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9.30 pm
In England, a judge may be removed from office on the address of both Houses of Parliament, although, as some hon. Members have said, the position is not crystal clear. The responsibility for recommending the removal of a judge should rest primarily with the First Minister who would have to seek the authority of the Scottish Parliament before making any recommendation to Her Majesty the Queen. Clause 89(5) means that a recommendation by the First Minister for the removal of a judge requires the support of two thirds of the Members of the Scottish Parliament. That is a weighty mechanism for determining whether a judge should be removed, and that is appropriate.
Mr. Dalyell:
Could not it be at least three quarters or, given the possibility of a coalition Government, more?
Mr. McLeish:
At this stage, we are happy with the two-thirds majority because it is a formidable obstacle, but I shall refer to my hon. Friend's question later.
It is right that the decision should be taken by the Scottish Parliament. I would expect it to take a close and measured interest in such matters, consistent with the responsibility that we propose to place on it. We must provide a mechanism for dismissal, but we are debating a situation that we hope is unlikely to arise.
Amendments Nos. 29 and 30 are unnecessary because section 1(2) of the Scottish Land Court Act 1993 already provides for the appointment of members of the land court, including the chairman, by Her Majesty the Queen on the recommendation of the Secretary of State for Scotland, whose function in that respect will be transferred to Scottish Ministers by clause 49.
I shall now deal with amendment No. 32. It should be borne in mind that we are establishing a set of principles and a hurdle that the First Minister and the Parliament will have to overcome if a judge is to be dismissed. We are not writing the procedures because that will be a
matter for the Scottish Parliament. Any statement about the grounds of removal must be carefully crafted in the light of precedent and case law, to strike the appropriate balance between ensuring provision for the removal of judges who are unfit for office--however rare and unlikely that eventuality--and protecting members of the judiciary from removal on anything other than the ground of unfitness.
The Bill safeguards judicial independence by the very fact that a two-thirds majority of Members of the Parliament will be required for a resolution to remove a judge. That will inevitably require a consensus on the reason for removing the judge. In view of the comments of my hon. Friend the Member for Linlithgow, I am prepared to consider making it clear that the ground on which the First Minister should make his recommendation should be unfitness for office. I should like to consider an amendment that is designed to achieve that and table it on Report.
Mr. Dalyell:
I thank my hon. Friend. That seems an excellent solution.
Mr. McLeish:
I accept that my hon. Friend appreciates that the Government take this matter seriously. I support the spirit of his amendment, but I ask him not to press it.
Mr. Salmond:
May I tempt the Minister to consider the nature of traditional appointments to the Privy Council? Is he aware that only two of the 109 members of its Judicial Commitee are women and that one of them is there because she is the Leader of the House? In the light of questions about traditional appointments, does the Minister think that that is satisfactory?
Mr. McLeish:
I should like to respond to the hon. Gentleman, but I fear that if I do I shall stray into another group of amendments.
Amendment No. 33 requires that three quarters of Members of the Parliament would be required to vote in favour of a resolution to remove a judge. The proportion of two thirds that is suggested in the clause is a high threshold, and, in proposing that proportion, the Government recognise the seriousness of removing one of Her Majesty's judges from office. That is why we have not proposed a simple majority in the normal way but require a significant number of Members of the Parliament to be satisfied that the Executive's actions are justified and appropriate. In the circumstances, I invite my hon. Friend the Member for Linlithgow to agree that the point has been well made in the Government's proposals and that there is therefore no need for him to press his amendment.
Amendments Nos. 266 and 267 and new schedule 1 would represent a fundamental change in our traditional arrangements. At this stage, we do not consider it appropriate to impose a scheme of this sort on the Scottish Parliament. The arguments in favour of some form of judicial appointments board have been advanced from time to time, but we do not believe that such ideas have yet been sufficiently discussed or that the Scotland Bill is the right vehicle to implement any such changes.
I agree that it should be open to the Scottish Parliament to establish some form of Committee on judicial appointments, which could put forward names to the First
Minister, but, again, I come back to the point that we should not seek to impose such a procedure by means of this Bill.
I have made my comments in the spirit of understanding the hon. and learned Member for North-East Fife (Mr. Campbell) suggested, but, in view of the points that I made about consultation and discussion, about this Bill not being the most appropriate vehicle, about the Scottish Parliament being able to consider the matter and about nothing being ruled out, I hope that he will not press the amendment.
Mr. Menzies Campbell:
If the Minister is considering unfitness for office, I hope that he will take account of a recent case in another place, where the unfitness for office of a Scottish judge who had been removed from office arose in fairly sharp focus. There were questions about precisely what meaning should be ascribed to the words. I hope that the Minister will take note of their lordships' decision.
From what the Minister has said, I feel that he is more open minded about my proposals than his original outright opposition would suggest. I have only one question--is it his view that a Committee of the sort to which he referred would be within the general competence of the Scottish Parliament, or would it require statutory provision? If the hon. Gentleman is able to give me a satisfactory answer to that, I may not feel compelled to press my amendment.
Mr. McLeish:
I am willing to give the assurance that the matter will be within the general competence of the Scottish Parliament. I take the hon. and learned Gentleman's point about unfitness within the context of the discussions we have had. We will be looking closely at the considerations that surround the unfitness issue. We want to get it right and there will be further consideration of the matter.
I come finally to the amendments tabled by the right hon. Member for Devizes and his colleagues and will begin with amendments Nos. 429 and 430. Although there may very well be arguments for non-statutory consultation of the nature suggested, I do not feel that writing into the Bill such a complex series of exchanges will improve the quality of the final decisions. However, I am prepared to consider further whether there should be any additional provision for consultation by the First Minister before he makes recommendations for appointments. If any amendments are required, the Government will table them in time for Report.
On amendment No. 431, there are already powers for removing a sheriff or sheriff principal in section 12 of the Sheriff Courts (Scotland) Act 1971. Under the general provisions of the Bill, those powers will pass to Scottish Ministers and the Scottish Parliament. I have no doubt that they will be exercised with appropriate care and I see no need to include anything in the Bill that would make any specific additional provision.
I have dealt with the principles underlying amendment No. 432 in my response to the amendments tabled by my hon. Friend the Member for Linlithgow. In short, I do not consider that the Bill needs to set out the detailed procedures that may relate to the removal of a Court of Session judge. Neither could I accept any suggestion that Westminster should be involved in this process. It should be a matter for the Scottish Administration and it is not
something which should be second guessed by Westminster. The amendment would be a quite inappropriate provision and it should be rejected. I have made it clear that I am prepared to consider an amendment that specifies the grounds on which any recommendation for removal of a Court of Session judge should be made.
Mr. Dalyell:
Will the Government draft an amendment along those lines?
Mr. McLeish:
I have assured right hon. and hon. Members that we will want to revisit on Report the points that have been raised in this debate. I have more than entered into the spirit of the occasion--there is substance in my response to some excellent and considered comments by hon. Members. I therefore hope that amendment No. 266 will be withdrawn in the sure knowledge that we will revisit the issue. That should go some way to satisfy the concerns that have been expressed.
Mr. Menzies Campbell:
In light of the Minister's comments about returning on Report to the removal issue, and on the Parliament's competence being adequate to allow it to create a committee to give advice on judicial appointments, I do not think that it would appropriate to press the amendment to a Division. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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