Constitutional Reform Bill [HL]

– in the House of Lords at 3:06 pm on 8th March 2004.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor 3:06 pm, 8th March 2004

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Constitutional Reform Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

I beg to move that this Bill be now read a second time.

The Constitutional Reform Bill will abolish the office of the Lord Chancellor and make changes to the way in which the functions vested in that office are handled. It will also create the Supreme Court of the United Kingdom, create the Judicial Appointments Commission and remove the right of the Lord President of the Council to sit judicially.

The Bill is one of the Bills referred to in this Session's gracious Speech. It is a significant part of the Government's legislative programme. We believe that the Bill should be considered by this House and then passed to the elected House for its consideration during the course of this parliamentary Session. That is how our democracy works. It allows Bills to be introduced into this House.

We must ensure that we get the detail of the Bill right. In ensuring sufficient time to do that, we must also ensure that the inevitable uncertainty that will surround the arrangements while they are being considered is kept to the minimum required to ensure proper scrutiny. A long period of uncertainty is not good for our legal system.

The essence of the Bill is not new. In 1972, in their report The Judiciary, leading members of Justice recommended the creation of an advisory judicial appointments commission, comprising precisely the sort of membership that we are now proposing: legal professionals, the judiciary and lay members. They repeated the call 20 years later in their 1992 report. The Law Society echoed this call four years ago in a report that called for:

"An independent [Judicial Appointments] Commission . . . responsible for the recruitment, selection and promotion of candidates from the widest possible pool".

Almost 10 years ago, shortly before his appointment as my predecessor, my noble and learned friend Lord Irvine of Lairg said in a speech to the 1996 Bar Conference:

"Labour favours an Advisory Commission on Judicial Appointments at all levels . . . It would include representatives of the judges and the professions, as well as a strong, high quality lay element".

That is precisely what we are now legislating for.

Similarly, it is five years since Justice made a similar call for reform of the Judicial Committee of the House of Lords and the office of Lord Chancellor, saying:

"We firmly believe that the present arrangements are inherently flawed, and that reform of the judicial functions of the Law Lords and of the Lord Chancellor is not a luxury but a practical necessity. The profoundly changed role both of the judiciary and of the Lord Chancellor's Department, together with the changes being brought about by the renewal of the British constitution, make it imperative that there should be a final court with sufficient authority, expertise and resources to maintain public confidence in the administration of justice at the highest level".

The reforms have been consulted on in detail for seven months. They will be debated in Parliament for many months to come. They will receive detailed and proper scrutiny. In a constitutional change of this importance, proper consideration of the Bill is vital. That it should be considered by the elected Chamber is, however, the foundation of our parliamentary democracy. This House has almost always accepted that. Our role here is to scrutinise and revise. To prevent the Commons even looking at the Bill is to break with that approach. It has been done once before in modern times in relation to a government Bill—the Hare Coursing Bill, in 1975. That Bill, once referred to a Select Committee in this House, was killed there. The Commons never got a chance to look at it. The effect of the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick, is that the Bill will certainly not be passed by Parliament within this Session and it may never be considered by the Commons, and that we oppose it.

Photo of Lord Strathclyde Lord Strathclyde Conservative

My Lords, the noble and learned Lord has just raised a very important issue which is crucial to the issue that will be put to the House later this evening. Can he confirm, therefore, that there is no reason why this Bill should not be a candidate for the procedures brought in by the Labour Government—namely, carry over—and that this Bill could be carried over into the next Session of Parliament for the House of Commons to examine it in the normal way?

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

My Lords, it would be a unique proposal put forward in relation to it. We are saying that the right course, this being a Bill in the Queen's Speech, is to deal with it within this Session. We thoroughly underline the need for proper scrutiny of the Bill, which a Committee of the whole of this House would be able to give it.

This Bill has two main strands, the first of which is abolition of the Lord Chancellor and the creation of a Judicial Appointments Commission. To have a system where all judges are appointed by a judge who is a Cabinet Minister who can deploy and discipline those judges and who is also the presiding judge in the final Court of Appeal is not a basis for long-term independence of the judiciary. It has worked well in recent years, but one failure would gravely undermine the system. We should change when we are strong. We should recognise that we can improve the system. The new arrangements must embed and preserve the independence of the judiciary. They must also allow the Minister to concentrate on his important ministerial functions and on running his department, which has responsibility for issues such as the courts and legal aid.

We have consulted in detail on these measures with the Lord Chief Justice, on behalf of the judiciary, on how to ensure the independence of the judiciary. We have reached agreement. That agreement, now called the concordat, is reflected in the Bill.

The second strand is the creation of a Supreme Court. We believe, along with the senior Law Lord, that the time has come to reflect the reality of our constitutional arrangements. The Law Lords are appointed to the final Court of Appeal, not the legislature. They are judges. We believe that the final Court of Appeal is currently a beacon of legal excellence and will remain so in the new arrangements. We also believe in the supremacy of Parliament. Ultimately, laws must be made by Parliament. The judges, in accordance with law, must construe and interpret those laws. However, unlike systems such as that in the United States of America, we do not want policy issues such as capital punishment, abortion or racial discrimination to be decided by judges. They must be decided by Parliament. That most certainly does not make our system any worse or better than that in the United States of America; it is simply different. It has not made the Judicial Committee of the House of Lords a second-rate final court of appeal. It will not make our new Supreme Court in any sense second rate.

I turn to the detail of the Bill. Right at the outset, we embed the independence of our judiciary. Clause 1 therefore provides a guarantee of continued judicial independence. It creates a duty on all Ministers of the Crown and all others with responsibility for the administration of justice to uphold the continued independence of the judiciary. It also places an additional duty on the Secretary of State for Constitutional Affairs to have regard to defending the continued independence of the judiciary. This duty will also apply, for example, in his handling of the recommendations from the new Judicial Appointments Commission and in funding and running the administration of the courts.

In recognition of the important role of the Lord Chief Justice in the judiciary, Clause 2 makes him the President of the courts of England and Wales, including the magistrates' courts, and sets out his responsibilities, including representing the views of the judiciary to government, and the training, guidance, welfare and deployment of the judiciary of England and Wales. The role of the Secretary of State for Constitutional Affairs is also important. It has been agreed between the Lord Chief Justice and myself that the functions of the Lord Chancellor that relate to the judiciary and the court system should not in future be transferable between Ministers without primary legislation.

The Bill at present does not include provisions for the future handling of the Lord Chancellor's functions in relation to the judiciary in Northern Ireland. I will bring forward relevant amendments in Committee and, if necessary, on Report and in the other place.

Part 1 of the Bill also allows the statutory functions of the Lord Chancellor in his capacity as Speaker of this House to be exercised by whoever fills that role. I expect to introduce later amendments to provide for any other necessary provisions once this House has further considered its response to the report of the committee of the noble and learned Lord, Lord Lloyd.

Part 2 provides for the establishment of a new Supreme Court for the United Kingdom, separate from Parliament, and for the transfer to that court of the appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council.

The Bill seeks to make our constitution more transparent and logical by creating at the apex of the judicial systems a Supreme Court which is visibly independent of the legislature. I say "judicial systems" in the plural, for there is no single United Kingdom judicial system, and it is no part of the Government's plan to attempt to create one. The new Supreme Court of the United Kingdom will maintain continuity through the current Lords of Appeal in Ordinary becoming the first Justices of the new court, with the senior Law Lord as its first president.

The doctrine of stare decisis will operate as it does in appeals to the House of Lords at present: any decision in an appeal will be binding only on courts in the jurisdiction from which the appeal came and merely persuasive in other jurisdictions. Scots, English and Northern Ireland law will continue to develop independently but in parallel. Neither this Government nor the Scottish Executive have any plans to give the United Kingdom Supreme Court jurisdiction to hear criminal appeals from Scotland since this jurisdiction is one which has never been exercised by the Appellate Committee of the House of Lords.

