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Lord Hardie moved Amendment No. 41:

Page 45, line 29, leave out from ("ground") to end of line 32.

The noble and learned Lord said: My Lords, Amendment No. 41 deletes the requirement for a two-thirds, rather than a simple, majority in the parliament in order to approve a Motion by the First Minister for the removal of a judge. There is no point in requiring the parliament to approve the Motion by a two-thirds majority if the tribunal has already found that

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the judge is unfit. Indeed, the requirement for such a majority could prevent the removal of a judge who was unfit.

An identical amendment--Amendment No. 175--was part of the package of amendments tabled by the noble and learned Lord, Lord McCluskey, on Report. However that amendment was, in the event, not moved.

It may be helpful if I expand and explain what the Government propose to do in response to the decision on this clause on Report. Having considered the strength of feeling expressed in the House on all sides, the Government intend to bring forward amendments to the Bill in another place which will place a duty on the parliament to make provision for an independent tribunal. The First Minister will be required to receive a report recommending removal from this tribunal before he may satisfy himself that a judge is unfit for office.

We would still wish to leave it largely to the parliament to decide the question of composition of the tribunal and its procedures. However, we believe that the tribunal should be chaired by a suitably qualified person, and we intend to specify that the chairman should be a person who is eligible in terms of Clause 103 to be a member of the Judicial Committee of the Privy Council in proceedings under the Bill.

Provided those proposals are accepted in another place, this House will, of course, have an opportunity to discuss and debate the matters at a later stage. I felt that it was important to explain the thinking to enlighten your Lordships. I beg to move.

Lord Lester of Herne Hill: My Lords, from these Benches we support the amendment which is the logical consequence of the Government's acceptance of the need for an independent and impartial tribunal to deal with the removal of Scottish judges.

As it may become contentious in another place, perhaps it may be possible to seek clarification on one important matter. When the matter was debated in the House on Report on 2nd November the noble and learned Lord the Lord Advocate explained that the Government's view was that the removal of a judge did not involve the determination of a civil right because there was,

    "a distinction between rights of appointment and termination in the public sector, which are matters of public law, and economic rights, such as rights to payment of salaries or pension, which are matters of private law, giving rise to civil rights".--[Official Report, 2/11/98; col. 67.]

That is important because it seems to us that there is an obligation upon both Houses of Parliament to ensure that in enacting legislation they do not authorise or require unnecessary breaches of convention rights under the European Convention on Human Rights. It seems to us that there are indeed two kinds of civil rights at stake when a judge is to be removed from public office. One is the civil right to reputation, which could be gravely affected were the judge to be removed without just cause. The other is that although judicial pensions are not themselves to be devolved to the Scottish assembly, a judge needs to earn his pension and, if prematurely

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removed from office, his pension rights, which are part of property rights, as the Government accept, will be jeopardised by a premature removal from office.

Therefore it seems to us that the Government have been wise in accepting the spirit of the amendment of the noble and learned Lord, Lord McCluskey, and they may wish to flesh it out in some form or another in another place. Is the noble and learned Lord the Lord Advocate able to confirm that there are civil rights at stake? One may reach a situation where there is a conflict with the European convention if we do not create an independent and impartial tribunal, established by law, to deal with the removal of Scottish judges in the way now happily agreed on all sides of the House.

Lord Mackay of Drumadoon: My Lords, I fully support the amendment. It reflects not only the amendment spoken to by the noble and learned Lord, Lord McCluskey, when we discussed this on Report, but also an amendment which I tabled on the ninth day of Committee, on 5th October. As I pointed out then, the idea of a judge surviving, because there was not a majority of two thirds against him, was one which I found unacceptable. I well understand why the Government have brought forward the amendment. I welcome it.

I am extremely grateful to the noble and learned Lord the Lord Advocate for explaining the Government's intentions as far as concerns the wider issues: namely, the removal of Scottish judges. It is clearly a non-political issue. When I spoke on Report I made it perfectly clear that I had no absolute views as to the detail of the mechanism involved. However, it will not have escaped the Government's notice that the amendment which the noble and learned Lord, Lord McCluskey, put to a vote, was one that had appended to it the names of my noble friends the noble Lord, Lord Mackay of Ardbrecknish, and the noble and learned Lord, Lord Fraser of Carmyllie, and myself. Without disclosing too many secrets, it was an amendment framed in consultation with others. Therefore, I hope that it will be possible for the Government to consult with myself, my noble and learned friend and my noble friend when finalising the detail of what is proposed for another place.

It would be extremely unfortunate were there to be any further controversy on the matter. As the noble Lord, Lord Lester, has said, the issue of convention rights undoubtedly arises, but there are more practical issues such as the number of personnel who should compose the tribunal and what qualifications, if any, they should have other than those described for the person who will chair the tribunal. To avoid further difficulty it may be prudent to be given as much notice of that as possible. I stress my thanks to the noble and learned Lord the Lord Advocate for giving us as much notice as possible of the Government's intentions.

8.30 p.m.

Lord Hope of Craighead: My Lords, I too support the amendment for the reasons which have been

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expressed. I add my own words of thanks to the noble and learned Lord the Lord Advocate for the explanation which he has given us about the Government's thinking.

There is one point which I should like to stress; that is, the importance of ensuring that the Scottish parliament has power to make arrangements for members of the Privy Council and Lords of Appeal in Ordinary to sit as members of the tribunal.

Doubts were expressed on the last occasion as to whether, without power given to it from this Parliament, the Scottish parliament would be able to involve people who held those positions in such an arrangement. It must not be forgotten that the tensions which are likely to arise in Edinburgh, should one of those events ever occur, would be considerable. It would be invidious for the question of removal to have to be decided by judges who sat on the same Bench as the judge who was at risk of being removed. For that reason, I am particularly glad that the noble and learned Lord was able to tell us that it is proposed to give that particular power to the Scottish parliament.

As for the question of the removal of the qualified majority, it is eminently sensible that should a positive report be reached--that is, that a particular judge is not suitable or is unable to sit--that that should not fall by reason of a failure to reach the qualified majority.

Lord Hardie: My Lords, perhaps I may reassure the noble and learned Lord, Lord Hope of Craighead. As I indicated, the amendment which will be tabled to be considered by the other place will make specific provision for the chairman to be qualified under Clause 1 or 3, so that would overcome that particular difficulty.

As regards the point made by the noble and learned Lord, Lord Mackay of Drumadoon, the amendments dealing with the removal of judges are expected to appear on the Commons Order Paper tomorrow for discussion on Wednesday. There will not be time for a vast discussion but I should be happy to explain the proposals to the noble and learned Lord if he wishes.

I deal with the point raised by the noble Lord, Lord Lester. It is not necessary to become involved in that discussion in the context of what we are doing now. I expressed our view on Report. There is a distinction between civil rights in the public and private sectors. That is still our position. But, happily, if the amendment is accepted in another place we shall not have to exchange views with each other across the Dispatch Box.

If the noble Lord wishes to know my opinion, it is not appropriate that I should give it here and certainly I should not give it to him and not give it free.

Lord Lester of Herne Hill: My Lords, I am sure that no opinion that is given from the noble and learned Lord the Lord Advocate comes free in the sense that it is not fully considered.

The House needs to be informed about its international obligations. I shall not pursue the matter but I simply ask the noble and learned Lord the Lord

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Advocate to consider the points which I have made which are new and separate from those which have been raised already. They may be important hereafter. The point about reputation and deprivation of the opportunity to earn a pension seem to us to be important. Will the noble and learned Lord the Lord Advocate consider those points and ponder upon them in the light of his previous statements to the House?

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