Supreme Court and Judicial Reforms

Part of the debate – in the House of Lords at 4:56 pm on 12 February 2004.

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Photo of Lord Millett Lord Millett Crossbench 4:56, 12 February 2004

My Lords, as a recently retired Law Lord only just coming to terms with his new status as an old age pensioner, I find myself in an unenviable position, speaking between a serving Lord Chief Justice and a former Lord Chancellor. However, I am driven to speak because I have long advocated the creation of a Supreme Court. It is precisely because I am in favour of such a court that I am dismayed by the Government's proposals and appalled at the proposal to abolish the office of the Lord Chancellor.

There is, to my mind, one ground and one ground only that could justify the creation of a Supreme Court and the abandonment of a court—the Appellate Committee of this House—which has not only served this country well but has an enviable reputation throughout the world. It has a reputation, I like to think, not only for intellectual rigour and ability but also for integrity, impartiality and, above all, complete independence from the executive branch of government.

My reason for favouring the creation of a new court is entirely practical and pragmatic. The fact is that this House can no longer provide the accommodation, resources and facilities which a properly serviced Supreme Court requires—or, if it can, it is not minded to do so. There are 12 Law Lords and, at present, they occupy 11 rooms between them. We have been able to get by only because my noble and learned friend Lord Saville of Newdigate has been otherwise occupied for the past five-and-a-half years, but even his secondary job is likely to come to an end at some point. There is no room at all for retired Law Lords when they continue to sit.

There are four judicial assistants for the 12 Law Lords and no room for any more. In the United States, each member of the Supreme Court has four law clerks to himself, and a member of the High Court of Australia has three. The maximum number of judicial assistants which a member of the Appellate Committee of this House can have is one-third each. We are probably the worst supported Supreme Court of any major jurisdiction in the world and we act throughout on a shoestring. The time is rapidly approaching when this simply will not do.

Therefore, there are certainly compelling grounds for a physical move. However, as my noble and learned friend Lord Nicholls of Birkenhead observed, there is much which may be lost. A great brand name will go unless considerable steps, which are not envisaged, are taken to preserve it. Thus, my support for the proposal to create a new Supreme Court is heavily conditional. I would support it if, and only if, accommodation suitable for the Supreme Court of a major jurisdiction were found in a proper location. If it is no longer to be part of this House, it need not, and should not, be in Westminster but should be in the complex which surrounds the Royal Courts of Justice and the Inns of Court. In addition, if the new court were not properly staffed, properly resourced and properly budgeted with new money, and plenty of it, it would be detrimental to the present system to make the move. To my mind, all this should be in place before the legislation is enacted, or at least before it is brought into force. The present signs are not at all encouraging.

The abolition of the office of the Lord Chancellor is a very different matter. There are indeed arguments—powerful arguments perhaps—advanced, for example, by my noble and learned friend Lord Morris of Aberavon, for transferring some of the spending responsibilities of the Lord Chancellor's Department to an ordinary spending department, under an ordinary Minister of the Crown. However, the Lord Chancellor and his office are very much more than merely the head of a spending department. The Lord Chancellor is the living embodiment of the rule of law itself and the independence of the judiciary. It is his main function to protect those in Cabinet.

A constitutional change of this magnitude, which gets rid of that office and which will be irreversible, as my noble and learned friend the Lord Chancellor himself said, must be designed to stand for centuries and must not be advanced on grounds of mere abstract legal theory. Abolishing the office of the Lord Chancellor meets neither of those criteria. It is advanced on the theoretical ground that the present arrangements infringe the separation of powers—which is just about as abstract a legal theory as ever there was. It has certainly never been a pillar of our constitution and, as many of my noble friends have observed, our constitution is one which not only permits but actually requires every Minister of the Crown—that is to say, a senior member of the executive branch of government—to be a member of the legislature. A country which really believed in the separation of powers, like the United States, would not tolerate that for a moment.

I do ask myself whether we are likely to see a sequel in legislation which will revert to the historical position in this country, under which any Member of Parliament sitting in the House of Commons who accepted an office of profit under the Crown would automatically resign his seat and submit himself for re-election by the electorate.

We must surely distinguish between the separation of powers, which is a theoretical doctrine not embraced by this country, and the independence of the judiciary, which is anything but a theoretical construct. It is part of the rule of law itself and fundamental to a democratic and modern country under the rule of law.

Does anyone seriously believe that the creation of a new Supreme Court, modelled on that of the United States, will make the judiciary more independent of the executive? Does anyone seriously believe that transferring the ultimate responsibility for appointing judges from the Lord Chancellor to a Secretary of State will entrench the independence of the judiciary?

The Secretary of State in future, whatever he may be at the moment, is likely to be a middle-ranking, ambitious, career politician, with hopes of attaining yet higher office, dependent on the patronage of the Prime Minister and certainly subject to his direction. Moreover, he can be removed easily and at a moment's notice, without causing the kind of outrage which greeted the announcement last June.

The Lord Chancellor, by contrast, is a man bred to the law, holding an office which has existed for centuries, and which in itself tends to model his own conduct. He fills one of the great offices of state. He has reached the highest office any man of ambition could reach. There is nowhere else for him to go. Even historically, when he held not the greatest office of state but only the second office of state, the only place he could go was to become Archbishop of Canterbury.

His function in Cabinet is not to advise on the law. That is the function of the Attorney-General. His function is to represent the rule of law and to represent the judiciary. In performing his vital function, fundamental to the rule of law, he needs to be a member of the Cabinet. His brooding presence at the Cabinet table ensures the independence of the judges. He is the only person at that table who can say to a Minister, "You cannot do that; if you do you will cause an almighty row with the judges". When he makes such a point, he does not do so as a Cabinet Minister, but as head of the judiciary who happens to be sitting at the Cabinet table; and not exercising ministerial powers but representing the judges.

The same is true when the Lord Chancellor exercises his power of recommending the appointment of Queen's Counsel and of new judges. He is answerable to Parliament for policy; he is not answerable for individual appointments. Time and again, I have heard Ministers of the Crown, and even the present Lord Chancellor and Secretary of State, say about Queen's Counsel, "Why should the Government have any part to play in what, after all, is no more than a professional preferment?" The answer is that they do not. Someone must be answerable to Parliament—a Member of one or other House—who can be accountable for the policy of appointing Queen's Counsel and judges. It is absolutely wrong and dangerous for any such person to be accountable to Parliament for individual appointments.

A Lord Chancellor is not entitled to discuss a proposed individual appointment of a judge with his Cabinet colleagues before making the appointment; nor is he required to justify it afterwards. If he discussed such an appointment with his Cabinet colleagues beforehand, I venture to think that he would not be fit to be Lord Chancellor.

I do not like, in any way, the suggestion that the new appointments commission should be answerable to a Secretary of State who can reject the commission's proposals and ask it to think again. It is a fairly mild proposal on the surface, but we all know that sometimes the Government's wishes exercise a subconscious influence on those to whom it is directed.

My noble friend Lord Rees-Mogg referred to the supremacy of Parliament and his fears that that may be eroded if we go down the American route. I do not know whether that is so or not. That is too far in the future. However, we should remember that the supremacy of Parliament is judge-made law; the judges made it so they can unmake it, and it rests, at bottom, on judicial restraint. The role of the Lord Chancellor in Cabinet is to represent the judges and to try to influence the Cabinet and the Government as a whole to exercise appropriate restraint when dealing with judges. I am afraid that the omens from the present proposals are not good.