I appreciate that this has already been debated but I shall intervene to make one or two points of a procedural nature. In doing so, I regret that the noble and learned Lord the Lord Chancellor is not able to be here today—I think he told us last week that he had to go to Liverpool and Newcastle—because the questions I wish to put are really directed at him. But, no doubt, the noble Baroness will provide a perfectly adequate explanation in her usual charming way.
When we originally debated the group of which Clause 41 stand part is part, which was the group based on Clause 17 stand part, the noble and learned Lord, Lord Lloyd, made the comment in opening that whoever put together the group of amendments before us deserves a prize of some kind. I have never seen a group of amendments remotely like it before.
I remember a time when I was in a similar position to the noble Baroness. Very often, as a Minister there was a temptation to put together pretty large groups to try to get through the business as quickly as possible. One would start off with as big a group as one could get and messages would come from the other side suggesting changes and then further changes. In the end, one accepted what was offered, normally, by the Official Opposition.
On this occasion, further remarks were made about the size of the group—I think that the noble Lord, Lord Brennan, complained about the size. Then, much more surprisingly, when the Minister in charge of the Bill, the noble and learned Lord the Lord Chancellor himself, came to wind up the debate on this group of amendments, he made the remark that he rather agreed with his noble friend Lord Brennan that the group was indigestible. There are too many items in one group. Quite obviously, his eyes were bigger than his stomach on this occasion, if I can put it in those terms.
I wish to make the point that, although I can see that there were arguments for having a large group so that there could be a general debate on the question of the Supreme Court, it denied the House the chance to debate some of the detail on the Supreme Court, although we have found other ways of doing it. Various pleas were put in to get the grouping right when we come to this subject on Report. I hope that the noble Baroness will give us an assurance that, when it comes to Report, the noble and learned Lord will not be quite as ambitious as he was and will allow the House to debate not only the general principle but, once that matter has been resolved, also the details that are dependent on that group.
I have another point but I do no know whether it should be put to the noble Baroness, to the noble and learned Lord or to the Whips' Office. It is very small but rather important point. As noble Lords will know, whenever we debate lists of amendments in Committee or on Report, below the heading on the list of groupings is the mantra that says:
"Although every effort is made to secure agreement to these groupings, they remain informal and not binding. It is therefore open to any Peer to speak to an amendment in its place in the Marshalled List".
I think that it is very important that the House is always reminded of that form of words so that noble Lords can be reminded that, even if matters have already been debated, they can come back to them in their usual place. It is possible that later today or on the fifth day of Committee we shall wish to come back to certain amendments. If that is the case, I shall certainly seek to notify the noble Baroness.
Although that form of words appeared on the groupings list today, last Monday—I have a copy of the groupings list for that day—that mantra did not appear, and it rather raised my suspicions that the Government Whips Office was again trying to improve matters for itself by speeding up debate on the Bill. I should like an assurance from the noble Baroness that I am being over-suspicious and that possibly I have a conspiratorial mind. I should like an assurance that it was a mistake, that there is no intention of dropping those words and that we shall see them on the groupings list on every occasion that it is necessary.
I am grateful to the noble Lord, Lord Henley. Indeed, he is correct in his summation of what happened last week. I can say only that the groupings were agreed through the usual channels and that therefore this grouping stood because it had been agreed. Having said that, I entirely support the remarks of the noble Lord, Lord Henley, and those made last week by my noble and learned friend and, indeed, by the noble and learned Lord, Lord Lloyd, that, although the groupings would possibly be considered to be satisfactory in Committee, they would certainly not be satisfactory at Report.
Therefore, I give an absolutely clear undertaking that we intend to look for much smaller and more digestible groupings with the opportunity to debate these issues on Report at length and in detail as appropriate. I appreciate that for some noble Lords that may seem to be a little late in the day. None the less, as I said, this grouping was agreed through the usual channels.
I also agree with what the noble Lord said about informal groupings and the opportunity for noble Lords to speak. Members of the Committee know only too well that, for ease of running the business, it is useful to group amendments and to stick to those groupings if we can. In that way, they will receive a better service from those on the Front Benches who have to try to reply in good order. However, as noble Lords also know very well, one can always speak to one's amendment at any point if one wishes to do so.
I am absolutely certain that it will simply be the case that the words were omitted. I have no doubt that the Whips Office will ensure that they are included on future occasions. On that basis, I hope that the noble Lord will feel able to withdraw his opposition to the clause standing part.
Before the noble Baroness sits down, perhaps I may add a short complaint about the groupings. When I arrived this morning at about 11 o'clock, I found on my laptop a draft set of groupings which was e-mailed on Friday afternoon—a day when the House was not sitting—with a request for alterations to the groupings to be sent by 10.30 this morning. I am glad to say that there was a response to the one request that I made, although it came outside the cut-off time. But it seems to me that we should pay a little more attention to the practicality of ensuring that draft groupings are circulated in time.
Perhaps I may also have an undertaking from the noble Baroness. This is in absolutely no way a criticism of her because I think that she is answering our questions with charm and doing her level best to answer them properly. However, it seems slightly odd that the noble and learned Lord the Lord Chancellor, who is intent on mucking up the constitution, is not here to do so himself. Can we have an undertaking that he will be here throughout the whole of the Report stage and that he will not go off gallivanting around the country?
In response to the noble Lord, Lord Goodhart, my understanding is that we cannot form groupings until all the amendments have been tabled. I did not receive my copy of the groupings list until Friday evening and therefore was unable to start work on addressing the issues until then. Therefore, my weekend was rather busy too.
I shall look at this matter because I appreciate that it is important—not least because, frankly, if people are to change the groupings, the sooner I know, the better the service I can give the House. But the problem probably arose due to the time by which the amendments had to be submitted, which meant that we could not make the groupings until the last minute.
I think that the normal practice has been to ask for any amendments to be submitted by noon. I had assumed that that would be the case on this occasion but we were asked to table them by 10.30 a.m.
I am sure that the noble Lord is right in thinking that the amendments would not be required to be submitted until noon on Friday. The grouping would then take place and noble Lords would be notified.
Perhaps we can discuss outside the Chamber whether there is a better method of getting this information across. However, to some extent, we are in the hands of noble Lords who wish to table amendments. The sooner we have them and the sooner we know that the list of amendments is the final one, the faster we can group them and the more satisfactory the process. Therefore, perhaps we can do some work on that.
In reply to the noble Earl's question, there is no desire on the part of my noble and learned friend to be anything other than a good servant to your Lordships' House, although, on occasion, there will be longstanding business that must be dealt with. I looked forward to the opportunity of taking various parts of the Bill through the Committee stage. Having felt that my noble and learned friend had dealt with some of the major issues in our deliberations in Committee last week, in part I am looking to take back to my noble and learned friend comments for the Report stage. I hope that, in that spirit, the noble Earl will feel that there is no disrespect to the Committee. Rather, I hope that I can be of as equal service as my noble and learned friend.
The noble Baroness's sincerity, ability and charm are receiving no form of criticism from me whatever. It simply seems to me that we are dealing with something of extreme importance and that the Minister should be here himself, even if he makes a pig's ear of it and has to be rescued by the noble Baroness and the noble Lord sitting behind her, who is an ever-present help in trouble.
I conclude by thanking the noble Baroness for that assurance. As ever, I want to be as fair as possible. Therefore, perhaps I may give an assurance to the noble Lord, Lord Goodhart, that I received the e-mail on Friday or Saturday by means of the remote access available under the parliamentary computer system and I was able to respond to the Government Whips Office some time late on Sunday afternoon. But, again, like the noble Lord, my understanding was that normally one has until about 12 o'clock to comment on any further draft list. That can sometimes be quite difficult if, like me, one has to travel down early on a Monday morning from Cumberland, as that rules out any further remote access to the parliamentary computer network. Nevertheless, I managed to receive something today and, so far as I am concerned, the list of groupings seems to have been dealt with satisfactorily. Therefore, I have no intention of pressing my opposition to Clause 41 standing part of the Bill.
In moving Amendment No. 88BR, I shall speak also to Amendment No. 88BU, which stands in the name of my noble friend and myself.
Listening to the debate on Amendment No. 88BQ, which was dealt with before the Statements were read, I found myself wondering whether these two amendments should have been grouped with that one because, in a sense, they are on the same subject. However, having listened to the Minister's reply, I was very glad that we had kept them separate.
In replying, the noble Baroness suggested that Clause 41, which we were discussing under the previous amendment, was not the key clause for debate. As I understood it, she suggested that, when discussing that subject, the key debate should be on Clause 45, and it is to Clause 45 that Amendment No. 88BU refers.
