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Baroness Ramsay of Cartvale: My Lords, I have been asked a plethora of questions. I shall try to answer as many as I can; and where I do not I undertake to write to noble Lords.

In different forms the question was asked, including in the question of the noble Baroness, Lady Carnegy of Lour, how the Queen's Printer is or will be appointed. The Queen's Printer is appointed by virtue of Letters Patent. She is in fact appointed by Her Majesty. The office of Queen's Printer of Acts of Parliament is held by a civil servant in the United Kingdom Government.

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She is appointed by Her Majesty on recommendation by the head of the Home Civil Service. We would certainly expect administrative arrangements to be made to consult the Scottish administration before any future appointments were made.

I shall deal shortly with the question raised by the noble Lord, Lord Lester. In fact, I am not sure whether he or the noble and learned Lord, Lord Mackay of Drumadoon, asked whether the printer could contract out the work of publishing Acts to the private sector. I should point out that there is nothing in the Bill which would preclude contracting out the printing of Acts of the Scottish parliament if that was so desired.

The noble Lord, Lord Lester, asked about subsidising the publications. The provision actually facilitates a decision by the Scottish parliament to subsidise the publication of the Acts of the Scottish parliament-- the ASPs. Therefore, the Scottish parliament can address the very concerns expressed by the noble Lord.

The noble Earl, Lord Mar and Kellie, raised a question as regards subsection (5) of the clause. What we are doing in this provision is providing a practical solution to ensure a coherent approach to the statute book and legislation generally. That is why we consider it the most sensible way forward to have the same person occupy these parallel, so to speak, posts.

I turn now to the concept of having a computerised database for ASPs. This possibility is being considered, as I am sure the noble and learned Lord knows. We are doing so in discussion with the current Queen's Printer. I am advised that the practicalities are being examined. I do not believe that I can add anything to that, even by letter. Therefore, I hope that that answer is satisfactory for the time being.

The noble and learned Lord also asked me about subsection (1)(b) of the new clause. I wonder whether the noble and learned Lord realises that the "her" refers to the Queen's Printer. That position is at present occupied by a lady--namely, Mrs. Carol Tullo. Therefore, in the case of any further functions being conferred upon the printer by this or any other Act, the reference to "her" relates to the Queen's Printer. It is perhaps unusual, but it is a refreshing change for some of us in this House to find a female holding such a post. That is why the provision refers to "she" and "her". Indeed, subsection (1)(b) will allow the parliament to confer additional functions on the Queen's Printer for Scotland as and when it considers fit. Therefore, with those answers, I hope that the House will agree to accept the amendment.

On Question, amendment agreed to.

Clause 88 [Agency arrangements]:

Lord Sewel moved Amendment No. 173E.


Leave out Clause 88 and insert the following new clause--

Agency arrangements

(".--(1) A Minister of the Crown may make arrangements for any of his specified functions to be exercised on his behalf by the Scottish Ministers; and the Scottish Ministers may make arrangements for any of their specified functions to be exercised on their behalf by a Minister of the Crown.

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(2) An arrangement under this section does not affect a person's responsibility for the exercise of his functions.
(3) In this section--
"functions" does not include a function of making, confirming or approving subordinate legislation,
"Minister of the Crown" includes government department,
"specified" means specified in an Order in Council made by Her Majesty under this subsection,
and this section applies to the Lord Advocate as it applies to the Scottish Ministers.").

The noble Lord said: My Lords with the leave of the House, I shall speak also to Amendment No. 206E when moving this amendment.

Amendment No. 173E amends Clause 88 so as to enable Ministers of the Crown and the Scottish Ministers to make arrangements to exercise functions on each other's behalf, subject to the proviso that the ministerial responsibility for the exercise of a function will not be affected by such an arrangement. The functions concerned must be specified in an Order in Council, and they cannot include functions of making, confirming or approving subordinate legislation. We expect that such arrangements will be used, for example, to permit the Minister of Agriculture, Fisheries and Food, in practice acting through his officials in the State Veterinary Service, to carry out certain functions in relation to animal health and welfare.

The amendment would also delete the existing text of Clause 88, which permits agency arrangements for the provision of "services", because we have concluded that it is unnecessary to have an express provision for that. It is considered that the Scottish Ministers will have sufficient powers to enter into such arrangements and to supply services under the ordinary law. If public bodies and office holders require powers to provide services to the Scottish Ministers on the same basis as they can to Ministers of the Crown, that can be made possible by consequential amendments where it is not permitted by the general glosses in the Bill.

Amendment No. 206E is related to Amendment No. 173E. It amends Schedule 7 to provide that an Order in Council made under the new Clause 88 listing the functions concerned will be subject to type-H procedure--the negative procedure at both parliaments. However, under paragraph 3 of Schedule 7 it would be subject to affirmative procedure if it amended an Act of Parliament.

