Supreme Court and Judicial Reforms

– in the House of Lords at 11:36 am on 12 February 2004.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I am grateful for the opportunity for the House to debate the constitutional reforms that the Government are proposing. These are important and significant reforms: for this House, for our institutions, and for our country. It seems to me wholly right that this House should debate these reforms in full. I particularly look forward in the course of this debate to the maiden speech of the noble and learned Lord, Lord Cullen of Whitekirk, who will make a significant contribution both to this debate and to the proceedings of this House.

We have already debated these issues on a number of occasions, including the Statements that I have made to the House recently on the judicial functions of the Lord Chancellor and this week on the establishment of a Supreme Court. We will of course have further opportunities for debate when we bring forward specific pieces of legislation shortly. But I believe today's debate gives us a different kind of opportunity: the opportunity to stand back a little from what we are doing, and to set out in particular why we are doing it: what our reforms are for, what we hope to achieve by them, and why I believe this House should support them.

For this House, constitutional reform is a primary interest. But more widely, constitutional reform is not simply a matter of abstract theory. It is central to what the Government are doing. I acknowledge that many, from different parts of the political spectrum, question why the Government are so committed to constitutional reform. Why have they created a new department to provide a focus for this work? Why not focus more on the so-called "bread and butter" issues and improvements that the people of this country rightly want to see?

The answer is twofold. First, the Government are concentrating on key delivery issues in education, health, and crime—in my own department on both civil and criminal justice—and continuing to strive for the ambition of the post-war Attlee government not just of education and a health service for all, but justice for all. Secondly, the constitutional issue at stake is one of the most important in a liberal democracy—the relationship between citizens and the state. It is a relationship that will affect vitally our whole public sphere and our public services. It will affect the sense of connection between citizen and state, and the state includes the judiciary and the judicial system.

We must ground our changes in history. In doing so, we must understand that history shows us that we cannot afford to stand still. A profound respect for and understanding of the development of our constitution should tutor us in the need to keep reform of the constitution constantly under review. Our programme of reform stems logically from our progressive values and a firm belief that there is a careful balance to maintain, between preserving the United Kingdom's constitutional heritage on the one hand, and running the risk of our public institutions being unable to deal with the modern world on the other.

A system of government cannot remain in thrall to the past; it must be credible and effective. Sometimes it can achieve this by virtue of its heritage; sometimes change is required. I believe that our record of change and improvement in constitutional matters since our Government came to office is something of which we in our party and all of us in Parliament can be proud, and much more importantly, something which offered, and is delivering, real benefit to our country.

I believe that a defining, common characteristic of all these changes—such as devolution, the Human Rights Act and the freedom of information legislation—is their permanence. Of course, any future government can look at any aspect of the law and propose changes if they so wish. However, I do not believe that any political party seeking to be elected to government can realistically stand on a platform of reversing the changes to which I have referred.

Moving forward on the constitution inevitably brings charges of dismantling that which works. However, sensible constitutional change requires a recognition of the point at which that change is required. It is best if this occurs incrementally, and before there has been significant constitutional difficulty.

We are now bringing forward further constitutional reforms, the outline of which will be familiar to almost everyone in this House. There are two principal areas of reform: first, overall constitutional reform, centring on the office of Lord Chancellor, and, secondly, proposals for the further reform of this House. In the first area, there will be proposals to abolish the office of Lord Chancellor; to make the Lord Chief Justice rather than the Lord Chancellor the head of the judiciary; for judges to be appointed not by the Lord Chancellor but by an independent Judicial Appointments Commission; and for the final appellate committee of our justice system no longer to be part of the operations of this House, but to be a fully discrete and independent Supreme Court.

In the second area of reform, there will be proposals to end the hereditary principle within our legislative process, and for the Prime Minister to yield voluntarily his historical power of patronage to control the size of this House and those who become its Members, with the creation of an independent Appointments Commission for the House of Lords.

The subject of today's debate is this first area of reform. I begin by saying that there is nothing in what we are proposing which is in any way either a criticism, or intended to be a criticism, of the way in which all those involved in the current constitutional arrangements, at whatever level, have carried out, or do carry out, their functions. We are fortunate indeed as a country to be well served by dedicated and hard working public servants across all levels of our justice system and all the other areas involved in our reforms, and I should like to take this opportunity to pay tribute to them for all that they do for us all.

The purpose of this first area of reform is clear. It is to modernise and redefine the relationship between the executive, the legislature and the judiciary. We want to protect and indeed enhance judicial independence, to clarify the roles of the Government and the judiciary, and to set out the relationships between us on an explicit and transparent basis.

Some have claimed that these reforms threaten to compromise the quality of the judiciary, which is beyond measure at the moment. I disagree. Creating the Judicial Appointments Commission will embed the involvement of the judiciary in the appointment process—both in evaluating candidates for office and in improving the system itself. The experience and knowledge of the judges on the commission will be critical. Candidates will be appointed to the judiciary only on merit. The merit principle has been central to building up a Bench of its current quality. That principle must be enshrined in statute, and it should be the only one enshrined in statute.

My predecessors and myself have sought to enhance the objectivity and transparency with which judges are appointed. The process for appointments particularly below the High Court, has become, as it has to, increasingly methodical—advertisement, interview, assessment centre for some appointments, introduction of a non-legal element in the assessment of candidates, and improving methods of consultation. To be effective, those more methodical methods of appointment have to be followed. It is neither possible nor right in the long term that a political appointee, albeit one always acting in good faith, should be able to cut across that system to appoint who he or she thinks is right. Although I have on occasions rejected the views of the panels engaged in the appointment process for appointments below High Court level, I have done so only for cause, normally where either the presiding judges or the Heads of Division have identified good reason for doing so.

To put at the apex a Judicial Appointments Commission made up of a mix of judicial knowledge, legal knowledge, and human resources experience will, I believe, provide continuity, consistency and a greater ability to challenge the method and conclusion reached in an individual case. It is both right and a better reflection of the way that the system is currently operating.

Separating powers is vital, but changing these arrangements must be based not only on our belief that each of those arms of the state will work better when they are fully, clearly and transparently separated from one another, but also because it will produce better governance for the public.

The Lord Chancellor's role has been the complete embodiment of the entanglement rather than the separation of powers: Cabinet Minister and head of the judiciary, legislator and senior judge, head of a government department and Speaker in this House. This is a tangle that must be untied and a web that must be unwoven not just because of the principle of the separation of powers but also because of the practical benefits.

The role of the Lord Chancellor has changed radically in recent years. The past few Lord Chancellors have sat as judges increasingly rarely. There has also been a significant change in the responsibilities of the post. The Lord Chancellor is seen by some as the judges' voice in the Cabinet. In addition, he is now head of a major government department, delivering a range of high profile public services: the court system, tribunals, legal aid, asylum appeals, and with policy responsibility for these issues and constitutional reform, freedom of information, family policy, electoral policy and so on. It is a significant responsibility and a responsibility that has to be discharged as part of an elected government delivering for the public.

My predecessors have served as Lord Chancellor with immense distinction and integrity. I am delighted to see one of them present today—the noble and learned Lord, Lord Mackay of Clashfern.

Noble Lords:


Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, two former Lord Chancellors are present. The noble and learned Lord, Lord Irvine of Lairg, is also present; he is sitting behind me. But the changes to the office have undoubtedly brought with them increasing tensions and difficulties, as the juggling of roles as judge, administrator and politician have seen a blurring of the boundaries of the post. These tensions have been kept at bay largely through the force of personality of the office holder, but this cannot be the right way to structure the critical relationships between these arms of the state.

We must therefore clarify and separate the roles and responsibilities of the senior judge and the head of a political government department accountable to Parliament. The need for this clarity is widely recognised: indeed, in its report to the Royal Commission on the Reform of the House of Lords, Justice declared that,

"reform of the judicial functions of the law Lords and the Lord Chancellor is not a luxury but an urgent practical necessity".

