My Lords, it seems to be a strange coincidence that we should have been discussing the report of Lord Penrose as he was a pupil of mine in years long gone by.
On the radio the other day, the noble Lord, Lord Goodhart, spoke of "the nuclear option" in discussing the provisions of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, and particularly what is now Clause 11 of that Bill. By that, I understood him to refer to the possibility that if the courts saw that an Act of Parliament precluded them from intervening in an injustice, they might be in a difficult position in deciding their course of action in the light of that problem.
Under the arrangements that the present Bill proposes to replace there are two safeguards against the occurrence of the nuclear option—I am assuming from that description that most of us would agree that the nuclear option is to be avoided if possible. The first safeguard is the existence in the Cabinet of a person who took a judicial oath and who the Prime Minister of the day thought competent to preside over the highest court of appeal in this country. Therefore, one would believe that the chances of an unconstitutional measure getting through the Cabinet would be reduced by the existence of the Lord Chancellor.
The second is the existence of the Lords of Appeal in Ordinary in this House. Whatever they have done to indicate situations in which they would neither speak nor vote, I do not believe that that was intended to apply to a situation in which the Law Lords thought that the House was being asked to pass regulations or laws that were unconstitutional. I believe that the Writs of Summons, which they all accepted, put them under the obligation, if such an occurrence came to their notice, to do what they could by exercising the powers that Parliament and the state had given them to avoid that. I see nothing to replace that in the proposals that the Lord Chancellor has put before us in the Bill.
A great deal is said—and there is the question of how effective it is—about judicial independence, but there is not much use having a lot of independent judges waiting to do the work if they are deprived of the jurisdiction by Act of Parliament. There would be massive unemployment of highly independent judges. As far as I can see, there is nothing in the Bill to protect against that possibility. It is not an entirely theoretical possibility because the noble Lord, Lord Goodhart—who I am glad to see has returned to be with us—was talking about a particular issue when he mentioned the nuclear option.
I am conscious of the fact that I spoke in the previous debate and I am endeavouring to give effect to what the Chief Whip said and I shall not go over what I said before. But there is one aspect of what was said in the previous debate that does trouble me—that is when the noble and learned Lord, Lord Falconer of Thoroton, vividly described the tension that exists in the office of Lord Chancellor. I am conscious of the fact that any Minister has a desire to do his best for the interests that he serves. Sometimes, perhaps more often than not, the Treasury is apt to come along and limit the success of his aspirations. That is a tension that the Lord Chancellor, like every other Minister, faces. But this seemed to be something different: a tension between the requirements of the Lord Chancellor's office and those of the ministerial office. If that means that as a Minister he wants to do something that as Lord Chancellor he should not do, it raises serious questions about what is involved. If the Lord Chancellor's responsibilities prevent him doing, or not doing, something that the Minister either will do, or will not do, it seems to me that what the Minister is proposing needs to be examined in some detail.
I pass to the Supreme Court and those proposals. I entirely accept the views expressed by the noble and learned Lord, Lord Nicholls of Birkenhead—a very experienced judge in the High Court and the Court of Appeal, as a head of division, and as the longest serving of the present Lords of Appeal in Ordinary. In my view he expressed eloquently and moderately the difficulties in the way of a Supreme Court.
If a Supreme Court is to be set up, I would suggest that those who have been British advocates general or British judges in the European Court at Luxembourg, the British judge at the European Court of Human Rights or the British judge at the International Court of Justice should be considered for eligibility to serve on the Supreme Court.
I feel that the Lord Chancellor's deliberate refraining from giving me an undertaking that the Supreme Court's facilities would be in position before the Act was brought into force indicates something about the importance that they attach to a Supreme Court. What could be a more inauspicious beginning for a new court than to continue in this building under the present arrangement, presumably with a sign up pointing to the Supreme Court? It would be interesting to see where the sign would lead you. That strikes me as an extraordinary way to start; and yet the Government have made it clear that they are not prepared—voluntarily, anyway—to give an undertaking that the facilities would be in place first.
We have some explanation about what will be done on finances in the passage in the Explanatory Notes to which the noble and learned Lord, Lord Lloyd, referred. I have not understood fully what these passages are saying, but I think that they say, among other things, that the level of fees to be charged in this new Supreme Court will be of the order of 10 times the fees presently charged in the House of Lords and that the balance of the money required will be raised from the other civil courts in the country—England and Wales, Scotland and Northern Ireland—right down to the lowest. So, for example, someone pursuing a small claim will have to pay a proportion of the additional costs incurred as a result of setting up the Supreme Court.
There are, of course, other difficulties. The spread shown for the figures on total cost is not reflected when one tries to bring these costs down to the individual cases.
Those matters all suggest to me that the proposals have come forward with a degree of haste which is inappropriate for a major constitutional issue. To call it a government flagship is a good idea; I am sure that it is very important. However, I think that fundamental constitutional change requires a degree of deliberation. One of the reasons I say that is that the Select Committee of the House of Commons dealing with constitutional affairs—presided over by a very experienced Liberal Democrat, and with a substantial Labour Party majority in it, at least two of whom have great experience in the law—came to the conclusion that these changes should be considered first in a draft Bill.
My Lords, as a law student it was told to me that constitutional principles provide the necessary integrity to our democracy. If that makes me a constitutional purist, I plead guilty. I find it difficult in the extreme that those such as the noble and learned Lords, Lord Lloyd and Lord Nicholls, should describe themselves as unreconstructed pragmatists. It is an intellectual concept of constitutional law which I cannot grasp. The importance of constitutional principle is at the heart of the Bill. A Supreme Court separate from the legislature, an independent commission for judicial appointments, the statutory underpinning of the independence of the judiciary are matters of the greatest moment. They are matters that should properly occupy debate in this Chamber and the other place and not in a Select Committee. The legislative process has started. It should follow its normal progress.
I accept and respect the sincerity of those who take a different view. However, I submit that it is a view which is unrepresentative and unnecessary to apply. It is almost undemocratic, if I understood correctly my noble friend Lord Carter, that a Select Committee could recommend after consideration that this Bill should not proceed. That would not be a bar to this House proceeding with it, but it would be a considerable constitutional obstacle for a small group of our members to put up to the face of the House.
Why do I say that it is unrepresentative and unnecessary to accept the amendment that the Bill should go to a Select Committee? First, the creation of a Judicial Appointments Commission has been generally endorsed as a necessary and worthwhile recommendation. The only significant issue about it is whether the recommendations of the commission should themselves be effective by way of appointment or whether it should be the subject of government recommendation or some hybrid of the two. The value of a judicial ombudsman to safeguard the processes is obvious. The noble and learned Lord, Lord Woolf, has just said that this is a scheme of appointment that is urgently necessary. What reason is there for delay in debating that question on the Floor of this Chamber? There is no democratic reason for delay.
Secondly, a Supreme Court has been debated for a number of years under the rubric of two basic contentions, the first of which is that judges are not legislators. It is so trite it seems difficult to see why we should have to say it. The second is that the Supreme Court of the House of Lords in its judicial capacity as we presently know it should be separate from—different from—the legislature and the executive.
I said that the amendment to put this matter to a Select Committee was unrepresentative and I meant it. All the lawyers, through their Bar Councils or Law Societies in England and Wales, Scotland and Northern Ireland, have accepted the principle of a Supreme Court subject to the mechanics of its constitution being properly debated and subject, of course, to adequate resources being given to it. All the NGOs that are concerned with justice and constitutional issues support it.
Of the 12 current members of the judicial panel of the Judicial Committee, five have said they are in favour of a Supreme Court, five are against, one has abstained, and one is as yet undecided. In the debates of February and now, it may well be that the impression is given to the House that the judiciary at that level is against this reform. That would be totally misleading. The judges of the Judicial Committee, such as the noble and learned Lords, Lord Bingham, Lord Steyn and others who are in favour of it, choose by virtue of their belief in democratic principle not to attend and debate the question in this Chamber, not because they are diffident about their convictions that a Supreme Court is the right course for our constitution.
The critical question about the Supreme Court is surely one of principle: are you in favour of it or not? What reason does that give for delay? None. It is a matter for this House to decide, if necessary by vote in this Chamber.
I turn to the independence of the judiciary. The demise of the office of the Lord Chancellor is envisaged in this Bill. The noble and learned Lord, Lord Woolf, the Lord Chief Justice, has just expressed that which he has expressed before, the concern that by the course of events since last year it will be simply impractical to go back to the world of the Lord Chancellor's powers that many in this Chamber would want to see. It is simply impractical.
Furthermore, is it constitutionally appropriate that a Minister such as the Lord Chancellor, responsible for several billions of pounds of expenditure of public money should be in this Chamber and not accountable to the elected Chamber? That point was made forcefully by my noble and learned friend Lord Morris in the previous debate and it is a telling point. We cannot democratically suggest that in our constitution there must always be a Lord Chancellor whose job it is to protect the independence of the judiciary. As I said last time, it is simply not the realpolitik of modern political life.
What confidence can we have that if we keep the tradition of the Lord Chancellor's role those who hold that position in future will occupy it with the same independence and distinction as those in the past? Is it not better that the independence of the judiciary should be underpinned by statute?
In January of this year the Lord Chief Justice and the Lord Chancellor agreed a concordat by which this Bill would meet the concerns of the judiciary about how their independence was to be guaranteed. Clause 1 of the Bill seeks to do it. It may need to be revised and improved. But it makes it clear what the parliamentary intent is.
Nothing has been said in this debate so far of the much enhanced power of the Lord Chief Justice under the new scheme in the management and control of the judiciary, the courts system and their financing. Judicial discipline, previously at the behest of the Lord Chancellor alone, now must be exercised by the new Secretary only with the concurrence of the Lord Chief Justice. Is this a retreat from good standards or an advance towards better ones? Is legislative protection less important than an undefined, assumed confidence in particular individuals? Surely not.
So what is the reason for delay on this front—that we want to keep the role of the Lord Chancellor? Is that enough to frustrate a Bill of this constitutional importance? I suggest it is not. Thomas Paine, in the introduction to his book on Common Sense, said that a long habit of not thinking a thing wrong gives it a superficial impression of being right and raises at debate a formidable outcry in defence of custom and that such outcry has to be resisted and rejected.
This Bill introduces a new, written chapter into our mostly unwritten constitution. It demands the fullest parliamentary attention, impartiality, wherever possible, and an apolitical approach. Above all, there should be concern for our national values of constitutional principle. If the House accepts the amendment it faces two consequences. First, will confidence in our ability to accept and undertake major and sometimes controversial legislation as the first Chamber remain as it is now? I wonder. Secondly, do we not run the risk of being seen unreasonably to be obstructing reasonable reform?
The Government are bent on major constitutional change. That involves two government obligations in conducting this Bill here and in another place. The first is that they should be receptive to constructive amendment. This is a constitution of the people, not of a Labour government. Secondly, they must be very astute to avoid unnecessary delay. If this is the way our constitution should be, we should brook no significant delay.
My Lords, I am grateful to the noble Lord, Lord Brennan, for a speech that spoke to the heart of the matter. If I come to somewhat different conclusions it is not out of any disrespect for the importance of the issues on which he dwelt.
There are numerous things in this Bill about which we should be pleased: the reform of the judicial appointments and disciplinary system is excellent, and the laying on the Government of a duty to support the independence of the judiciary. I wonder what utterances that might have spared us if it had already been in place. It is an excellent thing that it should be.
However, I wish to voice my own sense of caution on the subject of the Supreme Court. It is a concern with the way in which the word independence has come to be used in a context in which I would personally have preferred the word integrity. What is important to us is that judges should not be interfered with by the exercise of undue pressure of any kind and that their rights and authority should be respected.
Where I differ from the direction of the Bill is that I am absolutely clear that integrity is no longer safeguarded by what is being called independence and certainly not by what is being called separation. I wonder if I might be allowed to trespass on your Lordships' attention for a moment by talking about a situation outside this House, namely, that of the Anglican world-wide communion where the tradition of independence of its several provinces has placed the whole notion of a communion under enormous strain. The reason is that in a world that is globalised and reducing in size, independence is an illusion. The pressure is intense and the means to exercise it are many and various.
I do not believe myself that it is a guarantee of the integrity of the judiciary that it should be sent up the road or perhaps it is down the river, to a building that is separate from this House. I do not believe that that guarantees any kind of independence. For the well-being of our society we require interaction with integrity. The presence of the Law Lords in this House, whether they speak or whether they are silent, is itself a statement about the integrity of our society at the highest level in the land. I believe that that is of the profoundest importance.
Each day the Bishop appointed to lead prayers from these Benches prays that, as a result of our deliberations, there may be the knitting together of all persons and estates within this realm. That is at the heart of our constitutional arrangements and speaks about a unitary concept of society, not one in which the separation of powers is the road we follow. There is much that I admire about life in the United States, but all the evidence is that if the organs of power are separated they will find other methods of exercising control and pressure and of violating the integrity which should be our primary concern. They will pack courts politically or they will use the power of money to influence the legislature.
It is an illusion to suppose that the way in which we safeguard integrity is by keeping people apart in their different roles. The reality is that there is no structure of society in which integrity can be safeguarded by separating different components and stopping them from talking to each other. The fact that the Law Lords have exercised a certain self-denying ordinance about how they discharge their role in this Chamber is to me not evidence that the present system can no longer work but precisely the opposite—it is evidence that there is an understanding on the part of those who inherit certain offices. "Inherit" is a proper word because they, like I dare say those of us who sit on these Benches, are very conscious of stepping into a tradition which has the possibility of changing you as a person and enabling you to put your own personal, political or even legal agendas to one side in the exercise of your office. That seems to me to be an indispensable model. I venture to suggest that it will continue to be indispensable long after—if this Bill goes through—we have sent the Law Lords on their way.
I urge the House to consider that there is in the constitution of this country—that is to make no judgment on the constitutions of other countries—a heart that searches for interaction with integrity rather than separation and independence. It is not for me to criticise the judges who have found that the phrase, "the independence of the judiciary", suits their purposes. However, from my particular vantage point—or, one might say, disadvantage point—it is not the best phrase to choose. I do not believe that the days of independence can be with us much longer in the creation of a just and peaceable world. I believe that the world of interaction with integrity in the search for justice, a world that relies and builds up the capacity of individuals and institutions while listening with great intensity and attention to the words of other institutions and other bodies, that enhances their ability nevertheless to stand in their own place and make their own decisions and come to their own conclusions, is the world we need if we are to live in peace and justice with each other.
I listen to this debate with a view to helping me make up my mind about the amendment of the noble and learned Lord, Lord Lloyd. The issue that will have to be debated hard in this place, in another place and in our society at large is what price we are prepared to pay, in terms of the discomfort of individuals regarding the roles they have to hold together, in allowing a society to evolve in which interaction with integrity—the harder route than the route of independence and separation—is allowed to be developed and nourished among us.
My Lords, I was not able to speak on
I have been a Member of your Lordships' House for nearly 30 years—on the Front Bench for the government, on the Front Bench for the opposition, on the Back Bench for the opposition and on the Cross Benches for some time. Therefore, I can claim some experience of the work of the House and of the part played in that work by those Members who are also judges. In my time many noble and learned Lords, including a number of serving Lords of Appeal, have contributed enormously and valuably to the work of the House, especially in relation to constitutional affairs.
As some noble Lords will remember, in the 1970s I was heavily involved when, from the government Front Bench, I assisted the then Lord Chancellor, Lord Elwyn-Jones, to take the Scotland Bill and the Wales Bill through this House. I remind your Lordships of the names of a few of those who contributed to that debate—Lord Wilberforce, Lord Wheatley—the Lord Justice Clerk of Scotland—the noble and learned Lord, Lord Scarman, Viscount Dilhorne, Lord Diplock, Lord Hailsham, the noble and learned Lord, Lord Ackner, who is present today, and Lord Morris of Borth-y-Gest: there are many others who today continue in that excellent tradition. In my opinion the revising and advising function of this House would be significantly impoverished if we were to deprive ourselves of the possibility of contributions from judges of the calibre of those I have mentioned. Not only that but serving judges act as the chairmen of, or members of, committees of the House that do extremely valuable work which makes the House of Lords worth while. It would be a shame to take them away from that precipitately.
It is now suddenly suggested that to have serving judges participate in the work of the upper House is an offence against the doctrine of the separation of powers. A good deal of nonsense is spoken about the separation of powers. We have never had a separation of powers of the kind that Montesquieu persuaded the American founders of the constitution to adopt in Philadelphia at the end of the 18th century. For example, our executive is embedded in the legislature in a way that must make Montesquieu turn in his grave. I have reminded your Lordships that for a very long time, certainly for 135 years or so, serving judges have always played an important part in the deliberations of this House. They seldom vote. If voting is seen as anomalous, I am sure that they would be ready to adopt a convention that they would never vote except on matters of conscience, just as the non-judicial Members of this House observe a convention that they do not vote in the proceedings of the Appellate Committee. There is nothing to stop us adopting a convention that enables us to separate our judicial function from our function as Members of this House.
I take some pride in the fact that, following the sterling example of the noble and learned Lord, Lord Scarman, when dealing with the Police and Criminal Evidence Bill in 1984, when he successfully moved two amendments against the then government in order to improve that Bill, I proposed and successfully argued in this Chamber an important amendment to the Scotland Bill in November 1998. I see that the noble Lord, Lord Carter, is present. He will remember how, much to his irritation, we defeated the government. What we did then was to remove from the Scotland Bill a provision that judges could be removed by a vote in a single Chamber of Parliament on the initiative of the Secretary of State or the First Minister. That was seen as totally obnoxious. I am happy to say that your Lordships' House—I had the great support of the noble Lord, Lord Lester of Herne Hill—defeated that particular provision. I was able to do that with the assistance of the noble and learned Lord, Lord Hope of Craighead, who is present, and my noble and learned friends Lord Clyde and Lord Jauncey of Tullichettle, who is sitting beside me.
That enables me when I meet foreign judges and foreign lawyers, as I do, in the United States, Canada, throughout the Commonwealth, and in the former Soviet Union, to explain that we have independent judges, at least in Scotland, because they cannot be sacked except by a special procedure which has effectively to go through the Privy Council.
My Lords, I am much obliged to the noble and learned Lord for giving way. If judges were automatically to be Members of this House, why should that privilege not also be extended to members of other professions and other jobs?
My Lords, having heard what the right reverend Prelate has just said, one could say that it already is. I do not know why that is the case. Traditionally, since 1870, there have been Members of the House of Lords who are judges and who are entitled to take part, and do take part, in the work of the House. On the occasion of which I speak in 1998 when we carried an amendment against the government, four serving judges voted in the Lobby in which I was a Teller. That is the tradition that we have.
I could multiply the ways in which judicial Members of this House have helped it to improve legislation, but I believe that if they are no longer allowed to speak that would be a loss. It might be a tolerable loss, but it is a real and palpable one. No doubt, a young academic, sitting down with a blank sheet of paper, would not frame a constitution where judges were allowed to speak in the upper Chamber. But he would never get around to creating an upper Chamber that resembled this one at all. Can one imagine the constitutional purists creating the House of Lords? I certainly cannot.
We are not starting from scratch. We are the inheritors of centuries of history, which have seen the constitutional institutions and conventions evolve. That history has fashioned a court, within this building, of unequalled reputation, both for quality and independence—a beacon of legal excellence, as it was called by my noble and learned friend the Lord Chancellor. No one could image that it is at all corrupted or influenced by politics.
By contrast, if we look at the United States of America, we see, or at least we think we see, a constitution that is built on the basis of the strictest separation of powers. American judges are not in Congress or the executive, but the Federal judiciary is by no means non-political. When I was privileged to give a Reith lecture in 1986, I quoted a statistic that showed that 98 per cent of judges appointed to the Federal bench by President Reagan were registered Republicans; and when President Carter appointed his Federal bench, 97 per cent of his appointees were registered Democrats. It is no wonder that many commentators argued that there is a political slant to the judiciary in the United States, despite their separation of powers, and that that political slant perhaps influenced the members of the Supreme Court to come to a narrow majority on the question of the voting in Florida in the year 2000.
I do not believe that constitutional purism or purity in relation to the separation of powers guarantees either the independence of the judiciary or even the appearance of independence. What is important for the independence of judges is the manner of appointment, so I support Part 3 of the Bill. Even more important is the manner of dismissal and I hope that the Government will look again at the provision that they put into the Scotland Bill to see whether something similar might be introduced in relation to English judges—if only for the sake of appearances, which seem to be important.
I will not take up your Lordships' time by talking about the costs of the court. However, it must be borne in mind that in 1999 the then Secretary of State for Scotland told us that the new Parliament would cost £40 million. That cost has now reached £440 million and is rising. By the way, it will also be five years late. Lessons are to be learned from that about predictions. I discovered that the estimate of the cost of the new Supreme Court is between £6 million and £32 million. That would be a fairly wide range if one were buying ice cream or anything else. Something is wrong with that estimate. It means that the Government have not decided on a place or a design for it, so that they do not know what they are predicting.
There is a widespread perception that the principles behind the Bill were not thoroughly considered before they were announced. It may be true that the Lord President of the Court of Session, the Lord Advocate of Scotland and the Dean of the Faculty of Advocates were not consulted. As far as I know, no one was consulted in Scotland. I wonder if even the Advocate General for Scotland, who is a member of the Government, was consulted. Has the matter suddenly become of such urgency that it cannot be subjected to scrutiny by a Select Committee? I would hate to be accused of sinking a flagship, but I certainly would not mind if it were put into dry dock and had its bottom examined by a few experts—just to see whether it was seaworthy.
My Lords, I keep asking myself why, if there is to be an appointments commission, should it not be there to advise the Lord Chancellor, leaving that prestigious office in existence. That brings me straight to a fundamental objection to the Bill.
The Lord Chancellor said,
"we must ground our changes in history".—[Official Report, 12/2/04; col. 1212.]
But the Government have done precisely the reverse. Instead of adapting what we have now in order to meet what the Government believe to be new demands and changed circumstances, instead of keeping the office of Lord Chancellor but circumscribing his powers of appointment and building on the network of conventions that already exist to ensure that it remains acceptable for him to be both head of the judiciary and a member of the Cabinet, instead of keeping the Lords of Appeal on the understanding that they would not speak on the Floor of the House on politically controversial matters or a matter that might become subject of an appeal to the House sitting in a judicial capacity, the Government have gone in for mass destruction without even giving us 45 minutes' warning.
I do not believe that the wisdom of the ages should be abandoned readily in favour of political theory. When change is necessary it should not be brought about by the rooting out of well-tried institutions which command public respect and confidence, it should come as a result of the adaptation of those institutions to meet the new needs.
