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Lord Hope of Craighead: I should like to add a few words to the debate based on the experience to which I referred earlier. As I said, I served for seven years as Lord President and, during the course of those years, I have to say that I had to turn my mind on a number of occasions to the question of the removal of judges and sheriffs. It would not be right for me to go into the details involved for obvious reasons. However, I can assure Members of the Committee that I had to look very closely into the procedures. Indeed, in one case, which has come before this Chamber in its judicial capacity, I was involved in the procedures for the removal of a sheriff. Therefore, I had to face up to the demands of the kind of human rights requirements to which the noble and learned Lord referred.

It is a tribute to the capacity and the skill of those who have been responsible in the past for the appointment of judges to the Court of Session that we have not had to face the ultimate point as to how exactly, under the present procedures, a judge of the Court of Session should be removed. As it happens, during my tenure of office a judge resigned and, therefore, we were never in the position of having to work out finally how the question of removal should be dealt with. However, I believe that it would have required at least the tabling of a Motion before the two Houses in Parliament to achieve that result.

As for the future, I believe that the choice has to be faced as to whether removal should be a responsibility of the Parliament here at Westminster or the parliament at Holyrood. I know that one of the amendments which we may later consider suggests a hybrid involving the House of Commons as well as the parliament in Scotland. But, based on my experience, my own view is that it would be undesirable to complicate matters to that degree.

Lord Hughes of Woodside: As a simple layman, I wonder whether the noble and learned Lord could tell me what the difference is between Acts of Parliament and Motions moved in the other place and here and the same kind of procedures being conducted in the Scottish parliament? After all, we are all politicians so what is the difference between politicians in Holyrood and those in London?

Lord Hope of Craighead: I was about to explain to the Committee the point which would trouble me. Perhaps I may best introduce it in the following way. I still believe that it is the responsibility of the Lord President of the Court of Session to ensure that all the judges on his court fulfil the duties of their office. They are, after all, paid substantial salaries and a tremendous

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responsibility rests on their shoulders to see that the administration of justice in Scotland is properly carried on. Therefore I felt it was my responsibility to respond to criticisms of the judges in the court and ultimately, if the criticisms reached the point of persuading me that they were unfit to serve on the grounds now stated in the Bill, I would have felt that it was my duty to initiate procedures in order to deal with the situation.

We know from experience both in England and Scotland that on occasion judges can be persuaded to resign but looking into the future one cannot be confident that that will always be the position. Therefore we may have to face up to the fact that a procedure for removal will be required. The point I suggest we should bear in mind is the following. If a procedure is thought to be necessary by the Lord President of the court--this has nothing whatever to do with politics--and it is his decision that a member of his court is no longer fit to serve, it is essential for the well-being of the system that that procedure should be capable of being carried out fairly in the interests of the judge concerned, but also speedily in the public interest. We should remember that the judge will continue to be paid his salary while the procedure is continuing and he will probably not be capable of being used in the court while the procedure is continuing. Therefore the court will be short of a judge who is required to make the system work. The short answer to the point the noble Lord raised is that to complicate matters by requiring resolutions or decisions by two different Houses in different places would delay the process and for that reason would be undesirable.

I come back to the point that the procedure for removal must measure up to the requirements of the Human Rights Act and to the points which were developed at the Latimer House conference. In the case of the sheriff who was removed, I had the responsibility of trying to devise procedures with little to guide me. I know from the experience I had in that case how very difficult it was to satisfy the requirements of human rights even a few years ago before the Bill currently before Parliament was introduced. In the future that will be much more difficult. It seems to me essential as regards this Bill at least to lay the basis for a procedure along the lines the noble and learned Lord is proposing to the Committee in his various amendments. But I stress that we should bear in mind that the initiative may come from the Lord President himself in the interests of his court. It would be wrong to look on this as something which will be initiated by politicians for political reasons. Of course the ultimate decision has to be taken by the parliament and therefore politicians will be involved. It is right that the matter should be placed before parliament by the Minister but I should like to see written into the Bill the requirement that that should be done only after a proper inquiry conducted by appropriate persons.

