Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill: Stage 2
Section 1—Functions of the Lord President during vacancy or incapacity
We move to stage 2 of the Senior Judiciary (Vacancies and Incapacity) (Scotland) Bill. The bill will be considered by the Committee of the Whole Parliament, for which the occupant of this chair is known as the convener.
In dealing with the amendments, members should have SP bill 65; the marshalled list, which contains all the amendments that have been selected for debate; and the groupings that I have agreed. The division bell will sound as normal for the first division this afternoon.
The first group of amendments is headed "Procedure to establish incapacity or end of incapacity etc." Amendment 1, in the name of Stewart Stevenson, is grouped with amendments 4, 5, 7, 8, 8A, 9, 10, 11, 14, 15, 17, 18, 18A, 19 and 20. I remind members that, before I put the question on amendments 8 and 18, I will put the question on the amendments to amendments 8 and 18. If amendment 8 is agreed to, amendment 9 will be pre-empted; if amendment 18 is agreed to, amendment 19 will be pre-empted.
The group of amendments looks rather intimidating, but it covers a relatively small number of policy areas. In the interests of cross-party co-operation and facilitating the stage 2 process, I have provided my speaking notes for the minister. Perhaps I should just sit down, but I will not.
Amendment 1, in my name, is simply a paving amendment for amendment 4, which would insert subparagraphs (ii) and (iii) into section 1(3)(a) of the bill. The first policy purpose is to ensure that all judges who do not sign the declaration of incapacity of the Lord President are aware that a majority of their colleagues have done so. The amendment would require only that notice be sent and so would not cause any delay in the process. Should members dissent from the second policy purpose of the amendment, they will have a second opportunity to vote for the first policy purpose alone by supporting amendment 10 as an alternative.
The second policy purpose is bigger. My amendments would provide that two or more judges may block the declaration of incapacity. I suspect that, in practice, there would always be unanimity among the inner house judges, so the amendments would simply provide safeguards that should assure the wider public that a cabal would not be able to seize the inner house. When we legislate, especially when we do so quickly, we need to provide all possible assurances of the excellence of the processes that we define. I hope that the minister will acknowledge that the amendments that I have lodged are part of the due process of holding to account the Executive when it brings emergency legislation before Parliament.
Amendment 5 would repeat amendment 1 in respect of lifting the declaration of incapacity; it, too, is a paving amendment. Amendment 7 mirrors amendment 4 and contains the same two policy purposes. Amendment 10, to which I have already referred, covers both creating and removing a declaration of incapacity.
Perhaps I am just daft—that is possible, as that seems to be the fashion right now—but can the member explain to me what would happen if two judges were to dissent? I do not understand that. I presume that, if they did, we would be back to square 1 and would be faced with the problem that we are trying to avoid. Perhaps I have not understood the amendments correctly.
No, the member is absolutely correct. The purpose of the amendments is to ensure that, if there were dissent in the inner house, we would not proceed. However, the amendments would not provide one judge with a veto—two judges would be needed to block a declaration of incapacity. I have provided for the option of doing in part what I suggest. My aim is simply to debate the matter. I do not intend to divide Parliament on it, but in the normal course of events we would have raised such issues in committee at stages 1 and 2. We are now going through that process, which should not take too long.
Other amendments in the group would repeat those provisions in section 2, which concerns the Lord Justice Clerk, the policy purposes of which I have referred to in relation to section 1. Amendment 15 mirrors amendment 1, amendment 17 mirrors amendment 4 and amendment 20 mirrors amendment 10. As I said, I have given the minister my speaking notes, so she is no doubt checking them against delivery as I speak.
I turn to a minor policy issue that is addressed by amendments 2 and 6 for the Lord President and amendments 12 and 16 for the Lord Justice Clerk.
Those amendments are in the next group. Please stick with group 1.
Thank you, convener—you are correct. That is the trouble with legislating quickly.
Amendments 8 and 18 are merely consequential on earlier amendments, but amendments 8A and 18A would provide for new policy. Under amendment 8A, the Lord Justice Clerk would be unable to veto the lifting of incapacity by refusing to sign the declaration. The amendment would not prevent him from signing it. Amendment 18A, which applies to section 2, would work the other way round. Although that situation would not happen, my amendments would give the public the assurance that somebody who might get the job if the head honcho were to demit office would not be able to orchestrate such a situation.
I move amendment 1.
I congratulate Stewart Stevenson on his adherence to the Protestant work ethic, although I am not sure that many of his colleagues, or anyone else, would queue up to do the same.
Stewart Stevenson raises important points in his amendments. We have a responsibility to get emergency legislation right even though we do not have a proper opportunity at stages 2 and 3 to explore all the substantive issues in the bill or to get answers to our questions. Although Stewart Stevenson's amendments would allow us to do that to some extent, I cannot guarantee that I will support him should he press his amendments to a vote.
