By Basil Fernando –

The government, severely criticized for the arbitrary removal of Chief Justice Shirani Bandaranayake, made much out of an article written by Dr. Mark Cooray (published in the government’s mouth piece “Daily News” in three parts). Later it was put into a booklet and widely circulated.

However, what is stated in Dr. Mark Cooray’s article is blatantly wrong.

Dr. Mark Cooray cites what he calls analogous provisions to the Sri Lankan Constitution from the law of other jurisdictions. For example, he cites Articles 33 and 135 of the British Constitutional Reform Act of 2005, which laid down the rules for the removal of judges in Northern Ireland, and also civil and legal provisions from the United States. Then he states that, “Like the Americans, the British too have placed the fullest confidence in their legislature to be able to make a considered decision to remove a judge of the highest court”.

Dr. Mark Cooray has completely misinformed himself about the said Article 33 and the procedure relating to the removal of a judge in England. He assumes that mere address in the Parliament could lead to the dismissal of a judge. However, its scope is quite different.

He wrote,

“Britain is the head of the Commonwealth and we may perhaps gather what exactly was meant in terms of the Latimer House Principles by studying the British Constitutional Reform Act of 2005 which was promulgated long after the ratification of the Latimer House Princples was formulated. One of the most radical aspects of the British constitutional reform was that a new 12-member Supreme Court was created to be highest court in Britian and it would function outside the House of Lords breaking the centuries of British tradition. The interesting thing is to note how these judges of the Supreme Court were to be removed. Article 33 of the British Constitutional Reform Act of 2005 is as follows:

“A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament.”

That is all this huge 323-page Act of Parliament says about the removal of judges of the Supreme Court. This provision to remove Supreme Court judges basically follows the time honoured British practice.

There is no talk of an ‘impartial tribunal’ or about filing charges, hearings and the right to defend oneself. Somebody files a motion in parliament and after due debate, Parliament will decide whether to sack or retain the judge. ”

Wrong

However, law in UK on removal of judges is very different.

Essentially, Hansard shows that the potential improper removal of the judges by the executive was a matter which troubled the House of Lords during the parliamentary debates leading to the adoption of the Constitutional Reform Act. The relevant portions of the House of Lords debates are below.  In summary, essentially there were 2 proposals from members of the Lords to introduce safeguards on what ultimately became section 33 of the Act (which was clause 27 and clause 24 at various points during the drafting of the Bill).  Both of these proposals were ultimately withdrawn, despite the concerns of the House of Lords, due to a promise by the Minister that the then head of the Supreme Court (Lord Bingham) was working with the Government to set up a protocol surrounding judicial discipline and removal of judges.  Notably in the debates you will see that although prior to the CRA 2005 the same provision had existed under previous law for hundreds of years, the power to remove a judge has not been exercised in England and Wales.

That protocol ended up developing into something much bigger.  It led to the setting up of an Office for Judicial Complaints.  The website of that office is as follows:

http://judicialcomplaints.judiciary.gov.uk/index.htm

The Office’s mandate is to assist the Government in regulating the behaviour of judges.  Its tasks and procedures are strictly circumscribed by subordinate legislation (regulations) and publications and the website is as follows:

http://judicialcomplaints.judiciary.gov.uk/publications.htm

The primary regulation (which applies to the removal of Supreme Court judges) is found in the following website:

http://judicialcomplaints.judiciary.gov.uk/docs/Judicial_discipline_regs_-_consolidated_version.pdf

The procedure is essentially that where a complaint is made about judicial misconduct, an initial inquiry is conducted to see if the complaint has any merit.  If it does, another judge is appointed to conduct an independent investigation of the complaint.  The investigating judge receives representations from various parties (including the judge in question).  The investigating judge then gives advice to the Lord  Relavant Chancellor about what to do.  The Lord Chancellor and the Lord Chief Justice then make a decision (after receiving further representations).  There is then a review body (comprised of other judges and lawyers) who can conduct an appeal process (again after receiving representations).  The review body then makes a recommendation to the Lord Chancellor and the Lord Chief Justice who then take a decision on the judge.