In recent years the public's expectations of what the Government should be responsible for have grown, as has the focus on the services that the Government deliver. This is particularly apparent in crime, which is no longer seen, almost like the weather, as a factor beyond the Government's responsibility. Now there is a general recognition that the Government must tackle crime. The courts are now seen as integral to that process. There is much greater legitimate attention on the administrative performance of the courts, and the Minister with responsibility for them must be seen to focus on delivery of that. The office of Lord Chancellor overall is no longer appropriate in a landscape where the executive has a legitimate interest in creating an efficient and effective court system focused on delivering policy objectives. Now, more than ever, the head of the department responsible for the courts must be clearly accountable to Parliament. Given those pressures, more than ever, the most senior judge in the country must be just that—a judge.

As these changes take place, however—

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, is the noble and learned Lord saying that the Lord Chancellor, and he in particular, is not accountable to Parliament? I thought that historically the Lord Chancellor always has been accountable to Parliament, just like the rest of the legislature.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, of course he is. I do not in any way seek to imply that there is no such accountability.

As these changes take place, however, the need for partnership between the executive and the judiciary grows, but so does the need to put these arrangements on a statutory footing to ensure that we have a constitutional arrangement that is robust in the face of such pressures. We are lucky in that we start from a position of strength. The independence, probity and quality of our judiciary are unparalleled. A position of strength is the best position from which to make such reforms and to put in place a settlement that will enshrine these core values and endure. I am profoundly convinced that the constitutional settlement represented by the hybrid post of Lord Chancellor was not likely to endure or to continue to prove satisfactory to the public, to Parliament or to the judiciary, for very much longer. The pressures have become too heavy, the contradictions too great.

But when there is a clear need for change, it is incumbent on those managing that change to make sure it creates a structure which is constitutionally sound, which represents the principal strengths of our historic system and which endures.

I turn to some of the concerns that have been expressed. It has been suggested that in replacing the Lord Chancellor with a Secretary of State, the judges will lose a protector and a voice for their interests in government. I do not think that is right.

It is not simply a matter of replacing a Lord Chancellor with a Secretary of State for Constitutional Affairs. The Lord Chancellor will be replaced by a senior judge for England and Wales, with the Lord Chief Justice taking on this new enhanced role. The Lord Chief Justice will be well placed to speak on behalf of the judiciary: in many respects rather better placed than the Lord Chancellor has been with his duty to observe the principle of collective responsibility.

For the first time we will introduce a statutory responsibility for all Ministers and all those working in the justice system to respect and uphold the independence of the judiciary, and a wider responsibility for the Secretary of State for Constitutional Affairs to defend that independence within government and without.

To operate, the new system will require the Government and the judiciary to work together in partnership. The judiciary is dependent on an informed and responsible executive. The executive is dependent on a well functioning judiciary. The public depends on both. The working relationship I want is encapsulated, for example, by the work of the Deputy Chief Justice, Igor Judge. He has been involved in and closely consulted on the setting up of the Unified Courts Administration, which brings the Crown Courts and the magistrates' courts together: it is an example of close dialogue, mutual understanding and partnership.

I believe that relationship is set out and clarified in the understanding reached by the executive and the Lord Chief Justice on behalf of the judiciary, and about which I made a Statement to this House recently. The noble and learned Lord, Lord Woolf, also made a speech about it in this House. While this agreement is rightly subject to the parliamentary passage of the Bill on constitutional matters that the Government will bring forward, I believe that it lays down the right kind of partnership between the executive and the judiciary, with clear roles for each within the framework of the separation of powers of both.

Judicial independence forms the heart and soul of that agreement. We are all adamant that these reforms must strengthen judicial independence and do nothing to undermine it. I am confident that our reforms will do so. In line with the agreement, for the first time our legislation will define precisely those areas that are not for the executive, such as the deployment of individual judges and responsibility for the training and education of judges. The Bill will also set out where the executive does have an interest in relation to the judiciary, for example, resourcing the courts or determining the number of judges needed—this will be precisely defined, with appropriate constraints and mutual consultation.

The institutions and processes that the Bill will create will also help to protect judicial independence. An independent Judicial Appointments Commission will dramatically reduce the exercise of ministerial discretion in the appointments process.

Our plans for a Supreme Court, which I announced to this House on Monday, will be another demonstration of our principles: clarity and transparency in our institutions, and a firm commitment to judicial independence. As the noble and learned Lord, Lord Bingham of Cornhill, the senior Law Lord in this House, said in evidence to the Constitutional Affairs Select Committee:

"It is high time we did have a Supreme Court divorced from the legislature and therefore representing in institutional terms what the constitutional reality is. Judges are not legislators, they are judges."

I share that view. It cannot be right for our final court of appeal to be located in the legislature. That produces confusion. It has led, in recent times, to the Law Lords issuing a self-denying ordinance indicating the circumstances in which they will not speak in this Chamber.

On a previous occasion, a senior Law Lord was unable to sit on an appeal involving legislation on which he had commented in the House. This cannot be the basis for the key relationship between these arms of the state. Our highest court should be set apart from Parliament—a symbol of independence. It should be a separate body with financial and administrative arrangements that reflect its distinct role.

The final concern I address is over the pace of change. In this House we know that the concepts we are debating are not new. Key figures in Justice first called for these changes in a report in 1972. In the past 30 years, the list of those calling for an independent Supreme Court, a Judicial Appointments Commission and the abolition of the Lord Chancellor is long and distinguished.

The Prime Minister's announcement on 12 June sets a clear direction. We have consulted very widely on the detail because we recognise that detail matters intensely. There will be further opportunity for debate when we introduce legislation. I suspect that by the time these measures reach the statute book, we will have had 18 months of debate.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, the noble and learned Lord, Lord Falconer of Thoroton, said he had consulted on the detail. Does he suggest that he has consulted on the principle?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, the three principal changes the Government wanted to introduce were made clear in the Government's announcement on 12 June. They were the Judicial Appointments Commission, the abolition of the role of the Lord Chancellor and the creation of a Supreme Court. Those were stated as policy on the part of the Government.

I believe that to have taken a longer period would not have been beneficial. It would have left the system in a state of uncertainty, and we would have been faced with an uncomfortable period of change blight. Judges, lawyers, academics and even politicians have thought about these issues for generations. It would be a sad reflection on the political and the legal professions if we could not resolve these matters over 18 months.

I hope I have made clear in my contribution to the debate not just what we are proposing, but why we are proposing it, and what we believe we can achieve. The clear separation of powers which runs through our proposals—and which have as an objective run through the years of debate and argument among the professions and the politicians before we announced our intentions last summer—is what we seek, in order to make sure that these great institutions of state work effectively to benefit the people of this country.

I understand that politically the Benches opposite will be against what we propose. I am sorry for that, because I believe that what we propose is rational, sensible and serious. Operationally, I would stress the level of agreement with key participants that our proposals have already won. I believe that Parliament will shortly have before it proposals which hold out the opportunity of taking a further significant step forward in making our key institutions fit for our time. When we bring forward legislation shortly I urge Parliament, and this House in this debate, to grasp that opportunity and continue the programme of reform.

Photo of Lord Renton Lord Renton Conservative

My Lords, before the noble and learned Lord sits down, perhaps I may ask him to deal with an important matter that he has omitted; namely, the advantage of having the Lord Chancellor in the Cabinet to advise on legal matters which frequently arise during Cabinet discussion.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I dealt with the role of the Lord Chancellor in relation to protecting the independence of the judiciary and described the separation of the head of the judiciary and the Secretary of State for Constitutional Affairs. Traditionally, legal advice to the Cabinet has always been given by the Attorney-General, not the Lord Chancellor. Whenever an issue of law arises, the Attorney-General could be called to advise the Cabinet, either at a meeting of the Cabinet or separately. Historically, and one can see this from recent proposals, it has been important that it should be clear that the Attorney-General is the legal adviser to the Cabinet, not the Lord Chancellor. I beg to move.

Moved, That this House takes note of Her Majesty's Government's proposals for a United Kingdom Supreme Court, an independent Judicial Appointments Commission and the abolition of the office of Lord Chancellor.—(Lord Falconer of Thoroton.)

Photo of Lord Kingsland Lord Kingsland Conservative 11:59, 12 February 2004

My Lords, I should like to join the noble and learned Lord in saying how delighted I am to see the noble and learned Lord, Lord Cullen of Whitekirk, in his place. I am looking forward to hearing the noble and learned Lord's maiden speech.

