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Lord McCluskey: My Lords, the noble and learned Lord will be disappointed by my response. I have a right to reply and I shall be as brief as I possibly can. I shall allow the speech of the noble and learned Lord the Lord Advocate to lie where it fell.

I trust that the noble Lord, Lord Lester of Herne Hill, is now satisfied, having heard the noble and learned Lord the Lord Advocate, that judicial review is not an adequate way of dealing with the matter because it cannot review the merits.

The noble and learned Lord referred to the propensity of politicians. The most distinguished and in some ways admirable politician of my lifetime was Franklin Delano Roosevelt, who came into office in 1932. He immediately tried to pack the Supreme Court with his own appointees because they seemed to him to be standing in the way of his political programme. Therefore, even the best of democrats will interfere with the judiciary if they can.

As regards the details, I do not care whether it is two or three judges. My original amendment provided for two or more judges. Some noble Lords did not like that and so I should be happy to have one judge or three or five judges, whatever is suitable to the Government. It is for the Government to make those proposals. It is not for me to write details of procedures about how judges should be given the opportunity to reply to charges of impropriety. That is not my job. I am here to raise a point of principle and I have sought to do so.

I agree entirely with the noble Lord, Lord Hughes, that to require a two-thirds majority is to say, in effect, to the legislature, "You have the power", whereas the present position is that constitutionally Parliament simply rubber-stamps the decision which is taken behind the scenes or, in my system, by a tribunal.

I have a lot of sympathy with what the noble Lord, Lord Hughes of Woodside, said, and he made the same point in Committee. We do not have to have a body which consists entirely of judges. There may be good reasons for including laymen or making it consist only of laymen. As I said on another occasion, one does not have to be a judge to determine whether a man is dishonest. If a man is beating his wife or molesting children, people other than judges can decide whether he is unfit on that ground. I should be perfectly happy and should welcome a move by the Government to make the tribunal embrace people of that kind.

2 Nov 1998 : Column 69

A point was made about the length of my amendments. They are quite modest. I do not suppose that size matters in this context, but my amendment is only 19 lines long. We have already agreed to add 34 lines to the Bill to introduce the Queen's Printer. If the Queen's Printer is worth 34 lines, surely a modest 16 to save the judiciary is not too much.

The noble and learned Lord the Lord Advocate says that the question is as regards how much of the detail should be in the Bill. He misses the point. We are perfectly happy with the mechanics of removal. There is no detail at all in the Bill in relation to determination of the question of unfitness. It is that which is lacking and I regret that the Government have failed to see that.

The Government ask how the First Minister could get away with dressing up his particular political prejudices as unfitness. It happens every day. It is happening now in Sri Lanka, where some of the judges who are against the government are facing bogus charges of assault and so on. Therefore, it is quite possible for politicians to come forward with such charges. It is vitally important that judgments on those matters should be made by those who are other than politicians.

Today your Lordships have heard that the Scottish judges, the Lords of Appeal in Ordinary, retired Lords of Appeal in Ordinary, former Lords Advocate, the Law Society of Scotland, the Faculty of Advocates and others support these amendments. It is arrogant of the Government to say that they cannot agree and see no need for this provision. I have no troops. I have no Whip to bring people to the House. But I hope that your Lordships in all parts of the House, not least those on the Liberal Benches, who have listened carefully to the argument and taken part in it, will support me. I shall not press Amendment No. 175 because that is necessary if the Government win in relation to the other amendments. I will ask your Lordships to support me in relation to Amendment No. 176. In the meantime, I beg leave to withdraw Amendment No. 175.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 176:

Page 42, line 40, at end insert--
("( ) he has asked an independent tribunal, established under subsection (9) of this section, to investigate and report on whether the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour,
( ) he has received a written report from the tribunal, containing a finding that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour and a statement of their reasons for so finding,
( ) he has laid before the Parliament a copy of the written report on the person in question,").

The noble and learned Lord said: My Lords, I beg to move.

2 Nov 1998 : Column 70

7 p.m.

On Question, Whether the said amendment (No. 176) shall be agreed to?

Their Lordships divided: Contents, 144; Not-Contents, 108.

