My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Falconer of Thoroton.)
My Lords, I do not want to detain the House long, but I want to say a few words about procedure, which seems to many of us Back-Benchers to be—how can I put it politely?—somewhat awry.
On the amendments, we are at Third Reading, the underlying principle of which is to tidy up the Bill. Yet this afternoon and this evening your Lordships are invited to leave out Clauses 13, 15, 16, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 48, 49, 50, 51 and 104—not to mention certain schedules. If these amendments are put to a vote and passed, it makes common sense that they would wreck not only Part 2 but substantially the whole Bill. That may or may not be a desirable effect, but I certainly cannot understand how that can be consistent with the principle of Third Reading.
I understand that there is some ambiguity in the wording of the Companion on the matter, and no doubt the Procedure Committee will address that in the course of time. However, there is no ambiguity in the Companion's wording on the conduct of debates on Third Reading. Procedures on Third Reading are the same as those on Report. It is perfectly clear on how often, and at what point, a noble Lord may speak to an amendment. That, I hope, is well understood, and we can only expect it to be observed to the letter this afternoon.
What seems to be less understood is the guidance on the length of speeches on Report. Arguments which have been "fully deployed"—and here I follow the wording of the Companion—
"in Committee of the whole House should not be repeated at length on report".
Again I have taken advice on this, and I am told that the same provision should follow through to Third Reading. In other words, arguments which have been fully deployed in a Committee of the whole House or on Report should not be repeated at length on Third Reading.
It is usual practice for the Government Whips to ensure that the guidance of the Companion is observed, but I would remind your Lordships that the Companion is the property of the whole House. It is open to any noble Lord or noble Baroness to intervene if he or she feels that the Companion is not being observed. Of course, since it is the time of year to be optimistic, we live in hope that none of that will be necessary, that the business will be conducted efficiently and expeditiously and that we can all depart for a relaxed and, I very much hope, a happy Christmas.
My Lords, I thought that my noble friend was referring to the general courtesies open to the House as a whole. However, I entirely understand the concerns that he raised. As he said, this is rightly an issue for the Procedure Committee, and I think that the Procedure Committee should look at it again. Perhaps I may remind the House that, on Third Reading even more than Report, noble Lords should not make Second Reading speeches, should not repeat arguments from previous stages, should speak only once to each amendment and should not speak after the Minister.
My Lords, with the greatest respect to the noble Baroness the Leader of the House, I do not think that that is quite good enough. The fact is that the noble and learned Lord the Lord Chancellor has tabled about 14 pages of amendments which came to us as individuals last Thursday, allowing no time for the amendments to be considered before today. Although this matter should perhaps be considered by the Procedure Committee, perfectly good guidelines are currently in operation and it would appear that they have been broken.
My Lords, perhaps I should remind the noble Earl that the Companion, at paragraph 6.132, states:
"The principal purposes of amendments on third reading are:
to clarify any remaining uncertainties; to improve the drafting; and to enable the government to fulfil undertakings given at earlier stages of the bill".
My Lords, I think that that is the purpose of the major part of the amendments that we are dealing with this afternoon. I understand that one of the amendments was not voted on last week because the noble and learned Lord the Lord Chancellor had delivered only a certain amount of information, and right at the very last minute.
I think that we ought to celebrate the flexibility of our procedures. On the Order Paper, noble Lords will notice that next to the words "Constitutional Reform Bill", there is a little squiggle which indicates that minimum intervals have been broken and we are dealing with this legislation quicker than might otherwise have been the case. Is that not an advantage to our procedures? Therefore, given the tremendous importance of this legislation, should we not allow a little latitude?
Before a number of Peers rise to challenge this, would it not be better if instead of wasting time on this subject, we got on with the debate, and if there is a vote, we got on with that too?
My Lords, perhaps I may intervene. I disagree so strongly with what the Leader of the Opposition has said that I think, as a Back-Bencher, I ought to say so. The fact is that we have a set of rules on purpose. During the many years in which I—like my noble friend Lord Williams of Elvel—sat on that Front Bench, we stuck to those rules absolutely to the letter. Indeed, we were under the impression that it was completely unacceptable to break those rules, and in particular to do things such as endeavour substantially to change a Bill at this stage.
Flexibility is one thing, the purpose of it largely being clarification and, as my noble friend said, to fulfil commitments. The purpose is not to open up the whole Bill again in order to try to get the House to carry matters which, if they were relevant, should have been carried some time ago. I really do not see how the Leader of the Opposition can possibly ask us to accept that flexibility amounts to the view that we can do anything we like as long as we fancy it. That is simply not good enough when it comes to the way in which your Lordships' House conducts its business.
My Lords, I am not aware that I was saying that, and I do not think that we are breaking any rules today. If we were breaking rules, we would not be doing it. On occasion when an amendment has been tabled that does break the rules, the Clerks draw it to the attention of the Leader of the House, the Leader of the Opposition is copied in, and we agree that it should not progress.
These matters are ultimately in the hands of the House. However, your Lordships have only to recall what happened on the domestic violence Act which came from another place with amendments that more than doubled the size of the Bill and which your Lordships could not discuss except on consideration of Commons amendments; or a recent social security Act, a large part of which was added on Report in your Lordships' House, while the other place had no effective chance to debate issues with major financial implications.
What we are debating today is not a question of breaking the rules; if we were breaking the rules, we should not do so. This is about continuing a very important debate that affects the existence of Law Lords in this House. Again I urge the House to carry on with a proper debate.
On Question, Bill read a third time.
My Lords, we have had several useful debates on the rule of law. Perhaps I may summarise the position which I think we reached. We all agreed that we do not want to change the Lord Chancellor's existing role in relation to the rule of law. That role goes further than simply respecting the rule of law in discharging his ministerial functions. It includes being obliged to speak up in Cabinet or as a Cabinet Minister against proposals that he believes offend the rule of law. That role does not require him proactively to police every act of government. The role is not one that is enforceable in courts.
In the debate on this issue at Report stage, the noble Lord, Lord Kingsland, supported by the noble Lord, Lord Goodhart, sought reassurance that the Government's previous amendment covered the Lord Chancellor's "constitutional duty to speak up in Cabinet". I think that that was the only issue between us. Amendment No. 1 provides such clarity.
The new draft also avoids any possibility of inadvertently infringing on the Lord Chancellor's existing statutory duty regarding the rule of law. Perhaps I can draw attention particularly to the speech on Report of the noble and learned Lord, Lord Mackay of Clashfern, in which he referred specifically to the Witham case. I think that the new wording puts this issue beyond any doubt whatever. I have discussed it fully with the noble Lords, Lord Kingsland and Lord Goodhart, and I think that they are content.
The legality of the Government's conduct is no less crucial to the rule of law than the matters within the Lord Chancellor's remit. The ministerial code requires all Ministers to consult the Attorney-General on issues involving legal considerations. The Attorney-General is the authoritative source of legal advice within the Government.
The Government have listened very carefully to all the concerns raised in previous stages and shown their willingness to meet those concerns and to engage in constructive debate. I think that we can now be satisfied that not only do we now share the same objectives, but that the draft before us successfully achieves those objectives. I beg to move.
My Lords, during the tripartite discussions between the noble Lord, Lord Kingsland, the noble and learned Lord the Lord Chancellor and myself it became apparent that we were agreed on the principle that we should continue with the existing standard of the rule of law and with the existing constitutional responsibility of the Lord Chancellor to uphold it. We had some difficulty in finding a form of words acceptable to us all, but I am satisfied with the form of words in the amendment. Therefore, I am happy to support the amendment.