On 26 January, when the noble and learned Lord the Lord Chancellor made his Statement about judicial appointments, I said on behalf of the Opposition the following:

"The party of government has been more enthusiastic than any other political party of this country about pre-legislative scrutiny. I can think of no better set of proposals to undergo that process than those that will be contained in the Bill".—[Official Report, 26/1/04; col. 18.]

On 9 February, when the noble and learned Lord the Lord Chancellor made his Statement on the Supreme Court, I repeated, in effect, that statement.

On 10 February, the House of Commons Constitutional Affairs Committee published a report entitled Judicial Appointments and a Supreme Court (court of final appeal). In the concluding part of the report, in paragraph 26, the committee said:

"The Constitutional Reform Bill is a clear candidate for examination in draft".

In paragraph 27, the committee said:

"The abolition of the office of Lord Chancellor should be delayed until the reforms are established".

In paragraph 28, the committee said:

"If the reform is inaugurated in the form of a Supreme Court which is still temporarily sitting in the House of Lords, looking much like its predecessor, it will not meet the desire of the Government and the supporters of the reform to make the Court appear clearly separate from the legislature".

Paragraph 29 states:

"The consultation process has been too short and the legislative timetable is too restrictive to deal with changes which are so far reaching in their effects. The reason for haste seems to be primarily political. In the light of the complex issues raised and the ambition on the part of the Government to create a new settlement for a final court of appeal for the United Kingdom we recommend that the Government proceed with the Constitutional Reform Bill on the basis of its being draft legislation—in particular in respect of the proposals for a new court of final appeal. If this course of action is followed, it is likely that many of the arrangements could be agreed on a consensual basis. If the plan is to create a court to last for centuries, then this must be an objective worth spending some time on".

It was not a report drafted by a majority of members of the Opposition; the committee was chaired by the right honourable gentleman Alan Beith, who is a Liberal Democrat; and seven of the remaining members were members of the government party. Only three Conservatives sat. That can hardly, therefore, be called a conclusion which flows solely from the Opposition. I should like to ask the noble and learned Lord again whether, in the light of the committee's conclusion, he is prepared to think again about pre-legislative review. No doubt he will give us his answer—after six hours of reflection.

The committee is exactly right. The office of Lord Chancellor has, after all, been around for at least 1,000 years, and the present system of selecting judges for at least 400. Surely changing such deeply entrenched traditions, which have been found by previous generations to have worked so well, at least deserves that the new proposals are tested against what exists. That is what would happen in pre-legislative scrutiny. That is something that has not happened so far. Your Lordships would be able to look at what exists and see whether it is superior or inferior to what is proposed.

That is particularly important in the context of the Supreme Court. It looks to me as if we are getting in an independent Supreme Court essentially what we have already in the Judicial Committee of your Lordships' House. However, we know that the shift to a new building, and the resource implications that that will have, will mean massive new expenditure on this new institution.

The general public are not foolish. They will see that they are getting exactly the same thing for something that is vastly more expensive. It will be rather like a motorcar salesman selling the same model under a different badge. If we are to convince the general public that the Supreme Court is worth these extra resources, then we will have to make the argument intellectually and politically. Otherwise the real victim of this change will be the prestige of the Supreme Court itself.

The Government are well aware that the Opposition have found it hard not to reach the conclusion that the real intention behind these measures is to undermine the strength of the judicial arm of the constitution. We know that the Government regard the judiciary as an increasing impediment to their legislative ambitions, particularly in the field of criminal and asylum law. The Government have concluded that law making is solely for a democratically elected government and that judges are there simply to apply the law. That is why they want to remove the Lord Chancellor from the Cabinet and the Lord Chief Justice from the legislature.

Of course the Government dare not say that. So they say that these changes have to be made to conform with the doctrine of the separation of powers. However, even a cursory glance at the existing situation will demonstrate that such a contention is wholly without foundation.

The noble and learned Lord himself is on record, on several occasions, as saying that the degree of judicial independence in our courts is beyond reproach; that there is no question whatever that our judges are anything other than completely incorruptible; and that the system of selection for the Bench whether at High Court, Appeal Court or any other level is based solely on merit.

I did not hear the broadcast, but I understand that the other day the noble and learned Lord the Lord Chancellor featured in the "Today" programme at rather an early hour. The interviewer put to him the question, "If everything is working so well, why should we change it?" To which I understand the noble and learned Lord replied, "It is because it is working so well that now is the ideal moment to change it". It is a novel legislative proposition that the better things are working, the more legislation is needed. It may, indeed, explain much about what has happened in the past seven years.

There are many other reasons why the argument about separation of powers is unsustainable. The noble and learned Lord the Lord Chancellor has accepted that there is nothing in the jurisprudence of the European Court of Human Rights in Strasbourg which requires our constitutional system to conform with the doctrine of separation of powers.

Moreover, as has been said many times by many of your Lordships during previous debates in your Lordships' House, in the United States, which is the locus classicus of the separation of powers system, supreme court judges are nominated by the executive in the form of the President of the United States and endorsed by the legislature. Certainly every supreme court judge who I have met has said that he regards that process as enhancing his judicial legitimacy.

There is a further illogicality in the Government's position. If separation of powers is good for the judiciary and the legislature, why is it not also good for the executive and the legislature? If the judges are going to be decontaminated by being taken out of the legislature, surely the legislature would be decontaminated by removing the Government. How refreshing it would be not to have Whips, for example, in your Lordships' House. Like the famous advertisement, we will all be able to think purer thoughts.

The Government's adherence to the doctrine of separation of powers is not one which is manifested by their own recent practice. I can only think how pleased the noble and learned Lord the Lord Chancellor was the other day when the noble and learned Lord the Lord Chief Justice came down from the Strand to endorse the arrangements made between both noble and learned Lords on judicial appointments. Now that bargain will be enshrined in a Bill. So much for keeping the judges out of law making.

Again, there has just been an inquiry over certain political events connected with the invasion of Iraq. Whom did the Government choose to chair that inquiry? A judge, who in the course of giving his decision, had to make some highly sensitive political assessments. And what about the Judicial Appointments Commission set up to choose judges which must not be chaired by a judge? It is wholly illogical. Finally, in the selection of Supreme Court judges, we have two to five judges presented to a Secretary of State for Constitutional Affairs who has to decide between them on the basis of merit. Yet he, himself, is not required to be a judge.

I repeat, the argument that the separation of powers requires these reforms proposed by the Government is wholly unsustainable. The real concern that we on these Benches have for these measures is their threat to the rule of law. The Lord Chancellor plays a crucial role in the Cabinet in ensuring that legislative proposals conform to the rule of law. Indeed, it has been made clear on many occasions in debates in your Lordships' House that the role of the Lord Chancellor in Cabinet has sustained the rule of law in this country down the centuries. This is endorsed by the Constitutional Affairs Committee report. Right at the beginning of the conclusions, the role of the Lord Chancellor is described as follows:

"Whoever carries out the functions of the office of Lord Chancellor will be in charge of the Court Service and will play a central role in the administration of justice. Part of that role is the protection of the judiciary from political pressure in Cabinet and, when necessary, in public. There is a radical difference, between on the one hand a Lord Chancellor, who as a judge is bound by a judicial oath, who has a special constitutional importance enjoyed by no other member of the Cabinet and who is usually at the end of his career (and thus without temptations associated with possible advancement) and on the other hand a minister, who is a full-time politician who is not bound by any judicial oath and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion".

That statement is a complete endorsement of everything that the Opposition have said about the role of the Lord Chancellor since the first debate we had on 8 September last year. The noble and learned Lord said in the course of his speech that the Lord Chancellor was the embodiment of entanglement. The noble and learned Lord, the Lord Chancellor, is precisely the opposite to that. On the one hand, because he is not party political—although he is in the Cabinet—and because he takes the judicial oath, he is in a unique position in the political world to select judges. On the other hand, because he is accountable to Parliament, he provides that process of selection with real democratic legitimacy.

Those two ingredients are crucial to the successful performance of our appeal judges. In the Lord Chancellor, one gets both those things without any conflict of interest. There is no entanglement there. The two tasks are performed by one person in a way that enhances the constitutional purity of our system.