These two amendments relate respectively to Clauses 42 and 45 and to the incomprehensible fact that, under these clauses, it is left entirely to the Minister's discretion whether he or she provides accommodation to the Supreme Court, whether he or she equips, maintains and manages that accommodation, and whether he or she provides staffing for the Supreme Court. Clause 42, which relates to staffing, and Clause 45, which relates to accommodation, are, on their own, completely astonishing.
Of course, we shall all read very carefully what the Minister said about the amendment to Clause 41, because it was a complicated reply and I do not think that I have taken it in fully. However, I think that when it proposed that the subject should be addressed in Clauses 42 and 45, the Law Society of Scotland may have used the same reasoning that the Minister used. I do not know. We shall see as time goes by. Not only must the Minister provide accommodation and maintain it and provide staff, but we have repeatedly said, both on the previous Committee day and today, that that should be arranged before the court is set up. Last week the press reported that the Lord Chief Justice himself took that view, which I thought was interesting.
Amendment No. 88BR would place a mandatory duty on the Minister to appoint such officers and staff as he thinks appropriate for the Supreme Court, and Amendment No. 88BU to provide, equip, maintain and manage the accommodation as he thinks appropriate. The Law Society of Scotland feels strongly that those two functions should be mandatory on the Minister. I hope that when the Government table the amendments that are now promised and we have further debate on them, they will take on board that simple point of view from the Law Society of Scotland, which seems to me to have engaged in some very good thinking, and that those provisions will be made mandatory. The word in respect of all these matters should be "shall", and I am sure that the House will make sure that that happens before the court goes into action. I beg to move.
I happen to be an honorary member of the Law Society of Scotland, but that does not affect my view of this particular issue. It would make for consistency between the words used in Clause 41 and the later clauses in which the word "may" appears if the word "may" were replaced by the word "shall", as the Law Society has suggested.
It is absolutely incomprehensible to me that the Minister "must ensure" in Clause 41 and "may" in Clause 43. What happens if he just cannot be bothered to do it? He is not forced to do so by the Bill. The Bill simply gives him a discretionary power. Surely, as a matter of pure logic, it should read "must". I know that,
"the word must is not to be used to princes ... little man", but on this occasion "must" should be "must".
It seems to me that these amendments apply not only to Scotland but also to the whole of the United Kingdom. If so, they raise again the point made by the noble Viscount, Lord Bledisloe, in an earlier debate. As was said at that stage, when the Minister said that it was unnecessary to put in the word "premises", as a requirement on the Minister to provide appropriate premises as well as services, when one looks at Clause 45, it can be seen that the Minister is required to provide, equip, maintain and manage such Court houses, offices and other accommodation as he thinks appropriate. Therefore, there was a totally subjective test on premises, whereas on other matters the Minister was arguing that it was an objective test in relation to the requirement to provide an efficient and effective system of support. That enhances the importance of the substitution of the word "must" for "may" and the importance of returning at some later stage to Clause 41 to ensure that it is not in conflict with Clause 45 by apparently placing subjectively on the Minister a lower requirement to provide premises than he has to provide for other matters. At the end of the day, as the noble Viscount, Lord Bledisloe has said, the premises are immensely important in deciding whether or not it is appropriate that we should have a Supreme Court.
I have this morning discussed with officials the difference between the words "shall" and "may". In my short experience in your Lordships' House, the words "may" and "shall" have played a huge part in some of my deliberations.
Let me clarify the point about the discretion, because it is very important to place it on the record so that Members of the Committee can reflect on it. The discretion is not whether to provide accommodation or staff; it is whether the Minister should provide them directly or whether they are to be provided through staffing arrangements under Clause 43, or accommodation arrangements under Clause 45(2).
Having said that, I have enormous sympathy, as I am quite sure my noble and learned friend will, with what Members of the Committee have said; namely, that there is no question whatever but that accommodation, officers and staff must be provided. The issue is a linguistic one of how best that can be expressed on the face of the Bill.
I should like to reconsider this matter. As I have already indicated, we plan to table amendments at Report stage. I am sure that we will find a way of capturing what the Committee is seeking. I would suggest that it has already been captured, but clearly the Committee feels that we need at best to look again at the question so that I or my noble and learned friend can ensure that it is fully understood.
There is no question in my mind that the purpose behind this amendment is to ensure that these measures are provided. The question is how it is put on to the face of the Bill to ensure that we can delegate certain aspects of it—perhaps in relation to cleaning staff and so on—which would be right and proper and something that I am sure noble Lords would support, but in a way that the drafting of the Bill would allow. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.
Before the Minister sits down, I should say that I do not think the distinction is purely linguistic. I take a certain personal interest in the matter because when the bishoprics were disendowed finally more or less in the 1940s, the measure stated that the Church Commissioners may have the power to provide housing for diocesan bishops. Over the years the bishops of the Church of England assumed that that meant "shall", but the legal advice that the Church Commissioners received with regard to their absolutely inalienable core obligations does not include the provision of housing to diocesan bishops because the word was "may" rather than "shall". I therefore believe that the distinction is not purely linguistic and that there is real merit in making the obligations absolutely clear.
The right reverend Prelate will not be surprised to hear that I do not wish to get in between the Church Commissioners and their legal advisers. I repeat that the word "may" refers to "how", not that it "must" be provided. That is the distinction. However, as all Members of the Committee looked slightly bemused when I gave that indication, we will consider the matter further.
What the Minister has said reminds me that there certainly was a judicial sensitivity when in the past a proposal was made for so-called outsourcing in relation to the services of court staff. Therefore, I believe that careful thought is required about the extent to which the power to outsource, if that is the right expression, would be used in circumstances in which the people involved are close to the judicial process.
The noble and learned Lord is right to raise that matter. However, I go back to the points that I made earlier today about efficient and effective provision, which those involved would also be happy for me to make, in terms of the right kind of outsourcing. Having said that, however, there are clearly opportunities to delegate in order to get particular staff within the provision. We need to make sure that we have it right.
I thank all noble Lords who have contributed to the debate. I am very glad to have moved the amendment because several facts have come to light.
The question of whether "may" means that the Government may cause this to be done through third parties or may do this themselves seems to me to be not a particularly good argument for using the word "may". The Bill must state that the Government must see that these things happen by whatever means. That is the point. I think that probably a wee bit of drafting has to happen. My noble and learned friend Lord Mackay of Clashfern pointed out that there needs to be consistency between Clause 41 and Clause 45, which is right. I meant to say that, so I am grateful to my noble and learned friend, who never misses a trick, for helping me in that way.
The Government have to do a lot of work, not only for this to happen but also to see that it is on the face of the Bill in a way that means that the Government have to do these things whether through a third party or themselves in the case of staffing or the provision of the accommodation. I hope that the noble Baroness takes that on board. In the mean time I beg leave to withdraw the amendment.
First, I apologise to the Committee for the fact that I was not able to be here during the course of the debate on the first amendment in Clause 41. However, as it has had relevance, I have done my best to catch up with what was said at that time.
In moving Amendment No. 88BS I shall speak also to Amendment No. 88BT. These amendments go back to the whole question of consultation, about which we had discussion earlier. Amendment No. 88BS ensures that the Lord Justice Clerk is included in the list of senior judges. This, again, is a point raised by the Law Society of Scotland.
The list of judges contained in Clause 43 with whom the Minister should consult before making staffing arrangements includes many officeholders in the legal system of England and Wales. The list omits the office of Lord Justice Clerk as one of those senior officials in Scotland. The Lord Justice Clerk is the second most senior Scottish judge after the Lord President of the Court of Session. The Lord Justice Clerk sits in both the Court of Session and the High Court of Justiciary and takes precedence over all, barring the Lord President and other Senators of the College of Justice.
We raise this question because of the need for appropriate Scottish representation but also to cover eventualities when the Lord President of the Court of Session is not available. There might possibly be a moment when by some misfortune the Lord President of the Court of Session is either too ill or perhaps has passed away and has not been replaced, or there might be other issues. It is a matter of having equitable consultation of the appropriate parties in the United Kingdom.
The only other question I should like to ask the Government, if the Minister is able to reply, is whether she has any view of what this consultation will entail. It would be interesting to know whether the Government are merely going to pass notice to the various parties or whether they would require more response and interchange between the Government and those consulted.
Amendment No. 88BT adds a list of various legal bodies. Clause 43 allows the Minister to make staff provision for the court with third parties. The Minister is obliged to consult senior judges before making such appointments but no other bodies. That ties in with the intervention from the noble and learned Lord, Lord Mackay, who said how various people had sometimes been upset by the appointment of third parties, perhaps to jobs that would have been done, as one might say, in-house rather than by outsourcing, which I think is the word he used. The Law Society of Scotland believes that the proper administration of the court is a matter of importance to the whole legal profession, not simply the senior judges. This amendment ensures that there will be consultation with the legal profession in each jurisdiction in the United Kingdom. I beg to move.
