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Lord Hardie: I am grateful to the noble and learned Lord for that intervention. The Bill sets down the basic framework. It will then be for the parliament and the First Minister to set out the detail of the procedure. That procedure will evolve and change as time goes on in the light of any experience that one has. Obviously a procedure will be required to be laid down by the Scottish parliament as regards what should be undertaken.

I turn to government Amendment No. 291CAA. It is intended to ensure that judges may be removed from office only by Her Majesty and that any recommendation to do so should be made only by the First Minister. Clause 89 provides a role for the First Minister in recommending the removal of the judge. The amendment would make it clear that only Her Majesty can remove a judge of the Court of Session or the Land Court and that the recommendation that she should do so can come only from the First Minister and not via any other route. The amendment was tabled in response to a concern by the judiciary in Scotland that the clause as framed did not make that clear and there would be a possibility that the Scottish parliament would pass a separate Act independently of that. We did not believe that that was a real issue, but, in view of the concerns expressed to us on behalf of the judiciary, we addressed the matter and incorporated that amendment.

Before sitting down I will deal with the CHOGM point and the ECHR point. As to the Commonwealth conference, the Bill does not preclude the possibility of the parliament making provision to expand on the procedures to cover the concerns which the noble and learned Lord, Lord McCluskey, has raised. Clause 89 simply contains minimum requirements, which are entrenched. The Scottish parliament can and should build on these.

As to ECHR, Article 6 is already binding on the United Kingdom. The Human Rights Act is simply bringing those rights home. As far as I am aware, there has been no challenge of the procedures for the removal of a judge in England. There has been no suggestion that that is contrary to Article 6. According to those procedures it would appear there would not be any public hearing other than a Motion being presented to each House.

Clearly any procedures which the Scottish parliament introduce in this regard will have to take on board its obligations in terms of the human rights legislation. I am not convinced that the proposals in the Bill as they stand would be in contravention of Article 6 if one

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appreciates that what is being laid down are the basic minimum requirements. The detailed procedures will be developed by the parliament.

In the light of what noble and learned Lords have said, we will consider these matters further. I would invite noble and learned Lords to withdraw their amendments.

2.15 a.m.

Lord McCluskey: I do not propose to press my amendments further. I would ask the noble and learned Lord the Lord Advocate to read what he said to the effect that judges will, because of the provisions of Clause 89(7)(b), have the benefit of absentees. Is this any way to think about the removal of judges, that they may be lucky that if a few of the members of the Scottish parliament are elsewhere the judge will have the benefit of the absentees?

Lord Hardie: If I gave that impression I certainly did not intend to do so. I would withdraw any suggestion of that sort. The Committee will appreciate that it is quarter-past two in the morning and perhaps the line that I used was less appropriate than it should have been. I do not wish to give any impression that judges are being shown any favours here. What I was trying to get over to the Committee and to the noble and learned Lord is that by imposing a requirement of two-thirds of the members who are eligible to sit in the parliament it is a very high standard indeed when compared with the equivalent provision in England. I hope that the noble and learned Lord will take the remark in that spirit.

Lord McCluskey: I am happy to do exactly that and I accept what the noble and learned Lord has said.

The noble and learned Lord has used the expressions "unimaginable" or "beyond belief" more than once. It is simply not so. Judges are removed from office by the political power in most countries of the world. There is nothing unimaginable about it at all. They are not removed for political reasons in this country by reason of conventions. As I and others have said repeatedly, these conventions will not necessarily apply to a new Scottish dispensation. It is very important that these matters should be dealt with in the Bill.

Lastly, because of the requirements in Article 6 that an independent and impartial tribunal should be established by law, it is important that that law should be passed--and it should be passed in the course of the enactment of this Bill.

In the light of what has been said, I do not propose to press any of the amendments standing in my name. I shall beg leave to withdraw each of them in turn.

Amendment, by leave, withdrawn.

[Amendment No. 291CA not moved.]

Lord Hardie moved Amendment No. 291CAA:


Page 43, line 7, leave out ("by Her Majesty on the recommendation of") and insert ("only by Her Majesty; and any recommendation to Her Majesty for such removal shall be made by").

On Question, amendment agreed to.

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[Amendments Nos. 291CB to 291FA not moved.]

Clause 89, as amended, agreed to.

Clause 90 agreed to.

Lord Mackay of Drumadoon moved Amendment No. 291G:


Before Clause 91, insert the following new clause--

Privilege of the Scottish Parliament

(" .--(1) In the Bill of Rights, there shall be inserted at the end of Article IX (freedom of speech) the words "; and in this Article, "Parlyament" shall include the Scottish Parliament".
(2) In the Claim of Right Act 1689, there shall be inserted at the end of Article XXV the words "of those Parliaments (including the Scottish Parliament)".
(3) Proceedings of the Parliament shall not be questioned on grounds of non-conformity with the Parliament's standing orders except where such non-conformity--
(a) raises a devolution issue within the meaning of Schedule 6 to this Act, or
(b) constitutes non-conformity with any provision of this Act relating to the content of the Parliament's standing orders.
(4) In considering any matter relating to an Act of the Scottish Parliament and subordinate legislation made by the Scottish Executive, a court shall apply, so far as possible, the same tests for deciding the extent to which reference may be made to speeches in the Parliament in the interpretation of proceedings of the Parliament as it would apply for deciding the extent to which reference could be made to speeches made in Parliament in the interpretation of proceedings in Parliament.").