Members of the Supreme Court will be appointed by Her Majesty, but the process will be much more transparent. I appreciate the scope for differing views as to the precise nature of the process; that was debated by your Lordships in some detail on 12 February, has been discussed by commentators and will no doubt be further considered today. I am considering very carefully the views expressed and assessing whether the balance of factors to which I referred might need to be adjusted further to improve the procedure. In particular, I am looking again at ways in which account can be taken of the views of a devolved administration. I do not therefore rule out bringing forward amendments during the passage of the Bill on this and on the detail of different aspects of the procedure for appointing the President, Deputy President and Justices of the court.

The Bill places a specific statutory duty on the Minister to secure sufficient resources to enable the effective and efficient carrying on of the business of the Supreme Court. However, the Supreme Court will not in any sense be part of the Court Service of England and Wales. It will instead form a separate entity administered for the benefit of all constituent parts of the United Kingdom.

As a logical consequence of the separation between judiciary and legislature, the Bill restricts the right of Members of the House of Lords to sit and vote for so long as they hold full-time judicial office. In addition to the Justices of the Supreme Court, this will also apply to the Lord Chief Justice, the Master of the Rolls and the Lord President of the Court of Session.

Finally, Part 2 of the Bill makes consequential and transitional provisions to allow the transfer of functions to the court. Included in this will be the renaming of the existing Supreme Court, both in England and Wales and in Northern Ireland, in respect of which I will bring forward amendments at Committee and Report stages in this House.

I now move to Part 3 of the Bill, which creates a Judicial Appointments Commission and a Judicial Appointments and Conduct Ombudsman and makes provision for a new disciplinary process in relation to the judiciary. The selection for appointment of judicial officeholders in England and Wales is primarily the responsibility of the Lord Chancellor supported by officials from the Department for Constitutional Affairs. These arrangements have served us well in the past and given us a judiciary considered by many to be the best in the world.

But it can no longer be appropriate for a Minister to have this degree of control over appointments. The Bill therefore creates a new independent Judicial Appointments Commission, which will select judges for appointment in England and Wales. The commission will recommend to the Secretary of State for Constitutional Affairs one candidate for each vacancy selected solely on merit. No one may be appointed who has not been selected by the commission. The Secretary of State for Constitutional Affairs will have a very restricted role. He will be able to reject a candidate once and to ask the commission to reconsider a selection once. These arrangements will ensure that the role of the Secretary of State for Constitutional Affairs is transparent, but that there is the necessary ministerial oversight and involvement to ensure proper accountability to Parliament.

Schedule 10 sets out the members of the Judicial Appointments Commission and its powers and responsibilities, which will reflect its status as an executive non-departmental public body. I am pleased to be able to confirm that the panel for appointing members of the commission will be chaired by Dame Rennie Fritchie. There will be 15 commissioners with a lay chairman supported by a chief executive and staff.

At present the Lord Chancellor has statutory powers to remove judicial officeholders below the High Court on grounds of incapacity or misbehaviour. These powers will be transferred by Schedule 1 to the Bill to the Secretary of State for Constitutional Affairs to be exercised only if the Lord Chief Justice agrees. The Lord Chancellor also currently exercises a more general role in relation to disciplinary matters concerning judicial officeholders.

The Bill places all matters of judicial discipline and removal on a transparent statutory footing and provides a structure which reflects a proper balance between an independent judiciary and democratic accountability for the judicial system. The current role of the Lord Chancellor will be divided between the Lord Chief Justice and the Secretary of State for Constitutional Affairs. No removal or other disciplinary action will be taken by one of them without the agreement of the other. None of these powers will displace the existing role of Parliament in the removal of senior members of the judiciary.

Chapter 3 will also permit parties who are dissatisfied with the administration of the complaints procedure to seek review of the operation of the process by the Judicial Appointments and Conduct Ombudsman.

There are four substantive amendments to this part of the Bill which I wish to table during Committee stage in this House. They will ensure that the Bill delivers the detail of the Written Statement I placed in the House Libraries on 26 January, the concordat. The first concerns the criteria that the commission will use to assess applicants for appointments to judicial posts. I will ensure that the definition of merit should be for the commission itself and not for Ministers. The second amendment will provide that the Lord Chief Justice be consulted about any guidance issued to the commission and that guidance shall be set out in a statutory instrument subject to affirmative resolution by both Houses. Such guidance will set out the expectation that the commission should seek to encourage a more diverse pool of potential appointees and should take account of the need for expert judicial knowledge. The third will set out on the face of the Bill the circumstances in which the Secretary of State for Constitutional Affairs may ask the commission to reconsider or reject a candidate. The fourth amendment will clarify the arrangements for appointing members of the Judicial Appointments Commission, in particular by ensuring that nominations for the appointment of the three most senior judges are made by the Judges' Council rather than by the appointments panel.

This Bill contains vitally important constitutional changes, which will strengthen our democracy and the rule of law. They are changes which will ensure our constitution protects and preserves the independence and quality of the judiciary as the pressures on them inevitably increase. We cannot afford to get them wrong. I commend this Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)

Photo of Lord Kingsland Lord Kingsland Conservative 3:24 pm, 8th March 2004

My Lords, this Bill has confirmed our worst suspicions about the Government's constitutional intentions. I will touch on only three of our more serious concerns because I want to say something as well about the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick.

First, Clause 51 deals with the issue of merit. I am pleased to say that Clause 51(3) states:

"Selection must be on merit".

So far so good. But Clause 51(4) states:

"After consulting the Lord Chief Justice, the Minister may by order specify considerations that are to be taken into account in assessing merit for the purposes of the section".

Merit is the cornerstone of the system of judicial selection.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, I wonder whether the noble Lord, Lord Kingsland, has actually been listening to the speech of the noble and learned Lord the Lord Chancellor. He said that he would introduce an amendment to make sure that a Minister was not able to specify what was meant by merit.

Photo of Lord Kingsland Lord Kingsland Conservative

My Lords, I am most grateful to the noble Lord, Lord Goodhart, but that is not the point I am about to make, which is that the whole definition of merit should be on the face of the Bill. It is vital that this definition is not, in any way, contaminated by any inappropriate ingredients. I hope that the noble and learned Lord the Lord Chancellor will at least bring forward at an early stage in the Committee procedure a full definition of merit as an amendment to the Bill itself.

My second observation is the extent to which the executive is to be involved in judicial selection. I know that the Lord Chancellor also proposed some amendments to this aspect of the Bill in the course of his speech. But it is still a fact that the Secretary of State for Constitutional Affairs will have considerable veto powers over the selection of most judges and quite extensive veto powers over the selection of judges in the Supreme Court.

I find that quite bewildering. The principle upon which these constitutional changes is based, as I understand it, is the principle of separation of powers. This principle has been applied most rigidly in the relationship between the judiciary and the legislature. The Lord Chancellor intends to remove the Lord Chief Justice from your Lordships' House; he intends to move the Law Lords from your Lordships' House; and yet when it comes to the relationship between the judiciary and the executive, we continue to have a relationship of deep intimacy.

I accept that the Lord Chancellor is a member of the Cabinet, but in a very special constitutional position. He is a senior lawyer; he takes the judicial oath and he is a heavyweight politician on a par with the Chancellor of the Exchequer, the Home Secretary and the Foreign Secretary; and he receives respect as such. He is also responsible to Parliament for judicial selection. Parliament is the only institution which has the power to fire High Court judges. It is only right therefore that the person responsible for having the final word to hire them is a Minister responsible to Parliament.

Contrast the position of the Lord Chancellor with the Secretary of State for Constitutional Affairs. We understand that future Secretaries of State for Constitutional Affairs are unlikely to be lawyers. If they are not going to be lawyers, how can they possibly make an assessment of the merits of a candidate? How can they possibly exercise the discretion that they are given in this Bill to choose judges? Moreover, we all know that future Secretaries of State for Constitutional Affairs will be junior Ministers in the Cabinet. They will be unable to hold their ground against the invasive tendencies of more senior Cabinet Ministers.

In my submission, if the selection of judges is going to be done by this very close relationship between the Secretary of State for Constitutional Affairs and the Judicial Appointments Commission, then the Secretary of State for Constitutional Affairs will have to be a clone of the Lord Chancellor.

