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Lord Lester of Herne Hill: My Lords, support for the principle behind these amendments is surely something that will come from every side of the House. Indeed, I believe that everyone in this Chamber will agree that the maintenance of the rule of law and protecting judicial independence are essential ingredients of a modern democracy. We must be quite clear in all the legislation that we pass that, whatever we do, it does not sap the independence of the judiciary in any way. I should have thought that that would be common ground everywhere; it certainly is on these Benches. That is one of the reasons why we organised the debate last week on the possibility of a constitutional court and the need for judicial independence.

The question is: what is the most effective means of safeguarding judicial independence in the context of this Bill? As I indicated when I spoke earlier, the means that we would prefer would be by creating a standing constitutional judicial commission which would deal with questions of removal as well as questions of appointment and matters of discipline. As the noble and learned Lord the Lord Advocate has rightly said, that goes wider than the Bill. Indeed, it ought to do so because it should protect the judges in every part of the United Kingdom--that is, in England and Wales and Northern Ireland as well as in Scotland.

As some noble Lords may remember, I was the unsuccessful counsel in an appeal from Trinidad and Tobago when my client, the chief justice, removed one of the judges, Mr. Justice Crane, in breach of the constitutional guarantees written into the constitution of Trinidad and Tobago. The reason he won was that there were criteria prescribed in the constitution and there was a proper constitutional commission. Unfortunately, the chief justice himself, showing that judges themselves may sometimes err as administrators, had not complied with the proper procedures. That would be our preferred option, but it is not before the House this evening.

The proposal now put forward by the noble and learned Lord, Lord McCluskey, is for a special judicial tribunal to deal with such matters only in the context of

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Scotland. It does not arise in Northern Ireland in the same way because judicial removal and appointments will not be devolved to the elected Northern Ireland Assembly. The question which comes to my mind, and upon which I would very much welcome a detailed reply from the noble and learned Lord the Lord Advocate, is whether there are other effective judicial remedies to deal with the hypothetical problem that the First Minister acts outside the purposes prescribed in Clause 90--that is to say, his Motion is not made for the purpose of removing someone who is,


    "unfit for office by reason of inability, neglect of duty or misbehaviour",
but because of some other punitive or politically partisan improper reason. In that situation would there be an effective remedy by way of judicial review before an independent and impartial court to deal with that?

To take the second example, suppose there were a want of natural justice--this is one of the examples raised by the noble and learned Lord, Lord McCluskey--where the case against the judge had not been properly put, is it the Government's view that that would be able to be dealt with by the second principle of administrative law, of fairness or procedural propriety? Thirdly, let us suppose that the means of disciplining the judge were quite excessive and disproportionate, would the Government consider that that would be within the scope of the modern principle of rationality, and that it would be irrational for the First Minister, or a majority of the Scottish parliament, to seek to remove the judge on that basis?

Speaking for myself it seems to me that our principles of administrative law have moved sufficiently far--now strengthened by the Human Rights Act and Article 6--to enable our ordinary courts to provide perfectly effective remedies if there were to be a breach of legality, rationality or fairness. I now mention the only matter which gives me concern about that. The advantage of the tribunal of the noble and learned Lord, Lord McCluskey, is that it deals with merits review; that is to say, it can take the decision itself not by way of a supervisory jurisdiction. But, again, it seems to me that the supervisory jurisdiction of the judicial review court has now moved so far forward in developing principles of administrative law that in practice the merits of the First Minister's motion, and of any subsequent decision, could be effectively judicially reviewed. If that is the basis upon which we are legislating, I would reach the conclusion that a tribunal of this kind would not be necessary because ordinary judicial review on that basis would be sufficient.

If, on the other hand, the Government's view was that this was not a remedy that the ordinary courts could provide, speaking for myself, it seems to me that one should put the matter beyond doubt by creating a special tribunal, and, I would say, a special tribunal which in the long run goes beyond the Scottish judiciary. If we cannot be given an assurance of that kind this evening, I hope this measure will not be pressed to a Division to enable us to consider the matter in the light of what we are about to hear from the noble and learned Lord the Lord Advocate to see what is the best means of

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accomplishing an aim which everyone who has spoken--and I am sure everyone in the Chamber--shares; namely, to preserve judicial independence against arbitrary, unfair, partisan or punitive political removal of a judge.