I fully appreciate that some people find the anomalies in the present system hard to stomach, find it offensive that the head of the judiciary sits in the Cabinet and that our most senior judges sit in this House. But although there are people of that persuasion—the noble Lord, Lord Lester of Herne Hill, is one—who have wanted a change of this nature for years, up to last summer the Government showed few signs of being of that persuasion. Until last summer they were steadfastly defending the system that they now want to scrap.
That presents us with another difficulty. If proposals for constitutional change are made out of the blue, without a hint of what is to come, let alone any prior consultation, and if those proposals conflict with what has previously been the Government's declared policy, some people will doubt the Government's motives. Some are bound to think that the object of the exercise may not be to get the best judges but to get judges more to the liking of the Government. That is not good for any of us and is certainly not good for the judicial system.
For the life of me, I cannot see how matters are improved by removing the Lord Chancellor as the key figure in the appointments system and then putting responsibilities for appointments on the Secretary of State for Constitutional Affairs. The office of Lord Chancellor had, in the words of the House of Commons Select Committee on Constitutional Affairs,
"a special constitutional importance enjoyed by no other member of the Cabinet".
He was so senior that he could have no further political ambitions; and before his appointment he stood so high in his profession that no one could doubt his integrity, his standing or his ability to resist political pressure. On the other hand, the new Secretary of State for Constitutional Affairs will not be bound by the judicial oath, may well not be a lawyer and may be a very junior member of the Cabinet in the other place with a desire to climb higher up the political ladder.
Is it seriously being suggested that it is better that the Secretary of State for Constitutional Affairs should have his finger in the pie of judicial appointments rather than someone of the standing of the Lord Chancellor? One has only to pose that question to know perfectly well what the answer is. If the Government really believe that it is no longer proper, for reasons of separation of power, for the Lord Chancellor to be the key figure in judicial appointments, it is wholly illogical and equally offensive to any doctrine of separation of powers for the Secretary of State, who is a party politician and member of the Government, to be given the powers of appointment described in the Bill—the powers in Clause 69—and, regarding the Supreme Court, the power to pick from a list of between two and five names.
The noble and learned Lord the Lord Chancellor, with all his prestige and dignity of office, might get away with that. But a Secretary of State for Constitutional Affairs, perhaps even a non-lawyer Secretary of State, without even a scrap of knowledge about the rival candidates—I do not think has a cat in hell's chance of getting away with people thinking that his exercise of choice between various candidates is correct.
It is small wonder that the Bill, which gives the Secretary of State such powers, also imposes on him a solemn statutory duty to uphold the independence of the judiciary. But is it not a very serious matter that it is thought necessary—because of these so-called reforms—to include in the Bill a clause designed to secure a judicial independence which was never in doubt until the noble and learned Lord and the Prime Minister launched their proposals last summer?
I now revert for a moment to the office of Lord Chancellor. I am bound to say, and I know that I am not alone, that I feel a sense of outrage at the cavalier way in which the Government determined to do away with an office older than Parliament itself, and to do so without even informing the Queen of their intention. We are talking about an office the holder of which has precedence over the Prime Minister himself. We are talking about one of the most senior posts, one of the key posts, under our constitution, and a guarantee of the judicial independence about which the Government talk so much.
I may be old-fashioned, but I am afraid that I do not think that ancient offices of this kind should, any more than any other part of the constitution, be the playthings of politicians who are here today and gone tomorrow. Certainly no one with any sense of history at all could have imagined that a Prime Minister had the right to snap his fingers and say, "The Keepers of the Great Seal no longer exist." It is really quite outrageous and I am absolutely horrified to think that the Prime Minister of the day actually imagined that it was proper to do what he did in June last year.
Turning for one last moment to the proposals for a Supreme Court, no one has explained to me what practical benefit will accrue from this change. The present Law Lords will get a new name but they will not become more independent and they will remain, as described in the consultation paper,
"people of outstanding integrity and independence 'wisely and rightly admired both nationally and internationally'".
But we know what will be lost. The judges themselves will lose a forum in which to defend the independence of the judiciary and to fight measures which might damage the administration of justice, and we will lose people who add lustre to this place, who give wise counsel on criminal justice and legal matters and make a significant contribution to our other work, such as our committee work.
As to the matter of the building for a Supreme Court, that could turn out to be a very expensive business, as has already been said. It is also a venture which could well end in scandal, like the Scottish Parliament building. The risk is that it will bring public derision down, not just on the Government—which does not matter a jot and is only their desert—but on the judiciary. That is the risk that is involved in all this. The history of the Dome, after the noble and learned Lord got his hands on it, does not exactly inspire confidence. It is simply not in the judges' own interests to move from where they are now.
My Lords, regrettably I was not present for the debate on
This Bill is thoroughly ill thought out and requires further scrutiny before it comes before the full body of either House. I wrote those words this morning, and my view seems to have been pretty well confirmed by the fact that in opening the debate on the Second Reading, the noble and learned Lord the Lord Chancellor said, "I shall be amending this and that but I cannot actually tell you now how".
To bring a constitutional Bill before this House and say, before we started the debate—not as a consequence of the debate—that a lot of it needs changing, seems to me, with respect, to demonstrate fairly conclusively that this Bill needs further scrutiny. I therefore wholeheartedly support the amendment of the noble and learned Lord, Lord Lloyd of Berwick.
I would like briefly to answer some of the objections formulated by the noble and learned Lord the Lord Chancellor on the radio this morning, when he suggested that to pass this amendment would be to defy the Commons and impose excessive delay.
First, the noble and learned Lord resolutely ignored the fact that it is the Commons itself which called via its committee for pre-legislative scrutiny, although it is true that the noble Lord, Lord Carter, thinks it was wrong to do so. But all that the amendment of the noble and learned Lord, Lord Lloyd, does, is to give the Commons what it wants, and which the Government have failed to give it. In saying that the amendment defies the will of the people, the Government are, yet again, confusing their own wishes with those of the Commons or of the people.
Secondly, the noble and learned Lord the Lord Chancellor also utterly failed to answer Mr Humphrys' repeated questions about what on earth the hurry was. The noble and learned Lord has accepted that the Supreme Court should only come into existence when a building and its facilities have been created. A Select Committee will report a very long time before a building has been found or decisions have been made as to its appropriate designs or facilities. What on earth is the uncertainty of which he spoke, except perhaps his own personal concern as to what suit of clothing he will be wearing in 12 months' time? If it is said that delay will find out whether the concordat works, that is a very good thing.
If there really is—and I fail to quite see how—a pressing need for Part 3 in advance of the rest of the Bill, the Government could easily bring forward Part 3 as a short non-controversial Bill on its own.
Thirdly, the noble and learned Lord the Lord Chancellor suggested that once this Bill went to a Select Committee it would never be enacted, because, he said, that had happened when this procedure was applied to a hare coursing Bill in the 1970s. But that is entirely up to the Government. If they found, after the hare coursing Bill had been to a Select Committee, that it was a lousy Bill and that they could not get it through, then of course they abandoned it. If they consider after this Bill has been to a Select Committee that perhaps with some of the amendments by the committee the Bill should still go through, it is entirely up to them to get it through. I do not understand the suggestion that this is a novel procedure. It is always up to this House to decide which of its committee procedures should be followed for a Bill. With respect, all that was revealed by the speech of the noble Lord, Lord Carter, was that the Companion may not be totally up to date with the concept of pre-legislative scrutiny.
Let me deal with just one aspect of the Bill—
My Lords, I am sorry. I do not understand the point at all. The noble Viscount referred to the Companion to Standing Orders. I believe that he was recently on the committee with me that redrafted the Companion.
My Lords, the noble Lord is wrong—he had pushed me off the committee by that time or I had been time expired by then.
Let me deal with just one aspect of this Bill which cries out for pre-legislative scrutiny as to what should replace the present role of the Lord Chancellor in protecting the rule of law. On that point there was an interesting divergence of words which emerged during the short debate on the Statement on
It may well be that the so-called concordat may do something for judicial independence. It will protect judges against a brutal suggestion that unless they decide in favour of the Government, they will be sent to some unattractive outpost of the country to try only dreary, second-rate cases. That is not the problem. The concordat cannot possibly be adequate to replace the role of the noble and learned Lord the Lord Chancellor in preserving the rule of law.
In the debate on
There is another point. It is well recognised in life that it is infinitely easier and more effective to influence policy when it is a mere proposal than when it has been formulated, hardened and published. At present, a Lord Chancellor is well placed to give a warning in advance where some part of a proposed measure is unacceptable or dangerous to the rule of law. It can then be dropped or modified before it has seen the light of day.
We should contrast that with the position of the Lord Chief Justice on the present proposal. He may well have no advance knowledge of ministerial intent and thus no opportunity to intervene in advance. Even when the Bill is published, how on earth will he discover the danger lurking in some remote provision of an apparently innocuous Bill? And if he does discover it, how is he to do anything about it?
The noble and learned Lord the Lord Chancellor has said that the Lord Chief Justice is well placed to speak on behalf of the judiciary. But speak where and when? It will not be in Parliament because he is about to be expelled from Parliament. The noble and learned Lord the Lord Chancellor says that the Lord Chief Justice can resort to the media. But surely we all agree with the noble and learned Lord, Lord Cullen of Whitekirk, when he said that it was,
"preferable that the views of the judiciary be communicated directly to Parliament, rather than merely explained in . . . after-dinner speeches or the like".—[Official Report, 12/2/04; col. 1231.]
If this matter was considered in the calm of a Select Committee, one might be able to devise some more satisfactory procedure. One might be able to work out whether one could require the promoter of each Bill to decide whether the Bill had any implications for the administration of justice. If so, we should submit it to the Lord Chief Justice or, if it is considered to be one straw too many, we should put it on an already over-loaded back of some constitutional committee. It should then be stated on the face of the Bill, as is now required under the Human Rights Act, whether that Bill has implications for the rule of law and, if so, whether he has consulted the Lord Chief Justice or the committee and what their response was.
I have many serious concerns which time does not permit me to expound, but I strongly submit that the right course is to vote in favour of the amendment of the noble and learned Lord, Lord Lloyd of Berwick.
My Lords, I hope that the noble Viscount will forgive me if I do not follow him in all his points, not least because I am afraid that I did not hear the exchanges between the noble and learned Lord the Lord Chancellor and Mr Humphrys on the "Today" programme this morning.
I want to make a few broadly political points on the Bill, which I greatly welcome. I have not taken part in previous debates on the issue, largely because they seemed to be exclusive debates between lawyers in which the lay person would have trepidation in taking part. But today we have reached the Second Reading of the Bill, which has wide political implications, and it is relevant to make some broadly political points.
After all, many of us regard constitutional change as a means to renew our institutions in the general interests of our democracy and specifically to renew the parliamentary process. From that perspective—and it is the perspective of many political working Peers in this House—the Bill's provisions are most welcome. They take forward the Government's programme of parliamentary reform and, as has been argued cogently, give an enhanced independence to the judiciary. The result is the clear separation of the three arms of state authority: the legislature, the executive and the judiciary. Each should be strengthened by the separation.
It will be a huge political achievement to make all our key institutions more fit for purpose in the 21st century through this one Bill. Those of us whose ambition is primarily overall to improve the governance of the country will do all we can to support it.
I want to look at the main provisions of the Bill—the creation of a Supreme Court; the establishment of a Judicial Appointments Commission; and the abolition of the office of Lord Chancellor—and briefly explain why in that context I see each one to be politically significant.
The legal debate about setting up the Supreme Court has rightly dominated earlier discussions. But, personally, I have found no persuasive argument against the political judgment that the roles of the senior judiciary, Parliament and the executive should be clearly delineated in a modern constitution.
I am afraid that from my observation, as so often when we debate these types of questions in your Lordships' House, appeals were made to tradition and history as the final and absolute touchstone of defence for the status quo.
It is interesting that external commentators who have looked in some detail at the proposals have not been swayed by such appeals. For example, the authoritative constitutionalist, Professor Jeffrey Jowell QC, has noted that today candidate states for membership of the European Union would simply not be admitted if their judges sat in their legislatures. Other outsiders have seen the determination to continue the traditional conflation of roles as protection of special interest. I quote with some trepidation but with some enthusiasm the political columnist, Mr Peter Riddell, who is uncompromising and has described some of the actions of the lawyers as opposing change because it challenges familiar working practices. The headline of a recent piece of his in the Times said:
"The Law Lords are acting like members of the Fire Brigade Union".
I would not like to be so harsh, but I have been thinking about other learned professions in the way other noble Lords have described. My noble friend Lord Clinton-Davis raised the point earlier. I take the case of doctors. The medical profession is another ancient body and fierce defender of its rights and privileges, but how ludicrous it would seem if the president of the General Medical Council claimed either a seat in Parliament or in government.
Of course this does not mean that the views of doctors or lawyers are irrelevant to Parliament—we gain a great deal by hearing them in this House—but I understand that there are about 100 Peers with a legal background among your Lordships and therefore I do not think we are in danger of losing a legal perspective if the 12 judges of the new Supreme Court are excluded in the future.
I realise that some of the Law Lords have argued for a separate Supreme Court for several years and describe the anomalies in the present system most succinctly. The noble and learned Lord, Lord Steyn, was particularly outspoken in pointing out the anomalies of the present position and in 2002 drawing attention to the potential conflicts with the Human Rights Act 1998. His overall conclusion was political. He wrote:
"It is no longer acceptable that alone among constitutional democracies our country does not have a Supreme Court".
I must say that from the point of view of those of us who observe the political debate, the existence of a long-standing public discussion of that kind between the Law Lords—I believe that the noble Lord, Lord Lester of Herne Hill, said that it had been going on for more than two decades—makes it surprising that parts of the legal establishment are now arguing that more time is needed for review and debate of the principles of the proposal. They seem to suggest that somehow they have been caught unprepared by the Government's proposals.
Another argument for delay, which we have heard about again today and which frankly does not convince me, concerns a suitable building to house the Supreme Court. Clearly, as many noble Lords have said—and I certainly agree—the Supreme Court must have an appropriate location and a suitably resourced judicial office. But perhaps I can gently suggest that, again, there is an element of special pleading. I know that the noble and learned Lord, Lord McCluskey, has referred to the escalating costs of the Scottish Parliament building, but thankfully I do not remember there being similar arguments for legislative delay when the Acts on devolution went through this House in the late 1990s. We may now have queries about the costs or indeed the aesthetics of the Scottish Parliament building or indeed Mayor Livingstone's headquarters, but their non- existence as the relevant Bills were passing through Parliament was not seen as a serious obstacle and I do not think that the non-existence of the Supreme Court should today.
Part 3 of the Bill, as we have heard, reinforces the new statutory independence of the judiciary by establishing the separate Judicial Appointments Commission. To me, that is very important. I am glad that it has more general support than some of the other proposals. I am particularly pleased that the commission will have six lay members and that the chair will come from that number. Those people will have a special responsibility to ensure that the judiciary becomes more reflective of society. This year, in this House, we have all greatly welcomed the appointment of the noble and learned Baroness, Lady Hale, to the Appellate Committee as the first woman member. Let us hope that in the new Supreme Court she will be quickly joined by other female justices as well as by those from minority ethnic backgrounds. In the 21st century we must give priority to the goal of diversity in all our institutions. It is right that the new Judicial Appointments Commission will be specifically tasked to achieve that.
Part 1 of the Bill contains the headline controversy—the decision to try to abolish the office of Lord Chancellor, thus, among other matters, creating a vacancy for the presiding officer in your Lordships' House. Again, from a political and parliamentary perspective, that seems to me to be a positive and an important opportunity. Again, I take as my benchmark the more efficient and effective working of this second House of Parliament.
I say to the noble and learned Lord, Lord Lloyd of Berwick, that although I regard his delaying amendment as very unhelpful for the extremely cogent reasons put forward by my noble friend Lord Carter, I found his report on the Speakership—
My Lords, did I hear the noble Baroness correctly? Did she say the more efficient and effective working of the second Chamber of Parliament, referring to the other House? The other House fails to scrutinise legislation properly, which is why we have this discussion today.
My Lords, I must ask the noble Lord, Lord Marlesford, to forgive me. I must have been very inarticulate. In fact, I said, "to make more efficient and effective this second House of Parliament". I am sorry if the emphasis was misheard.
I say to the noble and learned Lord, Lord Lloyd of Berwick, whose amendment I do not believe is at all helpful, that I found his report on the Speakership very helpful indeed and I agree with it almost entirely. I know that a decision on that report is not related to this Bill, but it is worth looking at the Select Committee's detailed suggestions in the context of this Bill in regard to what the committee described as an expanded role for the Lords' Speaker as "guardian of the Companion". All of that is significant. I see the abolition of the office of the Lord Chancellor as Speaker as a golden opportunity to improve procedures in this House—this House, I say to the noble Lord, Lord Marlesford—but also as a very good opportunity to create an important senior position of Lords' Speaker and so, to quote my late noble friend Lord Williams of Mostyn in his evidence to the committee,
"heightening the profile in the interests of the House and the representative functions".
In conclusion, I welcome in principle the Bill's proposals to separate legal, government and parliamentary responsibilities in the interests of good governance and of transparency. In practice, I am sure that the clear delineation between judicial, executive and legislative functions will achieve the political reform that is appropriate and necessary for a mature democracy in the 21st century.
My Lords, in my 48 consecutive years in one or other of the Houses of Parliament I have never known such antagonism as there is at the moment between the judiciary and the executive. For all the sweet talk about the cheeky chappie on the Clapham omnibus, the very fact that one has to have a publicly made concordat between the executive and the judges demonstrates to me how unfortunate for the rule of law is the present relationship between the Government and the judiciary.
That coincides with the House discussing this ill prepared Bill—it is accepted that it is ill prepared—which was thrust upon the country and upon some of the leading players unheralded and unpromoted. The people and the organisation that will be happiest are those who inhabit the corridors of the Home Office. It is to the Home Office that noble Lords should look to see why and how such antagonism, which is so unfortunate for the body politic, has grown up.
I suppose the Government believed, by saying that the Lord Chancellor should no longer exist, that that would be that. It seems to me that they had no idea of the ramifications. They went hawking around various legal bodies to find out the Lord Chancellor's role in particular areas. They were so ill prepared. On
In the debate on the Address, the noble Lord, Lord Goodhart, agreeably accused me of romantically considering that all the Lord Chancellor did was to appoint the judges. In fact, in 1990, before he came to this House—14 years ago—I moved an amendment from the Benches over there to the Courts and Legal Services Bill. The amendment proposed that the Lord Chancellor should be stripped of his judicial powers and that there should be a statutory appointments committee. There was hostile opposition to it. Of course, it was the wrong vehicle for such proposals, but nevertheless Lord Boyd-Carpenter and Lord Hailsham nearly had a fit of excitement and fury and the noble Lord, Lord Mishcon, leading for the Labour Benches, begged me to withdraw the amendment. Of course, I withdrew it. It was merely a vehicle for argument and discussion.
This definitive Bill not only strips the Lord Chancellor of his judicial powers, but also abolishes the office under the doctrine of the separation of powers. But the Bill makes it clear that one cannot avoid a substantial role for a Minister, both in the selection and appointment of judges. So there is a political role for someone. In the Bill there are constant references to what such a person has to do, what he can do, what he can reject, and what he can ask to be considered again. That is all for the Minister. As my noble friend Lord Waddington pointed out, if this is a role for a Minister, why create a new Minister when we have a Lord Chancellor? His judicial powers could be taken away, which apparently is what everyone wants, but he could be left as the Minister who is referred to so continually in the Bill. Instead we have this new, very junior appointment, just scrabbling into the Cabinet, one above Mr Hilary Benn, who is the lowest form of life in the Cabinet. That will be the Constitutional Secretary. There is already a Lord Chancellor. Why not keep the Lord Chancellor as "the Minister"? The immediate advantage is that he is a senior officer, as a opposed to a junior officer, which is what the Secretary of State for Constitutional Affairs will be.
The person who is dangerous in all this is the Home Secretary. He does not really care very much for the rule of law. He does not understand the necessity of access to courts. He does not forgive if a judge disagrees with him. I remind noble Lords that when my right honourable friend the Leader of the Opposition was Home Secretary and judges were overturning some of his provisions, there was applause for the courage of the judiciary in standing up to the executive. Of course, all that has disappeared now. The judges are entitled to bridle at the Home Secretary's attitude and his implicit criticism of the courts' decisions. He will gain most from the abolition of the office of Lord Chancellor.
We could get exactly what we want from this Bill if "the Minister" remains the Lord Chancellor and we keep the Lord Chancellor in that role. Any hint of conflict between the judiciary and the executive is not good for the body politic. Any hint of a threat to the rule of law is very serious. Of course, the spin doctors—there still are some despite Mr. Campbell's retirement to the music hall stage—will say that this is all lawyers' talk and that what is being suggested is perfectly reasonable. But it is not. The rule of law is inherent in our constitution. It is difficult to avoid a Cassandra-like attitude as one witnesses all the institutions withering. The House of Commons is derided and often ignored. The House of Lords is neutered, the judiciary is slighted and life is never the same.
More patient, critical examination should have been given to the Bill before it was brought before this House. Delay is the price that the Government must pay for so mishandling such a substantial piece of legislation. I will support the amendment proposed by my noble and learned friend Lord Lloyd of Berwick.
My Lords, one of the great charms of this House is that every now and again when one reads the Order Paper one finds that what is printed on it does not relate to the key issue that eventually comes to be discussed. I think that here we have a classic example of that. This debate is of major importance. Whether this House plays any significant role in the progress of this Bill or other subsequent legislation relating to it will depend very much on the amendment. That is the key issue. What happened in the past is history and we cannot do anything about it but there is a great deal more optimism than is justified.
If the amendment is passed, that will kill the Bill in its present form. The idea that it will drift gently down to the other place and that they will receive it, try to make it work and send it back to us fails to understand the deep bitterness on the issue of House of Lords reform in a very large section of the House of Commons and that bitterness is not confined to any one political party. To suggest that at this stage we need more time and a Select Committee because we do not understand the Bill quite yet and we need to get to know it demonstrates how phoney the case is for the amendment.
Last July, the Government circulated a 50-page document for consultation on this Bill. Several hundred people got copies of that document and some actually replied to it. Three weeks ago we had a very good five-hour debate, which had 23 speakers, who covered all of the key issues. Indeed, many of them have covered the issues again today. The next stage should have been a lengthy Committee stage in which those key issues could be debated and negotiated with the Government. With this particular Bill I believe that there would have been a lot of scope in a conventional Committee stage for the Government to accept amendments and for matters to be discussed. If this amendment is agreed, that will not happen. Let us be realistic about it.
Noble Lords delude themselves if they think that the Select Committee will be appointed and up and running and reporting in three months. That ignores the practicalities. In four weeks' time, the House rises for the Easter Recess until
My Lords, I can imagine an entire Select Committee and its witnesses going home to their wives and saying, "Sorry about the holiday, darling—I have been appointed to go a House of Lords Select Committee". That lack of reality characterising such ideas means that the amendment has a distinct possibility of being passed.