Unlike Alasdair Morgan, I do not thank Stewart Stevenson. He wants to ensure that inner house judges who do not sign a declaration of incapacity are made aware that others have done so. If we needed to do that, we would be suggesting that it is beyond the competence of the judges to organise themselves. If that were the case, we would also need to safeguard the wider public from a cabal taking control in other situations. It would suggest that there is something more fundamentally wrong with our judicial system, and more properly its office holders, if they were predisposed to act in that way. If that were the case, Stewart Stevenson's amendments alone would be unlikely to rectify the situation.
Similarly, the amendment that would produce—no, that amendment is in group 2.
I am glad that everything is becoming clearer by the minute and I thank Stewart Stevenson for giving me advance sight of his speaking notes, although he was obviously trying to confuse me by putting his group 2 notes among those for group 1.
I have considered the group 1 amendments that would deal with the procedure that is needed to establish the incapacity or the end of incapacity of the Lord President or the Lord Justice Clerk. As Stewart Stevenson said, amendment 1 is to be read with amendment 4, which would require that a copy of the declaration that is signed by at least five judges be sent to the other judges of the inner house who did not sign it. Although I agree that each serving judge of the inner house who did not sign the declaration would be fully entitled to be made aware of what had happened—on which Margaret Mitchell made her point—I suggest that in the supreme courts there would be no question but that all the inner house judges would be involved by the Lord Justice Clerk in an understanding of what was being done in their names. Amendments 1 and 4 are therefore not necessary.
The second part of amendment 4 would effectively give a veto to two judges of the inner house who were not in favour of the declaration that had been signed by at least five judges—Gordon Jackson made a valid point about that. It is not the kind of situation in which any kind of veto ought to be given to a minority of judges in the face of the clearly expressed view of a majority of members of the inner house. I therefore suggest that amendment 4 should not be agreed to.
I thank the minister for giving way—I would have made a speech in the debate, but the shortness of time for consideration makes it difficult to take in what Stewart Stevenson proposes.
I am not against the idea in principle of giving notice to other judges that a declaration of incapacity has been signed. However, is it necessary for us to enshrine that in legislation, or should we give the judges responsibility for informing others? One way or the other, it is sensible that the other judges get to see the signed declaration.
I know that there will be no argument about which judge has seniority, but just in case, Stewart Stevenson's suggestion would be a good check and balance if one judge believed that another of the judges should exercise the Lord President's functions because he or she had more years' service. I am happy for the proposal not to be included in the bill, but I believe that the idea is good in principle.
I assure Pauline McNeill that we are not anticipating a situation in which the judges would not meet to discuss such matters. As I said this morning, the important point is that we are trying to put in place a legislative framework that will allow the judges to make decisions and to take control of matters in the correct and proper way, given their independence from Government. I do not think that such a provision should be in the bill, although I point out that there is an understanding that all the inner house judges will want to be made aware of what is happening.
Given that amendment 5, which is to be read with amendment 7, deals with almost the same points as amendment 4, it is unnecessary and I propose that it be rejected.
Amendments 8, 8A and 9 seek to remove the name of the Lord Justice Clerk from the list of judges who must sign a declaration that the Lord President is fit to resume work. We must be careful not to suggest that the Lord Justice Clerk would behave in anything other than an entirely honourably way in deciding whether the Lord President is fit to return to work. Indeed, as I have already indicated, at least four other judges would be involved in the process. As a result, I do not believe that the amendments are necessary.
I am persuaded by the minister's explanation of why we should reject amendment 4, which seeks to permit the appointment of a temporary Lord President to be vetoed by two or more judges of the inner house. However, surely the same argument should apply to amendments 8, 8A and 9. After all, as the bill stands, one judge alone—the Lord Justice Clerk—could have a veto.
I understand Stewart Maxwell's point. However, in such a situation the Lord Justice Clerk would be the most senior judge in the country; it would be wrong for Parliament to suggest that he might not act honourably or that he might act in a way that was contrary to the interests of progressing the courts' business.
I have already dealt with amendment 10, which I feel is unnecessary. Just as Stewart Stevenson's comments on amendments 11, 14, 15, 17, 18, 18A, 19 and 20, which concern incapacity of the Lord Justice Clerk, mirrored his comments on amendments that would deal with incapacity of the Lord President, my comments on the amendments mirror my comments on procedures to establish the incapacity or the end of incapacity of the Lord President.
In light of this—albeit short—debate, I hope that we will all focus on what the bill needs to do, and that Stewart Stevenson will not feel the need to press amendment 1.