The noble and learned Lord said: I turn to a new topic at 2.20 a.m. I have to say that the only privilege most of us are interested in at the moment is the privilege of going home to our beds. I see the cheery face of the Government Chief Whip. It is cheery but the noble Lord is shaking his head from side to side, so we are not yet free to go. Therefore, I shall deal briefly with the amendment. It is not one that I would press to a Division at this hour. For that reason it is clearly one which it may be necessary to look at again at Report stage. In such ways do we make progress.

The amendment raises the issue of parliamentary privilege and seeks to explore the extent to which the courts should be limited in their interference with what goes on in the new parliament. Perhaps I should make it clear that it is not in any way the intention of the amendment to interfere with the powers which the Bill gives the courts to address and adjudicate on devolution issues. Nor is it the intention to limit the power which the Court of Session already has to entertain judicial review proceedings.

In that regard, I would welcome an answer to the question I posed back in July on the fourth day of the Committee stage and for it to be clearly indicated on behalf of the Government whether or not there is any intention that the Bill's provisions should interfere in any way with either the existence or the extent of the supervisory jurisdiction of the Court of Session. My understanding is that this issue has troubled a number of members of faculty. They have discussed this matter

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informally with Scottish Office officials at conferences which they have attended. It would be helpful if the matter could be clarified.

I fully recognise that in Clause 37 the Bill deals with freedom of speech in the new parliament in the sense that it will protect members from defamation proceedings. I fully accept that there are other provisions in the Bill which would entitle standing orders to regulate the extent to which members of the public are allowed to open their mouths if they happen to be in attendance in an observing capacity for the proceedings of the committee or the parliament itself. The amendment seeks to explore whether the new parliament, which will be a body enacting primary legislation which will have the same force in Scotland as primary legislation coming out of the Westminster Parliament and indeed will have the same force throughout the United Kingdom as primary legislation coming out of the Westminster Parliament, should have to have regard to the provisions of Article IX of the Bill of Rights Act of 1688, which applies in England and Wales and Northern Ireland and provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament, and whether they should also be bound by what is understood to be a comparable provision in the Scottish Claim of Right of 1689 which is understood, although there is no clear judicial authority on this point, to secure the same effect in the Scottish courts when Westminster legislation comes before the courts and when what is said by Members of this Parliament, whether of another place or here, falls to be considered.

As Members of the Committee will be aware, there is currently a joint committee of the two Houses of Parliament addressing the whole issue of parliamentary privilege. It has already taken evidence from a number of individuals, including senior government Ministers such as the Home Secretary, and senior judges such as the Lord Chief Justice and the noble and learned Lord, Lord Rodger of Earlsferry.

It appears to be recognised in the evidence which the Government submitted to the committee that to some extent at least parliamentary privilege restricts the extent to which the courts can seek to go behind what is said by Members of Parliament during debates and by doing so use evidence of what was said to impugn parliamentary conduct and in particular the conduct of individual Members. The reason for that would be that to do so would undermine the basic concept which lies behind Article 9 of the Bill of Rights and the equivalent provisions of the Claim of Right; that is, the need to ensure, as far as possible, that a member of the legislature can speak freely without fear that what he says will later be held against him in the courts, not just in defamation proceedings but in any other proceedings upon which his words must be founded.

The matter is dealt with at some length in a memorandum submitted by the Home Office to the joint committee. In view of the lateness of the hour, I shall not repeat or read out in any detail what it says. My

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concern is that when the courts consider what has taken place in the Scottish parliament, they should treat it with the same respect and with the same degree of reservation against undue interference as the courts throughout the United Kingdom treat what is said in this Parliament. Clearly, there will be judicial review proceedings in which it may be necessary to refer to what a government Minister said. Clearly, in addressing questions of the vires of the primary legislation coming out of the Scottish parliament, it may be necessary to refer to what was said in a Pepper v. Hart statement, as has previously been discussed in our debates in Committee. But beyond that, I believe the courts should not go.

The amendment seeks to place the new Scottish parliament on exactly the same basis as this parliament in relation to freedom from interference from the courts which would infringe the provisions of the Bill of Rights or the Claim of Right. If, once the joint committee has reported, the Government are minded to bring forward legislation to change the present status or present effect of ramifications of parliamentary privilege as it affects this Parliament, one would expect a similar change to be implemented in the Scottish parliament because my thesis is that both should be treated equally. However, it will clearly be some months, if not longer, before the committee reports. One suspects that it may be a year or two at the minimum before difficult, complex and sensitive legislation of the nature which would be involved to change the rules of parliamentary privilege is brought forward for consideration by your Lordships' House and another place.

In the interim, we should try to place the Scottish parliament on an equal footing. It is on that basis that I bring forward this amendment. It is in no sense to interfere with the need to scrutinise vires and the need to scrutinise issues arising under the human rights legislation; it is to encourage the courts to treat the new parliament with the same respect as the United Kingdom courts have traditionally treated the proceedings of this Parliament. I beg to move.

2.30 a.m.

Lord Hope of Craighead: I believe I can say on behalf of the courts that the last thing that they would want to do is to indulge in criticism of the procedures of the parliament. For that reason I strongly support the principle of the amendment proposed by the noble and learned Lord.


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