Some people may say that if there is an independent Supreme Court, why cannot that guarantee everything that the Lord Chancellor guarantees in Cabinet? Why cannot that guarantee what the Lord Chief Justice does here when he warns us not to do something that we are about to do—usually very effectively.

The Supreme Court judges will, of course, have the protection of the European Convention on Human Rights. That is as a result of the Act passed in 1998. But in my submission the European Convention on Human Rights will be least effective in the area where it is most required—the area of criminal law. Throughout the 20th century the decisions of our judges on issues such as the presumption of innocence, trial by jury and the burden of proof have been a monument to our common law and our traditions of statutory interpretation. They have become our emblem as a civilised society. Yet, the Criminal Justice Act 2003 allows the prosecution to lead on issues of propensity, undermining the presumption of innocence in criminal trials; in the Asylum and Immigration (Treatment of Claimants, etc.) Bill the Government are toying with the idea of ousting the jurisdiction of the courts in certain asylum matters; and there are even questions now whether in some areas the burden of proof beyond reasonable doubt should apply in the criminal law. I do not believe that the jurisprudence of the court in Strasbourg, with its strong inquisitorial background, will provide much protection against such Bills if they contain such proposals.

It is true that the Supreme Court is not bound by decisions of the European Convention on Human Rights. It has only to take account of them. But if the court were brave enough to develop a set of criminal standards higher than those laid down in Strasbourg, then they would expose themselves to severe government criticism. The Government would say that they were developing their own jurisprudence and engaging in an area which challenged what was more properly the democratic area of elected politicians.

If the noble and learned Lord really wants a Supreme Court and to preserve the rule of law, then he has no alternative but to bring forward along with the provisions of the Supreme Court, a Bill of Rights enshrining our common law traditions. Without it the judges will no longer be able to do the task that they have been able to do throughout previous decades and centuries. I do not want that to happen. The current system preserves everything that we need.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 12:15, 12 February 2004

My Lords, we on these Benches support the Government's proposal to create a Judicial Appointments Commission. We wish to replace the Law Lords with a Supreme Court of the entire United Kingdom and to create a more diverse judiciary and end government patronage in the appointment of senior counsel. Contrary to what we have just heard from the noble Lord, Lord Kingsland, these proposals will strengthen and not weaken the rule of law. We have campaigned for these reforms for many years within Justice, working with the noble Lord, Lord Alexander of Weedon, Professor Robert Stevens and many others, including, as Liberal Democrat lawyers, my noble friends Lord Goodhart and Lord Maclennan of Rogart and myself.

The Prime Minister has acknowledged the Government's mistake in announcing these reforms hurriedly and as part of a Cabinet reshuffle. That is an example of a more profound weakness in the way in which the Government have tackled constitutional reform. In 1995 I published an essay in Political Quarterly in which I attempted to answer the question of how the ambitious programme of constitutional reform advocated by Labour and the Liberal Democrats could be achieved within a framework of coherent constitutional principles. This programme would be conducted with all deliberate speed and in a manner which commanded the confidence of the citizens on whose behalf the measures were to be enacted.

I argued there that to bring about a genuine new constitutional settlement it would be necessary to introduce a new way of law-making in place of the traditional British parliamentary diet of piecemeal, politically partisan and indigestible legislation. The aim should be a comprehensive programme of constitutional reforms rather than separate pieces of controversial and disjointed legislation. I foresaw correctly that it was unlikely that the new Labour Government would take such advice. Had the Government been willing to do as I suggested, we would not be facing the shambles of Lords reform and the measures debated today would have been much better understood and more widely welcomed. That is all history, and it will be left to a future government to introduce a coherent and comprehensive constitutional framework such as exists in every European country and in almost all Commonwealth democracies.

It is incorrect to suggest, however, as the Official Opposition contend, that the Government's proposals have not been carefully prepared, or that there has not been public consultation. We welcome the fact that the Government have been willing and remain willing to reconsider their proposals in the light of informed criticism, as distinct from partisan political point-scoring. There are still important issues to be resolved, but that is no reason to obstruct or delay the introduction and enactment of much-needed legislation, using arguments for doing nothing—"the principle of the Wedge", "the principle of the Dangerous Precedent" and "the principle of the Unripe Time", which were made famous a century ago by F M Cornford in Microcosmographia Academica, subtitled,

"a guide for the young academic politician".

We start from a position of strength, as the noble and learned Lord said, because of the independence, integrity and great quality of the judiciary. However, it would be complacent to conclude from that strength that there was no need for change. As regards judicial appointments in England and Wales, it is excellent that a concordat has been reached between the Government and the senior judiciary led by the noble and learned Lord the Lord Chief Justice, Lord Woolf, as a result of detailed discussions. He explained to the House on 26 January that the noble and learned Lord, Lord Falconer, had been prepared to listen and respond to the proper concerns of the judiciary, and that the noble and learned Lord, Lord Woolf, supported the proposals as a whole.

It is surely right that an independent Judicial Appointments Commission should be responsible for making direct appointments at junior level, and making recommendations at more senior level, with as little ministerial discretion as possible. That will greatly improve the transparency, openness and fairness of the appointments system. The facts that Dame Rennie Fritchie, the Commissioner for Public Appointments, will chair the appointing panel, and that the commission will recruit its own staff, are important safeguards. It is good news that there will be an eminent and manifestly independent lay chair. The commission should not have a majority of lawyers. It is essential to avoid any appearance of a self-appointed judicial oligarchy.

It is also essential to avoid political patronage, or anything like the "advise and consent" system in the politically polarised Senate of the United States, in which, during Clinton's presidency, the Republicans held up more than 60 nominees to the federal judiciary. As my noble friend Lord Goodhart has pointed out, the Government's recent suggestion that the Supreme Court appointments commission will recommend a minimum of two and a maximum of five to the Secretary of State for Constitutional Affairs is unacceptable. In England and Wales, we believe that only one name should be recommended by a broad-based independent commission for acceptance or rejection for appointment to the Supreme Court, in our quasi-federal system of law and government.

Plainly, appointments to the senior judiciary should be drawn from a more diverse pool of well qualified candidates than at present, in terms of the different legal systems of the United Kingdom as well as gender, ethnic spread and range of experience and practice. However, that can and should be done by the appointments commission and not by politicians. The under-representation of women has long been an unacceptable feature of the system. Justice Ruth Bader Ginsburg noted in a recent lecture that, in 1890, when Columbia University denied admission to three female applicants, a member of the university's board of trustees is reported to have said:

"No woman shall degrade herself by practising law in New York especially if I can save her. The clack of those possible Portias will never be heard in", the university's "Moot Court". Although I hear chuckles, similar views were current in some quarters when I became a member of the English Bar almost 40 years ago.

Justice Ginsburg points out that the Chief Justice of the Supreme Court of Canada is a woman, as are two of that court's other justices. The Chief Justice of New Zealand is a woman. Five of the 16 judges in Germany's Federal Constitutional Court are women, and a woman recently served as president of that court. Five women are members of the European Court of Justice. The American Supreme Court has only two women justices. As for the United Kingdom, the appointment of the noble and learned Baroness, Lady Hale, as the first ever female Law Lord is most welcome and long overdue.

The report of the Constitutional Affairs Committee of the other place, published on Tuesday, suggested that the arguments about constitutional change are about principle and perception. That is true, but it tends to overlook some of the serious defects in the present system of appointing judges, and the practical arguments—I emphasise "practical"—in favour of separating the Supreme Court of the United Kingdom from the legislature. As a matter of principle, it is surely right that a Cabinet Minister should not appoint judges and sit as a judge in the final court. I quote the noble and learned Lord, Lord Bingham of Cornhill, who said:

"The Law Lords are judges not legislators and do not belong to a House to whose business they can make only a slight contribution".

We shall miss the Law Lords' contribution to our committee work and debates, but their role has become increasingly constrained by the need to avoid possible conflicts of interest. Their proper province is surely judicial and not political. The judges must be consulted about issues of legal public policy, but they should not be legislators. Even during the decade in which I have been privileged to sit in this House, there have been examples, happily rare, in which the line has been crossed from judging to legislating. Some examples are given by Roger Masterman in his useful note in the latest issue of Public Law, and in Hugo Young's last book of essays, Supping with the Devils.

