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Lord Mackay of Drumadoon: I am happy to do so. This is a matter which we shall come to on later clauses of the Bill. In the prosecution of crime, for example, it could well be raised that the charge upon which the accused is being prosecuted is based on legislation enacted by the Scottish parliament outwith its legislative competence, whether it is to the substance of the charge or the preliminary procedure by which an accused was arrested. I am sure that the noble and learned Lord the Lord Advocate will be able to confirm, if it is he who is to reply to the amendment, that planning is already in hand to work out how devolution issues can be dealt with, if they arise, in criminal matters in summary criminal courts, in sheriff and jury trials and in High Court trials, and how they can ultimately be dealt with speedily by the Judicial Committee of the Privy Council so that the traditional speed with which Scottish criminal cases are tried and brought to a conclusion is not interfered with beyond what is necessary.

How often that will happen I know not. What I believe will happen is that, founding on the Human Rights Bill, there will be numerous challenges in the

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courts to the framing of charges and the procedures that are followed and that, for the same reason, it will have to be planned how these can be dealt with. I have no doubt whatever that it will be competent for such matters to arise and that, while ultimately the final decision may well be taken by the Inner House of the Court of Session, the High Court of Justiciary or ultimately by the Judicial Committee of the Privy Council, they will arise initially at the lower level. Indeed, this happened in a sheriff court not far from where the noble Lord stays in a case concerning the beef-on-the-bone regulations. The sheriff had to reach an adjudication which it turned out was not supported by the High Court of Justiciary on appeal, but he had to address the issue as to whether the subordinate legislation was ultra vires for the reasons which were advanced. It was debated before him over some days and he ended up taking a decision which was not supported on appeal.

It is for these reasons that I believe there is an argument which merits consideration. I would be surprised if it had not already been considered as to whether there is scope for involving the English Parliament, as well as the Scottish parliament, in this procedure.

I now move on to Amendments Nos. 291D, 291DA, 291E, 291F and 291FA, the terms of which are fairly self-explanatory. They set out in differing ways the procedures which might be followed for investigating and reporting to the First Minister on any allegations of unfitness for office which may be directed against a judge in whatever circumstances they arise.

As the noble and learned Lord, Lord McCluskey, said, the whole issue of human rights is very much involved. Once the Human Rights Bill comes into operation an argument may well be advanced that the procedure that currently exists to investigate whether or not a sheriff principal or sheriff should be removed from office under Section 12 of the Sheriff Courts (Scotland) Act 1971 is flawed compared with the provisions of Article 6, for the reason that in all probability before such an investigation takes place the Lord President of the Court of Session and the Lord Justice Clerk will already have been involved because of informal complaints by procurators fiscal, the Lord Advocate, the President of the Law Society and whomsoever as to the behaviour of a local sheriff. If the Lord President has already dealt with these matters on an informal basis there may well be a strong case that he is not the right person to hold an independent inquiry of the nature required by Article 6 or as described in the Latimer House agreement to which the noble and learned Lord, Lord McCluskey, referred.

These are important issues. Clearly, at this time of night there is no question of dividing on any of the amendments in my name in this grouping. However, I have no doubt that my hope that these matters will be considered very seriously before we get to Report stage will be recognised and responded to positively by the Lord Advocate. Unless there is a change I have little doubt that those who sit on these Benches and my noble friends will be more than happy to support the noble and learned Lord, Lord McCluskey, in any amendment

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that he tables and any amendments that we table at Report stage to ensure that the matter is fully debated again at that time.

Lord McCluskey: I should like to deal briefly with two matters. First, I direct the attention of the noble and learned Lord the Lord Advocate to the precise words of Article 6 of the Convention on Human Rights. That article provides that the independent and impartial tribunal must be established by law. One cannot have an ad hoc tribunal; it must be one established by law, which means that it must flow from an Act of Parliament. There is no such establishment in this provision. Secondly, the noble and learned Lord, Lord Mackay of Drumadoon, referred to the submission by the Faculty of Advocates. The Law Society of Scotland has written to me to confirm that the amendment tabled by myself and the noble and learned Lord, Lord Mackay of Drumadoon, has been considered by that body. It draws attention to the report of the Joint Colloquium on Parliamentary Supremacy and Judicial Independence held at Latimer House in June 1998. The society goes on:


    "In the Society's view, your amendment accurately reflects these guidelines which it is intended [should] be presented to the next Commonwealth Heads of Government Meeting".
That is a reference to Amendment No. 291E.

I hope the Government recognise that the principle underlying these amendments, though not necessarily the detail, is supported by the judiciary, the Law Society, the Faculty of Advocates and, as far as I can tell, everyone in the Committee who has spoken.

Lord Hardie: Before I turn to the detailed amendments it may help if I make clear the Government's position on the removal of judges. A number of noble and learned Lords have referred to the importance of judicial independence as a bulwark against the power of the state. I share those views and agree that an independent judiciary is an essential safeguard and key element in our constitution. It is for that reason that Clause 89 is in the Bill. Without it the Scottish parliament would be entirely free to enact such provisions as it wished, potentially without even the basic safeguards included in this Bill.

The Government regard it as anomalous--I believe that the noble and learned Lord, Lord McCluskey, shares this view--that there is no express provision in Scots law to deal with the removal of judges of the Court of Session. There is no specific statutory provision that allows for the removal of a judge, even if the judge is patently unable to perform the duties imposed upon him or her. Clause 89 addresses that gap, but does so in a way which we feel guarantees minimum safeguards for the judiciary.

I refer to the position in England and Wales by way of contrast. The Supreme Court Act l981 provides for the removal of judges. Section 11(3) makes explicit provision for the removal of a judge by Her Majesty on an address presented to her by both Houses of Parliament. No one is suggesting that the provision in the 1981 Act has undermined the independence of the judiciary in England and Wales. Yet that provision is

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subject to fewer safeguards than are contained in Clause 89; for example, Clause 89 requires the first minister to specify the grounds for removal, which must relate to inability, neglect of duty or misbehaviour.

No right thinking person would suggest that those were not proper grounds for the removal of anyone from high office, including a judge.

No such specification in England is required by the 1981 Act. Clause 89 also requires a qualified majority of the members of the Scottish parliament to vote for the removal of a judge. I take the point made by the noble and learned Lord, Lord McCluskey, that the original draft did not provide for that; it provided for a simple majority. The reason it provided for a simple majority is that the English provision provides for a simple majority of each House of this Parliament, whereas what is required now by an amendment introduced in the other place is that there should be a two-thirds vote of the total membership of the Scottish parliament in favour of the removal of a judge before that can have effect.

By having that requirement, the judge who is the subject of the motion benefits from absentee members because they count in his favour.

In the Government's view, Clause 89 takes a balanced approach which protects the independence of the judiciary but provides a mechanism for the removal of judges should that be needed. It provides a basic minimum and entrenched framework to the procedures, but leaves it free to practice and convention or the parliament to develop the detail, on such matters as consultation and inquiry. I believe that is the right way to proceed. I shall now turn to the individual amendments before us.

I shall deal with some of the amendments in the name of the noble and learned Lord, Lord McCluskey; that is, Amendments Nos. 291D and 291E and 291ZCV. The Government do not support Amendments Nos. 291D and 291E which would entrench a procedure which would ensure that there was a judicial input to the review process, preceding the moving by the first minister of a motion under Clause 89(7).

Lord McCluskey: Does the noble and learned Lord recognise that I accept that there does not have to be a complete adjudication by judges for reasons that are easy to understand? What is required is that there should be an impartial, independent tribunal which may include judges but does not have to include nothing but judges.


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