Scotland Bill

Debate between Lord Hope of Craighead and Lord Mackay of Drumadoon

Tuesday 19th January 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

Just as a footnote to the point that noble Lords have made about Fort Kinnaird, one can see from the Crown Estate commissioners website the structure of the venture that has been described. The Crown Estate commissioners themselves have,

“a 50 per cent interest in an English Limited Partnership which owns Fort Kinnaird Retail Park in Edinburgh”.

The venture is a partnership. The ownership and presumably the management of Fort Kinnaird are in the hands of the partnership and I take it that the commissioners draw a revenue out of that arrangement.

That takes one to the essence of the role of the commissioners, as described on their own website, which is one of management of the resources in order, as they put it,

“to deliver the best value over the long term”.

Of course, the interest for the UK Government at present is in the revenue. The commissioners make it clear that their function is to pay all the “annual revenue profit” to the Government. I would have thought it absolutely crucial to maintain that position, that in so far as the assets are concerned, they are managed in the broad interest of maintaining the assets for the best value. Of course, the revenue would then be transmitted to the Scottish Government, as would be consistent with the present position. That distinction between capital and revenue management and payment is absolutely crucial to the point that various other noble Lords have been making.

[Lord Mackay of Drumadoon (CB)]

As my name can be found in some proximity to the amendments that are being discussed in this opening round of speeches, I do not intend to go into any great detail about what we have heard. I am, however, struck by the fact that people are talking as if the best way forward will involve a significant measure of respect and agreement and will not give any excuse for a deterioration in the relationship between the voters, which was to some extent apparent when devolution came along.

It falls to me, in view of one of the speeches that we have heard, to declare an interest that during a period of years when I was actually a Member of your Lordships’ House, prior to becoming a High Court judge in Scotland, I spent quite a lot of my time working with companies in the electricity industry. It fell to me to give them advice when they sought it and to work with them on a practical basis when they set about seeking the erection of a new power station or some other building associated with a power station or the erection of new electricity wires to take electricity to different parts of Scotland and, indeed, further afield.

I appear in this debate having received a brief from the Law Society of Scotland, which takes an interest in these matters. It is clear from what has been suggested to me that it is not alone in encouraging agreement. On that basis, I invite Members of your Lordships’ House to rely on the proposals which, as I say, are proximate to my signature.

Consumer Rights Bill

Debate between Lord Hope of Craighead and Lord Mackay of Drumadoon

Monday 24th November 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, the amendment raises a short but important point about the appointment of judges to sit on the Competition Appeal Tribunal. It has the support of the Lord Chief Justice of England and Wales, who brought the matter to my attention.

Clause 80 and Schedule 8 to the Bill make significant changes to the jurisdiction of the Competition Appeal Tribunal, which was established by the Enterprise Act 2002. At present, the tribunal hears appeals from the competition authorities and regulators. The effect of Schedule 8 will be to expand its jurisdiction so that it will become, in effect, a specialist court hearing private competition appeals from all parts of the United Kingdom. I understand that that part of the Government’s proposal has received widespread support. It cannot be disputed that, if it is to cope effectively with this increased case load, the tribunal will require to be staffed by a sufficient number of judges from all parts of the United Kingdom who are equipped to deal with it.

The position, at present, is rather unusual. The judges of the Chancery Division in England and Wales are, on and by virtue of their appointment, authorised to sit as chairmen of this tribunal. However, under the current legislation, their appointment terminates after eight years and is not renewable. This is found in paragraph 2 of Schedule 2 to the Enterprise Act. This is not the best use of that resource. The effect of the eight-year terminus is that their expertise is then lost, although they may continue to serve as judges in the Chancery Division for many years later.

The fact that the system of appointment that I have described applies only to the Chancery Division has another unfortunate consequence, which is that other sources of expertise among the judges are not being used. Practitioners with experience of competition law are appointed to the Queen’s Bench Division but are not automatically authorised to sit on the tribunal. The effect of this is that, to be able to sit as a chairman, they would need to apply to the Judicial Appointments Commission, enter and be successful in a competition. For obvious reasons, serving judges are not keen to undergo that process and I understand that, in practice, they do not do so. Moreover, no Scottish or Northern Irish judges can currently be appointed to the tribunal either, without successfully completing an equivalent recruitment process in their respective jurisdictions, which, for the same reasons, has no attraction for them either. The absence of judges from those jurisdictions is all the more unfortunate as, under the changes being introduced by the Bill, the tribunal, with its widened jurisdiction, can be expected to hear more cases from Scotland and Northern Ireland than it does at present. One has to bear in mind that there is a process of appeal. Appeals from tribunals sitting in Scotland and Northern Ireland will go to the Court of Session and the Court of Appeal respectively. The absence, on the tribunal, of judges from those jurisdictions is bound to be noticed and this could raise sensitive issues which are best avoided.