But to continue my argument, the House rises on
How can anybody seriously believe that, even if the Select Committee were a serious proposition, which it is not, the logistics allow the committee to be assembled, have a series of meetings, summon experts, get staff and produce a report in 12 weeks? The reason is that the key people supporting the amendment do not want the Bill to go through. That is what this is all about. Of course it will not go through on the Select Committee basis. But what comes in its place will be a source of some misery to many of those who thought that it was a good idea to get rid of it at this stage.
The fact is—I do not say this offensively—that this is a blatant wrecking amendment, which can only make worse a situation that is already bad. When the Lord Chief Justice assumes that the public ridicule of the Lord Chancellor is acceptable, even if it amuses a group of undergraduates, it is time to bring the whole issue to a conclusion. No one questions the contributions made by the judiciary to this country. They, together with the Armed Forces and the Civil Service, constitute the three key institutions that support governments of whatever political complexion. Where a substantial number of judges differ from the Armed Forces and the Civil Service is in their conviction that they enjoy some divine right to defend and protect the nation's freedoms and the tolerance which it has enjoyed for so many years.
However, that is not the case. It is an understandable—albeit, rather romantic—concept but, throughout modern history, social justice in this very sophisticated country has quite properly come by way of politicians and not from judges. I refer to freedom for homosexuals to choose their lifestyle, freedom for pregnant women to seek abortion, freedom for working men and women to combine, and the right of women to vote. In every case, the judges put them in gaol and the politicians took them out. It is a romantic falsity to take any other view.
The key fact is that this country has a very stable society. That is not because of the judges or primarily because of the politicians; it is because we are a pluralist society. Uniquely, this country enjoys—"enjoys" is probably not a good word to use—three political parties, each of which carries people of every creed, colour and class. Whichever party is in power in this country, it will recognise when things have gone wrong and are running badly and if it does not recognise that, this country, with all its history, is sophisticated enough to get rid of it and from time to time does just that with no help whatever from the judges.
My Lords, that is a very hard act to follow, but I agree with practically everything that the noble Lord, Lord Marsh, said. I was surprised that when we discussed the Sunday Trading Bill, I saw, for the first time, all the Bishops in your Lordships' House at one time. Today, I have seen more Law Lords than I have ever seen before in my life. There must be some connection between those two phenomena. Hanging does concentrate the mind.
For a long time, I have been in favour of the removal of the post of Lord Chancellor. Together with the noble Lords, Lord Lester and Lord Patten, I have taken part in three discussions in your Lordships' House about why the Lord Chancellor's position was anomalous and why something should be done about it. Just because the office is ancient, that does not mean that it is good. In the same way that we do not drive 12th century cars or have plumbing based on mediaeval times, we do not need law officers just because the offices are ancient. The point is that, with the European Convention on Human Rights on the statute book, it is an anomaly to have the head of the judiciary sitting in Cabinet and sitting in this House.
It may seem that the rest of the world is completely ignorant and stupid, that we are uniquely the best and that we alone understand what justice and the rule of law are about. Of course, it is easy to have that kind of delusion. However, if one looks at countries which have adopted the Westminster constitution, in the new and old Commonwealth not a single country has adopted the Lord Chancellor model. Every country rejected that model, created a Supreme Court and ensured that it did not go down that road. It is not a road that you go down with your eyes open; you go down that road because you do not want to think about matters clearly but to continue the path of tradition.
I believe that we should stop being complacent about the quality of justice and order in this country. One has only to go abroad to Boston and ask the people there what they think about the quality of British justice and an American-Irish person will tell you his view.
As was pointed out by my noble friend Lady Jay, it is also quite anomalous that we have a remarkably homogeneous judiciary. It consists mainly of white males and its members come from perhaps one or two universities and three or four public schools. Over many years, we have failed to recruit widely for the judiciary. Somehow, because for a long time the elite was united—the elite in this country is very homogeneous and solid—it appeared that there was justice, independence and integrity. The same thing that happened at the BBC happened in the judiciary. What appear to be good, sound and independent institutions run by a homogeneous elite fall apart when the elite is fragmented. One side suddenly realises that it no longer has access to power in certain institutions.
We urgently need judicial reform and we urgently need to reform the way that we appoint judges. What has been happening until now will not do any longer. Injustice has been piling upon injustice and, time and again, we have lost cases before the European courts because, in a sense, what we consider to be justice is not viewed as such elsewhere. It is necessary to say these things because, otherwise, one might imagine that the Government were committing some outrage by modernising our constitution.
Therefore, my bottom line is that what is now being done is long overdue. The fact that it happened accidentally in a botched job on
Just because we do not like the building which has not yet been proposed or built or which, if built, might cost too much, I do not see that that is a sufficient reason to reject Bills or kick them into the long grass. That is not how constitutional issues should be decided; they should be decided on the merit of the case. Is it true that we need a far more modern judiciary? Is it true that we need to get in line with the rest of the world in relation to the separation of powers? Whether Montesquieu got it right or wrong is neither here nor there.
As was pointed out, it is clear that if we were to apply to join the European Union now, we would not be admitted, given our current judicial system. That should tell us that what we have is not really perfection. What we have is a higgledy-piggledy system and any attempt to put it right should be welcomed, as should any attempt to put the independence of the judiciary in statute rather than leave it to the effervescent and mysterious workings of the Lord Chancellor's mind. I believe it would be preferable to have that written down. I am sure that until now all Lord Chancellors have been perfect but—who knows?—one of them may turn out to be imperfect. That is always a possibility.
I think that most Lord Chancellors are human. If they have not been so far, the next one may be, and what shall we do then? We cannot rely on the magic of individual personalities and the mysteries of the constitution to guarantee judicial independence; it must be put in statute form. If that is done, it can be argued about; if not, we shall risk grave injustice being done without anyone being able to check it. That will especially be the case as society becomes more fragmented and more pluralistic. If, however, society becomes so democratic that every member of the community feels that he can become a member of the judiciary and rise to the highest position in any part of society, that is when we shall have a fully modern constitution.
I believe that reforming the judiciary will open it out to elements of society which do not have access to it today. The political system needs to be reformed. Similarly, the House of Lords needs to be reformed, because people should have access to this House. When those things can happen, we shall have a good constitution. I welcome the Bill as a major step towards a modern constitution for the country.
My Lords, on
On the same day on the "Today" programme, he said that it was because the justice system works so well that now is the ideal moment to change it, arguing that strength is the best position from which to make reforms.
While sound reform may be easier to achieve when things are working well rather than badly, surely we ought to make sure that the new arrangements will work better and not worse than those that they replace.
Before seeing the Bill many people, including myself, believed that it should be subject to pre-legislative scrutiny; we had that belief reinforced a hundredfold when we read it. It was with a sense of relief that I heard that the noble and learned Lord, Lord Lloyd of Berwick, was tabling an amendment to the Motion to the effect that the Bill should be considered by a Select Committee. That would not, of course, be as good as full pre-legislative scrutiny, but it would provide an opportunity for evidence to be taken on key issues.
The noble Lord, Lord Marsh, says that we will get a bloody nose. The Leader of the House of Commons says that no Bills will be introduced first in this Chamber. If you believe that, you will believe anything. The whole of the Government's legislative programme would then be in ruins. The reality is that compromises would have to be reached in Select Committee, just as they will if we have a prolonged Committee stage.
Clause by clause, the Bill prompts the questions: how will this work in practice, how will this be enforced and how will this be an improvement?
In his Cambridge lecture, the Lord Chief Justice asked a fundamental question:
"whether as part of the process of change we are paying sufficient attention to retaining or replacing the checks upon which, in the past, the delicate balance of our constitution has depended".
This House has no more important duty than to uphold the rule of law, which the Lord Chief Justice reminded us prevents the Government from abusing their powers and stops a democracy descending into an elected dictatorship.
We are not dealing with abstract theory or some remote and unlikely possibility. We are dealing with a threat that confronts us here and now. The noble and learned Lord, Lord Woolf, has revealed that the judges were consulted about Clause 11 of the Immigration Bill and advised:
"that a clause of this nature now included in the Bill was fundamentally in conflict with the rule of law and should not be contemplated by any Government if it had respect for the rule of law".
The noble and learned Lord, Lord Steyn, questioned whether the courts would now be helpless to prevent this challenge to the structure of our democracy, so that in the future Parliament could block the courts from checking executive abuse of power altogether.
On the other side of the argument, there are those who claim to speak for the supremacy of Parliament, for those whom they term "real people" represented by that Parliament, which should not be challenged by a Supreme Court, and human rights principles that ignore political realities. The arguments between the two sides are so fundamental that they demand thorough pre-legislative scrutiny.
We now know, as well, that despite the concordat, the Lord Chief Justice has concerns about the independence of the judiciary. Clause 1 of the Bill is supposed to remove our fears. It states:
"Minister of the Crown . . . must uphold the continued independence of the judiciary . . . The Secretary of State for Constitutional Affairs ('the Minister') must have regard to . . . the need to defend that independence".
What do those words mean in practice, and how can they be enforced?
The noble and learned Lord, Lord Lloyd of Berwick, and my noble and learned friend Lord Mackay of Clashfern asked those questions on
The Lord Chancellor's reply to those questions was one of the most astonishingly inadequate responses that can ever have been delivered by any Lord Chancellor in the long history of that office. His response to the question about how the duty to protect the independence of the judiciary would be enforced was that that would be a matter for debate and development over a period of time.
If the first and most crucial Clause of the Bill can be defended only with a statement of such astonishing vacuity, then the whole basis on which the Government defend their proposals seems to have been blown apart; and if there is to be debate, it should be in advance, during an adequate process of scrutiny by a Select Committee.
The person who must,
"have regard to . . . the need to defend that independence", of the judiciary, that is "the Minister", most unusually is not any Secretary of State but the Constitution Secretary and nobody else, yet it is not a role that is created and defined in the Bill, while the Lord Chancellor, with 800 years of legislative authority and history behind him, is summarily dismissed.
The noble Baroness, Lady Kennedy of The Shaws, pointed out on
The present Lord Chancellor—no, it must be the lesser individual, the Secretary of State for Constitutional Affairs, with whom he so uncomfortably cohabits—defends this Bill by suggesting that each of the areas of the state will work better when they are fully, clearly and transparently separated from one another.
When I examine the appointment arrangements proposed in the Bill it does not seem to me that the separation is as full and clear as the Government have pretended. Politicians and the Minister will still have a finger in the pie. But that is just the kind of important subject that a Select Committee could examine.
There is another issue that demands consultation and examination. Clause 1 states:
"Ministers of the Crown must not seek to influence particular judicial decision through any special access to the judiciary".
What does that mean exactly? Is it possible that influence might be attempted by more indirect means? Is the Lord Chief Justice right when he says that there are many ways in which, consciously or unconsciously, the Department for Constitutional Affairs could give directions to court service staff which would result in the courts becoming a tool of Government policy; and that the Home Office could end up dictating the agenda of the courts unless it was checked? The right reverend Prelate the Bishop of Worcester pointed out that the means to exercise pressure are many and intense.
I began by quoting the Lord Chancellor's comments about the quality of the judiciary. On
My Lords, as a non-lawyer I intervene with diffidence in this debate. It is a topic on which I have never previously pronounced. I intervene with less diffidence as a historian, in view of the extraordinarily bad history that we have heard at various times during the past few hours.
I take the criticism seriously, particularly that of the noble Lord, Lord Woolf, in his lecture, particularly his view on the Clause 11 of the Asylum Bill and the inability or refusal to include judicial review of decisions there, even if the law is mistaken. That should be changed, and I hope will be changed in Committee.
Eminent jurists from Blackstone to the noble and learned Lord, Lord Bingham, have endorsed the substance of these proposals, not to mention Montesquieu who was misrepresented earlier today. I agree with the noble and learned Lord, Lord Bingham, that we should reflect institutionally the reality in our arrangements. As he said, the Law Lords are judges, not legislators.
The proposals have been endorsed by the legal profession, the Bar Council and by five of the 12 Law Lords. They reflect what happens in many other countries in the Commonwealth and Europe, and the Republic of Ireland. Those countries do not seem to have these terrible crises and problems with which we have had our blood curdled.
The proposals reinforce the Government's earlier constitutional changes. They continue some of the good things that the Government have done and may check some of the less good things they have done or threatened to do in respect of civil liberties. They remove an historic anomaly by which the independent court of appeal is a committee of the legislature. I believe that the Bill strengthens the rule of law. Indeed, I would not support it if it were otherwise.
The Government's constitutional reforms have sometimes been criticised, perhaps with some justice, for being incoherent or lacking an organised principle or grand design. I believe that the first wave of reforms had organising principles in terms of accountability and a focus on rights, and that the new proposals have organising principles in reinforcing the context of law and of independent judicial review.
These reforms follow on from earlier reforms passed by the Government. I refer to devolution, the Human Rights Act and European legislation. In connection with devolution, which I strongly support, there is a need for a different way of resolving disputes. I welcome the fact that devolution issues will be transferred from the Judicial Committee to the new Supreme Court. The Bar Council argued in favour of this and against having what it calls a "a dual apex" in dealing with legal questions of devolution compared with other areas of litigation.
The situation on human rights makes the present situation more and more anomalous. It is very difficult for our jurists to argue internationally against executive or legislative interference with the judiciary when our own judges are part of the legislature and can, if they want, vote and intervene at will, and when the head of our judiciary is a party politician. The independence of the judiciary should be and, I believe will be, reinforced.
I also believe that strengthening the independence of the judiciary will provide a check on all governments including this one, against the overwhelming feature of constitutional development in recent times: the overweening growth of the executive. This Government, like other governments, have shown a tendency to take the law into their own hands as they did in parts of the Criminal Justice Bill, and perhaps in the lead up to the Iraq war, which is a very dubious story. In part, the Government's reforms are needed to restrain themselves and not to allow the legal agenda to be dictated by the Home Office. The present situation is not sustainable. The status quo is not an option.
The process of reform has, perhaps, not been handled well. We all remember what happened last summer. The words "coach" and "horses" were commonly in conjunction, and, perhaps, "organise" and "brewery". The process is one thing; the substance is another.
I believe that the proposals are logical and wholly defensible. The role of the Lord Chancellor is an historic anomaly. In some senses he is still the refugee from "Iolanthe" that he has been for many decades:
"It has no kind of fault or flaw, and I, my Lords, embody the law".
He is a serving Minister rather than a judge. I do not believe that he is the safe haven for the judiciary or a buffer between the executive and the judiciary as is commonly imagined. That has been argued by the noble and learned Lord, Lord Steyn, in an article in Law Quarterly Review. He pointed out the advantages that would accrue if the Lord Chancellor were to forego his privilege of serving on the Appellate Committee.
I agree with the former chairman of the Bar Council that it is extremely important that ministerial interference with the appointment of judges at all levels should be minimised. It seems reasonable to offer guidelines but some of the more direct forms of intervention in terms of choice should be considered carefully in Committee.
Certainly, I support the proposals for a supreme court. The noble and learned Lord, Lord Woolf, observed that it was a second-class court instancing the fact that it was not based on the American model. I taught American history for many years and I am extremely glad that it is not like the Supreme Court in the United States. I believe it is stronger for that and certainly not second class.
In practice, the Law Lords operate as a separate court yet they are not commonly perceived as so doing. They are compromised by the ambiguity of their role in this House. If they sat separately, that would enhance their status, particularly in a culture shaped by that of human rights. They would not be seen as sitting in judgment on themselves.
With respect, the presence of the Law Lords in this House does not seem to be a decisive factor. It is said that they provide us with the benefit of their wisdom, and that all judges are wise, just as all scientists are brilliant, but they do so on very few issues. It reminds me of an old Roman tag, si tacuisses; that is, the more silent you are the more you are thought to be a philosopher. Rather like the independent nuclear deterrent: it is useful as long as you never use it. That is rather the way the judges are hailed in this House. Many other democratic countries which also respect the rule of law do not have this system and see many advantages in judges being shown to be truly independent, losing their voting rights and their position to speak in this House.
In general I welcome the changes. It seems to me that Committee stage will be active and constructive. It will be a Committee of the Whole House, which will improve the Bill. I note that a proposal has been made for a judicial committee of the two Houses or something of that nature which might monitor arrangements between the executive and the judiciary in the long term. However, the general thrust of the reforms is that they are radical and courageous. I believe that they strengthen the conceptual and institutional framework of the rule of law in this country and that they will make Britain a more liberal and more libertarian country.
My Lords, if it is possible to think back to
That was the position then. It is true that various people—I am sure that the noble Lord, Lord Brennan, was one of them—would have said that the whole thing was not exactly politically correct. I would not argue with that. However, if it was not politically correct, I do not see that it follows from that that there was any need for haste in correcting that defect.
It has also been made reasonably clear that the noble and learned Lord, Lord Falconer of Thoroton, does not accept it either. Indeed, as Secretary of State for Constitutional Affairs, it would be very difficult for him to accept it as the nature of the offices are very different. Hence the need for the concordat and hence the need, as the noble and learned Lord the Lord Chief Justice said, to enshrine that in statute. That need not necessarily be tomorrow, he said, but within a relatively short time. On the other hand, there is no need for pre-legislative scrutiny in relation to that part, which is Part 3 of the Bill. That has been done and very carefully done. Of course at some stage there will be minor changes one way and another to improve it. Cherry picking cannot—and should not—be allowed.
That said, surely it would not be beyond the ingenuity of this House to take that part and enact it separately. An obvious way to do that would be to introduce a number two Bill—call it the temporary provisions Bill, if you like—which simply takes the whole of Part 3 and says, "Let's rush it through". I would have no problem with that. However, for the rest there is a clear need for some scrutiny in depth. It is for those with much greater experience of this House than I to say whether that is best done by a Select Committee or in the form of scrutiny on the Floor of the House.
My own experience of Committees of the Whole House has not been fortunate. But that perhaps is because I have no big battalions behind me and therefore when I make a point it usually falls into the wilderness. However, I get the impression—and it is only an impression; I may be wrong—that in the circumstances of a Committee of the Whole House the Government feel that they are on the defensive. They have put forward a Bill, to which they have given a great deal of time and thought, and they have a highly skilled Bill team which has worked long and hard on the detail. Then some upstart—not necessarily me, but another upstart who leads better and bigger battalions—comes forward and says, "Well, that really is not a good idea". And you get them on the defensive.
So you really have to pin the Government in if you are going to get any concessions. I would much prefer to have some form of tribunal which would make concessions and which would, as it were, talk around a table, the objective of all being the same—to get a better Bill.
There is one other issue that I would like to mention. I appreciate that I have spoken on previous occasions. It is the importance which is now being attached to the self-denying ordinance of the noble and learned Lord, Lord Bingham of Cornhill. I mentioned to my noble and learned friend the Lord Chief Justice the possibility of legislating for the concordat separately. I asked him whether he would have any problem with that. He has authorised me to tell the House that he would have no problem with that whatever.
I return to what I was saying about the noble and learned Lord, Lord Bingham. The noble and learned Lord said that Law Lords—I think it would apply to retired Law Lords too—should not take part in political controversy. He has said that they should not deal on the Floor of the House with matters which they might subsequently have to construe in a judicial capacity. There is nothing new about that. That existed long before the noble and learned Lord, Lord Bingham, came to this House. It was true in my days as Master of the Rolls; it was true in the case of the then Lord Chief Justice. It is true that both of us came out from our corners fighting when—but only when—we thought that the judicial system was under attack. I would hope that nobody would think that that was a reason for sitting in our tents and saying nothing.
This is a very old system. There is nothing new about it. The only thing that is perhaps new is that it would appear that the noble and learned Lord thinks it applies only to utterances in this House. I am convinced that it applies equally to utterances outside the House as long, at any rate, as one is a serving judge.
The noble and learned Lord, Lord Bingham, fought for the chancellorship of the University of Oxford on what struck me as being a distinctly political platform. The campaign did not last long, so perhaps no harm was done. But as a matter of principle I think that the same attitude has to be adopted outside the House as well as within it.
I hope that one way or another the parts of the Bill other than the concordat will receive very careful scrutiny.
My Lords, this Bill was bound to face fierce opposition, not only because of most of its contents, but also because a Bill of this constitutional importance was heralded by a curt announcement without previous trailing and without prior consultation. Indeed, in my view, the Bill itself is a piece of constitutional vandalism undermining judicial and political relationships and balances built up over centuries, which still work well and which have the confidence of the country.
Our unwritten constitution demands that before significant alterations are made to it there should be wide and, if necessary, long consultation between the parties in Parliament and others, especially in this case the judiciary and the practitioners of the law.
The failure of the Government to consult invites the charge that they are careless of our constitution and that they are guilty of the charge of authoritarianism and of imposing an elective dictatorship on Britain. They do not even have the fig leaf of a specific manifesto commitment to use in their defence. As far as I can see, there was no commitment in the 2001 new Labour manifesto, or in that of 1997.
The Government may claim a majority of 163 in the House of Commons, but that is based on their gaining only 42 per cent of the vote on a 59 per cent turnout at the last election. That does not give them the right to ride roughshod over our constitution on one sunny afternoon in June by way of a throwaway line in a government reshuffle.
Under such circumstances it is surely quite legitimate for the noble and learned Lord, Lord Lloyd, to move an amendment to send the Bill to a Select Committee. The opportunity of a pre-legislative examination has been denied, so it must surely be right for him to be able to move this amendment to send the Bill to a Select Committee; and I hope that noble Lords will not be intimidated by the threats of reprisals from government Ministers.
The amendment seems sensible to me. After all, there really is no urgency to get this measure onto the statute book. The present system has worked well over some centuries and even the noble and learned Lord the Lord Chancellor admits that it still works well and is full of praise for those who run and participate in it.
The Lord Chancellor is standing truth on its head when he suggests that the time to fix something is when it is working well. There seems to be some suggestion that our system of justice conflicts with Article 6 of the European convention. That convention has been around for over 50 years. So there seems to be no case for this unseemly haste in relation to the convention.
I have searched my mind to find a plausible reason for the Prime Minister's peremptory announcement on
I find it hard to believe that even this Prime Minister could take arrogance to such lengths, or subvert the constitution—because that is what he is doing—to his own general election timetable. Could there be something else behind the rush to make that announcement? It occurred to me that perhaps the European Union constitution—
You were waiting for that, weren't you? The European Union constitution would have just been put on the table by Giscard d'Estaing and was due for discussion at the Thessalonika summit on
I raise this as a possibility because Part 3 of the constitution, in Articles 171 to 175, makes provision for wide-ranging harmonisation and co-operation in judicial and criminal matters and provides for a European public prosecutor. Perhaps that also throws some light on the proposal to change the name of the Crown Prosecution Service to the public prosecutor. It seems strange that these things are coincident—
I heard that remark by the noble Lord, Lord Morgan. I would be very happy to be described as Chinese, because the Chinese are very clever people.