My Lords, the words "does not adversely affect" make it clear that the Bill does not affect, one jot, the duty of the Lord Chancellor in relation to the rule of law.
My Lords, I am sorry for not getting the point until the second shot.
My Lords, the noble and learned Lord the Lord Chancellor will recall that, initially, we were unhappy with the expression "adversely"; but, as a result of the tripartite meetings that took place between the noble and learned Lord, the noble Lord, Lord Goodhart, and myself, it became clear that it added to the sense of what we were trying to achieve. We were trying to say that the Lord Chancellor's existing powers would not be affected in any way that prevented the Lord Chancellor from continuing to fulfil the constitutional duties in the future in Cabinet that he has always fulfilled in the past. I believe that that was the logic behind the use of the expression.
However, I agree with my noble friend Lord Tebbit, that it carries with it a certain clumsiness and a sense of reluctance, a sense which, initially, I also shared. But I am now entirely happy that, when, in future, the noble and learned Lord seeks to exercise his constitutional powers in Cabinet, he will not in any way be impeded. This has been a good example of constructive thinking between the Government, the Liberal Democrats and ourselves. We are entirely content with the outcome.
moved Amendment No. 2:
Before Clause 5, insert the following new clause—
"REPRESENTATIONS TO PARLIAMENT
(1) The chief justice of any part of the United Kingdom may lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice, in that part of the United Kingdom.
(2) But in relation to Scotland those matters do not include matters within the legislative competence of the Scottish Parliament, unless they are matters to which a bill for an Act of Parliament relates.
(3) In this section "chief justice" means—
(b) in relation to Scotland, the Lord President of the Court of Session".
My Lords, it will be remembered by some of your Lordships that I tabled the amendment, which stands in my name, on Report. At that stage the noble and learned Lord the Lord Chancellor indicated that he would carefully consider the amendment. It is now in a revised form for reasons which I shall explain, but I understand that the Lord Chancellor is now prepared to support the amendment.
My noble and learned friend the Lord President, Lord Cullen, also has his name to the amendment and is fully supportive. Unfortunately, his judicial commitments mean that he cannot be here today. He asked me to convey his apologies to the House.
This is an attempt to square the circle between the present position, where as Lord Chief Justice I can address the House directly, and the position in the future, if the Bill continues in its present form, when I will not have the privilege of appearing before your Lordships.
The virtue of the amendment is that it will allow the three judges—the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland—to lay written representations before Parliament which are, in the opinion of the judge laying the paper, matters of importance relating to the judiciary or the administration of justice.
The main difference between the original form of the amendment and the present one is that of the position in Scotland in respect of devolution. Subsection (2) is designed to meet concerns expressed on behalf of the Scottish Executive, that it would not be appropriate for representations to be made to this Parliament on matters under consideration by the Scottish Parliament. The main concern was thought to be that, without the qualification set out in subsection (2), the amendment might have been regarded as undermining the devolution settlement, although it was recognised that in practice problems were most unlikely to occur.
The formulation which has been agreed means that the Lord President will not be able to make written representations to your Lordships' House on matters that are within the competence of the Scottish Parliament unless there is a Bill or draft Bill under consideration. By convention, this Parliament legislates in devolved areas only with the consent of the Scottish Parliament.
I do not consider that this will be a power that any of the judges will use frequently. It is an additional safeguard. Apart from the amendment, a Joint Select Committee or a committee of either House may also choose to hear representations from the judiciary. That practice is exercised more often than hitherto but is still relatively rare. The senior judges of the three jurisdictions do not regard the possibility of appearing before a committee as a substitute for the protection forwarded by the amendment. I beg to move.
My Lords, I support the amendment. I am delighted to hear that the noble and learned Lord the Lord Chancellor is also likely to do so. At the previous stage, I tabled an amendment about committee structure. The noble and learned Lord the Lord Chancellor said that it would be considered, but it is not a matter for Third Reading, so I am delighted that this amendment will be accepted.
My Lords, I am glad to accept it. I am grateful to the noble and learned Lord the Lord Chief Justice for proposing it. It seems a sensible way of ensuring that the judiciary in every part of the kingdom has the ability to make representations in appropriate cases, which as the noble and learned Lord the Lord Chief Justice says may be rare, but it is a sensible way of dealing with the point. Again, I express my gratitude to the Lord Chief Justice for proposing it.
My Lords, the reason for tabling this amendment is not to question the substance of Clause 13, but to ask whether it ought to be in the Bill at all. Surely, issues concerning the Speakership of your Lordships' House, whatever your Lordships' views on the appropriateness of such an office or otherwise, should be a matter solely for your Lordships' House in the context of the Standing Orders of the House.
In our submission, it is wholly inappropriate for another place to be invited to consider whether or not your Lordships' House should change the arrangements about who sits on the Woolsack. The amendment is tabled for that reason. I do not ask your Lordships to seek to open a debate upon the substance of the clause. I beg to move.
My Lords, to save time I shall speak to Amendment No. 95 in the group. It would leave out Schedule 5. It is consequential on Amendment No. 3, which would leave out Clause 13. Therefore, Amendment No. 95 may in due course be dealt with formally. Both these enabling provisions on the transfer of the Speakership were consequential upon the office of Lord Chancellor. On Report, it was common ground that they should be left out. An undertaken was given to table these amendments to give effect to that undertaking.
My Lords, I rise briefly to support the noble Lord, Lord Kingsland, on behalf of my noble friends. My reasoning is entirely the same as his. I therefore need not detain the House.
My Lords, the principle expressed in our debates on the Speakership of this House by a number of noble Lords, including the noble Lords, Lord Kingsland, Lord Campbell of Alloway, Lord Goodhart and Lord Maclennan of Rogart, is that the Speakership is a matter for this House alone. I firmly agree with that principle.
I equally firmly believe that the choice of Speaker of this House should not be in the gift of the governing party. The provisions in Clause 13 and Schedule 5 remove the automatic link between the Lord Chancellor and the Speakership of this House in primary legislation. They do not preclude the Lord Chancellor from continuing to hold the office of Speaker, if that is the will of this House. They vest those functions, currently vested in the Lord Chancellor as Speaker, in a generic office of Speaker. They ensure that the House can, under its standing orders, appoint a Speaker who is empowered to carry out all the functions currently attached to the Speakership, rather than having a Speaker imposed on the House by the Executive, as is, in effect, the case now.
That the Speakership is a matter for this House alone is underpinned and underlined by Clause 13 and the Schedule it introduces. The decision we are being asked to make today is not who should occupy the Woolsack, nor whether the Lord Chancellor should continue or discontinue to be Speaker. We are not being invited to agree today—as the noble Lord, Lord Kingsland, would have had noble Lords believe on
"a wholesale change that would dispense with the traditions of your Lordships' House and could see us moving towards a full-time Speaker with authority over the House".—[Hansard, 7/12/04; col. 886.]
Such a claim is, with the greatest respect to the noble Lord, Lord Kingsland, without foundation and is a misrepresentation of what these provisions achieve, and what they are intended to achieve.
All the provisions do is ensure that, should this House collectively choose, at some future date, a Member of this House other than the Lord Chancellor as Speaker, that person can exercise the whole range of functions that fall to that post without the need for further amendment by primary legislation. The amendments would also work if the House were to decide, against the wishes of the Government, that the Lord Chancellor should continue as Speaker, because it would not be prevented by any of the amendments. That is what these provisions achieve—no more, no less.