Lord Clyde: To my mind the vital consideration here is the essential necessity of preserving the independence of the judiciary. That independence is not secured if there is a threat that they can be removed by a guillotine procedure by politicians. The future prospect for judges

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in Scotland opens up many opportunities for conflict between the citizen and the state. The judges may well be required to enter into the political arena to an extent they have not previously experienced. It is all the more necessary therefore that their independence should be safeguarded. Would it be tolerated in England that the Lord Chief Justice of England should be removed from his office at the whim of the Prime Minister with a two-thirds majority of the House of Commons? Is it to be tolerated that any judge should be exposed to such a sudden removal from office without even an opportunity of stating his case?

Whatever the proper solution is--and I can see that it may be difficult to find the correct formula--what is proposed here goes right against one of the fundamental bulwarks of the constitution. I strongly support the amendment moved by my noble and learned friend.

Lord Mackay of Drumadoon: As my name appears on a number of the amendments perhaps I may make a short contribution. Clearly it is a matter of concern that so late in the history of the Bill's passage through Parliament we are faced with a number of important issues. The Government have been warned--I use the word advisedly--for a number of months now that the Bill as originally drafted did not satisfactorily deal with the issue of the removal of judges from office. The Faculty of Advocates submitted a memorandum to the Government following publication of the Bill stating in terms that,


    "The Faculty is concerned that the provisions of the Bill relating to removal of the judiciary will significantly undermine the independence of the judiciary".
The document went on to set out, over a number of pages, why the Faculty held that fairly clear view.

The amendments in my name deal with a number of aspects of this issue. Amendment No. 291CA seeks to extend the same protection to all Scottish judges employed by the state--as opposed to district stipendiary magistrates, who are employed by local authorities--whether they be High Court judges, sheriffs principal or sheriffs. It does so for the reason that all these judges are to be granted similar powers under the Bill to rule on the vires of legislation passed by the Scottish Parliament or laid by members of the Scottish executive. All will equally be required to adjudicate as to the executive competence of action or inaction on the part of members of the Scottish executive. These issues will arise in both civil and criminal matters. They will traverse not only devolved matters but also issues relating to reserved matters. I firmly believe that, for the reason stressed by noble and learned Lords who have spoken, it is important for High Court judges to have their rights safeguarded. The same applies to sheriffs principal and sheriffs.

I have no objection to make to Government Amendment No. 291CAA.

Amendment No. 291CB raises for discussion, and I hope the further consideration that the Government will give to this issue, the desirability of requiring a two-thirds majority in the Scottish parliament. It is proposed on the basis that my Amendment No. 291CC

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raises the issue of the need to have a Motion passed in another place that is moved or made by the Prime Minister.

What troubles me about the two-thirds majority is this. If we reach the stage of bringing the matter before the Scottish parliament following an inquiry, the First Minister being of the opinion that it is appropriate for him to move the Motion or resolution, what happens if the necessary two-thirds majority is not reached but a simply majority is reached? I should have thought that would be an intolerable position for everybody, including the judge concerned. One can only speculate as to what the Scottish press would make of a situation where, by the sort of vote that applies to virtually every other matter in the Scottish parliament, a judge is deemed to be a man who should be removed from office. I recognise that the two-thirds protection was introduced by the Government for commendable reasons but I am concerned as to whether it is as good an idea as it first sounded.

I stress that I link Amendment No. 291CB to Amendment No. 291CC. I do so because it is clear that after devolution the work of the Scottish judges at all levels will cover the whole ambit of reserved and devolved matters. In particular, the work of judges at all levels will involve adjudicating on disputes between members of the United Kingdom Government, on the one hand, and members of the Scottish executive, on the other. The work of all judges will involve scrutinising the legislation coming out of the Scottish parliament and subordinate legislation made in London and subordinate legislation made in Edinburgh.

1.45 a.m.

Lord Steel of Aikwood: I am most grateful to the noble and learned Lord. He has just repeated something he said earlier which I wanted to query. I cannot imagine any circumstances in which the vires of legislation would be contested in sheriff courts. Perhaps he could enlighten me on that.


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