Supreme Court and Judicial Reforms

– in the House of Lords at 2:00 pm on 12 February 2004.

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Debate resumed.

Photo of Lord Craig of Radley Lord Craig of Radley Convenor of the Crossbench Peers 2:14, 12 February 2004

My Lords, in the course of my remarks during the debate about the Speakership report last month, I said:

"I am far from persuaded that the reforms of the judicial role and functions of this House and the upheaval involved following a difficult and contentious passage through Parliament will produce a better or more cost-effective outcome. Indeed, they would deprive this House of a most important responsibility, weakening that which is left".—[Official Report, 12/1/04; col. 393.]

That last point is self-evident. The importance of sustaining the roles and functions of this House has not been a matter of dispute. However, the abrupt removal of the Law Lords and their membership of this noble House would change that. It strikes out one of the roles. It weakens this House.

Embedding the Lords of Appeal in Ordinary in this House provides them with a far greater level of protection within Parliament than their successors might enjoy in a Supreme Court. Any unwarranted attack on them individually or as a group would be an attack on Members of your Lordships' House and an affront to the primacy of Parliament. Far from enhancing independence if they were moved to a Supreme Court, it could weaken it.

That view was strongly upheld in a note written in November 2002 by the Lord Chancellor's Department, no less. It was commenting on a draft resolution about our judiciary to be put to the Parliamentary Assembly of the Council of Europe. I quote the Lord Chancellor's Department:

"The draft resolution is mistaken in suggesting that the Lord Chancellor's combination of functions calls the independence of the English judiciary into question. On the contrary it is one of its more important safeguards.

Our Parliamentary democracy makes for a considerable fusion of the executive and legislative branches. Unlike, for example, the position in the United States, every Cabinet Minister is a member of one or other Houses of Parliament. Taken with our doctrine of Parliamentary sovereignty, and the powerful influence of the executive upon the legislature, the judicial arm is not as strong, yet it must ensure that the executive is kept subject to the rule of the law.

The Lord Chancellor provides a counter-balance for the judicial branch against the centralised power of government and Parliament".

The note continues:

"The Lord Chancellor is removed to the House of Lords away from the full force of party politics.

The Lord Chancellor is thus the judges' guardian and representative in the Cabinet and Parliament.

His answerability to Parliament for the overall administration of justice, and his removability as a Minister, provide a degree of accountability for the judiciary as a whole which would be inconsistent with the professional judges' necessary security of tenure".

However, only six months later all those departmental arguments in support of the Lord Chancellor's position and the Law Lords were dumped. Are Her Majesty's Government suddenly so fearful of an adverse judgment under Article 6 of the human rights convention which came in 50 years ago, that centuries of usus and "opinion necessitates" (custom and its acceptance) provide no legal defence today—the more so when there is the widest agreement that the Law Lords discharge their duties most admirably?

I am reminded of the recent judicial pronouncement in the case of sudden cot deaths that the evidence of expert witnesses alone is not enough. The experts' views must be accompanied by material evidence before an accused should be found guilty.

We should apply the same test to the proposals for a Supreme Court. We have the current fashionable view of some if not all legal experts, but there is not a shred of factual evidence that damns the Appellate Committee. Instead we have a Government trying to bulldoze through a package of constitutional reforms of stupendous import, and contrary to their own strongly expressed views of only a year ago.

If they thought that there was a case for a change of such importance, why on earth tackle it in such an ill considered, ill mannered rush? Maybe our European neighbours have more enlightened judicial arrangements led by Montesquieu's doctrine of the separation of powers set out in 1748. Yet Montesquieu, it seems, was a great admirer of the British constitution and was never critical of the triple role of the Lord Chancellor. Surely, even for a Government so adverse to inquiries, this topic, if it is to be pursued, calls out for a Royal Commission and not merely pre-legislative scrutiny.

What goes forward in our centuries-old unwritten constitution must enjoy widespread national understanding and cross-party support. These proposals are too fundamental to be enacted suddenly by a "here today, gone tomorrow" administration, no matter how strong its contemporary position.

The proposals agreed between the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Chief Justice, like those for the Speakership, are contingency planning. But like those for the Speakership, they show up problems too.

There are numerous occasions when the Secretary of State for Constitutional Affairs and the Lord Chief Justice have to concur or consult with each other. Page 13 of the document lists 11 examples of these in a table but they are by no means the full story.

I looked at the arrangements which would be invoked in the event of a complaint about the behaviour of a judge. The respective roles of the Lord Chief Justice and the Secretary of State seem reasonable and unobjectionable at first. The document states that they,

"will be jointly responsible for the operation of the complaints system and jointly responsible for the final decisions in relation to individual complaints".

But a couple of paragraphs later we read that,

"the Secretary of State will be able to require a judicial investigation in a particular case".

That is without the concurrence of the Lord Chief Justice.

The Secretary of State and the Lord Chief Justice must both agree to the imposition of a disciplinary action, although either may order the judicial investigation of a serious complaint. They may then accept its findings or, the document says,

"either of them can refer the complaint and the report to the review body for reconsideration".

What concerns me about this tortuous process is the scope for possible abuse to the detriment of and respect for the judiciary.

Judgments that are inimical to the government of the day could lead to political pressure being applied to the Secretary of State to have investigated the private life of the judge concerned when a complaint was made. Once such an investigation has been set in train by the Secretary of State, immediate trial by media of the judge will be inevitable. Even if the judge is found guiltless of any charge, his standing and integrity will have been damaged by political interference, perhaps fatally to his further career and incrementally to the judiciary itself. In his excellent maiden speech, the noble and learned Lord, Lord Cullen, drew attention to other problems with the concordat.

I foresee threats to judicial independence when the Secretary of State is no longer a Member of this House, and maybe not even a member of the legal profession, and sits in another place. One has to look no further than across the Channel at the allegations in the Alain Juppe case to see the judge was being pressured by the state.

Such thoughts also lead me to question whether the responsibilities of the Home Secretary and the Secretary of State for Constitutional Affairs for the criminal and civil systems of the law could also become far more at risk to disagreement and dispute and could lead to difficulties, particularly when both Secretaries of State may be aspiring, ambitious, members of government.

While it is essential for the Lord Chancellor and the Lord Chief Justice to agree proposals about what might be put in place if the Lord Chancellor's post is abolished by statute, surely it does not mean that this concordat therefore underwrites an acceptance or agreement that the Lord Chancellor's appointment should be scrapped.

It would be wrong to argue that the concordat clears the way for the abolition of the Lord Chancellor's post and I hope the incumbent will not be tempted to do this. It would not be worthy of him.

These proposals, and those to set up a Supreme Court, give an opportunity to compare the Government's proposed changes with the current arrangements and to judge whether they are as good, better or worse than the present well tried and tested system. They are not better. They are not even comparable. They are much worse so far as the integrity and impartiality of the judiciary is concerned. They weaken your Lordships' House. Must all this be sacrificed, and at what cost to the taxpayer?

The noble and learned Lord the Lord Chancellor must have thought about cost. I hope that he has and that he will tell this House the present running costs and those for setting up and running the Government's proposals. We should not make such monumental changes with no idea of the price tag.

Photo of The Earl of Onslow The Earl of Onslow Conservative 2:24, 12 February 2004

My Lords, Montesquieu, who has already been commented on, is the person who started all this trouble. It will be clear to your Lordships, especially those who are better educated than myself, that Montesquieu noted that in England the powers were separate—not separated but separate, as they happen to be the same word in French. He commented on this as a method that deserved admiration. He was right. Because the Americans misunderstood Montesquieu, mistranslated him and made a completely different constitution by accident, we now do not understand what we mean by the separation of powers. It has to be either the American version or our version. Our powers are separate—they perform different functions.

I remember getting angry when it was suddenly announced on television that the Lord Chancellorship was going to be abolished. I moved the adjournment of the House because I thought it was the most ill-mannered, cack-handed way to behave. I do not resile for one tiny moment from that opinion.

There is a song by Rolf Harris about two little boys, who had two little toys. I imagine the two little boys, the noble and learned Lord the Lord Chancellor and the Prime Minister, jumping about in their flat thinking, "Yippee! What shall we do? Shall we ruin the constitution? Oh yes, let's abolish ourselves". What an incredibly irresponsible method of looking at constitutional affairs. So, they came down to this House, under pressure, and made a Statement, having already made up their minds without having put any thought into it. It was admitted that nobody was consulted. It was admitted it was done off the back of an envelope. The Prime Minister admitted it was done incompetently. So why should we not say that this is an incredibly bad idea and please think again?

I served on Sub-Committee E of the European Union Committee under the noble and learned Lord, Lord Scarman. The great thing about the noble and learned Lord, Lord Scarman, was that whenever he spoke one's mind worked another notch or two. It was wonderful to listen to him and to participate in the committee. I think the committee worked extremely well. The point is that if he is not going to be a Member of the House he cannot sit on that committee and the House will be immensely impoverished as a result.

The problem with our constitution is that it can be changed at the whim of two little boys with two little toys. They just bang it through; there are no entrenched constitutional arrangements that can be brought into play. If the noble and learned Lord were to say that before this is done he would give the new Supreme Court a Bill of Rights that is properly entrenched and which can strike down an Act of Parliament it thinks is out of line with what Parliament is doing, then that might have some merit.

The Supreme Court will be housed in a new building. Who will build it? Could it be the Minister in charge of the Dome? He is smiling and nodding. It costs £187,000 to keep the noble and learned Lords in business upstairs. What will the new Supreme Court cost? Millions. It will be in a new building and we do not know where that will be.

The noble and learned Lord, Lord Irvine, great man though he was—that he is—

Noble Lords:


Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, noble Lords may laugh because you think he is not here, but he is still here. The noble and learned Lord, Lord Irvine, could be criticised for being too proactive as Lord Chancellor. I suggest that is the fault of the Prime Minister for allowing him to chair those extra Cabinet committees and not confining himself to the duties of Lord Chancellor.

The Government's record on constitutional change is pretty bad. The present Lord Chancellor does not seem to think there is a contrast with what the noble and gallant Lord, Lord Craig, quoted about the policy of the Lord Chancellor's office of only 18 months ago. He does not seem to see that the pledge given by the noble and learned Lord, Lord Irvine, on the hereditary peerage was binding in honour. He says that circumstances have changed. Circumstances changed also in the period between the Treaty of London, which guaranteed Belgium's independence, and 1914, but that did not stop us honouring the treaty.

The Government have abolished double jeopardy for certain offences. The Government want to lower the standard of proof. They want to lock up people without trial. That is not a good record of looking after democratic and libertarian principles. It is an appalling record. I leave aside the oddities of the West Lothian question. If by any chance there were to be a Labour government over the whole of the United Kingdom after the next general election, but a Tory opposition, then Scottish Labour MPs would be imposing their own rules on Tory England. That is not a good effort. The Government boast of their constitutional change, but I think that it has been ill thought out on the back of a tacky cigarette packet—Woodbines Best perhaps.

The noble and learned Lord the Lord Chancellor does not have the right to abolish a 1,000 year-old office. How dare he abolish the office held by Becket, More and Lord Halsbury and that all the Hailshams seem to have held. It is a sad day for the understanding of a liberal democracy, for the rule of law and the high court of Parliament.

Photo of Lord Hoffmann Lord Hoffmann Crossbench 2:31, 12 February 2004

My Lords, on 2 April last year, the then Lord Chancellor gave evidence in another place to the Select Committee on the Lord Chancellor's Department. It was a considered statement of government policy and I have no doubt that, in accordance with the usual practice, it had been cleared with the Prime Minister's office in advance. He was asked about the constitutional position of the Lord Chancellor, and he replied by quoting with approval what my noble and learned friend Lord Bingham of Cornhill had written on behalf of the Judges' Council when he said:

"We have no doubt that the Lord Chancellor's dual role has historically proved invaluable in maintaining the independence of the judiciary in England and Wales and we have considerable anxiety that any other arrangement would result in time in the encroachment of executive government into the proper sphere of judicial independence essential in a democratic society".

When he was asked about the principle of the separation of powers, my noble and learned friend Lord Irvine of Lairg said:

"We are a nation of pragmatists, not theorists and we go quite frankly for what works".

When he was asked about creating a Supreme Court, the then Lord Chancellor said:

"The question is whether the present system is a good system".

He said that in his opinion it was. Furthermore, he said that a new Supreme Court would require a suitable building. There was in his opinion a prior need for other court buildings up and down the country.

Less than 10 weeks later, on 12 June, the Prime Minister announced that the office of the Lord Chancellor had been abolished. Someone must have pointed out that he had no power to abolish that office; because the press office at No. 10 Downing Street then issued a clarification saying that it was the Government's intention to abolish the office. Meanwhile, my noble and learned friend Lord Irvine of Lairg was removed and replaced.

It was a remarkable change of policy; made in such haste that, as the first announcement showed, it did not allow time even for private consultation with someone who understood the constitutional position of the Lord Chancellor. And the reason given for the Government's volte face was a sudden realisation that the position of the Lord Chancellor infringed the principle of the separation of powers. Well, that may be, but I doubt whether many juries would believe it. The circumstantial evidence—the secrecy, the haste, the misfired announcement, the public knowledge of personality clashes between my noble and learned friend Lord Irvine of Lairg and other members of the Cabinet—all points to a different explanation. Perhaps my noble and learned friend Lord Hutton ought to be asked to investigate.

One possible answer is that the Prime Minister decided that the then Lord Chancellor had to go, and for some reason his removal had to be dressed in the robes of high constitutional principle. And as the Government were representing that the principle of the separation of powers was the reason for the abolition of the office of Lord Chancellor, it was necessary for the sake of consistency to abolish the judicial functions of your Lordships' House.

It is sad that a great constitutional change should be adopted as a quick fix for personal squabbles in the Cabinet. One of the glories of this country's constitution, unique in the world, has been its continuity. Institutions such as the Lord Chancellor have adapted themselves over centuries to new constitutional roles without having to make a new start. We have never had a year zero in this country. But that has been achieved not by statutes, and not as is said by the particular personalities of those who held the office, but by the acceptance of constitutional conventions about how the holder of the office ought to behave. It is those conventions, accepted and handed on by successive Lord Chancellors, which have given us an independent judiciary of a quality which is the envy of many other countries.

It is no use crying over spilt milk. My noble and learned friend the Lord Chancellor has renounced the powers of his office and the conventions that went with it. He has broken the mechanism which served us so well in the past. Its effectiveness depended on the willingness of people to make it work. Once it is gone, I doubt whether it can be put together again. So my noble and learned friend the Lord Chief Justice and the Judges' Council were doing the best they could to try to ensure that these new and untested proposals for securing the independence of the judiciary are the best that can be devised.

I want, however, to say something about the proposal for a Supreme Court which has got through, so to speak, on the coat-tails of the proposal to abolish the office of Lord Chancellor. There the milk has not yet been spilt and it is open to your Lordships to present proposals to prevent something which is valuable from being lost. I agree with the noble and learned Lord, Lord Nicholls, that there are real advantages to our work being done here. I do not accept the suggestion of my noble friend Lord Lester of Herne Hill that all we want is to belong to an agreeable social club.

As for our contributions to your Lordships, that is not for me to say, though I note what the noble Lord, Lord Elton, and others have been kind enough to mention. But I do not flatter myself that your Lordships could not manage without us; and if we were drawing up a constitution for the first time we would very likely be ordering things differently. But this is the United Kingdom and we are not drawing up a constitution for the first time. And just as there may be no overwhelming arguments for having us here, so, equally, there are no very strong arguments for getting rid of us.

No one suggests that our membership of your Lordships' House compromises our independence. The House of Lords as a judicial body has a high reputation throughout the world. When I discussed the matter recently with an eminent Caribbean judge who had sat here as a member of the Privy Council, he said:

"You British don't realise what you are throwing away".

What we have works and is recognised to work.

The distressing feature about the proposal for the Supreme Court is its abandonment of the constitutional pragmatism on which this country has always prided itself, in favour of a sudden enthusiasm for a fundamentalist interpretation of the principle of the separation of powers. The judicial functions of your Lordships' House are to be rebranded as if they were a commercial product which an advertising agency thought needed to be repackaged and relaunched somewhere else.

And this repackaging comes at some cost. It remains to be seen where the new Supreme Court is to be housed. Some of the sites under consideration have been disclosed to us in confidence, because it is said to be a commercial matter, but I think I am entitled to tell your Lordships that officials from the department of my noble and learned friend the Lord Chancellor have drawn up a system for awarding marks for the various qualities of the buildings under consideration. Under this system, a certain number of marks is awarded for whether the building is of a character suitable to be the Supreme Court of this country; which can bear comparison with the Supreme Courts of other countries. But twice as many marks are awarded for what is called value for money and speedy delivery; that is, getting us out of here as soon as possible. I am bound to say that the Government seem to me to have their priorities seriously wrong. I quite accept that it is not going to be easy to find a suitable building in central London. But what that suggests to me is not that we should compromise on being housed in an unsuitable building but that the whole enterprise is misconceived.

This expensive exercise is being undertaken for purely theoretical reasons at a time when there are courts all over the country, even in the Royal Courts of Justice, in serious need of renovation. The Lord Mayor said the other day that the buildings and facilities of the commercial court were a disgrace. He speaks the truth because I have seen them and they are. This is serious because English commercial law is the jewel in the crown of our common law and its world-wide use in the settlement of commercial disputes in London is of great economic importance. These are serious practical problems. They are surely more deserving of better attention than the imaginary problems which the Government propose to address by the creation of a Supreme Court.

Photo of Lord Borrie Lord Borrie Labour 2:41, 12 February 2004

My Lords, I am in favour of some of the Government's proposals. These include the appointment of judges by or on the recommendation of an independent Judicial Appointments Commission and ending the right of a Cabinet Minister, namely the Lord Chancellor, to sit as a judge. I do not see the need for—or the desirability of—the abolition of the office of Lord Chancellor and I rather doubt the need to create a Supreme Court severed from this House.

The present system of appointing judges in which the whole process is in the hands of a government Minister has been abused in the now somewhat distant past. It is anomalous and increasingly inappropriate when judges have to adjudicate more and more upon the lawfulness of the actions of the executive. The appointment of judges should be made by or on the recommendation of a well-balanced, independent Judicial Appointments Commission of the kind proposed by the Government. The details of the composition and procedures have been improved following discussions between my noble and learned friend the Lord Chancellor and the noble and learned Lord the Lord Chief Justice.