In doing so, the provisions strengthen this House's powers of self-regulation. They do not diminish them. I utterly confirm what the noble Lord, Lord Kingsland, said. It is our view that this is a matter for this House to decide and not both Houses. I hope that in the light of the reassurance I have given the noble Lord feels able to withdraw his amendment.
My Lords, we debated this matter at some length on Report. I do not propose to reopen all the questions that were fully discussed then. I remain unconvinced about the merits of leaving this clause on the face of the Bill. But the noble and learned Lord has given an unequivocal undertaking that the Speakership of your Lordships' House remains exclusively a matter for your Lordships' House and that another place will not in any way be involved in our decision. On the basis of that undertaking, I beg leave to withdraw the amendment.
moved Amendment No. 4:
After Clause 13, insert the following new clause—
(1) The Minister may by order make provision for any of these purposes—
(a) to transfer an existing function of the Minister to another person;
(b) to direct that an existing function of the Minister is to be exercisable concurrently with another person;
(c) to direct that an existing function of the Minister exercisable concurrently with another person is to cease to be exercisable by the Minister;
(d) to modify an existing function of the Minister;
(e) to abolish an existing function of the Minister.
(2) An order under subsection (1) may in particular—
(a) amend or repeal any of the following—
(i) an enactment other than one contained in an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;
(ii) subordinate legislation other than subordinate legislation made under an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;
(iii) any other instrument or document, including a prerogative instrument;
(i) any supplementary, incidental or consequential provision, and
(ii) any transitory, transitional or saving provision, which the Minister considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, provision made under subsection (1).
(3) The amendments that may be made by virtue of subsection (2)(a) are in addition to those made by or under any other provision of this Act.
(4) An order under subsection (1) may not include provision that may be made under section 1(1) of the Ministers of the Crown Act 1975 (c. 26) (power to transfer functions to other Ministers etc).
(5) An order under subsection (1) may not be made in relation to any function of the Minister that is within Schedule (Protected functions of the Minister).
(6) An order under subsection (1) may amend Schedule (Protected functions of the Minister) so as to include any function which, by virtue of provision in the order—
(a) becomes exercisable by the Lord Chancellor concurrently with another person, or
(b) is modified.
(7) An order under subsection (1) may not, to the extent that it amends Schedule (Protected functions of the Minister), be revoked by another order under subsection (1).
(8) In this section—
"existing function" means any function other than one that is conferred by—
(a) an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed, or
(b) subordinate legislation made under an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;
"prerogative instrument" means an Order in Council, warrant, charter or other instrument made under the prerogative."
My Lords, Clauses 106 and 108 deal respectively with the protection of certain functions of the Lord Chancellor and with the power to make supplementary provision. As noble Lords will know, changes are necessary to these clauses to ensure that they continue to apply for functions which are no longer covered by the Bill as a result of changes following the decision of the House on
The details of these proposals are set out in the memorandum sent by the Government to the Select Committee on Delegated Powers and Regulatory Reform, which is set out in annex A to its fifth report. Accordingly, I shall be brief.
In essence, these provisions protect judiciary-related and other functions of the Lord Chancellor, so that they cannot be transferred to another Minister by a transfer of functions order and they permit the spirit of the Bill to be effective in relation to functions of the Lord Chancellor that are not dealt with in the Bill.
The Delegated Powers Committee has commented on these amendments that the power can be used for purposes which need not be supplementary or incidental to the Bill; that though limited to existing functions the power is not limited in the time of its exercise; and that it could be used in the future for purposes other than those arising from the current redistribution of the Lord Chancellor's functions.
I shall of course be replying formally to the committee, but I thought it appropriate to give an initial response. While I understand the case for a time limit, in some respects the time limit could be inappropriate—for example, where a function of the Lord Chancellor has been missed and comes to light which needs to be abolished, modified or transferred to the Lord Chief Justice or to another judge, or where a function, perhaps in relation to a tribunal, is transferred from another Minister to the Lord Chancellor and would better be carried out in a shared way through consultation and concurrence in accordance with the concordat.
I shall look again at the provisions in the light of the committee's comments on the use of the affirmative resolution procedure and we will bring forward suitable amendments in another place.
My Lords, as a member of the Delegated Powers Committee, I was present at the discussion of the amendments which the noble and learned Lord the Lord Chancellor kindly sent to the committee for comment. I am very glad to hear that the Government intend to bring forward amendments in another place. There is no question that these provisions, as drafted, could be used for a considerably wider purpose than exists at the moment in starting from the status quo in future. I think that that is the problem, although I am sure the committee will be very grateful for that.
My Lords, without wishing in any way to tease the noble Baroness, this is an important amendment to introduce at Third Reading in the view of the Official Opposition. At first blush we thought that it could have dramatic effects on the responsibilities of the Lord Chancellor. However, we have now examined Amendment No. 96 in some detail. We have formed the view during the time at our disposal that the noble and learned Lord the Lord Chancellor is probably properly protected.
The noble Baroness underlined to your Lordships' House that she would be reflecting on the committee's observations. I am sure that if some gap in the noble and learned Lord's armour is discovered between now and the various stages in another place, the noble Baroness will be swift to make sure that that gap is closed. On that basis, we are happy with the amendment.
My Lords, I am the last person who would want to tease the noble Baroness. But, in the light of comments made before we started our discussion, it is worth noting that these amendments are brought forward to bring the Bill into line with the decision of the House of Lords on
My Lords, I am grateful for the comments that have been made. We trailed very widely those issues that we intended to address, of which this was definitely one. There is no underlying change in policy. As I said, it is designed specifically to bring the provision into line. I am grateful to the noble Baroness, Lady Carnegy, for her comments about the Delegated Powers and Regulatory Reform Committee. We will consider what needs to be done formally in response and in another place.
moved Amendments Nos. 5 and 6:
After Clause 13, insert the following new clause—
(2) In section 1 (power by Order in Council to transfer functions of Ministers), after subsection (5) insert—
(7) An Order in Council under this section may amend Schedule (Protected functions of the Minister) to the Constitutional Reform Act 2004 so as to include any function which, by virtue of provision in the Order in Council—
(a) is transferred to the Lord Chancellor,
(b) becomes exercisable by the Lord Chancellor concurrently with another person, or
(c) remains exercisable by the Lord Chancellor but ceases to be exercisable concurrently with another person.
(8) An Order in Council under this section may not, to the extent that it amends Schedule (Protected functions of the Minister) to the Constitutional Reform Act 2004, be revoked by another Order in Council under this section."
(3) After section 5(3) (Orders under Act to be revocable) insert—
"(3A) Subsection (3) is subject to section 1(8).""
After Clause 13, insert the following new clause—
"AMENDMENT OF SCHEDULE (PROTECTED FUNCTIONS OF THE MINISTER)
(1) The Minister may by order amend Schedule (Protected functions of the Minister) so as to include within that Schedule any function of the Minister under an enactment, other than an enactment contained in an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed.
(2) For the purposes of subsection (1) it does not matter whether a function of the Minister is exercisable by him alone or concurrently with another person.
(3) An order made under this section may not be revoked by an order made under this section."
On Question, amendments agreed to.
Clause 14 [Transfers: supplementary]:
moved Amendments Nos. 7 to 13:
Page 6, line 7, leave out subsection (1) and insert—
"( ) This section applies where a function of the Minister is transferred to another person ("the transferee") by any provision of this Act or of an order under section (Transfer, modification or abolition of functions by order) ("the amending provision")."