EXTRACTS FROM HANSARD RELEVANT TO DISCUSSION OF PROCEDURE FOR REMOVAL OF JUDGES IN CONSITUTIONAL REFORM ACT 2005 is as follows:

 

HOUSE OF LORDS DISCUSSION OF CONSTITUTIONAL REFORM BILL, AT COMMITTEE STAGE, 14 OCTOBER 2004, COLUMNS 93-96

11 Oct 2004 : Column 93

…

The noble Baroness said: I beg to move the Amendment No. 88BC, which stands also in the names of my noble friends the Duke of Montrose and Lord Norton of Louth.

This is one of two important amendments. Clause 27 states simply:

▪     “A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament”.

It will be noted that there is no definition of what good behaviour is. The Government’s Explanatory Notes state that holding office during good behaviour reflects the present position for Lords of Appeal in Ordinary, and that removal only by resolution of both Houses of Parliament is consistent with the position of all senior judicial office holders. I understand that well.

My noble friends and I strongly agree with the view of the Law Society of Scotland that this is simply not adequate for modern times and in the context of this Bill. The previous discussion of plans for the Supreme Court centred several times on the different situation

11 Oct 2004 : Column 94

when a Minister who is much more political than the Lord Chancellor is in charge and the intrusion of politics is much more probable.

It is therefore necessary to provide better means of investigation into a judge’s behaviour. It would be quite possible for a Minister to have it in for a judge, as it were, for political or other reasons or to be prejudiced against him. It is important to know exactly what bad behaviour and good behaviour are.

The amendment follows closely Section 95 of the Scotland Act 1998 on such issues. It provides for a process of investigation by a tribunal which the Minister will appoint, and for guidance on what constitutes unacceptable behaviour. This may or may not meet the wishes of distinguished noble Lords who want to do away with the clause altogether, but it is an attempt, based on recent legislation north of the Border, to improve protection of judges of the Supreme Court in modern times. The Government should not brush this off; it could happen should the Bill remain as it is. I await with interest the comments of Members of the Committee and the Government. I beg to move.

Lord Goodhart: I have considerable sympathy with the amendment. For more than 300 years, it has been a rule that senior judges from the High Court upwards in England and Wales are removable only by an address in both Houses of Parliament. It was once done in respect of an Irish judge in the early 19th century, when Parliament had jurisdiction over Ireland, but it has never been done in relation to a judge in England and Wales. The nature of the powers is uncertain, and the procedure that has to be gone through before an address can be made is unclear.

We are talking about the Supreme Court, which is at the centre of the legal system for the entire United Kingdom. To leave it in the basic wording of Clause 27 is inadequate, as it is very unclear what, if any, procedure is appropriate to obtain the necessary address of both Houses of Parliament. Something along the lines of the amendment moved by the noble Baroness, Lady Carnegy, which is based on the draft by the Law Society of Scotland, is worth careful consideration. It may be that the wording is not ideal and could be improved, but it is much better to spell out in some detail the circumstances in which a justice of the Supreme Court can be removed rather than leaving it in the general and vague terms of the existing Clause 27.

The Duke of Montrose: I might add to the comments of my noble friend Lady Carnegy. She talked in reasonable terms about what the pitfalls might be, but we are supposed to envisage a time in the distant future when people may not be as reasonable as we all tend to be at present. It has happened in other countries that do not have our traditions. If a judge decides a case in a way that the Government do not like, does that constitute good or bad behaviour?

9 p.m.

Baroness Ashton of Upholland: I am grateful for the clarity of the points that have been made by Members of the Committee. As the noble Lord, Lord Goodhart,

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said, the clause is drawn from the provisions that govern the possibility of removal from office of Lords of Appeal in Ordinary and other senior judges. It might not have been done for more than a century. I am interested to know that it may be substantially longer than that, as the noble Lord, Lord Goodhart, suggested. Appointed by the sovereign and removed from office only by the sovereign, and of course only on address to the sovereign by both Houses of Parliament. That is a powerful brake on executive pressure on a senior judiciary, and ensures that the possibility of removing a senior judge from office is reserved for very serious cases and is extremely rare. It is so rare that it has never been done in respect of a Lord of Appeal in Ordinary.