My third observation, which I make very briefly, is about that part of the Bill that deals with the establishment of a Supreme Court. Our view is that establishing a Supreme Court is pointless and extravagant. Any dispassionate observer who read the debate on 12 February in your Lordships' House will see that the majority of speeches came to the same conclusion.

I now turn to the amendment of the noble and learned Lord, Lord Lloyd of Berwick. The Opposition were the first to call for the pre-legislative review, which we did on 26 January 2004. Our request is recorded at col. 18 of Hansard. We felt that we received some support from the Prime Minister on 4 February when he gave evidence to the Liaison Committee in another place. The Times reported the right honourable gentleman the Prime Minister to have said:

"In retrospect it would have been better probably had we published a paper, had we taken a step back and separated the reshuffle very clearly from departmental change".

On 9 February we again called for a pre-legislative review. On the following day, 10 February, at page 29 of the conclusions of the report of the Constitutional Affairs Committee in another place, the draftsman says:

"The consultation process has been too short and the legislative timetable is too restrictive to deal with changes which are so far-reaching in their effects".

He went on to add:

"We recommend that the Government proceed with the Constitutional Reform Bill on the basis of its being draft legislation".

It is well known that that committee was chaired by a Liberal Democrat, Mr Alan Beith, with seven Labour Members and only three Members of the Opposition.

On 12 February, at cols. 1219 and 1220 of Hansard, we repeated again our request for a pre-legislative review. The noble and learned Lord, Lord Lloyd of Berwick, then tabled his amendment to leave out reference to,

"'Committee of the Whole House' and insert", a reference to a "Select Committee". Given our previous approach to the question of pre-legislative scrutiny, we came to the conclusion that we would support the amendment of the noble and learned Lord, Lord Lloyd. If we had any lingering doubts about that, they were swept away by the publication of the speech of the noble and learned Lord, Lord Woolf, whom I am delighted to see in his place today, on the occasion of the centenary celebrations of the Squire Law Library in Cambridge.

The speech of the noble and learned Lord, Lord Woolf, in your Lordships' House on 26 January on the occasion of the Statement by the noble and learned Lord the Lord Chancellor on judicial selection concentrated very narrowly on the issue of the concordat and the criteria for judicial independence.

In the speech that the noble and learned Lord made in Cambridge, he ranged much more widely. Among the issues upon which the noble and learned Lord touched was the issue of the Supreme Court. His conclusions can be briefly summarised by three extracts from his speech. He states first of all—I quote from page nine of the Times online report:

"Among the Supreme Courts of the world, our Supreme Court will, because of its more limited role, be a poor relation. We will be exchanging a first class Final Court of Appeal for a second class Supreme Court".

The noble and learned Lord went on to say that,

"if I had a vote on the subject, I would be in favour of deferring a decision, until I knew, first of all, the building which it is intended the Supreme Court should occupy and, secondly, the method by which the other (non-judicial) members of the House of Lords will be appointed".

He continued:

"To push ahead now, despite the many reservations which have been expressed, would, it seems to me, be inconsistent with the desirability of achieving constitutional change by consensus".

Unlike the Supreme Court, the noble and learned Lord, Lord Woolf, had much to say on the question of the independence of the judiciary and the rule of law in the course of his intervention on 26 January. I hope that I shall not be accused of inaccuracy or unfair distortion if I make the comment that what he says on these issues in his speech suggests that some of the confidence he had in the arrangements to which he in effect gave his name on 26 January has been undermined since then by various events.

The noble and learned Lord, Lord Woolf, said in his speech on this subject on pages nine and 10 of the Times report:

"If the Constitutional Reform Bill becomes law in its present form, we cannot take the continued individual, or collective, independence of the judiciary for granted. Fairly recent events cause me to still have real concerns for the future.

The Government has made no secret of the fact that in the future the Secretary of State for Constitutional Affairs is likely to be a member of the Commons and could well be a non-lawyer. Particularly because of a perceived need for a joined-up approach to criminal justice, I am worried about the Department for Constitutional Affairs becoming a subsidiary of the Home Office or unable to compete with the dominance of the Home Office.

The result could be the Home Office being in a position to dictate the agenda for the courts which would not accord with the need for independence . . . I hope my fears are unjustified, but it is worrying when changes are advocated without apparent appreciation of their significance".

Why this sudden change? The answer is, in my submission, that the noble and learned Lord the Lord Chief Justice has seen the new system at work. He has been negotiating with the Government—both the Home Office and the Department for Constitutional Affairs—and he has discovered that one of the components of these negotiations is their refusal to budge on the issue of whether there should be an appeal from asylum tribunals to higher courts—the issue of the ouster of jurisdiction.

The noble and learned Lord went on to describe his experience of this much vaunted co-operation between the judiciary and the Department for Constitutional Affairs. The noble and learned Lord said that,

"our advice was that a clause of the 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 any respect for the rule of law".

He continued:

"The result was that clause 11 was extended to close the loopholes we had identified, instead of being abandoned as we had argued".

He continued further by saying that,

"there have been attempts to justify the clause, but these are specious and unsatisfactory. It is particularly regrettable that the Lord Chancellor and Secretary of State should find it acceptable to have responsibility for promoting this clause".

He concluded:

"What areas of government decision-making would be next to be removed from the scrutiny of the courts? What is the use of the courts, if you cannot access them?"

The final observation of the noble and learned Lord the Lord Chief Justice on this issue was as follows:

"It also surprises me that the Government does not see it as inconsistent to promote a clause designed to exclude the courts from performing their basic role of protecting the rule of law at the same time that it is introducing the present constitutional reforms".

This is really the heart of the matter. The Lord Chief Justice has realised that he cannot trust the politicians to deliver their side of the bargain. The conduct of the Department for Constitutional Affairs on this occasion will be the future conduct of all departments for constitutional affairs.

In all the circumstances it is clear that this experience has not been a happy one for the judiciary. I believe that the amendment of the noble and learned Lord, Lord Lloyd, is a timely one and I urge your Lordships to support it.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 3:40 pm, 8th March 2004

My Lords, I shall not repeat the reasons why we on these Benches support the broad thrust of the Bill's proposals, on which some of us have worked for more than two decades. I shall concentrate on the practical choices that are open to the House, before turning briefly to some of the important matters in which we will seek to amend the Bill during its progress.

The House will have to confront a difficult dilemma at the conclusion of this debate in deciding what means are realistically open to us that will best protect and strengthen judicial independence and the rule of law. That should be our touchstone in reaching our collective decisions: what will best protect and strengthen judicial independence and the rule of law? Whatever reservations are held about parts of the Bill—and we certainly share some of them—the House will agree that it should be read a second time. But what happens then? Should the House agree, as we would hope, to commit the Bill to a Committee of the Whole House so that the Bill can be amended and improved in the normal way, or should we follow the course to be advocated by the noble and learned Lord, Lord Lloyd of Berwick, with the support of the Official Opposition, and commit the Bill to a Select Committee?

On the face of it, the course advocated by the noble and learned Lord, Lord Lloyd of Berwick, is beguilingly attractive. The way in which the Government introduced the proposals was botched, by their own admission, with the attempt to abolish the office of Lord Chancellor by press release. By acting clumsily, with undue haste and without consulting the senior judiciary, the Government lost much potential goodwill and support for proposals that would strengthen rather than weaken judicial independence and the rule of law. That was disheartening for those of us on these Benches and beyond who have developed broadly similar proposals for more than two decades.

The argument in favour of the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, is that a Select Committee would be able to receive evidence and scrutinise the details of the Bill and make recommendations to remove its undoubted defects. That is at first sight an attractive argument that shortly will be put more attractively by the noble and learned Lord. But, if accepted, one of two unhappy consequences would be likely to result. I am sure that neither of those consequences is intended by the noble and learned Lord and neither of them would afford the best protection of the paramount constitutional values of judicial independence and the rule of law.

