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Baroness Carnegy of Lour: My Lords, as a non-lawyer but someone who is extremely interested in the way in which the law operates in Scotland, and having in the past been a humble honorary sheriff, I wish to ask the House and the Government to pay a great deal of attention to what was just said by two noble and learned Lords who know as much as anybody in the

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country about what the Government are doing and the dangers thereof in comparison with the way judges are presently appointed.

The noble and learned Lord, Lord Hope, referred to the importance of the appointment of judges in achieving that independence as opposed to the very important function of getting rid of a judge. I agree as I hope will other noble Lords. I, too, feel that the importance of making an appointment is paramount. It must be done in the right way. Not having experience of the process, I can understand the noble Lord's remarks, although I do not know everything about it from the matters in which I have been involved. The people of Scotland hugely value the independence of judges. They are beginning to realise that there is to be some politicisation of judges. Although they do not quite understand how it is to happen, they are beginning to understand that it will happen. They are frightened of that, and very anxious that it should not happen.

If the amendment can do something to secure the independence of judges, the Government should accept it or a similar proposal. I see no reason why they cannot accept the amendment. It is of great importance.

On a small point, sheriffs are included in this clause. Who in fact appoints honorary sheriffs, and will the clause have any effect on them?

Lord Mackay of Drumadoon: My Lords, a similar amendment was debated in Committee on 6th October. I offered support to the noble and learned Lord, Lord McCluskey, on that similar amendment and indeed on other amendments. I do so again today. On that occasion the noble and learned Lord the Lord Advocate indicated that he intended to reflect further on the views expressed in the debate. Those views echoed the points made again this afternoon by the noble and learned Lords, Lord McCluskey and Lord Hope.

It is important to bear two matters in mind. The first is that the additional obligation to consult the Lord Advocate which this amendment seeks to introduce into the Bill is entirely without prejudice to subsection (5) of Clause 90. The subsection requires any consultation to take place in addition to any other requirement that may be imposed by virtue of any enactment. It will therefore be perfectly competent for the Scottish parliament, if so advised, to set up some form of judicial appointments board, commission or any other statutory scheme for addressing the issue of who should be appointed, High Court judges, sheriffs principal or sheriffs. This additional requirement is in no sense subservient to the possibility of further steps if that is what the Scottish parliament wishes.

My second observation is this. In the absence of any reason why it would be harmful for the First Secretary to be under an obligation to consult the Lord Advocate--and it is difficult to conceive how there could be any harm from such an obligation--the proposal seems to send the right message to everyone involved in devolution after the Scots parliament is up and running that this Parliament would wish the Lord Advocate, who will be the senior Law Officer in Scotland, to be consulted in the same way as it wishes

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the Lord President to be consulted. That would seem to build in two valuable safeguards to ensure, as the noble and learned Lord, Lord Hope, observed, that the need to invoke the provisions in the latter part of the clause regarding the removal of judges or sheriffs will require to be turned to as infrequently as possible. Therefore I support the amendment.

3.45 p.m.

Lord Lester of Herne Hill: My Lords, the problem referred to affects the whole of the United Kingdom, not only Scotland. It arises because the independence of judges in this country--their appointment and removal--is largely protected by rubbery and elusive constitutional conventions and customs rather than by anything prescribed by law. I looked at Stair's encyclopaedia of the laws of Scotland. There is a volume edited by the learned Lord Fraser of Tullybelton in which he reminds us that judicial independence in Scotland is protected by the Claim of Right of 1689, but in a rather Latin and indirect way. The same is true in a different way in England and Wales and in Northern Ireland.

My first point is that this is a real problem. The way in which we on these Benches propose to address it is much wider than under this Bill. There ought by now to be a proper constitutional judicial commission, independent of the Government and dealing with appointments, discipline and removal in exactly the way or a similar way to that which happens in genuine modern democracies elsewhere in the Commonwealth. I am sorry that that has been put on the back burner by the noble and learned Lord the Lord Chancellor. I am also sorry that some senior judges regard that as a threat to their independence when it is intended to be a bulwark against improper direct or indirect executive interference.

I am not in any position to judge whether adding the Lord Advocate as an office holder to be consulted would contribute significantly in alleviating the problem so far as concerns the appointment of judges in Scotland. However, we sympathise with the objective; namely, to do all that we can to strengthen judicial independence as regards appointments, as well as disciplining and removal.

My other point is that, oddly enough--and particularly oddly since this amendment is tabled by the noble and learned Lord, Lord McCluskey--it is the new Bill of Rights, the Human Rights Act, read with the Scotland Act, which will go far to come to the rescue in relation to this particular problem. That is because paragraph 1(d) of Schedule 6 to the Scotland Bill includes as a devolution issue the question whether the purported exercise of a function is, or would be, in breach of a convention right. The relevant convention right is, of course, the right to an independent and impartial court. Were the First Minister or any other office-holder in Scotland to be so foolish as to appoint on a political basis, to make a recommendation leading to a political appointment or to produce a court that lacked the institutional independence of the executive, the effect of Clause 92, together with the schedule, would be to give our courts, and finally the Judicial

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Committee of the Privy Council, oversight of the matter. It would be a very embarrassing way of doing so, but they would be able to decide that a particular appointment or series of appointments breached institutional independence under Article 6 of the European Convention on Human Rights. I do not commend that as the best way of dealing with the problem. It would be much better to have prophylactic safeguards of the kind that these amendments seek rather than a most embarrassing form of judicial review of the appointment of judges by judges.