Before I call Stewart Stevenson, I remind members that mobile phones must be turned off, and not left on standby or silent mode. If they are not turned off, the official reporters will not be able to hear what members are saying.
My purpose in lodging the amendments was to give the minister the opportunity to put on the record some very helpful comments. I now seek the Committee of the Whole Parliament's consent to withdraw amendment 1.
Amendment 1, by agreement, withdrawn.
Group 2 is on the number of judges that will be required to certify incapacity or the end of incapacity. Amendment 2, in the name of Stewart Stevenson, is grouped with amendments 6, 12 and 16.
Amendments 2, 6, 12 and 16 would make the same change in different parts of the bill and would address the point that I and Jim Wallace raised this morning, which was that the size of the inner house might vary or that vacancies might arise. At the moment, changing the words
"5 judges of the Inner House"
to
"half of the judges in the Inner House"
will have no practical effect. However, if the size of the inner house should vary at any point, my suggested change will preserve the policy intention.
I move amendment 2.
We will reject amendment 2 because we are perfectly satisfied with the bill's wording. If the complement of the inner house were ever to be increased, references to it in other legislation would have to be amended to reflect that change. That would be the correct time to lodge such an amendment. At the moment, amendment 2 is simply unnecessary.
Amendments 2, 16, 12 or 16 seek to replace the term
"5 judges of the Inner House"
with the phrase
"half of the judges of the Inner House then serving".
The current complement of the inner house is 10 and it cannot be increased without the introduction by ministers of a formal order. There are no plans for any such order to be made in the foreseeable future. The stipulation of five judges will ensure that the clear majority of the judges support a motion to declare that the Lord President is incapacitated. Stewart Stevenson will, being a mathematician, know this, but I would have some concern that if we were to substitute Stewart Stevenson's term—namely "half of the judges"—in certain circumstances we could be in a situation in which half equals 4.5 or another, similar figure. I say that not to be flippant but to ensure that we understand that what we are trying to do is to ensure that we have a majority from the present complement. I therefore suggest that the group of amendments is unnecessary. Again, I hope that Stewart Stevenson will not press amendment 3 at this stage, although I suggest that Parliament should reject it if he does.
Just in case the minister continues to think that I am mathematically incompetent—only my wife is allowed to say that—I have not deleted the words "at least" that precede "half"; therefore the provision would continue to operate on an integral rather than a fractional basis. However, the minister has had the opportunity to put on the record the appropriate remarks in that connection, so I seek the consent of the Committee of the Whole Parliament to withdraw amendment 2.
Amendment 2, by agreement, withdrawn.
Amendment 3, in the name of Stewart Stevenson, is grouped with amendments 13 and 21.
Amendments 3 and 13 contain essentially the same policy position. They simply give the Committee of the Whole Parliament the opportunity to consider whether there should be a minimum period of incapacitation before we can allow the judges to decide on incapacity. I have arbitrarily chosen 35 days, or five weeks. Neither my pals nor myself have ever managed to get such a long holiday, which is why I came up with 35 days; I shall not adhere to that figure particularly strongly.
Amendment 21 is a different policy issue. It would extend very slightly the definition of incapacity to include the general heading, "or unavailability". I referred to holidays, which are an example of what would otherwise not be captured by that section. If a judge were to go to Colombia and be kidnapped by the rebels there, that might make him incapable of doing the job.
Why would he go to Colombia?
Well—I have been there. His being kidnapped would not necessarily mean that he was unhealthy, but the amendment might provide a useful extension of the definition of incapacity, which members might consider. I shall listen carefully to what the minister has to say.
I move amendment 3.
The Conservatives will reject amendment 3 on the basis that it would introduce unnecessary delay and uncertainty to the process. Obviously, that is not to be welcomed. On amendment 13, which would substitute incapacity with unavailability if the circumstances that Stewart Stevenson outlined were to prevail, I suggest that that would be a disciplinary matter rather than one involving incapacity.
I shall resist the temptation to follow up on that exchange between the Opposition parties. As Stewart Stevenson outlined, amendment 3 would require a period of at least 35 days to pass before the procedure could be implemented. I appreciate the thinking behind the amendment, but I am not persuaded that it would be wise to include a specific time limit, particularly one that is, by Stewart Stevenson's admission, arbitrary.
In the unfortunate circumstances of a Lord President or a Lord Justice Clerk suffering a serious or catastrophic physical injury, about which the medical prognosis was gloomy from the outset, I am not persuaded that it would require 35 days to deal with that. It would not make sense to have to await the passage of a specified period before taking the necessary measures.
Amendment 13 deals with the incapacity of the Lord Justice Clerk. For the same reasons that I have outlined in relation to the Lord President, I suggest that the amendment is not necessary.
