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Lord Wilson of Tillyorn: My Lords, being a layman, I have some hesitation in speaking after the eloquent speeches of so many noble and learned Lords. Perhaps I may call in aid two matters. First, the independence of the judiciary is so important that it should be of concern to those who are not learned in the law. Secondly, to float a little vessel from what may seem an odd part of the compass, when we were negotiating the future of Hong Kong we strongly argued, quite rightly, that the independence of the judiciary was a key part of the system. The system had been such that to dismiss a senior judge was very complicated. It would not have satisfied the desire of the noble and learned Lord, Lord Hope of Craighead, for speed. It required a tribunal and a reference to the Judicial Committee of the Privy Council. I do not believe it had been used for many years. The Judicial Committee had to drop out, for obvious reasons. We argued strongly with China that judicial independence from the executive and from the legislature was crucial. A provision was put into the agreement that there should be an independent tribunal, which would be headed by the Chief Justice, and only after that tribunal had proclaimed would the matter go to the legislature, which had to give its approval. That was agreed with China. It was included in the agreement and is in the mini-constitution of Hong Kong, valid for at least the next 49 years. I believe it is also the case that within the Commonwealth after the late 1950s all new constitutions had some form of independent tribunal.

As a layman it seems to me that judicial independence is crucial and we should establish the right provisions for the future of Scotland that not only work in practice but are seen in advance to be sufficient to guarantee the independence of the judiciary from the executive or the legislature. It does not matter, does it, that the procedure will probably not be used for 50 or perhaps one hundred years? It is not sufficient to revise it when it comes to that time. We need to have in place a provision which is seen to be right by the broad public before this particular vessel is launched.

The amendments tabled by the noble and learned Lord, Lord McCluskey, do not in any way undermine the main purposes of the Bill, which for my part I support, but reinforce its effectiveness of it. I hope that the noble and learned Lord is able to say that the Government will take account of all that has been said and will either accept the amendment or produce an alternative of their own.

Lord Fraser of Carmyllie: My Lords, I have appended my name to the three amendments that have been spoken to by the noble and learned Lord. My support for what has been proposed remains as strong as, if not stronger than, ever. I am not in the least surprised to learn that the noble and learned Lord, Lord McCluskey, has received a wide range of senior legal support for this proposal from the length and breadth of Scotland.

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I should like to make two points. In particular I address the argument that this is a matter which can be left to the Scottish parliament itself. First, whatever may be the good collective instinct of the Scottish judiciary not to trespass or to become unnecessarily involved in parts of the political process, I believe that in a very short space of time it is inevitable that a number of disputes will come before the courts which have a political quality that previously they would not have had. It is for that reason that I believe it to be wholly desirable to settle the matter of the independence of the judiciary before there is any risk of such disputes coming before the courts and any challenge being made as to the integrity and independence of the judiciary.

The second reason why I should like to see this amendment on the face of the Bill is that already advanced by the noble and learned Lords, Lord McCluskey and Lord Hope. Let us assume that at a future point the Scottish parliament decides that the best way to resolve the matter is along the lines advanced by the noble and learned Lord; namely, that an independent tribunal should be established. If such an approach were adopted the next important issue to be determined would be the composition of that tribunal. If one envisages, as one must, that from the Lord President downwards the judge may be at the centre of proceedings it is virtually impossible to conceive of a composition of a tribunal that is intra vires the Scottish parliament. I believe it is absolutely clear that it would have be along the lines of the three groupings advanced by the noble and learned Lord. I do not believe that the groups chosen by him for the purposes of his amendment are in any way an arbitrary selection of possible candidates; indeed, they are the only ones who would be appropriate to deal with holders of such high judicial office in Scotland.