I rise briefly to support the noble Duke in respect of the proposed insertion of the words "the Lord Justice Clerk" in the list of consultees. I believe that this is an appropriate recognition of his seniority in the Scottish system. My only experience of having direct contact with the senior judiciary in Scotland is when I was consulted, as a Member of Parliament, about the possibility of removal of someone from the Bench. On that occasion I was consulted by both the Lord President and the Lord Justice Clerk who clearly felt that in such a matter both should pronounce and both should hear what I had to say. They are not exactly Siamese twins but they have a role which it seems to me they very often seem to exercise together.
I think I am right in saying that the noble Lord, Lord Maclennan, was of course a Scottish MP but an English lawyer, so he brings a particular insight to these matters.
The noble Baroness may or may not know that the Lord Justice Clerk has been the second most important judge in Scotland for 500 years. So, it is a little peculiar that he is left out of the list of consultees. The Master of the Rolls and the President of the Queen's Bench Division are in the list as the second and third most important judges in England and Wales, so in fairness and for practical reasons, as my noble friend the Duke of Montrose said, he should be included in the list.
A number of amendments make this point. When my noble friend and I talked about this we thought perhaps it was right to discuss them when we reach the subject to which the list applies. However, we shall not need to spend long discussing this matter, particularly if the noble Baroness accepts my point, as I hope she will, about who should be included in the list. If that does not happen, there may be a little trouble.
I think it must be just an error that this particular office bearer was not included in the list because he is of the equivalent status to some of those who are mentioned in the English system. I hope that the noble Baroness is in a position to accept the amendment today. That would seem to me to be right.
However, in relation to this clause, here the Minister is being given the power to fix the fees in the Supreme Court. My understanding is—I am sure that I shall be corrected if I am wrong—that at present, the power to fix fees in the Supreme Court of England and Wales—that is, the present Supreme Court—requires the Lord Chancellor to secure the agreement of three out of four of the heads of division. So, it seems to me that there is something to be said for the Minister, if he is to do the fixing of fees, being required to secure the consent of the President of the Supreme Court. I do not suggest that he needs to secure the consent of all in this list, but certainly that would seem to be the corresponding provision to that which presently exists, as I recollect, in relation to the Supreme Court.
As regards Amendment No. 88BT, there is much to be said for the view that in fixing fees in the court, the profession should be consulted; that is, the Bar and the solicitors' branch. That is basically what Amendment No. 88BT proposes. I hope that the Minister is in a position to accept that amendment or at least to indicate that in due course she will accept it.
I can offer some assistance, because I was at one time the Lord President of the Court of Session, the other of the twins to whom the noble Lord, Lord Maclennan, referred, and I think I was consulted by him on the occasion he mentioned.
Where the Lord President is not available for the time being, there is another formula the Minister might like to consider, which appears in a number of Scottish Acts, such as the Criminal Procedure (Scotland) Act 1995. That formula is "the Lord Justice General"—or "the Lord President", as the case may be—"whom failing the Lord Justice Clerk". That would at least ensure that the Lord Justice Clerk was mentioned on the face of the Bill, and is a solution to the problem that would certainly be acceptable in Scotland.
In the light of my own experience, the amount of consultation built into this clause is enormous. With great respect to the noble and learned Lord, Lord Mackay of Clashfern, the clause deals not with fees but with accommodation, although the question recurs later on regarding fees. There is room for distinction according to the importance of the subject matter, which is why, in some places, the Lord Justice Clerk is specifically mentioned, and is consulted. The matter to which the noble Lord, Lord Maclennan, referred, was the removal of a sheriff, plainly an important issue, on which both senior judges were consulted and had to express their own views. On something such as outsourcing of staff, I would have thought that one voice would be enough. The formula I have suggested would be appropriate there. I would not dissent from the idea that, when it comes to fees, the Lord Justice Clerk might have an independent voice.
I am, of course, aware that Clause 43 deals only with the provision of staff, but it is the list of people who are to be consulted in Clause 43(5) that, in my view, makes it appropriate that the Lord Justice Clerk should be mentioned. As far as Scotland is concerned, he is of an equal status with a number of those mentioned as being consulted in England, and it would be right to provide for that. I am sure the noble and learned Lord, the Lord Chancellor, as well as the Minister, would like to be fair to Scotland, particularly with regard to the noble and learned Lord the Lord Chancellor's roots.
The fee point arises in Clause 47, where there is a similar list of people to be consulted. I thought it only right to mention that, in that part, consultation is slightly less than what is required.
I agree with the noble Duke that to consult six English judges and only one Scottish judge is inequitable, but I would suggest that he has propounded entirely the wrong solution. The answer is to strike out a large number of the English judges, as there are far too many people being consulted anyhow. The Lord Chief Justice will be the head of the judiciary, and can, with perhaps one assistant, represent them all. I suggest that next time the noble Duke produces his pruning scissors rather than his spade.
It is my honour to be the government spokesman for Scotland in this House, and I would like to start by thanking everybody who took part in this brief debate. There is no question that the consultation will be genuine, or that we will be fair to Scotland. I give that undertaking as we look at a number of amendments this evening.
These amendments add to the groups to be consulted on the authorisation of third party provision of staff to the Supreme Court. Amendment No. 88BS adds to the list of those to be consulted by the Minister when he is considering an order under Clause 43. My brief tells me—although the discussion tells me something quite different—that it is not quite clear what the specific interest of the Lord Justice Clerk would be over and above that of the Lord President of the Court of Session, given that, as now, there will be no appeal from the High Court of Justiciary.
I have listened to the discussion, and we will take away the points that have been made. We feel that this is not the time for this question to be considered in detail, for the Government are currently considering possible changes to the proposed governance and resourcing arrangements for the Supreme Court, and government amendments to this part of the Bill will appear on Report. Obviously we will take this evening's discussion into account.
Amendment No. 88BT adds to the groups to be consulted if an order is being contemplated to authorise the provision of staff to the Supreme Court by a third party. The amendments add extra layers of consultation to that already proposed by the Government, which may or may not be a good thing. While the Government consider it appropriate to consult with the senior judiciary on staffing arrangements for the court, it would be cumbersome for the Minister to have to consult additional layers of the judiciary and the bodies representing the legal profession on the detail of the provision of court support staff. It is not clear what these additional consultees would add to the views of the most senior judges. Similar provisions for the courts of England and Wales do not require consultation of the professional bodies, and there does not appear to be any reason why a different approach should be taken for the Supreme Court.
The noble and learned Lord, Lord Mackay of Clashfern, talked about securing the consent of the President. The provision to which the noble and learned Lord refers is Section 130 of the Supreme Court Act 1981. That clause was repealed by the Courts Act 2003, and replaced by Section 92 of that Act, which does not require judicial concurrence—one of the changes with which the senior judiciary were in agreement.
Given my explanation, and the undertaking that we will come back on Report with amendments that deal with the matters we have been discussing in these clauses, I would be grateful if the noble Duke would withdraw his amendments.
This has been a most interesting debate, and I thank all noble and learned Lords, and all other noble Lords, who have contributed to it. The Minister is talking about making major changes, and it is difficult for us to know what he will come up with. I was interested to hear the noble and learned Lord, Lord Hope of Craighead's, proposal for a middle way by employing the phrase "whom failing the Lord Justice Clerk". The Government could look at whether they wish to reduce the actual numbers by using that mechanism.
The legal bodies may represent the interests of those who would be affected by the hiring of third parties, and, as such, they might have something to contribute. Whether they would feel they were being adequately represented by the President of the Court of Session is not for me to say.
Amendment, by leave, withdrawn.
Clause 43 agreed to.
Clause 44 [Services: provision by third parties]:
[Amendment No. 88BTA not moved.]
Clause 44 agreed to.
Clause 45 [Accommodation]:
[Amendments Nos. 88BTB to 88BUA not moved.]
Clause 45 agreed to.
Clause 46 [Annual report]:
[Amendments Nos. 88BUB and 88BUC not moved.]
Amendment No. 88BV relates to the annual report from the Supreme Court. It concerns another question raised by the Law Society of Scotland.
The Minister's accountability for the court is enhanced by the requirement in Clause 46 for him to send the annual report to both Houses of Parliament. However, because the court is a United Kingdom body, it is important that the report should also be sent to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. That will increase accountability and reinforce the court's standing as a United Kingdom body. I beg to move.
This is an essential amendment. When the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales were set up, they had certain powers—indirect powers for some of them—relating to their local legal systems. It is absurd that they should not be kept as well informed as both Houses of Parliament.
