John Reyes and Richard Garcia entering the House of Lords yesterday.

Gibraltar’s suspended Chief Justice, Derek Schofield, was absent yesterday from the opening session of a three-day hearing at the Privy Council that will determine whether or not he can keep his job.

During five hours of submissions in the heart of the House of Lords, seven of Britain’s most senior judges raised one core question time and again: what does it take to justify removing a senior judge from his post?

The Privy Council, the highest British court for Gibraltar, must decide whether or not to back a recommendation to sack Mr Justice Schofield on the grounds that he is unfit to do the job.

If they opt to reject that recommendation, the judge would expect to be reinstated.

But in opening submissions yesterday, James Eadie, QC, the barrister representing the Gibraltar Government, said the Chief Justice had “disabled himself” through his words and actions.

His position as Gibraltar’s top judge was “untenable”, Mr Eadie said.

FROM GIB TO LONDON

This is a case that spans over a decade but has festered for the past two years and embroiled practically everyone who is involved in the administration of justice in Gibraltar.

The three-day session this week follows Governor Sir Robert Fulton’s decision to refer to the Privy Council the findings of a disciplinary tribunal held last July 2008 in The Mount, Gibraltar.

The tribunal, set up on the advice of the Judicial Services Commission and chaired by Lord Cullen, followed a formal complaint about Mr Justice Schofield from Gibraltar’s top law firms, which said they had lost confidence in the judge.

Last year during several weeks of complex, intense hearings, three senior tribunal judges heard accusations that the Chief Justice had misbehaved in office and was no longer able to carry out his job.

In a lengthy, detailed report, the tribunal found that the Chief Justice’s conduct “repeatedly fell far short of what befitted the dignity of his office”.

The three judges concluded that Mr Justice Schofield was not fit to continue in the post.

Now, from the ramshackle colonial charm of The Mount in Gibraltar, the case has moved to the historic, forbidding grandeur of the House of Lords.

The Privy Council normally sits with no more than five judges.

To underline the gravity of this case, a full panel of seven judges is attending to the matter, including the Lord Chief Justice of England and Wales, Lord Judge.

“We are talking about removing a judge,” said Lord Rodger of Earlsferry at one point during the proceedings.

“What is the standard that justifies removal?”

INDEPENDENCE AND CLASHES

Yesterday’s hearing centred on submissions from Mr Eadie, who raised matters of principles of law and referred the judges to key points of evidence heard during the tribunal, which he said had been a fair process.

Mr Eadie touched on one of the main allegations against the Chief Justice, namely that he stepped beyond the boundaries of his post and attempted to influence political debate, in particular with regard to the new Constitution and the subsequent Judicial Services Act.

Mr Justice Schofield maintains that he was acting in defence of judicial independence and in defence of Gibraltar’s best interests.

Mr Eadie said a judge’s freedom of expression must be balanced by restraint, an argument that generated a lively exchange with the committee.

“We are talking about the removal of a judge who is entitled to a considerable guarantee of independence in the performance of his judicial function,” said Baroness Hale of Richmond, the only female judge on the committee.

That included independence from Government and “clashes… may have to be expected,” she added.

But Mr Eadie said that while judges were entitled to comment on important judicial issues, they should exercise “care and restraint” in doing so.

“If you are going to behave like a politician…the very greatest caution is needed,” he said.

According to Mr Eadie, the Chief Justice had become “…embroiled in deeply political issues in a hostile and sustained battle with the [Gibraltar] Government.”

Mr Justice Schofield had “gone to war” not only with the Gibraltar Government and the Chief Minister, but also with the Attorney General and the Bar Council, Mr Eadie said.

In doing so, the Chief Justice had “disabled himself” from being able to hear the most important cases to come before his court.

“His position has become entirely untenable,” Mr Eadie said.

The questioning by the Lords on this and other matters was persistent and highly focused, probing in detail – and often in tough terms - the arguments put forward.

One example: When Mr Eadie raised the reaction to changes in the frequency with which the Chief Justice’s warrant was issued – Mr Justice Schofield had seen it as a threat to the security of the post - Lord Judge said the failure to properly inform him beforehand had been “the very lowest of discourtesy”.

But Mr Eadie was relentless in his approach.

In presenting the Gibraltar Government’s case, he described the Chief Justice’s evidence to the disciplinary tribunal as “wholly unsatisfactory.

He said the Chief Justice had levelled “the most serious allegations” of bad faith against the Gibraltar Government but that these had been found to be baseless.

That in itself, Mr Eadie contended, was further evidence that Mr Justice Schofield was not fit to hold office.

SCHEDULE

Mr Eadie is due to conclude his submissions to the committee this morning, after which it will be the turn of Tim Otty, QC, the barrister representing the Governor of Gibraltar. Mr Otty is expected to focus mainly on matters of law.

He will be followed by Michael Beloff, QC, a leading lawyer who is representing the Chief Justice. His submissions are expected to take until the end of the hearing on Wednesday.

Gibraltar barrister Robert Vasquez is in London representing the Gibraltar law firms whose complaint to the Governor led to the tribunal and this week’s hearing.

He has submitted written arguments and is not expected to address the judges.

Also present at the Privy Council hearing, though not contributing directly, are Richard Garcia, the Chief Secretary of the Government of Gibraltar, and John Reyes, the Chief Minister’s private legal secretary.

Gibraltar lawyer Charles Gomez is also at the hearing as part of the Chief Justice’s legal team.

Alongside Lord Judge, the other judges hearing the case include Lord Phillips of Worth Matravers; Lord Hope of Craighead; Lord Rodger of Earlsferry; Baroness Hale of Richmond; Lord Brown of Eaton-under-Heywood; and Lord Clarke of Calton.

The session yesterday attracted just a handful of people to the public gallery, including an observer from the International Commission of Jurists.

The hearing continues at 10.30 am this morning.