Unlike the noble and learned Lord, Lord Hoffmann, who has just spoken, I do not believe that the whole thing is over and done with. There is value in retaining the office of Lord Chancellor, headed by a lawyer with a senior position in the Cabinet and continuing the tradition of particular responsibility for upholding the independence of the judiciary and the rule of law in Cabinet and elsewhere. I regret that my noble and learned friend, Lord Falconer of Thoroton, unlike other Lord Chancellors of recent times, has been demoted in the list of Cabinet members which appears regularly in Hansard and elsewhere. I would regret it even more if the Lord Chancellor were replaced by a non-lawyer as is envisaged by the Government.

As many speakers have already said today, the Government's case for a Supreme Court is stronger in theory than in practice. It rests on the theory of the separation of powers. Probably we all accept in this House as a general proposition that judges should not sit as legislators and vice versa. In recent years Lord Chancellors have only rarely sat as judges, depending perhaps on the interest, willingness and personality of the particular holder. But only rarely have they sat, if only because they have enough to do in their other work.

Like, I daresay, many of your Lordships, I was glad when the present Lord Chancellor announced that he, as a Cabinet Minister, would never sit as a judge. But surely there is no need to carry to extremes the theory of separation of powers. It would be very odd indeed if Members of the other place—and some Members of this—were disallowed from acting as part-time judges. Some of them are recorders or deputy High Court judges and the interchange of experience is valuable. I have doubts whether we should exclude current Law Lords and other holders of high judicial office from sitting as legislators in this House.

The Library of your Lordships' House recently produced a useful paper showing how much they have or have not spoken in this House in recent years. We know that only a minority of them do take part in our debates and even then only occasionally. But why go to the length of depriving ourselves of the opportunity of hearing the Lord Chief Justice speaking on a criminal justice Bill, or debates such as today's in which Law Lords are taking an active part? To repeat the example given by the noble Earl, Lord Onslow, why deprive ourselves of having a Law Lord chair the European Union Select Committee's sub-committee on law and institutions?

My noble and learned friend the Lord Chancellor has said that retired Law Lords might be made life Peers. I would have thought that retired Law Lords might be more useful and keener to take part in our deliberations if they had taken some part in our work before they reached the age of 70 plus. The noble Lord, Lord Neill of Bladen, had this to say last year at the memorial service for Lord Wilberforce:

"Even when a Law Lord, Lord Wilberforce was not, I think, over-impressed by fashionable arguments about the separation of powers. With his pragmatic approach to problems he saw no harm in a Law Lord initiating a debate—or intervening—on such topics as law reform, higher education, treaty implementation, the protection of the weak—to name but four matters where his interests were heavily involved. Naturally, he would never allow himself to sit judicially in a case where he might conceivably be thought to be parti pris."

As the noble Lord, Lord Lester of Herne Hill, mentioned earlier, there is a difficulty when a Law Lord is contemplating taking part in one of our legislative debates. He cannot be sure that the subject will not be relevant to some later case on which he is asked to sit judicially. Several instances from the 1990s are given in the article in the current issue of Public Law to which the noble Lord referred. Law Lords have spoken on matters relevant to later cases. The Pinochet case and Pepper v Hart were two such cases. In the Fire Brigades Union case on criminal injuries compensation, it was apparently difficult to constitute a Bench to hear the appeal. That was because so many Law Lords had already spoken out legislatively against the proposals of the then Home Secretary which were the subject matter of the litigation.

I doubt whether we need to go to the lengths of throwing out the Law Lords and creating a new and expensive Supreme Court separated from this House in order to deal with this difficulty. In practice, surely it should suffice to rely on the statement made by the senior Law Lord, the noble and learned Lord, Lord Bingham of Cornhill, in June 2000 outlining the limitations under which Law Lords would exercise their present right to speak in the legislative Chamber. When my noble and learned friend the Lord Chancellor made his Statement on the Supreme Court earlier this week, he said in a reply to me that the Government do not argue that that guidance of 2000 is inadequate.

I cannot imagine how the independence of the judiciary, a concept with which we all agree, would be any stronger among members of a new Supreme Court than it now is among members of the judicial committee of this House.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 2:50, 12 February 2004

My Lords, it is a privilege to follow the noble Lord, Lord Borrie, who seemed to make a very strong case indeed. I agree with almost everything that he said. Like him, I start with the position of the Lord Chancellor. The question that I ask myself is a simple one, and noble Lords will see that I do not put it very high. That question is about whether it is in the public interest that the office of Lord Chancellor should continue to exist. My answer is an unhesitating, "Yes".

In his opening remarks, the noble and learned Lord the Lord Chancellor referred to the evidence of Justice before the Wakeham commission, but he did not refer to the evidence of the Judges Council. According to its evidence, the judges had no doubt that the dual role, as it called it—others have used the same phrase—of the Lord Chancellor as head of the judiciary and as a member of the Cabinet had proved invaluable in maintaining the independence of the judiciary. One finds those words echoed over and over again. The judges were concerned that any other arrangement would result in a gradual erosion of judicial independence and a gradual encroachment by the executive on what are properly to be considered judicial functions.

We thus get to the supremely ironical position that the Government, whose whole case is based on the need to preserve the independence of the judiciary, are by their proposal to abolish the office of Lord Chancellor taking the step most likely to endanger that independence.

However, it is said that that is of no matter, because we can substitute for the Lord Chancellor a statutory duty on the Secretary of State, and on everyone in the Government, to preserve the independence of the judiciary. What does that mean? It is easy to impose a statutory duty—it sounds fine—but it is mere words unless it means something in practice. How will the statutory duty be enforced? Who will bring the proceedings to enforce it? What will be the remedy for breach of it? If ever we were to embark on an uncharted sea, that would be it, yet we are proposing to do so in place of a Lord Chancellor and the functions that he has performed, which we all know so well. I simply cannot accept that a statutory duty is an adequate substitute for a man on the ground—a senior member of the Cabinet, such as the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg—who could speak up for the judges in Cabinet when their independence is threatened or their functions are about to be curtailed.

Let me give an instance of how that can happen; it is actually happening at the moment. We all accept that judicial review lies at the very heart of the rule of law. I have no doubt that it is because of the presence of Lord Chancellors in Cabinet over many years that judicial review is still with us—that we still enjoy its full protection—given that it has been threatened on many occasions by Ministers who would so like to limit it. Clause 11 of the asylum Bill currently before the other House contains a proposal to abolish judicial review. I view that clause with very considerable alarm. It is only the start of what might happen.

How have we come to this pass? As recently as 7 March last year, the Government were saying that the case for reviewing the role of Lord Chancellor had not been made out. They said that his unique position as head of the judiciary and a member of the Cabinet enabled him to mediate between the executive and the judiciary. I entirely agree. So what has changed since? To put it more particularly, what changed between March and June 2003? One thing only changed; namely, the incumbent holding the office.

The truth is that we now have a Lord Chancellor who is nothing if not a politician, and I am sure that the noble and learned Lord will not mind me saying that. Indeed, one might say that he was nothing but a politician. He does not want to be head of the judiciary or our Speaker. He does not want to fulfil all the other roles that the Lord Chancellor has traditionally performed. That leads one to think that if those really are his views—I have no reason to doubt it—might it not have been better had he declined the office when offered it? Might it not have been better had the Prime Minister appointed a Lord Chancellor in a more traditional role, so that proper consideration could be given to the future of the office in a more measured way?

Instead, as we all know, the Government committed themselves to the abolition of the office overnight, and the noble and learned Lord and his staff moved out the next morning, without any consultation at all. That is not the way to carry out fundamental constitutional changes. As the excellent report of the Constitutional Affairs Committee in the other place asked, what on earth is the hurry? It cannot simply be to satisfy the needs of the present incumbent of the office.

I will mention one other way in which it seems that the Lord Chancellor has done us nothing but good. No one would forget the way in which the noble and learned Lord, Lord Mackay of Clashfern, piloted through the Children Act 1989, or the way in which the noble and learned Lord, Lord Irvine of Lairg, piloted through the Human Rights Act 1998. It is very important to perform such functions in this House. Who will perform them if the office of Lord Chancellor is abolished? They will be lost irrevocably to this House if we set about such a reform in that way. I accept, as we all do, that the Lord Chancellor should not now sit on appeals, although it has never done any harm of which I am aware. If that is the real problem, it would be easily solved by his simply saying that he will not sit in future.

I had intended to speak on the subject of the proposed new Supreme Court, but the points have been put so admirably well and with such precision by my noble and learned friend Lord Nicholls that I will not follow him down that line; I agree with everything he said. However, I will mention one point. The noble and learned Lord the Lord Chancellor referred to the evidence of the noble and learned Lord, Lord Bingham, to the Constitutional Affairs Committee of the House of Commons.

The line taken by the noble and learned Lord has always been that the Law Lords are judges and not legislators. Where does that argument carry him? Exactly the same argument could be made about the many distinguished doctors in the House. They are doctors not legislators. Who will say that they do not make a valuable contribution to the functions of the House? Why should only Law Lords be excluded from membership of the House simply on the ground that they are judges? That point was made by the noble and learned Lord, Lord Cullen, in his excellent maiden speech. A case has not been made and I hope that the legislation will never be brought forward.

Photo of Lord Hobhouse of Woodborough Lord Hobhouse of Woodborough Chair, Consolidation etc. Bills (Joint Committee), Chair, Consolidation etc. Bills (Joint Committee) 3:00, 12 February 2004

My Lords, people have spoken elegantly and eloquently about all of the difficulties that exist in the Government's present proposals. I had proposed to address your Lordships on the detailed document, which starts a long way down the line and accepts a fait accompli up to that point. That fait accompli is receding further into the distance. I shall still make a few short points and my most useful contribution will be brevity.

First, there is confusion about our constitution. It slides from reference to the Government as incorporating everything, to referring to the judiciary as an arm of government, with another arm of government being the executive and the third being the legislature. The executive arm has no priority in matters at all. It is there to perform executive functions and nothing more—just as with the other arms. A striking point about the paper is that it is founded on the independence of the judiciary. Yet, like my noble and gallant friend Lord Craig, I believe that the paper is redolent with statements about how the Government—the executive—will keep their hand in the pie; not even a finger, a whole hand.

If the Government really believe in independence they should do the job properly. They should cut themselves out of the loop altogether and eliminate from their proposals all parts played by the executive, except for one or two vital matters. We have heard analogies regarding the delivery of services and we could easily move from that to selling cans of beans. The role of the executive is to provide a law courts system within which the judges can operate and properly resource everything that is needed. The Government are already lamentably failing in that task and that is clear from the responses to the consultation paper. We have courts where there are still leaking roofs with buckets to catch the water where judges are sitting. The state of the law courts themselves is regrettable. A fine historical building is being allowed to fall into a state of disrepair and become thoroughly dilapidated, as anyone who goes there may see.

The executive should first put its own house in order before it starts trying to apply additional recourses for creating an ivory tower or making other changes to the system. Its promise to resource those areas properly is just not credible, particularly when everything is subject to ministerial spending limits. The delivery of the service to the public, the legal aid scheme and many other similar schemes have been under-resourced and effectively abolished. That is where attention should be directed.

I shall turn from the issue of independence to the question of accountability. If the executive is cut out of the loop, as it should be, then there is no question of accountability, except for the provision of the means—to which I have just referred. The idea of a political Minister in the House of Commons being accountable for the appointment of judges is not acceptable and should have no place in our constitution. The proposed system is seriously flawed and must be re-thought from the very start—as has become apparent from today's debate.

I shall make two points by way of encouragement. I am pleased that the detailed paper recognises that there is a raft of different layers of appointments that have to be considered by the appointments commission. That is a definite advantage, with different criteria applying at the bottom and top ends. My second point arises from what the noble and learned Lord the Lord Chief Justice said in the House on 26 January. He said:

"The sole criterion for making appointments will be merit, and it will be an important part of the commission's role to work out ways of increasing the diversity of those who apply for judicial appointments so that there will be a wider range of applicants from which to choose".—[Official Report, 26/1/04; col. 23.]

That is the problem. As I have said in previous debates, the judicial life does not suit everyone and it involves commitment and hard work. Many people would find it very difficult to assume that life. What has to be done—it is a task for the executive rather than the judges—is to increase the pool of applicants who are capable of being appointed on merit. To have just a criterion of diversity—full stop—would be a contradiction of the criterion of merit.

I will leave the matter there. There have been excellent speeches, with virtually all of which I thoroughly agree. I hope that the Government will think again.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 3:08, 12 February 2004

My Lords, I take as my starting point the response of the noble and learned Lord the Lord Chancellor to the question posed to him on Monday by the right reverend Prelate the Bishop of Worcester regarding how justice may be delivered. The noble and learned Lord said:

"we will look at the whole of our institutions and formulate the best way forward".

He went on to say:

"I suggest, with diffidence, that that is the way in which we have looked at the matter".—[Official Report, 9/2/04, col.937.]

I suggest without any diffidence that is precisely the way in which the Government have not looked at the matter.

The much criticised way in which the proposals for change to our judicial system were announced was not simply a problem of presentation, as the Prime Minister appeared to imply in his appearance before the Liaison Committee. The announcement reflected the Government's fundamental failure to grasp the nature of our constitutional arrangements and to discuss change within the context of a clear view of the constitution that it wishes to craft for the United Kingdom.

The Government have implemented significant constitutional changes on a scale that does not simply affect particular parts of the constitution but has changed the basic contours of our constitution. However, the changes have been pursued as disparate and discrete changes, with no consideration of how they fit together and relate to an intellectually coherent view of the constitution. We are moving away from the Westminster model of government. That much is clear. But what are we working towards? The Government appear not to know.

Perhaps the noble and learned Lord the Lord Chancellor can tell us how these changes fit into a coherent "whole view" approach to constitutional change. What coherent approach to constitutional change provides the basis for the Government's raft of changes, including the proposals before us today?

I turn to the specific proposals, announced precipitately and without adequate consultation on 12 June last year. My starting point, as was that of many noble Lords, is the benefit derived from the existing arrangements. As I argued in my evidence to the Constitutional Affairs Committee in the other place, having the Law Lords within the House of Lords is beneficial to the legislative and judicial branches. It enables each to have a greater appreciation of the role of the other and to do so without affecting the independence and integrity of our highest court of appeal. That appreciation helps to protect, not undermine, the House of Lords in its judicial capacity.

There is a greater awareness on the part of your Lordships of the role of the Law Lords and that, I think, provides a valuable buffer between the courts and the Executive. Conversely, the Law Lords do not have to be active participants in debates in order to have an awareness of parliamentary concerns and, indeed, to utilise membership of your Lordships' House as a source of information—a point put most cogently by the noble and learned Lord, Lord Hope of Craighead, in his evidence to the Constitutional Affairs Committee and reiterated today by the noble and learned Lord, Lord Nicholls of Birkenhead, in a powerful speech.

Creating a separate Supreme Court may have the consequence of isolating the judiciary. Far from protecting the highest court of appeal, I fear that it may make it more vulnerable to attacks from the Executive and from Parliament. Given the clashes that have occurred in recent years, I am not sure we should be encouraging a change that may exacerbate the situation.

The detachment of the Supreme Court from Parliament will become more pronounced with the appointment of justices who have not served in Parliament. The court will move away from Parliament and towards the Inns of Court. The noble and learned Lord, Lord Hope of Craighead, made that point rather tellingly when he appeared before the Constitutional Affairs Committee. He was referring to the consequences of a physical move to Somerset House, but the move could also be seen as taking place in a political sense. I fear that such detachment from Parliament will not serve to protect the position of the courts but, rather, will leave them isolated when they make decisions that prove controversial and unpopular.

What, then, of the arguments for change? The case for change has all the qualities of a lemon meringue pie: superficially attractive but, when you bite it, there is nothing there. We are told by some Law Lords that the functional separation of judiciary and legislature is a cardinal feature of a modern, liberal, democratic state governed by the rule of law. Either we are already a liberal democratic state governed by the rule of law or we are not. The statement by some Law Lords implies that we are not. I do not accept that. Rather, I believe there is a case for arguing that existing arrangements enhance rather than undermine our liberal democracy.

We are told that change is necessary to enhance the independence of the courts and in order that the courts are seen to be independent. Since no one is arguing that the highest court of appeal is not a body of integrity and independence, what is there that needs enhancing? Physical separation will not enhance the independence of the Law Lords in their judicial deliberations. That independence exists already and is not in doubt. Physical separation will have no bearing on its exercise.

The noble Lord, Lord Filkin, has argued that the general public do not perceive that the Law Lords act differently from the other Lords. Perception, he argues, matters as much as reality. As I pointed out in my evidence to the Constitutional Affairs Committee, even if there is a misperception on the part of the public, that does not necessarily affect the delivery of a sound and effective system of justice or lead citizens to believe that there is a problem in such delivery. The noble Lord, Lord Filkin, appears to equate confusion as to the role of the House of Lords with doubt as to impartiality. The fact that people may not grasp the distinction between the House of Lords in its legislative and judicial capacities does not necessarily raise a doubt as to the capacity, or the perceived capacity, of the Law Lords to remain unbiased.

Also, the Government's claims as to public perceptions rest on presumptions: we are offered the Government's perception of perception. No hard data are presented for their claims as to the public confusion and certainly none to sustain the claim of any perception of bias. Given the weight resting on the Government's claims, it is difficult to see how the Government can proceed with these proposals without putting some evidence for their assertion into the public domain.

The noble Lord, Lord Filkin, wrote to me to say:

"If an institution is not perceived to be independent, impartial and fair, then trust in that institution will falter no matter what internal procedures are put in place to ensure that it is impartial and independent".

If there were a perception that the Law Lords were not independent, impartial and fair, then, on the noble Lord's own argument, trust in the House of Lords as the highest court would have faltered by now. The logic of the Government's case rests on such trust faltering—not in the future, but now. The noble Lord, Lord Filkin, believes that a problem may arise with trust faltering in the future, but he rests his claim for change on existing, not future, public perceptions. That position is simply not tenable.

The Government and the noble Lord, Lord Lester, also argue that the proposals are necessary because of Article 6 of the European Convention. The Constitutional Affairs Committee in the other place recorded that the evidence it received from judges suggested that it was highly unlikely that any challenge to a decision made by the House of Lords under Article 6 would succeed.

In short, the case for change is simply not made. It rests on a series of unsubstantiated assertions. The Government's consultation paper essentially takes the case for change as given and concentrates on the detail. The announcement of the Government's intentions was rushed and inadequate. No thorough debate, and certainly no empirical evidence, has been presented to justify the proposals.

Given that, I share the view of my noble friend Lord Kingsland that the recommendations made by the Constitutional Affairs Committee in the Commons have much to commend them. As we have heard, the committee concludes that the changes have been bundled together and dealt with over a very short timescale as a single reform. This, it says, is unwieldy and, in the case of some of the proposals, precipitate. The committee's report goes on:

"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.