There is no time at present to go into the details, but perhaps in his winding-up speech the Lord Chancellor could say whether the impending European constitution had any bearing on the Government's decision to fundamentally alter our judicial system and abolish a post that has been around for over 1,000 years—
My Lords, I am grateful to the noble Lord for giving way. He brought Europe into the debate. Is he aware that the really relevant part of Europe is in the European Convention on Human Rights, which the Attlee government were first to ratify, that provides that courts must be independent, impartial and established by law? Is the noble Lord aware that a couple of judgments at the European Court of Human Rights—one against the United Kingdom and one against Luxembourg—have indicated that there cannot be someone like the Lord Chancellor wearing three hats and exercising judicial power. Is he aware of that?
My Lords, yes, I am aware of that. I am also aware that the convention is not applicable to this country in the same way as the European Court of Justice. In fact, we do not have to accept and implement Clause 6, I think it is, of the European Convention. That is open to us. If we sign and agree to the European constitution, we will be subject to the overall jurisdiction of the European Court of Justice, and that would be binding on this country and on the courts of this country.
As I was saying, this is an extremely bad and ill timed Bill. It is a constitutional outrage that ought not to proceed further without the most close and searching scrutiny as to the reasons for it, for the haste in preparing it and bringing it forward and for the unseemly rush to get it onto the statute books. There must be close scrutiny of whether it will improve judicial efficiency and fairness, will harm the legal and constitutional right of subjects, and how it will impinge on the overall constitution of Britain. I oppose the Bill, but if the noble and learned Lord, Lord Lloyd of Berwick, puts his amendment to the vote this evening, I shall almost certainly vote for it.
My Lords, although I have not spoken on this proposal before, I shall be brief, recognising the number of noble Lords who have already spoken and the number who have yet to speak. This debate has been more balanced than the previous debate in which the Government's proposals were considered. It is right to remind ourselves that a substantial number of the highest judges in the realm have openly supported the separation of powers as advanced in the Bill and by the Government as justification for the Bill.
This afternoon, we heard from the Lord Chief Justice that he would wish to see—speaking for the judges he made the point—Part 3 of the Bill being given support since in detail it has been accepted by the concordat. I will not linger long on that either, beyond saying that although it is a concordat agreed by the Government and the judges as described, I hope that it is not intended to be pre-emptive of consideration of detail by this House and by the elected House. There are a number of matters—concerning, for example, the number of judicial nominations be put forward by the commission for selection—to which we shall wish to return. Those are definitely not issues of principle. They are matters that require to be given the kind of consideration that this House is well capable of giving to the detail of a Bill.
So far as the second aspect of the Bill is concerned—the proposed establishment of a Supreme Court—it seems right to remind ourselves, as my noble friend Lord Lester of Herne Hill has just done, of the provision of Article 6 of the European Convention on Human Rights. This is not a remote or distant matter. As I understand it, it is currently being considered under the provisions of the Human Rights Act as a matter that could be applied directly following the 1998 Act in this country. I cannot think that there would be many people who would wish to denounce Article 6 of the European Convention.
The case for the separation of judges from this legislature has been most eloquently made by the noble and learned Lord, Lord Bingham, on more than one occasion. It seems both practically sensible, in that it avoids the embarrassment of judges having to rule themselves out of consideration of cases on matters that come up with which they may have had a legislative connection, and it makes it clear to the public precisely what their role is. That too was well canvassed earlier in the debate.
I wish to focus most on the issue that was most eloquently touched on in the previous debate by the noble Baroness, Lady Kennedy of The Shaws. I refer to what she saw as the peculiar role of the Lord Chancellor in representing in the heart of government the voice of the judiciary and in a sense speaking for the rule of law to the Cabinet. This has always seemed to me to be a metaphysical concept, which was not practical in its outcome and was of little practical value. I have yet to hear any Lord Chancellor, either in this debate or any other, pointing to examples of that role being beneficently exercised within government.
Because we have reached that point in the debate which, if it is not the pause in the occupation that is known as the children's hour, is, in a sense, the low point before the dinner hour, it might be appropriate for me to tell a story illustrative of the point.
Back in February 1993, there was a debate in your Lordships' House about an extremely important issue—the changing of the rules of eligibility for legal aid. It aroused great passion inside and outside this House, and it was opened by the then shadow Lord Chancellor, the noble and learned Lord, Lord Irvine. He drew attention to the feared adverse consequences of reducing eligibility, which would adversely affect no fewer than 37 per cent of the households in the land. You may think that access to justice is an important issue for consideration by the Lord Chancellor, and one which he would hold particularly close to his heart.
The case was formidably advanced by the Lord Chancellor as well as by two sitting Law Lords—the then Lord Chief Justice, Lord Taylor, who cited the support of the Master of the Rolls for his point of view. Lord Taylor spoke of the damage that would be done to the judicial process if legal aid withdrawal resulted in the self-representation of litigants and how this would snarl up the whole process.
In a lengthy speech replying to this, the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, who graced this debate earlier this afternoon, made no reference to the views of the judiciary. He did not directly answer the points made either by Lord Taylor in the debate or, indeed, in the letter that Lord Taylor had told the House that he had written to the Government. Even more surprising was the denial, that very same afternoon, to the House of Commons Public Accounts Committee that such a letter had been received, or at least that Sir Thomas Legg, the then Accounting Officer and Secretary to the Lord Chancellor's Department, had any recollection of such a letter.
Two days later, Sir Thomas Legg wrote a letter of apology to the Public Accounts Committee saying that yes, indeed, such a letter had been written and the concerns expressed on the Floor of the House by Lord Taylor had been expressed to the Lord Chancellor.
I think the point is quite clear: the Lord Chancellor was not, on that occasion, acting as the voice of the rule of law. He was acting as the voice of the Treasury. That is what is essentially wrong with placing so much reliance upon the position of the Lord Chancellor as the defender of the rule of law in this country or as the voice of the judges. The actuality is that he has to, and does, behave like any other member of the Cabinet, carrying collective responsibility for the decisions. If the Lord Chancellor has to be put up to defend cuts in legal aid, the Lord Chancellor will do it.
It is time to recognise that we need tougher and stronger defences of the rule of law than that historic office, hedged, or garlanded, with ancient traditions, as it may be. In my judgment, the judiciary is quite capable of speaking out for itself; it neither requires a place in the Cabinet to do so nor a place in this House. The roles are distinct and different, and the constitutional law of this country should reflect that difference.
My Lords, I am delighted to follow my old friend, the noble Lord, Lord Maclennan, who has made a very pertinent point. I have a very high regard for the noble and learned Lords the Lord Chief Justice and Lord Lloyd of Berwick, both of whom have employed the wisdom of being absent when I am speaking. Between them, they have done a great deal to settle the parameters of this debate. Having said that, I reserve the right to criticise the contributions which both of them have made.
I think it is regrettable that this debate has been tarnished by two matters. First, in my respectful submission, the amendment moved by the noble and learned Lord, Lord Lloyd, is, behind all the camouflage, untenable and inconsistent with the traditions and procedures of this House. If he were to succeed, it would, inevitably, delay reform and, indeed, as I think is his wont, destroy the Bill altogether.
It is a clear part of the noble and learned Lord's argument that everything in the garden is okay. Very little needs or ought to be changed. In that, I think he is profoundly mistaken. I submit that the onslaughts he has launched would have been better employed on the obvious deficiencies of the present situation which cry out to be remedied. For example, there is only one woman in the highest court in the land, and she has been appointed only recently. My noble friend Lady Jay made reference to that fact. It is also appalling that nobody from the ethnic communities is represented in the judicial affairs of this House. In my view, neither of those facts is acceptable, yet we have heard not a whimper from the noble and learned Lord, Lord Lloyd, or any of his supporters, in that regard.
My Lords, understandably, one often hears the argument that there are fewer female justices than there are male justices in the High Court, the Court of Appeal and, indeed, in the House of Lords. But surely the noble Lord must remember that when he started in practice, and when I came to the Bar, there were no women coming into either profession. While his argument would stand good if in 10 or 20 years' time there were not proper representation, I do not believe that there is a smaller proportion of women on the High Court Bench compared to men if one considers the pool from which they can be drawn.
My Lords, I have heard that argument often before and I believe it to be somewhat misplaced. There are a number of women judges who could be promoted. It is also appalling, as I have said, that no members of the ethnic community are represented in the highest court of the land. That ought to be put right.
I was about to refer to the intervention of the noble and learned Lord, Lord Woolf, the Lord Chief Justice. Perhaps unintentionally, he somewhat clouded the issue. He argued that it was necessary—more or less conditions precedent—to find a location for the Supreme Court and to determine whether or not this place is to be wholly elected. Both those observations are, in my submission, crimson and ermine red herrings. If a new building is to be found—and I remain to be convinced on that score—it is possible that the Law Lords could occupy it. Perhaps a search should be made immediately. In any event, it is perfectly possible for the Law Lords to carry on their functions here for the time being.
The Lord Chief Justice also asserted that the Supreme Court would be less supreme than in other countries—that it would be bound to be inferior. Is that not an assertion without evidence? Why is that allegation made? It seems to me that the Supreme Court would enjoy precisely the same jurisdiction as the Law Lords in the House of Lords, but that there would be a separation from those who apply the law and those who make it. My own view is that the noble and learned Lord, Lord Woolf, should have addressed some of the more obvious anomalies of the present court. They are all issues that ought to be confronted now, in this Bill. We need a more equitable system than we now have.
It is also desirable that the Law Lords, or members of the Supreme Court, should be consulted in some way about any proposed change of the law with which they had a direct concern. That, in my opinion, could best be done by the Lord Chief Justice, or another judge of the Supreme Court appointed by the Lord Chief Justice, consulting the judges collectively and reporting their views to the Government. They do not have to be members of the legislature to do that, despite the blandishments of the noble and learned Lord, Lord McCluskey.
I spoke in the previous debate as well, so I can curtail my remarks. However, there is one matter on which there is likely to be little disagreement. Wherever the Supreme Court sits, it will in my view still provide an outstanding example to the rest of the world—an example based on the independence of the judiciary. That matter is clearly underlined in Clause 1 of the Bill, and it should be said again and again.
My Lords, I am very glad to follow the noble Lord, Lord Clinton-Davis, whose contributions to our work I always greatly admire. He seems to me to exemplify what the playwright, Robert Bolt, once said, that it is very important to be passionate in defence of moderation.
I strongly support the concept of an independent judicial appointments commission, as does Justice, the all-party law reform and human rights group that I chair. But, since the noble and learned Lord the Lord Chancellor mentioned this in his opening, I shall point out that both our reports suggested that the appointments commission should advise a Lord Chancellor who would make the ultimate appointments. That was an important consideration.
I support the concept of a Supreme Court. I also believe that the functions of the Lord Chancellor cannot long continue in their present form, particularly if the incumbent is to play as powerful a role in politics as did the noble and learned Lord, Lord Irvine. But I saw, and still see, considerable scope for reshaping the office rather than abolishing it, as does the noble and learned Lord, Lord Lloyd. I am also strongly convinced that the most fundamental changes to our legal system for centuries should not be rushed through without full and mature consideration. I would like to spend my few minutes explaining why.
With others, I deplore the way, and the atmosphere, in which these changes have been proposed. In our society there will always be tensions between governments and the judiciary. After all, the essential underpinning of our democracy is the existence of the rule of law, which is there to keep the ambitions of ever-more intrusive government within legal bounds. Unfortunately the present Government respect the role of the judges less than any other in my lifetime. The Home Secretary has criticised the decisions of individual judges and has actually suggested that judges should be there to "help us". He does not apparently share the view of the great Lord Atkin that administrative convenience and justice are often not on speaking terms. We have a Prime Minister and a Home Secretary who are prepared to suggest the heresy that the more serious the charge, the less strong should be the burden of proof. We have an asylum Bill that seeks to oust the jurisdiction of the courts, which are there to supervise the legality of the actions of tribunals.
This proposal seems to be reminiscent of the long—and long abhorred—17th-century dispensing power. It is hardly surprising that the scepticism that should greet the proposals of any government to change the legal system radically have hardened, in the case of this Government, to deep cynicism.
Since June last year, it is undoubtedly true that the Government have consulted on the detailed way in which to implement the wholesale changes that they propose. But, as the noble and learned Lord the Lord Chancellor said so clearly in debate last month, they regard the fundamental changes as issues of policy that are above the need for consultation. Many of us protest passionately at this approach. We believe that there should have been proper, widespread consultation before decisions on policies of such crucial constitutional significance.
It is not clear when the Government actually adopted this policy. There was no hint of it in the last election manifesto. There was no prior discussion with the judges, with the Attorney-General, with the Leader of our House, with any of those who use legal services or with human rights groups. Nor, as I understand it, did any Cabinet committee or the Cabinet itself discuss the issue before the Prime Minister, as part of a ministerial reshuffle, announced these changes. So ill considered was the new policy that the Government mistakenly thought that they had abolished the office of Lord Chancellor by a combination of prime ministerial fiat and press release. Henry VIII, at his most absolutist, might have given Mr Blair an approving pat on the back. Thomas Cromwell, his henchman, might well have understood the unenviable role into which the noble and learned Lord, Lord Falconer, was thrust.
Since then, the Government have continued to be wholly impervious to the regularly repeated suggestion that the Bill should belatedly receive pre-legislative scrutiny. The only reason seems to be that they think that they have a window of opportunity to get the Bill through and that this somehow overrides the importance of taking into account anyone else's views of the wisdom of change.
There are many like me who are totally unsympathetic to the principle of a Supreme Court. But do not the views of the noble and learned Lords, Lord Nicholls, Lord Hoffmann and Lord Lloyd, deserve a hearing on that issue? With such a divide, I think there should be a proper debate. There is time for a Select Committee to do its work and for the Bill to carry over to the next Session and to be completed then. The Lord Chancellor, when asked the question at the beginning of this debate ducked it completely. Although I share so many of his views, I do not share the view of the noble Lord, Lord Lester, that we should take account of the fact that the Government may want to go to the country next spring. So what? Is it not more important to get our constitution right?
My fundamental concerns are how we will make certain that the abolition of the office of Lord Chancellor will not deprive the legal system of its important underpinnings. It is idle simply to pretend that this can be replicated by passing the responsibility to a Minister in the other place who will often not be a lawyer, lacking clout, and may have political ambitions which will not be furthered by standing up to his own senior Ministers. The Lord Chancellor has been described as a "hinge" between the judiciary and the executive. Lord Hailsham described himself as the "private representative" of the judges in Whitehall. The noble and learned Lord, Lord Mackay, has suggested that the Lord Chancellor provides "a voice" for the judges while at the same time ensuring they are not placed in a direct and probably inappropriate relationship with the executive.
There are an immense number of issues where the Lord Chancellor has traditionally sought to be a bulwark for the legal system. Who, if he goes, will seek to ensure that there is sufficient public funding for litigants to secure access to justice? Who will seek to argue for the appropriate increase in the number of judges? Who can warn the Government about the likely concerns for the legal profession or potentially difficult ramifications of proposals put forward by individual Ministers? Who can seek to act as mediator if there is potential friction between the Government and the judiciary or the professions?
I believe that this needs to be thought through. The Bill does not go far enough to entrench and protect the judicial system and its independence. Those who ought to have been consulted before the so-called policy was announced should have the chance to express their views. It cannot be right for the Government to take the view that they are so confident in their own proposals that they are wholly uninterested in hearing the detailed views of others. These reforms are controversial, far reaching and unprecedented.
My Lords, does the noble Lord agree that there is a really pressing need to get the arrangements for appointing judges in England and Wales on to the statute book and for strengthening the Bill in this House as soon as possible; and that the worst outcome would be if the Bill was lost and the present unsatisfactory position were to continue until after the next general election? Will he agree with me on those two points?
My Lords, the noble Lord anticipates my next point and perhaps gives me the opportunity of an extra minute. I was just coming to the view that I supported a Select Committee. I want to make it plain that I do not support a Select Committee with any view to killing this Bill. I believe that it is possible—I will be corrected if I am wrong—for the House to give instruction to a Select Committee to report within three months. If that is so, I believe that it should happen. I also believe that it is possible—as the noble and learned Lord, Lord Donaldson, said—that we could take Part 3 separately by way of a separate Bill to ensure that those arrangements are put in place. I do not shirk that, and I do not believe that in his desire to have a Supreme Court, my noble and learned friend—as he is—should shirk that. Other people do have different views and those views were treated with contempt before this Bill was introduced. Surely now they should have a chance to express those views.
I also believe that when Mr Peter Hain says that for us to vote for a Select Committee would be anti-democratic—which is his favourite way of describing any opposition which is put forward by this House—he is actually ignoring the fact that, as the noble and learned Lord the Lord Chief Justice said when ending his speech, a civilised society demands consensus for constitutional reform.
My Lords, it is always a pleasure to follow the noble Lord, Lord Alexander of Weedon, to whose honeyed words I listened and always enjoyed when he appeared before the Appellate Committee some years ago.
We are dealing at the moment with three items in the Bill. I propose to refer only to one; namely, the Supreme Court. The Appellate Committee has functioned, as is widely agreed, with great distinction and effectively since its constitution by the Appellate Jurisdiction Act 1876. On
"The Government are of the view that a sufficient case has not been made for the abolition of the Appellate Committee".—[Official Report, 10/6/02; col. WA3.]
What happened between then and
A little clue is to be found in the consultation paper on the matter. It has been said that the Government have consulted. Consultation papers were handed out for consideration. But the consultation paper on the Supreme Court did not want responses as to whether there should be such a court. The decision had already been made. The paper wanted responses only on the details. So it was perhaps not surprising that not much was said about the reasons for setting it up.
Two matters were mentioned; that the Appellate Committee was no longer sustainable and that the establishment of a Supreme Court would preserve and increase—I emphasise the word increase—the judges' independence. That sounds absolutely splendid. But a bald assertion of unsustainability is absolutely meaningless in the absence of reasons.
The suggestion that a Supreme Court would increase and strengthen the judges' independence, a theme repeated by the noble and learned Lord the Lord Chancellor in the debate on
The implication that the Law Lords have not felt completely independent of the executive and the legislature in the past is simply laughable. If the noble Lord, Lord Carter, were here I would tell him that I am now judicially geriatric and therefore no longer concerned with the Appellate Committee. But during my service, the fact that I was working here, writing my judgments upstairs in a room, never had the slightest bearing on how I decided a case. I had many, many discussions with colleagues about appeals. I am absolutely certain that none of them was in the remotest way influenced by the fact that they were working in your Lordships' House.
I refer to two matters that seemed to run through the debate on
"there is not the beginning of a case for separating off the Law Lords".
I submit that those words are entitled to very careful consideration.
As I have mentioned, it is also said that independence will be increased. I think I have explained why I consider that to be quite unfounded. A suggestion was made in the previous debate that the fact that the final Court of Appeal is in your Lordships' House causes confusion. The example given was of some senior Law Lord who had to excuse himself from sitting on a particular case that involved legislation upon which he had commented in this House. He might just as well have excused himself because he happened to be a shareholder in a company that was a party to the appeal or a member of the National Trust which the case involved.
I am bound to say that my impression is that the Government have so far failed to produce any reasonable justification for the abolition of the Appellate Committee and its replacement by a new and vastly more expensive organisation. It seems to me to be an exercise in presentation, dressing up the creation of an unnecessary institution to fulfil an imaginary need as a step forward in the modernisation of the constitution. In my view the matter should be looked at further. I support the amendment of my noble and learned friend Lord Lloyd.
My Lords, my predecessor when I was Bishop of Guildford was Michael Adie. He had at one time been chaplain to the Archbishop of Canterbury, Geoffrey Fisher. The story is told that it fell to his lot as chaplain to go to the Archbishop and suggest that it was time he retired, which he did. When Geoffrey Fisher retired, so the story goes, Harold Macmillan as Prime Minister rang up Michael Ramsey the very next day and offered him the job.
Those stories led to the reforming of the process of appointing bishops in the Church of England. In the end, after work with Jim Callaghan when he was Prime Minister, the Crown Appointments Commission came into being and in the past two or three years that system has been further reflected on and has undergone yet further reforms. So it is possible for us to engage with change within the shape of our constitution.
Earlier this afternoon the noble Baroness, Lady Jay, made the point that others have made—that we are talking about the separation of powers. She asked, if the judges can sit in this House, why not senior people in the medical profession, and so on? Those comments misunderstand the constitution.
Paragraph 44 of the Explanatory Notes on the Bill also misunderstands the constitution. It says,
"the Bill seeks to make a distinct constitutional separation between the legislature and the judiciary".
Parliament is not just the legislature. Under the Crown, it is the institution, on behalf of the people, that calls government to account—the executive who all have to be Members of Parliament. Parliament is responsible for democratic and public debate, for ensuring good legislation on behalf of the people of the country and is, as the highest court of the land, called the high court of Parliament, ultimately responsible for the rule of law and the practice of judicial life in our country. That is our constitution. In Parliament we hold together those three bases of our life under the Crown. That is our history.
That does not necessarily mean that we carry on as we have always done and it does not necessarily mean that we have to leave the judicial functions of the House of Lords as they have always been. But it does mean that we have a duty to ensure that any changes and developments we make hold faith with our constitutional history. If we are to change that and move radically in a new direction to a system of separation of powers, that needs proper and independent reflection in its own right. From a variety of points of view we all recognise that we entered this issue in an unhappy way last June, and in a way that opened up constitutional issues that needed to be properly considered in their own right. None of that necessarily holds up reform of the system.
The second matter that I wish to raise arises from the events of
We are bound to ask, if we agree with the remarks of the noble Lord, Lord Lester, and agree that whoever takes on that role has to be highly qualified in law, what is wrong with the Lord Chancellor continuing to do that? That is at the heart of the debate. We seem to have a historical constitutional position which, properly and with genius, combines both the political side of government and a constitutional position that is seen to have the independence necessary to perform that role in relation to the judiciary. Why are we seeking to change that position? I do not think that we have had an adequate answer to that issue.
The last thing I want to say is this: do we not have a duty in Parliament as a whole to preserve jealously the powers of Parliament? Is it right that we should be considering hiving off functions and powers which historically and properly our constitution have vested in Parliament? Reform them? Yes. Evolve them? Yes. Change them? Yes. But have we not a responsibility jealously to guard those powers and to ensure that we hand on to the next generation a constitution which is intact? From my perspective in this debate, we have not sufficiently done the thinking nor the work on the principle underlying these issues to be sure that this legislation will achieve all the Government want of it.