There is quite a lot of protection against the kind of pressure that concerns the noble Baroness, Lady Carnegy. The Government are not particularly keen to see such a prescriptive way of setting out these matters in the Bill. We are concerned about inconsistency because it is not done for other senior judges. I take the point that the amendment is based in part on Section 95 of the Scotland Act 1998. Members of the Committee will know that it does not have the detail of that section, which of itself could lead to lack of clarity.

Having said that, we feel that it is better to be guided by the views of the Law Lords. We are currently involved in detailed discussions with the Law Lords on the development of a complaints and discipline protocol. I suggest that we include in those discussions the comments that have been made. An announcement will be made in due course, and I pledge that those who have expressed particular interest will be notified as soon as possible. On that basis, I hope that the amendment will be withdrawn.

Baroness Carnegy of Lour: I thank the Minister for her encouraging reply. I give my grateful thanks to the noble Lord, Lord Goodhart, who, with all his knowledge and experience, gave his support and, indeed, my noble friend. The Minister said that it has never been done, but we are in a very different situation. Today, we have heard about how the present Lord Chancellor in his position might be replaced by an ambitious Member of the House of Commons with political aspirations. He may meet problems with the Law Lords when they find fault with his legislation and so on, which he may be able to pin down to certain members of the Supreme Court. When we have a very

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much more satisfactory arrangement at the moment, it is difficult to envisage that we are opening up new possibilities.

With the greatest respect to the Law Lords who, of course, have experience second to none of how to keep the integrity of the Supreme Court and keep it separate from government and the legislature, we are in a moving scene. Quite a lot of people like myself who are not even lawyers can see possibilities that worry them. So I hope that the noble Baroness will pursue this matter in her discussions. If we do not get a satisfactory answer before the next stage or at least the stage after that, we may come back with this amendment. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

HOUSE OF LORDS DISCUSSION OF CONSTITUTIONAL REFORM BILL, COMMITTEE STAGE, 14 DECEMBER 2004, COLUMNS 1227-1230

14 Dec 2004 : Column 1227

…  Clause 24 [Tenure]:

The Duke of Montrose moved Amendment No. 101:

▪     Page 11, line 2, leave out lines 2 and 3 and insert—

“(1) A judge of the Supreme Court may be removed from office only by Her Majesty and any such recommendation to Her Majesty shall be made by the Minister. 
(2) The Minister shall make such recommendation if (and only if) the recommendation has been approved by both Houses of Parliament. 
(3) Provision shall be made for a tribunal constituted by the Minister to investigate and report on whether a judge of the Supreme Court is unfit for office by reason of inability, neglect of duty, or misbehaviour and for the report to be laid before Parliament. 
(4) The Minister may only seek the approval of Parliament under subsection (2) if— 
(a) he has received from the tribunal constituted under subsection (3) a written report concluding that the judge is unfit for office by reason of inability, neglect of duty or misbehaviour and giving reasons for that conclusion, and 
(b) he has consulted with the Prime Minister.”

The noble Duke said: My Lords, this amendment deletes Clause 24 and inserts a new provision for the removal of a judge of the Supreme Court. The Bill currently provides that a judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament. There is no provision for investigation into the judge’s behaviour, and no definition of good behaviour in the Bill.

This amendment, which closely follows Section 95 of the Scotland Act 1998, as mentioned in Committee, makes provision both for a process of investigation and for guidance on what constitutes unacceptable behaviour. Such behaviour is that which renders the judge unfit for office by reason of inability, neglect of duty or misbehaviour. These provisions clarify the provisions currently in the Bill and bring the process for removal of judges of the Supreme Court into line with recently approved legislation on the removal of judges.