I have served as a member of the European Union Committee's Sub-Committee on Law and Institutions, which has been chaired in succession by four different Law Lords. They have given their great authority to our work, but it is not self-evident that other senior jurists in your Lordships' House are incapable of fulfilling that role. I also agree with my colleagues, Professor Jeffrey Jowell QC and David Pannick QC, that it should no longer be the practice to use serving judges to investigate controversial issues of public policy. As Harold Wilson once said, it creates the risk of,

"blurring the edge which marks the sharp definition of the functions of the judiciary on the one hand, and the executive and the legislature on the other".

There is quite enough work for our overworked senior judges to do on the Bench without their performing arduous and protracted inquiries into controversial topics when Prime Ministers find it politically expedient for them to do so.

There is disagreement among the Law Lords not only about creating a new Supreme Court outside London's best social club, but about whether the Human Rights Act and the right to an independent and impartial court under Article 6 of the European Convention on Human Rights make those reforms imperative. For my part, I respectfully agree with the views expressed extra-judicially by the noble and learned Lords, Lord Bingham of Cornhill and Lord Steyn, that, in the face of challenge under Article 6, the role of the Law Lords as legislators and adjudicators might not be sustainable. However, that is a sensitive issue pending on appeal to the Judicial Committee of the Privy Council from Scotland in Davidson v Scottish Ministers.

I agree with the noble and learned Lord, Lord Falconer of Thoroton, that the present position is no longer sustainable, as he pointed out in his Statement on 9 February, and I agree that:

"The time has come for the United Kingdom's highest court to move out from under the shadow of the legislature".—[Official Report, 9/2/04; col. 926.]

At present, we have not one but two supreme courts in United Kingdom appeals; namely, the House of Lords and the Judicial Committee of the Privy Council. That has already created some inconsistencies that would be less likely with a single supreme court deciding all UK constitutional appeals, sitting in larger panels in cases of great constitutional importance where a consistent decision is especially important for precedent.

The Government have rightly recognised that the Supreme Court will be administered as a distinct constitutional entity and that special arrangements will apply to its budgetary and financial arrangements. It will have its own staff, working to its own chief executive. Moving the Supreme Court from the Lords to a suitable home will overcome the acute shortage of space that now prevents the Law Lords having sufficient support staff and the public having proper facilities. The needs of the senior judiciary should no longer be cramped by the shortage of proper accommodation in this building. The justices of the Supreme Court should have as suitable a home and resources as those provided for the final courts of Australia, Canada, South Africa and New Zealand.

I have had the great advantage of working with two former judicial assistants to the Law Lords, Kay Taylor and Lydia Clapinska, and in our submissions to the Government we pointed out, drawing on their practical experience, that there need to be proper facilities for judges, their staff, lawyers and the public.

Finally, I strongly disagree with the comments made during a brief debate by the noble Lord, Lord Kingsland. He said:

"the Opposition believe that the real motive behind the Government's proposed Bill . . . is to weaken the judicial arm of the constitution".—[Official Report, 9/2/04; col. 929.]

That allegation of bad faith has just been repeated and is wholly unjustified. I hope that the Official Opposition will work with the Government and Liberal Democrats to enact these much-needed reforms before the general election.

Photo of Lord Nicholls of Birkenhead Lord Nicholls of Birkenhead Crossbench 12:32, 12 February 2004

My Lords, I shall confine myself to one of the proposed constitutional arrangements and changes that are now under consideration—the proposal to abolish the office of Lord of Appeal in Ordinary. It is an office that I have the honour to hold along with 11 other Members of your Lordships' House. The proposal is that, lest our continuing membership of your Lordships' House be misunderstood by anyone, we shall all be taken away to a place of safety in our very own judicial ivory tower that will be purpose built or, at least, specially selected.

I regret to have to say that the proposal, put forward with the best of intentions, is misguided. It is unnecessary and would do more harm than good. It is unnecessary because it would achieve nothing of real value. Under the present arrangements the Law Lords do not lack independence from government—no one suggests that they do. Nor do they lack independence from the legislature. By convention of this House, our Law Lords participate in its judicial business, as all your Lordships know. No one could suggest the Law Lords' membership in itself of your Lordships' House compromises our judicial independence in some way.

The proposed change would be harmful because, first, a new Supreme Court would be deprived of some of the advantages of the present arrangements. At present, the court of final appeal in this country is known throughout the common law world as, simply, the "House of Lords". Because of its long and distinguished history it is still a name to be conjured with. A new court would be just that—a new court—distinct and different from its predecessor. It would have to start from scratch, build up its own reputation under a new name, in a new place, which inevitably would lack the instant recognition of the Palace of Westminster and the impact it always has on those who come here on judicial business.

There would be another loss which would not be so immediately obvious, but none the less real. When I was summoned to your Lordships' House 10 years ago I had been sitting for some years as a judge in the Royal Courts of Justice in the Strand. Like all law courts they are judge-centred. When I came here I became immediately aware of the wider perspective afforded by working daily in an environment which is not judge-centred. Involvement, formal and informal, in the non-judicial business of the House—serving on committees, attending debates when possible, and so on—raises the Law Lords' awareness of the broader context in which legislation and policies are formulated. The Law Lords benefit from that. It extends their horizons. Of course that is not essential or indispensable; the judges of a new Supreme Court would manage without it, as judges do in supreme courts in other countries. But that is not a good reason for us deliberately to choose to abandon something of value which, unlike them, we have.

Another practical drawback with the proposed exile of the Law Lords is that suitable ivory towers do not come cheaply. If the proposal proceeds we will need a Supreme Court building of which the people of this country could be proud to say, "This is our Supreme Court". The new building should bear comparison with supreme court buildings in other common law countries such as Canada, Australia and New Zealand. But the matter does not rest there. In addition to substantial start-up costs, a new Supreme Court would be significantly more expensive to run. The marginal costs associated with accommodating the Law Lords in your Lordships' House are relatively modest. The additional costs involved in maintaining a new Supreme Court in its own separate building would be substantial. It would be regrettable, to say the least, that those substantial, additional, unnecessary costs should be incurred when the Court Service is already under-funded. By no standard could those costs pass a test of value for money.

So it will be asked why the Law Lords are divided on the issue if the arguments are as one-sided and compelling as I suggest. The stumbling block for some is that judges whose responsibility is to interpret and administer the law should also not be able to participate in making the law. They are two separate functions that should be kept apart. What was acceptable in the past will not pass muster today. Standards have changed. That argument, when expressed as a general principle, is not without attraction. But where I part company from those who seek to apply that principle to the position of the Law Lords is that on this I am an unrepentant pragmatist. The present system works and everyone accepts that. Of course the Law Lords must be careful not to prejudice their ability to discharge their judicial functions effectively and properly. The position of the Law Lords is not unique in that respect. All judges have to be watchful over their extra-judicial activities. That is where we draw the line in this country, and in this country it works.

Moreover, there is no lack of transparency. The general principles applied by the Law Lords in deciding whether to participate in the legislative business of the House were reported to the House by the senior Law Lord in June 2000. Other countries order their affairs differently. We should not fear to be different. What we should fear is sacrifice on the altar of conformity a valuable feature of our constitutional heritage which has worked so well and still does. I believe the Law Lords will be better placed to continue to serve this country if they continue as they are.

Photo of Lord Cullen of Whitekirk Lord Cullen of Whitekirk Crossbench 12:40, 12 February 2004

My Lords, perhaps I may refer, first, to the proposals in regard to the appointment of judges. They were announced on 26 January and they form part of a concordat between the noble and learned Lord the Secretary of State and Lord Chancellor and the noble and learned Lord the Lord Chief Justice.

I speak with some diffidence on this subject, not merely because this is the first occasion on which I have had the opportunity to address this House but also because these proposals relate to England and Wales and not to Scotland, where I hold office as Lord President of the Court of Session. However, the time may come when it is suggested that some of the features of this scheme should be adopted in Scotland. There, the Judicial Appointments Board has not so far been put on a statutory basis but is simply an administrative arrangement created and sustained by the Scottish Executive.