The problem that I have briefly outlined was recognised in the Government’s consultation paper Streamlining Regulatory and Competition Appeals. In paragraph 5.13, it is noted that,

“the practice of requiring judicial officeholders to undertake a second appointment … for an equivalent office acts as a bureaucratic barrier to enabling any of these judges to sit in the CAT”.

Legislation was therefore proposed that would enable the heads of the respective UK jurisdictions to select and appoint judges whom they regarded as appropriate to sit as chairmen. Those would be judges of all divisions in the High Court in England and Wales, irrespective of the division to which they were appointed, and judges sitting in the Court of Session in Scotland and in Northern Ireland. They would be able to continue sitting as chairman without any eight-year limitation, which is the position under the Act at present.

The amendment has been proposed because, as presently framed, the Bill does not give effect to the proposal outlined in that consultation paper. If the Bill remains as it is, the bureaucratic barrier will remain in place. That is a matter of great concern to the Lord Chief Justice as head of the judiciary in England and Wales. In his view, with his knowledge of the resources that would otherwise be available to him, it is depriving the tribunal of some of the ablest judges to serve that jurisdiction. It is to be expected that the same sentiments will be felt in Scotland. I know, from recent discussions with people there, that they have had to appoint a leading member of the Bar because no judge is prepared to undergo the process and sit on the tribunal.

I need not go through the provisions, which are set out quite clearly in Amendment 41B. The essence, the key provision, is in subsection (4), which provides:

“Upon the nomination of the appropriate senior judge”—

that is, the senior judge in each jurisdiction—

“any judge of the High Court of England and Wales, the Court of Session or the High Court of Northern Ireland shall be a member of the panel of chairmen and shall hold and vacate office in accordance with the terms of their nomination”.

Of course, that process relies on the judgment of the senior judges, but they know their judges very well and are well able to judge those who are appropriate to sit on the tribunal and can be relied on to make the appropriate choices.

Finally, I draw the Minister’s attention to a slip in the amendment. It is a very small misprint, in subsection (2). The reference there to paragraph 2(4) of Schedule 2 should be to paragraph 1(4) of that schedule. That is the paragraph that is set out in subsection (4), from which I have just been quoting.

For those short reasons, I beg to move.

[Lord Mackay of Drumadoon (CB)]

My Lords, Amendment 41CA is in the same group as the amendment moved by my noble and learned friend Lord Hope of Craighead. It should be understood that I agree with everything that my noble and learned friend has said in support of his amendment. The amendment in my name is a much shorter form of that. It sets out an addition to Schedule 2 to the Enterprise Act 2002:

“A judge of the High Court of England and Wales, the Court of Session or the High Court of Northern Ireland shall be eligible for appointment as a chairman if nominated by the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland respectively”—

who are all the senior judges in their respective jurisdictions.

I do not think that the House would be assisted by my going over the detail of the submission made by my noble and learned friend Lord Hope of Craighead. The main point that I wish to stress is that, when one looks at the consultation document, to which reference has been made, it would appear that the purposes that the Government have in mind for their intended legislation are precisely the purposes that would be served by Amendment 41B, if it were accepted, and likewise my own Amendment 41CA, if the same thing happened to it.

It is instructive to bear in mind, therefore, that in paragraphs 5.14 and 5.15 of the consultation document, the Government explicitly say that they are “minded to legislate”: first, to deal with the appointment problem encountered in Scotland; and, secondly, to deal with the fact that those who achieve appointment as chairmen of the Competition Appeal Tribunal can serve for only eight years.

In conclusion, if the Minister is of the view that the government policy has changed, it would be instructive to the judges, both north and south of the border, if that change in policy was made quite clear. If there is some concern about the precise drafting of either my amendment or that moved by my noble and learned friend, it could be easily corrected in time for Third Reading.