The first consequence would be the real risk that the Bill would be slowly scuttled. That would be for two main reasons. First, the legislative process would be halted until the Select Committee had completed its work, say by some time next autumn. There would be no likelihood that the Select Committee's work would hasten the passage of the Bill through this House, even if its recommendations were positive in nature. Detailed scrutiny and revision of the Bill would still be needed and people like the noble and learned Lord, Lord Lloyd of Berwick, who have root-and-branch objections to the parts of the Bill dealing with the abolition of the office of Lord Chancellor and the creation of a Supreme Court, would not give up their opposition. Although the Bill could, in theory, be carried over until the next Session, there would be no certainty, or even a strong probability, that it would be enacted by both Houses before a general election next spring.

Some root-and-branch opponents, including the Official Opposition, would be delighted with the prospect of sinking one of the Government's flagship Bills in that way. But, we need to look realistically at the practical consequences of sinking the Bill. We would be left with a Lord Chancellor who has candidly accepted that the division between his political loyalties and his professional loyalty to judicial independence mean that there is now an institutional schizophrenia that has become constitutionally unacceptable. It is also regrettable that recent events have seriously weakened judicial confidence in the effectiveness of ministerial protection that has traditionally been given by previous Lord Chancellors and Home Secretaries to maintaining judicial independence and the rule of law. And as the Lord Chief Justice said, in his powerful Squire Centenary lecture, there is a risk of the Department for Constitutional Affairs becoming a subsidiary of, or being unable to compete with the dominance of, the Home Office.

The noble and learned Lord, Lord Woolf, also explained that he has reluctantly joined those who say that the Lord Chancellor can no longer play his traditional role as head of the judiciary unless his responsibilities are significantly reduced. But, the noble and learned Lord, Lord Woolf, rightly recognised that it is now not possible simply to go back to the position as it was before 12 June. He said:

"I have reservations as to whether there is any way of putting the clock back once you have had a Secretary of State and a Lord Chancellor; a combination of roles that I regard as wholly inconsistent one with the other".

He added:

"I also have doubts whether it would be possible now to restore the special culture that needs to exist if the Lord Chancellor is to successfully combine his different and conflicting responsibilities".

The noble and learned Lord explained the reasons why he and the judiciary had concluded, after the sudden removal of the last traditional Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, on 12 June, that

"the independence of the judiciary requires increased statutory protection".

One matter which the noble and learned Lord, Lord Woolf, described as "particularly regrettable"—and has been mentioned already—is the fact that the Lord Chancellor and Secretary of State should find it acceptable to have responsibility for promoting Clause 11 of the current Asylum and Immigration (Treatment of Claimants, etc.) Bill when the judiciary had advised him that such a clause,

"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".

We entirely share those concerns. But if this Bill is scuppered as a result of the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, the present Lord Chancellor and Secretary of State will remain yoked in double harness in office, without the much-needed statutory safeguards of judicial independence; and, constitutionally, the Lord Chancellor, with the Prime Minister, will remain exclusively responsible for making all appointments to the senior judiciary in England and Wales, and to some extent Northern Ireland, and to the Judicial Committee of this House and that of the Privy Council. We will lose all the benefits of the safeguards in Parts 1, 3 and 4—especially the benefits of a statutory judicial commission for England and Wales.

The Lord Chief Justice and the noble and learned Lord, Lord Falconer, should be congratulated on having achieved a concordat which, in the words of the noble and learned Lord, Lord Woolf, provides,

"an appropriate constitutional framework for the future relationship between the Government and the judiciary. It will ensure that the judiciary comes of age and takes on responsibility for those features of the relationship that are critical to its future well-being".

If this Bill is scuppered, the concordat will not be turned into a binding statutory scheme during the lifetime of this Parliament. There will be no guarantees of continued judicial independence and no statutory Judicial Appointments Commission for England and Wales to ensure appointment on merit and freedom from political interference. Although the sap is rising on some Benches, surely that is not the best way of upholding the rule of law and judicial independence.

These Benches strongly favour the creation of a powerful ministry of justice with the legal stature and qualifications of a traditional Lord Chancellor and that has a specific duty to uphold the rule of law and the integrity of the judicial system. We hope that the Official Opposition will agree with that core policy of our party. It would do much to repair the damage done in the aftermath of 12 June. However, if the Bill is scuttled the House will disqualify itself from introducing that essential bulwark into the statutory scheme at the present stage.

The other likely scenario, if a majority of the House accepts the amendment, is that the Government will withdraw the Bill from this House and introduce it in the other place. It is a flagship Bill to which they are firmly committed. If they do so, that will greatly reduce our power to influence the Bill's contents, not least because it is likely that the Government will invoke the Parliament Act in the name of upholding good governance, judicial independence and the rule of law.

The Government have paid us a compliment by introducing the Bill in this House, where they lack an inbuilt political majority, rather than in the other place. Surely it would be wiser to keep the Bill here, firmly under our control, rather than weakening our real influence if the Bill is transferred to the Commons. We will then have ample opportunity to scrutinise and revise the Bill in the ordinary way.

Like many across the House, we on these Benches would oppose the creation of a Supreme Court separate from and independent of this House, unless and until it were given a proper home and sufficient resources. The way to deal with that is not by sinking the Bill, but by amending it to ensure that Part 2 cannot be brought into force until those requirements have been fully met. For all those reasons, we hope that the noble and learned Lord, Lord Lloyd, will resist the temptation, great though it is, to press his amendment to a Division, and we hope that if he does press it, the House will not give the amendment its support. If it does, it will score a short-term victory against the Government, but in the longer term it will prove to have scored an own goal that will undermine our effectiveness in protecting judicial independence and the rule of law. It will be a classic case of a pyrrhic victory.

I have already explained that the main proposals in the Bill have our support and that they reflect long-standing core Liberal Democrat policy. But there are several flaws in the Bill that need to be tackled. I mentioned the pressing need for a well qualified Minister of Justice with a clear duty to uphold judicial independence and the rule of law, and who is a lawyer. We also believe that there should be a formal procedure, by means perhaps of a Joint Committee of both Houses, through which the views of the judiciary can be given to Parliament. We are grateful that the noble and learned Lord the Lord Chancellor and Secretary of State has just conceded that the concordat has not been fully translated into the Bill, but we greatly welcome the fact that he has undertaken to introduce necessary amendments. In view of what the noble Lord, Lord Kingsland, said, I will spell out—so that there is no doubt about it—what has been said. The panel to appoint members of the Judicial Appointments Commission for the Supreme Court will be an appointing panel and not an advisory panel to be consulted by the Minister. That is the first point.

The second point is that appointments on merit are of fundamental importance. What we have heard from the noble and learned Lord, Lord Falconer, is that he will amend Clause 51 so that it will be the Judicial Appointments Commission and not the Minister that specifies the considerations to be taken into account in assessing merit. As Professor Sir Colin Campbell, the wise chair of the Commission for Judicial Appointments, noted in his letter to the Times on Saturday, it is:

"an invidious role for a politician".

As regards Part 2 of the Bill, we believe that the process of appointment to the Supreme Court for the UK should correspond to the process for the appointment of senior judges in England and Wales, with only one name—rather than two to five—being submitted by the Appointments Commission. The name of that candidate should be submitted not to the Minister—at least certainly not unless we have a Minister of Justice—but to the Prime Minister, with a requirement to give reasons to the commission for the rejection if the Prime Minister does not find the candidate acceptable. Those changes would reduce the scope for political interference.

When selecting candidates for the Supreme Court, the commission needs to be broad-based and to include members of the Scottish and Northern Ireland commissions. The provision in the Bill for further consultation by the Minister with politicians in Scotland, Northern Ireland and Wales, and with secret soundings by Ministers with senior judges, is wholly objectionable because of the risk of political interference. Sir Colin Campbell has rightly drawn attention to the defects in the present system of secret soundings.

The noble and learned Lord, Lord Millett, during the debate on 12 February, explained that his reasons for favouring the creation of a new court were "entirely practical and pragmatic". He said:

"The fact is that this House can no longer provide the accommodation, resources and facilities which a properly serviced Supreme Court requires—or, if it can, it is not minded to do so".