My Lords, I was not able to be in the House on
There is one thing on which this House can surely all agree: that the abolition of the position of Lord Chancellor, particularly as head of the judiciary; the creation of a Supreme Court in place of the Judicial Committee of this House; and the Judicial Appointments Commission for the purpose of appointing the senior members of the judiciary, are all matters—as the noble and learned Lord, Lord Falconer, said—of vitally important constitutional change. Having listened to this debate, and in particular—although he is not in the Chamber at the moment—to the speech of my good friend the noble Lord, Lord Brennan, of course I accept that you can argue individually a case for any one of those changes.
You can argue, certainly, for a Judicial Appointments Commission. Indeed, like my noble friend Lord Alexander, I support the idea of a Judicial Appointments Commission. You can argue that we should have a Supreme Court, provided you are prepared to consider at the same time what the powers of that court should be. You can say—although the argument has been effectively demolished by the right reverend Prelate the Bishop of Chelmsford who has just spoken—that the present situation breaches the separation of powers, with the Judicial Committee of the House of Lords being a part of this House. You can say that the office of Lord Chancellor has in itself become so substantial and so involved in the Cabinet and in politics that he cannot at the same time carry on the role of being head of the judiciary and appointing an independent judiciary. All those are perfectly good sound issues to be argued.
But surely, as the noble and learned Lord the Lord Chief Justice said in his speech, if you are setting down the road towards a constitutional change of that nature, it is important that you do everything you can to carry the consensus of the country with you. Instead of that, in an extraordinary act of apparent incompetence and arrogance, in June last year the present Government announced overnight the abolition, or the purported abolition, of the office of Lord Chancellor. They did so without consulting the judiciary or, what is worse, consulting Her Majesty on what was being done. Therefore, the failure to consult at that stage; the arguments about the powers and role of the Supreme Court; the failure to consider the role and relationship of the Lord Chief Justice with this House; and the failure to consider the role, position and rights of the Law Lords in this House as senior members of the judiciary all argue in favour of the amendment tabled by the noble and learned Lord, Lord Lloyd.
I want to make three points on the merits of the Bill. The first relates to appointments. It is said that the purpose of changing the method of appointment is to ensure that the judiciary is seen to be wholly independent. Like my noble friend Lord Alexander, I have sympathy with the argument of a Judicial Appointments Commission. But let us be clear what will happen in this case. The Judicial Appointments Commission—I am talking about the level of the High Court and upwards—having made its decision, refers it not to the Lord Chancellor but to the Secretary of State for Constitutional Affairs.
I was a member of a Cabinet in which the Secretary of State for Education was one from the bottom in the pecking order. That is usually his position. I understand that at present the Secretary of State for Constitutional Affairs is one from the bottom in the Cabinet's pecking order. He may not be a lawyer and he may, unlike some of us, be an ambitious politician. He may be greatly subject to the views of the Home Secretary, who is about third in the Cabinet. But he will have the right to reject the decision of the Judicial Appointments Commission and to order it to reconsider its decision. He may have no legal background, but when considering an appointment to the highest court of all—the Supreme Court—he will have the right to chose from five names the one which goes to the Prime Minister for recommendation to Her Majesty the Queen. That proposed scheme is far more open to political interference in the appointment of the judiciary than the present appointment by the Lord Chancellor.
My second and third points relate to the Supreme Court. We have heard important and moving speeches today about the importance in this House of the Law Lords. I do not attempt to add to what was said by the right reverend Prelate the Bishop of Worcester and the noble and learned Lord, Lord McCluskey, on that matter. They made a most strong case. Equally, we heard today and in the previous debate about the strength which the Law Lords feel they gain from membership of this House. What is to be achieved by removing that membership? In particular, what is to be achieved before this House has yet had the chance to consider its future composition?
My third and final point—I promised that I would not speak for more than the recommended time—is to ask whether all this is necessary. What is the rush? Everyone says that the system works. If ain't broke why mend it? No one questions the independence of the appointments made by the Lord Chancellor; no one questions the present independence of the judiciary.
What will the cost be? I happened to have the good fortune to bump into the noble and learned Lord, Lord Fraser of Carmyllie, who is conducting an inquiry in Scotland, which noble Lords may know about—it is well known to the noble and learned Lord, Lord McCluskey. The Scottish Parliament set out with an estimate for its building of £40 million. It is now costing £430 million and that figure is rising. We are told that the cost of a new Supreme Court—although no one yet knows where it will be—could be £32 million which presumably may become £320 million.
Simply for reasons of perception, we are being asked to change a situation that works, by having the same 12 people called by a different name, sitting in a place we know not where and at a cost that is not known. For all those reasons I believe that this matter should go to a Select Committee as proposed by my noble and learned friend.
My Lords, we have had an excellent and interesting debate. I certainly feel that I have learnt a good deal from it. I shall not rehearse many arguments that your Lordships' House has already heard, but I want to refer to some speeches that appear to me to be the most interesting. I always listen with particular interest to the speeches of the noble Lord, Lord Alexander of Weedon, partly for one particular reason: he and I are twins in this House. We were introduced on the same day. I have heard many of his speeches, all of which have been filled with a deep understanding of the law and a deep love for it and all of which have struck a note of moderation. He sits on the Opposition Benches and I sit on the Cross Benches, but he is a far more moderate man than I could ever claim to be.
I listened tonight with particular interest because he is a moderate man who is deeply concerned. He is particularly deeply concerned about the deterioration of the relationship between the judges and the Government. That must be a bad thing, whatever view we take of who is to blame. I take one view and the Government take another. Whoever is to blame, it must be bad to have conflict between the executive and the judiciary. The concern of the noble Lord, Lord Alexander, represents a concern felt throughout the debate and throughout the House.
I was also interested to listen to the noble Lord, Lord Lester of Herne Hill, whom I am sorry to see is not in his place. He is another noble, learned Peer. His speech was remarkably interesting, but in a way remarkably unsatisfactory. He is a man whom I have often followed in the House. When he has said that we should stand up for juries, I have stood up for juries; when he has said that we should stand up for judges, I have stood up for judges. On the whole, I have followed his line and that of the noble Lord, Lord Goodhart—the Liberal Democrat line—on the need to defend the principle of law in this House. That is one of the central functions of the House and it is necessary to take a liberal view of the issues as they come along. I have been just about as loyal to those liberal issues as Liberal Democrat Members have been.
I thought that the gist of the speech of the noble Lord, Lord Lester was that this is not a very good Bill and that it has a good deal wrong with it, but that we cannot do anything about it and it will be worse if we delay it. That seemed to me, to be frank, to be an attitude of appeasement. I regretted deeply that the Liberal Democrats, with whom I have so often voted in the past on these issues, should take such an attitude.
My Lords, if the noble Lord, Lord Rees-Mogg, reads the remarks of my noble friend Lord Lester, he will find that he said that he believed that changes could and should be made when we come to consider the Bill—not in a Grand Committee, as the noble Lord, Lord Rees-Mogg suggested in the Times this morning, but in a Committee of the Whole House.
My Lords, I am more than happy to accept that the noble Lord, Lord Lester, said that changes ought to be made, but he was reluctant to accept the recommendation of the noble and learned Lord, Lord Lloyd of Berwick. I think that that was a mistake.
The next speech that struck my mind was that of the noble Lord, Lord Marsh. What a good speech it was, and how wrong-headed. He basically said that we ought to give in to the Government, however mistaken they might be—governments always are mistaken in my experience—because we were going to get something worse if we did not. That was rather like the argument of the noble Lord, Lord Lester. I do not believe in these arguments. I think that one needs to pin governments against the wall and when they are making mistakes one ought to make them responsible for their mistakes. That seemed to me not to be the view of the noble Lords, Lord Lester or Lord Marsh.
I have a bone to pick with the noble and learned Lord, Lord Lloyd of Berwick, who found against me on a judicial review relating to the Maastricht treaty. That was his last action in the Court of Appeal. I am sure that he meant well at the time, but that was a little matter on which I did not wholly agree with his judgment.
I hope that the noble Lord, Lord Rees-Mogg, will not hold it against me this evening.
I would not dream of doing so. I admired the speech of the noble and learned Lord, Lord Lloyd of Berwick. I thought that he made an overwhelming case and I certainly intend to vote with him.
I cannot call the noble and learned Lord the Lord Chancellor an old friend because of the political divide, but I have known him for a long time. I thought he made a splendid point, with which I was in complete agreement. He said that these were vital constitutional changes that we cannot afford to get wrong. That is my view entirely. It is also the view of the noble and learned Lord, Lord Lloyd of Berwick, and represents the strongest reason that has been given in this House for voting for his amendment.
My Lords, I would like to start by saying that in my view this Government have a splendid record to be proud of on constitutional reform and modernisation. I shall briefly rehearse the record. First and foremost on the list of achievements is the enactment of the Human Rights Act 1998. All other legislation passed before and after it is subject to it and has to be interpreted so far as possible to comply with it and with the European Convention on Human Rights.
The Human Rights Act is a finely crafted measure, which on the whole has worked well and which is highly relevant to our debate. It struck a careful balance that duly respected parliamentary sovereignty. That balance should be preserved. Our final court, whatever it is called, should have broadly the same jurisdiction as at present. I do not agree that this role makes it second-class, or that it will not in fact be a Supreme Court. "Supreme" does not mean above the law. Every court, however high, is itself subject to the law. As has aptly been said, we want the rule of law, not the rule of lawyers. Some lawyers may have an agenda of seeking to take power to strike down Parliament's legislation. That must be resisted.
"Supreme Court" is a totally appropriate description for what will be created by the Bill. The public, here and overseas, will clearly understand its role. The descriptions "Appellate Committee", "Judicial Committee of the House of Lords", or whatever, make only for confusion. The title "Lord Appeal of Ordinary" is archaic. The legislative and judicial functions are separate. Most judges are not legislators; most legislators are not judges—certainly not at the same time. It makes sense to keep the two functions apart.
I support the principle of a Supreme Court. It will not be a poor relation; it will have a broad role. It should not be modelled on other Supreme Courts which have operated in federal or other ways. It is important that the new Supreme Court should have suitable premises and be adequately resourced. Those resources should not come from excessive fees imposed upon litigants or by way of transfer from the legal aid budget. The necessary time should be taken to get it right.
I mentioned that first and foremost of the Government's constitutional reforms has been the Human Rights Act. Of course, there are others. Prominent among those has been devolution. A new Supreme Court, which is, in part, a product of the Human Rights Act, must respect the balances within that Act and respect the devolution settlement and the particular position of Scotland.
There have been other notable constitutional reforms; for example, data protection, freedom of information and the phasing out of hereditary Peers and so on. Parliamentary reform is ongoing with the suggestion of a Speaker for this House—a proposal of which I am wholly in favour. There will be a new process for the creation of new Peers. The Law Lords are not immune from these changes. The Law Lords have been a first-class final court of appeal and they will ensure that there is a first-class Supreme Court. But giving up such limited legislative roles as they have will not impede them.
It is a well known maxim of the law, uttered by a Lord Chief Justice 80 years ago, that justice should not only be done but should manifestedly and undoubtedly be seen to be done. Justice is done by the Law Lords. It will be better seen to be done by a Supreme Court separate from the Westminster/Whitehall machine and estate and, as a Supreme Court for the United Kingdom, separate from the courts of England and Wales as well.
Further, I support the principle of a Judicial Appointments Commission. Here, too, great care will have to be taken in relation to the detail. Again, adequate resources are important. Without them, a good idea can be a disaster in practice. The birth of the Crown Prosecution Service is only one example.
There is great good sense in the report of the Constitutional Affairs Committee of the House of Commons. One of its recommendations, which I support, is that the Government must make it a clear objective of the new Judicial Appointments Commission to ensure that an effective effort of the kind made by the noble and learned Lord, Lord Irvine, as Lord Chancellor to promote diversity will be continued in future. That recommendation was based in part on the response to the Government's consultation paper from the Society of Black Lawyers. It said:
"There has been some improvement to the appointments system for the ethnic minority. This has largely come about as a result of the personal attention to appointments paid by the Lord Chancellor, Lord Irvine of Lairg. He took a pro-active approach to the appointment of judges. In particular he was happy, if a case warranted it, not to act on the recommendation given by his officials or by any advisory panel but instead to make appointments based on his personal assessment of an applicant. He actively encouraged ethnic minority applications, agreeing to look personally into the grievances of any applicant and the Society is aware of the number of occasions where Lord Irvine reversed a decision not to give an interview or to appoint".
Recent Lord Chancellors will be a hard act to follow. In establishing a new system we must build on the strengths of past practice. I believe that we will.
I commend to the House that we give this Bill a Second Reading, following our normal practice. We should have no truck with what can only be called wrecking amendments, such as sending this Bill to a Select Committee.
My Lords, I support this amendment and it is not a wrecking amendment.
I accept, of course, that parliamentary reform is an ongoing affair, but not for the reasons given by the noble Baroness, Lady Goudie, who has just spoken.
This amendment was accepted by the Table as in order, on the advice given to the noble and learned Lord, Lord Lloyd of Berwick. In any event, the House is the master of its own procedures. There is no reason why we cannot go back to that bungled reshuffle as concerned the ancient office of Lord Chancellor, sought to be abolished by prime ministerial decree made in error.
I wholly agree with the noble and learned Lord, Lord Lloyd of Berwick, respectfully, fundamentally disagree with the noble and learned Lord, Lord Woolf, on this issue. Yes, we must go back to where we were.
The threat to withdraw the Bill that I read in the papers this morning to oppose this amendment, to invoke the Parliament Acts and to tighten the rope around our necks is yet another bungled exercise and another abuse of the constitution. If any precedent would be set by the tabling of this amendment, that is the total responsibility of the Government, first by declining to deal with a full scrutiny of a draft of the Bill, and secondly, to decline to heed the recommendations of the Select Committee totally within the remit of the Government.
The delay of three months for a report is wholly acceptable to the noble and learned Lord, Lord Woolf, as the favoured means to preserve the independence or integrity of the judiciary. If I have got that wrong, I seek a correction.
What grievance of the nation is addressed by the abolition of the office of Lord Chancellor, or the exchange of the Appellate Committee of your Lordship's House for what the noble and learned Lord, Lord Woolf, described as a second-class court of Supreme Courts in the world, subservient to Parliament and having limited jurisdiction?
Only the interests of this Government, who seek to govern without the Constitution and the rule of law, are to be served. That is the hidden agenda. I say nothing about the right honourable gentleman the Home Secretary.
This amendment is supported as a viable means to escape from entrapment and to afford some acceptable resolution such as proposed by the Select Committee, no less, of another place. In the absence of any manifesto commitment to introduce the Bill, it would be in accordance with the acknowledged functions and duties of this House if your Lordships were to delay the passage of the Bill for, say, three months until the report of the Select Committee had been debated, if so advised.
As to the constitutional role, the Lord Chancellor advises the Cabinet as head of the judiciary to protect the rule of law, the integrity of the judicial system and of the judiciary. He represents the judges without ministerial power and, as has been said by the noble and learned Lord, Lord Woolf, the combination of the office of Lord Chancellor with the office of Secretary of State is fundamentally inconsistent.
The noble Lord, Lord Brennan, made reference to Clause 1. The objection to Clause 1 is that there are no effective means of enforcement of any of its provisions to safeguard the rule of law, the integrity of the judicial system and of the judiciary. Under our largely unwritten constitution, the Bill affords a very substantial written contribution. We have no constitutional court. There is no way in which the provisions of Clause 1 may be enforced unless, by statute, jurisdiction were to be conferred on the High Court, on judicial review, or a constitutional court were to be set up with limited competence to enforce Clause 1. The extant system under which the Lord Chancellor advises Cabinet on all such matters works and is wholly understood. Removal of that office leaves a vacuum, which cannot be replaced and assuredly is not replaced by any provisions in the Bill. What is the justification for tinkering with Parliament?
I was going to say a word about the parliamentary role of the Lord Chancellor, his status and authority and symbolic presence as Speaker as affording the irreplaceable safeguard for self-regulation, but my time is up.
My Lords, I would like to make some comments from a Scottish point of view on the implications of what is proposed as a Supreme Court for the United Kingdom. As has often been remarked, the legal systems of England and Scotland are not only different, but they are separate from each other as if they related to two foreign countries. Thus, as the final court of appeal in civil cases the House of Lords functions at times as an English court and at times as a Scottish court.
"there is no principle which I have held more sacred, ever since I had the honour of assisting your Lordships in judicial matters respecting the law of Scotland, than to recollect, and to act upon that recollection, that we are sitting here as the Court of Session in Scotland, to decide as that court ought to decide, and that we are bound not to apply our English principles, and our English doctrines, in judicial decisions upon the law of Scotland".
Now, one might have expected that, in line with the Statement made by the noble and learned Lord the Lord Chancellor and Secretary of State on
But the matter of concern to me goes deeper. It is well known that for centuries, despite what Lord Eldon referred to as the "sacred principle", there has been a tendency for judges in the House of Lords who had an English background to assume that what is right for English law must surely be right for Scots law. That has led from time to time, and especially in the 19th century, to innovations in Scots law which were not in harmony with its own principles.
Under the Bill the jurisdictions of the House of Lords in English and Scottish appeals would be put into a single package and transferred to a unitary court, a court serving two separate legal systems. The amount of law which is identical both north and south of the Border is fairly limited. In any event, its application may lead to different results, depending on the general law of the jurisdiction where the question arises.
My concern is that this proposal, as it is expressed, will mean a gradual erosion of the difference between Scots law and English law. The same point arises in regard to the Supreme Court's involvement with Scots criminal law in dealing with devolution issues. There is nothing in the Bill which states that, in exercising the transferred jurisdictions, the Supreme Court is to respect the continued separate existence and identity of the legal systems of England on the one hand and Scotland on the other. And yet the Bill is concerned with constitutional changes of a fundamental character, presumably intended to last for many a year, long after ministerial assurances have been forgotten.
I can think of no better illustration of what concerns me than to refer to the remarks of the noble and learned Lord, Lord Hope of Craighead, when he gave evidence to the Select Committee on Constitutional Affairs in the other place on
"The problem is, I think, if you describe the court as a supreme court of the United Kingdom, it tends to suggest that there is a body of United Kingdom law. In a court which inevitably is filled with a majority of English judges there may be a temptation to say, 'Well, we see differences between Scots law and English law on issues relating to property or other matters, what's the point of having a difference when we're sitting as a United Kingdom court?' The Scots may well feel that would introduce a drift away from their system of law into an English system, and there are signs in case law, even now, that there is a temptation along that line".
Finally, I add a few words on Clause 1, which would place on Ministers of the Crown a duty to uphold the continued independence of the judiciary. No doubt, this clause refers to the English judiciary, as part of the proposed arrangements to replace the office of the Lord Chancellor. However, it has a rather curious result. A Scottish Minister, being a Minister of the Crown, would have a duty to uphold the independence of the English judges, if he were involved in English proceedings. I ask for equality of treatment. If this clause is worth something, why should Scottish Ministers not have a duty to uphold the independence of Scottish judges?
My Lords, at the risk of being regarded as—and criticised by the noble and learned Lord, Lord Lloyd of Berwick, for being—a constitutional purist, I offer the Government my full support of the basic principles of this Bill, in particular for the establishment of a Supreme Court as a further step in a welcome separation of powers. The establishment of a Supreme Court, and the separation of powers that it will embody, is rather overdue, for reasons that I will seek to explain.
Over the past generation, we have seen the emergence of a more complex idea of political accountability compared with what previously obtained. The growth of judicial review, with its judgments on the legality, rationality, fairness, and proportionality of the exercise of powers by the executive and its various administrative arms and agencies has led to a dual form of executive accountability. The first is to Parliament, for the executive's general legislative and policy programme, and secondly to the courts, through judicial review, for the exercise of the powers conferred under such legislation and in pursuit of such policies. This process has been considerably enhanced by the passing of the Human Rights Act.
In the view of some judges, this process has led to a more complex and dynamic account of the nature of sovereignty. In 1991, the noble and learned Lord, Lord Bridge of Harwich, argued that:
"In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making law and the sovereignty of the Queen's courts in interpreting and applying the law".
That is in the case of Morgan Grampian (Publishers) Ltd. The same point is to be found in Lord Justice Sedley's argument in his essay, "The Common Law and the Constitution". In that essay, Sedley argues that it is in Parliament and the courts that the sovereignties of the state reside—note the plural in respect of sovereignties. He repeated the argument in an article in Public Law, where he says that the pure idea of parliamentary sovereignty is giving way to a bipolar sovereignty of the Crown in Parliament and the Crown in the courts, to each of which the Crown's Ministers are answerable—politically to Parliament, and legally to the courts. Not dissimilar points have been made by the noble and learned Lords, Lord Steyn and Lord Hoffmann, in cases involving the Home Secretary. The argument has been endorsed by many senior academic commentators on public and constitutional law.
It is certainly arguable now that judicial review and the Human Rights Act have led judges to believe that it is part of the remit of the courts to utilise and invoke ideas of constitutional rights as a constraint on the pure exercise of parliamentary sovereignty and a parliamentary majority, thus leading to the dual accountability, or dual sovereignty, view. I am sure that we shall see arguments that exactly mirror these points being deployed in the debate on the asylum Bill next Monday. If this is a fair picture of how the constitution is developing—I believe that it is—it has obvious implications for the separation of powers. I strongly welcome the development of judicial review and the processes by which, according to the noble and learned Lord, Lord Steyn, we are "edging towards a constitutional state". But if the judges have the opportunity to hold Government to account in judicial review for its exercise of powers, it seems to me to be entirely wrong that they should be part of the legislature. If judges were to remain in Parliament, this would be a form of double counting, giving judicial judgment a double place—in the legislature on the one hand and in the courts on the other. To coin a phrase much used in judicial review, such double counting would be procedurally unfair. By all means, let the judges be very active in judicial review—I welcome that. But they should not expect to stay in the legislature as well if we are moving to this bipolar form of sovereignty.
The Lord Chief Justice is something of a judicial icon to me since his report on the Strangeways riots, which I had to deal with in 1992 when I was a Home Affairs spokesman for my party. The Lord Chief Justice is a most distinguished alumnus of University College, London, whose presiding genius was Jeremy Bentham. He and his colleagues should recall Bentham's profoundly democratic principle that in a democracy, each one should count for one and not more than one. I do not think there is a case for judges having a double voice.
To retain judges in the legislature while they embark on what, to me, is an entirely legitimate form of vigorous judicial review, would be to give the judiciary a uniquely privileged position in the constitution, and I, for one, can see no reason at all for this. This will become even clearer if judges threaten to use ideas about basic constitutional rights such as access to the courts to challenge the asylum Bill, for example, both in Parliament and subsequently in the courts. That gives them a status that is denied to every other citizen, and I respectfully submit that this would be wrong. The fact that I rather agree with what the Lord Chief Justice has said about the asylum Bill does not alter the fact that judges should not have the power to challenge such a Bill both in Parliament and in the courts. I do not think that the judges can stand on secure ground in claiming to be defenders of basic constitutional and democratic rights while at the same time claiming two voices for themselves.
