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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.
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.
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,").
Resolved in the affirmative, and amendment agreed to accordingly.