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

I believe that the Government must justify these proposals other than in terms of unsubstantiated generalisations and submit them to the sustained scrutiny of both Houses. If the Government proceed with their proposals, then a Joint Committee to consider the legislation in draft form is, I think, essential. Then, and only then, can some of the concerns raised today by noble and learned Lords and others be properly addressed.

Photo of Lord Rees-Mogg Lord Rees-Mogg Crossbench 3:18, 12 February 2004

My Lords, this is a very important debate with an exceptionally distinguished list of speakers. I shall focus on the issue of the Supreme Court and, in particular, on the historic example of the Supreme Court of the United States. I entirely agree that the British rule is for Parliament to make the laws and not the courts. In the United States, the Supreme Court has acquired substantial legislative power.

No one in 1787 contemplated that, 200 years later or more, the United States Supreme Court would be choosing the President by a party majority of five to four rather than refer the Florida vote to a recount. There was, of course, no way that Congress could overrule that strange decision.

The noble and learned Lord the Lord Chancellor himself does not want a US-style Supreme Court, as he told us in a reply following Monday's Statement:

"As to the American model, we are most strenuously not going down that route. The final court of appeal, which will sit separately from the legislature, will not be a supreme court of appeal such as the one in the United States of America, which has the power to strike down legislation because there is a written constitution that is superior to it".—[Official Report, 9/2/04; cols. 937-38.]

That presupposes that Britain does not have any written constitution. Yet we adopted the Human Rights Act in 1998, which gives our courts quite wide powers to protect:

"rights and freedoms guaranteed under the European Convention on Human Rights".

That is very similar to the Bill of Rights which forms part of the American constitution. The noble and learned Lord the Lord Chancellor today described it as permanent.

Some of the most contentious rulings of the US Supreme Court have been derived not from the original constitution but from the Bill of Rights added in the first 10 amendments to the constitution. From those rights, the court has derived many of the doctrines which override federal legislation by Congress.

The US Bill of Rights is closely analogous to the European Convention on Human Rights, which we have incorporated into our law, or indeed to the European Charter of Rights, which we may yet incorporate. If the US Bill of Rights allows a Supreme Court to overrule the legislature, then European rights may come to do so as well.

It is in the nature of courts to extend their jurisdiction over time. In the history of the US Supreme Court, there has been a steady progress of extension—some of it disastrous, much of it reflecting the ideology of the progressive or, more often, conservative thought of the time. If we have a separate Supreme Court, already armed with the Human Rights Act 1998, we can expect to see the same process repeated here. It may take time, but it will happen. The Supreme Court will have the last word in determining its own powers.

The US Supreme Court first claimed the right to judicial review of legislation in Marbury v Madison (1803) and, with it, the right to declare a validly passed law contrary to the constitution. The Human Rights Act 1998 gives British courts, including the House of Lords, the right to make a declaration of the incompatibility of primary law with the Human Rights Convention.

The worst decision the Supreme Court ever made was the Dred Scott case in 1857, which established the property rights of slave owners over their slaves. This helped to make the American Civil War inevitable. The European Convention forbids slavery, but Article 1 of the First Protocol specifically protects property. Each clause in the US Bill of Rights proved to be an acorn from which a judicial oak of derived law was to grow.

In the case of Schechter in 1935, known as "the Sick Chicken Case", and similar cases, a Supreme Court, mainly nominated by the Republicans, struck down the laws which a Democratic Congress passed to fight the Great Depression. This occurred in the presidency of Franklin Roosevelt, and led to the President's unwise plan to pack the Supreme Court with friendly judges.

In more recent times, European countries have all dealt with the problem of abortion law by legislation in their elected Parliaments. In Roe v Wade (1973), the US Supreme Court took the issue away from Congress and from the state legislatures, and decided that a right to abortion was a matter of constitutional law. Such a ruling would have seemed inconceivable to the framers of the constitution in 1787. That has made it impossible for the individual states to pass their own laws, which might have been much like ours. Social issues are better decided by democratic legislatures than by judicial decree.

All of these problems could confront us. Even election issues, as in the election of President Bush, can go to the Supreme Court, and they could go to a Supreme Court in Britain. Article 3 of the First Protocol of the European Convention, which is part of British law states,

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature".

That is an admirable doctrine, but a judicial review might some day be sought to determine whether our elections were "free"; whether the intervals were "reasonable"; whether the ballot was truly "secret"; whether the conditions ensured "the free expression of opinion". On these questions the future choice of a British government might depend.

We have at present a "joined-up" constitution in which there is no complete separation of powers: not from the legislature to the executive; not from the legislature to the judiciary. In two centuries in which the Supreme Court of the United States has been in repeated conflict with the legislature, and has sometimes been disastrously mistaken, our judges and Parliament have been able to work together in harmony. We would do better to stay with a system that has preserved the ultimate supremacy of Parliament and of democracy. Judges are not legislators, but in the United States an independent Supreme Court has politicised their function.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 3:26, 12 February 2004

My Lords, I have been a proponent of the transfer of functions of the Lord Chancellor to another Minister for many years.

The 1992 Labour manifesto, when I was leading for the Opposition on legal affairs in the Commons, promised:

"To appoint from the House of Commons a Minister for legal administration, who will initially be part of the Lord Chancellor's Department. We will go on to create a Department of Legal Administration headed by a Minister in the Commons".

This step-by-step approach was a recognition of what I was told by the then Permanent Secretary of the Lord Chancellor's Department, who came to see me with the then Prime Minister's permission, that it would take up to two years to divest the Lord Chancellor of his responsibilities.

Three hundred and forty-seven Acts of Parliament refer to the Lord Chancellor, and even that does not wholly illustrate his constitutional position: in particular, that he is a constitutional link between Her Majesty the Queen and the judiciary. Where that knowledge was lost, by the famous reshuffle of 2003, I do not know; but we all know now that a press statement has no legislative effect.

While I believe in the transfer of functions, I do not necessarily believe in the abolition of the title. My belief regarding the transfer of functions is based on the fact that, until recent years, the Lord Chancellor's Department was a fairly small-spending department, with comparatively few financial responsibilities. I understand that it will shortly be staffed by more than 12,000 civil servants and have a spend of £3 billion annually, by reason of the accumulation of its powers over the years.

I believe that it is constitutionally inappropriate and politically unacceptable for it to be headed by a Minister in the Lords, other than possibly for a short time. This is a matter of principle, not a question of personalities, and applied equally when the overseas development office was headed by my noble friend Lady Amos.

Since the last half of the 17th century, if not earlier, it became established that the granting of supply and its appropriation was a matter for the Commons. It is one of our hard-won liberties as a democracy. It follows that the head of a significant spending department should be accountable to the House of Commons.

I hope that mentioning these matters will be of help in our deliberations on the Supreme Court and the role of the Secretary of State specifically, and the Government as a whole, to defend and uphold the continuing independence of the judiciary. We should be conscious of the likelihood that a future Secretary of State may come from the House of Commons. The safeguards of the procedures of the appointments commission and the role and endorsement of the Lord Chief Justice are therefore vital. We shall have to examine them very closely.

I trust that the appointment of our judges and their promotion will continue to be solely on merit. Merit must be paramount. In no way should there be social engineering in the appointment of our judges. That does not detract from a recognition of and a catering for career gaps for those who are eventually considered. I draw some comfort from the fact that the same principles will apply to the Supreme Court, with judges appointed on merit alone from a pool of properly qualified candidates.

My noble and learned friend the Lord Chancellor states that the Secretary of State's discretion in appointments should be severely circumscribed, and that it is not right that a political appointee should be able to cut across the system who he or she thinks right. I agree entirely. His discretion is to be limited to asking for a different name to be submitted from the appointments commission's own alternatives and he is not to suggest a name himself. That is my understanding of the statement made by the Lord Chief Justice too. I trust that it will be a very rare event indeed for a name to be refused by the appointments commission.

In the interests of accountability, it is proposed that the Secretary of State will be a party to a number of checks or locks on the decision making involving the judiciary, either by way of consultation or agreement. That was referred to briefly by the noble and gallant Lord, Lord Craig. I believe that we should examine carefully each and every one of those locks or checks to see how far they can be justified and how far they might be seen to militate against the independence of the judiciary.

The Lord Chief Justice acquires a new title, the President of the Courts of England and Wales, and other senior judges acquire new titles too. When I was Her Majesty's Attorney-General I occasionally lectured students on the antiquity of the Law Officers. In their modern form, they date from the 16th century. The Lord Chancellor's office is more than 800 years old. Now that the title of the Lord Chancellor is to be shorn of its political implications, can it not be given to the Lord Chief Justice, thus maintaining the constitutional link between Her Majesty the Queen and the judiciary or, despite the arguments that I have read to the contrary, even to the senior Law Lord rather than the new title of President of the Courts?

I believe that it is right for the Supreme Court to be divorced from this legislative Chamber. The interpretation of human rights legislation and the self-denying ordinance of the Law Lords has already, in practice, resulted in a great deal of that. I say in passing, as one of the architects of the devolution Acts when I was Attorney-General, I am content for the transfer of judicial responsibility to go from the judicial committee to the Supreme Court, as proposed.

I turn to one other matter that has not been raised, but which was part of the speeches of the Lord Chancellor and the Lord Chief Justice—the magistrates who will eventually come within the purview of the appointments commission and, initially, the Lord Chief Justice. I declare an interest. By virtue of being a Lord Lieutenant, I am chairman of two and a member of a third of the Lord Chancellor's county advisory committees for the appointment of magistrates. I very much welcome the recent reply of the Lord Chancellor to my question regarding their importance as the best judges of local needs. That has been deeply appreciated.

Lastly, there is the transfer of magistrates from other parts of the country to more attractive areas, such as Cornwall, north and west Wales and, I am told, some of the border counties of England. If there is a local shortage of magistrates, that creates no problem. I have no hesitation in mentioning this point, as 90 per cent of criminal work is carried out by magistrates. However, if there is none, and the number of incomers becomes significant, there is a danger of an imbalance between the claims of local justice and the judicial experience of fresh arrivals. Frequently, transfer applicants are retired and come from a social background that enables them to afford to move to our delightful areas, but they certainly do not help an advisory committee struggling to achieve diversity in age and social background. I believe that magistrates should have a deep knowledge of local conditions, income and employment structure and local culture. I hope that the Lord Chancellor will reaffirm that it is for the local advisory committees to do what is best for their own communities and that there is no automatic right or expectation of transfer.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 3:36, 12 February 2004

My Lords, I speak as one of the only two solicitors of the Supreme Court, as we are formally known, in this debate, and I am happy to do so. Although I shall disagree with a large part of what my noble friends have said and are going to say, I certainly agree with them on one particular matter. That matter concerns the arrangements proposed whereby judges in the Supreme Court are to be proposed by a judicial commission, which will put two to five names to a Secretary of State who may not be a lawyer, but a relatively junior politician who has little knowledge of the system. That seems to me to be a recipe not for depoliticisation of the process, but the reverse.

In relation to the basic reforms that are predicated in the Government's proposals, the onus is clearly on them to establish their case beyond reasonable doubt. I say that on common-sense grounds and because, where institutions, arrangements and offices have served so effectively for so many centuries and are so deeply etched into the public consciousness, as far as they ever can be, it is true folly to destroy the reputation, familiarity and public ownership that attaches to them. The assumption that those increasingly rare attributes will automatically accrue to the new order ignores the fact that the strength of bottom-up, organic evolution is created very slowly as compared with the fragility of top-down, statutory imposition.

At a time of undoubted decline in public allegiance to our democratic institutions and of decline of trust in public life and its practitioners, to change settled institutions, arrangements and offices for the sake of it—as most perceive it—is a recipe for the further dilution of civic cohesion. The very fact that our largely unwritten, unseparated constitutional arrangements, theoretically so flawed, have stood the stresses of time almost as well as any, should give the constitutional purists pause. But, deracinated and over-intellectual as some of them are, they have forgotten that the perceptions that count in this debate are not those of academics, mandarins or even, dare I say, senior judges, but those of the general public who set store by the status quo because they have some familiarity with and rough confidence in the role and person of the Lord Chancellor of the day, and high confidence in the independence and probity of the judiciary.

Anecdotally, I have not yet come across a single substantial critique or criticism of the status quo, but I have encountered many deeply perturbed wonderings as to where it will lead. After all, the Government's attempt to justify this upheaval on the grounds of,

"enhancing the credibility and effectiveness of public institutions and increasing trust and accountability", must be presumed to refer to the public at large and not to the chattering classes. To take another quote from the Statement of the noble and learned Lord, Lord Falconer, on Monday about the Supreme Court, he said that the changes were,

"to enhance the vital independence of the judiciary"—

I stress the word "enhance"—because,

"the present position is no longer sustainable".—[Official Report, 9/2/04; col. 926.]

That too contains assumptions—deeply mistaken ones—about the public mind.

As one who has tried over nearly 30 years of continuous broadcasting to be an interlocutor between the world of the law and the public at large—I was doing so again at lunch time—I do not think that there is any evidence of these assumptions. Even if it were thought pointless to consult ordinary citizens on this— and that would seem to be the case—the Government might have specifically consulted, for example, solicitors, lay justices, county court judges, tribunal chairs and other lowly beasts of burden of the justice system—those who daily deal with the general public. I challenge the Government to do that even now. I would bet a hundred pounds to a penny that they will get the thumbs down for the bulk of their package, let alone the creation of the new Supreme Court Valhalla, shining bright and expensive, free of the taint but also of the dignity and tradition of this place. If we in this House wish to retain the court here, we must provide more space and more facilities for that to be practicable.

I turn now to the evidence for the Government's case in support of the upheaval. When the noble and learned Lord, Lord Falconer, gave evidence to the House of Commons Select Committee on Constitutional Affairs and was asked about the key question regarding where the separation of powers was causing damage, he replied:

"I think it is more than just perception".

He went on to refer to the only two cases which his staff were able to dredge up from the depths of this murky subject. One concerned the noble and learned Lord, Lord Bingham, to whom I spoke at lunch time. He confirmed that on one occasion counsel questioned his right to sit because he had been at the debates on the criminal justice Bill concerned and had indeed made, as he calls it, six quite anodyne reservations to the Bill. He stood down. So what?

Perhaps I may quote the second anecdote which is even feebler. The noble and learned Lord, Lord Falconer, said:

"a distinguished advocate refers to addressing the House of Lords Judicial Committee and she says quite legitimately that they excluded some Pepper v Hart material which was slightly odd because one of the Law Lords sitting on the Panel had actually been present at the debate at the time the material had been given, so he had to forget what he had heard".

That is terrible, disgraceful; it undermines the whole system of justice in this country! His conclusion from that great body of evidence was:

"You can see signs of strain already".

So you can—in the case advanced by the noble and learned Lord, Lord Falconer.

Finally, I wish to refer to trust and impartiality because those are key. Sometimes, I believe that the desire to avoid any hint of contamination, partiality, conflict of interest, or lack of separation of powers leads to arrangements which undermine the very culture of trust and the context within which it is upheld rather than subverted: within which trust is strengthened by contact and intermingling. If the arguments advanced are to be taken seriously, we should close down the Inns of Courts because nothing can be more scandalous than judges dining and wining and otherwise being among the advocates who will come before them in the following weeks.

The creation and preservation of public trust in judicial independence is a mysterious process which has a strange chemistry. If it is overprotected it can bring about the very danger it is designed to prevent. If it overregulated it can undermine the individual conscience and collective morale which are pre-conditions of its survival. In effect, in our culture no trust begets no trust.

Where, as is the case, we have evolved by long trial and error a system which preserves judicial independence and integrity, which is admired from afar, we should interfere with it only in response to the most compelling evidence of need for reform; and that is spectacularly lacking.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, perhaps I may—

Photo of Lord Ackner Lord Ackner Crossbench 3:48, 12 February 2004

My Lords, the list of speakers is not on alphabetical merit: it is as it stands on the page.

On Monday of this week when debating a Statement by the noble and learned Lord the Lord Chancellor, the noble Lord, Lord Kingsland, said he considered 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.]

I do not say that I agree with that. However, I think that a strong prima facie case can be made to support what he said.

One of the favourite phrases used by the Prime Minister during the past month is that, "We must draw a line under this problem and move on". That is all well and good if, before the line is drawn, a satisfactory explanation has been given of the problem, questions which properly demanded an answer have been adequately addressed, and adequate assurances have been given to ensure that similar problems will not arise in the future.

If one goes back and asks, "What is the genesis out of which these proposals have arisen?" we do not have the clearest evidence but we can probably start with the unconstitutional and inexcusable behaviour of the Home Secretary in attacking the decision of the Appellate Committee of this House for holding that under the human rights legislation—the Government had embraced it enthusiastically as part of the law—a politician was not entitled to play any part in the decision of how long a person convicted of murder should stay in prison. That gave rise to a strong attack by the Home Secretary on the judiciary. It was followed by an even more direct attack on a High Court judge's decision of the legality of the Home Secretary's action under the then current immigration legislation.

I have no doubt that the then Lord Chancellor acted with enormous energy behind the scenes to try to sort this out. He was unsuccessful. He appeared before a Select Committee and, in the course of giving his evidence, said in substance that it is wrong for the Government to cheer when they get a decision in their favour but when the decision is adverse then to attack the judiciary. That was said in public and no one had any doubt that he was directing his criticism towards the Home Secretary.

There then followed a pause and to most of us it was apparent that it would be very difficult to see both remaining in office—the Lord Chancellor and the Home Secretary. To those who knew the personalities, and those who supported them, the bets were that the Home Secretary would survive; and survive he did.

What was difficult to follow was how it could have been thought by the Prime Minister, the Secretary of State for the new department, my noble and learned friend Lord Falconer, perhaps the Home Secretary also, and even an odd crony or two, that an office which had survived centuries could be abolished on the Prime Minister's say-so. Of course the Prime Minister can sack the current Lord Chancellor. One has only got to think back to the night of the long knives and what happened with Macmillan.

However, with all the advice that the mandarins of Whitehall were capable of giving—with the then Lord Chancellor's Permanent Secretary specially chosen by him for his wisdom and understanding rather than acquiring the next senior person from the Lord Chancellor's Office—it is difficult to see where all this ignorance came from. But came it did.

Those of your Lordships who were in the House on Friday 13 June would have seen the less than suave noble and learned Lord, Lord Falconer, bundling into the Chamber with a full-bottomed wig, clearly borrowed from someone, aware for the first time that he could not leave Parliament to go to his new office without first asking the consent of the House, which he did. So the ignorance was there.

In due course we had a sort of debate on a new Speaker. The much missed Leader of the House Lord Gareth Williams of Mostyn rather reluctantly, but quite unequivocally, apologised to the House for the grave discourtesy which he accepted had occurred in his not seeing the House was apprised of the new situation, but had to learn about it through some handout from the press secretary or right-hand man of the Lord Chancellor.

