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Mr. Gorrie: I am obliged to the Minister for his explanation. If the Bill means what he says it means, that is satisfactory from our point of view and we will not press the matter to a vote. My hon. Friends are more concerned to vote on judicial circles than on ombudsman circles. I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 86 ordered to stand part of the Bill.
Clauses 87 to 88 ordered to stand part of the Bill.
Mr. Menzies Campbell:
I beg to move amendment No. 266, in clause 89, page 40, line 35, after '(1)', insert 'Subject to subsection (3)'.
The First Deputy Chairman:
With this, it will be convenient to discuss the following: Amendment No. 26, in page 40, line 35, leave out 'continue to'.
Amendment No. 27, in page 40, line 36, after 'appointment', insert 'or removal'.
Amendment No. 267, in page 40, leave out from beginning of line 38 to end of line 1 on page 41 and insert--
Amendment No. 429, in page 40, line 39, leave out from 'been' to end of line 40 and insert
Amendment No. 28, in page 40, line 40, at end insert--
Amendment No. 29, in page 40, line 44, leave out 'or'.
Amendment No. 30, in page 41, line 1, at end insert
Amendment No. 430, in page 41, line 1, at end insert:--
Amendment No. 31, in page 41, line 2, after 'Session' insert
Amendment No. 431, in page 41, line 2, after 'Session', insert 'Sheriff Principal or Sheriff'.
Amendment No. 432, in page 41, line 3, at end insert--
Amendment No. 32, in page 41, line 4, at end insert--
Amendment No. 33, in page 41, line 7, leave out 'two-thirds' and insert 'three quarters.'.
New schedule 1--'The Judicial Services Commission for Scotland--
Mr. Campbell:
It will be clear to hon. Members who have examined this group of amendments that to understand fully the effect of what is proposed, one must read amendment No. 266 together with amendment No. 267 and new schedule 1. As will be obvious, amendment No. 266 is a paving amendment.
Perhaps I should begin by declaring an interest, as I am a member of the Faculty of Advocates from which, by convention, appointments to the Court of Session bench are made. I still practise rather sporadically, but it is right that I should declare an interest.
The amendments and the new schedule are designed to institute a judicial services commission for Scotland to appoint judges. It may be worth having regard for a moment or two to the precise terms of clause 89. Subsection (1) provides for the United Kingdom Prime Minister
Clause 89(2) provides that
Why do I seek to establish a judicial services commission for Scotland through these amendments? It is right that some of the mystique that attaches itself to the appointment of judges should be removed. As matters stand, I understand that the Lord Advocate of the day determines a suitable candidate for appointment to the Court of Session and makes a nomination to the Secretary of State for Scotland, who makes a recommendation to her Majesty, who ultimately makes the appointment. None of that takes place in public and none of it is subject to the scrutiny of the public or anyone other than the Lord Advocate and the Secretary of State for Scotland.
The mystique ought to be removed. There is more than a hint of the white smoke emerging--I think that it is from the Sistine chapel, although I cannot claim any great expertise in such matters--from the chimneys of Parliament house in the High street in Edinburgh, behind St. Giles. Therefore, it is right and proper that those matters should be subject to greater public scrutiny. There should be public accountability, because in accountability and scrutiny lies greater public confidence. The effect would be that all professional Scottish judges would be appointed only after consideration and nomination by the judicial services commission. Only stipendiary magistrates, who are professional judges but sit in the district courts, would be exempt from such consideration.
These provisions do not come before the Committee with only the rather slight benefit of consistency that I have demonstrated in this matter. For the last 10--certainly for the last five--years of the Labour party's time in opposition, they enjoyed substantial support in the Labour party in Scotland. I know that he is now subject to the Trappist vow of silence that accompanies being a Whip, but I have often heard the hon. Member for Dumbarton (Mr. McFall) eloquently argue the case that I am making. If the Government seek consistency, they need look no further than him.
'(2) Subject to subsection (3) below, the First Minister shall recommend to Her Majesty the appointment of a person as--
(a) a judge of the Court of Session (other than the Lord President or the Lord Justice Clerk); or
(b) a sheriff principal or sheriff.
(3) The Prime Minister shall not make any recommendation to Her Majesty under subsection (1) nor shall the First Minister make any recommendation to Her Majesty under subsection (2), unless the nominee has been recommended to the Prime Minister or First Minister by the Judicial Services Commission for Scotland.
(4) The Judicial Services Commission for Scotland shall be constituted and have the powers and functions set out in Schedule (The Judicial Services Commission for Scotland.)'.
'included in a list, submitted by the First Minister to the Prime Minister, of persons suitably qualified and experienced to hold either of the offices specified in subsection (1) above.
(2A) Before submitting the list specified in subsection (2) above, the First Minister shall consult the Lord President of the Court of Session, the Lord Justice Clerk, the Secretary of State for Scotland, the Lord Advocate and the Advocate General for Scotland'.
'(2A) The Prime Minister shall not recommend to Her Majesty the removal of any person from the office of Lord President of the Court of Session or Lord Justice Clerk unless the First Minister advises that such a recommendation should be made.