He said, and I agree,

"We are probably the worst supported Supreme Court of any major jurisdiction in the world and we act throughout on a shoestring. The time is rapidly approaching when this simply will not do.—[Official Report, 12/2/04; cols. 1293–94.]

The senior Law Lord, the noble and learned Lord, Lord Bingham, the noble and learned Lords, Lord Steyn and Lord Woolf, have expressed similar views, combining pragmatism with constitutional principle. The House will surely agree with them that the Supreme Court of the United Kingdom must have adequate resources not only to promote efficiency and quality in the judicial process but also for the lawyers and the general public. It has to be at least on a par with other final courts across the Commonwealth.

The Supreme Court should have responsibility for the administration of its own resources and for negotiating them with the Treasury. The noble and learned Lord, Lord Bingham of Cornhill, explained in his evidence to the committee in the other place that the Supreme Court should have its own staff, employees and budget. That committee concluded that,

"The Department for Constitutional Affairs is not the appropriate organisation to run the new court because it is too associated with the England and Wales court system and because giving the Government control over the administration of the new court could offend against the principle of judicial independence".

We agree with that. In Australia, a one-line budget is annually agreed between the High Court's chief executive officer and the attorney-general. In the Law Lords' response to the Government's consultation paper on a Supreme Court, the Law Lords agreed that a similar arrangement to the Australian model would be appropriate here.

Again we agree. The Supreme Court should have responsibility for administering its own resources. Its running costs should not be recouped by imposing a surcharge on court fees, but should come from general taxation.

To conclude, we support the main proposals for constitutional reform contained in this Bill and recognise the pressing need for the Bill to be enacted before the next election. We oppose referring the Bill to a Select Committee because we believe that it would sink the Bill and weaken judicial independence and the rule of law, instead of enabling the House to have primary responsibility for scrutinising and revising the Bill. We will seek to amend the Bill in important respects to give greater protection to judicial independence and the rule of law. We support deferring Part 2 until suitable accommodation and resources for the new Supreme Court become available. We will undoubtedly vote against the amendment of the noble and learned Lord, Lord Lloyd, if he divides the House.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 3:57 pm, 8th March 2004

My Lords, as I spoke in the debate on 12 February I will follow the Chief Whip's advice and concentrate today solely on the question of whether the Bill should be referred to a Select Committee—a view which was expressed by very many speakers in the debate on 12 February, including the right reverend Prelate the Bishop of Portsmouth, who I see is present, together with a number of the other right reverend Prelates.

Before I come to that, I add a short postscript to what I said last time on the question of Part 1 of the Bill. It arises out of something which was said by my noble and learned friend the Lord Chief Justice in his lecture the other day—a lecture which has already figured largely in what has been said by Members of the House. If I read him right, he said that he had reluctantly now come to the view that it was, or might be, too late to put the clock back to where it was on 11 June. He said that that was a view which he was expressing personally, not on behalf of the judges. It seemed to me to be a view which went rather further than the views which he expressed when he last addressed this House. But whether that be so, I have to say that I do not share that view. It is not too late to save the office of Lord Chancellor. That is what I hope we shall do, and I hope that very soon the noble and learned Lord the Lord Chancellor will confirm that it is not part of his case that it is now too late to put the clock back, as appears to be the case of the noble Lord, Lord Lester.

What would that mean if that were so? It would mean that the Government could make fundamental changes in our constitution without any mandate from the people—none has been suggested—and without any consultation of any kind. Then he might say, eight or 10 months later, "Sorry, the die has been cast; it is now too late to go back". All of us would regard that as intolerable and I hope that the noble and learned Lord the Lord Chancellor will confirm that it is not too late. Otherwise, it seems to me that we are making a mockery of parliamentary control of executive action.

Two years ago, on the initiative of the then Leader of the House, Lord Williams of Mostyn, the House accepted a recommendation that virtually all major government Bills should, as a matter of course, be subject to pre-legislative scrutiny. That has been government policy since 1997, as one can see from the first report of the Modernisation Select Committee in the other place. It said that there is almost universal agreement that pre-legislative scrutiny is right in principle. I assume that that is still government policy on the Front Bench. I look to see whether there is any sign of assent to that, but at the moment I see none.

On any view, the Bill is of major importance, yet there has been no proper consultation even now. Yes, there has been consultation on the details, as the noble and learned Lord the Lord Chancellor pointed out on 12 February, but when I asked him about the principles, he said—perhaps more implied—that consultation on the principles was not required because it was a matter of government policy. And anyway these ideas had been, as he said, around for generations. Lots of ideas have been around for generations, but that is not a substitute for specific consultation.

It follows therefore that this Bill was an obvious candidate for pre-legislative scrutiny. All the more so since the Constitutional Affairs Select Committee of the House of Commons, under the chairmanship of the right honourable Alan Beith, with a large majority of Labour Members, made a strong recommendation that the Bill should be published in draft form so as to allow proper scrutiny for what they called "fundamental changes". I had the honour of appearing before that committee, as did many of my colleagues.

Yet when the Bill was published three weeks later, the Government simply ignored the committee's advice without any apparent explanation. If I had been a member of that committee, I should have been somewhat aggrieved. If the Bill had started in the House of Commons, I would have expected someone to get up and make suitable noises. But that could not happen because the Government decided, for their own purposes, and in my respectful view rightly decided, that the Bill should start not in the Commons but in your Lordships' House. It seems to me to follow, therefore, that it is not only right but our bounden duty to give this Bill the kind of scrutiny which the Commons Select Committee so strongly recommended and on which it might have insisted. We ought to do that if only out of respect for the other place.

Let me give two examples of how we should be helped by a report from a Select Committee. First, there is the question of costs. The only information we have appears on page 50 of the Explanatory Notes. The current gross cost of running the House of Lords as a judicial body in this House is given as £623,000. The net cost—that is, net of fees—is £168,000. I would expect your Lordships to be astonished by those figures. It seems to me to be extraordinarily good value for money.

What will be the cost of removing the Law Lords to what was the other day called "a place of safety"? The capital cost is given as between £6 million and £32 million, which seems a wide bracket. The annual running costs, excluding Law Lords' salaries so as to make it comparable with the other figures I have given, will amount to £8.7 million, if my arithmetic is correct. These figures cry out for an investigation by a Select Committee before we can go any further with the Bill.

It was said by the noble Lord, Lord Lester, and hinted at by the Government that we need not worry about those figures because the legislation will not be brought into force until a new building has been found or created and the Law Lords are in a position to take possession of it, like the gods entering the new Valhalla. But that objection misses the whole point. We cannot even begin to legislate without knowing what it is all going to cost. How can we form a view, how can we express any sensible judgment, unless we are simply to be asked to buy a pig in a poke? We should resist that at all costs.

Then it is said that the enormously increased running costs do not matter because most of them can be recovered from those poor souls who are using the lower courts. But why should they be asked to pay? What will they get out of it?

That brings me to the second point which seems to me to cry out for further investigation. If we are to have a cost/benefit analysis of the new Supreme Court, what exactly is the alleged benefit? The only benefit so far identified by the Government is the removal of a so-called perception in the mind of the public: a perception that the Law Lords are not independent; a perception that their decisions are politically motivated; and a perception that they are operating under the shadow of Parliament. Those are not my words; they are the words of the Government in their consultation paper. I find it very difficult to take those words seriously.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Shadow Minister, Foreign & Commonwealth Affairs

My Lords, if the noble and learned Lord is not prepared to take seriously the words of the Government as published in their White Paper, is he prepared to take seriously the words of the noble and learned Lord, Lord Bingham of Cornhill, the senior Law Lord, when he said that it is high time that we have a Supreme Court divorced from the legislature and therefore representing in institutional terms what the constitutional reality is and that judges are not legislators, they are judges?