I shall be grateful if the noble and learned Lord the Lord Advocate will confirm whether my interpretation of the Scotland Bill, read with the Human Rights Bill, is correct; namely, that there would be effective judicial safeguards were a court that lacked the necessary institutional independence to be appointed as a result of these procedures being abused. If that is not so, it seems to me that the case for this amendment and the other amendments is overwhelming.

The Lord Advocate (Lord Hardie): My Lords, noble and learned Lords were surprised in Committee that we had not specified on the face of the Bill that the Lord Advocate should be consulted on the appointment of judges, and the issue has been returned to today. Similar points have been made today as were made by the noble and learned Lord, Lord McCluskey, the noble and learned Lord, Lord Hope of Craighead, and other noble Lords.

I suggest that the task before the House is to ensure that the Bill contains the fundamental elements of the process for the appointment of judges. We do not consider it appropriate to legislate for every detail of the process, a point to which I shall return when dealing with later amendments. But, as the noble and learned Lord, Lord Mackay of Drumadoon, said, I indicated at Committee stage, in the early hours of the morning, that I would consider the points made, in particular whether there was a case for making an exception and writing on the face of the Bill a requirement of the kind suggested.

The Government have considered the matter carefully but remain unpersuaded that it is necessary to have such an amendment. As I stated at Committee stage, it is unimaginable that the First Minister would not consult the Lord Advocate about such appointments, for three reasons. The first is that the Lord Advocate will remain the senior Law Officer in Scotland and will be in charge of criminal prosecutions. Clearly, he will have an interest in ensuring that the appropriate people are appointed to the High Court bench. Related to that, the second reason is that the Lord Advocate is a member of the executive under the terms of the Bill, and one of his ministerial colleagues will be the First Minister. In the context of a government, it would be surprising if the ministerial colleague responsible for making the recommendation to Her Majesty did not consult the Law Officer. The third reason is the one referred to by the noble and learned Lord, Lord Hope of Craighead, both today and at Committee stage: that the Lord President, who has to be consulted under the terms of the Bill, would obviously ask the First Minister what the views

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of the Lord Advocate were. If that were the outcome--and I accept that that is the position which is likely to be adopted by any Lord President--the Lord Advocate's input would come into play at that stage.

The Government believe that it is not necessary to provide for consultation within the Scottish administration and that it should be left for the First Minister and the Lord Advocate to decide between them as to what arrangements are appropriate in particular situations. As has been observed, the Bill makes provision for consultation with others outside the Scottish administration who have relevant advice to offer, in particular the Lord President of the Court of Session. That consultation with the Lord President provides a useful safeguard against the fears, which I suggest are unreasonable and unrealistic, about politicisation of the process which have been referred to this afternoon.

The thrust of the discussion at Committee stage and today was this. If that were the position, why should it not be written into the Bill? I am pleased to hear that the noble Lord, Lord Mackay of Ardbrecknish, accepts that I have identified the matter which concerns him. Noble Lords argued during the first debate on Report that we should not clutter the statute book with unnecessary provisions. In that context, we explained that we disagreed with the arguments put forward at that stage. But in this case the Government do not consider it necessary to dictate when the First Minister should seek the advice of his own Law Officer, the Lord Advocate.

The noble and learned Lord, Lord McCluskey, raised a point concerning the greater politicisation of the process, a point also alluded to by the noble Baroness, Lady Carnegy of Lour. He said that it would be unfortunate if the process of appointment became overtly political and the bench comprised simply of appointees acceptable to the government of the day. While I am not convinced that that would happen, given the safeguards already in place in the Bill--the fact that the Lord Advocate is a member of the Scottish executive, along with First Minister, and that the Lord President would in all probability indirectly seek the advice of the Lord Advocate by asking the question to which the noble and learned Lord referred--the ultimate sanction would be for this Parliament to legislate for this matter and to take back the devolved issue if politicisation were considered a threat.

To respond to the point raised by the noble Baroness, Lady Carnegy of Lour, I have considered the question of who appoints summary sheriffs. My understanding--I shall notify to the noble Baroness if I am wrong--is that honorary sheriffs are appointed by the sheriff principal whereas temporary and full-time sheriffs are appointed by Her Majesty on the recommendation of the Secretary of State following advice from the Lord Advocate.

4 p.m.

Baroness Carnegy of Lour: My Lords, I thank the noble and learned Lord for giving way. He answered a question about the present system. I am already aware

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of that. My question is whether under the Bill the system will continue as it is. Will the Lord Advocate be consulted and therefore does the clause affect the appointment of honorary sheriffs?

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