It is virtually common ground that there has been a complete breakdown of trust between the Government and the potential electorate. Politicians are no longer trusted. Last September the Home Secretary in a breakfast conversation with Mr Frost, in one of his near evangelical utterances, told the world that to regain the lost trust politicians must be, "patently honest". In this context your Lordships will perhaps remember that in 2002—the previous year—the Home Secretary accepted the sentencing guidelines in murder cases which the Lord Chief Justice had agreed with the Statutory Sentencing Panel.

The following year, when this patently trustworthy philosophy was being worked out, the Home Secretary introduced in the legislation a schedule—now Schedule 19—which pre-empted what the new Sentencing Guidelines Council should be doing once the Bill was passed, by providing that in future sentences for murder should, roughly speaking, be increased by 50 to 100 per cent. It overlooked entirely that if one increases one very serious offence, then in order to maintain consistency with one's guidelines, one has to increase all the other ones, thereby, of course, making quite impossible the problem of containing these people in prison.

The Home Secretary had thought that what he had done would not take effect for another 10 years or so—by which time perhaps he thought he might be somewhere else. Anyhow, that was an indication of "patently honest". Further examples are occurring. The ouster clause in Clause 11 of the immigration Bill has been referred to. An ouster clause says not only that no application will be permitted to the courts but even specifies that there is nothing one can do if a court exceeds its jurisdiction, except to go back to the original court and ask it to think again; and when the court has thought again and remained consistent with its decision, that is the end of it. So I believe that there is some substance to support the noble Lord, Lord Kingsland.

I want to comment on the shortage of accommodation. Such is the shortage of accommodation within the Palace of Westminster that Lords of Appeal cannot be provided with accommodation and back-up facilities enjoyed by their colleagues in the major Commonwealth countries. However, the situation has materially improved.

When I came to the Lords in 1986 there were nine Law Lords. The figure of nine was due entirely to the fact that the Treasury—I think that it was the only organisation involved—considered that one could take nine and divide it by two and provide two committees, each of five members. It achieved that by inviting, usually, a Law Lord from Scotland to come down. It took a long time for it to be pointed out and accepted that this was more expensive than having a new Law Lord because you had to pay his overnight expenses and his railway fare.

Also when I arrived there were no textbooks and no libraries in our rooms. Textbooks and libraries we had had in abundance since the days when we became High Court judges. I know because I negotiated it, and, of course, a fortiori, in the Court of Appeal.

In the Court of Appeal we each had a secretary. When one got to the House of Lords one shared a secretary with five colleagues. That has now improved; it is one secretary for two Law Lords. There are attempts to get assistance for some Law Lords—the senior ones. A library has been provided and the Law Lords can have the text books which they want and a full set of law reports in their room.

So there is nothing impossible about carrying out one's job in the Law Lords. It is a little uncomfortable, but it does not justify the vast expense—not even costed—which would occur from what is proposed. These are matters to which I shall no doubt have an opportunity to return on Second Reading when the Bill is introduced next term.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 3:59, 12 February 2004

My Lords, it is interesting to hear noble Lords puzzle over the events of 13 June. There we were, expecting simply a reshuffle, and yet we were plunged into this extraordinary constitutional drama. It was described by the noble and learned Lord, Lord Hoffmann, as an issue of personalities in the Cabinet. Was it simply a drama of loyalty? I am sure, as the noble and learned Lord, Lord Hoffmann, suggested, that the removal of the Lord Chancellor in that reshuffle must have caused considerable anguish. It must have been a source of great distress to a Prime Minister who had known that Lord Chancellor so intimately and who had him as a mentor and pupil master. It must have felt like an act of patricide. It may be that, like many an employer, one would want to say that the person was now redundant because their post was abolished, rather than that one was sacking them.

We were seeing more than a drama of loyalty. It was a drama of loyalty not such as is simply part and parcel of the soap opera of politics, but a drama of loyalty of much greater proportion. At the heart of this is the issue of loyalty—to whom does the Lord Chancellor owe his loyalty? When someone becomes a Lord Chancellor, no doubt because of political connections, first and foremost they may feel themselves to be there for political reasons. I am sure that our last Lord Chancellor felt that his long connection with the Prime Minister created loyalty. I am sure that his long-established membership of the Labour Party since he was a teenager created loyalty.

Of course, what a Lord Chancellor learns in our constitution is a greater loyalty—a loyalty to the constitution. The weight of that loyalty is probably not there in the beginning. It comes as you feel the weight of the role; you are more than a member of the Cabinet, you are the guardian of the Great Seal, the protector of the judiciary, the protector of an independent legal profession, careful of access to justice and mindful of the special role that you play. Because of your life in the law, you know about those checks and balances. Because of your life in the law, you know why law matters. Because of your life in the law, you have come to understand that you cannot only consider the short term in policy-making when it comes to law.

The role of the Lord Chancellor creates for that person a great conflict of loyalty. That was the drama that unfolded in the prologue to 13 June. The prologue, as has been described, involved a conflict of loyalty. What we saw unfolding was the drama that is crucial in any Cabinet, where on the one hand there is a Home Secretary who argues about law and order, and on the other there is a Lord Chancellor who is to be the voice of justice and who speaks about what is right and just. We saw that conflict of loyalty played out. The noble and learned Lord, Lord Ackner, described very powerfully the subject matter over which those battles ensued, where it became necessary for the Lord Chancellor to say to the Home Secretary, "Take your tanks off the Middle Temple's lawns. Take your tanks away from the front of the Royal Courts of Justice". The Home Secretary did not receive that message too kindly.

The Prime Minister had to decide where his loyalty lay—did it lie with authoritarianism or liberalism? Did it lie with the protection of justice or with the short-term politics of satisfying the hunger of a media that are often not too concerned about justice? That drama of the constitution was played out, and inevitably, I am afraid, a decision was made that meant that not just the Lord Chancellor himself was removed, but his role was abolished. It may well be that as the noble and learned Lord, Lord Hoffmann, described it, we saw that event dressed in the robes of high constitutional principle.

That saddens me, because I am a constitutional reformer. I chaired Charter 88 for five years prior to the 1997 election. I strongly believe that an evolving process of reform should take place. The role of the Lord Chancellor, in the form that existed, was becoming untenable. In the new world that we live in it was, and is, unacceptable for a Lord Chancellor to sit in the Cabinet and also to sit as a judge. Politics has changed, and the interface of law and politics is much more complex than ever before.

Therefore, this suggestion that the Lord Chancellor's role had to be reformed did not come out of the side-field. It had been discussed and debated since 1988, when the constitutional reform organisation, Charter 88, was established, and debates had taken place about our constitution. The Lord Chancellor should no longer be sitting and making appointments in the way in which he has done. We know from the report of the judicial ombudsman, Sir Colin Campbell, and his associates who have looked at the processes, that they do contain unfairnesses. They are not open, and the processes are not acceptable in the modern world. Soundings and secrecy are not a way in which we can conduct ourselves in these times.

As I travel the world as the chair of the British Council, I see the great work that is done in helping other parts of the world—emerging democracies—reform their legal system, all of which look particularly to Britain for guidance on how to conduct their legal affairs. There is great admiration for the British judiciary, but there is a puzzlement over the way in which our Lord Chancellor fulfils a strange tripartite set of roles. It was time for us to unpick some of those functions, and it was a great sadness to me that the Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, did not reform himself. It need not have meant the undoing of that great institution of state, the Lord Chancellorship. There was no reason to abolish it, given the weight of history and tradition, which is so important when the issue is played out in the Cabinet.

What concerns me now is that we have reduced that role to just another Secretary of State, who may still have political ambitions and may still want to become Foreign Secretary, Chancellor of the Exchequer or Prime Minister. He may have constituents who demand of him that he is tough on asylum seekers, sends more people to prison and so on. The imperatives of justice may not be the highest in the mind of such a Cabinet Minister because the weight of that great role of state is not on his shoulders. That is a source of sadness to me because I think that that makes the difference. However much we try to entrench it in statute that the role of the new Secretary of State should be to protect the judiciary, I have concerns about whether that will be done with the urgency and passion with which Lord Chancellors have fulfilled that role for a long period of our history. That is where my regrets lie.

Generally, I welcome the thrust of this set of constitutional changes. I want to see an independent Judicial Appointments Commission, on which we may find it enriching to have others sit and consider those applying to become judges. We do not want cloning. For too long, we saw men appointing men like themselves to the higher courts, which is why it took so long for us to see a woman there. We need an enrichment of those who sit, which is not to cast aspersions on those who sit now or on the great intellect of our judges. They are admired throughout the world, and I see no reason why that should not continue.

Just as it has become inappropriate for the Lord Chancellor alone to make appointments on soundings that are so secret and on questionable criteria, the judges must for a moment consider their position too. It is not acceptable to have in our legislature those who sit as judges in our highest courts, particularly now that our political world has become so much more complex. We could all say, "Why should we concern ourselves? If our practices suit us, why should we concern ourselves with perceptions around the world?". It matters because people look to us when they are reforming systems that have been under the heavy hand of the state and in which party members have become judges. Creating distinctions matters, and we should make it clear what those distinctions are and where they lie in our system.

We are seeing something of which the Hutton inquiry gave us a scent. There is a blurring of boundaries between intelligence and the politicians and between the Civil Service and politicians. We see the embracing by the politicians of aspects of government that should be distinct and where boundaries should be clear. I am afraid that we are, at times, seeing our judiciary co-opted. I was unhappy about the way in which Lord Justice Auld was given the role of considering reform of the criminal justice system. If his remit had been merely procedural, that would have been fine, but he did not confine himself to the procedural. He found himself moving into the constitutional sphere and advising about the removal of juries and so on. What happens then is that the politicians can say, "But our judicial brothers have suggested that this should be done". Such co-option of the judicial arm should be guarded against.

To noble and learned Lords from the judicial arm, I say that those are the concerns that should be in the mind of a judge, when invited to chair inquiries or head commissions. Judges should look carefully at the ways in which co-option should take place. Given the world that we live in and the way in which things have become more complex, it is in the judge's interest that the distances are clearly marked.

It is important to embrace constitutional change, but that should be done properly. We must understand what the foundations are. What is the baseline? What are the non-negotiables? Where are the cornerstones that we must not undermine? When we know those, we can embark on the process of change.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench 4:14, 12 February 2004

My Lords, it has been fascinating to listen to the learned speeches that have been made in this debate and, if I may say so, a particular pleasure to follow the outstanding contribution of the noble Baroness, Lady Kennedy of The Shaws.

I am afraid my only excuse for joining such erudite speakers is by way of a celebration for, as has been said, it is now 12 full years since I had the pleasure of serving on a committee of Justice under the distinguished chairmanship of the sometime Master of Pembroke College, Oxford, Professor Robert Stevens. That committee recommended the establishment of the Judicial Appointments Commission, consisting of both lay and judicial members, and made many other recommendations which appear in the Government's proposals.

There is nothing quite so satisfying as living long enough to witness the adoption of a proposal that, in one's relative youth, seemed self-evident. Even then, though, the Stevens proposals were by no means original. Ten years before that, a previous committee of Justice, under the equally distinguished chairmanship of Mr Justice Webster, had come to the same conclusion. But on that earlier occasion, as the noble Lord, Lord Alexander of Weedon, said, the very mention of the idea caused such uproar within Justice itself that I believe the pamphlet had to be independently published. Clearly, the process of change takes time.

So I warmly congratulate the Government on their plans to establish a Judicial Appointments Commission, which will, in addition to members of the judiciary, have a lay chairman and a majority of lay members. Especially important to me, as it has clearly been to other noble Lords, was to hear the noble and learned Lord the Lord Chief Justice state in your Lordships' House on 26 January that, with certain important safeguards, the proposal had the backing of Her Majesty's judges.

I want to confine what I say to that important feature. Some of the Government's other proposals—particularly the proposal to abolish the office of Lord Chancellor and to remove the Law Lords from your Lordships' House—cannot command even my most grudging support. When our Stevens committee first met, the case for reinforcing public confidence in the judicial process was already on the agenda, and for doing so by establishing a manifestly transparent, accountable and up-to-date process for the selection of judges. So, too, was the case for a system which would set beyond doubt the independence of the judiciary from both Parliament and the executive. Now, that case has become overwhelming. As the noble Baroness has just said, one has only to reflect on the real concern expressed during last week's debate in your Lordships' House on the Hutton report to recognise how important for the maintenance of our democratic processes those issues have become.

It is equally clear that the Commission for Judicial Appointments, set up three years ago by the then Lord Chancellor, a first big step in the right direction, has been an important influence—a catalytic one, indeed—behind many of the changes now proposed. For that the noble and learned Lord, Lord Irvine, and the commission deserve our gratitude. Although not given any actual responsibility for appointing judges, the commission has reached into what actually happens and has been able to point to worrying deficiencies in the current process. It is about some of those issues that I want to comment and ask the noble and learned Lord the Lord Chancellor some questions. It would also be interesting to know what the future holds for that particular commission. Will it, for example, be able to hear any complaints about the decisions of the Judicial Appointments Commission?

First, the proposed method by which the appointing commission will be selected is reassuring. We should all be delighted that Dame Rennie Fritchie, Commissioner for Public Appointments, is to play an important part in overseeing the process, as she is also to do, incidentally, with the chairmanship of the BBC. Until now, the role devised for her has been far too limited. Her involvement here could be crucial in ensuring transparency.

Apart from the range of judicial and legal expertise that will be represented on the Judicial Appointments Commission, the range of experience of its lay members will be important and should, in my view, include those with expertise in up-to-date recruitment procedures. Also important will be the need to secure proper representation of women and ethnic minorities.

My second point concerns the diversity of those appointed to the Bench. As the Commission for Judicial Appointments says in its evidence, today's judiciary is unarguably overwhelmingly male, white and drawn from a narrow socio-economic background, thus leading to a perception that it has a tendency to clone itself. Even if that perception is to some extent unfair, the opaqueness of the current system makes it impossible to prove otherwise.

The commission also says—and this is consistent with experience in other equal opportunity areas—that this leads potentially well qualified candidates to exclude themselves, in the belief that the system will be biased against them. Hence the important need to secure a much larger representation of women and ethnic minorities.

It remains vital, of course, to maintain the high standard of those appointed to the Bench. As the noble and learned Lord the Lord Chancellor has made clear, appointments must continue to be made on merit. However, the argument is not that those appointed are not of high quality, but that there is a real risk that other potentially suitable candidates are being excluded. By now, I should emphasise, there is a substantial supply of well qualified candidates available from both women and ethnic minority groups.

Of course, it has taken time since the Sex Discrimination Act 1975 was passed for women to rise to leading roles. However, nearly 30 years on, it is no longer credible to claim that there is a lack of the necessary talent and experience. The appointment of Elizabeth Lane, as the first woman High Court Judge, took place as long ago as 1965. Another 23 years had to elapse before Elizabeth Butler-Sloss was appointed to the Court of Appeal, and a further 11 years before she was appointed head of a division. Admittedly, 2004 has got off to a good start with the appointment of the first female judicial member of your Lordships' House. Not only was the noble and learned Baroness, Lady Hale, an outstandingly able candidate, she also comes from outside the traditional career path of practising barrister.

The Supreme Court of the United States welcomed its first woman member, Sandra Day O'Connor, almost a quarter of a century ago. Admittedly, the US has not moved very far either because there are still only two, but we also have a long way to go before we can be confident that our judiciary is not only appointed on merit but is also truly reflective of today's society.

I want to mention two areas that the Stevens committee felt were important. First—and some progress has been made under this Government on this issue—appointments to the judiciary should be open not just to barristers but to suitably qualified solicitors and legal academics—the noble Baroness, Lady Hale, is an ideal role model in this respect. Secondly, there should be a career path within the judicial hierarchy for those with the ability to rise from more junior appointments. That should open up more opportunities for women and others with family responsibilities.

Certainly, as the department's summary of responses reports, there is a clear need to rethink promotion policies for those already in the untapped pool of talent that undoubtedly exists within, for example, the District Bench and the tribunal judiciary. I hope that the Lord Chancellor will be able to reassure us that the Judicial Appointments Commission will have these responsibilities and will be encouraged to give them a high priority.

I end by saying, as a magistrate myself for many years, how pleased I was, like the noble and learned Lord, Lord Morris of Aberavon, to read that even when the Judicial Appointments Commission takes on the added responsibility for overseeing the appointment of local magistrates, it will still derive huge benefits from the continuing role of local committees, which will, as now, draw up the initial list of recommendations. That should do much to dispel the disquiet felt by many that this Government have been and remain less supportive than previous administrations of the immensely valuable democratic role played by lay magistrates in our society. I cannot emphasise too strongly that, like the lay magistrates' system itself, the input of those local advisory committees is a crucial feature of the grass roots of justice in our civic society.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative 4:24, 12 February 2004

My Lords, it is a pleasure to follow the noble Baroness, in particular in her reference to the Commission for Judicial Appointments.

The noble and learned Lord the Lord Chancellor has, as we all know, many enviable qualities. However, I have often thought that they engagingly include the quality of a modern motor tyre which, no matter how grievously punctured, nevertheless of its own resources manages to reseal itself and roll on undeflated. He can never have had greater need of that quality than surely he will when he replies to this debate with all its manifold and compelling adverse speeches.

I hope tonight to side with those who call for a draft Bill. We do so from common ground with the Government because we all agree that this legislation will be of monumental constitutional importance. I noted that the Lord Chancellor himself today said that the constitutional principle at stake is one of the most vitally important in any democracy. I consider that only with a draft Bill can this constitutionally momentous Bill receive proper parliamentary consideration.

Constitution making, like marriage, as the Bishops' Bench will confirm, is not to be undertaken unadvisedly. In this country we should know that. I do not know how many constitutions we have constructed for other people in the past half century as we shed our Empire. All were designed to secure freedom under the rule of law, an independent judiciary and so forth. All were designed to a greater or lesser degree in haste. How many of those have succeeded? Unhappily, the answer has to be, not a very high proportion. Generally the reason for that is that we legislated too quickly with too little time to prepare the people, the politicians and the detailed legislation that their complex needs required. We had to do that because the wind of change was blowing. We were not willing to leave a gaping void, as the Belgians did in their part of the Congo.

However, the Government today have no such excuse. There is no imperative driving them down this hurry, hurry, go faster road. There is no gaping void that has to be filled so urgently; far from it. Ministers vie with one another to find the words on the "Today" programme and even in Parliament that can express the depth of their admiration for every Lord Chancellor in living memory and for the almost priestly manner in which they have discharged their duties. As for the judges who have been appointed by that route, including, of course, the Law Lords, to call them the finest in the world is the very least that Ministers seem to think can do justice to them.