I support my noble friend's amendment. It is simple courtesy that the court's report should go to the devolved assemblies and the Scots Parliament. The Scots Parliament may be interested in the charges that are made to litigants in Scots courts. We do not know the answer to that question yet, but it may be of great interest to the Scots Parliament. It will certainly be interested in the way in which taxpayers' money is spent on, for example, the resolution of devolution issues.
It is an important amendment, and I hope that the Minister has been given permission to accept it now. We do not want to put off such things. It is a necessary addition to the Bill.
I also support the amendment. It is not just the devolution issues that will concern the Scottish Parliament; the whole of Scots private law is devolved to the Scottish Parliament. Among the matters that it may have to consider is the question of the jurisdiction of the House of Lords over issues of private law. In some areas, such as social security issues that relate to children, there is no appeal to the House of Lords. If we translate that position to the Supreme Court, questions may arise about whether the jurisdiction should be enlarged or other jurisdictions reduced. There is a strong practical reason why the Scottish Parliament should be kept informed of the activities of the Supreme Court. The amendment should be accepted.
I am delighted to say that the Government have absolutely no objection to the principle behind the amendment. It is, of course, right that the devolved administrations be kept fully aware of the operation of the Supreme Court, as it will be the Supreme Court of the United Kingdom. The Government had envisaged that the annual report would simply be made available to the devolved administrations by convention, rather than on a statutory basis.
The importance of ensuring that the devolved administrations are adequately informed about matters relating to the Supreme Court means that we are sympathetic to the intentions behind the amendment. However, I hope that the noble Duke will withdraw it at this stage, as the Government will, on Report, table a comprehensive package of amendments to the clauses on resourcing and governance to reflect the agreements reached in the Select Committee on the Bill. Those amendments will affect the detail of the responsibilities for preparing, laying and publishing the annual report. In preparing them, we will consider with great sympathy the amendments tabled by the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour. I hope that, with that absolute undertaking, the noble Duke will withdraw the amendment.
I was interested to hear the Minister's reply. It was slightly longer than we had hoped. We had hoped that he would have accepted the amendment as it stood. It is always interesting to hear the Government saying how many things they wish to make available by convention, when we are dealing with a totally new body and do not know what the convention is.
In the circumstances, I shall read over what the Minister said. I beg leave to withdraw the amendment.
I want to add a brief footnote to the "may" and "must" debate initiated by my noble friend Lady Carnegy of Lour with regard to Amendments Nos. 88BR and 88BU.
I noticed that the Bill says that,
"The Minister must prepare an annual report".
He "must" also do something in Clause 41, but we are back to "may" in the other clauses. That underlines the point that a degree of consistency might be more appropriate in Clauses 41 to 46.
The use of the word "must" with regard to the responsibilities of Ministers has been rare in statute law. The word "shall" has always been preferred and is a slightly more courteous word. I hope that the Government will think about it again and replace "must" with "shall".
We come to the thorny question of the costs of the new Supreme Court and how they will be borne. We know neither the cost of creating the Supreme Court nor the cost of running it, although we can be totally confident that they will greatly exceed any estimate that we are finally given by the noble and learned Lord the Lord Chancellor, not because his estimate will be any worse than anybody else's but because government estimates are always inadequate.
We are discussing the Government's desire to recover the entire cost of the Supreme Court—other than those involved in criminal appeals and in cases in which legal aid is granted—from litigants. They propose to do that in two ways: by bumping up the fees charged in the Supreme Court a long way above those currently charged in the judicial House of Lords; and by spreading the unrecovered burden across the fees of all litigants in the United Kingdom—certainly in England and Wales, as they face some difficulties in doing it in Scotland. Basically, the litigant is to pay.
"Making litigants the revenue source of paying for a Supreme Court takes a lot of swallowing. The court exists only to try points of general public importance which need resolution for the public good. There will be some costs—yes—but having it run by the litigants of the nation is not really appropriate. Some other way should be devised".—[Hansard, 11/10/04; col. 69.]
Not only will the Supreme Court decide points of general public importance, very often it will have to decide those points due to some defects in the statutory drafting of the instruments which govern the case in question and will have to sort out that which should never have arisen if Parliament had done its job better.
Secondly, the court will frequently have to sort out points that arise, because previous pronouncements of the highest court in the land have either been less than totally clear or have involved, as so many things do, the law of unintended consequences, which have led to new points. Not only is the point often not of the litigant's own making, but it is the fault or consequence of the acts of the public bodies.
There are two aspects to the recovery of fees. One is the general charging of part of the cost to litigants in all forms of litigation. Unfortunately, that is not within the scope of the Bill, so I cannot table any amendment to prevent that gross injustice. But we are suggesting that there should be a limit on the fees charged in the House of Lords. When the professions gave evidence to the Select Committee, the Law Society suggested that no fees should be charged at all and that the whole of this clause should be struck out. In my customary moderation, I make only a more minor suggestion—that the overall level of fees charged in the Supreme Court shall not exceed, in totality and in real terms, the level of fees currently charged in the judicial House of Lords.
I describe that carefully because, when discussing this matter in the Select Committee, the Lord Chancellor pointed out that it might become appropriate to vary fees between different kinds of litigation. For example, perhaps those who bring tax appeals should pay a larger proportion, or that petitions for leave to appeal should cost more and the actual appeal should cost less. The amendment allows the Lord Chancellor total freedom on that matter and just says that the overall fee revenue for the average case shall not exceed in real terms what it is now. I venture to suggest that that modest proposal is highly desirable and that the venture of the Government, by imposing these new costs to accord with some dream or principle of theirs, should not fall upon individual litigants. I beg to move.
We entirely agree with the noble Viscount, Lord Bledisloe, about the undesirability of using fees from the courts within the three different jurisdictions in the United Kingdom to subsidise the costs of running the Supreme Court. That is undesirable for the reasons expressed by the noble Lord, Lord Brennan.
However, we have some difficulty with the amendment, which would be unworkable. But a case has been made for requiring any fees order under Clause 47 to be added to the list in Clause 106 of the orders that have to be made under the affirmative procedure. That would give a degree of higher parliamentary oversight than the present arrangement under which such an order would not require the affirmative procedure.
Given that I have put my name to the amendment, your Lordships will not be surprised to hear me rise to support the comments of the noble Viscount, Lord Bledisloe.
In the course of the deliberations of the Select Committee on the Bill, the Bar Council, among others, spoke particularly powerfully on this matter, believing that the extra costs that the Supreme Court would entail ought to be borne by the Government.
The Appellate Committee of your Lordships' House deals mainly with issues of law that are of public interest. In many cases, at least one of the two litigants is, if not in an almost perpetual state of impoverishment, at least relatively hard up. It would be more than a great shame if cases such as that were not, in future, fought in the Supreme Court, simply because the level of fees was too demanding.
Perhaps I may use the amendment as a peg upon which to revert to the question of consent by the judiciary, raised by my noble and learned friend Lord Mackay of Clashfern, with whom I normally find myself in complete agreement. I also sympathise with him for not knowing whether an Act had been repealed. It was an experience that I had when sitting in court, which was even more embarrassing—particularly as it was regarding a subject which every law student knew about but I had failed to understand.
It is not an altogether good idea to ask judges for consent. I was one of the judges who had to consent when fees were proposed by the noble and learned Lord. Although I speak for myself, other heads of the division may have had somewhat similar feelings. I consented although I profoundly disagreed. That may sound very odd, but I felt that the concept of recovering from litigants the whole of the costs of running the courts was completely wrong and that we should recognise that the provision of justice was a public service. I was faced with the fact that the provision of ways and means was essentially a matter for the Government and it did not seem right to me that, however much I might disagree, I should withhold consent. I am glad that the law has been changed so that the current heads of division will not be faced with that problem. That should be borne in mind if the question of consent is pursued further.
I understand the difficulty. I have had discussions about amendments to fees orders in the past and I understood the difficulties faced by the heads of division. Apart from the suggestion made by the noble Lord, Lord Goodhart, of having further parliamentary scrutiny of such an order, it is quite difficult to devise a system that will really work by way of control—but this amendment is a pretty good attempt at it. Some form of control is highly desirable, although the real question is whether the costs that will be incurred in this new Supreme Court venture are of such a character that they have an effect on whether or not there should be a Supreme Court at all; and of whether the very cost-efficient arrangements that we have now are not substantially better. That argument is much deeper than this matter. I appreciate that now the rules have been changed for the Supreme Court—and I suppose that it would not be right to have a rule of consent in respect of the President of the Supreme Court—I find it difficult to imagine that any other effective control mechanism could be devised.
This has been an interesting debate. I say to the noble Viscount, Lord Bledisloe, that the critical factor is the impact of putting the measure in primary legislation. As the noble Lord, Lord Goodhart, indicated, it is unworkable. Such legislation will be enforced and the Supreme Court will be here for—I hope—a great many years. It would be difficult to reflect that in primary legislation. In 2054 one might be looking at a different charging regime and a different level. It is therefore not an appropriate measure for primary legislation.