Amendment 21 would extend the definition of incapacity to include unavailability as well as health. A couple of suggestions have been made as to what that might mean in practice. I assure the Committee of the Whole Parliament that we gave a lot of thought to the definition of the word "incapacitated" for the purposes of the emergency bill. We decided that the proper course was to limit the statute to its dealing with the real situation that is before us, namely that the Lord President is unable, for reasons of ill health, to exercise his functions.
If the words "or unavailability" were added, that would give rise to wider considerations about the definition of "unavailability". We should guard against situations involving the Lord President simply being out of the country on holiday in a remote place—not necessarily kidnapped, but nonetheless uncontactable for a time in a remote place. We would not want such a provision to be used in such situations. It seems that it would be better to limit the bill strictly to dealing with the real situation that faces us, namely the ill health of the current Lord President or of a future Lord President. I invite Stewart Stevenson to consider whether he wishes to press an amendment that is based on—I hope—a misunderstanding about what we are trying to do.
At stage 1, I raised the question of what guidance should exist, if any, in relation to determining incapacity. I am quite satisfied by the Executive's position on the matter—such guidance should not appear in the bill. Essentially, the bill addresses situations of temporary ill health. I cannot think of any other circumstances in which the term "incapacity" would be used.
I would want to know that judges had some kind of procedure in place. I do not want to scrutinise such situations and I do not want them to come before Parliament, but I would want to know that there were guidelines. I would be unhappy were judges simply to decide on a whim what they would determine to be "incapacity". There should be guidance, especially on whether the period concerned is to be two months, three months or four months. In this case, I believe that the Lord President has been absent for six months. That is too long a period for another judge to exercise the powers that we seek to grant in the bill. I would be happy if the minister could confirm that guidance will be drawn up by judges following the passage of the bill.
I had intended to deal with this matter at stage 3 had Pauline McNeill not raised it now, at stage 2. She makes a good point about everyone concerned needing to be satisfied that the inner house judges will establish a fair and proper process for determining incapacity. As the bill makes clear, the First Minister will have to receive from the judges a copy of a declaration in writing before the process will be triggered. I think that we can rely on the judges to obtain appropriate medical advice and so on.
It is important for me to give the commitment that, as soon as the bill is passed, I will offer to meet the Lord Justice Clerk to discuss the matter further. I am sure that he will share members' concern that the very serious steps that judges will have to take must be wholly justified by the circumstances.
Once again, we have given the minister the opportunity to clarify and expand on some of the bare words in the bill. That has been useful.
Amendment 3, by agreement, withdrawn.
Amendments 4 to 8, 8A, 9 and 10 not moved.
Section 1 agreed to.
Section 2—Functions of the Lord Justice Clerk during vacancy or incapacity
Amendments 11 to 18, 18A, 19 and 20 not moved.
Sections 2 and 3 agreed to
Section 4—Interpretation
Amendment 21 not moved.
We move to group 4, on determination of seniority. Amendment 22, in the name of Stewart Stevenson, is the only amendment in the group.
Amendment 22 would provide for an extension of the definition of seniority when judges have been appointed on the same day. The definition does not include the Lord President or the Lord Justice Clerk, who have seniority by virtue of their positions; it would extend only to the remaining judges in the inner house. In the case of twins who were serving simultaneously in the inner house, it would still be possible in the usual course to separate them by the minutes that their births were apart. I will be interested to hear what the minister has to say.
I move amendment 22.
I congratulate Stewart Stevenson on trying to cover all possible eventualities, but I remind the Committee of the Whole Parliament that we are dealing with an emergency bill that deals with the circumstances in which we currently find ourselves. I therefore believe that amendment 22 is unnecessary. As I said in summing up the stage 1 debate this morning, in respect of the current complement of the inner house—I am not aware that there are any twins—all 10 were appointed on different dates and seniority is based on the date of appointment to the inner house. There is, therefore no possibility that we will be faced, for a number of years, with a situation in which two or more judges were appointed at the same time, as Stewart Stevenson describes. Therefore, I do not think that amendment 22 is necessary and I ask Stewart Stevenson to withdraw it.
Is the minister aware that the odds of that happening are 1,723:1? I would be more than happy to show her my calculation afterwards.
I am obliged for that information, for which I am sure Committee of the Whole Parliament is grateful.
I think Bill Aitken is wrong. If there are 33 people in a room, the odds of two people having birthdays on the same day—albeit in different years—are slightly different.
I am grateful for the minister's remarks. It is clearly the policy of the current minister—and, I hope, successive ministers—to avoid appointing judges to the inner house on the same day, thus preserving the integrity of our legislation. I seek to withdraw amendment 22.
Amendment 22, by agreement, withdrawn.
Sections 4 and 5 agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill.
Meeting closed at 15:58