Is the system somehow nevertheless broke for some other reason than those? The Lord Chancellor himself hotly denies it—goodness me, no. It apparently is the case simply that because the system fails to pass the test of the abstract theory of separation of powers it must not be allowed to go on working. That proposition is so strange that it surely demands the closest parliamentary examination, and the legislation which is intended to replace it surely demands the close and not truncated parliamentary scrutiny that only a draft Bill can achieve. That would certainly be the view of a great many people in those former possessions of ours who live with the disappointing outcome of our parting constitutional gifts. I think it was the noble and learned Lord, Lord Hoffman, who referred to a Caribbean judge who said words to the effect that the British do not recognise what they are giving up. I and many others recognise what it is proposed we should give up and we oppose it.

It is important to be fair. I can see that if one believes that a constitutional theory—one's own—ought to outweigh constitutional experience—everyone else's—one may feel that one is directed inexorably down the road the Government are taking. Even if, in their modesty, the Government hold to their belief, it still cannot warrant the impetuosity of their decision, nor the pace they hope to set.

Issues of deep complexity are engaged. They have not been thought through, which is hardly surprising. No one before that fateful day, which I may venture to call 12/6—or possibly 13/6—had an inkling that the Lord Chancellor's post was summarily to be abolished. Not Ministers—including probably the Lord Chancellor himself, although he may have been accorded a couple of days to prepare for his execution—and certainly not officials, even, apparently, in the Lord Chancellor's Department.

Small wonder, then, that the issues have not been thought through. One example is the question of what instructions will be given to the parliamentary draftsman in order to secure judicial appointment by merit alone. Nothing could be of more importance. The Government say that promotion and appointment by merit alone must continue. The Lord Chancellor said today, in terms, only by merit. The Government also say that current mismatches between the composition of the judiciary and the community at large should be corrected. They do not say how. Yet here is what is said in their report for 2003 by, and I follow the noble Baroness who last spoke, the Commission for Judicial Appointments at page 35:

"In our view the principle of selection on merit in relation to judicial appointments involves the follow requirements."

Five paragraphs follow. The second reads:

"Selection should be made according to criteria which relate solely to applicants' potential ability and suitability to perform to the required standard in the position concerned. Factors which are irrelevant to the role in question, e.g., age, sex, ethnicity or social or educational background should be excluded from consideration, irrespective of whether they would advantage or disadvantage a particular applicant."

That is the limit of the quotation. I ask the noble and learned Lord the Lord Chancellor whether directions to the draftsmen will require that formulation to find statutory expression. If not, in what respects will they depart from it? I do not think the noble and learned Lord will be able to answer because, as was said in the notable maiden speech by the noble and learned Lord, Lord Cullen, it is very difficult to achieve in legislation what has hitherto been achieved by convention.

The recent report of the House of Commons all-party committee has been referred to and I will not cite it again. The core of it is its finding that this haste has been dictated—that is their word—by politics and that this topic requires a draft Bill.

The Government have been rash to be impetuous in their decision. Not to produce a Bill in draft form would be feckless and very wrong.

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop 4:34, 12 February 2004

My Lords, one of the delights of this debate is that at last we have had the chance to look together in detail at the issues surrounding the setting up of a Supreme Court, an independent Judicial Appointments Commission and the abolition of the post of Lord Chancellor.

An added delight for me has been the chance to listen to the maiden speech of the noble and learned Lord, Lord Cullen, who has had the good sense to take the name of Whitekirk, a village near which I spent most of my childhood. Perhaps the clear air of east Lothian coming across the mouth of the Firth of Forth from the North Sea was behind the wisdom of his speech to us today.

I should like to pay tribute, too, to the evidence that the noble and learned Lord gave to the Constitutional Affairs Committee of the other place. He brings, like others, a measure of Scottish detachment. The changes proposed, he maintains, are not worth the effort. They will be expensive—always an important consideration for Scottish people, but not just them—and he has questions about exactly what kind of Supreme Court we are supposed to be aiming at. I applaud what he said this morning when he contrasted what he called the complexity of the new concordat with the simplicity of the past and the need for the views of the judiciary to be communicated directly to the legislature in person here; leaving aside, of course, as he generously did, the question of voting.

Those views echo my own instincts the longer I ponder not the long-term principles but what is actually before us today. I am not by nature averse to change—nor do I believe that radical change always means what some would fearfully describe as "the end of civilisation as we know it". But my reservations are rooted in two areas: a flawed process, and that is always very important when you want to bring the non-professionals along with you; and the set of principles that I regard as too radically at variance from our constitution for them to be, in the short term at least, viable.

I hesitate to refer to events in my own specific area of work. However, yesterday, at General Synod, as has been communicated—not very accurately, of course—in the press, we had an example of a flawed process and a flawed principle comparable to what we are experiencing now. I refer to the spending review of the Church Commissioners' funds where in effect the policy and the implications seemed to be worked out in advance, the consultation process inadequate and the outcome envisaged widely taken in debate to be unworkable. It is often said by all kinds of review bodies that they want clarity, so let us spell everything out in advance, and the fear of press leaks—which of course must determine everything that we are and that we do—means that the details must be in the public domain as soon as possible. That may be well and good if we were confident enough that attention had indeed been paid to the full implications.

The right reverend Prelate the Bishop of Chelmsford has already spoken about the history of our constitution. I would like to press that particular case just a little further and suggest that one of the effects of the removal of the judiciary at the moment, at this particular stage in our country's life, would be to set the executive and the legislature into an even greater tension than they are already, and here I refer back in some ways to the remarks on the American experience made earlier by the noble Lord, Lord Rees-Mogg. Moreover, things are not uniformly different from us elsewhere. I am told—but I may be inaccurately informed—that in the European Court the Parliamentary Assembly of the Council of Europe votes on the three names from each country submitted to it. That seems to be some kind of separation of powers.

I am simply not persuaded that the proposals are worth the effort, the money and the negative consequences. Those include symbolism, by which I do not mean dressing up and antique language. By "symbolism" I mean the effective lasting communication to the wider world of the value and the depth of our constitution in its legislative aspects.

I can see some merit in what is being hammered out in relation to judicial appointments. I am very grateful for recent speeches about that; they have clarified my somewhat muddled mind. However, I doubt whether the Supreme Court is at present worth the candle. I believe, too, that the effect, on the actual running of government, of the abolition of the Lord Chancellorship, in watching that the Government govern lawfully, would be to create a vacuum which would have to be filled by the Attorney-General.

I was much impressed and moved by what the noble Baroness, Lady Kennedy of The Shaws, had to say about personality and role. However, I wonder whether we will start agonising about conflicts of role and interest in relation to the Attorney-General in a few years time. That makes me question what the cash value of this word independence really is and to make the wry comment that we do seem to mistrust unduly that rich, symbolic and functional term, symbiosis.

Many of us in your Lordships' House come here from many walks of life. We experience time and again the benefits of what others bring here. That includes what the Law Lords themselves bring. It is what the noble and learned Lord, Lord Nicholls of Birkenhead, described earlier as what is not judge-centred and for me what is not bishop-centred, which is almost invariably very welcome wherever I go.

However, we also bring here many conversations that we have with folk out there. Many people talk to bishops and we are frequently button-holed; and not just by those—I speak in a somewhat facetious caricature—who favour the exclusive use of the Book of Common Prayer and the reintroduction of flogging. In the recent round of legal services in our cathedrals and elsewhere and in the more convivial contact we have with many members of the legal profession, we bishops can report a considerable degree of what might be called static electricity from younger members of the legal profession as well as, shall we say, the well experienced. This is not, I know, an argument against change but it is an indicator of a level of concern about both process and principle which in many ways replicates much of the evidence placed before the Constitutional Affairs Committee of another place and the conclusions of its report, and which we simply cannot afford to ignore whatever may be outcome of this eminently relishable debate.

Photo of Lord Woolf Lord Woolf Crossbench 4:42, 12 February 2004

My Lords, I am grateful for this opportunity to listen to the majority of today's debate. I am also grateful that I am still able to take part in the debate and address your Lordships.

Noble Lords:

Hear, hear!

Photo of Lord Woolf Lord Woolf Crossbench

My Lords, I was especially delighted to hear the important speech by the noble and learned Lord, Lord Cullen of Whitekirk. I share his hope—I am not entirely disinterested in doing so—that this will not be a sole performance by that noble and learned Lord. Unfortunately, for personal reasons, I had to be absent for part of the debate. But I can assure your Lordships that I shall take care to read carefully the speeches for which I was not present.

A package of constitutional reforms was suddenly announced on 12 June. It is fortunate that the Constitutional Affairs Committee published its timely report so that we can take into account its thoughtful recommendations in this debate. The judiciary is most grateful for the fact that that Joint Committee not only was prepared to hear from members of the judiciary, but also took into account what was said. Perhaps that is an indication that a Joint Committee of both Houses, suggested by some of your Lordships, might have some merit.

As we are debating the reforms collectively, it is important to recognise that they fall into distinct parts. The issues in relation to them are not the same. I say that with particular reference to the suggestions made by the Constitutional Affairs Committee, echoed by many of your Lordships, that perhaps we should have a draft Bill so that the matter can be fully considered within Parliament. Certainly I share the view that as full consideration as possible is desirable, but I point out that I have concerns about the present transitional position.

Of course it would have been better if the process had been handled differently. However, I emphasise on behalf of the judiciary that its position is not the same in relation to different parts of the package. As we have sought to make clear in the past, and as we have heard today, the question of whether we have a Supreme Court is quite independent of any other reforms. It involves primarily, but certainly not entirely, a question of accommodation. That was part of the theme of my noble and learned friend Lord Nicholls of Birkenhead. It is the issue on which my noble and learned colleagues are divided. It differs from the other reforms in that it will not be possible for it to be implemented, even if adopted, in the immediate future.

Quite frankly, I must confess that I do not regard the question of a new building for the Supreme Court as a burning issue. After all, the building or site for the court will be difficult to find and, when found, it will be an expensive and complex activity to make it fit for that court. On the other hand, the concordat of reforms submitted on 26 January to this House is of immense importance. Whether we have a Supreme Court or not does not really affect the independence of the judiciary. Unlike the reforms that would follow from the abolition of the office of Lord Chancellor, which affect the independence of the judiciary, there is no need for special protection in relation to the Supreme Court.

In terms of the transitional position, the judiciary finds itself extremely uncomfortable at present, for reasons that I shall try to explain. On 12 June, not only was a package of reforms announced, but a constitutional change actually took place. The change resulted in our having a Secretary of State and a Lord Chancellor instead of a Lord Chancellor. The combination of the office of Secretary of State with that of Lord Chancellor is fundamentally inconsistent. In addition, by Order in Council, the responsibility for the Court Service was transferred from the Lord Chancellor to the Secretary of State.

The noble and learned Lord, Lord Falconer of Thoroton, is now in charge of the Court Service, but not as a Lord Chancellor. He is responsible for supporting the administration of justice as a Secretary of State. I venture to suggest that, had it been proposed that the Home Secretary take over the responsibility for the running of the Court Service, this House would not have greeted that proposal with enthusiasm.

Some of your Lordships are clearly in favour of retaining the office of Lord Chancellor, but some are equally in favour of its abolition. I suggest that no one will be in favour of retaining a Secretary of State and a Lord Chancellor as a single individual. I hope that I will be forgiven for stating clearly that my judicial colleagues and I regard the present position as being a constitutional aberration. The office of Lord Chancellor was unique. The noble Baroness, Lady Kennedy of The Shaws, eloquently explained why that was the case; and how the office itself affected the behaviour of the person who was honoured by holding that office for the time being. The Lord Chancellor regarded himself as different from all other Ministers of the Crown. A Secretary of State cannot, therefore, be a Lord Chancellor and a Lord Chancellor cannot be a Secretary of State.

I happily acknowledge that the noble Lord, Lord Falconer, has striven to fulfil, and has fulfilled, his responsibilities as Lord Chancellor in the same way and with the same distinction as his recent noble and learned predecessors. However, at the same time the judiciary cannot help but note that he has also in relation to his department and his activities consciously acted as a Secretary of State—and there his approach has inevitably differed from that traditionally adopted by a Lord Chancellor.

It may be possible to turn the clock back and sever the Lord Chancellor from his conjoined twin, the Secretary of State, for the future. I would not like to venture an opinion on that subject. However, I would like to make clear that, whether it is possible or not, the judiciary would like to see enshrined in statute as soon as possible the protections provided for in the concordat. That may be complex, as has justifiably been said. But the judiciary now feels that detailed protection is required. That has to be set out clearly and in detail so that the judiciary's position can be seen, not only by it, but the public for whom it has the responsibility of administering justice.

As far as the judiciary is concerned the need for those protections should not be controversial. For example, we need to have in place an appointments commission. Appointments are needed. The comments of the noble Baroness, Lady Howe of Idlicote, regarding the fact that the Commission for Judicial Appointments has been a catalyst were absolutely true. Having appointments scrutinised in the manner of the commissioner and his fellow commissioners has changed the whole process of appointments. It has also made an interim appointments system difficult to design. So it is now important to have a good appointments commission in place as soon as possible. The noble and learned Lord, Lord Irvine of Lairg, was already investigating the type of appointments commission that would be appropriate, thus demonstrating that it is quite independent of the question of whether one has an appointments commission and a Lord Chancellor or an appointments commission and a Secretary of State—it does not mean that one is dependent upon the other.

Finally, I turn to the question of resources. I make it clear that it worries the judiciary immensely that, so far as we know, not one penny of new money is available for these reforms. The budget of the department is already stretched and, without new money, the reforms will detract from the administration of justice generally. If the Government are proposing these significant changes, I suggest that it is their responsibility to make clear, first, that new money will be available and, secondly, that there is no question of litigants generally having to bear the costs of the new Supreme Court. They may have to do so unless that is made clear because, very unwisely, the Treasury is committed to full cost recovery from court fees. That being so, the money for running the new Supreme Court could be intended to come out of such fees at the expense of litigants generally.

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.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 5:08, 12 February 2004

My Lords, I address these issues with a certain amount of difficulty, having been honoured, for almost 10 years, to hold the office that the Government so resolutely propose to abolish. I was interested in and taken with the description of what happens to a Lord Chancellor on taking office, given by the noble Baroness, Lady Kennedy of The Shaws. That showed the perceptive qualities of a Scots person in these matters, as she has never held the office herself. But, who knows, there may always be a possibility in the future.

The idea that the Lord Chancellorship should be abolished is not entirely new. I believe I am right in saying that Lord Elwyn-Jones, in his autobiography, said that as Lord Chancellor he spent most of his time trying to ensure that he was not the last. He was successful in that, as have one or two others, but the noble and learned Lord on the Front Bench opposite may have a different ambition.

I take from others the fact that the general acceptance that the Lord Chancellor's office is an important part of the safeguarding of the independence of the judiciary in this country has been established. The constitutional committee of the other place takes that to be so. Therefore, if it is proposed to abolish the office of the Lord Chancellor, we must look very carefully at what is put in its place. As I understand it, what is proposed is, first, a general duty on the Government and those involved in the administration of justice and the appointment of judges to respect and maintain judicial independence. I am not clear about the effect of the word "general". I am conscious that it has been held that some duties are so general they cannot be enforced. At the end of the debate I should like the noble and learned Lord to give in terms the meaning of "general" in this context and whether it is intended that this general duty should be enforced. If so, I reiterate the question asked by my noble friend Lord Alexander of Weedon: by whom?

The second proposal is that a specific duty should fall on the Secretary of State for Constitutional Affairs to defend and uphold the continuing independence of the judiciary. What duties will be imposed on officers that are not a present duty; and what does the duty prevent them from doing that they presently can do? I asked that question in the debate on the Queen's Speech. The noble and learned Lord the Lord Chancellor replied that those questions were rightfully asked. So far I have not received an answer. I am happy to think that they are the subject of mature deliberation.

Undoubtedly, from the present list of reforms the most important question for me is the abolition of the office of the Lord Chancellor. I can understand from the remarks of the noble and learned Lord, Lord Morris of Aberavon—it is not the first time I have heard this point—that when a department becomes a large spending department it is almost inevitable that the House of Commons will require the head of that department to be answerable to that House as a Member of that House. That is a reason for seeking to ensure that the Lord Chancellor's Department does not become too large a spending department. Of course, it has done so, as a result of changes which have taken place over the years, in particular over recent years. Therefore, there may well be a question about the possibility of hiving off a good number of those spending responsibilities to a Minister answerable to the House of Commons rather than destroying the office of the Lord Chancellor.

Reference has been made to the Lord Chancellor sitting as a judge. When I was Lord Chancellor, I sat as a judge quite a lot. I felt strongly that if I had any talents it was in that area; and that since I was being paid a reasonably high salary I should do what I could to work for that. Upon becoming Lord Chancellor—I had been previously a Lord of Appeal in Ordinary—I was supported in that belief by a letter from one of the professional associations of barristers inviting me on no account to stop sitting as a judge. I felt encouraged, therefore, to do so.

Perhaps in passing I should mention that in his first interview to the Guardian newspaper on taking office, the noble and learned Lord the Lord Chancellor said that all recent Lord Chancellors had been aged 50-plus and members of the English Bar. I acknowledge, of course, that when I took office I was 50-plus; but I never aspired to be a member of the English Bar.

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 have apologised publicly twice already. Perhaps I may apologise again for making that remark in the Guardian.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I feel that perhaps the readers of the Guardian who have imbibed this terrible mistake may require the correction. So far I have never seen a correction there. I have certainly heard the noble and learned Lord apologise. It is not a major matter. However, since I was the person who conferred on the Lord Chancellor his silk patent I thought that he might have known. Obviously my accent must have been somewhat blurred that day.

That leads me to say a word or two about Scotland. I understand that the proposed new Supreme Court is to be the Supreme Court of Scotland.

It is also, as I understand it, not proposed that appeals in relation to criminal matters should come to this Supreme Court. Therefore, it is not accurate to describe it as the Supreme Court of the United Kingdom because in that respect it is not the Supreme Court of Scotland. The High Court of Justiciary is the Supreme Court of Scotland in criminal matters, and of course there is the Court of Criminal Appeal set up by statute for appeals on indictment. These all stop in Scotland and never come, so far as I know, to the House of Lords.

When the devolution settlement was set up, it was proposed that there should be an appeal effectively to the Law Lords on devolution issues. But some devolution issues could well involve crime. Therefore, it was felt inappropriate to have devolution issues come to the House of Lords from Scotland because they might innovate on the exclusion of criminal appeals from Scotland to the House of Lords. The proposal will reverse that. Therefore, there will be a very serious question about the extent to which criminal appeals from Scotland will arrive in the House of Lords. In passing, I ask the noble and learned Lord to say whether and to what extent there has been consultation with the Lords of Appeal in Ordinary from Scotland in relation to these matters.