The Government will also resist the amendment for other reasons. The two key principles to which we are committed are access to justice and full cost recovery for civil work. That principle, as noble Lords have alluded to, was announced by my noble and learned friend Lord Irvine on
The policy is based on the principle that we need to target scarce public resources appropriately and therefore recovering most of the costs of the courts through fees ensures that we do that. We spend a great deal of our time in Parliament thinking about how best to ensure we use public money well and wisely. There is always a recognition of the art of the possible within limited resources. Here is an example of that.
As the noble and learned Lord, Lord Donaldson of Lymington, indicated, they are proper decisions for government to take; I accept that he has views on that matter. As noble Lords will know, these policies are set out in the Treasury's fees and charges guide, which goes back to 1992 as far as I can trace. The noble and learned Lord, Lord Mackay of Clashfern, will remember it from his time as Lord Chancellor. It sets out that fees should be set to recover full costs, subject to any agreed subsidies.
We are mindful of the need to provide access to justice rather than raise fees directly in the Supreme Court. It is our intention that the costs of civil work should be shared between all civil litigants before the courts below the Supreme Court. In effect that would place a small premium on all civil fees.
I will give noble Lords a figure: in the estimates I have been given the premium will be around 20 pence to 50 pence per fee. I do not believe that in practical terms noble Lords would see that that would prevent access to justice or overtly affect the use of civil justice. The first thing I would do if I were given that premium would be to ask for the figures on which the premium was based. If the noble Viscount agrees, I shall write to him formally with more detail about the premium and place a copy of that letter in your Lordships' House and copy it to the noble Lord, Lord Kingsland, and the noble Lord, Lord Goodhart. That is the order of the amount we are describing.
When the noble Baroness says that the fees will go up by 20p to 50p, does she mean the overall fees of the case or every item of fee that goes to make up the fees? Some of them are quite small and 50p on them could be quite a lot, adding up to a large total.
The noble Viscount makes a good point. It says here, "20p to 50p per fee". I hope that before I sit down I will have clarified that point for the noble Viscount. Either way, these are very small sums. I will indicate to noble Lords precisely how the fee is arrived at. It is our contention that it will not have a dramatic effect on access to justice, which is a critical part of what noble Lords have considered of enormous importance.
It is worth saying that we see the Supreme Court providing judgments of huge benefit across a wider use by those who use the civil jurisdiction. It is per fee, not per case, which is what the noble Viscount was after. I hope that that clarifies the issue, but I will write and set out the figures in greater detail so that noble Lords will be fully aware of them.
May I go back a little to see whether I can understand what was put forward by the noble and learned Lord the Lord Chancellor on
"throughout the whole of the civil justice system".—[Hansard, 11/10/04; col. 75.]
That sounded like what the noble Viscount, Lord Bledisloe, was saying: that there could be an accumulation. If various legal documents were being produced, the 20p to 50p would keep adding up.
The noble Duke is correct. I have confirmed that to the noble Viscount. I shall endeavour in writing to him to give two or three examples of the cumulative effect, which I think is what he is seeking me to do, to ensure that my argument that it will not prevent access to justice and that the fees are small nonetheless stands up. That will be important for noble Lords to consider before the next stage.
As I said, those figures are based on our present estimates and I will make sure that we have more details. On the twin principles that the Government believe it is important to recover full costs—which has been around for some time, at least, as I said, since 1992—and that we wish to ensure that any premium is sufficiently low so as not to prevent access to justice for the reasons for which noble Lords are concerned; and on the basis that the figures are small—conditional on my having satisfied the noble Viscount and others that the cumulative effect is still small—we should accept that and the noble Viscount should withdraw his amendment.
There are two questions in what the noble Lord said. The first is the principle, which has been well debated in your Lordships' House. I have a suspicion that the noble Lord and I would take slightly different views on it. I shall not take up the Committee's time on it except to say that I fully support what we are seeking to do; I believe that it is ambitious and right.
The second question is whether it should have an additional cost. I refer to the fact that if one is going to make these changes we must ensure that it is done properly, as noble Lords have said many times today. That includes accommodation, making sure there is the right support mechanism and so on, but also using public money wisely and well and doing that in a way that ensures that the accommodation is proper and appropriate but not that we are frivolous in what we seek to do.
Because we are passing on the full costs we are also duty bound to be mindful of the consequential impact of that additional cost on the litigant and therefore need to be modest in the best possible use of the word.
Before the noble Baroness sits down, I had understood from the explanatory memorandum and from discussions since that the figures she mentions are for other civil courts. These are the amounts that are going to be added to fees charged in other civil courts throughout the United Kingdom to finance the Supreme Court, but the fees in the Supreme Court will be of the order of 10 times the fees presently charged in the House of Lords. That is a considerable separate consideration: to multiply the fees by 10 times in the House of Lords is a big move.
The figure I can give the noble and learned Lord immediately is that we anticipate that approximately £0.5 million will be recovered through direct fee incomes from the Supreme Court. I will of course notify the noble and learned Lord how that breaks down in individual cases. I am not convinced that that brings us anywhere near the increase that he is looking for.
The noble Baroness referred to the principle which governments have established that fees of some courts and the cost of some courts should be fully recovered from litigants rather than being provided by the taxpayer in accordance with the more established and proper principle that one of the duties of government for which we pay our taxes is to provide a justice system. We cannot buck that entire principle, but I am suggesting that once one gets to the Supreme Court, which, as the noble Baroness said, provides judgments of enormous importance to a wide range of society and not just the litigants, that principle should be abandoned at least to the extent of not charging the extra that comes from this exercise of the Government's in political correctness to the individual litigant.
The noble Lord, Lord Goodhart, said that my amendment was unworkable, and the noble Baroness took that up. I confess that I find no difficulty in commercial life in giving effect to what are, in fact, retail prices index clauses for increasing money, so I see no great reason why there should be difficulty in controlling them.
The difficulty in the suggestion of the noble Lord, Lord Goodhart, of dealing with the matter by a statutory instrument is that while the Government maintain their general principle that everything shall be recovered, it would be difficult for anyone faced with a statutory instrument to say that the fees which recover the cost in full should not be passed. If the Government would abandon that principle and say that we should charge sensible fees which do not render resort to the Supreme Court impossible for the middle rich or the middle poor, then the noble Lord's suggestion would have some substance.
I continue to maintain the theory that it is entirely wrong that all the costs should fall upon litigants rather than upon the state. For the moment—but only for the moment—I beg leave to withdraw the amendment.
In moving Amendment No. 88BX, I should like to speak to Amendment No. 88BY. As the noble Viscount, Lord Bledisloe, has said, Clause 47 allows the Minister to make an order to provide for court fees to help defray the costs of the Supreme Court.
Amendment No. 88BX would add the Lord Justice Clerk to the list of senior judges to be consulted before that order is laid. We have had the discussion about that. I am not sure if my noble and learned friend Lord Mackay of Clashfern and the noble and learned Lord, Lord Hope of Craighead, felt that this was a suitable place for the Lord Justice Clerk to be consulted. If they do, I hope that the Government will accept the amendment in the same way they have accepted previous amendments in principle.
Amendment No. 88BY would widen the consultation. When the Minister was asked whether lawyers and their organisations should be consulted on staffing and the smooth running of the Supreme Court, he seemed to think that that was not of interest to lawyers and they should not be consulted. As a Minister with his feet in the Scotland Office, I hope that he has consulted and knows that politicians in Scotland think that lawyers are not interested in staffing the Supreme Court. Likewise, I hope that the Minister feels that lawyers have an interest in the level of fees, possibly in Scottish courts and certainly in other civil courts across the United Kingdom, which will help defray the costs of the Supreme Court.
Lawyers should surely have a say in what the fees are. They have a huge interest, I should have thought. The public have a huge interest, but they are consulted through Members of Parliament who have the order laid before them. If they feel it is too much, they will not accept the order. Surely lawyers should have a say in this, and I hope that if the Minister has not consulted in Scotland about this he will do so.
In asking the Government to widen the consultation, I should like to ask three questions. They concern the Law Society of Scotland, and they certainly concern me. First, do the Government realise that the setting of court fees in Scotland is devolved under the Scotland Act? It does not sound as if they do. Secondly, what happens if the Scottish Executive says no to increasing fees in Scotland or providing finance of any other sort? We need to know. Thirdly, and very importantly, do the Government intend, in England and Wales, and perhaps in Scotland if it is decided that it applies there too, that litigants in the lower courts who will have no access to the Supreme Court should also pay a surcharge for this purpose?