Page 6, line 12, at end insert "amending"
Page 6, line 16, after "by" insert "the amending provision or any other provision of"
Page 6, line 24, after first "the" insert "amending"
Page 6, line 27, at beginning insert "amending"
Page 6, line 29, after second "the" insert "amending"
Page 6, line 36, after first "the" insert "amending"
On Question, amendments agreed to.
moved Amendment No. 14:
Before Clause 15, insert the following new clause—
The House of Lords, when exercising its appellate jurisdiction, is the Supreme Court of the United Kingdom and the Lords of Appeal in Ordinary shall be appointed in accordance with the provisions of sections 17 to 23."
My Lords, much of the debate on Report was taken up with the Written Statement that the noble and learned Lord the Lord Chancellor produced on the morning of the debate. It showed the projected capital cost for the conversion of Middlesex Guildhall at £30 million. It showed for the first time the cost of building seven new courts to replace the existing courts in the Guildhall—presumably, somewhere near the centre of London. I visited the Guildhall this morning. Six of the seven courts were in operation and I was told that the seventh would also have been in operation, had it not been for Christmas.
It is said—this is only rumour—that buildings for those seven courts are to be found, four in Croydon and three in Isleworth, neither site being very near the centre of London. Be that as it may, the cost, which was given for the first time, is £15 million—an extraordinarily low figure for building seven new courts. I had hoped that by today we would have had a breakdown of that £15 million, but it has not been provided. So, for the moment, we must accept the figures of £30 million plus £15 million as the capital costs involved in creating the Supreme Court. There will be increased annual running costs of £5 million which, I suppose, can be conveniently capitalised at £100 million, so we are talking of a total in capital terms of £145 million on present estimates.
I shall leave the question of costs there because, important though they are, something else is more important today. For today is our last chance to stand back from this whole affair and ask a simpler question: not what this will cost but, rather, what is it all for? On
I say no more about that for this reason. The noble and learned Lord the Lord Chancellor himself accepted in Select Committee, at Question 75, and on the Floor of the House, that something more than a theoretical objection to the presence of the Law Lords is needed if we are to remove them from this House. He said that there must be some positive reason, some tangible and real advantage to be gained.
What, then, are those advantages? From the start, it has been a constant theme of the Government that we need a Supreme Court to bolster or enhance—various words have been used—the independence of the Law Lords. It will not have escaped your Lordships' notice that on Thursday of last week, the Law Lords gave judgment against the Home Secretary in the case concerning the detention of men without trial in Belmarsh prison. In the light of that judgment, I think that I need say no more about the actual independence of the Law Lords.
Then it is said, "Ah, but that is not all that matters. What also matters is the perception". It is said that the people are confused. They believe that the judgments of the Law Lords are biased or politically motivated. Those are not my words, they are taken from the Government's consultation paper. The noble and learned Lord the Lord Chief Justice puts it more diplomatically. He said—this is his second reason—that the creation of a Supreme Court will make the role of the Law Lords more understandable. What more do we want the public to understand?
On the Friday morning following the decision of the Law Lords to which I referred, I looked through the 10 daily papers in the Library. As one would expect, all 10 covered the story in considerable length. There were numerous references to individual Law Lords—not always, I must say, complimentary—and numerous references to the Law Lords being the highest court in the land. Thus, the Mirror said that,
"the Law Lords, the United Kingdom's highest court, blows a hole . . . in the Government's war on terror", and that,
"the highest court in the land has utterly condemned a key point in the Government's policy".
The Sun said:
"On day one of his new job, the Home Secretary, Charles Clarke, finds out exactly what he is up against".
I could give many other instances that I garnered from the papers last Friday.
Surely any reader of the Sun or the Mirror would realise that the Law Lords, the highest court in the land, had done something that the Government did not like. How, then, can it be said that there is confusion in the minds of the public? How can it be said that their decisions are thought by the public to be politically motivated? The Government produced not a shred of evidence to the Select Committee to support any suggestion of confusion. When I suggested rather timidly that if that was an important part of the Government's case, as it appeared to be, we might commission a survey of public attitudes, the suggestion was brushed aside.
I accept of course that the public do not know what is meant by a Lord of Appeal in Ordinary. I accept of course that the public do not know that the Law Lords are an Appellate Committee of this House. But what, I ask, does that matter? They understand very well what matters: that the Law Lords, the name by which they are universally known, form the highest court in the land; and they understand that the Law Lords are completely and fearlessly independent of government—of any government of whatever colour. I therefore cannot accept that public understanding would be improved by moving the Law Lords from here to the Guildhall and calling them a Supreme Court.
My Lords, I am most grateful to the noble and learned Lord for giving way. Throughout his speeches, he has sought to give the impression that it is the Government who are taking a peculiar view about the incomprehension of the public. He will surely recall the most compelling evidence given to the Select Committee on which he served by the senior Law Lord, the noble and learned Lord, Lord Bingham, who gave material and particular indications that even those entering law schools in this country did not understand that the House of Lords was the final Court of Appeal in this country. It is hard for this House to understand how the noble and learned Lord can persist in repeating time and again this canard about the view being the Government's only.
My Lords, the noble Lord is quite right: two pieces of evidence were given to the Select Committee. Both were purely anecdotal. One was given by the noble and learned Lord, Lord Bingham; the other by Professor Diana Woodhouse, who had asked one of her students which was the highest court in the land, and the student answered that it was the Court of Appeal rather than the Law Lords. If that is the best evidence that the Government can produce, heaven help us.
I cannot accept that moving the Law Lords from the House of Lords to the Guildhall and changing their name would improve in any way public understanding of what they are. Indeed, changing the name could make matters worse, because the public might think incorrectly that we were creating something new and different, like, for example, the United States Supreme Court or the Supreme Court of Ukraine. The public might well ask, "Why would any sensible government want to call the same people doing the same job by a different name?"
The third argument relied on by the noble and learned Lord the Lord Chief Justice was that there ought to be better access for the public. That argument will be dealt with by the noble Lord, Lord Kingsland, when he moves his amendment. When the public want access in large numbers because of the importance of a case, there is no difficulty in making the necessary arrangements. I speak from personal experience, as some 100 or 200 members of the public were present at the Clegg and Pinochet cases. There is no reason why people wishing to visit the Law Lords on more ordinary occasions should not come in through the existing security entrance in Black Rod's Garden and take the lift to the first floor, which takes them to the very door of the committee room. All that would be needed would be a few signposts and perhaps some help from the friendly policemen who now occupy the Lord Chancellor's Court.
In his speech on
"a gigantic step forward in our constitutional arrangements . . . a piece of great reforming legislation . . . [to] rank in importance with the great constitutional instruments of the past".—[Hansard, 7/12/04; col. 759.]
It is clear from the context that the noble and learned Lord was referring to the concordat, enshrined in Part 3 of the Bill, at pages 22 to 46. The concordat ensures the future independence of the judiciary. That is the point to which the noble and learned Lord the Lord Chief Justice rightly attached so much importance.
The independence of the judiciary and the importance of the concordat have nothing whatever to do with whether we should have a Supreme Court; they are completely separate issues that do not touch each other at any point. When the noble and learned Lord the Lord Chief Justice said that delay could cause the loss of the Bill and that we must not miss this window of opportunity to achieve a short-term advantage, I am not sure entirely what he had in mind. What short-term advantage do we seek to achieve? Surely he cannot mean that we should vote in favour of a Supreme Court for fear that, if the Government lose the vote, we will lose the Bill.