Of course it might be said—and it has been said—that judges in the House of Lords should take a vow of silence and inaction in respect of the legislative function of the House of Lords, but then one has to ask the question of why they need to be here at all. The answer has been given that they will learn something about real life by being Members of the House of Lords. Devoted as I am to the ethos of the House of Lords and to its many great virtues, I am sure that if judges lead such cloistered lives, there are more direct ways of finding out about real life than being Members of the House of Lords.
Finally, I have to confess some sympathy for the idea that this proposal could have been made in a more considered way than it was. Indeed, this is true of a good deal of the Government's constitutional legislation, where we still have to see the overall picture. It seems that the position of the Government is akin to that taken by Cardinal Newman in "Lead, Kindly Light",
"I do ask to see
The distant scene,—one step enough for me".
Well, as an academic philosopher, I am rather attracted to the distant scene. But we are where we are, and for the reasons that I have given, so far as I am concerned, the step proposed in this Bill is good enough for me.
My Lords, I suppose that this must be one of the most important Bills which your Lordships have ever discussed. It is not just the alteration or even the reform of the constitution—it is the carving up of it.
Some of the details of the Bill are hugely complicated and will be mostly understood only by lawyers or bureaucrats or such other esoteric folk, not by simpletons like me. I am quite content with that. I am much more concerned about what is happening with the down-to-earth stuff. What is happening to our country, and what is happening to your Lordships' House? The present Government, in their charmingly friendly way, decreed in 1999 that they were going to get rid of all hereditary Peers—gone, finished, vaporised. I thought then, and I still do, that that was a tough and misguided action, despite the fact that those hereditary Peers who are left are the only Members of your Lordships' House who happen to have been elected.
The hereditary Peers have become an endangered species, but we are not alone. Now the Law Lords are to be thrown out. We look across and up to those noble and learned Lords, and say, "Et tu, Brute? Going too?" And it is not only the Law Lords but the Bishops as well. They do not appear in the Bill but, apparently, so rumour has it, they are going to be reduced from 26 to 15. What have those poor chaps done to deserve that?
The final coup de grance is that the noble and learned Lord the Lord Chancellor, like some kamikaze Japanese pilot, decides to commit hara-kiri and destroy not only himself but the machine in which he sits. What on earth has come over the Government? What is so wrong with the House of Lords? What is so wrong with the lawyers and judges that they have to be upheaved in this manner? Why do we have to despise and destroy so much of what is good about this country?
We have always said that the British system of justice is the best in the world, and so it is. I have never experienced it at first hand, but I am quite happy to believe that it is. The judges and Law Lords are deeply respected, always, but they are respected because of the manner in which they and their predecessors have conducted themselves. Like a wall, confidence is built up, brick by brick, but it can be knocked down in one blow. But now they are not going to be allowed to sit in your Lordships' House, or even to participate in our affairs. That is a tragedy; they are always listened to with respect and admiration, especially when they do not agree.
The Law Lords contribute hugely to the formative process by which raw Bills are turned into reasonable laws. The noble and learned Lord, Lord McCluskey, referred to the Scotland Bill of the mid-1970s, and listed all those noble and learned Lords who took part—and very impressive it was, too. I remember that I was supposed to be in charge of the team opposing the Bill, which I found a most scary business, particularly with the noble and learned Lord, Lord McCluskey, opposite, acting for the government. I am glad to say that the Bill failed, although not because of my efforts.
The noble Lord, Lord Carter, said that he was convinced that Law Lords should not speak in the House. I regarded that as pretty offensive. Who would he prefer to listen to—more pedestrian noble Lords, such as myself? I regard that as a compliment in vacuo, but I believe that the noble Lord was wrong.
When I had the privilege of being a Minister in the Home Office and we had some frantic piece of legislation to try to weave through your Lordships' House, we waited with bated breath to see what the Law Lords were going to say. If the Lord Chief Justice was on our side, there was a great feeling of hooray! If he was against us, one was terrified and thought, "My goodness, perhaps we've got it wrong". That applied to all the other Law Lords. It was not a matter of the Lord Chief Justice or the other Law Lords transposing themselves from being judges to becoming legislators or law-makers. They were merely giving their advice to Parliament on the proposals before it, with all those years of experience of legal life in the rough and tumble of the real world behind them. I do not see anything wrong with that. It was valuable advice; it always was and always is. That advice is now to be denied to Parliament. Does the noble and learned Lord the Lord Chancellor really believe that Parliament will be the richer and the better for that? Why do we need to throw the Lords of Appeal out of Parliament and out of the physical premises of the House of Lords?
I was impressed by the remark of the noble and learned Lord, Lord Lloyd of Berwick, who said that the cost of running the Appellate Committee in the House of Lords was £168,000. The cost of running the equivalent committee in its new premises is going to be not £168,000 but £6.5 million. The cost of moving premises is likely to be anything between £6 million and £32 million. Should this not be considered? Is this really desirable? I found it extraordinary that the noble Baroness, Lady Jay of Paddington, and the noble Lord, Lord Desai, said that cost should not matter, that that is not the way in which one justifies constitutional matters. I consider regarding costs and the constitution in this manner as pretty flippant. It does matter. What is the advantage of finding new and hugely expensive premises, which will have to be of a manner and character suitable to reflect the solemnity and the importance of the court?
When one thinks of those who are made life Peers—and all life Peers are jolly fellows and very good ones—why should that preferment to nobility be denied to those who have arrived at the pinnacle of such a distinguished and respected profession? Why is it necessary to change the method of appointment of judges? I know that we hear all about the necessity to keep the judiciary separate from politics and all that jazz. The continued independence of the judiciary is the familiar theme. We have heard it stacks of times today. We are constantly told of the importance of ensuring that the system is pristine clear. Listening to the noble and learned Lord the Lord Chief Justice last week, it did not seem to me to indicate that there was any particular inhibition or lack of independence there under the present system—I am bound to say that when I heard him today I began to wonder a little.
But is the present system not pristine clear now? Do those kinds of somewhat supercilious remarks imply that because this new system is not in place, those who have been appointed judges have been appointed by a less good and a more suspect system and that they are therefore somehow less good and more suspect? I have always had a deep admiration for the judges and I see no justification whatever, despite the niceties of the intellectual arguments, for imposing a new system in order to make them better.
I was appalled when the noble and learned Lord the Lord Chief Justice said that we cannot go back to before June 12. Why not? If this is so, it means that the action that the Government then took was so precipitate that it cannot be reversed or revised. It is a devastating indictment of what the Government can do, or just say, and then get away with it. If that is so, it is the Government who have got us into this muddle. It ought to be appropriate for it to be considered.
One does wonder why the Government want your Lordships to be a check on government. They always say that the second Chamber must be a good check on the executive. But whenever we mention this in a whisper, howls come from the Government saying that it is absolutely disgraceful, we should not do it, it is absolutely wrong and we shall never have any new Bills in the House of Lords again. I agree with my noble friend Lord Crickhowell. That is a lot of old nonsense. The Government could not manage if they did not produce new Bills in the House of Lords. I do not believe that these threats ought to be taken seriously.
I wonder why we, so often called the "clever people", wring our hands and minds to pieces in order to try to improve what we have when other countries look at our system in wonder, admiration and envy of what we do and the way that we do it. Other countries, particularly new ones, wondering how to create their new country, look at the United Kingdom and marvel at its institutions, its history and its dignities and say, "this is our model". Yet we, who created it and have it, seem to be intent on destroying it.
I remember that, in 1959, there were problems with the Central African Federation and the Conservative government of the day set up the Devlin Commission to look into it. The commission consisted of some of the country's most brilliant people, such as Lord Devlin, Sir Walter Monckton and other what one might call brilliant "eggheads". It produced a report which the government did not like, the opposition despised and the Central African Federation could not stand. When the Devlin report was debated in your Lordships' House, the late Lord Coleraine—and here I paraphrase his words—said, "Why is it that only the most intelligent people can come to such stupid conclusions?" I wonder whether that does not ring a bell 40 years later.
What are the Government trying to do? They are getting rid of the hereditary Peers. They are getting rid of the Law Lords. They are getting rid of the bishops. They are getting rid of the Lord Chancellor—who is, after all, the Keeper of the Queen's Conscience and Keeper of the Great Seal. One gathers that the Queen was never consulted about this. The monarch has a right to be consulted, a right to encourage, and a right to warn. But how can Her Majesty exercise those last two rights if the first one was denied her? Why is all this being done? "Modernisation", we are told. This is not modernisation; it is destruction. It is, in effect, a virtual rape of the constitution.
The late Lord Fisher, Archbishop of Canterbury, said that there is no unreasonable argument which cannot be proved reasonable by reason. The noble and learned Lord the Lord Chancellor is a very agreeable fellow with friends all the way around the House. It just saddens me that, despite all his many virtues, his name will be for ever linked with and sullied by this destruction. However, it is not over. There is still time for him to retrieve some of the position—provided that he is prepared to listen to others who are just as concerned about the future and the constitution as is he, even though their approaches and views may come from a different angle.
My Lords, although your Lordships will long have forgotten it, I am bound to confess that I did make some timid and deferential submissions on
First, I submit that my noble and learned friend's amendment is not a wrecking amendment; it is consistent with the Government's desire for pre-legislative consideration. It is quite clear that the carryover procedure will apply and the Bill can still be passed in the Lords, appropriately amended as a result of the committee's intervention.
Before referring to the Bill, I have one preliminary observation. The noble and learned Lord, Lord Hoffmann, in the February debate, was seeking an explanation for why not only was the Lord Chancellor sacked, but the office of Lord Chancellor was, it was thought, abolished at the same time. He said:
"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".—[Official Report, 12/2/04; col. 1259.]
I suggest that that overcomplicates the position. The short answer was that if a Lord Chancellor worth his salt—and that is not meant to be offensive to the noble and learned Lord the Lord Chancellor, because he is worth his salt as Secretary of State—was appointed to replace the Lord Chancellor who was so unceremoniously dismissed, then exactly the same would happen on the next occasion when a Home Secretary produced his Schedule 17 to the Criminal Justice Act, doubling sentences for murder because he was enraged at losing his power to decide how long one would stay in prison. There would be a row with that Lord Chancellor. There would be a row with the next Lord Chancellor over his insistence that jury trials should not take place in the circumstances of the domestic violence Bill. As regards the ouster provisions, one cannot envisage a Lord Chancellor who is worth his salt doing other than stand up against that situation.
As regards the Bill, I submit that Clause 1 only seeks to uphold the independence of the judiciary. Towards the end of the July debate the noble and learned Lord the Lord Chancellor accepted that his function was to uphold not only the independence of the judiciary but the rule of law. Those two matters were vital. That is not in this Bill. If it were, out would go, if I am allowed the pun, the ouster clause. Further, in the Bill the Secretary of State "must have regard to". That phrase imposes only the obligation to consider; it does not impose the obligation actually to act.
My next point concerns the way in which the whole of Clause 1 should be set out. Up to date, the Lord Chancellor would have accepted the observation of Sir Thomas Fuller, the 17th century Attorney-General, who said,
"Be you ever so high, the law is above you".
That is something which Lord Denning accepted and used in the well known Gouriet case in 1977. It has been pointed out by Justice that the terms of the South African constitution are much more appropriate. It reads:
"Organs of state through legislative and other measures, must consist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts."
In the debate in February, the Lord Chancellor said that it was the Government's desire,
"to protect and indeed enhance judicial independence".—[Official Report, 12/2/04; col. 1213.]
In those circumstances the words used in South Africa would be much more appropriate.
The next point I wish to make, which should be considered by the Select Committee is that statutory recognition should be given to the Judges' Council. It has no statutory support at all. If one gave that statutory recognition then there should be a parliamentary joint committee to consider and report on the independence, impartiality, dignity, accessibility and effectiveness of the courts. It should receive annual reports from the Secretary of State and the Lord Chief Justice.
It is clearly wrong that the Secretary of State should have to agree to any disciplinary action which the Lord Chief Justice thought was appropriate. That is a function for the judiciary alone. Maybe it is necessary to inform the Secretary of State but nothing beyond that should be necessary.
With regard to the Supreme Court, the Select Committee should consider a number of points. First, who is to pay for its building and general maintenance? Surely not the litigant, since the function of the court is to develop the law and not to be concerned with the inter-parties dispute. Secondly, why has no provision been made in the Bill suspending the operation of the Supreme Court until appropriate accommodation has been found? Thirdly, why has no cost-benefit analysis been made? The likely denouement, which is deeply depressing, is that, as the Bill stands, the Supreme Court will be set up when there is no accommodation. There will be a period of wait during which one hopes that money may be spent on the Commercial Court since it is a disgrace in its present state. Then, the period having become embarrassing, the Government will say, "Well, as a purely interim and temporary measure, there is a pensions appeal tribunal that is no longer necessary. It has a floor in some office block. As an interim measure"—note the emphasis on "interim measure"—"we are sorry but you must go there". That interim measure will then last for decades and follow the situation of the prefabs. That would be an appalling situation but one which one can easily see happening.
My Lords, many erudite speakers have already made contributions today. If the House will forgive me, I point out that an awful lot of them seemed to be lawyers. As a person who is very definitely not a lawyer I wish to make clear that I stand with my noble friend Lady Jay of Paddington and the noble Earl, Lord Ferrers, in claiming the right of non-lawyers to make a contribution.
As a result I very much disagree with the comment of the noble and learned Lord, Lord Lloyd of Berwick, who, when pointing out that Part 3 had had scrutiny from the Lord Chief Justice and the Law Lords, added, "and what better scrutiny could there be?" Indeed, the view that this section should now go forward is gaining ground—at least in speeches made here today—at least among lawyers. But surely it is for Parliament to scrutinise, and that means for this House to scrutinise all of this Bill in its normal way with its normal procedures. It is not acceptable that we should somehow subcontract scrutiny to lawyers to do so on our behalf.
The scope of the constitutional changes that this Government have already made has been great—sustained reform, improvement and modernisation of the constitution—and this Bill takes that process further. But every time I hear talk of the many hundreds of years of our institutions' existence I ask whether they are fit for purpose in the 21st century. I am not talking about change for the sake of change, but necessary change, and that is very much what this Bill is about.
The Bill would establish a Supreme Court. It may not matter particularly to Members of this House but the fact remains that there is not a clear understanding of the role of the House of Lords Appellate Committee. I hesitate to say that the man on the Clapham omnibus does not understand the difference between "them"—the Appellate Committee—and "us"—the House of Lords. That is not helped by the fact that they—members of the Appellate Committee—are us as well, albeit in slightly narrow circumstances.
There has been much support from many quarters for a Supreme Court and I do not believe that the view expressed earlier holds much ground—that it is right to dismiss those in favour of it, in one of the nicest pieces of spin that I have heard in a long time, as constitutional purists, while those who oppose it are called realists. Good arguments are often explained away by a speaker's confident assertion that he is a realist.
One particular advantage of the appearance of the Supreme Court is that we will be able deal with any problems that arise over the devolution settlement without recourse to the Judicial Committee of the Privy Council. I am sorry if one or two speakers—I am about to be added to the list—have told anecdotes about devolution. But one of the first appearances of which I was aware of the Judicial Committee was in the 1978 Act. Because it was there, and no one thought of anything better, it appeared in the latest settlement. The committee was described by one official, when we were seeking guidance on what it was, as a sort of constitutional long stop. Whether there is much advantage in officials using cricketing metaphors to a number of puzzled Scots is one matter, but the Judicial Committee of the Privy Council is very much a committee of this House and, as such, it has always been inappropriate for it to have to sit in judgment between the UK Parliament and Government on one hand and the devolved institutions on the other. The Supreme Court will rightly put that right.
The setting up of the independent Judicial Appointments Commission has already been a matter of great controversy in this debate. As an outside observer, I shall limit myself to two points. First, openness and transparency in appointments ought to be at the heart of a system if it is to hold the full trust of the nation. It is no criticism of judges to say that the system of appointments so far has been lacking in that regard—and that is exactly what the Bill will provide. I cannot see a case against having openness and clarity in the process of appointment.
Diversity is one of the great concerns that the Judicial Appointments Commission will have to address. I underestimate neither the importance nor the difficulty of that, but I trust that the Judicial Appointments Commission will show more imagination in that task than was shown in the issue of "peoples' Peers"—and let us not hear that candidates were excluded because they would not have fitted in comfortably. The task is likely to be formidable and I am pleased that someone as distinguished and capable as Dame Rennie Fritchie is taking it on.
The final matter upon which I wish to comment is the amendment before us. I can understand my noble friend the Government Chief Whip's sense of frustration at what might now occur. Any sensible management of our business needs major Bills to start their passage here. It is not just a matter of Bills starting here; they must also be major ones. That has always been opposed by another place precisely because the Parliament Act could not then be introduced. If this Bill had been introduced in another place the present position would not have arisen and the tabling of the amendment plays fast and loose with the arrangements between the two Houses. The consequences for this—not least for this House—seem profound and, frankly, ill considered.
Many expert opinions have been expressed today, but if we end up in the situation, described by the noble Lord, Lord Lester of Herne Hill, as an impasse and the worst of all possible worlds, because the Official Opposition are not prepared to admit that the world has moved on since July last year, we will have ourselves and this House to blame. Also, we will have put this House in the worst possible light as far as the other place is concerned. I much agree with the noble Lord, Lord Marsh, who speaks with real authority when he describes what the other place and all parties in it think about this House.
Voting for the amendment in those circumstances would be a grave error. I do not believe, for all the great skills and knowledge that many have brought to the debate, that those who vote for the amendment could be accused of bringing to the debate anything very much in the way of good judgment.
My Lords, I, too, am among those who spoke on
I heard him on the "Today" programme. As ever, I marvelled that he was so nimble at that early hour. But when he came to explain why he would be objecting to the amendment to refer this Bill to a Select Committee, he was not nimble enough. What he said—and he said it more than once—was that one had to remember what happened to the Hare Coursing Bill of 1975. He said that after Second Reading that Bill went to a Select Committee—and indeed it did, at the instigation of my noble friend Lord Denham, as it happens. He said that it never came back. He said that more than once in tones as nearly sepulchral as the noble and learned Lord can manage. One might have supposed that the Bill had somehow tumbled into some unfathomed crevasse—a victim of the inscrutable workings of Providence—from which it had proved impossible to extricate, no matter how diligent the efforts of the Ministers responsible. But it did not happen like that.
What happened was that the Select Committee, which was directed to report within four months, gave that Bill the careful examination that it was directed to give it. At the end it came back and reported to the House that in its view the Bill ought not to proceed. Why? Because it was:
"not a suitable instrument for the reduction of the suffering of hares".
It went on to say, as a result of its deliberations, that:
"Action should be taken by those concerned to examine further current coursing practice and legislation for the protection of wild animals".
I am indebted to the Library staff for this research, but I have looked at the Official Report and it is true.
Your Lordships would be sorry to think that the objection of the noble and learned Lord the Lord Chancellor to committing this Bill lies in a fear that a Select Committee would report that this Bill too was an unsuitable instrument for sustaining the independence of the judges, or, for that matter, the effectiveness of our court of final appeal. Your Lordships might be driven to that conclusion unless tonight the noble and learned Lord the Lord Chancellor is able to suggest another reason why the Hare Coursing Bill is a precedent at all costs to be avoided. It is hard to see at present why what was appropriate for a manifesto Bill—to outlaw and make criminal the hunting of the humble hare—is not somehow appropriate for a Bill tonight, about which the manifesto was entirely silent, and yet which wrenches—
My Lords, that is correct because the Bill, which was introduced by the Government in the Session 1974–75, failed to progress after Second Reading. In the next Session, on a proposition of the Conservative Opposition to a Labour Government Bill, it was sent to a Select Committee which recommended that the Bill should not proceed, and it did not. That is the only example of a government Bill in the last 30 or 40 years which has gone to a Select Committee. That is why the example was chosen.
My Lords, that is entirely consistent with what I somewhat more succinctly had endeavoured to say. It is very hard to see why what was appropriate then, albeit at the second Second Reading of that Bill—a Bill which was a manifesto Bill, possibly not a flagship one—is not appropriate for this Bill which wrenches our constitutional arrangements about in so violent and so controversial a manner.
The noble Lord, Lord Carter, told us that under our rules, if the Bill went to a Select Committee and if it were to report that it should not proceed, it would have to stay on the list until the end of the Session. But with the greatest respect and diffidence, I suggest that the Government are the masters of their own intentions and the House the master of its own rules. If the Government wanted the Bill to be brought back and recommitted to a Committee of the Whole House, they could perfectly well do so. I do not believe that there is any procedural reason why this would be impossible and, in any event, if they ran out of time the new carry-over rules would permit the Bill to be saved.
I want only to advert to one final matter. It derives from the almost frivolous removal of the Lord Chancellor from the scene and, more particularly, from the Cabinet. Although all institutions are mortal and therefore liable to be inconsistent, Lord Chancellors stood up in Cabinet for the rule of law and for the independence and unfettered functioning of the judiciary when these were threatened by their more enthusiastic colleagues. Lord Chancellors were a formidable and effective influence and force. But now look at Clause 11 of the latest asylum Bill.
After the unprecedented thunderbolt hurled by the noble and learned Lord the Lord Chief Justice on behalf of the judiciary, it would be idle for me to attempt to add to the denunciation that your Lordships have already heard. I find it impossible to believe that any "pre-6/12" Lord Chancellor—I might well have said any "proper" Lord Chancellor—would ever have stomached such a measure. And I do not believe that the noble and learned Lord, Lord Irvine, did, although I have not discussed it with him.
This is not Cicero's Rome. Even amid the clash of arms, the laws are not silent, as a great Law Lord once remarked to the discomfiture of the wartime government. Yet the silencing of the judges is what Clause 1l of the asylum Bill is about. I believe that the asylum Bill has served us with a warning of what we can expect. We have in the amendment our opportunity for wiser counsels to be developed and to take root. A safeguard, if not a remedy, is at hand tonight and we should seize it.
My Lords, an issue of principle is at stake tonight. It is of more importance than any particular provision in this 212-page Bill. It can be characterised as being, on the one side, a clash between normal parliamentary procedures—the noble Lord, Lord Carter, spoke clearly on that—and the objections of the Government Benches to the notion of the Lloyd amendment being carried and, on the other side, a sense of rejection of the exceptional circumstances attending the bringing forward of the Bill.