It seems to the Law Society of Scotland, and I agree, that it should be a matter of principle that those who, should they need it, have no right of appeal on a given issue to the Supreme Court—such as a crofter in Scotland litigating in the land court or someone going to the small claims court—should not have to contribute to the Supreme Court. It simply would not be fair. Surely that is right. I should be most grateful if the Minister can reassure us that that principle will be observed wherever the surcharge on fees is imposed across the country. This is closely linked to the amendment on widening consultation before laying the order. I beg to move.
I strongly support these amendments, especially Amendment No. 88BY. I do so not merely because I became a member of the Bar of England and Wales in 1938, when I was in my twenties, and again when I was nearly 60, but because it is vital that the Bar of England and Wales and the other professional bodies mentioned in the amendment should be consulted. Otherwise, in fixing the various rates of fees, exemptions, and so on, without any consultation the Minister could be wrong, and that would be most unfortunate. So, if I may have the attention of the Minister who is replying to the debate, I hope that the Government will give this matter serious consideration and their full support.
I am delighted to say that we accept these amendments in principle. Amendments to Clause 47 add additional layers of consultation to those already proposed by the Government. The Government consider it is appropriate for the good operation of the court for there to be consultation with senior representatives of the judiciary when making staffing arrangements for the court and when making an order to prescribe Supreme Court fees. For that reason, we are content to accept in principle additional consultation with the Lord Justice Clerk and the legal professional bodies listed.
However, I hope that the noble Baroness, Lady Carnegy of Lour, will not press her amendments at this stage as it has been drawn to my attention that they may not be absolutely correct in every point of technical detail. We would welcome the opportunity to table government amendments on Report, reflecting the substance of these amendments.
The noble Baroness asked three questions. Yes, we are fully aware that court fees are a devolved matter. I am afraid that I did not catch the second question, but we will look at it in Hansard and take what has been said into account when looking at the amendments we plan to bring forward. On the noble Baroness's third question, this is a matter which we will discuss with the Scottish Executive.
We accept the amendments in principle and we will table further amendments which, if they do not satisfy the noble Baroness, we will have the opportunity to revisit on Report.
I am very grateful to the Minister for saying that he accepts the amendments in principle. It is difficult to see, looking at the amendments, how the drafting can be tricky, but I take his word for it.
I asked three questions. First, I asked whether the Government realised that the setting of fees in Scotland is devolved under the Scotland Act. Secondly, I asked what would happen if Scotland said no to making these contributions. It is important for us to know that.
My third question was about litigants who do not have the right of access to the Supreme Court. The Minister said that he would be consulting on the matter in Scotland. It is not a Scottish question; it is a United Kingdom question. Should litigants who are litigating in a court which does not have access to the Supreme Court—I gave Scottish examples because those were the ones that came to my mind—have to pay for the Supreme Court? It seems quite wrong. I should have thought that the Government would have looked at that principle. If they have not, I hope the Minister will now tell me that they will now do so.
I wonder whether I may make one brief comment in reply to the question posed by the noble Baroness as to what happens. I think that I am right in saying that there is a power to levy fees in the courts in Scotland, but it is under a Scottish enactment called the Courts (Scotland) Act of, I think, 1897. It is a 19th century statute.
My understanding is that if it comes to the bit, it would be necessary either to amend that statute or amend the Bill in order to provide a power for exercise over the Scottish courts. That, in turn, I should have thought, would require some consultation with the Scottish Parliament.
The issue that has been raised is therefore a matter of very considerable importance and it does affect the extent of the powers which the Secretary of State would be able to exercise over fees in Scotland.
I am most grateful to the noble and learned Lord, Lord Hope of Craighead, for that contribution.
The noble Baroness, Lady Carnegy of Lour, asked what would happen if Scotland said no. We plan that the precise mechanism for giving effect to a measure of Scottish funding for the Supreme Court is discussed with the devolved authorities. This will be covered in the package of amendments which the Government will be bringing forward at Report. To anticipate a failure in discussion is not, in my view, a very helpful position for me to take this evening. I have had many discussions over the past year or so with the Scottish Executive on very complicated issues and have had very little difficulty in coming to agreement with it. I am not prepared at the moment to anticipate that we will not be able to agree on this matter.
As to the third question, the Scottish Executive has agreed that Scotland's share of the cost of civil work will be met through the transfer of an agreed amount from an appropriate budget.
The area which has been mentioned, therefore, has been actively discussed with the Scottish Executive. Those discussions will continue and we will be bringing forward amendments at Report. As I said earlier, I hope that at that stage we will be able to satisfy the noble Baroness, Lady Carnegy of Lour.
I thank everyone who has contributed to this discussion. It is extremely important. I particularly thank the Minister for what he has just said which, if he had not had a message from somewhere, I do not think he would have mentioned. He has in fact answered the question which my noble and learned friend Lord Mackay of Clashfern asked on
The effect of these amendments to Clause 51 is twofold. First, when defining "high judicial office" in Part 2 of the Bill, the drafting has hitherto relied on the Interpretation Act 1978, in which "High Court" and "Court of Appeal" mean those courts in England and Wales and in Northern Ireland. Explicit reference is now made to the Court of Appeal in England and Wales and in Northern Ireland, and the High Court in England and Wales and in Northern Ireland. This is simply a technical amendment.
Secondly, the amendments bring into effect proposals, as agreed in the concordat, that anyone appointed as Lord Chancellor on or after
The amendments are drafted so as not to go too far and to erase the holding of high judicial office and its incidence by reason of the holding of the office of Lord Chancellor. Thus, in the event that a person already holding high judicial office is appointed as Lord Chancellor, that person should not be prevented from sitting as a judge again once his or her term of office as Lord Chancellor has ceased. This also ensures that an ex-Lord Chancellor who does not hold high judicial office will not be able to act as a judge in the Supreme Court. It does not affect the rights of previous Lord Chancellors, appointed prior to
At present, the Chancery Division is a division on its own, separate from the Queen's Bench Division and the Family Division. The theoretical head of the Chancery Division is, I understand, the Lord Chancellor, but the actual head is the Vice-Chancellor. I should have thought that some reference should be made in the description of senior judges to whoever is head, or going to be head, of the Chancery Division.
I have to say that I do not know the answer to that question, but I shall take advice, write to the noble Lord and put a copy of the letter in the Library.
As we have been notified that it may not be possible to call my amendment, Amendment No. 88CD, I should like to say a few words on the subject. This is the same question of the status and position of the Lord Justice Clerk. It seemed to me that, in a list of senior judges, the argument that his name should be included was unanswerable. There are many officers of the legal system of England and Wales included in the list, but only the Lord President from Scotland and the Lord Chief Justice from Northern Ireland are included. The Government seem intent on including their amendment in the Bill, but I should have thought that the argument would still hold.
May I say to the noble Duke, the Duke of Montrose, that we have taken on board the points made in earlier discussions? I give him an absolute assurance that I have not said anything in relation to the amendment that closes down commitments that I made earlier on consultation and looking again at the list of people to be consulted.
As we know, the amendment would add an additional judge to the list of senior judges in Clause 51, with the intention of ensuring that there is a specific senior Scottish judicial voice in the appointments process, particularly if the Lord President of the Court of Session is a candidate for the vacancy under consideration.
The Government have great sympathy with this amendment and see it as a matter of great importance that all the devolved administrations are adequately consulted during the appointment process. Indeed, the Government see the potential risk of no Scottish judge being consulted, and amendments, principally to Clause 21, are being worked on for Report with a view to ensuring that there is always consultation of at least one senior judge from each part of the United Kingdom in relation to every appointment to the Supreme Court.
I therefore hope that the noble Duke will for the moment withdraw his amendment. The Government can see potential difficulties with the amendment tabled today, as Scottish consultation would not necessarily be secured simply by adding the Lord Justice Clerk to the list of senior judges, since the Lord Justice Clerk might also be disqualified on grounds of being a candidate for that appointment. The amendments that the Government will table will seek to achieve the same as the amendment tabled here today, but without specifically mentioning the Lord Justice Clerk.
I hope with that explanation that the noble Duke will feel able to withdraw his amendment.
moved Amendment No. 88CF:
Page 18, line 37, at end insert—
"( ) In this Part—
(a) "high judicial office" means office as a judge of any of the following courts—
(i) the Supreme Court;
(ii) the Court of Appeal in England and Wales;
(iii) the High Court in England and Wales;
(iv) the Court of Session;
(v) the Court of Appeal in Northern Ireland;
(b) a person appointed to the office of Lord Chancellor on or after
(i) he has ceased to be Lord Chancellor by virtue of that appointment, and
(ii) he holds, or held, the qualifying office otherwise than by virtue of that appointment as Lord Chancellor."