(2B) The First Minister shall not give such advice unless the Parliament has resolved that the Lord President or Lord Justice Clerk should be removed from office and the number of members voting in favour of the resolution is not less than three-quarters of the total number of seats for members of the Parliament.'.
', or
(c) the Chairman of the Scottish Land Court.'.
'(3A) Before making any recommendation to Her Majesty in relation to an appointment specified in subsection (3), the First Minister shall consult the Lord President of the Court of Session, the Lord Justice Clerk, the Secretary of State for Scotland, the Lord Advocate and the Advocate General for Scotland.
(3B) Before making any recommendation to Her Majesty in relation to the appointment of a sheriff the First Minister shall also consult the Sheriffs Principal'.
'other than the Lord President or Lord Justice Clerk.'.
'(4A) The First Minister shall make such a recommendation if, and only if, the Lord President of the Court of Session and the Lord Justice Clerk have undertaken, of their own accord or at the request of the First Minister, an investigation in the fitness for the office of the judge, sheriff principal or sheriff, as the case may be, and have reported in writing to the First Minister, together with a statement of their reasons, that the judge, sheriff principal or sheriff is unfit for office by reason of inability, neglect of duty or misbehaviour.
(4B) When an investigation under subsection (4B) above is into the fitness for the office of either the Lord President of the Court of Session or the Lord Justice Clerk, such investigation shall be carried out by the other and by two additional judges of the Court of Session nominated by the First Minister.
(4C) The First Minister shall make such a recommendation if, and only if, a Resolution approving of the proposed removal of the judge, sheriff principal or sheriff, as the case may be, has been approved by both Houses of Parliament.'.
'(a) he receives a report from the Lord President and the Lord Justice Clerk that the judge is unfit for office by reason of inability, neglect of duty or misbehaviour, and
(b)'.
--(1)There shall be a Judicial Services Commission for Scotland consisting of--
(i) a lay President;
(ii) three judges, including at least one from an intermediate court, elected by the judges by such method as a Scottish Act of Parliament shall prescribe;
(iii) two persons who have regularly exercised rights of audience in the superior courts for not less than 15 years; and
(iv) five lay members, who are broadly representative of the community;
(2) The Judicial Services Commission may act notwithstanding any vacancy in its membership;
(3) the members of the Judicial Services Commission (other than judicial members) shall be appointed by the First Minister after consultation with the Lord President and the Lord Justice Clerk;
(4) The lay members shall be selected by the First Minister from a list of names submitted by the Commissioner for Public Appointments;
(5) If either the Lord President or the Lord Justice Clerk expresses dissent from a proposed appointment, the fact of the dissent shall be published if the Prime Minister or First Minister proceeds to make a recommendation to Her Majesty;
(6) The members of the Judicial Services Commission shall be appointed for such terms (being not less than 5 years) as a Scottish Act of Parliament may prescribe;
(7) No person may be appointed for a term which would expire after that person has attained the age of 70 years;
(8) A member of the Judicial Services Commission shall cease to hold office--
(i) upon the expiry of the term of appointment (which, subject to sub-paragraph (7), may be renewed); or
(ii) if the member ceases to have the qualifications necessary for appointment; or
(iii) on receipt by the First Minister of a letter of resignation from the member; or
(iv) in the case of a judicial member, if the member is removed from office; or
(v) in the case of a non-judicial member, if the member is removed from office by the Commissioner for Public Appointments.
(9) The Judicial Services Commission shall, in nominating persons for appointment to judicial office, adopt procedures for the identification of candidates so as to ensure, so far as practicable, that adequate numbers of candidates of both sexes and from diverse racial, religious and social backgrounds are considered for appointment; and
(10) The Commission may do anything which is calculated to facilitate or is conducive or incidental to the discharge of any of its functions.'
"to recommend to Her Majesty the appointment of a person as Lord President of the Court of Session or Lord Justice Clerk."
Those are the two most senior appointments in Scotland. The holders of those appointments occupy the chair of the first division, in the case of the Lord President, and the chair of the second division, in the case of the Lord Justice Clerk, in the Court of Session.
"The Prime Minister shall not recommend to Her Majesty the appointment of any person who has not been nominated by the First Minister for such appointment."
Of course, the First Minister is the First Minister in the Scottish Parliament. Subsection (3) provides:
"It is for the First Minister to recommend to Her Majesty the appointment of a person as . . . a judge of the Court of Session (other than the Lord President or the Lord Justice Clerk) or . . . a sheriff principal or a sheriff."
4 Mar 1998 : Column 1153
Subsection (4) provides for the removal from office of any judge, whether the Lord President, the Lord Justice Clerk or a judge appointed to the Court of Session, on the recommendation of the First Minister.
Subsection (5) provides that
"The First Minister shall make such a recommendation if (and only if) the Parliament resolves that the judge in question should be removed from office and the number of members voting in favour of the resolution is not less than two-thirds of the total number of seats for members of the Parliament."
As I pointed out, the purpose of the amendments and the new schedule is to provide a judicial services commission for Scotland. I claim consistency, if that be a merit in these matters, as a private Member's Bill that I introduced in February 1992 contained similar provisions. As was inevitable, that Bill made no further progress, but it embodied provisions that were substantially the same as those that I urge the Minister to accept this evening.
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