These amendments provide necessary flexibility in the way in which ministerial functions can be exercised, allowing one administration to draw on expertise and resources in the other. I commend them to the House. I beg to move.

Lord Mackay of Drumadoon: My Lords, I have just one question about this amendment, which I believe to be one of the new ones. Would it technically be possible for the retained functions of the Lord Advocate to be covered by this new clause, or is that precluded by the provisions in Clause 48?

Lord Sewel: My Lords, it will come as no surprise to the noble and learned Lord to know that I did not actually anticipate his question, because I could not see

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how this particular clause could be set in the context of the retained functions of the Lord Advocate. However, having applied my mind to it over the past few minutes, I can give the noble and learned Lord an unqualified, clear and irrevocable no in response to his question.

Lord Mackay of Drumadoon: My Lords, I am very pleased to hear that the answer is no. However, when looking at Amendment No. 202B which relates to a new subsection for Clause 100, I wonder whether it might be prudent to have such a provision in this new clause.

Lord Sewel: My Lords, I can assure the noble and learned Lord that we will ensure that everything is appropriately and properly covered.

Lord Monro of Langholm: My Lords, while this provision covers Ministers from both Parliaments representing each other, does it also include the physical presence of Ministers in, say, Luxembourg or Brussels? As the noble Lord knows, there is nothing like, for better or worse, being present at a council meeting in either Luxembourg or Brussels in order to know what is going on, rather than getting it second hand from another Minister. Will the new clause cover that point or is it covered in another part of the Bill?

Lord Sewel: My Lords, that subject is covered comprehensively in other parts of the Bill. The new clause presently under discussion does not relate to that sort of issue.

On Question, amendment agreed to.

Clause 90 [Appointment and removal of judges]:

Lord McCluskey moved Amendment No. 174:


Page 42, line 18, after ("President") insert ("and the Lord Advocate").

The noble and learned Lord said: My Lords, Clause 90 deals with the appointment and removal of higher ranking judges in Scotland. Amendment No. 174 deals with the matter of appointment, while the remaining amendments tabled in my name and that of the noble and learned Lord, Lord Mackay of Drumadoon, deal with removal.

I turn, first, to the question of appointment. My concern is to avoid any threat to the independence of the judiciary in Scotland after the new dispensation comes into effect. The independence of the judiciary is of fundamental importance in a democracy. Indeed, we are all agreed about that and it is surely unnecessary for me to take up any time of the House by dwelling upon that matter.

In Scotland, after the Scotland Bill comes into force as an Act of Parliament, the role of the higher judges in Scotland will not diminish; indeed, it will increase. It will increase for reasons which were explained fully by my noble and learned friend Lord Hope of Craighead at Second Reading and elsewhere. The role of the judges will increase not just because the Act itself is likely to increase the scope for judicial review, but also because the Human Rights Act is expected to come into force on 1st January 2000, and of course the Scotland Act creates in Scottish judges a power to declare certain

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Acts of the Scottish parliament ultra vires if they contravene the provisions of the Human Rights Act. I should explain that I expect to retire from the Scottish Bench at about the time that Act comes into force and therefore I must remind the House that I have an interest, albeit a rather limited one, in the matters dealt with in the latter part of Clause 90; that is, the removal of judges.

The Government are already a party to a great many litigations in the civil courts in Scotland and it is the Government who bring all public prosecutions in Scotland. No one, least of all the Lord Advocate, would dispute that it is of the utmost importance to secure the continued independence of Her Majesty's judges. That most significantly includes independence from any kind of influence, pressure or interference stemming from the executive or indeed from members of the new parliament.

Against that background I can deal briefly with the first of the amendments standing in my name, Amendment No. 174. As the Bill now stands, the First Minister has the power to recommend the appointment of judges. He is obliged under the Bill as drafted to consult the Lord President of the Court of Session before recommending the appointment by Her Majesty the Queen of a person as a judge of the Court of Session or the High Court of Justiciary. This provision is entrenched. It cannot be altered by the Scottish parliament.

As regards the current practice in relation to the appointment of judges--despite what appears to be a power of the political authority to appoint judges--in point of fact what happens is that the Secretary of State for Scotland acts upon the advice of the Lord Advocate. The Lord Advocate stands back from the political process and seeks to exercise his role as a kind of Minister of Justice. He seeks to make a recommendation of the best person, regardless of that person's political antecedents, whether he has them or not. Therefore the role of the Lord Advocate in this matter is of vital importance in the appointment of judges.

As I said on Second Reading, the understanding between the Government and the Lord Advocate when I was privileged to be a member of the government in the late 1970s was that the Lord Advocate effectively nominated the new judge, but the Secretary of State had a right of veto. I believe that that is still the system; I certainly hope that it is. All that I seek is that this system be preserved when Scotland has its own parliament and executive.