The future of the Law Lords and the creation of a Supreme Court are questions of great constitutional importance in their own right. They are much too important to be used simply as a lever in pursuit of some other end. The concordat is urgent business, as we all agree; the Supreme Court is not. Let us take those two separate issues step by step. Let us vote today on the merits of a Supreme Court. Such an important issue clearly requires a decision on the merits, uninfluenced by any consideration of what might happen if the vote goes against the Government. If the Government lose this vote, they can always seek to reverse the decision in the House of Commons. That will not delay the Bill. There is not the slightest reason that I can see why the noble and learned Lord the Lord Chancellor should seek to withdraw the Bill if he loses the vote. If that is his intention, perhaps he will tell us.
We are not forcing this decision on the noble and learned Lord the Lord Chancellor; rather it is the other way round. The decision that we are taking today is being forced on us because of the extraordinary press announcement on
My Lords, the principal question raised by this and related amendments is whether the Lords of Appeal should continue rather than be abolished, with in future the same people doing the same job but under a new name and in a different building, not 300 yards from here. Today I wish to offer the House briefly a serving Law Lord's perspective, separating the issues raised in this debate that seem important to me as a Lord of Appeal from those that have been raised but at best are of peripheral relevance.
I should first make plain that I do not speak for any other Law Lord. As to the attitude of others, the 12 Lords of Appeal remain equally divided on the desirability of a new Supreme Court. In forming my views I have perhaps one advantage over some of my brethren in seeking to achieve a degree of objectivity. If this part of the Bill is enacted, when the sun rises on the new Supreme Court, in 2008, I shall have reached the compulsory retiring age for judges, so the change, if it occurs, will not affect me personally. My views are thus not tainted, consciously or unconsciously, by any impact that the proposed change would have on me personally; it will have no such impact.
Let me start with the up-to-date position regarding accommodation. Mention has been made of the Law Lords' existing accommodation in terms that might suggest that we have to make do with improvised, substandard facilities which desperately need improvement. Nothing could be further from reality. First, the accommodation for the oral hearing of appeals is provided by the committee rooms where appeals are normally heard; it is very different from the accommodation of an ordinary court. The Appellate Committee meets like other committees of your Lordships' House, with members seated on one side of a horseshoe-shaped table at the same floor level as those addressing the committee. By standards of courts of law, the Law Lords' hearings are conducted in a relatively informal way. We are not robed. No doubt that way of going about things is different from the accommodation provided and the procedures adopted in the court rooms of other Supreme Courts in the common-law world.
It might be expected that when the Law Lords are released from the restraints imposed by acting as a committee of your Lordships' House, they would want to seize the opportunity to make good those shortcomings. In future, they would conduct their affairs like other courts of law when they sit in their new court rooms in a new Supreme Court. Now they could look like a proper court.
Not a bit of it: far from wanting to change the existing layout and procedures, conducive as they are to informality and an atmosphere that promotes dialogue, the Lords of Appeal unanimously wish, in a new Supreme Court, to copy and reproduce the existing committee room layout and procedure. It is true that the proposed new accommodation would provide more seating for interested members of the public. But the additional space provided for that in current plans would not be huge. The availability of that additional space cannot be regarded as of much significance.
In common with most law courts, the occasions when members of the public wish to watch and listen to seemingly interminable legal argument are rare. Our audience ratings are not good. Most visitors to Committee Room 1 leave after a few minutes. When public interest is high—for instance, with the Pinochet appeal—it has usually been possible for the Appellate Committee to sit in an enlarged committee room. But that degree of public interest is exceptional. The need for more space for the public can all too easily be exaggerated.
As to the Law Lords' other facilities, each of us—in theory, we are 12, but for some years now we have effectively been 11 because my noble and learned friend Lord Saville has been engaged for a long time in chairing the Bloody Sunday inquiry—is privileged to have his or her own room on the second floor west front. The rooms vary in size but even the smaller ones are adequate. They are bigger than some of the judges' rooms in the Royal Courts of Justice. With one exception, they command one of the finest views in London.
We have as much secretarial assistance as we need. We have four judicial assistants. That is a recent innovation. If more assistants are needed, no doubt they can be made available. We have access to any law books that we need. We have a conference room of our own. We have back-up administration provided by an excellent judicial office. The question of the Law Lords' present accommodation, if not a non-point, is a point of peripheral relevance on this proposed constitutional change.
Still on accommodation, I turn to an important point; namely, the building in which a new Supreme Court would be housed. The preferred option of the noble and learned Lord the Lord Chancellor is the Middlesex Guildhall building. Perhaps I may say at once that I readily acknowledge and, indeed, would pay tribute to the unstinting efforts of the Department for Constitutional Affairs to adapt that building to a purpose for which it was not designed.
At an early stage in discussions a small working party of the Lords of Appeal, of which I was chairman, agreed the accommodation requirements of a new Supreme Court with officials of the department; namely, how many court rooms, judges' rooms and rooms for secretaries would be needed; what the minimum floor space of those rooms should be; and so on. I have no reason to doubt that the Middlesex Guildhall building would be able to meet that specification if the necessary listed building and other consents were forthcoming.
But there is a further overriding requirement, which is accepted on all sides: the building in which the Supreme Court of the United Kingdom is housed should be a building that befits that role. It should be suitably prestigious, not for the greater glorification of the judges, but to symbolise and represent to all who see and use the building the importance of the rule of law in this country.
The site of the Middlesex Guildhall is superb. Unhappily, the same cannot be said of the building itself. No doubt, if the exterior were cleaned, it would look much better. But the main entrance to that Edwardian mock-Gothic building is hardly what one would choose as the perennial television backdrop for news items and interviews concerning activities of a newly created Supreme Court.
I wonder how many of your Lordships have ever been inside the building. The entrance hall, even when cleared of the present clutter, will always be ordinary and banal and at odds with the distinguished new purpose that the building is being called on to serve. The proposed three court rooms will retain some of their existing original furnishings, including opaque glass windows that are set with coats of arms of successive Lords Lieutenant of the county of Middlesex.
Those rooms will never rid themselves of the atmosphere of their original purpose—one room as the council chamber and the other two as intimidating criminal courts. Overall, in spite of the great cost envisaged, the interior of the building will always retain much of its heavy, original character. The net result could be only an expensive hybrid, with the building having, in part, the feel of its unexceptional origin and, in part and discordantly, the feel of a latter-day-come new Supreme Court, and with the whole lacking distinction. A new Supreme Court for this country surely deserves better.
I turn next to the much-debated question of separation of powers. Contrary to what has been suggested, there is no ground for thinking—
My Lords, I know that the noble and learned Lord has not had too much opportunity to intervene in these debates before, but we are going over and over old ground. I know that noble and learned Lords feel very strongly about this, as do noble Lords on all sides of the House. But we have now spent 25 minutes on this amendment. This is Third Reading. As was pointed out at the beginning, the purpose of Third Reading is not to go into the basic substance of the Bill. The question of whether it is proper to strike out so many clauses at all is debatable.
Matters about the windows in the Guildhall, the lifts in this House and so on are not Third Reading points. If we could move to accepting that there is firm opposition in principle to this suggestion, perhaps we may get away from some of the detail that has been dealt with many times before—in Select Committee, in Committee and on Report. It must be remembered that these clauses were all stand-part debates in Committee.
My Lords, I am grateful for that reminder, but I shall move on now to a question that is at the heart of the amendment; that is, the much-debated question of the separation of powers. Contrary to what has been said, there is no ground for thinking the present arrangements carry a risk that decisions of the Law Lords may be impeachable in Strasbourg as a violation of the European Convention on Human Rights.