Finally, I want to say a word about resources. It has been pointed out already that some resources will be required in respect of this proposal. I have not seen much by way of estimates or calculations as yet; no doubt they will come. But it is very important to my mind if the Supreme Court is going to be set up as proposed that it be set up in its home. I would have thought that the worst possible start for what is supposed to be necessary, as a new court—taken out of the House of Lords deliberately—to finish up, after all has been done, where one was before. That seems to me to be a complete muddle and completely unnecessary haste, which brings me finally to support the view that these constitutional arrangements are such that a draft Bill may well be the proper way to proceed.

I notice that when the noble and learned Lord the Lord Chancellor gave evidence to the committee in the other Place, he advanced two reasons for haste, the second being that if he did not hurry, the proposal might run out of steam. That does not seem to suggest a high degree of confidence in the strength of his proposal. I can understand, however, in view of what the noble and learned Lord the Lord Chief Justice said, that it may be wise to proceed with the Judicial Appointments Commission. That could be a separate proposal, which could proceed as the present Bill and other matters could be left for a draft Bill, which could then be the subject of rather mature consideration.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge 5:18, 12 February 2004

My Lords, it is a very real privilege for me to follow the noble and learned Lord, Lord Mackay of Clashfern, who did so much over so many years to uphold and enhance the office of Lord Chancellor in all its aspects.

I should like to add simply a brief footnote to many able speeches on the issue of a Supreme Court. Perhaps I may be permitted to do so from a personal point of view, bearing in mind that I still have more than nine years to go before I shall be disqualified from sitting judicially. Therefore, I have a strong personal interest in the future of this court and the nine years that lie ahead of me leave ample room for slippage in the plans which the noble and learned Lord has in mind.

My primary interest—I am bound to say by way of preface to my remarks—is in maintaining the service which the Law Lords, whatever they may be called, offer to the public to the best of their ability. It would be my intention to serve on the new court, if and when it is set up. So I am particularly anxious to see whether the new system will work and how it will compare with the system in which I have been working now for some seven years. I hope that it will be appreciated that in expressing my own reservations about the wisdom of embarking on this course, I am totally committed to the service of the law in whatever capacity and under whatever name or title I may be called on to provide it. The preservation of the quality of our legal system at the highest level, to which so many distinguished Members of this House have contributed over so many years, is the first priority.

Everyone is agreed that the standard of service that the Law Lords have provided to the public on behalf of the House is very high. It is rigorous in its attention to detail, dignified in its presentation, and highly effective in terms of cost. It is sometimes said—the noble and learned Lord, Lord Millet, made this point—that we are under-resourced and lack sufficient facilities. I am bound to say that I do not agree. It is true that the rooms which we occupy on the Law Lords' corridor lack some of the grandeur of the rooms that are available in the Royal Courts of Justice. We do not have individual toilet facilities, or the individual showers that are for some reason provided to judges in modern court buildings. We do not each have our own secretaries and judicial assistants. In my experience, in comparison with what we do have, these are trivial disadvantages.

I, at least, have never felt that my work here was in the least inhibited by lack of space or lack of assistance. On the contrary, I have been greatly assisted by the facilities that I am given as a Member of the House. The personal service that we receive from doorkeepers, our secretaries, and our judicial assistants is beyond praise. I particularly value the access that membership of this House gives to our Library. I am not just talking about the Library on the Law Lords' corridor, but the Library in which we gather before we go upstairs to sit in Committee. I value access to the range of parliamentary papers that keep one up to date with affairs both inside and outside Parliament. I greatly value contact with your Lordships. As many of your Lordships know, I make a practice quite often of sitting and listening to debates to enable myself to keep in touch with ideas and events.

The question that is uppermost in my mind is how the new system will stand comparison with what we have now. We all know the arguments for change—how will it work in practice? The comparison that I see, against which to measure our current arrangements, is of location in some building yet to be identified, sufficiently remote from this place for it to be impossible to maintain contact to the degree that I have described, even if one was allowed to. Access to the Library as it is will go, as will access to all the parliamentary papers, and the free access to your Lordships will go as well. The purist will say that that should never have happened in the first place. The noble and learned Lord the Lord Chancellor has said that we shall have our own library. I have been told that if I wish to maintain contact with those outside the building in which I shall be working, I should have to change my social arrangements. The reality is that, due no doubt to one of the many accidents of our history, we have built up a system here that has advantages that simply cannot be reproduced anywhere else.

Take the Library. We have here in the Library of the House an excellent collection of law books, filling many shelves in that room with which we are all familiar. Through that Library we have access to all the draft Bills and all the other material that is created during the legislative process. Much of the judicial work that we do relates to the effect of legislation enacted here in Parliament. An understanding of how the legislative process works and access to these materials to enable us to put particular issues into context is an essential part of what we do. We could, by research, obtain information by using judicial assistants—we would not have to do it all ourselves. At present, we have direct and immediate access to the Library, and to these materials, so that we can be provided with answers in very quick time. It makes for efficiency, and it makes for economy.

There is a real cause for concern on the issue of economy. I speak with the experience of having served for seven years as Lord President of the Court of Session in Edinburgh. It is a great pleasure to see one of my successors, the noble and learned Lord, Lord Cullen of Whitekirk, here in his place. During my time, there was constant pressure from the executive to reduce costs. "A good thing", some might say; value for money is a proper objective of government. However, my experience was of a constant search for a given percentage of savings, year after year, to the point where judicial standards were at risk of being compromised. Excessive use of temporary sheriffs and temporary judges was one of the products of that phenomenon. There was also pressure for the recovery of all our costs from court fees—the noble and learned Lord, Lord Woolf referred to that—which risked reducing access to justice. That was a serious matter, at a time when the availability of legal aid was being cut back.

When I came here as a Lord of Appeal in Ordinary, I was immediately aware of a change of environment. So much of what would have to be paid for separately by a Supreme Court is shared with the House in the building that we all occupy. If one is searching for value for money and efficiency in cost, the system that we have cannot be bettered. That is not all: the judicial function that we perform is, in my experience, not in the least inhibited by pressure of any kind from the executive. Our independence from that kind of pressure—acute pressure, if it falls into the wrong hands—is complete. The fact that we share so many facilities is one of our great strengths. There is no pressure on us to pitch our fees at such a level that we recover all our own costs, let alone the full value of the costs that we would have to recover if we were on our own. A few simple calculations would reveal the enormity of the proposal, if it were to be made, that that was how our annual costs should be funded.

I do not know whether it is the immediate intention that the Supreme Court should adopt that system of recovery or how else it should be done. Is the court's income from fees to be supplemented by funds raised from general taxation, as I respectfully suggest that it should? However, I know that the immediate intention of the executive in such things does not really matter. The executive can change its mind, and assurances that proper facilities will be provided are easily given by a government who cannot bind their successors. We are being asked, after all, to set up a new court that is to last for a hundred years, not just the lifetime of this Government. The annual cost of a new court, the way in which the costs are to be met decade after decade and the risk of undue pressure from the executive to reduce costs should be points of concern to those who support the proposal in principle.

As I said, I would regard it as my duty to do everything that is in my power to make the new system work, if it were Parliament's wish that we should adopt it. I must confess, however, that I face the future with more than a little concern. When all is said and done, the justification for having a court of final appeal at our level lies in its ability to add value to the judgment of the lower court. The environment in which we live and work at present assists that process, as does the extent to which we are insulated by that environment against pressure from the executive. It is inevitable that we will lose something of real value if we are moved elsewhere. I cannot, I regret, see in the new arrangements any practical advantages that will take its place.

Photo of Lord Brennan Lord Brennan Labour 5:28, 12 February 2004

My Lords, I regret that I was unable to attend the earlier part of the debate today. Naturally enough, I apologised to my noble and learned friend personally, but I have not been able to address an apology to the House until now. I apologise in particular to the noble and learned Lords on the judicial committee who made speeches that I did not hear, especially as I may appear in front of them at some stage in future. I hope that the noble and learned Lords will treat that apology as fulsome, because I am about to disagree with much that I have heard from them in today's debate.

It is over 100 years since the appellate jurisdiction of the House, through its judicial committee, has been debated as vigorously as it is likely to be in the coming year. It would be unfortunate if, as a result of the debate, the impression went about that there was strong judicial dissent from the proposal for a Supreme Court. There is a major contribution to the debate—the general debate, not today's—that has not been heard by your Lordships but to which the House should pay especial attention. I refer to the views of the noble and learned Lord, Lord Bingham of Cornhill, the senior Law Lord, who is strongly in favour of a Supreme Court, as, I understand, are several of his colleagues on the committee. He is in favour of a Supreme Court from a totally apolitical, judicial and constitutional point of view, which he summed up admirably and succinctly in his Ditchley Park lecture last year. He said:

"The case for change rests on two propositions: first, that institutional structures should reflect constitutional realities; and second, that the serving Law Lords are judges, not legislators".

Those two concepts—constitutional reality and judges not being legislators—are the foundation of the argument in favour of a Supreme Court.

I am going to deal with the need for a Supreme Court, as I see it, by reference to several different arguments. None of them, I hope, will be tarnished with the fatuous incantation of the need to modernise. I shall state what I trust to be serious constitutional argument in favour of this proposal.

The first is the role of the House of Lords judicial committee or a new Supreme Court. We think, in this place, in generations and in decades. But the process of judicial change in our Supreme Court over the past 20 to 30 years has been dramatic. The impact of European law, of human rights law, of public law in particular, of judicial restraint of excesses by the executive, and of findings that legislation, particularly subordinate legislation, is invalid, are major changes in the legal and constitutional life of our country. To that we must now add devolution and, within the next year or two, perhaps, the arrival of regional government, a yet further tension between that form of government and central government and this Parliament. All of that will, I suspect, occupy the Supreme Court.

In the public image, public perception and public understanding of the Supreme Court, how can the public possibly understand that the judges of such issues technically sit in the legislature, as a judicial committee? How will they understand that there is a constitutional division between their judicial role and what they are doing vis-a-vis the citizen and the executive or Parliament? The role of the court has changed and will continue to change.

My second point concerns the balance of constitutional power. Many think that we have, not only as always, but particularly in recent decades, an immensely strong executive and a weak Parliament—weak in the sense that its committee control over the executive is inadequate. In that situation, is it not appropriate that the supreme court of the nation—of the people of the nation—should be entirely separate from those two institutions? This may be unpalatable to state in such blunt terms, but as a defender of the citizen against the executive and even Parliament, the Supreme Court has a vital constitutional role to play.

Thirdly, today's world—a phrase which the noble and learned Lord, Lord Bingham, used in the Ditchley lecture—is, I regret to say, not the world of which your Lordships have been speaking today. The world outside simply does not understand the arguments about the judicial committee and the value in the way that Law Lords can participate. It is a matter of incomprehension. The means of communication today are so direct and immediate, and issues are so stark for public debate. I may be wrong, but I think that the public expect the Supreme Court to be their court.

It is said that the system works—that pragmatism is endorsed. I am simply not able to comprehend the constitutional or intellectual concept of pragmatism. It may represent an ability to change where necessary, but it is not an excuse for not changing because some time we might if we need to. The argument put forward by the noble and learned Lord, Lord Bingham, is compelling. In his speech he quoted Bagehot from 1867:

"The supreme court of the English people ought to be a great conspicuous tribunal, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly".

I agree. By "conspicuous", he meant separate, distinct and eminent. By unity he meant the unifying legal force in terms of the courts, and in his last point, he makes it clear that the Supreme Court should be independent and not part of the legislature.

The need for change is established, but accompanying this change must be real measures to preserve the independence of the judiciary. In the Northern Ireland legislation of 2002, there is a specific provision under the rubric guarantee of continued judicial independence. That guarantee is set out in longer form beneath the rubric. It already exists within our legislative structure and I understand that it has caused no difficulty. If there is a duty in this Bill for a Supreme Court and it is accompanied by a separate and distinct duty on the Secretary of State for Constitutional Affairs to preserve that independence in so far as he or she can, and we consider that, when making appointments, the Attorney-General should be consulted, then all of those represent the means to guarantee independence.

I cannot conceive of the need for a Secretary of State for Constitutional Affairs to discuss with any Member of the Government other than the Attorney-General an appointment to the Supreme Court. If a separate commission proposes names and does so with an open, proper system of selection based on merit, although it is not inconceivable, it is difficult to see how a Secretary of State could make appointments that could be said to be political or unjustified. If there were such an attempt, surely the very body that put the names forward would create a public scandal? It is not a question of judicial review, but of basic constitutional propriety. I will return to the independence of the judiciary in a moment when I deal briefly with the position of the Lord Chancellor, but it is clearly essential that that independence is preserved.

I now turn to the jurisdiction of the Supreme Court. I accept and endorse that it should have the power to determine which cases it will hear—and not have that determined for it. I also fully accept that it should deal with matters of devolution in a way that is sensitive to and respectful of the devolved powers and rights of Scotland, Wales and perhaps Northern Ireland where devolution falls to be considered. But I do not regard this issue of jurisdiction to be insoluble, particularly with regard to Scotland and Wales and devolution. My main point is that the jurisdiction should be as now—within the power of the members of a court to determine.

I turn to resources. My semi-political career up to arriving here and my experience in this place tell me that public expenditure is the bane of reform. I earnestly implore the Chancellor of the Exchequer to bear in mind the words of the noble and learned Lord, Lord Bingham, who said,

"it would be recognised as an independent court, and should be properly accommodated, resourced, staffed and equipped to meet the needs of the whole nation in a new and challenging world. The country which sired those two world-famous twins—the common law and the rule of law—surely deserves no less".

How right he is. We do not want cheapskate solutions. We do not want delay. We want to consider—do we not?—having a one-off payment by the Chancellor of the Exchequer to set the institution up and making it ring fenced in the triennial Budget system as a separate package to be considered by Parliament if necessary at the end of each triennium so that—to use a phrase which the noble and learned Lord, Lord Bingham, has said is apposite—the court will command the confidence of the country. We should accept the Supreme Court as being next to the Lord Chancellor.

If, as my noble and learned friend Lord Morris pointed out, it is democratically and constitutionally appropriate that such a large spending department should be represented by a Minister in the other place, the role of the Lord Chancellor in protecting the judiciary as in times past will not be there to be exercised. You cannot expect within the realpolitik of government a Lord Chancellor with very little to do to be regarded as someone of considerable weight in this field. It may be a blunt thing to say but it is true.

I turn to the appointment of judges. I am able to say this because of my name. You must look at this with great care. As a lecturer said recently, in many ways the Irish legal system for selecting judges is of value only as an awful example of what not to do. I hope that in the selection of judges in this country we shall be extremely careful.

The concordat that was reached a while ago is a good sign for co-operation. Forget the provenance of this Bill; let us look at its content. I hope that the Government—as I am sure they will—will accommodate reasoned debate so that the mechanical changes these changes in principle require will be efficient and adequate to the principle that they hope to serve.

Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench 5:43, 12 February 2004

My Lords, before the silk system was put on hold, it was regarded as a very great honour to be the last in the list, and therefore the most junior, who had done better than all his peers. I have no hope of the same degree of honour descending upon tail-end Charlie in this debate.

It has been an historic debate. There has been an unrivalled procession of speakers with real know-how. They know the subject from personal experience and professional expertise. There have been a number of speeches from noble Lords who are not lawyers. However, there has been no real difference between their attitudes with the possible notable exception of the noble Lord, Lord Brennan.

The House is being asked in this debate to take note of three government policies. One is the decision to abolish the office of the Lord Chancellor. The second is the decision to create a United Kingdom Supreme Court and the third is the appointment of an independent Judicial Appointments Commission. As to the latter, one need say very little. It has been amply covered by the concordat on which I think everyone would like to congratulate the noble and learned Lord the Lord Chief Justice and the noble and learned Lord the Secretary of State for Constitutional Affairs. He does not like to be referred to as Lord Chancellor, for obvious reasons. That it has been covered is not in dispute. It is true that it might not be necessary in some circumstances but my view is that probably it will be necessary. Whether the other party, if one can put it that way, to the Lord Chief Justice in his representative capacity should be the Secretary of State for Constitutional Affairs or the Lord Chancellor—remember he is still, in form at least, alive, even if he is not kicking—is still open.

The real lesson from this debate is that while the House will take note—it has no machinery for doing anything else—the person who ought to take note is the noble and learned Lord the Lord Chancellor and the Government. This is because there has been an almost universal condemnation of the Government's proposals, although perhaps I should not overstate it, in deference to the noble Lord, Lord Brennan. To put it more charitably perhaps, scarcely a speaker has supported the "totality" of their proposals—to use the buzz word of today.

Support for the United Kingdom Supreme Court has been lukewarm and divided. The speech of the noble and learned Lord, Lord Nicholls of Birkenhead, was devastating. It is extremely unfortunate, perhaps, that the senior Law Lord does not feel able to put forward his point of view, but instead has to instruct the noble Lord, Lord Brennan, to do so.

The speech of the noble and learned Lord, Lord Cullen, was doubly welcome because he brought a breath of Scottish air into the Chamber, which has always been sustained by the noble and learned Lord, Lord Mackay of Clashfern. Nevertheless he sent reinforcements from the north. He also proved what I had not suspected until the Statement on Monday by the Secretary of State for Constitutional Affairs, which is that the Government do not propose to have a United Kingdom Supreme Court.

I shall explain. The United Kingdom Supreme Court's decisions would be binding on all branches, on all jurisdictions. It is true that if it was dealing with an English matter of law, it would be irrelevant in some aspects of Scottish law, but subject to that, it would be binding. The decisions of any court have to be considered if one is considering the question of their being binding. The Government propose to have three new appellate layers—one for England, one for Northern Ireland and one for Scotland. They are distinct and the decisions of those layers, which are really mini Supreme Courts, will be binding only in relation to the jurisdiction in which they are given. That is not a United Kingdom Supreme Court. It is the height of spin to pretend that it is.

Injected into the debate, by remote control as it were, have been the immensely important findings and conclusions of the Select Committee on Constitutional Affairs in the other place. The committee said that what is proposed has not been thought through. That may be obvious, but it is valuable that the committee should say it as it is an all-party committee with a majority of the governing party. Some think that it has not been thought about at all, but that is perhaps an exaggeration. Certainly, it has not been thought through. It has been so little thought through that there is an enormous case for some degree of pre-legislative review, from which enormous advantages would follow.