I have no doubt that the concordat was the result of careful thought to take account of the new Judicial Appointments Commission and, on the assumption of the elimination of the office of Lord Chancellor, to strike a balance between the independence of the judiciary and ministerial responsibility.

However, the complexity of the concordat may make some readers sigh for the relative simplicity of the past. That complexity so clearly illustrates the difficulty of replacing, let alone innovating on, long-standing conventions with a set of prescriptive rules, and to do so at one stroke. Conventions have been useful in the past. They evolved gradually. Many years ago, Sir Ivor Jennings said of conventions:

"They provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas".

Further, it seems to me that the rules in the concordat illuminate only part of the picture. What is the policy or spirit with which those rules would be operated? Let me take an example. The Judicial Appointments Commission is to recommend a single candidate for each vacancy and, before doing so, is to consult the Lord Chief Justice about the candidate or possible candidates. The Secretary of State is to be able to appoint only candidates recommended by the commission. However, he is to have the option, for stated reasons, of asking the commission to reconsider its recommendation for appointment,

"if the evidence suggests that the recommended candidate is not the strongest candidate".

If the Secretary of State were to have that power, I trust that it would be exercised sparingly. If due recognition is to be given to the independence and importance of the commission, which is the new player on the field, it seems only right that, save in exceptional circumstances, its recommendation as to the strongest candidate should prevail. I should perhaps add that I understand that in Scotland the stated policy of the Scottish Executive is that the First Minister,

"will be expected to adhere to the Board's advice in his recommendations [to Her Majesty the Queen] unless there is a compelling reason to the contrary".

Secondly, and briefly, I refer to the Statement made by the noble and learned Lord the Secretary of State and Lord Chancellor on 9 February about the Government's proposals for a United Kingdom Supreme Court. As I stated in my response to the consultation paper in November last year, the Senators of the College of Justice in Scotland had, and have, misgivings about the proposal for a Supreme Court, and those were outlined in that response. No doubt, on some future occasion, I may require to return to them.

However, for the moment, I can at least welcome the assurance given by the noble and learned Lord to this House on 9 February that, leaving aside devolution issues, a decision of the Supreme Court would be of binding effect only within the particular jurisdiction from which the appeal had come. I trust that the Bill will contain a clause to that effect, along with such other safeguards as are necessary to preserve the separate identity of the law of Scotland.

My feelings in regard to the proposal, also announced on 9 February, that the Lord President of the Court of Session should no longer be entitled to sit in this House are rather different. I had supposed that it would be of assistance that those who hold the most senior judicial positions in the United Kingdom should be able to speak in this House for the judiciary in their jurisdiction on matters touching the administration of justice and that they could be relied on to do so without creating a conflict of responsibilities. It had seemed to me to be preferable that the views of the judiciary be communicated directly to Parliament, rather than merely explained in lectures or after-dinner speeches or the like. I refer only to speaking; voting is altogether another matter.

Quite apart from those considerations, I wonder whether there is a proper basis for individual life Peers to be singled out for disqualification from sitting.

I hope that your Lordships will not think that I have been unduly controversial in a maiden speech if, in the circumstances in which I find myself, I express the hope that my first opportunity to address your Lordships will not turn out to be something of a valedictory address.

Photo of Lord Alexander of Weedon Lord Alexander of Weedon Conservative 12:47, 12 February 2004

My Lords, it is my pleasure and honour, on behalf of the whole House, to congratulate the noble and learned Lord, Lord Cullen of Whitekirk, on his very remarkable maiden speech. He has a very fine record as a lawyer and a judge and perhaps an unrivalled record in the conduct of public inquiries. Over the years, he has conducted an inquiry into the Piper Alpha disaster, the Dunblane shooting and the Ladbroke Grove rail accident—all, so far as I know, in a way that has helped to do what judicial inquiries should do and promote public confidence. It is obvious that his speech, as, indeed, the notable speech that preceded his, is an eloquent illustration of the value that this House has received over the years from the contribution of Law Lords.

This debate on absolutely key constitutional issues is not before time. There was, as the noble and learned Lord, Lord Lloyd of Berwick, elucidated this morning, no prior discussion whatever on the vital principles involved in the changes to the judiciary which were so suddenly announced as part of the government reshuffle in June last year. Not surprisingly, those changes were met with a mixture of reactions varying from charitable scepticism to downright cynicism.

It was Mr Gladstone who said that our constitution presumes, like no other, the good faith of those who operate it. I have no hesitation in saying that, on that occasion, the good faith was shattered, and it has been left to the new Lord Chancellor to pick up the pieces and restore confidence to the process, as he is clearly working very hard to do.

It is plain to me that we now need what the judges described in response to the belated consultation process as a new, entrenched constitutional settlement. That is so important and I share totally the view of the noble Lord, Lord Kingsland, that there ought to be pre-legislative scrutiny of any draft Bill. To get it right for succeeding generations is far more important than to make changes speedily.

I have a keen interest in this process, both as a lawyer and, for the last 10 years, as chairman of Justice, the all-party law reform and human rights group. As the noble and learned Lord the Lord Chancellor has remarked this morning, it is now 30 years since a Justice working party, chaired by Peter Webster QC, argued for an independent advisory committee on judicial appointments. The suggestion sharply divided our members and led, indeed, to the resignation of the then chairman, Lord Shawcross.

A decade ago, we returned to the topic and reached greater agreement on a similar proposal from a group led by Professor Robert Stevens, of which the noble Baroness, Lady Howe of Idlicote, was a member. However, a key element of that proposal was that the commission should be advisory to the Lord Chancellor, whose office had developed a strong tradition of independence as head of the judiciary. For me, the most worrying part of the present proposal is the abolition of that office, with its formal and informal role in our constitution, and its replacement by a Secretary of State for Constitutional Affairs.

My noble friend Lord Kingsland has read out what was said by the Constitutional Affairs Committee of another place at page 7 of its report. I agree with every word of that. There is real anxiety about the replacement of the Lord Chancellor by a Minister in the House of Commons, who may have a very different background, characteristics, and ambitions, and who will not be imbued with the traditions of the law. What I find significant is that that report eloquently makes the point from a group of those versed in practical politics, most of whom are members of the government party. We need to dwell long and hard on what may be lost by the abolition.

In saying that, it had become increasingly apparent to me that the days when the Lord Chancellor could combine membership of the executive with the role of the head of the judiciary were coming to an end. The ministerial duties of the office grew and, as we saw in the tenure of the noble and learned Lord, Lord Irvine, the Lord Chancellor could have a central role in politics. Yet, at the same time, the judiciary had an ever-larger role in public law, increasing the boundaries of government power. It had become increasingly difficult for the Lord Chancellor to sit as a judge. This prompted me to believe and to suggest a couple of years ago that it might be well, in Talleyrand's words, to anticipate the inevitable and facilitate its occurrence by reshaping the function of the Lord Chancellor by his shedding the political function and retaining responsibility, including accountability to Parliament through this House as head of the judiciary and for the legal system.

I still think that that would have been the wiser solution, rather than the abolition of the office. It certainly would have left us with the traditional head of the judicial appointments process. The idea did not appeal, however, to the then incumbent or to the Government. Nor at that time did the Justice submission to Wakeham, contributed to by the noble and learned Lord, Lord Scarman, among others, that the time had come to separate the judiciary from the legislature with the creation of a Supreme Court. That is obviously no reflection on the excellence of the work of the Law Lords, and I know that some of them disagree with the proposal, for powerful reasons that warrant serious consideration. To me, it reflects the growth in the importance of their role as a separate branch of the constitution, protecting the citizen against the abuse of power and, increasingly, against the inappropriate use of power by the very legislature of which they are currently members.

In the days of A. V. Dicey, Parliament was absolutely supreme, and that may still be technically true; but, in reality, there is now a role of scrutiny by the judiciary of the powers of Parliament. They may have to decide on the validity of statutory instruments, on whether our domestic legislation is contrary to the law of the European Union, and whether it is compatible with the Human Rights Act. Indeed, waiting in the wings is a potential challenge to the Parliament Act 1949 which, as your Lordships know, was passed solely by another place. The challenge would be on the ground that that legislation was not within the powers delegated to the other place by the Parliament Act 1911. This would involve the judges in a decision on the extent and range of the powers of the very branch of the legislature of which they are currently members. I think that, and the other illustrations, give difficulties.