Perhaps it is the unfortunate recent experience of the Scottish justice system in having had to remove a sheriff, and I believe possibly also one other officer, that has concentrated the minds of those north of the border of the need to be rather clearer in the headings that might trigger a move to remove a judge. They are included in Section 95 of the Scotland Act. This is particularly important in these days of the investigative press, who might try to undermine the reputation of a judge on criteria that they themselves have selected.

14 Dec 2004 : Column 1228

At present, according to the noble Baroness, Lady Ashton, in her reply on 11 October, the Government are building their hopes on a,

▪     “draft complaints and discipline protocol”.—[Official Report, 11/10/04; col. 95.]

The noble Baroness has kindly put me in touch with officials in her department on this matter, and they tell me that the draft procedures have been prepared and that the Secretary of State is currently consulting the noble and learned Lord, Lord Bingham, on his views. This, at present, would appear to have the form of an extra-statutory provision, which is not subject to parliamentary scrutiny, and neither will any future variations that are contained for it be available for scrutiny. It is really not a satisfactory way to proceed when we are dealing with matters of such fundamental constitutional importance.

We should ask the noble Baroness to lay the draft complaints and discipline protocol before the House, so that we can all consider its effect within this new development in our constitution. It surely is not something that needs to be treated as a secret. Then we can form a decision as to whether certain criteria, such as those contained in this amendment, should be in the Bill. I ask the Minister if we could have sight of this protocol. I beg to move.

Baroness Carnegy of Lour: My Lords, I support my noble friend in putting his amendment down again. When we discussed this last time, we had a positive response from the noble Baroness, but it has not really come to very much. We would like to know rather more strongly what the Government are going to do about this.

The main point of the amendment is the new situation in which we find ourselves. In future, a political Minister in charge might well take against a particular judge, and he might well be supported by the Home Secretary, who might want to put pressure on that judge. The Minister made the point in Committee that there was strong protection for the judge and the public—that of Parliament and the Queen, who would have to agree. However, we all know just how compliant the House of Commons can be with a big majority. Her Majesty would have great difficulty in agreeing to something that Parliament disagreed with.

The existing criteria for good behaviour have, I understand, never been tested in the context of the highest court in the land; that is a significant fact. The wording in the Scottish legislation, as my noble friend said, was included because of the problems that arose when a sheriff was unsatisfactory and had to be removed. It was found that the legislation was really too loose. The Government are being a little sanguine about this. They might be very wise either to accept the amendment, or to make a similar provision.

I notice that the noble Lord, Lord Goodhart, is not in his place. Perhaps he does not wish to support me on this occasion, and I am sorry, because his advice was most helpful.

14 Dec 2004 : Column 1229

…  Baroness Ashton of Upholland: My Lords, in that case I will not address it.

I am grateful to the noble Baroness and the noble Duke. They have indicated that they have raised this, I have corresponded with them, and I have put the noble Duke in touch with officials. The critical point is that we are in detailed discussions with the Law Lords, as the noble Duke indicated. I am told that these are now at a very advanced stage, which is good news, and that an announcement will be made shortly. The critical thing, as the noble Duke particularly indicated, but the noble Baroness was also concerned about, is what will happen with that document. I understand that the agreed protocol will be a public document and will be made available—

The Duke of Montrose: My Lords, I am most grateful to the Minister for giving way. It interests me that it appears that the Government wish to present this document as a complete fait accompli that is all tidied up and about which there is no further question. We would appreciate seeing it in the draft stage; especially given the timing of this Bill’s progression, even if it was not completely agreed and tidied up, we would still appreciate seeing it.

Baroness Ashton of Upholland: My Lords, we very much wish to be guided by the Law Lords on what the protocol ought to say. I understand the concern of the noble Duke, but it is appropriate to be guided in this

14 Dec 2004 : Column 1230

context by the Law Lords. Certainly, when I have something to give the noble Duke, I shall be very happy to do so at the earliest opportunity. I am sure that he will appreciate that we want to have it in the form agreed with the Law Lords in order to present it. I shall happily undertake to do so.

The Duke of Montrose: My Lords, I am grateful to the Minister for her reply, although we are looking for slightly more than she can give us at present. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.  …