The Committee also suggests that the abolition of the office of Lord Chancellor should be put on hold until the rest of the jigsaw is either abandoned or falls into place. I think that that is an eminently sensible suggestion. I rather fancy that this House might have a role to play in ensuring that it was put on hold since it would be impossible for the Government, despite their enthusiasm, to abolish the office of Lord Chancellor without some statutory assistance from this House—unless, of course, they are going to try to invoke the Parliament Act; but that would be a very long, drawn-out proceeding, quite apart from the fact that I imagine that the Bill is going to begin in this House.

What are the advantages claimed? As I say, there is no problem about the concordat. However, on the abolition of the Lord Chancellor's office and the creation of a new Supreme Court, different considerations apply. I really do not know what the claimed advantages are despite the intervention of the noble Lord, Lord Brennan, whose speech I shall have to reread so that I may understand what the opposition is.

Tributes have been paid on all sides to the part played by Lord Chancellors in recent years—tributes to their invaluable role in upholding the rule of law and upholding the independence of the judiciary against the very natural tendency of governments of all political persuasions to find that the activities of the judiciary are distinctly tiresome. Governments see them as standing in the way of what they believe to be policies for the public good which certainly should not be opposed by such non-political people as the judges. There is no suggestion that the Secretary of State for Constitutional Affairs, particularly if he was not in this House, could begin to discharge that role. The Lord Chancellor has no political ambitions. I do not know of any other member of the Cabinet who does not have political ambitions. Most of them have ambitions that, by accident or otherwise, the tenancy of No. 10 Downing Street might become vacant and they might be a possible candidate. Some may overstate their claims; but, nevertheless, that must be a factor which, subconsciously, affects them.

The Secretary of State is a very junior member of the Cabinet, as opposed to the Lord Chancellor's position, which has always been at the very top of the pecking order. Perhaps I am wrong but I have an idea that when the noble Baroness, Lady Thatcher, resigned it was the noble and learned Lord, Lord Mackay of Clashfern, who had to speak on behalf of the Cabinet as a whole in his capacity as the senior member of the Cabinet after the Prime Minister.

It might have been expected that as the noble and learned Lord, Lord Falconer, is still Lord Chancellor he would have spoken out against the Government's efforts in Clause 10—someone said it is Clause 11, but I think it is Clause 10—of the asylum Bill to produce the greatest ouster clause—ouster of the jurisdiction of the courts—that has ever been thought of. I have a nasty feeling that, whereas all previous attempts have failed, this one might succeed. I say I have a nasty feeling because it would then confront the judges with the very real problem of whether they are going to say to Parliament, "Look; thus far but no further. We are appointed to uphold the rule of law and justice. It is not open to Parliament to pass laws which prevent us doing it". But that is for another day. They have yet to get that clause through.

Then there is Clause 5 of the domestic violence Bill which is just emerging from Grand Committee. Nobody will have heard of it, but in Clause 5 it has a clause that on one view at least—and I share that view—reverses the burden of proof, contrary to the Human Rights Act. Then there is the extraordinary recent situation in which the Home Secretary, in India—and knowing, I suppose, what the Prime Minister was going to say three or four days later—had to float the idea of adopting the civil standard of proof in relation to some crimes. Having scooped the Prime Minister, it was left to the Prime Minister, with the Home Secretary by his side, to announce it himself. He said that where there were sufficiently serious crimes those accused of them—what President Bush would describe as the bad guys—must be pursued with a rather different formulation of the law.

The Lord Chancellor could assume all the functions laid out in relation to the concordat. There is no problem about that. I see no reason why he should not continue as the illustrious head of this House representing this House outside with an unparalleled degree of historic authority. In the view of some judges, if judicial capacity were hived off to a new Supreme Court it would greatly impoverish the importance of the judicial capacity of this House and your Lordships' House as a whole. I hope that that will be given very serious thought. It has been said that these changes are not value for money. Not only are they not value for money, they do not add value at all.

In the light of this debate one might expect that the noble and learned Lord, the Lord Chancellor, otherwise known as the Secretary of State for Constitutional Affairs, might hang his head in shame. I have no great hopes he will do so but it is a nice thought and I suppose I have to content myself with the explanation given by the noble and learned Lord, Lord Mayhew of Twysden, that tubeless tyres never deflate.

Photo of Lord Brennan Lord Brennan Labour

Before the noble and learned Lord sits down, I invite him to accept that some Law Lords, the noble and learned Lord, Lord Bingham of Cornhill, and others, have expressed the view that they should not participate in debates in this House. They do not believe that it is appropriate. Secondly, so no hare starts running, will he accept my assurance that I have not spoken to any Law Lord about my contribution to this debate?

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs) 5:45, 12 February 2004

My Lords, this has been a remarkable debate. We have had contributions from five current holders of high judicial office, including a distinguished maiden speech from the noble and learned Lord, Lord Cullen of Whitekirk. We have also heard from one former Lord Chancellor and five former Law Lords. That makes this in all probability a unique occasion. My pleasure in listening to their speeches has been only slightly reduced by the fact that I do not agree with any of them except for the speech of the noble and learned Lord, Lord Woolf. I thought his remarks were absolutely outstanding and highly persuasive. I also agreed to some extent with the noble and learned Lord, Lord Millett. I do, however, agree very strongly with the two noble and learned Lords who have not spoken but have made their views clear in public. As mentioned by the noble Lord, Lord Brennan, they are the noble and learned Lords, Lord Bingham of Cornhill and Lord Steyn.

We on these Benches, and in saying that I must add the customary proviso, with the exception of my noble friend Lord Phillips of Sudbury, support the setting up of the Judicial Appointments Commission. We support the ending of the office of Lord Chancellor and the creation of a Supreme Court. These are all ideas which we have advocated since long before the Government underwent their remarkably sudden conversion last June.

First and foremost, what we are debating is the independence of the judiciary. That is a matter of the utmost importance. It is important because democracy on its own is not enough. We need democracy strengthened by the rule of law. Democracy uncontrolled by the rule of law leads to populism and the tyranny of the majority. The risk of such tyranny is doubled if we have no written constitution and therefore no entrenched rights that need a special majority to be altered. It is doubled again if we have, as we do, an electoral system that gives an overwhelming majority in the House of Commons on a minority of the vote.

To protect the rule of law, we need a strong judiciary. We need men and women of integrity, intellectual power and independence of mind, buttressed of course by security of tenure. Indeed, to a very high degree, that is what we have had. However, we would be unwise to assume that the present system will always produce the judges that we need, and I believe that there is a real danger that it will not.

Tensions between the executive and judiciary have increased in recent years for several reasons. First, judges have become more activist. Forty or 50 years ago, there was a cosy relationship between the government and the judiciary, and the judges were, in the phrase of Francis Bacon, once Lord Chancellor, "lions under the throne". They rarely interfered with executive decisions. That started to change in the mid-1960s. Judges started to challenge executive decisions, judicial review became an important remedy in public law, and government departments had to recognise that they could be taken to court, and might lose if they were. That led to the publication of that well known circular to civil servants, The Judge Over Your Shoulder.

Secondly, there was the Human Rights Act. That allows judges to declare Acts, although not void, incompatible with human rights, which of course can be a source of great embarrassment to governments. Indeed, the Act enables judges directly to invalidate secondary legislation and executive acts. Thirdly, the Department for Constitutional Affairs is now a major department, with responsibilities that go far beyond the traditional functions of the Lord Chancellor's Department. That means that the role of the head of that department is far more political than in the past.

The greater powers of the judiciary, and its greater willingness to exercise them, means that it is ever more tempting for a government to seek a compliant judiciary. The only existing barrier to that is the office of Lord Chancellor. However, the strength of that barrier depends entirely on the character of the individual appointed to that post. If judicial appointments are left as they are now—in the hands of the Lord Chancellor, or of a Prime Minister acting on the advice of the Lord Chancellor—sooner or later, and it may well be sooner, a Prime Minister will appoint a Lord Chancellor who is willing to make the sort of appointments that the Prime Minister wants to have made. Judges appointed by that Lord Chancellor will not be corrupt or stupid, but they will be chosen because they have a particular point of view, and that will be the end of judicial independence.

That has happened at times in the past. When Lord Halsbury was Lord Chancellor at the beginning of the 20th century, he was quite open about it. It has happened more recently. It is widely believed that Harold Wilson refused to appoint—I hope that he will not mind me saying it—the noble and learned Lord, Lord Donaldson of Lymington, to the Court of Appeal in order to placate the trade unions, which were unhappy with his decisions in the national industrial relations court. Such instances will surely happen again if present powers are left with the office of Lord Chancellor.

We have a window of opportunity to prevent that, and we need to take advantage of it now. If we take the Bill away and bring it back as a draft, we will not get the legislation through in this Parliament, and who knows who will be Prime Minister or Lord Chancellor in the next Parliament? Further, as the noble and learned Lord, Lord Woolf, pointed out, the present situation is untenable as regards the appointment of judges to the courts of England and Wales, and we need to get on with the legislation to create the Judicial Appointments Commission.

We therefore cannot support the recommendations of the Select Committee on Constitutional Affairs, despite the distinction of its chairman, my right honourable friend Alan Beith. We cannot support its recommendations to consider a draft Bill before proceeding to legislate. We need to consider not what should or might have been done last June, but what should be done now.

I note the support of many noble Lords who have spoken for the preservation of the historic office of the Lord Chancellor. However, I do not understand why so many speakers do not see that the real risk to the independence of the judiciary comes from leaving things as they are, not from change. It has also been said that the Lord Chancellor can speak for the judiciary and the rule of law in the Cabinet—as a Lord Chancellor should. Again that depends on the personality of the Lord Chancellor.

I regret having to point out, as did the noble and learned Lord, Lord Donaldson, and other noble Lords, that the present Lord Chancellor was apparently either unwilling or unable to prevent the inclusion of Clause 10 in the asylum Bill, which removed judicial review of the decisions of the Immigration Appeal Tribunal. I believe that the noble and learned Lord is personally committed to the rule of law, but Clause 10 does not suggest that his influence is sufficient to restrain the unconstitutional proposals of the Home Secretary. As matters stand, if the system ain't broke there is at the very least a nasty rattle in the mechanism. The noble Baroness, Lady Kennedy of The Shaws, made a strong case for saying that the system is broken, and that, too, was the effect of the speech of the noble and learned Lord, Lord Woolf.

Whether or not a Supreme Court is created, it is plainly wrong for the Lord Chancellor, whether under his old or new name, to act as head of the judiciary any longer. The Lord Chancellor cannot be regarded as impartial in any proceedings involving the Government and, therefore, cannot sit in any case in which the Government have an interest. That would include tax cases, probably the majority of cases of judicial review and, maybe, crime. That would eliminate him from participating in much of the work of the Appellate Committee. The present Lord Chancellor rightly recognised that it was inappropriate for the holder of that office to sit as a member of the Appellate Committee. However little regard one has for the principle of the separation of powers, a Cabinet Minister acting as a presiding judge of the highest court will not do.

The third main issue involved in the reforms is the creation of the Supreme Court. The nominal retention of your Lordships' House as the highest court is not in itself, I agree, a threat to the independence of the judiciary or the rule of law. It does maintain a fiction at the heart of our legal system. The fact is that your Lordships' House as a legislative body and the Appellate Committee of your Lordships' House are already separate for almost all purposes. Lay Members of your Lordships' House—or legally qualified Members who have not held high judicial office—have not taken part in the judicial business of your Lordships' House for at least 200 years. Serving Law Lords and current holders of other high judicial office, such as the Lord Chief Justice or the Lord President of the Court of Session, now speak only in exceptional circumstances and have not voted, as far as I am aware, for some years.

I welcome the contribution of the noble and learned Lords to the debate today, because the circumstances are exceptional. But it is correct in principle that Law Lords should not take part in the legislative proceedings of your Lordships' House, because I believe—and I agree with the noble and learned Lord, Lord Bingham of Cornhill—that that is inconsistent with their role as members of the judiciary. We are simply maintaining a legal fiction which has long ceased to represent reality and now causes confusion.

Further, any serious reform of your Lordships' House which would introduce a substantial democratic element among its membership would be inconsistent with the retention of the judicial functions of the House. It is surely far better for the Appellate Committee to become a separate Supreme Court with its own premises and facilities.

As the noble and learned Lords, Lord Woolf and Lord Millett, pointed out, this is as much, if not more, a question of accommodation as of constitutional principle. In fact, it is believed that a few years ago the Law Lords were offered, and turned down, the opportunity to move into the old Public Records Office in Chancery Lane. I believe that that, in many ways, would have been an ideal location for them. The reason they turned it down was not, I think, on grounds of constitutional principle.

We need to consider not only facilities for the Law Lords themselves—we have heard differences of opinion about that—but facilities for the staff and, indeed, for the public, who have a right to attend, and do attend, the hearings of your Lordships' House sitting in the Appellate Committee.

I agree that it would be inappropriate for the Supreme Court to sit, even temporarily, in the Palace of Westminster. Therefore, while we support the idea of including the creation of a Supreme Court in the forthcoming Bill and very much wish to see it there, we can see some justification for deferring the implementation of that part of the Bill until proper accommodation has been found. We certainly hope and expect that the search for proper accommodation will continue with all due speed.

The debate today has reminded me rather painfully of the debate that we had this time last year on options for reform of your Lordships' House. I was reminded of that because of what seems to me too often to be a reflex resistance to any proposals for change in your Lordships' House. A few of the speeches—I pick out, in particular, those of the noble Baroness, Lady Kennedy, and the noble Lord, Lord Brennan—have been notable exceptions.

That is perhaps highlighted by the fact that there has been relatively little criticism of the Judicial Appointments Commission, which has little impact on your Lordships' House. Criticism has centred overwhelmingly on the removal of the Law Lords from your Lordships' House and on the abolition of the office of Lord Chancellor. We have heard almost no serious argument that the Lord Chancellor should either continue to sit as a judge on the Appellate Committee or continue to appoint judges to the courts of England and Wales with the liberty that he now does. If the office were stripped of those powers, it would be utterly changed, even if it kept the same name. It would be a different office and I see no justification for keeping it under the name of the Lord Chancellor rather than that of the Secretary of State.

We have spent much of today's debate arguing for the retention of the Law Lords as Members of your Lordships' House. That would mean retention of the historic anomaly, whose benefits are questionable and which will, in any event, have to go when we achieve democratic reform of this House.

Of course, we shall contest aspects of this legislation—especially the system for the appointment of the justices of the Supreme Court. However, we shall support the principles, as we have done for years.

Photo of Lord Henley Lord Henley Conservative 6:13, 12 February 2004

My Lords, there was one small point on which I agreed with the noble Lord, Lord Goodhart, and that was that this has been a most remarkable debate. Other than that, I have to say that I was not in full agreement with the noble Lord or with his noble friend Lord Lester. I preferred the views of the good liberal, the noble Lord, Lord Phillips of Sudbury.

As, I believe, the most junior member of the Bar taking part in this debate, it is with some trepidation that I wind up the debate, which has been going on since 11.30 this morning. I suspect that most noble Lords would like to hear from the noble and learned Lord the Lord Chancellor and Secretary of State for Constitutional Affairs, if I may give him both his titles, as soon as possible. However, there are just one or two points that I would wish to make to re-emphasise the line taken by my noble friend Lord Kingsland earlier.

I start by offering my congratulations to the noble Lord, Lord Cullen, on his maiden speech and by saying how much I agreed with his distinctly non-controversial request—I think that we can all agree that it was non-controversial—that the senior judges will continue to sit and speak in this House.

Next, perhaps I may refer to the remark of the noble Lord, Lord Phillips, about betting £100 to a penny that if the noble and learned Lord the Lord Chancellor put the proposals to consultation with all those actively involved in the administration of justice, they would get, as I think the noble Lord put it, a "thumbs-down". After this debate, given the number of those who have spoken and the views that they have expressed, I suspect that even the noble and learned Lord, Lord Falconer, would have to agree with that point.

I have to say that he did not get very much support, even from his own Benches. As I understood it, the noble Lord, Lord Brennan, was in support. There was some partial support from the noble Baroness, Lady Kennedy of The Shaws—but only a very partial support. The support from his noble friend Lord Borrie was distinctly lukewarm when, as I think I noted correctly, the noble Lord said that he was in favour of some of the Government's proposals but not supportive of their plans for a Supreme Court or the abolition of the Lord Chancellor. That took away from virtually all of the Government's proposals, with one exception. The noble and learned Lord the Lord Chancellor should be grateful for that support—for what it is worth.

As I said, I want to make two or three brief points, to re-emphasise the position of these Benches and to underline what my noble friend Lord Kingsland was saying earlier. First, I underline the desirability, as we see it and as the Constitutional Affairs Committee of the House of Commons sees it, of some degree of pre-legislative scrutiny. Some noble Lords went even further. I think that it was the noble and gallant Lord, Lord Craig, who said that he would like a Royal Commission to look into constitutional changes of this importance and depth. We would not necessarily go as far as that, but we certainly would like to see some more pre-legislative scrutiny.

The noble and learned Lord the Lord Chancellor should consider very carefully, particularly when he considers the composition of that House of Commons committee—a committee dominated by supporters of the Government—how to respond to that. I shall not repeat the quotations from paragraphs 26, 27, 28 and 29 of that report made by my noble friend. However, I do recommend that the noble and learned Lord looks at them again, recognising that this was a point made not only on these Benches—though it was made on these Benches by my noble friend Lord Alexander and my noble and learned friend Lord Mayhew—but also by the noble and learned Lord the Lord Chief Justice and by the noble and learned Lord, Lord Donaldson. I should be grateful, therefore, if the noble and learned Lord could again address the question as to why there cannot be pre-legislative scrutiny of the Bill—and possibly more than one Bill—as complicated as these will be.

Secondly, I turn to the proposed Supreme Court and ask a number of straightforward, practical questions about the cost. This is a relevant matter and I think that we should all be grateful for the remarks made by the noble and learned Lord, Lord Hope, when he spoke of the need for value for money. I appreciate that it was the noble and learned Lord, Lord Millett, who said that the facilities they had in front of them were not sufficient and that they needed more rooms, more staff, and so on. In my time as Chief Whip, I remember that there was a request from the Law Lords for some extra rooms, which we on the Conservative side might have been able to give up. However, at that time we came under pressure from the Lord Chancellor's predecessor for yet more offices for the aggrandisement of the Lord Chancellor's Department—offices which have since been returned to the use of Back-Bench Peers.

The whole issue of cost is important. Perhaps the noble and learned Lord could answer the question posed, I believe, by my noble friend Lord Onslow when he suggested that the additional cost of having the Law Lords in this place, after one has ignored their salaries, is about £180,000. The figure that I had heard was about £165,000. I do not know what is the extra cost of having the Law Lords here, but perhaps the noble and learned Lord could give us an estimate of the cost and an estimate of the cost of installing them in a brand new building with the same number of assistants that Supreme Court judges have in Australia, America, or wherever. I understand that the Government have not decided whether to build a new one or adapt an existing building.