5.45 p.m.

Baroness Carnegy of Lour: My Lords, I am not sure why the noble Lord, Lord Lester of Herne Hill, is not sufficiently keen on this amendment and why he wants to hear the noble and learned Lord the Lord Advocate suggest other ways that a solution might be found. This is an important amendment. I was not able to be present on the previous occasion at the late hour that this matter was discussed but I have read what was said with care. This amendment seeks to tackle in an extremely sensible way the weakest part of this Bill from the point of view of the public in Scotland, not just the lawyers. The danger of involving the Scots parliament in the removal of a judge in the way proposed in this legislation is great indeed.

The Government tell us--the noble and learned Lord, Lord Hope, has, of course, referred to this matter--that their reason for this measure is that the Westminster Parliament has a role (not unlike that which is suggested) in the removal of judges, if and when that is required, and it seldom is. But the point is that Scotland is a different place. Scotland is comparatively small. Edinburgh, where the law proliferates, is small. The Scots Bar is small. The noble Baroness, Lady Ramsay, smiles. She knows her Scotland well and I think that what I say rings true with her. Politicians and lawyers know one another and they meet socially. They gossip, if I dare say that. Many of them are interested in politics. It simply is not difficult to imagine a judge in Scotland making a controversial decision to strike down a Bill, or part of a Bill, which is dear to the hearts of the members of the Scottish parliament, or in some way cutting across some Scottish parliament members' interests, or the interests of their constituents. It will not be difficult to arouse political controversy almost immediately if one criticises a judge's competence. One can imagine the press comment, the gossip in Edinburgh within the law--perhaps it would stretch to Glasgow and even further--and the gossip among ordinary people.

The existing trust in the independence of judges which I referred to when I discussed the previous amendment--that trust is great in Scotland--will be damaged. That will happen whether or not the two-thirds majority is achieved. I can remember the political turmoil in a local authority when an education committee of which I was a member had to achieve a two-thirds majority for the removal of a teacher. We failed to do that but, my goodness, that teacher's life was difficult afterwards! Imagine being a judge after this process has failed to remove him.

The noble and learned Lord, Lord McCluskey, by insisting that a tribunal might be the hurdle which would have to be crossed before the parliament ever considered the matter, has given a good response. It is a good answer in the legal sense and from the public's point of view. People understand how tribunals can settle these

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matters, and they would accept that. One wonders how anyone in Scotland could conceivably not adopt that idea. I do not know whether a noble Lord from the Government Benches will join this discussion--I see that the noble Lord, Lord Hughes, is now present--as for a long time there has been no noble Lord present on those Benches, and no one has supported the Government on these matters previously. I do not know whether the noble Lord will do so on this occasion. I know that he is worried about other aspects of the Bill, as he has told me so. As I said, I do not understand how anyone in Scotland could not adopt this idea.

I believe that the noble and learned Lord, Lord Hope, has suggested my next point; namely, that the problems of the Scottish Office and of the Lord Advocate's Department lie outside Scotland. I wonder whether the saga of the students' fees is not about to be repeated. In that case the Scottish Office knew what to do and had the resources to do it but the department south of the Border refused to join in because of what it considered to be a potential knock-on effect for it. It may be that the Government's reluctance to adopt this idea has something to do with problems south of the Border and a fear that there may be a knock-on effect at Westminster. If that is the case, it is a total misreading of the needs of Scotland.

The Government must think again about this matter. It is enormously unwise to stick to their guns. This part of the clause will, above all, lay the Scottish judiciary open to politicisation. The amendment moved by the noble and learned Lord, Lord McCluskey, must be supported. As the noble and learned Lord pointed out, such a change can be made only by this Parliament. It is no good the Government saying that the Scots parliament can do it later. I hope that noble Lords on all sides of the House will support the noble and learned Lord.


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