The amendment has an effect with regard to Lord Chancellors appointed after
It would secure a degree of judicial quality to make someone who was appointed Lord Chancellor, after he ceased to be Lord Chancellor, eligible to sit in the Supreme Court as a member of a supplementary panel. So far as I understand the amendment, that possibility is presently excluded. However, I suggested in a letter to the noble and learned Lord the Lord Chancellor some time ago that I would not like to see him excluded. He offered to consider the matter further—so I hope that the matter might be kept open, in case it should happen. It seems a reasonable way in which to look for judicial qualities in the Lord Chancellor—qualities which in my view, notwithstanding the proposed changes, would be highly desirable.
While supporting my noble and learned friend very eagerly, may I presume to add one small point? Surely it is desirable that the head of the judiciary should occasionally keep in touch and refresh himself by sitting with the judiciary.
I am grateful to the noble and learned Lord for his suggestion. Clearly my noble and learned friend the Lord Chancellor is still considering his letter, otherwise his thoughts might have been reflected in my speaking notes. However, we have heard what the noble and learned Lord has said; it is an interesting suggestion, and we shall take it away and consider it. We shall ask my noble and learned friend the Lord Chancellor to answer the letter as soon as possible.
I tabled one amendment, and the noble Lord, Lord Borrie, has tabled half a dozen others. I congratulate him on waiting until 7.20 p.m. to speak to his amendments. I suspect that we are both merely probing the Government's intentions at this stage about the composition of the Judicial Appointments Commission, but as will be seen, we are probing them from different viewpoints.
Part 1 of Schedule 12 sets out that there will be a commission with a chairman and 14 other commissioners. The chairman must be a lay member and then, in considerable detail and in a highly prescriptive manner, the schedule describes who should be the other 14 commissioners. Five must be judicial members, and paragraph 2(3) sets out who those judicial members must be. That paragraph states:
"(a) 1 must be a Lord Justice of Appeal;
(b) 1 must a puisne judge of the High Court;
(c) 1 must be either a Lord Justice of Appeal or a puisne judge of the High Court;
(d)1 must be a circuit judge;
(e)1 must be a district judge".
Paragraph 2(4) states that:
"Of the Commissioners appointed as professional members"— of whom there must be at least two, and I assume no more than two—
"(a) 1 must be a practising barrister ...
(b) 1 must be a practising solicitor".
As I said, our approach is very much a probing one, as it is desirable that we have a chance to hear the Government's views as well as the views of other Members of the Committee.
We thought that it might be better for the commission to have a majority of non-lay members. The simplest way of giving it a bare majority would be not to make the chairman a lay member but to make him one of the judicial or professional members. I appreciate that I am in the presence of much better mathematicians, but if my mathematics are right, out of the 15 there would be at least eight non-lay members and only seven lay members.
The amendments of the noble Lord, Lord Borrie, set out a different approach, which I shall leave him to explain. It would obviously reduce the number of judges, so by definition his Amendment No. 88CGC increases the lay presence from five to seven. The chairman who we have suggested should not be a lay member would remain a lay member.
In trying to decide the right balance, we thought that it would be more desirable to have a greater number of professional members. Obviously it is a matter of balance, and I should be interested to hear what the noble Baroness will say. As the commissioners will be advising on the appointment of the judiciary, those who know other members of the profession will be aware of abilities, and we shall be discussing the question of appointments being made on the basis of good character and merit. They will be best placed to reach a judgment. I appreciate that others may hold different views, and the Government will no doubt set out in detail why they take their view.
Before I sit down, I have a further question about amending the order in due course. The Government have set out a prescriptive approach by saying who should be in the commission and where they should come from. Paragraph 5(1) states:
"The Minister may by order amend any of the ... provisions" relating to composition. We appreciate that this is one of the very few orders that would have to be by affirmative resolution, if I have read Clause 106 correctly. There may be other matters that must be by affirmative resolution, but we shall come to that in due course. The Government obviously feel that it might be necessary to change the composition of the Judicial Appointments Commission. They recognise that it is a serious matter, and that is why they have suggested affirmative action. However, I am interested to know, having been so prescriptive initially, in what circumstances they would envisage changing the composition of the Judicial Appointments Commission.
I look forward to hearing the Government's views and those of other Members of the Committee. I beg to move.
It may be helpful if I speak to my amendments now as they are grouped with the amendment of the noble Lord, Lord Henley.
I do so following advice from the existing Commission for Judicial Appointments, which does not make judicial appointments and does not even recommend such appointments. It investigates complaints about the application of the appointments procedures for judges and Queen's Counsel, and conducts audits of the High Court appointment process. The present commission comprises a chairman, Sir Colin Campbell, vice-chancellor of the University of Nottingham, and known to me for many years as someone of very high reputation, plus seven other commissioners. None of them are practising lawyers or judges. They were first appointed by the previous Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, in 2001. The commission is required to report regularly to whoever is the Lord Chancellor of the day.
I refer to that because, as I have followed the commission's advice in my amendments, I emphasise that it is speaking from experience in the past three years of auditing the appointments process. That has led it to welcome the Government's proposals for a Judicial Appointments Commission, which would have a lay majority, to appoint or recommend the appointment of judges. It would have not only a lay chairman, which the noble Lord, Lord Henley, is against, but a lay majority, to ensure the introduction of what it calls a modern, accountable, fair and transparent selection process.
The existing commission's experience of its audits and complaints investigations into current processes is that potentially suitable candidates may be excluded from consideration. One of the perceptions of current appointment processes that the commission recognises is a tendency to favour candidates in the image of the existing judiciary. Another perception is that appointment depends on the support and, indeed, the patronage of the senior judiciary, whose views are sought in the Lord Chancellor's Department before appointments are made. Because of that they take the view from their three years' experience that a number of potentially well qualified candidates may currently even exclude themselves because they do not think that they will have a chance of appointment.
In the view of the Judicial Appointments Commission, and myself in putting forward its views today, the Government have been too cautious. They have been fairly bold, I should say, but too cautious in the way in which they have set out what the new commission should comprise in the Bill. Of course, members of the judiciary and, indeed, members of the practising legal profession need to be well represented on the new Judicial Appointments Commission, but the Bill allows for only six lay members, including the chairman, out of a total of 15. I accept that the total of 15 is probably the optimum total for the Judicial Appointments Commission. Therefore, I do not propose to increase it or reduce it but to keep the same total. However, I propose in my amendments that there should be eight lay members instead of six; that is, a lay chair and seven other members.
The Bill suggests two legal practitioners, and I have not sought to alter that. One tribunal member is suggested, and I have not sought to alter that, and one lay magistrate member is suggested, and I have not sought to alter that. What I have sought to alter through my amendment is that the proposed five judicial members should be reduced to three. It is a question of balance and the amendments are carefully drafted, as I say not by myself but by the existing commission. They are meant to ensure the human resources, legal expertise, transparency, independence and impartiality necessary to give confidence to all the stakeholders: the judiciary, the legal profession and the general public. It is thought that these amendments will help to establish that confidence.
A few days ago I was mildly surprised to receive from the Law Society, which represents the solicitors of England and Wales, support for my amendments. If I was cynical, it is because I have known Law Society briefings in the past and they do not usually agree with my view. However, it agrees that there should be a majority of lay persons on the Judicial Appointments Commission. I wish to quote a few sentences of the Law Society. It states,
"the main focus of the work of the Commission", under the Government's plans,
"especially in the early years, will be the development and application of transparent, fair and efficient recruitment processes that secure appointment on merit from the broadest possible field of qualified candidates".
The Law Society continues:
"A strong lay element on the Commission would help engender a wholly new culture surrounding judicial appointments that seeks out and welcomes applications from candidates of ability from non-traditional backgrounds", including, I suppose, solicitors. The Law Society continues:
"It makes sense for the majority of members of the Commission to have expertise in areas that will constitute the main thrust of its work—and this will help ensure that members of the Commission bring diverse experience and backgrounds to its work".
As regards the very last of the six amendments that are grouped with the amendment of the noble Lord, Lord Henley, one can understand that there should be the possibility—as there is in the Bill—of effecting an increase in the numbers of any one of the categories of membership in the case of what the noble Lord, Lord Henley, described as the Government's rather prescriptive approach resulting in the lists needing to be altered in the future.
However, it seems to me that it is desirable to limit the discretion to ensure that lay members continue—as they should from the beginning, I think—to comprise a majority of the membership of the Judicial Appointments Commission. If that basic structure could be altered, it would alter what Parliament might wish to put in place in the Bill.
Before the noble Lord sits down, will he do the arithmetic for us again? As I do the arithmetic, in addition to the five lay members, which is in accordance with the Bill, one lay justice member makes six, the lay chairman makes seven, and the holder of an office under Part 3, also lay, makes eight. Does not that make a lay majority?