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

My Lords, of course I take seriously the views of the noble and learned Lord, Lord Bingham, and indeed the noble and learned Lord, Lord Steyn, and the noble Lord, Lord Brennan. But they are all what I would call constitutional purists. I am a realist. I see the cost of making this change and I am trying to compare it with the benefit.

The benefit appears to be the so-called perception. I have never met anyone with those perceptions and I wonder whether the noble and learned Lord the Lord Chancellor has done so. This is not the point being made by my noble and learned friend Lord Bingham; it is the point the Government make about what people perceive of the judiciary. The Government have put no evidence forward that any such perception exists. There has been no response from the public on that point because the Government did not ask the relevant question.

It may be said that the Government do not need hard evidence of such a perception because it is the job of politicians to know the public mind. So we in this House are being asked to legislate on the basis of a double perception—I adopt the brilliant phrase used the other day by noble Lord, Lord Norton of Louth—because we are being asked to legislate on the basis of the Government's perception of a perception in the mind of the public. I prefer to stand with my feet firmly on the ground and settle for what we have. Otherwise, we shall risk spending much time and money and cause huge upheaval in solving a problem that either does not exist at all—that is my view—or, if it exists, does so only in the minds of those constitutional purists to whom the noble Lord referred just now.

On a cost/benefit analysis, it seems to me that there can be only one outcome. Indeed, the situation is worse than that. Noble Lords who heard the noble and learned Lord, Lord Nicholls of Birkenhead, speak a week or so ago, supported by the noble and learned Lords, Lord Hope and Lord Hoffmann, will realise that there is a real risk, not just of an absence of benefit but of a positive detriment, in moving the Law Lords from their present position to another building. We thus have a novel concept: not a cost/benefit analysis, but a cost/detriment analysis.

Perhaps I may end by addressing a few words to the Liberal Democrat Benches.

Photo of Lord Marsh Lord Marsh Crossbench

My Lords, I am grateful to my noble and learned friend for giving way. I am very impressed, as I believe is the whole House, by the detailed analysis that he is giving of what could be achieved through his amendment to improve the Bill. My puzzle or problem is that on 12 February, when he made a typically trenchant speech, he closed, quite rightly and powerfully, saying:

"A case has not been made and I hope that the legislation will never be brought forward".—[Official Report, 12/2/04; col. 1265.]

What has happened in the past 14 working days?

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

My Lords, I can tell the noble Lord exactly what has happened. The last words in that speech were said in a mood of such exasperation that they may have been better thought out. They were perhaps not the exact words that I should have used.

As I say, I end by addressing a few words to the Liberal Democrat Benches. We all know that a policy of theirs is, and has been for many years, to create a ministry of justice, in place of the Lord Chancellor's Department. Therefore, this Bill undoubtedly represents a step in the right direction. I can well understand that. What I cannot understand is the need to hurry.

From the point of view of those on the Liberal Democrat Benches, surely it is all the more important to get this vital step right, even if it depends on waiting for three months, say, for a report from a Select Committee. Evidently, that was the view of the right honourable Alan Beith, chairman of the Lord Chancellor's Department Select Committee, a view which no doubt Members on the Liberal Democrat Benches in this House will take very seriously. For it would appear odd if the Liberal Democrat Peers took a view that was different from that taken by Alan Beith and his committee in the House of Commons.

Of course, I could understand Liberal Democrat anxieties if this Motion meant that the Government would lose the Bill altogether. But that will not be the consequence. The Select Committee would need about three months to gather evidence and to form a view. It could report by the end of July, which means that the Bill could be through this House by the end of October and, as a matter of course, it could and would be carried over, in the Commons, to the next Session. Where a Bill is subject to pre-legislative scrutiny, whether it has been mentioned in the Queen's Speech or not, it has always been contemplated that it may be necessary to carry it over—and why not?

That point appears to have escaped the Lord Chancellor—unless I missed something—when he was engaged in whizzing around studios this morning. When he was asked a specific question he made no reference at all to the possibility of the Bill being carried over. It seems to me that if my figures are right, the Bill could be on the statute book before the earliest date for the next election. I hope that that will provide some comfort to those on the Liberal Democrat Benches.

We are at a crossroads. Do we mean what we say about pre-legislative scrutiny or not? Do noble Lords regard my amendment to the Motion as a mere device, which was how it was described by the Lord Chancellor this morning, to prevent the House of Commons even considering the Bill or not? As far as I am concerned, this is not a device. For I cannot imagine a Bill that is more deserving of pre-legislative scrutiny and I cannot imagine a Bill in respect of which there is less haste. We are not dealing with a sudden catastrophe; we are not dealing with a breakdown in the health service, or a new wave of international terrorism; we are dealing with institutions that have been around for centuries. We have two former Lord Chancellors with us who have carried with distinction the heavy burden that everyone knows rests on the Lord Chancellor's shoulders, a burden which the present Lord Chancellor says he finds too difficult or perhaps too distasteful to carry.

Law Lords have been around since 1873 and before that there were famous judges. Great changes in the constitution, especially when they concern the administration of justice, should be made by consensus and not by government diktat.

My amendment to the Motion would mean that the whole Bill should be referred to a Select Committee. But I would not expect that committee to have any trouble with Part 3, which has already been subject to the closest possible pre-legislative scrutiny by the Lord Chief Justice himself and the judges. What better pre-legislative scrutiny could one have? It is Parts 1, 2 and 4 that worry me.

My last point is that last Thursday I had a conversation with the Chief Whip at his request. He asked me to bear in mind that if my amendment to the Motion were carried it would mean that this House would never again, during the lifetime of this Government, have a major Bill for consideration at the start of a parliamentary Session.

Photo of Lord Grocott Lord Grocott Chief Whip (House of Lords), HM Household, Captain of the Honourable Corps of Gentlemen-at-Arms (HM Household) (Chief Whip, House of Lords)

My Lords, perhaps I can respectfully say that there were two parties to that conversation and that certainly is not what transpired between the noble and learned Lord and myself. I said to the noble and learned Lord—I took the precaution of noting it down—that it would make it extremely difficult for business managers such as myself to argue with other colleagues in government that major legislation should start in this House if the effect were to delay it or even prevent it proceeding to the other Chamber.

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

My Lords, I entirely accept the correction, but it makes not the slightest difference to what I was about to say. The noble and gallant Lord, Lord Craig of Radley, the Convenor of the Cross-Benchers, was asked by the noble Lord, Lord Grocott, to inform the Cross Benches of what would be the likely result if the amendment to the Motion were carried. I do not know whether that was an attempt to twist my arm. On the whole, judges are not used to having their arms twisted. But if my arm was being twisted, I did not feel any pain. I told the Chief Whip that if that were a factor in the equation, it was not for me to decide, but for the House as a whole, which is why I mention it now.

Photo of Lord Carter Lord Carter Chair, Draft Disability Discrimination Bill (Joint Committee), Chair, Draft Disability Discrimination Bill (Joint Committee) 4:20 pm, 8th March 2004

My Lords, the noble and learned Lord, Lord Lloyd of Berwick said that as he had spoken on 12 February he intended to truncate his remarks. I cannot help wondering how long he would have spoken for if he had not spoken on 12 February.

It had not been my intention to speak in this debate, but I decided to do so when I saw the amendment that was tabled and has now been spoken to by the noble and learned Lord, Lord Lloyd of Berwick. To send a major Government Bill to a Select Committee is completely unprecedented and the procedure of such a committee is singularly inappropriate for the consideration of a major Bill. I will show this later in my speech. As we have heard, only one government Bill has ever been sent to a Select Committee—the Hare Coursing Bill 1976. That was an important but not a major Bill. The Select Committee effectively killed it. Incidentally, that Bill was produced by a Labour government and the Conservative opposition proposed the setting up of a Select Committee. With this one exception, the Select Committee procedure has been used only for Private Members' Bills.

Before dealing with what I regard as the fatal flaws in the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, I should like to deal with the anomalous position, in respect of this Motion and the proceedings of the House generally, of the 12 Lords of Appeal in Ordinary and the eight retired Law Lords who are still eligible to sit judicially. In my view, this anomaly shows exactly why it is right that the Law Lords should no longer be Members of this House, as set in Clause 94.