By that I refer to the fact that it appeared out of thin air. Talk about a flagship Bill—it was more like a ghost ship Bill! It arrived one day in June without consultation or mention to the judges affected. It was followed by a consultation process which offered only two options: the status quo or what the Government had already decided. As everyone who has spoken agrees—and as even those who support the Bill accept—that is no way to legislate major constitutional change. The fact that we do not have a written constitution speaks ever more loudly in support of clinging on to whatever conventions we have in that regard.
One of the influences on me today—I cannot say that I came here with a closed or clear mind—is the political pressure being put upon this House from the other place. Perhaps I can read what was written in today's Times following an interview with Mr Peter Hain, who is reported as saying:
"What peers are proposing is completely undemocratic. We cannot allow it to happen. Peers are being incited by Michael Howard and his lieutenants to overturn the will of the elected chamber".
I wonder what he is talking about; what will of the elected Chamber? The elected Chamber has not considered any of these matters, neither in theory nor reality. What pressure? I do not know about the noble Lords on the Conservative Benches, but I do not see them quaking in their shoes at whatever pressure has been exerted by Michael Howard, if any. The truth of the matter is that Peter Hain appears to be spoiling for a fight. I do not believe that we should rise to the bait or withdraw from what appears to be our clear duty to deal with a profoundly important constitutional Bill in the manner that we believe is most appropriate and which will yield the best reform that our common wits can achieve.
I believe that everyone accepts that the independence of the judiciary and the integrity of the rule of law are the key criteria by which this measure should be judged. We accept the absolutely invaluable pricelessness of an independent judiciary and of a rule of law that, by and large, in this country still maintains its integrity.
There is the notion that introducing a single clause into this long Bill, stating as a matter of law that there must be maintenance of the integrity of the judiciary, somehow does the trick, or that the means by which this country has proceeded hitherto, mainly on the grounds of custom, tradition and common values, should be jettisoned in favour of a single, simple statutory measure. If that were the yardstick of effective protection of judicial independence, one may wonder why many countries, awash with such constitutional and statutory protections, fail to acquire that priceless independence and integrity that we enjoy. Does anyone pretend that in Italy, for example, the massive amount of statutory and legislative protection for judges achieves its purpose? Germany in the 1930s had a constitution and a system of law that was all the things that ours apparently failed to provide, but I do not believe that there is any doubt about their ineffectiveness.
I shall say a word about the Lord Chancellor and why I believe that his presence in Cabinet is integral to the maintenance and continuance of that precious independence and integrity. In response to the point made several times by the noble and learned Lord, Lord Falconer, the burden that rested upon the Lord Chancellor immediately prior to the June announcement was largely of the Government's making. Since the Government came to power in 1997 there has been a rapid accretion of responsibilities and powers on the shoulders of the Lord Chancellor. One way of resolving that matter would be to shed most of those added powers, as indeed has been anticipated by the creation of the Department for Constitutional Affairs. I am still not persuaded, as I believe many noble Lords are unpersuaded, that having created that department there is a need to abandon the Lord Chancellorship and all that goes therewith.
That is especially the case, as the noble Baroness, Lady Kennedy of The Shaws, made very explicit during the debate that we had on
I turn lastly to the question of evidence. If ever the old adage "If it ain't broke, don't fix it" was justified it is with regard to judicial integrity and independence. Those are elusive qualities. I rather favour, unlike my noble friend Lord Maclennan, the notion of the mysticism around those commodities. The absolute absence of any compelling evidence as to the insufficiency of independence or the lack of integrity makes the proposals in this Bill simply unacceptable. As the Lord Chief Justice said, if the need for a judicial appointments commission is pressing in the wake of what has already happened, then we can legislate for that quickly and effectively.
Of course there are aspects of the Bill that many of us would be willing to accept, with sensible amendments. However, the manner in which this reform has been brought forward and the absence of due process, which is often as important as the substance of reform, make the present position untenable. The sort of open-minded consensual consultation that would be involved in setting up a Select Committee in accordance with the proposals of the noble and learned Lord, Lord Lloyd of Berwick, would be sensible, constructive, in the best traditions of this House and would represent the best discharge of the duty that rests upon us.
My Lords, I begin with an apology that I have already addressed to the Lord Chancellor. Unfortunately I had to be in court this afternoon and I missed the first six speeches. I hope nevertheless that your lordships will hear me.
I want to confine myself to one topic—the case or absence of a case for the creation of a new Supreme Court and the eviction of the Law Lords from the House of Lords. I believe that that case has not been made in the very slightest degree. Those who espouse the Supreme Court base their case on an article of faith; namely, a belief that judging, legislating and creating or implementing social policy are different activities. I do not believe that that is true any more. I believe that the role of the courts and of the judges has changed fundamentally during the past 50 years or so.
I shall deal briefly with the causes of that phenomenon. The most modern cause is the Human Rights Act 1998. In the mid-70s, there was the introduction of judicial review, which opened up a vast field of government and local authority decision making for review by the courts. Finally, there was a change in attitude by the judges themselves, beginning probably with the great career of Lord Denning. Judges are now every day involved in highly political issues—social issues, life and death issues. Fifty years ago, who would have thought of a case such as the one that reached the House of Lords concerning whether or not a life-support machine could or could not be turned off? Those are the types of issues that are reaching the highest courts. The House of Lords naturally gets the most difficult and toughest cases.
Another factor is involved, which I have not heard mentioned so far. That is that the Law Lords are no longer bound, and have not been since the mid-1960s, by their own decisions. The doctrine of precedent does not apply in the House of Lords. I can give numerous examples of occasions when they have exercised this power or wondered whether they should do so.
A recent example concerned a minor part of the law—whether exemplary damages can be awarded for particularly outrageous conduct by the defendant. In a recent case, the House of Lords indicated clearly that, not being bound by precedent, it was open to them to go in either of two directions. One Law Lord in particular wanted to strike down the whole doctrine, believing that damages are compensation and so cannot be exemplary or act as punishment. Others indicated a different view and wanted to free themselves from a 1964 precedent of the House of Lords, which incidentally has been widely ignored by the Commonwealth, which lays down restrictive rules for when exemplary damages are applicable. I take that as a random example. In some instances—I do not say in every case—the House of Lords exercises a power which is, in effect, legislative; that is, it departs from the law as it was recently laid down.
I move on from the general consideration that the whole argument in favour of a Supreme Court is based on fallacious thinking and turn to the more practical considerations, which are: what is the effect and what is lost? In eloquent speeches made in February and on occasion in this debate, the Law Lords have, for the most part, expressed the view that being Members of this House puts them in a unique and special position—to be au fait with current ideas and to meet people who are not professional lawyers. The virtue of this Chamber is that it is not dominated by lawyers. Although there are many lawyers here—I have heard complaints that there are too many—other kinds of life go on here. From that point of view, the idea of taking away the Law Lords and placing them in a Supreme Court or an ivory tower, if it is ever built, is very bad. I believe that they have a very good time by being present in this House and by making use of the facilities. If the facilities are poor, let us improve them.
It seems to me that the loss to the House is perfectly obvious: we would lose their presence. They participate in key debates. As a recent example, I think of the noble and learned Lord the Lord Chief Justice talking about the Criminal Justice Bill. It is a tremendous privilege for this House to hear directly from the head of the judiciary what is good. He considered most of it to be fairly good but there were some bad parts and he exposed those in very clear terms. There is no way that the same effect could be achieved by having him appear as a witness in front of a committee of the House of Lords. Here, as a Member, he speaks and we listen and take note. His is a very important role.
Another role to which I attach importance is that of a Law Lord acting as chairman of a committee. The one on which I am privileged to serve is the scrutiny committee for European legislation, now chaired by the noble and learned Lord, Lord Scott of Foscote. He comes to this House and presents the committee report in a manner which I consider to carry more conviction and be superior when compared with any of the more humble members of the committee. I know that that is not a universally shared opinion—I do not refer to the noble and learned Lord, Lord Scott, but speak in general terms. However, I believe that it is a great advantage for the Law Lords to chair important committees.
What about the public? It seems to me that the public will lose the benefit of the Law Lords being present in part of the legislature. What shall we gain? I believe that we shall only achieve a look-alike. Some agonised consciences will have a healing balm applied to them but, beyond that, we shall be able to say to ourselves only that we now look rather like several other countries in Europe. One thinks of the old historical argument: if you were starting from here, you would not take the House of Lords as your model.
I want to ask another more fundamental question. What do the Government conceive to be the role of the judges? Are they to be cut off from high political debate and issues? And what about the great rows which must be resolved by appointing a Law Lord as chairman? I go back to Lord Wilberforce, whose name has been mentioned. He decided two disputes which baffled everyone: the electricians' strike; and he solved the miners' strike in the space of, I believe, five days from being appointed to producing a report. That was an incredible feat. As he recorded in an autobiographical note, he suffered the severe punishment of being cut dead by a mandarin in the Athenaeum. But he was the only person in the country who was capable of solving that strike, and solve it he did.
If one believed in the separation of powers, the last thing one would do would be to appoint a Law Lord to head a highly political, sensitive public inquiry. What did this Government do? In July—noble Lords will already have guessed the answer—a mere six weeks after
I think it is right that judges should be used—as they have been used in the past—for that sort of function. The Law Lords will be available in due course to discharge that role, and the best possible home for them—the best possible training ground for the difficult jobs that they have to do—is right here in this House.
I will not go on to the practical difficulties about the new building. There are two certainties and one probability. The certainties are that there will be an overrun on cash and an overrun on time—the building will be late. The probability is that it will be ugly.
My Lords, I had the opportunity of addressing your Lordships on
The Government have not made out a convincing practical, pragmatic case—as distinct from a theoretical one—for setting up a new Supreme Court of the United Kingdom and removing or tidying away the Law Lords from the legislature.
My noble and learned friend says that the presence of the Law Lords in this House causes confusion, which has led to the Law Lords themselves issuing a self-denying ordinance indicating circumstances when they may and may not speak in debate.
That speech, given by the noble and learned Lord, Lord Bingham of Cornhill, in 2000, helps make it unnecessary to remove the Law Lords from the legislature entirely, and thereby deprive the House of their occasional but invariably pertinent participation in our proceedings. As for confusion, surely once it is understood that the judicial work of this House is done exclusively by judicially qualified Members, and that no lay Peer has taken part in that work since some remote date in the 19th century, there can be no confusion.
Let us remember the plus points of the highest court in the land being the House of Lords. It is—if Members of the Judicial Bench do not mind me using a somewhat crude commercial phrase—a splendid brand name. It is a brand name that is appreciated and respected; it is the "bastion of legal excellence", to use the phrase of the noble and learned Lord the Lord Chancellor; and, especially, it is of great value throughout the common law world where its decisions are persuasive precedents. There is no confusion throughout the common law world by what is meant by the House of Lords and its judicial decisions.
I have not heard anybody here today say that the Law Lords are not now independent in the way in which they do their work and engage in their decision making. They are independent from the executive and the legislature. Everybody understands that.
The difficulty that the noble and learned Lord, Lord Nicholls of Birkenhead, pointed out on
The Lord Chancellor's office has been headed by a senior lawyer who, until last year at any rate, enjoyed a very senior prominent position in Cabinet continuing the tradition of having a particular responsibility both in Cabinet and elsewhere for upholding the independence and integrity of the judges and the rule of law. That has not been denied in our debates either today or on
The present Government envisage, and have openly said, that the Secretary of State for Constitutional Affairs should be of no particular seniority in Cabinet and need not be a lawyer. To my mind, both of those matters are retrograde steps in our constitutional arrangements.
I said that I would be short. I have concentrated on those parts of the Bill with which I have a strong disagreement. I like the parts dealing with judicial appointments, although there are matters of detailed criticism not appropriate for a Second Reading debate.
My Lords, this debate has focused primarily on what happens to justice when the Law Lords arrive in the Supreme Court. That is important, but equally important, in my view, is what happens to Parliament when the Law Lords leave this House.
It is the function of Parliament to control the executive. As the power of the executive in the other place increases, so the function of this place becomes more important, regardless of how it is composed or changed in future.
The Bill will reduce the quality of the work in this House by cutting off a stream of experience, wisdom and authority that has flowed into it not only since 1876 but in one form or another for nearly 700 years. The noble and learned Lord, Lord McCluskey, asked us to remember what happened on the Police and Criminal Evidence Bill when the noble and learned Lord, Lord Scarman, persuaded your Lordships twice to defeat the Government. I shall not forget that because I was the Minister in charge of the Bill and I had to explain to Lord Whitelaw what had happened. It was a significant example of the improvement of legislation against the Government in power at the behest of a Law Lord.
The Bill also removes half our remaining voice in the Cabinet. That will reduce our direct influence on government policy by more than half. These are aspects which need profound consideration which they have not been given in this debate by more than three speakers. I have heard all but three speeches in this debate and I think I have heard only three that majored on that feature. That is one reason for doubting whether a Committee of the Whole House would be able to give it adequate consideration.
Every government of every party wish to free themselves from restraint. Secretly or openly, every Minister wants his hands free to carry out his policies without hindrance. I say that having been a Minister. By removing both the Cabinet voice of the Lord Chancellor and the wisdom and prestige which the Law Lords bring with them, the Bill makes a future reduction in the legislative power of this House a little easier, not just for this Government but for any future government to accomplish. It is also a lamentable fact that every government of every party think they will be in power for ever.
The noble and learned Lord opposite and his friends are digging the foxholes for us, the Liberal Democrats or some party undreamt of to fend them off in the next stage of the political life of this country. Those would be sufficient grounds on their own for treating the Bill with suspicious and meticulous care. If that were all, a rigorous Committee stage on the Floor of this House might yet suffice, but that is not all. We must look not only at the context but at the provenance of the Bill before us. Touching as it does the very centre of our constitution, it is brought to us by a Government who have not in the view of many of us properly thought through the consequence of any one of their major initiatives all the way from devolution to the war with Iraq. It is brought to us by a Minister who at 5.30 on a Wednesday night let it be known that he would not be sitting on the Woolsack the following day and at 3 o'clock the following afternoon—properly clad no doubt thanks to Ede and Ravenscroft—he was sitting on the Woolsack.
It is not to be expected that a Bill with that provenance will have been properly thought through by those who bring it to us either. We must do it for them. That requires—
My Lords, that is precisely the sort of point that should be argued by those in the Select Committee. We need such a body to do work which touches the future of this country and its welfare at its most intimate and most important. We need the steady application of such a body and not the intermittent, cursory and confrontational proceedings of a Committee of the Whole House. By all means reserve Part 3 for the consideration of the whole House if that is your Lordships wish, but I have given the reasons why in my view this Bill should be subjected to a procedure actually asked for by a Select Committee of the other place.
It astonishes me that Mr Peter Hain should take it upon himself to say that this is flying in the face of democracy when the democratically elected House itself has asked for it to be done. The noble and learned Lord, Lord Lloyd of Berwick, does no more than ask your Lordships to agree with the House of Commons in dealing with this Bill in this way. I hope that the noble Earl and many other noble Lords will join me in the Lobby.
My Lords, I intend to speak on one topic only; namely, the proposal to remove the appellate jurisdiction of this House and to set up a Supreme Court elsewhere. This proposal seems to me, as at present advised, to be totally unnecessary.
I start by trying to get rid of one misunderstanding. The misunderstanding is based on the proposition, which for present purposes only I am willing to accept, that if Law Lords in office take part in the legislative work of this House, they may be compromised if at some future time they were called upon to deal judicially with the same subject matter. Therefore, it is said that it is necessary to take away the appellate jurisdiction of this House and house it elsewhere in order to prevent such a situation arising. That argument is a fallacy.
There is already a convention that Law Lords do not speak or vote on matters where there is a strong party political ingredient. All that is needed, therefore, is a convention that Law Lords in office do not speak or vote at all. That is a total answer to the problem which I have posed.
But, it may be asked, what about a Law Lord taking his seat in the House and being present at a debate? Will that compromise a Law Lord? Of course not, no more than listening to "Today in Parliament" on the radio. Surely, it will not matter at all if he takes his seat. If there is a convention that Law Lords in office do not speak or vote on Bills, how can it possibly be said that they at present enjoy the dual roles of judge and legislator?
It may be asked, how is such a convention to be established? That is no problem, because this House regulates its own proceedings. Before 1844, lay Peers as well as Law Lords were at liberty, if they wished, to vote, and sometimes did vote, on judicial cases. On
I must consider whether there are any other reasons for removing the appellate jurisdiction from this House and setting up a Supreme Court elsewhere. I ask three questions, which in my opinion are fundamental. The first question is, in what way will appellants or respondents benefit from the change? Will appeals be heard more speedily or more cheaply? They certainly will not be heard more cheaply. Are there any other benefits to litigants? I can think of none.
My second question is, in what way will Parliament or the general public benefit from the change? I can see none.
This leads inevitably to my third question. If the danger of compromising Law Lords, of confusing the judicial role with the legislative role can be avoided so easily; and if there is no benefit to litigants, no benefit to Parliament and no benefit to the public in general, what precisely is the point of sending the Law Lords packing?
I have intentionally not posed a fourth question—whether the establishing of a Supreme Court elsewhere would be beneficial to Law Lords. The point was, I think, raised earlier. I have little doubt that it might perhaps improve the working conditions of Law Lords, but I can assure your Lordships that when I came to this House 22 years ago, I found the working conditions perfectly adequate. The only small deprivation was that I no longer had my own personal loo, which I had as a High Court judge. But I feel that that particular deprivation is not worth the expenditure of millions of pounds setting up a Supreme Court elsewhere.
The move to send the Law Lords away from your Lordships' House is, I believe, built on a total misunderstanding of how the system works. People do not realise how easily judging can be wholly separated from law-making without incurring the expense of setting up a Supreme Court somewhere else.
We have it in our own hands to avoid a useless expenditure of millions of pounds. Why can we not deal with it in the way which I have suggested?
I conclude by expressing the hope that someone will answer my three questions—what benefits will litigants, Parliament or the general public derive from setting up a Supreme Court elsewhere? If there are no benefits, why do it?
My Lords, as I am at No. 42 on the speakers' list, when we are nearing the wind-up speeches and the vote, your Lordships will be glad to know that I have scrapped much of my speech, notably those parts concerned with excessive haste—on which I agree with the noble and learned Lord, Lord Mackay of Clashfern; with the Government's inability to leave anything alone—even, now, the United Nations; and their strange priorities, involving us in small wars and making extraordinary changes to the constitution while failing to do anything effective about crucial domestic problems or our steady drift into an integrated Europe.
I have no problem with Part 3 of the Bill, and the suggestion by my noble friend Lord Bledisloe and others that it might be taken out and introduced on its own seems very sensible. Like the noble Lord, Lord Waddington, I deplore Part 1 of the proposed summary abolition of the historic office of Lord Chancellor. His duties could easily be amended or, as the noble Lord, Lord Alexander, suggested, reshaped, to suit today's needs.
On Part 2, since the Supreme Court will apparently have much the same role as that played by the Law Lords in our House, why move them at prodigious expense? Translation from Westminster to, say, a huge new building in Ealing or, as my noble and learned friend Lord Ackner, fears, a scruffy commercial floor, has nothing to commend it.
The removal of the Law Lords from this House seems to me a thoroughly bad idea. On this, I agree very much with my noble friend Lord Neill of Bladen. The present arrangements are, I think, probably good for the judges, who gain a close perspective of the matters that concern us. They are certainly good for us, as they add to our number a body of men of the highest intellectual calibre. This often makes our work on legislation more effective than it would otherwise be.
Of course, judges—active or retired—do not always do what one wishes. When I tried in January to secure a Select Committee to consider our relationship with Europe, my noble and learned friend and one or two other legal luminaries voted against my amendment, presumably judging that euthanasia was more important than Europe. Taking that view, they were fully entitled to vote as they did, although it seemed to me surprising. But I have no doubt that distinguished members of the legal profession in this House are valuable to us and it would be a mistake to expel the Law Lords and shut them up in a small bubble where they could speak only to each other.
One never knows when the help of notable men of the law may not be useful in our House. Some years ago, when I was grappling with a salmon Bill, I encountered legal problems that I did not know how to resolve. One day, I went into the Library and there saw Lord Denning writing at a desk. I did not know him personally but I knew his reputation as combining deep knowledge of the law with wholly exceptional common sense and great courtesy. Summoning up my courage, I approached him and asked him if he could give us a little help. He immediately agreed and thereafter gave us far more help than I had ever expected, drafting amendments and speaking to them in the House. What a wonderful man!
I have no hesitation in fully supporting my noble and learned friend's amendment to the Motion, which I hope will secure the approval of the House.
My Lords, I want to mention four fundamental principles. First, I refer to the independence of any Judicial Appointments Commission. The problem with any such body is that it is set up by statute but no Parliament can bind its successor. In addition, as we have discovered in debates on the composition of this Chamber, even an unambiguous Privy Council oath has no standing if it is felt that it should be reinterpreted to suit circumstances. Therefore, any statute can be changed and any safeguard is only temporary, so any assurances that we have today about the independent nature of an appointments commission can be changed by another place tomorrow.
Secondly, I refer to control by the executive. There used to be three pillars: the executive, with the Monarch as its titular head and the Prime Minister in actual control; the legislature, with the two Houses of Parliament, and Back Benchers wielding considerable power; and the judiciary, headed by the Lord Chancellor, responsible through the judges to Parliament. The Prime Minister tells the Monarch what to do. The Prime Minister controls the Commons now, and that control could easily be extended to the Lords, too, as any statute regarding this House can be changed, as I have just pointed out. It is now proposed that a junior Cabinet Minister, head of a department in the executive and appointed by the Prime Minister, should exercise co-decision processes with the chief judge and have a power of veto over the appointment of judges. Only in Orwellian doublespeak could that be called greater independence for the judiciary. The executive controls the purse strings. I seem to remember an old saying, "He who pays the piper calls the tune". We will have swapped a senior Minister for a junior one.
My third point relates to the office of Lord Chancellor. I notice that the order of precedence in this country goes: Monarch and Royal Family, Archbishop of Canterbury, Lord Chancellor, Archbishop of York, Prime Minister. If we removed the Lord Chancellor—and we notice that the Crown is being steadily removed from government branding, probably in preparation for a downgrading of the monarchy, and we know that certain elements would dearly like to get rid of the Royal Family—and then we also remember that the Prime Minister appoints the two archbishops, using much the same mechanism as he intends to use to appoint the judges, we have a Prime Minister who is truly an elected dictator.
The fourth point relates to the right of the Government to get their business through. I always understood that the Salisbury convention applied only to policies declared in the manifesto. I do not see why there is any duty on this House to put through anything that might subsequently be dreamt up by a government in power. The Government should go back to the country if they want to exercise that prerogative.
