefer my amendment, but it may be possible to take a different view on the drafting. The point that lies behind the amendment is important. In England the task is performed by the Lord Chancellor and in Scotland by the Secretary of State. The convention is that when one of the chairs of the Appeal Courts is being appointed the nominations which go to the Prime Minister for him to make a recommendation to Her Majesty include more than one name. The matter was explained at some length to the Home Affairs Select Committee in another place by the noble and learned Lord, Lord Mackay of Clashfern, during an investigation which that committee carried out during the last parliament.

Amendment No. 291AC stands in my name and that of my noble friend Lord Mackay of Ardbrecknish. Amendment No. 291B was originally tabled by the noble and learned Lord, Lord McCluskey. I added my name because the noble and learned Lord could not find it possible to be present because of other commitments at one of the Committee days in July. They seek to achieve much the same effect: that the First Minister should be under an obligation to consult other named parties before putting forward his nominations to the Prime Minister. In Amendment No. 291AC three names are mentioned: the Secretary of State, the Lord Advocate and the Advocate General for Scotland. In the amendment in the name of the noble and learned Lord, Lord McCluskey, it is only that of the Lord Advocate.

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It should be made clear that in neither of the amendments is there any attempt to exclude any other procedure to be introduced by the Scottish parliament, whether by way of the establishment of a judicial appointments board, a commission or any other form of procedure it might deem appropriate, in addition to the consultation with which the two amendments deal.

Amendment No. 291BA deals with the appointment of Court of Session judges and sheriffs. Amendment No. 291C seeks to remove subsection (5) from the Bill. Although I was prepared to ventilate that matter on behalf of the noble and learned Lord, Lord McCluskey, in his absence in July, having given the matter further consideration I shall be content that it remain there provided that the Bill is amended in the way that he and I propose in the earlier amendments to which I have referred.

I hope that I have explained my position on these important amendments. I beg to move.

Lord McCluskey: Clause 89 is an extremely important clause. It has two aspects: one relating to the appointment of judges; and to the removal of judges. I deeply regret that we have not reached the amendment until 11 minutes to one in the morning, with only a dozen or so Members of the Committee present.

I shall try to be brief in relation to the first aspect of the Bill. I must declare an interest. As a serving judge I have a possible interest in being appointed as Lord President of the Court of Session, although I have no ambition for such an appointment. I sincerely hope that the present holder of that office, the noble and learned Lord, Lord Rodger of Earlsferry, will continue to hold it for many years. I also hope to retire before the First Minister requests that I should be sacked!

I wish to draw attention to a point made earlier by the noble and learned Lord, Lord Rodger of Earlsferry, on Amendment No. 290C. We have no conventions to fall back on in relation to Scotland. Accordingly, when the Lord Advocate says, "I ask whether it is necessary to put this on the face of the Bill", the answer often will be, "Yes, it is necessary", because there are no conventions. I am not prepared to put my faith--and I do not think that the Committee should be prepared to put its faith--in the discretion of the Prime Minister of the day. If there are no constitutional conventions, and there will be none for Scotland after the enactment of the Bill, we must put the provisions into the Bill.

In relation to the appointment of judges, my Amendment No. 291B recognises the fact that the Lord Advocate plays an essential but not necessarily decisive role in selecting judges. I believe that he should be involved in the future as he is at present and has been in the past. The reason is that the role of the Lord Advocate is much less political than that of the Secretary of State or of the first minister in the future.

In future, the role of judges will be much more concerned with political matters. Those are the two principal reasons. We are enacting a human rights Bill, which gives judges a greater jurisdiction and is bound to be characterised as political. Furthermore, the Scotland Bill gives the judges a more political role. As

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the Bill stands, the appointment of a judge could be purely political--we know of some countries where appointments are made purely on a political basis--and this amendment seeks to reduce the risk of that happening. It reduces the risk of political patronage and political cronyism, which are not unknown in Scotland in this century, and it reduces generally the risk of politicising appointments to the Bench. For those reasons, I speak to Amendment No. 291B.

With that amendment is grouped Amendment No. 291C, a probing amendment. I am asking the Government to explain what the subsection means. Enactment is defined in Clause 112(1) on page 52. It appears to me to mean that an Act of the Scottish parliament passed by a simple majority can require the First Minister to nominate or to decline to nominate a person to the Bench. For example, it may be possible for the Scottish parliament to instruct the First Minister not to nominate to the Bench any more men, any women or any advocates, but to nominate solicitors. This appears to be under the control of a simple majority. The purpose of the amendment is to ask the Government to explain the subsection.

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