As I understand the statements made by the Government in relation to this and similar matters, the Government are making the assumption--although there is no provision in this Bill--that the new First Minister will follow a practice similar to that of the Secretary of State for Scotland at present and consult with the Lord Advocate. However, that is a dangerous assumption to make. At this stage we can know absolutely nothing about the political or other character of the new executive, the legislature or the First Minister after devolution comes into effect. There is simply no basis whatsoever for assuming that the constitutional

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conventions that make the United Kingdom constitution work would somehow be adopted in the new Scotland. Indeed it is more than likely that some of them will not be adopted because Scotland is to have a written constitution which will render at least some of these conventions superfluous. They will be overtaken by specific provisions contained in the written constitution which this Bill creates.

Accordingly, I suggest to your Lordships that it is quite unsafe to assume that Scotland will somehow adopt the current system. It may or it may not. There is a palpable risk that the First Minister will exercise greater control over the appointment of judges than the Secretary of State now exercises. I believe there is a greatly increased danger of politicising the judiciary and of political cronyism creeping into the appointment of judges. That is not unknown in the United Kingdom, including Scotland, in this century. It has happened repeatedly in the British Commonwealth of nations and elsewhere. It has even happened in the United States. I am anxious to avoid any increase of political influence in relation to the appointment of judges.

As a member of the International Bar Association and of the Judges' Forum I constantly meet people from all round the world who are disturbed at the fact that judges in their countries are appointed and can be dismissed by the political power. I have to confess that in our own country that is exactly the position. What saves the position in the United Kingdom is that conventions exist which prevent the abuse of that political power. There is nothing at all in this Bill to prevent such an abuse. It is for that reason that I beg your Lordships to accept this amendment. I beg to move.

3.30 p.m.

Lord Hope of Craighead: My Lords, I put my name down in support of this amendment and I endorse everything that the noble and learned Lord, Lord McCluskey, has said. However, I wish to add some remarks in the light of my own experience because, as I mentioned when this matter was raised at Committee stage, I was for seven years the Lord President of the Court of Session. I was closely involved in the process of consultation which under the existing system precedes the making of these appointments.

Although the noble and learned Lord has quite rightly referred to the senior judiciary, the subsection which we are discussing deals with the appointment not only of judges of the Court of Session but also of sheriffs principal and of sheriffs. This brings me to the practical considerations which I suggest strongly underline the point which the noble and learned Lord has made.

The Lord President has great knowledge of what goes on in his own court--that is, in the Court of Session--but he has no staff, apart from one or two people in his private office who assist him with matters of administration and rule-making. Unlike the Lord Chancellor, with whom, incidentally, he shares certain functions, he does not have a department. The figure in the Scottish system who occupies the position of the gatherer of information and the provider of advice is the

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Lord Advocate who has a department and who retains a great deal of information about the performance of various people throughout the legal system who might be considered for appointment. That is particularly so in the case of sheriffs, bearing in mind that most sheriffs nowadays are appointed to that position after service for a time as temporary sheriffs and after their performance as temporary sheriffs has been monitored.

If the Lord President is being asked to consider the making of an appointment of any of the group who are mentioned in this subsection, the first person to whom he would wish to turn for advice and information is the Lord Advocate, especially in the case of sheriffs and sheriffs principal. As I mentioned previously, if one imagines a discussion between the Minister and the Lord President--leaving aside, of course, the political point which the noble and learned Lord has made--the first question to be asked is what advice the Lord Advocate has to give as regards the people who are being considered for the appointment.

The position at present is that in the making of these appointments the Lord Advocate occupies a pivotal role. I believe it is important, in order that the public can perceive correctly what is being done in the making of these appointments, that his pivotal role should be recognised in this subsection. There used to be--perhaps there still is--a suggestion that the only way to get noticed for appointment to the Court of Session Bench was to appear in the court of the Lord President. I regret that. One recognises that many people have expertise that may not be revealed in the Lord President's Court and which only others who have the luxury of sitting in other courts can appreciate. If the clause were to give the perception that the pivotal figure in the making of these appointments, apart from the Minister, was the Lord President, that would be a false impression. He is certainly there to protect the interests of the judiciary, and he occupies a crucial role in support of the independence of judges. But when it comes to making the appointments, he is a person who is properly to be consulted but is not in the best position to give advice to the Minister.

Finally, in relation to an amendment to be debated shortly, we shall discuss the removal of judges. The crucial stage in securing a strong, independent judiciary is the appointment of judges. Removal is a step of last resort. It is very difficult to achieve. It is time-consuming, contentious and possibly extremely dangerous. It is crucial to the independence of the judiciary and a strong Bench at every level that the system of appointment is properly constructed and that those who are best equipped to secure the correct appointments to the correct offices are directly involved. For those reasons I strongly support the amendment.


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