I intended to say that provisions along the lines of subsection (9) would not be appropriate for the Scottish parliament to legislate upon, but now that we have had the opinion of the noble and learned Lords, Lord McCluskey and Lord Hope, that that would probably be outwith the powers of the parliament, the fact that I agree with them may be a rather redundant observation. Nevertheless, it is very important that before the parliament is established we try to ensure the independence of the judiciary. If the fitness of any Scottish judge at the most senior level is to be questioned it is wholly desirable at this stage before the parliament gets under way that we establish and secure the integrity of the judiciary and that if there is to be any challenge it is considered only by a tribunal of the distinction suggested by the noble and learned Lord.

6.15 p.m.

Lord Hughes: My Lords, I am not sure that I am wise to enter into this debate given the presence of so many legal luminaries. Although the University of St. Andrews conferred upon me an honorary doctorate of laws, the only judicial appointment I have ever held is that of a bailie sitting in the police court in Dundee. I do not claim any legal qualifications. I should like to make a very simple point. I understand that as the Bill originally stood a judge could be removed if a majority of the parliament voted for his removal. That was

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amended by making it a majority of two-thirds. I am not happy about that. Two-thirds would be 86 members of the parliament as presently composed. If it came to a vote and 65 or 70 members voted for a judge's removal he could not be removed because it would not amount to a two-thirds majority. But I suggest that in those circumstances any self-respecting judge would be forced to resign if parliament had shown that a majority of those voting did not believe that he was fit to hold office. Therefore, the two-thirds majority is no real safeguard.

I am minded to vote for this amendment unless my noble and learned friend the Lord Advocate can come up with something--perhaps a more simple proposal--which has the effect of enabling a judge to be removed only when it is obvious under the procedure adopted that he is unfit for office. Incidentally, in the past judges have been found to be unfit for office in Scotland but they have never been sacked. Their colleagues have always persuaded them to resign.

Lord Mackay of Drumadoon: My Lords, as the noble and learned Lord, Lord Hope observed, the background to this debate is the fact that when the Bill was first presented to Parliament it contained a clause which dealt with both the appointment and the removal of judges. The clause was necessary because on this issue this devolution settlement follows a different tack from that which gave rise to the Scotland Act 1978. For those of your Lordships who have followed the progress of this Bill through Parliament it must come as a surprise that at this very late stage in the history of the Bill there remains a very major dispute between noble Lords on all sides of the House and the Government. I hope very much that at this late stage we shall at long last see some movement on the part of the Government on these very important issues.

The simple question that arises is: what is objectionable in principle to the proposal in the three amendments tabled by the noble and learned Lord, Lord McCluskey, to which I and other noble Lords have also put our names? No doubt, like the noble and learned Lord, Lord Ackner, one can raise questions of detail as to whether it should be two or three judges; and perhaps one can criticise other points of detail. But what is objectionable in principle to separating the two stages in the process of removing judges: first, the determination of whether or not there is unfitness; and, second, once that matter has been established, the bringing of that matter before parliament for the appropriate resolution or motion to be moved? That was a point focused upon by the Faculty of Advocates many months ago in its memorandum to the Government, as the noble and learned Lord, Lord McCluskey, said. What it says is fundamental to a consideration of these amendments and I repeat it:

    "The Faculty is also of the view that it is necessary to have some means of determining the fitness of judges that is independent of the political process".
I believe that to be the nub of the matter, for the very obvious reason that when the Scottish parliament is up and running, either immediately or after a year or two,

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issues will inevitably come before the courts of the greatest political sensitivity. I give one example. Would it be within the competence of the Scottish executive to call a referendum on whether or not the people of Scotland wished to have independence or to enact legislation to that effect? One can picture the papers the following day if judges in the Court of Session in Edinburgh--or, more likely, judges who are sitting as Members of the Judicial Committee of the Privy Council--reach a decision that an Act of the Scottish parliament authorising such a referendum is ultra vires and cannot take place. The press will be full of criticism, not just from politicians but all parts of Scotland. Equally, the press will be full of messages and expressions of support for the judges who will be caught up in a highly political situation. For that reason, I believe that it is essential that the two stages of this process should be set down on the face of the Bill.

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