Bearing in mind the experience of the noble and learned Lord in dealing with the Dome, he will certainly recognise the danger of escalating costs in setting up a new building. If he has forgotten his experiences with the Dome—I dare say he has not—he can ask his colleagues in Scotland about the dangers of escalating costs when new parliamentary buildings are constructed. When we see the Bill we should have estimates from the Government on the actual costs—capital and running costs—of a new court building so that we can make a direct comparison between what we are paying now and what we may have to pay in the future.

I turn briefly to the proposed new appointments commission and particularly to the remarks of my noble and learned friend Lord Mayhew. As the noble and learned Lord will remember, he made it clear that judges would be appointed by the appointments commission only on merit and, according to the Lord Chancellor, merit would be the sole criterion. As my noble and learned friend put it, we need to know not only what merit means, but also how merit will be defined in the Bill. We look forward to an answer from the noble and learned Lord on that point.

Another point I wish to make on the appointments commission is one made by the noble Lord, Lord Phillips of Sudbury. He pointed out that what was being proposed was that two to five names would be put forward by the appointments commission for appointment to the new Supreme Court from which not the Lord Chancellor but the new rather political Secretary of State for Constitutional Affairs— not the Prime Minister—would be able to choose one. As the noble Lord, Lord Phillips, said, that appears to be, if anything, a recipe for greater politicisation of the process.

I turn to the abolition of the post of the Lord Chancellor and to the sorry events of 13 June. That appears to have been political incompetence of the worst kind. Two possible scenarios—there was a third—were put forward by the noble Baroness, Lady Kennedy. My noble friend Lord Onslow implied that the first was, in effect, just like a wheeze dreamt up by a couple of law students as they sat over coffee. The noble and learned Lord, Lord Hoffmann, put a slightly more conspiratorial gloss on the situation and said that it was part of a quick fix for getting rid of the previous Lord Chancellor. Quite frankly, either interpretation is equally likely, but what is clear—and what I believe the Prime Minister has now made perfectly clear—is that the whole matter was dealt with fairly incompetently. It was not the best way to start a major constitutional debate.

Finally, I turn to the "if it ain't broke don't fix it" school of thought, which is one that I, as a Conservative, would certainly always wish to support. I say that as a Conservative with a large "C" and a small "c". The noble Lord, Lord Goodhart, seemed to accept that it was not "broke" but said that there were some pretty odd noises coming from the mechanism. I do not accept that; and I do not suspect that the noble and learned Lord the Lord Chancellor accepted that it is broke. He made clear that he saw the judges in the highest possible light; he held them in the highest possible esteem. As I understood what he said, he did not think that there could be any better judges in the world. If that is so, I do not understand why it is necessary to mess around creating a Supreme Court when we have a system which seems to work fairly well. I said that I would be brief. I hope that I have not exceeded my time too much. We all look forward to hearing the noble and learned Lord. I hope that he will be able to address a number of the questions put to him.

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 6:26, 12 February 2004

My Lords, I agree with the noble Lord, Lord Henley, and the noble Lord, Lord Goodhart, that it has been a remarkable debate. I have been described as a self-inflating tyre, not suave and a constitutional aberration. With the possible exception of a self-inflating tyre, I plead guilty to all the charges made against me.

I join other noble Lords in congratulating with real sincerity the noble and learned Lord, Lord Cullen of Whitekirk, on his speech. I join with the right reverend Prelate—he comes from within approximately 20 miles of the area relating to the title of the noble and learned Lord—in saying that he brings not just a breath of Scottish air. There has been an absolute gale blowing through the debate when one considers those who have spoken, including myself. I very much hope that his will not be a valedictory address but that we shall hear more from the noble and learned Lord in later debates.

The noble Earl, Lord Onslow, referred to his time on the committee chaired by the noble and learned Lord, Lord Scarman. I agree that having Law Lords in place pushes up one's game a notch or two. That has been very much in evidence during the course of today's debate.

Many issues have been raised in the course of this long and interesting debate. I shall focus on the three main issues. What is the case for abolishing the role of Lord Chancellor? What is the case for a Judicial Appointments Commission? What is the case for a Supreme Court separate from the House of Lords? Before I deal with each of those points, I categorically deny all the various conspiracy theories which have been advanced. We most certainly do not wish to reduce the independence or quality of the judiciary. Far from it: our intentions are to increase the independence and enhance the quality.

As regards the theory that it is a ruse in order to get rid of a political personality, again that is completely untrue. I believe that the issues must be debated on their merits.

In relation to the abolition of the office of the Lord Chancellor, I agree that there must be a positive case, not just a theoretical reference to the separation of powers, for the abolition of that important role. That it is an important role I fully and enthusiastically accept. Currently, the main functions of the office of the Lord Chancellor are as a Minister, having a substantial role as the protector of the judiciary, and an important role in relation to the rule of law. That role involves appointing judges. That must be done on an objective basis, defending the independence of the judiciary irrespective of any political concern. I shall continue to fulfil that function until the office is abolished and other arrangements are put in place.

How does it work in practice with the Lord Chancellor being both a Minister and having that role in relation to the judiciary? Through no decision of any government, the budget of the Lord Chancellor's department is now between £2 billion and £3 billion. That budget goes on the administration of the courts and legal aid. Those two issues of expenditure are of huge importance because of the expenditure involved and because the issues they raise are of great importance to the public. The public are keen to see the courts operate in a way which gives them confidence in relation to domestic, civil and criminal issues. So, in relation to the expenditure and those issues, the Lord Chancellor must operate as a Minister. He must be accountable to Parliament and act on behalf of the public in what he does.

Regarding his role as the protector of the judiciary, he has a separate, entirely different function. Do these roles come into conflict? They did not much 20, 30, 40 years ago, but as time has gone on, as I think the noble and learned Lord, Lord Woolf, would acknowledge, these roles have increasingly come into conflict. I give a tiny example. Today the noble and learned Lord, Lord Hobhouse of Woodborough, in a very powerful speech, made an impassioned plea for more money to be given to the Court Service. There is a real issue of priorities there. What is the role of the Lord Chancellor in relation to that? Must he act on behalf of the judges or in his role as a Minister? It must be, I submit, as a Minister.

Two other examples were given in the course of the debate. First, the noble Lord, Lord Kingsland, referred to the Criminal Justice Act, which permitted the admission of previous misconduct evidence into criminal trials in certain specified circumstances. Quite legitimately, certain members of the judiciary have made public their concerns about those provisions. Again, in relation to Clause 10 of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which is currently in another place, legitimate concerns have been raised by the judiciary.

There is a policy issue, for which in part the Lord Chancellor is responsible, as well as a rule of law issue in relation to both of those issues. As it happens, neither of those provisions infringes against the Human Rights Act or the convention underlying it. That is the advice that we have received; that is a view that I share.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for giving way. Is he aware that the Joint Select Committee on Human Rights, in a report published this week, unanimously came to the contrary conclusion?

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, on the Clause 10 provision, I am aware of that. But the noble Lord will be aware that the relevant certificate has been signed in another place in relation to the Bill. It indicates on the basis of proper and legitimate advice that the Home Secretary has come to the view that this is a perfectly legitimate thing to do in the context of the Human Rights Act.

Photo of Lord Kingsland Lord Kingsland Conservative

My Lords, I am most grateful to the noble and learned Lord for giving way. I reinforce the point that I made and to which he very kindly referred. My point is that the protection provided by the European Convention in criminal law matters is too weak to deal with issues such as the presumption of innocence in relation to propensity and Clause 10.

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 Lord Chancellor must form a view about where the rule of law is being infringed. That will frequently bring him into conflict with his political role. If it does, the rule of law must prevail. There is no doubt about that. But he must from time to time make decisions about policy where he believes the rule of law is not infringed. If every time he does that he is criticised for failing in his role as Lord Chancellor, that will lead to increasing difficulties in his role. One of the things he must do is retain the confidence of the judiciary in relation to what he does.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I hesitate to interrupt. One of the concerns that many of us have is that the noble and learned Lord is describing this very complex role that the Lord Chancellor plays—deciding where he is protecting the rule of law but where he can be a Minister happily developing policy. Will a Secretary of State who is not necessarily from a legal background—someone who does not have a loyalty to the law—understand where those boundaries should be set? Can we be confident that a Secretary of State with ambition will not side with the political part of his background, as distinct from that which will protect the rule of law? That is where our anxieties lie.

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, that point is absolutely rightly and forcefully put. The question that the abolition of the Lord Chancellor's role raises is: can you go on with a £3 billion budget? With these policy responsibilities—a responsibility for being the protector of the judiciary and the upholder of the rule of law—there is an obvious conflict. The conflict has become greater and greater. The separation of powers is not some abstract concept. It is preventing your role as a Minister overtopping your role as a protector of the constitution, or preventing your role as a protector of the constitution overtopping your role as a Minister. Eventually, we are getting to the point where that conflict cannot be contained in one office. It is a matter of regret, because it is such an impressive, historical office, but we must learn from history, and we must ask ourselves whether those arrangements can continue—

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, the noble and learned Lord seems to be arguing that there cannot be a protector of the constitution and a politician in the Cabinet, therefore the protector of the constitution goes from the Cabinet, and there is no further protector of the constitution. That seems a rum old argument from the Lord Chancellor.

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, with the greatest respect to the noble Earl, confronted with this conflict, there are a number of ways in which you could seek to remedy it. You could, for example, as one noble Lord suggested, transfer away all the ministerial functions from the Lord Chancellor, and leave the Lord Chancellor as in effect the protector of the judiciary. You would have this irony of the Lord Chancellor sitting in the Cabinet, presumably being the head of the judiciary, never sitting as a judge, and not being a judge. I respectfully suggest that that would not provide either adequate or sensible protection.

In answer to the specific point made by the noble Earl, recognising the important role played by the Lord Chancellor in protecting the rule of law and independence of the judiciary, we propose to do three separate things, all of which are referred to in the concordat that was discussed and agreed with the noble and learned Lord the Lord Chief Justice, on behalf of the judiciary.

First, we propose to place on the Secretary of State for Constitutional Affairs a specific duty to protect the independence of the judiciary. The noble and learned Lord, Lord Mackay of Clashfern, raised the question of how that would be enforced. That would be a matter for debate and development over a period of time. Secondly, we propose to place a specific duty on all members of the government involved in the administration of justice to respect the independence of the judiciary. Thirdly, we propose to make the Lord Chief Justice the head of the judiciary—the senior judge in England and Wales, the person who carries the respect and authority of other judges in England and Wales. That is the replacement package to protect the independence of the judiciary in relation to the government. It is sensible.

Noble Lords will know that the Lord Chancellor is third in order of precedence in the land after the Royal Family and the Archbishop of Canterbury—third is overstating it, because there are many members of the Royal Family. Nevertheless, he has an important position in the land. Where he is in the Cabinet, however, depends entirely on the Prime Minister of the day. Noble Lords will remember that when Winston Churchill was Prime Minister, he threw his Lord Chancellor out of the Cabinet altogether. I say this advisedly, because his grandson is in the House. He has heard me say before that the Lord Chancellor was regarded as a slightly difficult man, whom the Prime Minister did not like to have around, so he flicked him out of the Cabinet. The permanence of the Lord Chancellor in the Cabinet is a variable thing over time—

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I do not promise that this will be my last intervention. The concern that many of us have is that there can be a shared responsibility among Cabinet Ministers, to remind themselves that the rule of law matters. However, when a Home Secretary is saying, "let us reduce the standard of proof"—and he is licensed by the Prime Minister, who takes the same view—clearly they do not think that that is an inherent part of our view of what the rule of law means, and who is to gainsay that? Who is to speak for justice in the Cabinet then? That was what my noble and learned friend Lord Irvine of Lairg did—and he paid the price.

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, if reducing the burden of proof in particular circumstances—I make no comment on particular circumstances—infringed the rule of law in some shape or form, for example by infringing the Human Rights Act 1998, the Secretary of State for Constitutional Affairs, the Attorney-General and, perhaps most significantly, the Lord Chief Justice could speak out. Ultimately, it would be for Parliament to form a view about what should happen.

Noble Lords:

Hear, hear!

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, we make our case fairly and squarely on the increasing conflict between the role of the Lord Chancellor as a Minister—it does not matter whether he is called a Secretary of State; in recent times, he has been a Minister all the time that he has been Lord Chancellor—and his role with regard to the judiciary. We are right to make the change now, before those pressures become too great and the system begins to break down.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, the Secretary of State said that the Lord Chief Justice could speak out. Is he sure that a judge with no base in this place will be able to speak out and speak out soon enough for his or her advice to be heeded?

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 say it with some diffidence, but the noble and learned Lord the Lord Chief Justice has today spoken out on several issues through the pages of the New Statesman and "The World at One". So, he has never had any difficulty getting his points across. I do not believe for one moment that there are not adequate outlets for the Lord Chief Justice to express his concerns in an appropriate way.

I must also make it clear that those concerns can be expressed internally as well as externally under these arrangements. It is also worth stating that another part of the process must be keeping the executive and the judges as close as possible with regard to matters of mutual concern. Part of the arrangement made in the concordat between myself and the noble and learned Lord the Lord Chief Justice was to involve judges in the unified administration of the courts and to involve judges in a non-executive capacity in relation to my own department, so that there are close links. The state benefits from a mutual understanding and a partnership between the judges and the executive, in a way that does not infringe the judges' independence.

Photo of Lord Elton Lord Elton Conservative

My Lords, did the noble and learned Lord notice the growl of assent that came from behind him, when he said that it was for Parliament to defend the rule of law? Can he see why we are puzzled that Parliament should be strengthened by the removal of all the senior practitioners of the law?

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, as I understood it, the growl of assent—I was closer to it than the noble Lord, Lord Elton—was made on the basis that, if, for example, there was an issue arising from previous misconduct or Clause 10, it would ultimately be for Parliament to decide it. Parliament must protect the liberties of this country, if it thinks that that is the appropriate course. Obviously, in this House, we have a particular responsibility for that.

Photo of Lord Woolf Lord Woolf Crossbench

My Lords, I hope that the noble and learned Lord will not mind me intervening. In his speech—for which he has been given appropriate credit—the noble and learned Lord, Lord Cullen of Whitekirk, said that convention was important. If we are considering the protections that are available, it might be useful to have them clearly on the record, as they have not been placed on the record recently. As I understand it, it is a well-established convention that if the Lord Chief Justice of the day wishes to raise matters of importance with the Prime Minister he is always given an immediate audience.

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. I welcome the opportunity that the noble and learned Lord has given me to affirm that that convention exists. It is part of the important relationship between the judiciary and the executive.

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop

My Lords, I fear to tread on this ground, but has not the conversation of the past few minutes illustrated the fact that judicial independence is sustained and strengthened by holding these things together rather than by pulling them apart? Is that not the benefit of the noble and learned Lord's office in all these matters? Is it not the benefit of our constitutional arrangements, however they are shaped for the future? We all accept that these matters are always open for adjustment, but the danger of pulling them apart in a half-hearted way is that we could ultimately undermine that independence.

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, that is a very important point, and it is at the heart of the debate. I do not think anyone would say we are being half-hearted about this. As far as the pulling apart is concerned, the question I pose is whether the ministerial role and the judicial protector role are such that the conflict can no longer be sustained in the long term. In practically every other area of life, you try to resolve a conflict by taking away from one individual pressures that may be conflicting. I have made it clear that I will continue to discharge both jobs but I think it is sensible, in the long term, to seek to resolve that conflict by giving one person the ministerial function and another person the function of head of the judiciary.

As noble Lords have noted, there was not much opposition to the principle of a Judicial Appointments Commission. There is a strong feeling, particularly exposed by the work done by Sir Colin Campbell, that the time has come for a more transparent, methodical approach to the appointment of judges.

A number of noble Lords asked how we will define merit; that is an almost impossible question to answer. But the critical point is that merit comes first; all the other aims, such as promoting diversity, come second. The right approach to take in relation to that is to put merit as the guiding principle—the overwhelming principle—on the face of the Bill and make it clear that everything else comes second to it. Lord Chancellors have always had to wrestle with the question of what is merit. What they are seeking is a first-class judiciary and merit for a first-class judge.

Finally, on the Supreme Court, my noble friend Lord Brennan set out, as I did in my opening speech, the arguments that had been advanced by the noble and learned Lord, Lord Bingham. In essence, the noble and learned Lord is saying that our final court of appeal is, in reality, not part of the legislature; it is a separate court. We should reflect that in the arrangements we make. Everybody who says that it has to be clear that there are proper facilities for them is also right. I was interested to hear the debate about the precise level of facilities in this House. Everybody is also right that the court should come into existence only when those facilities are available. However, our judgment would be that you would never get anywhere near those facilities until you had, by legislation, changed the current arrangements or were in the course of doing so.

The noble and learned Lord, Lord Nicholls, said that a very successful and admired body of law was being produced by the House of Lords. That is absolutely right—it is admired throughout the world. I have no doubt whatever that what the Supreme Court of the United Kingdom produces, with just the same quality of people, will be just as admired throughout the world. Many noble Lords have said that it will cost more. Yes, it will, but I think it is right that we have a separate United Kingdom Supreme Court, admired throughout the world, reflecting our constitutional arrangements.

Photo of Lord Alexander of Weedon Lord Alexander of Weedon Conservative

My Lords, I am grateful to the noble and learned Lord. He said a moment ago that he thought he would never get near having a proper building and a proper resource budget until legislation had established the court. Is the implication that he has absolutely no promise from the Treasury at the moment that he will get the necessary budget?

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 would not like to go into the precise detail of what promises I have received from the Treasury. I was making a different point: the idea that, in abstract, one could find a court, get the money to get it going and then start the legislative process is not, with respect, a realistic way of going about things. The right course is to do the legislation and the research for the building at the same time.

I have trespassed much too long in relation to my time. I have sought to make the case for each of the three proposals. I fully accept that these are very important issues and we will have an opportunity to debate them in the near future when we introduce the Bill to this House.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, before the noble and learned Lord sits down, am I right in understanding his last sentence to mean that, although he would like to have the legislation in place, he would not bring it into force until the building and facilities were available?

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, there will be an issue about precisely when the building might be ready, and I do not want to commit myself completely. Obviously the best solution would be for the legislation to be brought into force only when the building is ready. However, I do not want to give a complete commitment to that because I want to see the relationship between the building and the legislation.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, how long will that take?

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, we will have to wait and see. We will have another opportunity to debate this matter shortly.

On Question, Motion agreed to.

Photo of Lord Goff of Chieveley Lord Goff of Chieveley Crossbench

—Took the Oath.

House adjourned at eight minutes before seven o'clock until Monday 23 February.