The principles of participation by the Law Lords were clearly set out by the noble and learned Lord, Lord Bingham of Cornhill, the senior Lord of Appeal in Ordinary, in his Statement of June 2000. He stated that:

"As full Members of the House of Lords the Lords of Appeal in Ordinary have a right to participate in the business of the House. However, mindful of their judicial role they consider themselves bound by two general principles when deciding whether to participate in a particular matter or to vote: first, the Lords of Appeal in Ordinary do not think it appropriate to engage in matters where there is a strong element of party political controversy; and secondly the Lords of Appeal in Ordinary bear in mind that they might render themselves ineligible to sit judicially if they were to express an opinion on a matter which might later be relevant to an appeal to the House."—[Official Report, 22/6/00; col. 419.]

The amendment that we are considering is clearly a matter of party political controversy. The Government are strongly opposed to the amendment, but the Opposition, as we have heard, support it. If the principles of the statement of the noble and learned Lord, Lord Bingham of Cornhill, are to be observed, the Law Lords should not participate or vote on this amendment or indeed take part in proceedings on the Bill.

This Bill and this Motion directly concern the future of the Law Lords and the role of the judiciary, yet by their own self-denying ordinance the Law Lords remove themselves from the debate and the vote. Nothing could more clearly show the anomaly of the Law Lords as Members of this House. In my view, if there was an argument for them staying, it was effectively ended by the statement of the noble and learned Lord, Lord Bingham of Cornhill, who has not spoken in this House since that statement. I would interpret the statement as also applying to the eight retired Law Lords who are still eligible to sit judicially. It is interesting to note that of those retired Law Lords, seven have either not spoken at all since June 2000 or have spoken on four occasions or fewer. The noble and learned Lord, Lord Lloyd of Berwick, has spoken on 36 occasions since June 2000 and has sat judicially 28 times, most recently in December 2003.

I use those figures to illustrate the anomaly of the Law Lords being Members of this House. It is clear that the noble and learned Lord, Lord Lloyd of Berwick, does not consider that that part of the Bingham statement referring to party political controversy applies to him, since if he did he would not have been able to table his amendment or vote for it.

Photo of Lord Strathclyde Lord Strathclyde Conservative

My Lords, one of the reasons why the House has heard so much from the noble and learned Lord, Lord Lloyd of Berwick, is that he was asked by the former Leader of the House, Lord Williams of Mostyn, to chair a committee on the Speakership. The noble and learned Lord, Lord Lloyd of Berwick, has naturally spoken on many occasions on that subject.

Photo of Lord Carter Lord Carter Chair, Draft Disability Discrimination Bill (Joint Committee), Chair, Draft Disability Discrimination Bill (Joint Committee)

My Lords, the noble Lord, Lord Strathclyde, is quite wrong. If he examines the table helpfully prepared by the Library, he will find that the noble and learned Lord, Lord Lloyd of Berwick, has spoken on 36 occasions on a number of Bills on all sorts of issues, not just on the Speakership of the House.

I am sure that a number of the noble Lords who support this Motion are thinking of a Select Committee that would take evidence and then report in rather the same way as the committees on stem-cell research or incitement to religious hatred, or indeed as a Select Committee of this House or a joint Select Committee of both Houses would in relation to a draft Bill. Having chaired two Select Committees on draft Bills, I know how useful the procedure can be. The case has been advanced that the Constitutional Reform Bill should have been a draft Bill. That argument is irrelevant to the amendment tabled by the noble and learned Lord, Lloyd of Berwick. The Government have not produced a draft Bill. There is a substantive Bill before the House and the procedure of a Select Committee on a Bill is very different from that of the type of Select Committee that I am sure many noble Lords have in mind.

I am not sure that the noble and learned Lord, Lord Lloyd of Berwick, consulted the Companion to make himself aware of the specific procedure before he tabled his amendment. It might help the House in this debate to know whether he did. I shall give way to the noble and learned Lord, Lord Lloyd of Berwick, if he would like to inform the House whether he is aware of the specific procedure for a Select Committee on a Bill.

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

My Lords, indeed I am and I have consulted the Officers of the House. They have informed me that what I am proposing is the correct way to approach pre-legislative scrutiny in this House today.

Photo of Lord Carter Lord Carter Chair, Draft Disability Discrimination Bill (Joint Committee), Chair, Draft Disability Discrimination Bill (Joint Committee)

My Lords, let us see what the Companion says. It states:

"When the Committee has completed its deliberations, it makes a report to the House on the provisions of the Bill, recommending whether or not it should proceed."

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, we are not concerned with what the Companion says, but with the answer to the question that the noble and learned Lord, Lord Lloyd of Berwick, asked. What was the advice that was given to the noble and learned Lord, Lord Lloyd of Berwick? That is what we are concerned with.

Photo of Lord Carter Lord Carter Chair, Draft Disability Discrimination Bill (Joint Committee), Chair, Draft Disability Discrimination Bill (Joint Committee)

My Lords, that advice was entirely correct. Of course the noble and learned Lord, Lord Lloyd of Berwick, can table an amendment such as this. However, there are rules that govern the sending of a Bill to a Select Committee. The Companion states:

"If it considers that the bill should proceed, the committee reports it with such amendments as it thinks fit, and the bill is then recommitted to a Committee of the whole House in the form in which it has been reported. If the committee considers that it should not proceed, it reports the Bill accordingly, without amendment.

"When a select committee reports that a bill should not proceed, the Bill is not recommitted . . . The bill remains in the list of Bills in Progress until the end of the session under the heading 'Reported from the select committee that the bill should not proceed'. The House normally acquiesces in a report from a select committee recommending that a bill should not proceed, and no further proceedings on the bill take place."

Are the noble and learned Lord, Lord Lloyd of Berwick, and those who support his amendment really proposing that 12 or perhaps 16 Members of this House should have the power to recommend that a major constitutional Bill should not proceed, or should have the power substantially to amend the Bill? Is the power of such a Select Committee to amend the Bill to be preferred to the Committee, Report and Third Reading of the Bill on the Floor of the House?

It is no accident that only one government Bill has ever been sent to a Select Committee. If the House were to accept this amendment, it would be setting a very dangerous precedent. It is clear that the Bill could not be completed this Session. The House would be ignoring a very powerful convention that the Government of the day are entitled to get their business through without unreasonable delay.

If the Opposition were to support this amendment, it would be the second occasion in less than two years on which they have supported unprecedented procedures to delay government business. The first occasion was that of the Animal Health Bill 2002, and this is the second example. I find it hard to believe that the Opposition really believe that they will form the Government after the next election if they behave in this way.

I say in the friendliest possible way to the Opposition that the Chief Whips are renowned for their longevity and their long memory for devices which delay government business. I see from today's press that Mr Alan Duncan, the opposition spokesman in the other place, said that the Government should bin the Bill. If that is what the Opposition think, why did they not have the courage of their convictions and table a Motion that the Bill should not receive a Second Reading? Instead, they have hidden behind the amendment of the noble and learned Lord.

I have set out very clearly why a Select Committee on a major government Bill is unprecedented and why its procedure is singularly inappropriate. I ask the noble and learned Lord, Lord Lloyd of Berwick, to consider very carefully the implications of what he proposes. If the amendment is put to a vote and accepted, it will be an unprecedented challenge by a House where the Government are substantially in the minority to the undoubted right of the elected Government to secure their business, and it would go to the heart of the powers of this House to scrutinise and revise legislation.

If the amendment were accepted, in my view, the Government would be acting entirely properly and well within their rights if they withdrew the Bill and immediately introduced a No. 2 Bill in the Commons. In that event, this House would lose the advantage of being the first House to consider the Bill, which would then, of course, become subject to the Parliament Acts.

This House should not allow itself to become party to a confrontation between some elements of the judiciary and the Government.