Division No. 1


Ackner, L.
Addington, L.
Addison, V.
Alderdice, L.
Anelay of St. Johns, B.
Attlee, E.
Baker of Dorking, L.
Balfour, E.
Beaumont of Whitley, L.
Beaverbrook, L.
Blaker, L.
Blatch, B.
Brougham and Vaux, L.
Bruntisfield, L.
Burnham, L.
Byford, B.
Caithness, E.
Cameron of Lochbroom, L.
Campbell of Alloway, L.
Carlisle, E.
Carnegy of Lour, B.
Charteris of Amisfield, L.
Chesham, L.
Clancarty, E.
Clyde, L.
Colwyn, L.
Cooke of Thorndon, L.
Cope of Berkeley, L.
Craigavon, V.
Cranborne, V.
Crathorne, L.
Crickhowell, L.
Dartmouth, E.
Denham, L.
Dixon-Smith, L.
Dundee, E.
Dundonald, E.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Feldman, L.
Ferrers, E.
Fraser of Carmyllie, L.
Freyberg, L.
Geddes, L.
Gisborough, L.
Greenway, L.
Hamwee, B.
Harlech, L.
Harris of Greenwich, L.
Harrowby, E.
Hayhoe, L.
Henley, L.
Higgins, L.
Holderness, L.
HolmPatrick, L.
Home, E.
Hooper, B.
Hope of Craighead, L.
Hothfield, L.
Howell of Guildford, L.
Hughes, L.
Jauncey of Tullichettle, L.
Jeffreys, L.
Jenkin of Roding, L.
Jenkins of Hillhead, L.
Jopling, L.
Kingsland, L.
Kinnoull, E.
Leigh, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Long, V.
Lucas of Chilworth, L.
Ludford, B.
Luke, L.
Lyell, L.
McCluskey, L. [Teller.]
McConnell, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Mackie of Benshie, L.
McNair, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Massereene and Ferrard, V.
Meston, L.
Molyneaux of Killead, L.
Monro of Langholm, L.
Monteagle of Brandon, L.
Montrose, D.
Mountevans, L.
Moyne, L.
Napier and Ettrick, L.
Nelson, E.
Newall, L.
Newton of Braintree, L.
Northbourne, L.
Northbrook, L.
Northesk, E.
Norton, L.
O'Cathain, B.
Palmer, L.
Park of Monmouth, B.
Phillips of Sudbury, L.
Razzall, L.
Redesdale, L.
Rees, L.
Renton, L.
Renwick, L.
Rowallan, L.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selkirk of Douglas, L.
Sempill, L.
Shaw of Northstead, L.
Simon of Glaisdale, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stair, E.
Stewartby, L.
Strathclyde, L.
Taverne, L.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Trenchard, V.
Trumpington, B.
Ullswater, V.
Vivian, L.
Waddington, L.
Waverley, V.
Weatherill, L.
Weir, V.
Westbury, L.
Wigoder, L.
Wilberforce, L.
Wilcox, B.
Wilson of Tillyorn, L. [Teller.]
Winchilsea and Nottingham, E.


Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Bach, L.
Barnett, L.
Berkeley, L.
Biffen, L.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brooks of Tremorfa, L.
Burlison, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Chandos, V.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Crawley, B.
David, B.
Davies of Coity, L.
Dean of Beswick, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Eatwell, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Gallacher, L.
Gilbert, L.
Gladwin of Clee, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Hardie, L.
Hardy of Wath, L.
Harris of Haringey, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B. [Lord Privy Seal.]
Jenkins of Putney, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Lovell-Davis, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
Mallalieu, B.
Mason of Barnsley, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Peston, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Richard, L.
Scotland of Asthal, B.
Sefton of Garston, L.
Serota, B.
Sewel, L.
Shepherd, L.
Simon, V.
Smith of Gilmorehill, B.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Macclesfield, L.
Thornton, B.
Tomlinson, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Walker of Doncaster, L.
Warner, L.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

2 Nov 1998 : Column 71

2 Nov 1998 : Column 72

7.8 p.m.

Lord McCluskey moved Amendment No. 177:

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