True, such a breach might occur if a Law Lord were to be involved actively in some material way in the legislative process and then proceed to hear an appeal raising a question on the same legislation. But, like all judges, the Law Lords are well aware of the need to be circumspect in their extra-judicial activities. Mention has been made of a recent occasion when a Law Lord recused himself from sitting because of views that he had expressed in a lecture. But that has nothing to do with membership of this House. The position would be the same with any judge who had given such a lecture. That is a non-point.
Nor is there a question of the Law Lords lacking what has been called "institutional" independence. The conventions of your Lordships' House guarantee as effectively as any statute that only the Law Lords participate in the judicial business of the House. That is another non-point.
What does remain of this "separation of powers" question is concern that the Law Lords' undoubted independence is not sufficiently obvious. The position is not sufficiently transparent because the Law Lords when discharging the judicial functions of the House are known to the outside world simply as "the House of Lords". That is confusing, it is said; the more so because the Law Lords actually sit to hear appeals within the Palace of Westminster.
This point calls for serious consideration. If there were substance in it, it would be important. As every lawyer knows, appearances matter. But where the argument falls down is that there really is no ground for thinking that this suggested public misconception actually exists. Last Thursday, nine Lords of Appeal announced their decision in this Chamber in the cases concerning the detention of suspected terrorists. Nothing I have seen or read in the media reports of that House of Lords judgment suggests that anyone misunderstood the position. So far as I know, there was total clarity that the decision was that of the judges known as Law Lords, and they are so known because they sit in the House of Lords at the apex of our judicial system.
Even so, if the proposed abolition of the Law Lords had no disadvantages, something might be said for making the change on the basis that something might be gained and there is little or nothing to lose. But there is something to lose, something of importance in our constitutional arrangements. I believe that the Law Lords gain from being here and that they would be the poorer. Observations made by many of your Lordships suggest that if we go, the House would be the poorer, and the judicial reputation of this country's court of final appeal long known and respected as the House of Lords would suffer because that reputation would not pass seamlessly to a newly created body.
Let me put it this way. If all the Members of your Lordships' House were expelled from here tomorrow and given the same job to do, but under a different name and in a different place—somewhere along Millbank, say—would the public perception be the same? I doubt it. The new body would have to build up its own reputation as the Millbank Senate or whatever.
At the end, your Lordships have to weigh up the different factors: the lack of any real advantage in making the change; the presence of intangible but real disadvantage; the fact that by common accord the present system works; the substantial expense, initial and continuing, of the proposed change; and the absence of any really suitable building. Put all those together and I suggest that the answer to the question before the House is clear.
My Lords, when this Bill is compared with the version introduced into the House, there are vast improvements. The judiciary are grateful to the House for making those improvements. However, even in its original form, the judiciary were supportive of the Bill— I emphasise these words—as a package of reforms that would significantly improve the protection provided for their independence. Naturally, and particularly in view of the improvements, the judiciary will be deeply disappointed if the Bill does not now reach the statute book.
We are conscious that although the Bill might be reintroduced after the election, there is no certainty that any new version would provide an equally satisfactory balance between our long-term traditions and the need, because society does not stand still, for evolutionary reform.
As I took part in earlier stages of the Bill, I hesitated over whether I should take part on Third Reading, but in my previous addresses to the House I was doing so in my capacity as chairman of the Judges' Council. Although the council approved the package of reforms which included the Supreme Court reforms, it knew, as indicated by my noble and learned friend just a few moments ago, that the Law Lords themselves were split on the advantages of the Supreme Court. I thought, therefore, that as I had myself changed my view from being, so to speak, weakly against the idea of a Supreme Court into being in favour of such a court, it might assist your Lordships to know what has caused me personally to alter my view.
The situation so far as I am concerned is that the Law Lords are split. That is a factor which is very indicative of what the situation should be. I had the advantage of hearing my noble and learned friend Lord Nicholls speak on a previous occasion in very much the same terms as he has today. I also heard my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry, and I have to say that I was influenced by their words. But I have had to bear in mind that there are Law Lords who would not think it right to get involved in any way in the debate that is taking place, and so we have not heard from them.
Equally, there are Law Lords like myself who feel that it is wrong to vote in a debate. Now only a very small minority of the Law Lords think it appropriate for a Law Lord ever to vote on a Division in this House, and when they do vote, unfortunate consequences can arise because of the impression made outside this place.
I can remember a time, I think about nine years ago, when the Law Lords considered moving from this House to occupy what was undoubtedly a prestigious building in Chancery Lane, the then empty Public Records Office. Some of the most senior Law Lords and myself went to inspect the building, and we thought that there would be very real advantages in making the move—for only one reason, that of the improved accommodation. But at the time, because the Law Lords were split, that proposition was taken no further. There was no question at that point of the Law Lords considering there was anything wrong or inappropriate about a Law Lord taking part in a debate or voting. But in the nine years that have elapsed, the focus of the issue has changed. Now the focus concerns the discomfort of some Law Lords about being situated inside this House.
With the greatest respect to what has just been said so eloquently by my noble and learned friend Lord Nicholls, it is right that problems can arise. I am very conscious that one of the matters scheduled to come before the courts next term is whether Parliament has complied with the Parliament Act in passing the legislation to ban hunting. That issue goes to the heart of the powers of the legislature. For obvious reasons, I am not going to say anything about the merits of the issue, but there will be court proceedings relating to it unless the present proceedings are withdrawn.
A few years back, litigation of that kind would simply never have been anticipated. Now it is a reality, and when we consider the question of perceptions, it is not the perception of those members of the public who understand our legal system that we are concerned with, but that of the ordinary man and woman in the street. If they hear that an issue of the kind I have just referred to is to be adjudicated upon in this House, by Members of this House, will they have reservations about the impartiality of the body that has to determine those issues—assuming that they have sufficient merit to justify being adjudicated upon? That concerns me very much indeed.
The other matter that concerns me is that if we have six of the 12 Law Lords unhappy at being in this House and in favour of the Supreme Court now, how many more of the Law Lords will take that view in a few years' time? I am in exactly the same position as my noble and learned friend Lord Nicholls. Any decision of this House will not affect my ability to take part—if I am invited to do so—as a Law Lord in the considerations of the Appellate Committee.
The issues that I have indicated do worry me. They have caused me to come to the conclusion that we should take advantage of this opportunity—which may not arise again—of finding a government who are willing to pay for a new Supreme Court. I have to confess that my experience of getting the Government to pay for courts has not always been successful, but at least on this occasion they are determined to do their best. We may not, to our regret, have another opportunity such as this for a long time. I urge your Lordships to vote in favour of the Supreme Court.
My Lords, I was not proposing to take any part in this debate but, having heard the speeches of the noble and learned Lords—both of whom, of course, we greatly respect—I take the liberty of suggesting to your Lordships that the separation of powers must not be too narrowly applied. Experience bears out that there are legislators who have benefited from exercising judicial functions—I am glad to see the noble and learned Lord the Lord Chief Justice agreeing by nodding his head—and there are members of the judiciary who, given the realism that legislative experience brings, will take a broader view. This will help them to reach better judgments if there is not too close a separation of powers.
The separation of powers was introduced in Europe about 300 years ago. In some countries it has been applied very closely but in our country we have taken a more realistic view. We have undoubtedly benefited in your Lordships' House from the advantage of having the Law Lords with their great legal and judicial experience. They have been able to move amendments to and comment upon legislation that affects the whole of the people. If we lose the Law Lords we shall suffer by not having that advantage.