With respect to the noble and learned Lord, I am following the way in which the Bill is set out. The lay justice of the peace does not count as a lay member because, presumably, he or she is engaged regularly in judicial work. If the noble and learned Lord looks at the Bill as it stands at the moment, the lay justice does not count as a lay member—that is a separate category.
I want to explain why we on these Benches are unable to support Amendments Nos. 88CGB to 88CGG in the group spoken to by the noble Lord, Lord Borrie. However, we support Amendment No. 88CGH.
First, as regards the numbering, while a lay justice is technically not qualified as a lawyer, he or she is engaged in judging and cannot therefore be regarded as a lay member in the sense that it is actually used. Similarly, the representative of the tribunal who comes under Part 3 of Schedule 14 will more than likely be someone who has legal qualifications.
In principle we would like to have a majority of lay members on the Judicial Appointments Commission. That is the case in Scotland. As the noble Lord, Lord Borrie, pointed out, the idea is, indeed, supported by the Law Society and by the commission for judicial appointments. We also believe that the concordat is of major importance. For a constitutional change of this significance the concurrence of the judiciary, although perhaps not absolutely essential, is certainly very highly desirable. We are not willing to prejudice that concurrence by trying to unravel central elements of the concordat unless we are convinced that the terms of the concordat are seriously wrong. For that reason my noble friends Lord Maclennan of Rogart and Lord Holme of Cheltenham, who were members of the Select Committee, and I agreed with the decision of the Select Committee to approve the numbers for membership set out in the concordat.
There are two purposes behind the setting up of the new Judicial Appointments Commission. One is to remove the possibility of political bias in appointments by the Lord Chancellor. That has certainly happened in the past and is, we believe, a real risk in the future if a Judicial Appointments Commission is not set up. The second purpose is to improve the process of appointment of the judiciary, in particular but not exclusively by widening the pool from which judges can be appointed. We believe that the concordat goes as far as possible in meeting the first purpose; that is, removing political bias in appointments. On the second purpose of improving the process of appointment, we regard the concordat as a fair compromise for securing the agreement of the judiciary. We believe that even without a majority of lay members the Judicial Appointments Commission will substantially improve the process.
The Commission for Judicial Appointments—which at present has no direct involvement in the process—has already brought about considerable improvements. We commend it for the work that it has done. But it is right to move with some caution. The suggestion made by the Commission for Judicial Appointments in its latest annual report that Parliament should disregard the concordat is misguided.
We have added our names to that of the noble Lord, Lord Borrie, on Amendment No. 88CGH.
I am sorry to intervene but Amendment No. 88CGH has been degrouped at the noble Lord's request.
In that case I am happy to leave that as an explanation of why we are unable to agree with the amendments tabled by the noble Lord, Lord Borrie, in this group.
The speeches so far have all been made by qualified barristers. A lay voice may not come amiss in this debate.
The critical issue is: who is going to be good at spotting who would make good judge? I am pitching myself to be appointed to this commission as a lay person. A lay person on the committee would have problems in deciding who would make a good judge. Such a person might also be more susceptible than lawyers to political bias. It is possible that I might sit there thinking, "I am a good socialist. I think that person would make good socialist decisions. I think I will have him". I do not suppose that I would say that but I might. I wonder whether this enthusiasm for more lay members will necessarily fulfil the purpose for which the commission is set up.
I suspect that the Law Society supports the amendments tabled by the noble Lord, Lord Borrie, because, as he indicated, this might increase the chances of a solicitor becoming a judge. There might be a greater enthusiasm for what the lay members might consider the underdogs of the legal profession. I suspect that that is a rude thing to say, but that might be the feeling.
I can understand why there is an argument that people who are in touch with judges, who know the role and who know what a good judge looks like have the edge when it comes to making these judgments. Lay people are needed, but I am not sure that their number should be increased. I see the sense in the argument for a lay chairman, although my noble friend on the Front Bench prefers a legally qualified chairman. There is an argument both ways.
We should be careful about having too many lay people on a body which chooses somebody who has professional qualifications and a background that enables them to fulfil the very difficult role of a judge. I speak as somebody who has sat as an honorary sheriff and knows the problems.
We have rehearsed some of the debates and discussions that have gone on in determining how best to put forward the composition of the commission. We have two propositions before us: the noble Lord, Lord Henley, argues that the majority should be professional; the noble Lord, Lord Borrie, argues that the majority should be lay members. But there is a general consensus that the number of 15 members is about right.
It is clear from the views expressed around the composition that the expertise of the serving judiciary and the wider breadth of knowledge and expertise that those who are neither judges nor lawyers bring, particularly in selection procedures at a high level, need to be brought together in the commission in an appropriate fashion.
I agree with the noble Lord, Lord Henley, that the role of the judges in the commission is crucial. They understand at first hand the demands of the vacancies that the commission seeks to fill and they will test directly the applicants' legal skills and knowledge. The composition set out in Bill is designed to ensure that there is an adequate range of input from the various jurisdictions and different levels of seniority.
The Government take the view that the commission will need magistrate and tribunal members. Those are the largest single groups of appointments by far as noble Lords are aware, with a number of important differences from other judicial appointments, and we need to have their markedly different perspectives and experience alongside the other judges.
In arriving at the number of judicial members on the commission we have also borne in mind the European Charter of the Statute for Judges, which advocates a judicial majority on appointment commissions.
The barrister and solicitor member will represent the legal profession from which the judges are chosen. Their current working experience will be valuable to the commission in its efforts to broaden the pool of applicants and so achieve a Bench which is more reflective of our wider society.
In response to points raised by my noble friend Lord Borrie, the last thing I wish to do is to cast into doubt the hugely valuable contribution that the members who are not lawyers will make to the commission. First, they will bring in recruitment and human resource expertise, which will be needed to determine how best to run the appointment system. Five members should be sufficient to give a range of perspectives from elsewhere in the economy and public life. More generally they will emphasise the commission's independence from the judiciary and executive, and will form the link in the commission between the judiciary and the public.
The Government have very carefully considered the arguments that all this means that there should be a majority of non-lawyers, not just form the largest single group. We still take the view that—for the reasons I have set out—it is better to ensure that the composition of the commission,
"adequately represent[s] the different voices that are required to be heard in the appointments process".
I turn now to the chairman of the commission. We carefully considered the arguments for either a judicial chair or a lay chair. As the noble Baroness, Lady Carnegy of Lour, has indicated, chairing the commission will be a sizeable commitment—if not full-time, then certainly close to it. That would not allow a senior judge to devote to the commission the attention it needs and continue to sit as a judge. As the Lord Chief Justice has explained,
"a lay chair will be able to devote the time to this role that such a post deserves".
Moreover, the chairman will play a key role in planning the commission's programme and how it is carried out. In this work there is great advantage in looking for someone with extensive experience in selection procedures elsewhere. I respectfully submit that these factors tip the argument in favour of a lay chair and the judiciary agrees this approach.
We therefore believe that the composition and membership of the commission as set out in the Bill is right. We consider it is an important strengthening factor that the balance we have struck should have the agreement of the Lord Chief Justice as set out in the concordat.
I turn briefly to the point raised by the noble Lord, Lord Henley, about changing the composition. That is based on the concordat. It is a best guess and a reasonable compromise. Experience of the JAC in action may show that we need a slightly different balance of members, but we cannot see any scope for a better balance. I have no living examples to give the noble Lord. Therefore we have allowed, as set out in paragraph 5 of Schedule 12, that by affirmative resolution the Minister may bring forward amendments subject to the safeguards that he cannot decrease the numbers. The Lord Chief Justice must agree and the affirmative procedure will apply.
On the basis that we have sought through good consultation the best balance for the commission, I hope that the noble Lord will withdraw the amendment.
As I made perfectly clear in relation to my amendment—and I imagine the same applies to the noble Lord, Lord Borrie—at this stage I was merely probing the Government's intentions. I thought it was important and necessary that the Committee had a chance to debate the proposed composition of the Judicial Appointments Commission.
I hope I have not got him wrong, but the noble Lord, Lord Goodhart, seemed to imply that because this was part of the concordat we should accept it as it is. I accept the importance of the concordat. However, the Government see that under paragraph 5 of the schedule there might be an occasion when they may need to amend it and they propose to do so not merely on their own with the agreement of the Lord Chief Justice but by obtaining the affirmative consent of both Houses. They therefore believe it a right and proper matter for this House to discuss and I too was keen to do so.
The amendment was a probing amendment and as the noble Lord, Lord Borrie, said, it is a question of balance. Different views can be put forward one way or the other. I want carefully to consider what other Members of the Committee and my noble friend have said and look carefully at what the Government have said. Perhaps I will return to the matter perhaps with other suggestions on Report. Until then, I beg leave to withdraw my amendment.