Schedule 1 — The Judicial Appointments Board for Scotland

Judiciary and Courts (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:45 pm on 25th September 2008.

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Photo of Alex Fergusson Alex Fergusson None 3:45 pm, 25th September 2008

Group 6 is on the Judicial Appointments Board, removal of members. Amendment 23, in the name of Bill Aitken, is the only amendment in the group.

Photo of Bill Aitken Bill Aitken Conservative

This matter is fairly simple and straightforward, but nonetheless it is one to which we should attach some importance. Amendment 23 seeks that, in the highly unusual situation whereby someone is removed from the Judicial Appointments Board as a result of misconduct or incompetence, that person has the opportunity to speak in their defence. As it stands, the person can be removed without being able to make any representations or denials of the allegations. That is surely contrary to natural justice. It is highly unlikely that the situation would ever arise, but sometimes we have to legislate for the unusual if not the unique.

A question of fairness and justice is involved. I very much hope that the cabinet secretary can be persuaded to accept amendment 23, which is worthy of support. Of course, if he is not persuaded, I would say that somewhere down the road, if a situation arises in which someone is removed without being granted rights of audience and a hearing, a compliance issue could arise, which might be pursued by that person in another place.

I move amendment 23.

Photo of Robert Brown Robert Brown Liberal Democrat

I support amendment 23. It is a matter of natural justice, and it concerns something that ought specifically to be stated. Grounds are given in schedule 1 for the removal of members. For example, a member can be removed if they have

"failed without reasonable excuse to discharge" their functions, or if they have

"been convicted of any offence".

Does that mean a road traffic offence or something else? The seriousness of the offence must be made clear. Another ground for removal is that the member "has become insolvent"; that is a matter of fact, so no issue arises there. The final ground for removal is that the member

"is otherwise unfit to be a member or unable for any reason to discharge the functions of a member."

Removal cannot occur without engagement between the person concerned and those who are responsible for their removal, so it is entirely appropriate that that should be on the face of the bill. I would be surprised if employment legislation did not give specific rights to people where such circumstances arise. It is important that that should also be the case for an important body such as the Judicial Appointments Board.

Photo of Paul Martin Paul Martin Labour

In the interests of natural justice, we, too, support Bill Aitken's amendment 23. The evidence that we received at stage 1 was powerful in its support of the issue that is raised in amendment 23.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I understand members' genuine concerns, but they are based on a misconception. The bill's provisions on the removal of members are enabling. They set out the circumstances in which the Lord President or, as the case might be, Scottish ministers might consider whether a member should be removed from office. They do not, and should not, prescribe the process to be undertaken.

I understand and sympathise with Bill Aitken's concern that the process should be fair, and that it should accord with the principles of natural justice, as Robert Brown commented. However, amendment 23 is completely unnecessary. It is impossible to conceive of a situation in which the Lord President or Scottish ministers, in contemplating a situation as serious as removing a member from the board, would do so without a proper investigation and discussion with the member concerned.

Amendment 23 would add a rigidity that could have the effect of interfering with the efficient working of the board. If, for example, a member of the board were to disappear, fall into a coma or be so seriously ill that any approach would be entirely inappropriate, there would be no way to move forward. The board might then have to operate with one member short. That would not be a satisfactory result. Amendment 23 applies only to the removal of members of the Judicial Appointments Board, although the bill also provides for the removal of the chair of that board and of members of the Scottish Court Service. An express provision in schedule 1 would create doubt about whether members had a right to be heard before being removed.

With that clarification given and the assurance that I hope to provide, I urge Bill Aitken to withdraw amendment 23. I recognise his sincerity and the genuine basis of his amendment, but he has fundamentally misconceived the situation.

Photo of Bill Aitken Bill Aitken Conservative

Although I am intrigued by the thought of the comatose member of the Judicial Appointments Board, having listened to the cabinet secretary's arguments, I am not persuaded. Similar arguments could be used on practically every issue, such as cases of employment law or when someone faces dismissal from an appointment. I press amendment 23.

Photo of Alex Fergusson Alex Fergusson None

The question is, that amendment 23 be agreed to. Are we agreed?

Members:

No.

Division number 3

For: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Brocklebank, Ted, Brown, Gavin, Brown, Robert, Brownlee, Derek, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Finnie, Ross, Foulkes, George, Fraser, Murdo, Glen, Marlyn, Godman, Trish, Goldie, Annabel, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Harper, Robin, Harvie, Patrick, Henry, Hugh, Hume, Jim, Jamieson, Cathy, Johnstone, Alex, Kelly, James, Kerr, Andy, Lamont, Johann, Lamont, John, Macdonald, Lewis, Macintosh, Ken, Martin, Paul, McArthur, Liam, McAveety, Mr Frank, McGrigor, Jamie, McInnes, Alison, McLetchie, David, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, McNulty, Des, Milne, Nanette, Mitchell, Margaret, Mulligan, Mary, Munro, John Farquhar, O'Donnell, Hugh, Oldfather, Irene, Park, John, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Rumbles, Mike, Scanlon, Mary, Scott, John, Simpson, Dr Richard, Smith, Elaine, Smith, Elizabeth, Smith, Iain, Smith, Margaret, Stewart, David, Stone, Jamie, Tolson, Jim, Whitefield, Karen, Whitton, David
Against: Adam, Brian, Ahmad, Bashir, Allan, Alasdair, Brown, Keith, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, FitzPatrick, Joe, Gibson, Kenneth, Gibson, Rob, Grahame, Christine, Harvie, Christopher, Hepburn, Jamie, Hyslop, Fiona, Ingram, Adam, Kidd, Bill, Lochhead, Richard, MacAskill, Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McKee, Ian, McKelvie, Christina, McMillan, Stuart, Morgan, Alasdair, Neil, Alex, Paterson, Gil, Robison, Shona, Russell, Michael, Salmond, Alex, Stevenson, Stewart, Sturgeon, Nicola, Swinney, John, Thompson, Dave, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John

Photo of Alex Fergusson Alex Fergusson None

The result of the division is: For 71, Against 46, Abstentions 0.

Amendment 23 agreed to.