I suggest that the time has come for us to take a broader, more flexible and more realistic view of the separation of powers.
My Lords, I am extremely grateful to the noble Viscount for giving way. I am the first non-lawyer to speak and the House will be glad to know that I do not intend to speak about any legal matter of any kind.
I rise only because last Thursday the noble and learned Lord, Lord Lloyd, referred to my view of the adequacy of the Middlesex Guildhall as a Supreme Court. He said that I was wrong. I differ from him, obviously. I was referring to the architectural merits of the building and I believe the noble and learned Lord was thinking more of the accommodation when he spoke last week. Later, the Law Lords' opinion of the Guildhall was referred to, and they seemed to be not over-enthusiastic about its distinction. The noble Lord, Lord Kingsland, to whom I have listened with admiration many times during his performances at the Dispatch Box, also seemed unenthusiastic about the Guildhall, although I do not think he mentioned it by name for some reason.
As we have been reminded, this is Third Reading, and I should like to come very briefly to the defence of the Guildhall as an architectural building. Its accommodation was defended by my noble and learned friend the Lord Chancellor last week and again by the noble and learned Lord, Lord Nicholls, earlier. I shall leave that to one side, however, and speak entirely about the design of the building and its place in architecture.
Is it adequate? Is it sufficiently distinguished? If I were seeking an opinion on a legal matter, I would not turn to an architect. In the same way, if I were seeking an opinion on architectural merits, I would not turn at first to a lawyer. Although they are admirable in many ways, they have no qualifications along that line.
I have been to my bookshelves and taken out a couple of books which deal with the architectural merits of the building. Much as I would have liked to, I could not find Pevsner. However, I do have Edwardian Architecture by Alastair Service. He said about the building that,
"the Free Style of the Middlesex Guildhall of 1906–13 by James Gibson in Parliament Square, Westminster, is a brilliant fantasia of free Gothic striving to blend with the neighbouring Abbey and Parliament . . . [an] assured and convincing performance".
"On the W side"— of Parliament Square—
"the former Middlesex Guildhall (1906–13; J.S. Gibson), one of the very best public buildings of its date, and one of the last Gothic ones. The detail is a fanciful 15C French Gothic treated with Arts and Crafts verve, contrasting plain areas of wall with concentrated carving to the porch, parapet and central tower".
That is the kind of opinion about a building to which I listen carefully. It is quite clear to me that the building is sufficiently distinguished even for the Supreme Court. I sincerely hope that noble Lords and noble and learned Lords will stop kicking it about in the way they have been doing.
My Lords, I wish to speak against this group of amendments. I refrained with care from speaking last week when it was plain that there was not going to be a vote. I shall be making some points that have not been made before and I hope that I will be forgiven for speaking in this Third Reading debate.
Personally, I consider the proposal for a Supreme Court unnecessary and an exercise in political correctness, but I do not regard the proposal as of major constitutional significance or as a threat to the judicial process. The quality and integrity of the judgments, given by the same people exercising the same jurisdiction, will not be affected by the fact that they are sitting in a different place under a new name.
We also now have a strong sunrise clause which ensures that the building can only be built or altered to a design of which the Lord Chancellor approves after consultation with the Lords of Appeal. So either the points made by the noble and learned Lord, Lord Nicholls of Birkenhead, will be satisfied, or he will be unable to approve the proposal. It comes into force only when that building is constructed according to that design. When, if ever, that will happen is a matter for speculation. In any event, it ensures that the court and the Law Lords will have suitable premises.
It is also undoubtedly correct that the implementation of Part 2 of the Bill will mean that this House will lose the valuable contribution made by individual Law Lords. But the sunrise clause will again have the effect of postponing that result until Part 2 can be brought into effect.
The other points that have been made very frequently by those who oppose the Supreme Court and who wish to delete it from the Bill relate to costs. But I was brought up on the principle that supply and cost are primarily a matter for the other place. If the other place is willing to give the Government the money they want to implement the Supreme Court, who are we to say no them?
In contrast to the proposal for the Supreme Court, I regard the retention of the Lord Chancellor as a Minister of status and independence as of major constitutional importance. Indeed, I believe that there are very few people who would dispute that, of the matters in the Bill, the question of the Lord Chancellor is of substantially greater importance than the matter of the Supreme Court.
We must therefore consider what effect it would have on the remainder of the Bill and, in particular, on the Lord Chancellor, if we throw the Supreme Court out lock, stock and barrel, as my noble and learned friend Lord Lloyd would wish us to do. It is our general belief—whether it is right or not, I do not know—that the Government will accept the retention of the Lord Chancellor in some modified form, provided that they get the remainder of their Bill. But if this House destroys the whole proposal for a Supreme Court, either the Bill will be abandoned, and will come back in the next Parliament in its original and unmodified form, or the other place will surely throw out all our amendments and, in particular, those on the Lord Chancellor.
It is thus my suggestion to your Lordships that a so-called "victory" on the Supreme Court issue would lead to the loss of everything we have gained on the "Lord Chancellor" front, as well as the loss of the concordat and the Judicial Appointments Commission, as the noble and learned Lord the Lord Chief Justice pointed out. It is for this reason that I strongly oppose these amendments.
I shall make one further point to my colleagues on these Benches. As I understand the matter, the Labour Party and the Liberal Democrats are fairly solidly in favour of the Supreme Court. Therefore, the vote to delete the Supreme Court can be won only if there is a high turnout of Cross-Benchers voting in favour of the amendment of the noble and learned Lord, Lord Lloyd. I ask them to consider whether this is an issue, and whether this is an apt moment in the political calendar for a large number of Cross-Benchers to unite with the Tories in defeating a major government proposal.
For those reasons, I am against these amendments. For the same reasons, I am also against the alternative proposal in the amendment in name of the noble and learned Lord, Lord Howe of Aberavon, to be moved, I believe, by the noble Lord, Lord Kingsland. I have a couple of added grounds for opposing that, but I shall keep those until the amendment is moved—if it is.
My Lords, on Third Reading, it is perfectly appropriate and proper to refer to two principles, the answers to which have emerged from the very long debates noble Lords have had on many matters, including many matters of detail to which I shall not refer.
The first of the questions of principle that the House has to consider—and I hope that Cross-Benchers will consider it—is whether it can be said—indeed, whether it is said—that the Judicial Committee of the House is not competent to carry out the functions attributed to it as a court. That is not said, and cannot be said. The noble and learned Lord, Lord Goff, said not very long ago that the speeches made by the Lords of Appeal in Ordinary in this House when deciding cases are the most widely quoted in Europe of all the European Courts. They have earned the highest respect. The same is true of the Commonwealth and the common law countries. In many places during the past 12 months, people have expressed astonishment that it should be found necessary to take this step in view of this high reputation for competence.
The second question of principle is whether it is said or can be said that membership of the House interferes with the independence or the integrity of the members of the Judicial Committee. That is not said and cannot be said. There is no evidence that any influence has been brought to bear on judicial decisions because of membership of this House. I believe that it is important that the Cross-Benchers should consider this matter, not necessarily in league or agreement with the Conservative Members of the House, but standing on their own.
It seems to me that the other arguments that have been advanced during the debate are largely doctrinaire. At the end of the day, the discussion of the separation of powers does not matter. Many of the other arguments are either doctrinaire or even specious. I invite those noble Lords who are not completely committed to voting one way or the other to say that this is not the time to bring in this change. It is a change that is neither necessary nor justified.