I would also share entirely the view expressed by the noble and learned Lord, Lord Nicholls, that the creation of such a court is heavily dependent on its having a proper building worthy of its constitutional importance, and a proper budget along the lines of similar courts in the United Kingdom and Australia. On television on Monday evening, Mr Leslie, the Minister with responsibility for the courts, said that it might need an interim home, possibly in its current accommodation in this House. To my mind, that would be a most unsatisfactory outcome, even on a temporary basis. I think that the Constitutional Affairs Committee of another place had it absolutely right when it said that surely any introduction of such a court should be postponed to the moment when it could coincide with the provision of a proper home.

I believe that many of us would welcome the view of the noble and learned Lord the Lord Chancellor, who has regularly said that he is committed to an independent judiciary. To me, it seems that his concordat with the Lord Chief Justice makes a good start. In particular, the role of the Minister is narrowly circumscribed. By contrast, in the case of the Supreme Court, I share the view that the appointment should be made by the Prime Minister and that he should be given a maximum of two names from which to choose.

However, we need to think through what will be lost in both formal and informal terms by abolishing the role of the Lord Chancellor. The Lord Chancellor can understand the needs of the profession. Perhaps I may give one brief example. Recently, the current Lord Chancellor overruled a suggestion of the bureaucracy that the eastern end of the Western Circuit should be put to the South Eastern Circuit. That would have emasculated the balance of the Western Circuit, and I am not sure that a non-lawyer would have been wise enough to appreciate that.

Equally, if the Lord Chancellor goes, who will fight the Treasury for legal aid, which carries few votes? Who will have ultimate statutory authority over the rules of the legal profession? Who will care about maintaining its independence, to ensure that the profession can stand up for the citizen and challenge government?

There is no doubt about the public nature of the work done by the profession. The legal profession and the judiciary differ from ordinary departments of government. They are not simply there to do the government will, as in, properly, education and health. They are there to ensure that the rule of law is able to stand against the government of the day. That is a differentiating factor.

I make two very brief points in concluding. I hope that there will be a Joint Committee of both Houses of Parliament, to ensure the accountability of any Secretary of State for Constitutional Affairs, and the opportunity for the Lord Chief Justice to speak on legal affairs and to make representations.

I would also like the House to give thought to what is meant by judicial independence. It is not simply an independent appointments system. It is not simply security of tenure. We must ensure in this legislation that the Secretary of State does not have power to trench on the independence of the judges to run their own courts. I hope that there will be no talk of targets; and I hope that there will be an opportunity for judges to determine the right level of representation in the courts to ensure a fair trial. I believe that that needs to be considered very carefully in the context of the Bill.

I thank the noble and learned Lord the Lord Chancellor for consulting Justice and for all that he is doing now to consult us all. We have far to go and I urge on him the most careful and deliberate future consideration.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour 1:00, 12 February 2004

My Lords, as a solicitor, at least until 5 December, I speak with some hesitation because I follow a number of Law Lords, judges, QCs and others. But I am not intimidated by that. I join with the noble Lord, Lord Alexander, in the praise that he offered to the noble and learned Lord, Lord Cullen, for his maiden speech. It was a model speech. I am sure that it will not be valedictory.

The noble and learned Lord, Lord Nicholls, who is not in his place at the moment, said that the present system works and that it should not be changed. I believe that the present system is capable of some improvement and so should be varied. The noble Lord, Lord Kingsland, made one of his more robust speeches—I am delighted that he is in the Chamber today—but I believe that he went a little overboard when he claimed that the Government are determined to undermine the judicial arm. I do not believe that he produced a scintilla of evidence to support that proposition. Of course, he relied on a sense of humour and sometimes he was quite funny, but what would he really prefer? As the noble Lord, Lord Lester, said, he would prefer to do absolutely nothing. I do not believe that that is a viable proposition.

For me, the independence of the judiciary—I have taken note of what the noble Lord, Lord Alexander, has said—is and must remain the cardinal feature of British constitutional practice. How then does the proposal for constitutional reform, reflected in the agreement between the noble and learned Lord, Lord Falconer, and the Lord Chief Justice, mirror that? Although we have not yet seen, let alone examined, the Bill which will set out the Government's proposals, the agreement to which I have referred presages a result very much in line with that essential component. It is incumbent on the entire Government—not just on the Secretary of State for Constitutional Affairs—to implement that statutory duty. As I understand it, he will be responsible to Parliament for the administration of the courts, while the Lord Chief Justice will remain the leader of the judges.

In my view, it is absolutely right that Ministers will respect the Judicial Appointments Commission's recommendations and that their power to vary them will be markedly limited. Of late, there have been signs that certain Ministers will not honour, in whole or in part, that particular duty. So I very much welcome what the Lord Chancellor had to say and I believe that any such variation would be unacceptable.

So how do the Government propose that the JAC will be comprised? Do they accept the proposition advanced by the Law Society that half of the members should be lay members and that there should be a lay chair? The argument of the Law Society is that the JAC itself has to be independent and must promote diversity. How are the members to be selected? I certainly hope that the process will be quite distinctive from the present position which militates against so many people. Too many people are simply overlooked. Under the new system, how will the more senior appointments be made? I hope that my noble and learned friend will reply to that point.

The Bar Council has welcomed the Government's proposals, albeit that they are only in outline. In my view, they are absolutely right to underline that the balance between the executive and judicial responsibilities has to be maintained. The chairman of the Bar Council has also raised an interesting proposition, that a judiciary committee should sit in the House of Lords, enabling the judiciary in that capacity—of course, it would be non-political—to express its points of view on constitutional and policy matters to the legislature. That point has been raised again today. What do the Government think of that suggestion?

I turn to the matter of the Supreme Court. I welcome the fact that serving judges should neither sit nor vote in this place and that the Supreme Court should not be able to strike down legislation. I also think that the concept of the Supreme Court Appointments Commission is worthy of support. But should the Supreme Court Appointments Commission make only one recommendation for each vacancy to the Secretary of State for Constitutional Affairs? Should it also be responsible for any other functions?

Finally, I turn to a point raised by the Lord Chief Justice about sufficient resources being made available to all the new institutions. I hope that my noble and learned friend can give us an assurance that that will be the case. In my view, the matter of adequate resources goes to the very heart of the new institutions' success. Of course, we do not know how much the premises which will house the Supreme Court and other institutions will cost, but the Government must have some idea of the cost of running them. I hope that some light will be cast on that when my noble and learned friend winds up the debate.

Today, I believe that this House has done itself proud and I am sure that that will continue to be the case. We have heard varying points of view on the new system. In general I support what has been said by my noble and learned friend. Others have differed, but in so doing we can respect each other's differences of opinion on this absolutely vital subject.

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop 1:10, 12 February 2004

My Lords, from these Benches I, too, add my appreciation for the maiden speech of the noble and learned Lord, Lord Cullen. It clearly illustrated how much benefit this House receives from such contributions.

One of the most important tasks for Parliament as a whole, and this House in particular, is guarding the health of our constitution. The British constitution is always changing. Written constitutions effect those changes by a formal process of amendment. Unwritten constitutions, such as ours, do so by the adjustment of custom and regular changes in political law. So there is nothing improper in our considering these proposals. Our duty is to test them against the values and principles which have informed our constitutional development and history.

In all of this, we cannot avoid commenting on the process which has led to these proposals. Of course, we are all grateful for the various reports setting out the thinking. But the process has given us the worst of all starts. To announce that it is intended to make radical changes to our constitutional provision in the midst of a Cabinet reshuffle skews all subsequent debate. Because the end—the abolition of the Lord Chancellor and the setting up of a Supreme Court—was announced at the beginning, we have been locked into specific outcomes from the start. It creates the sense, however unjustified some may think, that the issue has been decided. Parliament exists to call such processes to account.

We all respect the process which goes thus: consultation, Green Paper, and discussion; the firming up of proposals, which might be a White Paper, and debate; and eventually the publishing and work on specific Bills. The process which has led to today's debate has lacked that tidy procession.