Photo of Lord Alexander of Weedon Lord Alexander of Weedon Conservative

My Lords, I speak as someone who does not want to become a party to any confrontation but who is trying to achieve decent legislation in decent form, and I address the noble Lord, who, as a government Chief Whip, was a very fine supporter of this House. Can he give his view on whether the Bill should have been subject to pre-legislative scrutiny before it was introduced?

Photo of Lord Carter Lord Carter Chair, Draft Disability Discrimination Bill (Joint Committee), Chair, Draft Disability Discrimination Bill (Joint Committee)

My Lords, there were two major consultation papers and 442 responses to those consultations on reforming the office of Lord Chancellor and setting up a Supreme Court. Thorough consultation has taken place with a substantial response. Incidentally, if the Select Committee were set up, presumably all the people whose evidence is already in the public domain would have to repeat it for the Select Committee.

This House should not allow itself to become party to a confrontation between some elements of the judiciary and the Government. I ask the noble and learned Lord and those who support his amendment to think very carefully indeed about the course of action that he is proposing.

Photo of Lord Woolf Lord Woolf Crossbench 4:32 pm, 8th March 2004

My Lords, as I see it, my role in your Lordships' House is, because of the office that I hold, to communicate to your Lordships directly the views of the judiciary and, in particular, those of the Judges Council, of which I am chairman. I appreciate that the desirability of the Chief Justice of the day continuing to perform that role is controversial. However, for the time being, I shall continue to assist the House to the best of my ability without aligning myself with any political party. Consistent with that position, I do not, and will not, vote while I hold my present office.

Whatever may have been the position historically, the modern judiciary, far from being opposed to change or reform, is willing to embrace it and support its implementation. However, it wants to see that what is proposed will improve the quality of justice available to the public. Increasingly, it is the judiciary's experience that, if it is involved in proposals for reform from an early stage, it can help to ensure that the changes are successfully devised and implemented in a way that would not be possible without its support.

That experience has dictated the judiciary's approach to the proposals for constitutional reform. In the past, I have made no secret of the judiciary's unhappiness about the manner in which the proposals were first announced. However, we have put that concern to one side in order to focus on the future. Representatives of all levels of the judiciary have worked, within a constrained timescale and in close co-operation with the Department for Constitutional Affairs, to identify the safeguards that need to be put in place to protect judicial independence.

That work resulted in the agreement reached between the judiciary, the noble and learned Lord, Lord Falconer of Thoroton, and myself, which we have heard described in this House as the "concordat". Its terms have been included in the Bill, subject to certain amendments which the noble and learned Lord has agreed are needed.

The noble Lord, Lord Kingsland, was right and correctly quoted from the speech that I gave last week. However, nothing that I said in that speech was intended to detract from the concordat or to indicate that I am in any way dissatisfied with it. However, as I indicated in that speech, it is correct that there are matters of concern to which I referred and, in particular, one matter which is not before this House today.

The judiciary considers that the parts of the Bill that reflect the concordat are a highly desirable package of measures designed to ensure the continued independence of the judiciary. The provisions reflect the need, which the judiciary recognises and welcomes, for the executive and legislature to have an appropriate share of the responsibility for the justice system. The continuation of a spirit of partnership between the legislature, the executive and the judiciary is critical if the courts are to be able to meet the evolving needs of society. In that connection, I was pleased to hear this morning during the appearances of the noble and learned Lord the Lord Chancellor on the radio that he is now prepared to reconsider whether anything could be achieved in relation to Clause 11 of the Asylum and Immigration (Treatment of Claimants, etc.) Bill.

However, given that the concordat is designed to protect the independence of the judiciary, I would expect the parts of the Constitutional Reform Bill which are based upon the concordat to be welcomed by all sides of the House. If they are, that will be highly satisfactory as, in my judgment, constitutional reform should be by consensus whenever possible. In that regard, in relation to the concordat, I was pleased to hear my noble and learned friend Lord Lloyd of Berwick indicate that it is not Part 3 of the Bill which he considers should be the subject of scrutiny.

I accept that it is extremely important for the Bill to be properly scrutinised during its passage through this House. However, I hope that that can occur in the conventional way because the transitional position is, in my view, wholly unsatisfactory for the administration of justice. I can see, and would accept, that a delay of about three months might be manageable, but I would consider it an unsatisfactory situation if the present position were left in place.

I base my comments on my experience of dealing regularly with the Department for Constitutional Affairs. I have immense personal admiration for the civil servants who work in that department, and I know the ability that civil servants have to change their approach as a result of a change in administration. However, I have to say to your Lordships that I and my colleagues have reservations about whether it is practical to go back to where we were before 12 June—whether such a situation is regrettable or not.

Quite apart from that matter, a new method of appointing judges is urgently necessary. We need an appointments commission. The present method of appointing judges has proved unsatisfactory by modern standards. We have done our best, and successive Lord Chancellors have done their best, but it is not a novel statement to say that a fresh approach is needed. This could only be properly and appropriately provided by an appointments commission.

The judiciary does not want the present situation to continue longer than is absolutely necessary. It wants to see the protection for the justice system that the package provides enshrined in statute at the earliest appropriate date. It would be concerned if the House took a course which meant that there was a serious risk of that not happening.

The position as to the Supreme Court is different. Here, the judiciary has no agreed position that I can report to the House. I am myself ambivalent on the subject, and have been very much influenced by the speeches that I have already heard in the House on the advantages and disadvantages of having a Supreme Court. What the judiciary is agreed on is that, if there is to be a new Supreme Court, it should be appropriately accommodated and resourced.

There is but one more matter to which I wish to refer. An advantage of addressing your Lordships in person is that it avoids being quoted out of context. I believe this happened last week, and, as a result, an unfortunate impression was created that I personally intended to be discourteous to my noble and learned friend the Lord Chancellor. I can assure the Lord Chancellor that no discourtesy was intended, but I apologise if offence was caused.

What happened can be seen from the full text of my Cambridge lecture. In the course of my speech I referred to that mythical legal figure "the man on the Clapham omnibus". I suggested that he might not take seriously my concerns about having a single person performing both the roles of a Secretary of State and Lord Chancellor, since, after all, that,

"engagingly friendly and cheerful chappie", appeared quite happy performing both roles.

I hope that it is not inappropriate to describe my noble and learned friend as "engagingly friendly and cheerful". This may or may not be a description that all Lord Chancellors would have had applied to them. However, I confess that it reflects my opinion of the present Lord Chancellor.

The rub is the use of the colloquial word "chappie". It betrays a degree of undue familiarity when used of a person holding a high office of state. If I had not been attributing the words to the man on the Clapham omnibus—in a vain attempt to inject a lighter note into a speech out of sympathy for my audience—I would not have used it. However, now that I have explained, I hope it will be accepted that I intended no disrespect.

On reflection, I suspect that I should also apologise to the venerable gentleman on the Clapham omnibus, who I now appreciate would never use the word "chappie".

I also apologise to your Lordships for raising the subject. However, my use of the word "chappie" has over the past few days—to my horror—been treated by a number of commentators as indicating that the country is in a state of crisis, and I thought that your Lordships should see the context.

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

My Lords, before the noble and learned Lord sits down, might I ask him whether he would be prepared to help the House—if it is an inappropriate question I apologise—and if he is prepared to express a view on whether or not the independence of the judiciary would be in any way imperilled if this Bill is either delayed or, ultimately, not passed.

Photo of Lord Woolf Lord Woolf Crossbench

My Lords, as far as I can venture an opinion—and I make it clear that this is my own opinion—delay can be accommodated and it would not affect the independence of the judiciary.

I would, on the other hand, be very concerned if this Bill was not passed, and we were left with the present situation with regard to the appointment and disciplining of judges, and the great many other matters—I think that there are 700 of them—which are the subject of the agreement that was reached in the concordat. They deal with a range of responsibilities which we have never needed to sort out, which we accepted should lie in the hands of Lord Chancellors and which were safely there because Lord Chancellors exercised the powers in fact in a way that was not inconsistent with the independence of the judiciary.

If we have a situation where a Lord Chancellor is also a Secretary of State and so has a dual loyalty, then I am bound to say that I have concerns.