In conclusion, if one wants a true separation of powers, the only logical answer is to have a totally separate Supreme Court with no executive Department for Constitutional Affairs, which is likely to accrue undue indirect influence. That Supreme Court could be the only body with powers to alter constitutional Bills, so the Bill that created it could not itself be amended by Parliament alone. That could also help to safeguard any constitutional changes that might be enacted by statute such as may affect this Chamber in future. On the other hand, with the ECHR in its early days, bringing in new interpretations of the balance between the rights of the individual to be protected from an overbearing government and the rights of society to protect itself from disruptive individuals, I am not sure that this is the moment to set up such an absolutely separate court.
With so many questions hanging in the air, I believe that the old saying, "Act in haste, repent at leisure", is very true. I therefore urge all noble Lords to back the amendment of my noble and learned friend Lord Lloyd of Berwick.
My Lords, we now come to the wind-up speeches in what has been a long and, frankly, repetitive debate, lit only by a few flashes of the unexpected, such as the disclosure by the noble Lord, Lord Stoddart, that it was all a European plot.
I shall concentrate on the amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, because that is the issue that your Lordships have to decide today. I have no hesitation whatever in saying that that amendment should be firmly rejected. The reasons why that amendment should be rejected and why the Bill should proceed through the usual course were stated unanswerably by the noble and learned Lord, Lord Woolf. Since he made his speech, I have obtained a copy of his text and I would like to refer your Lordships to what I believe to be the central paragraph in it. It reads:
"While it is extremely important for the Bill to be properly scrutinised during its passage through this House, I would hope that this can occur in the conventional way because the present transitional position is wholly unsatisfactory for the administration of justice. The Lord Chancellor is already a Secretary of State. It would be difficult, if not impossible, to return to the position that existed before
The effect of the amendment of the noble and learned Lord, Lord Lloyd, would be to defer the enactment of the Bill for much more than the three months that the noble and learned Lord, Lord Woolf, said might possibly be acceptable. More than that, it would very probably mean that we would not see it until the next Parliament and we could very well lose it altogether.
It has been suggested that Part 3, which appears to be relatively uncontroversial, could be taken out of the Bill and dealt with separately. You cannot just take bits of the Bill out and say that we shall pass that provision but not others. In particular here, Parts 1 and 3 are intimately connected. The transitional position, as the noble and learned Lord, Lord Woolf, said, is deeply unsatisfactory.
Part 3 has been closely scrutinised by the judiciary. That scrutiny has produced a concordat that has been widely welcomed on all sides. We on these Benches might, by choice, have produced something a bit different. We recognise that the concordat has been criticised by some, for example, by Sir Colin Campbell on behalf of the Commission for Judicial Appointments, who called for a lay majority on the new JAC. Other things being equal, we might well have supported Sir Colin but we believe that the concordat is of such critical importance that we are not prepared to start unravelling it. We hope that, in the light of the powerful and convincing speech by the noble and learned Lord, Lord Woolf, the noble and learned Lord, Lord Lloyd, will not divide this House on his amendment. If he does press his amendment, then I hope that your Lordships will not support it. If your Lordships do support it, we shall potentially be blocking the creation of an essential Judicial Appointments Commission.
The Conservatives do not oppose the Judicial Appointments Commission in principle. If they vote in favour of the amendment, they will be acting against the advice of the judiciary and of the noble and learned Lord the Lord Chief Justice that the Judicial Appointments Commission is urgently necessary.
Of course these reforms have been introduced clumsily. Everybody has said that and we have said it as loudly as anybody. But that is not a reason for blocking a constitutional change that we now know has the support of the noble and learned Lord the Lord Chief Justice and the judiciary.
We have Part 1 of the Bill on the abolition of the office of Lord Chancellor. We have Part 2 on the Supreme Court. Let me take Part 2 first. The noble and learned Lord, Lord Lloyd, gave two examples of what the Select Committee might do in that respect. He said first, that the committee could look at the costs and secondly that the committee could take evidence on whether the new Supreme Court would be a benefit.
I agree that it would be a good idea to see the costings, but we do not need a Select Committee to do that. A much better way, which I believe we would support, would be to put into the Bill a sunrise clause that would prevent the Supreme Court from starting up until satisfactory arrangements for the venue had been drawn up, had perhaps been approved by Parliament and had been implemented. I agree that it would be impossible for the Supreme Court to function in the Palace of Westminster and should not function in inadequate temporary premises elsewhere.
As for whether there is benefit to the legal system from having the Law Lords in your Lordships' House, that matter seems to be almost entirely subjective—half the Law Lords think there is, the other half think there is not. A Select Committee could ask all of them for their views, but I doubt whether the committee would be very much wiser at the end of it.
We prefer the views of the noble and learned Lords, Lord Bingham and Lord Steyn, and will support Part 2. However, we believe that that matter should be debated and voted on in your Lordships' House on a future day. Other issues, such as those rightly raised by the noble and learned Lord, Lord Mackay of Clashfern, can be covered and should be covered in a Committee of the whole House. We would certainly wish to table amendments in Committee ourselves on issues such as the appointment of Justices of the Supreme Court and the system proposed for funding the Supreme Court.
I agree profoundly with the noble Lord, Lord Brennan—who I thought made an outstanding speech—that your Lordships should debate and decide these issues. It would be the whole House that does that, through a Committee of the Whole House and not just a small Select Committee which will reach conclusions that will no doubt then have to be considered again in a Committee of the Whole House.
I turn to the question of the role of the Lord Chancellor. The Lord Chancellor has traditionally acted as the presiding member of the Appellate Committee of your Lordships' House and head of the judiciary. He also appoints the judiciary in England and Wales below the Court of Appeal level and is the principal adviser to the Prime Minister on higher appointments. The Lord Chancellor runs what is now a major government department, spending something in the order of £3 billion a year. The Lord Chancellor has unofficially acted as a guardian of the rule of law and the integrity of the legal and judicial system in Cabinet; although as my noble friend Lord Maclennan of Rogart said, it is not clear that in practice he has always done that.
The role of the Lord Chancellor is seen by many speakers in this debate as an essential bulwark of the rule of law and the independence of the judiciary. That is an illusion. The Lord Chancellor is, and has always been, a potentially fragile bulwark. That illusion has been encouraged by the integrity and forcefulness of three of the last four Lord Chancellors: the noble and learned Lords, Lord Irvine of Lairg and Lord Mackay of Clashfern, and Lord Hailsham of St Marylebone. The fourth is, of course, the forgotten Lord Chancellor, Lord Havers, who served a brief and unhappy period in the office which was too short to say whether he, too, would have matched up to the others.
The value of the office of Lord Chancellor is based on two conditions which will not always, and are not now, satisfied. The first of those is that the Lord Chancellor must be prepared to stand up and defend the rule of law and the independence of the judiciary under pressure. The second is that, when it comes to the crunch, the Prime Minister must be prepared to back his Lord Chancellor. Within the past year both those conditions have been broken. I believe that the second condition, that the Prime Minister must stand up for the Lord Chancellor, was broken last June, when it seems clear the Prime Minister backed David Blunkett against the noble and learned Lord, Lord Irvine of Lairg. The first condition, that the Lord Chancellor must stand up for the rule of law, was broken when the noble and learned Lord, Lord Falconer of Thoroton, failed to object to the notorious Clause 11—or, as it now is, Clause 14—of the asylum and immigration Bill which ousts judicial review.
The Conservatives say, "The answer to this is that we must get back to the old-style Lord Chancellor". But how can we do that? It is plain, and the noble and learned Lord, Lord Woolf, agreed, that we cannot have the same person exercising both the departmental functions of the Department for Constitutional Affairs and the other functions that are attached to the office of Lord Chancellor. It has been plain at least since the Human Rights Act 1998 that we cannot have a Cabinet Minister now sitting as a judge. What that will mean is a kind of ghostly Lord Chancellor with no functions except to sit in on Cabinet meetings and occasionally say, "I am sorry, you must not do that". Such a figure would have no stature and no influence.
Furthermore, Lord Chancellors are of course appointed by the Prime Minister and can be removed by the Prime Minister. Let me suggest to your Lordships a little scenario. In a few months' time Gordon Brown becomes head of the IMF. Shortly after that, Tony Blair has a serious heart attack and David Blunkett becomes Prime Minister—not an impossible scenario. Who would Mr Blunkett appoint as Lord Chancellor? Not, I believe, someone with real independence of mind and commitment to the rule of law; not someone like the noble Lord, Lord Brennan. Is that what we want? But it is what we are risking.
The idea that we can go back to the system as it was before
There are of course better ways of ensuring that the Government respect the independence of the judiciary and the rule of law. First—a view which we on these Benches strongly hold—the Secretary of State for Constitutional Affairs should be converted into a proper Minister of Justice who would have responsibility for the criminal as well as the civil law. That would strengthen the position of the Secretary of State and it would remove the conflict which exists in the Home Office between the police and the courts system.
Secondly, there should be a statutory duty on the Minister not only to uphold the independence of the judiciary but to uphold the rule of law, as indeed the noble and learned Lord, Lord Ackner, pointed out.
Thirdly, there should be a joint committee of both Houses of Parliament for liaison between the judiciary and Parliament. At present judges are represented in your Lordships' House as they have no access to another place. There are no formal procedures for reporting their collective views to your Lordships' House.
These are all important issues, but they can be dealt with in the course of debate at Committee and Report stages which, I am quite sure, will be long if they go ahead. I see few if any advantages in a reference to a Select Committee. I see one critical disadvantage, which is the delay and perhaps the blockage of the creation of the Judicial Appointments Commission. I regard the amendment of the noble and learned Lord, Lord Lloyd, as political mischief-making. I ask your Lordships with as much force as I can muster to reject it.
My Lords, mindful of the strictures of the Government Chief Whip, I too will endeavour to keep my remarks short. I am also mindful that I spoke in the previous debate. I shall try not to repeat some of the comments I made on that occasion.
I should remind the House—and this is by way of congratulating the Government Chief Whip—that when I spoke on
On this occasion, bearing in mind the hour we have reached and the amount of time we have devoted to the Bill, I do not intend to cover all the points which have been put before the House.
Like the noble Lord, Lord Goodhart, I want to concentrate on the amendment that will be before us when we have given the Bill a Second Reading. I should stress that we shall, in the usual way, give the Bill a Second Reading; it is a question of what we do with it after that. So I do not intend to deal in any detail with the whole question of the legality of the post of the Lord Chancellor after the passing of the Human Rights Act, the whole question of separation of powers raised by a number of noble and learned Lords, the question of the independence or integrity of the judiciary, the costs of the new court or, as I think the noble and learned Lord, Lord Brightman, put it, who exactly will benefit from the changes that will be proposed. Nor do I intend to follow, much as I would like to, the noble Lord, Lord Stoddart, on the whole question of the European constitution. I suspect that that is somewhat beyond the scope of the Bill.
As I said, I want to discuss the amendment before us and why we on this side feel it is important that this Bill receives appropriate scrutiny, and scrutiny that is greater than the normal scrutiny that a Bill has when it comes before this House. The noble Lord, Lord Rees-Mogg, reminded us of what the noble and learned Lord the Lord Chancellor said in his opening remarks when he talked about this being—I hope that I have his words right—a vitally important piece of constitutional change that we cannot afford to get wrong. I think that everyone in this House would agree with those sentiments, or rather I would hope that everyone in this House would agree with those sentiments. But sometimes, particularly listening to the noble Lords, Lord Goodhart and Lord Lester of Herne Hill, one suspects that they are so desperate to encourage the Government to push these measures through, they seem to be rather half-hearted in their desire to comply with the second half of the remarks of the noble and learned Lord the Lord Chancellor.
For those reasons we believe—I remind the Leader of another place of this—as does the House of Commons Constitutional Affairs Committee under the chairmanship of a Liberal MP, Mr Beith, and with a Labour majority, that these changes require proper scrutiny; scrutiny that is greater than the scrutiny that would normally be offered by the usual procedures. That is, in brief, why we support sending this Bill to a Select Committee to give it some degree—I have to say that it is only some degree—of the pre-legislative scrutiny that we have offered to so many other Bills. The noble Lord, Lord Carter, one of those "trusties" who spoke in this debate, is, I believe, involved as chairman of, I believe, the committee looking at the disability reform Bill.
My Lords, that is a draft Bill. That is the whole point. You cannot give pre-legislative scrutiny to a substantive Bill.
My Lords, if the Government are not prepared to offer us a draft Bill as has been recommended, the best procedure to follow is to find a means whereby we can give it a degree of pre-legislative scrutiny. That is why we shall support the amendment to the Motion in the name of the noble and learned Lord, Lord Lloyd of Berwick.
It has been put to us by a number of noble Lords that the amendment is a wrecking amendment. I think the phrase that the noble Lord, Lord Lester of Herne Hill, used was that it would scupper the Bill. I see absolutely no reason why this Bill could not still be enacted before the Prime Minister wishes to go to the country, which we are informed by the noble Lord, Lord Lester of Herne Hill—I do not know how he knows—will be some time next year in the spring or summer if this amendment is agreed to. If it is agreed to, this Bill will go to a Select Committee. That would amount to a considerable degree of the pre-legislative scrutiny for which we have asked. That being the case, I can say to the House and to the noble Lord, Lord Marsh, who made this point—again stressing that it depends on the Bill going to a Select Committee—that we on these Benches would not oppose the Government making use of the carry over procedures for this Bill. As I understand it, those mechanisms were brought in to allow the Government to carry over government Bills from one Session to another where there had been pre-legislative scrutiny, and Bills which failed to complete their course in one Session, as is generally the rule—that is, government Bills.
Indeed, I must again express some surprise at the attitude of the Liberal Benches, in particular the noble Lord, Lord Lester of Herne Hill, in opposing the Motion, when, only last Friday, he moved another important constitutional Bill from the Back Benches—the Executive Powers and Civil Service Bill—and had a degree of support from all parts of the House. The noble Lord proposed that exactly the same procedure should be followed—it should be referred to a Select Committee.
My Lords, I am grateful to the noble Lord. I am sure that he is aware that the discussion on Friday was about a Private Member's Bill, a draft Bill from a House of Commons committee and a draft Bill still to be published by the Government and the idea of having a joint Select Committee on those Bills? Does the noble Lord not understand that that is an entirely different situation from where we are now?
My Lords, it is not different at all and, if the noble Lord wishes, I will quote the very words that he used on that occasion. There was a Bill in front of us—it might have been a Private Member's Bill, but it was of great constitutional importance. The noble Lord suggested that it should go to a Select Committee after Second Reading. Today we are considering a Bill that only saw the light of day relatively recently because, as the noble Lord knows, of a botched reshuffle last year. He knows that the Bill that he was talking about had been discussed on and off for some six or seven years. The noble Lord said on that occasion that it had waited a long time. He said with regard to that Bill, and the same would apply to this Bill, that,
"the consultation would begin under proper joint parliamentary auspices; evidence could be given; the Government would be helped by listening to that evidence; they could produce their Bill in July, September or October".—[Official Report, 5/3/04; col. 934.]
If it is good enough for that Bill, I cannot see why it is not good enough for this Bill, which covers equally important constitutional affairs.
My Lords, did my noble kinsman hear the quotation from the Lord Chief Justice, that was offered by my noble friend Lord Goodhart, to the effect that the urgency arises from the need for an adequate and safe system of judicial appointments? That will be upon us a little sooner than the next election.
My Lords, we are not seeking a major delay—that is the point I am trying to make in relation to the Motion. It has been suggested that the Bill could go to a Select Committee that could report in three months. The Bill could then start its proper process through this House and we have given a commitment from these Benches that we would assist, if there was that proper scrutiny, by agreeing, or not opposing, a carry-over, if necessary.
I shall now turn to some of the remarks made by the Leader of another place, Peter Hain. We believe it is unacceptable to ask that this House should not scrutinise a Bill that is so far reaching. We hope that the threat that the right honourable gentleman seemed to make will be ignored and overborne by this House. I do not believe that the House should be cowed by such a threat. The House is entitled to ask what it is about the Bill that the Government cannot brook any change or any questioning before forcing it through.
Finally, I repeat that this Bill is not a manifesto commitment. This Bill was brought forward to deal with a botched ministerial reshuffle. Comments were made by the Commons Select Committee on Constitutional Affairs, which has a clear Government majority, that this Bill deserved proper pre-legislative scrutiny. This Bill makes major changes to our constitution—changes which should belong to all parties and not just one. As even the noble and learned Lord, the Lord Chancellor, admitted when he proposed some six different amendments in his opening speech—which I have not often come across, this Bill needs proper detailed scrutiny of a sort that can only be provided by detailed examination resulting from the acceptance of the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick. I recommend that all noble Lords on these Benches support that amendment.
My Lords, everybody in this House agrees on the importance of this Bill. It affects great constitutional principles; it is entitled to the best of this House in everybody's view. The points that we will be debating and have debated today, and will debate as the Bill goes through this House, will have an effect for a long time to come. It is in those circumstances, I believe, very important to address the Bill on its merits.
The Bill needs to be scrutinised by the House with all the intelligence and experience that it can command. The Bill needs to be addressed, not on the basis of political points made of what happened 12 months ago, but looking forward for generations to come as to what effect the Bill may have.
This debate has from time to time identified what the major principles engaged are. I will deal with each of the three main points of principle identified in relation to the Bill.
First, the Supreme Court: there are those led by the senior Law Lord, the noble and learned Lord, Lord Bingham of Cornhill, who say that our constitutional arrangements should reflect the reality. The noble and learned Lord said, and we support him, that people who are appointed to the final court of appeal should be appointed as judges not as legislators. Some in this House dismissed that as constitutional purism. They say that they have their feet on the ground; they understand the practicalities; they dismiss that argument.
We do not dismiss that argument; we think that argument is right. We accept that giving effect to that argument will cost some money; we have identified how much money that will cost. We believe it will bring benefit to litigants because there will be an identifiable Supreme Court in this country, visible to all, visitable by all, which will become a beacon of legal excellence. These are major points of principle.
The noble and learned Lord, Lord Lloyd of Berwick, suggested that a Select Committee should be set up consisting of between 12 and 16 Members of this House. He cited two examples of what that Select Committee might consider: first, the cost of setting up the Supreme Court, and secondly, what the benefits might be in relation to it. Those were the only two examples he gave of what the Select Committee might consider. I suggest, respectfully, to your Lordships' House that it is far better that the whole House in the course of a normal Committee stage addresses those particular issues. I suggest with respect to this House that the House would be far better off in addressing those issues in a direct way without there being any suspicion whatever that some sort of ploy or stratagem was being used in order to kick the Bill into the long grass.
In relation to the point about the Supreme Court, it was decided to start the Bill in this House because this House had so much to offer in relation to the Bill. We would have the benefit of the wisdom of the whole of the House in relation to an issue like the Supreme Court. That is the first point of principle. That is the first basis on which the noble and learned Lord, Lord Lloyd of Berwick, suggested that we should submit it to a Select Committee.
The second point of principle raised by the Bill is the Judicial Appointments Commission. The noble and learned Lord, Lord Lloyd of Berwick, said that does not need pre-legislative scrutiny, because it has already been considered by the judges. Nobody suggests that that part of the Bill would benefit from a Select Committee or pre-legislative scrutiny. So the second point of principle suggests that it should stay on the Floor of the House.
The third issue is the abolition of the role of the Lord Chancellor. As the noble and learned Lord, Lord Lloyd of Berwick, knows, the concordat reached between myself on behalf of the Government and the noble and learned Lord, Lord Woolf, on behalf of the judiciary, involved not just Part 3 of the Bill; it involved Part 1 of the Bill as well. Part 1 includes vital protections to ensure that the independence of the judiciary is embedded. What is more, as the noble and learned Lord, Lord Woolf, made clear on
So what do we have? We have a proposal that the Bill should be referred to a Select Committee to deal with Part 2. The two particular points it should deal with are cost and the benefit of setting up a Supreme Court—points I would have thought, fairly, this House would be better off dealing with on the Floor of the House.
But it goes much further than that. The noble and learned Lord, Lord Lloyd of Berwick, says that it can all be dealt with by the Summer Recess. As he knows, there would need to be a second Motion after this one to set out the membership, representation and terms of reference of the Select Committee. I do not believe that the terms of reference would be at all difficult. They would be to report on the whole Bill, but the membership, representation and reference would take some time. A reasonable estimate would be at least a month to agree names and members.
There would then have to be four to six weeks for evidence to come in. There would then need to be consideration by the Select Committee. The idea that that could be done before
Then as the noble and learned Lord, Lord Mayhew of Twysden, identified in his researches during the course of the afternoon, in the light of his misfortune of having heard me on the "Today" programme this morning, the last time that this was done, 30 years ago, the Select Committee proposed that the Bill be, in effect, rejected by the House.
So what is being proposed in relation to the amendment is that because of the two points on Part 2, the matter should be referred to a Select Committee of between 12 and 16 Members of this House to last for an indefinite period which could result in the Bill never coming out of the Select Committee. That does not seem a sensible way to proceed in relation to a Bill of this importance.
In my respectful submission, the right thing for this House to do is to move on from the process and start addressing the important issues that the Bill raises. I believe that this Bill represents a real opportunity for improvement in our constitutional arrangements. It allows a Supreme Court to stand clear, with judges in it—not people who are also legislators. It allows a proper and sensible method of judicial appointment; it allows a Minister to get on with the difficult but vital task of running a £3 billion budget; and it allows the Lord Chief Justice of England and Wales to become acknowledged as the head of the judiciary.
I strongly urge the House to reject the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick. I strongly urge the House not to be drawn into what is political mischief-making by the party opposite, which sees an opportunity, as the noble Lord, Lord Goodhart, said, of rejecting the advice of the Lord Chief Justice. I suggest that we move as quickly as reasonably possible to consider these provisions and make them law. I commend the Bill to the House.
On Question, Bill read a second time.
My Lords, this House has taken a very serious step.
By this vote, this House—the unelected House—has made it impossible for the democratically elected House of Commons to receive this Bill promised in the Queen's Speech in November in time to consider it this Session.
That is very serious indeed, and the Government will consider what the consequences may be.
My Lords, I am grateful for the noble Baroness the Leader of the House having made that short statement.
I am sorry that she has not been able to tell us what the consequences might be this evening. Surely one of the consequences must be that this Bill should be carried over into the next Session.
Carryover was not a proposal put forward by the Conservative Party; it is part of the programme of modernisation introduced by the Labour Government. Why do they not now use their own tools to get this Bill on the statute book, if that is what Parliament wishes?
My Lords, I, too, add that I believe that this is a very serious moment for this House.
As Members of the other side will know, the Liberal Democrats supported what they regarded as a serious attempt to try to move towards a reformed situation with regard to the judicial functions of the Lord Chancellor.
I cannot entirely exonerate the Government from some responsibility which flows directly from the consequences of