However, I wish to raise some specific questions of principle. When I studied constitutional history, I was taught that the constitution of this country was unique in at least two respects: it is an unwritten constitution; and it is unitary in character. That distinguishes us from those who developed democratic systems following revolutions who have written constitutions and the separation of powers in a variety of forms.

The obvious contrast is with the United States of America. Here, in Parliament, the Crown, with the representatives of the people and the nations, is called to hold Government to account, to legislate, and to be the highest court of our land. Executive, legislative and judicial functions are intertwined. Such a constitution is flexible and always open to change to ensure that the people continue to have confidence in it. That is why Parliament is properly called the High Court of Parliament. Is it now intended that this historic responsibility which lies with Parliament is to be brought to an end?

My first question concerns the language and frame of ideas within which these proposals are set. Are we moving our constitution in the direction of one shaped by the separation of powers? If so, has anyone thought where this will lead us? A true separation of powers places the executive over there, the legislative here, and the judicial functions somewhere else. That is not how our democracy has evolved. Let me be clear. I have nothing against a system based on the separation of powers. The American and other such constitutions are fine examples of democratic history. But that has not been our history and I want to know where we are going if we are not drifting into a muddle. First, the judiciary are removed from the system; then Church and state are separated—some would want that; then we move to a presidential system with the executive out of Parliament. And, finally, where is the Crown in all of this? I know that these are not thoughts in the Government's mind but we have to consider the direction we are taking.

My second major worry concerns the role of politics and politicians. Would anyone in this House suggest that the US Supreme Court is not a highly political institution? The Supreme Court is a superb court with a record of brilliance in many of its judgments. But no one would suggest that it is not political—nominated by the executive, scrutinised by the legislature. That is how it is formed—upfront and transparent. There is no denying the role of the political element. My question concerns what is meant by an independent process of appointment. It is neither right in principle nor realistic in practice to suggest that there is no serious political influence. At least in the patronage of the Lord Chancellor that is clear. People so appointed have shown no sign of abandoning the cherished independence of the law and of the courts. It is also worth remembering that the historic character of the office of the Lord Chancellor has given the person holding that role some distance from the narrower definition of political life.

I am not arguing against change. It may well be that we can find better ways of working which will bring fresh energy into our constitutional affairs. My concerns relate to the thinking and shape of mind in all of this. The wrong language and shape of understanding will lead to poor solutions.

As the Lord Chancellor himself has implied, the present system continues to deliver excellence in our courts and, if I may so say, excellence in the work of the Lord Chancellor. I do not detect that the public have lost confidence either in the Law Lords or in the Lord Chancellor. So it is possible to give ourselves time to ensure that the language and shape of understanding are clear, rooted in our traditions and history and the changes proposed make excellent sense of what that tradition might mean in the contemporary world.

I conclude with this suggestion. The Government might achieve much of what they are after even if they may have to rethink the framework of understanding within which they are operating. Let us take our time and do the job well. Our constitution is too valuable for any other.

Photo of Lord Elton Lord Elton Conservative 1:18, 12 February 2004

My Lords, noble Lords who are present for the Statement will have to wait a little longer. Those noble Lords who are hoping for lawyers' speeches will be disappointed. I speak not as a lawyer but, with great humility among such a galaxy of legal opinion and expertise, as a Member of your Lordships' House and as a former Minister of State in the Home Office.

It seems to me that the whole of the debate turns on the effect that these changes will have on the law and the courts. But it is time that your Lordships took on board the effect they will have on this House and on Parliament. The function of the House is to warn the executive of dangers and mistakes it may be in danger of making and to restrain it up to a point if the House is unable to get its warning home. The direct channel from this House to the executive is the two Members, at present, who are always members of the Cabinet: the Leader of the House and the Lord Chancellor.

The first effect of this change will be to halve that representation. In fact, any of your Lordships who have sat in a committee in which there are two views on a contentious matter will know that it does worse than halve it. A solitary voice in a committee addressing a majority opposed to it is nothing like as effective as a concert of views between two people advancing their opinions.

I have sat in Cabinet committees myself. It was very clear to me that your Lordships' House was not understood and not favoured by most of the people there who were Members of another place. When the realities of the dynamics of this place were explained, they were not understood.

The advantage of having someone of the same opinion as oneself at the table cannot be overstated. There is no recognition of that in what has been put forward. There has been only one mention of it in the course of the debate so far. I suggest to your Lordships that it is part of a marginalisation of this House which some think is deliberate, but which is certainly happening and has occurred during the tenure of this Government and their predecessor.

The process started with the eviction of a very large number of hereditary Peers—independent voices. Much has been made of the enormous predominance of the Conservative vote that that procured. I see the noble Lord, Lord Borrie, nodding his head, but the noble Lord was not here when I was taking the Police and Criminal Evidence Bill through this House in 1984 when I hung on the words of Lord Denning because if he stood up and said that he thought that the Minister had got it wrong, I was actually likely to be defeated—a Conservative Government with a majority of hundreds.

Lord Denning contributed a stream of wisdom and common sense to your Lordships for decades. He was part of a tide of information and advice coming through the legal channels into this House as a result of our present constitutional arrangements. Those are going to be swept away. Your Lordships have been considering what they will do outside this House; I am asking your Lordships what will their absence do to this House and its performance. It will lose a valuable perspective in its understanding of how the country works.

The noble and learned Lord, Lord Scarman, contributed invaluable advice following his inquiry into the events in Brixton, which informed government policy through this Chamber. That is one of thousands of examples. It is being lost without comment and almost without apology.

I raised this matter when the noble and learned Lord the Lord Chancellor made his Statement two or three days ago. He said that it would be open to Law Lords to come to this House after they had retired. I hope that whoever is considering the possibility of an age limit in this House heard the rider to that; that they would be able to serve part time in the Supreme Court until they were 75. If they do not, even that little window will be lost. The noble and learned Lord, Lord Nicholls, gave a good example—and is a good example—of the value of having Members of the judicial Bench in the Chamber, learning about a perspective of affairs to inform their judicial function, but making—he did not say this—an invaluable contribution to our affairs here. Those are the two vital issues of which, I think, we should not lose sight.

I now join the right reverend Prelate in deploring the way in which this has been brought about. If you announce the conclusion of a consultation before it begins, which is what happened the night of the reshuffle, the consultation is null and void. The conclusion of what we are asked to discuss actually precludes any but marginal alterations; that is, only within the terms of what the Government have set their hand to. That is why I think that the concordat, which was politically brilliant and administratively very convenient, was in fact constitutionally most unfortunate because it short-circuited a whole range of discussions which should have been carried out in the open but which were in fact carried out behind closed doors. That is why the conclusion of the Select Committee in another place—the condensed version of what my noble friend read from the Dispatch Box an hour or so ago—bears repetition. It says:

"The proposed changes . . . are being bundled together and dealt with over a very short timescale as a single reform. This is unwieldy and, in the case of some of some of the proposals, precipitate. The proposed changes could be brought in incrementally.

The consultation process has been too short and the legislative timetable is too restrictive to deal with changes which are so far reaching in their effects. The reason for haste seems to be primarily political.

My noble friend pointed out where this committee was coming from politically, which gives it great authority. It recommended that,

"the Government proceed with the Bill as draft legislation to enable proper scrutiny of these fundamental changes".

That will not enlarge the discussion as widely as it should have been before this Bill was dreamed up.

I just want to say again that the effects of this proposal on this House are exceedingly important. This House is part of a Parliament designed to restrain the executive. My noble friend, I think it was, said that it might be a good thing if the executive was removed with the judiciary from this Chamber. That is not a revolutionary proposal. It never was in here until the reign of George I. That is the moment at which the power of Parliament began invisibly to decline, accelerating in the last century, and becoming breathtaking at the present time. It was the introduction of the first Minister into the House of Commons with a power of patronage that gave the executive of the day—not the Crown; it stayed outside—the power to manipulate the House of Commons, and that power has grown and grown ever since.

That is why it is so important that this House should remain independent. That is the principal argument against the removal of so many hereditaries; it is the principal argument against an elective House of Lords because only by subscribing to a particular political party—and a big one—can you get elected to Parliament in this day and age. That is the door by which that patronage and that power will come into this House. It is against that tide that I ask your Lordships very late in the day to beware and to remember as you legislate.