My Lords, one of the basic duties of all of us in Parliament is to protect our constitution. In my few brief remarks this afternoon, it is my purpose not to enter into the detail of some of the issues in front of us, but to comment on the constitutional principles that are at stake.
The House owes the noble and learned Lord the Lord Chancellor a considerable debt. This process of constitutional reform started in a most extraordinary constitutional muddle on the back of a government reshuffle. In front of us this afternoon is a Bill that has much greater coherence and principled logic to it.
I very much support the remarks of the noble and learned Lord the Lord Chief Justice that we need to judge this matter in the context of the whole piece of legislation. The preservation of the Lord Chancellor and his post in our constitution is a significant shift and gain in this legislation. It means that the reforms that we are about are evolutionary, not revolutionary. We are moving step by step. Matters such as the establishment of an independent process of appointments are extremely important.
I would be helped to think about our constitution if we moved the language of what we are doing away from the language of the separation of powers. At this stage in the Bill's life, I shall not repeat the arguments that I have made before in this House. Parliament contains all the faces of our constitutional life. That is why Parliament is the highest court in the land. It is called "the High Court of Parliament" and that is the reality of the matter. Therefore, in principle, the establishment of a Supreme Court does not, of itself, damage the constitutional principles. Where that court happens to meet is a practical concern which is well distant from our constitutional principles.
If we lose the Law Lords from this House, how is the face of the law in our constitution to inform our parliamentary processes? That question has not been adequately addressed. It is one thing to establish a Supreme Court, and proper to find the right premises for it; it is quite another to remove from this House the legal advice that is necessary under our constitutional provisions. While we have not yet agreed the final shape of the reform of this Chamber, it seems that we have an unresolved issue. Some comment by the noble and learned Lord the Lord Chancellor might be helpful to us this afternoon.
My Lords, I should like to make one very brief contribution. Having sat through almost every sitting of the Bill and heard the arguments not once, not twice, but perhaps even more, I have two reflections on it. First, the Procedure Committee of this House really must do something about the procedures on Third Reading. At present, if he or she wishes, a noble Lord can have no fewer than five bites at a particular cherry—one on Second Reading, at least one in Committee, and probably two, three, four or five, at least one on Report, one at Third Reading and, indeed, he or she could make a Second Reading speech on the Motion that the Bill Do Now Pass. I do not think that airing the same argument five times increases its validity or its force.
Secondly, I listened very carefully, as I always do, to the remarks of the noble and learned Lords, Lord Lloyd and Lord Slynn, about the contribution that the Law Lords make to this House. It is not the Law Lords who make the contribution but the retired Law Lords. If one looks at the Cross Benches of an afternoon, where legislative things are being considered in a legislative way, one sees a fair sprinkling of people who have been Lords of Appeal in Ordinary and are now appearing in the House. If one looks at the way in which committees are constituted, particularly those taking place in the Moses Room, they have a fair, and extremely valuable, sprinkling of retired Law Lords. There seems to be a self-denying ordinance on the part of sitting Law Lords to appear in this House and to speak in this House and now never to vote in this House. If that is the situation, I cannot for the life of me see the argument that says that somehow or other the force of the Supreme Court will be diminished if it is moved outside this building.
I hesitate to repeat the arguments I put on previous occasions—indeed, I will not do so. They are all on record; they are all well known. I think it really is time that the House decides what it wants to do.
My Lords, there is, I believe, an expression from ancient learning, which goes, "All Cretans are liars. I am a Cretan". We have a perfect example of that today, although it is nothing to do with truth. The Law Lords have been trying to influence what we should do by saying that they should not be there.
We have had a very eloquent speech from the Lord Chief Justice which has certainly planted some doubts in my mind. But it is because he is here, not giving a lecture in Durham or Norwich or somewhere else, that his influence is so important. That, I think, answers the point of the noble Lord, Lord Richard. The influence the Lord Chief Justice has by making that speech is his position, as a Law Lord, saying they should not have any more influence. It is important that that influence stays in the House.
My Lords, I think it is time we made some progress.
I took part last Thursday evening in a discussion programme on television. We were discussing the Belmarsh case, and one of the viewers rang in, saying "Is the Government going to abolish the House of Lords because of this decision?". That is an indication of the confusion that is rampant, not among the journalists who regularly cover these issues, but among the general public.
The Law Lords are a different set of people doing a different job from the rest of those in your Lordships' House. It is generally inappropriate for serving Law Lords to take part in the legislative proceedings of your Lordships' House. This Bill obviously presents a special case, and I do not suggest that the noble and learned Lord, Lord Nicholls of Birkenhead, is in any way acting inappropriately in his very useful contribution to the debate. But the Law Lords do not need to be—nor, I believe, should they be—Members of your Lordships' House. The link between the Law Lords and the House as a whole is a historical link only, and it conceals the true nature of the role of the Law Lords.
Creating a Supreme Court and giving it a proper home would end the confusion in the minds of the public, here and abroad. It would emphasise the independence and the proper role of the court. It would provide proper facilities not available in your Lordships' House for judges, for lawyers and their clients and for the public. Although I cannot speak as a judge, I can certainly speak as someone who has appeared as a lawyer and also attended other cases as a spectator. I disagree, therefore, with the noble and learned Lord, Lord Nicholls.
The facilities provided in this building are far inferior to those in most other countries, and I do not refer simply to the American Supreme Court. About 10 years ago, I visited the Supreme Court of Israel. Accommodation there is far superior to anything in the Palace of Westminster. I believe that poor accommodation is one of the reasons why so few people attend the hearings. Perching in the Committee Rooms of your Lordships' House does not add to the dignity of the highest court in our land, nor to the respect in which it is held.
It is, I believe, a wise rule that those who make the laws should not interpret them and those who interpret the laws should not make them. With great respect to the noble Lord, Lord Renton, the idea that the Law Lords obtain significant benefit from membership of your Lordships' House or that your Lordships' House, as a legislative body, obtains significant benefit from having serving Law Lords as Members is, in fact, fanciful. As the noble Lord, Lord Richard, pointed out, your Lordships' House does, of course, benefit from the contributions of a number of former Law Lords, and I hope that that will continue to be the case. But that is another matter; it is not a matter for this Bill.
What has been my party's policy for many years has now been adopted by the Government. We therefore strongly back the Government on this issue, and I hope that your Lordships will as well.
My Lords, I have had the opportunity on a number of occasions to speak on this matter in your Lordships' House. As far as concerns Amendment No. 14, I have nothing to add to the outstanding speeches of the noble and learned Lords, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead and Lord Slynn of Hadley. I rise only to say something about the amendment in the names of my noble and learned friend Lord Howe of Aberavon and myself. It is in the next group but it is wholly relevant to the subject matter of your Lordships' speeches today.
I had hoped that that my noble and learned friend Lord Howe of Aberavon would be with us this afternoon. He has been receiving an honorary degree from the University of Glamorgan. The noble Baroness, Lady Howe, has assured me that he is, at this moment, on the motorway with his foot hard down on the accelerator, hoping to get here in time to add his voice to what I am about to say. But he is, as your Lordships can see, not with us at the moment. So I shall, in a minute and a half, briefly remind your Lordships of what my noble and learned friend Lord Howe said on Report.
The amendment tabled by my noble and learned friend Lord Howe and myself essentially represents a halfway house between the amendment tabled by the noble and learned Lord, Lord Lloyd, and the position taken by the noble and learned Lord the Lord Chancellor.
What is the mischief against which the noble and learned Lord the Lord Chancellor directs Part 2 of the Bill? Apart from the noble and learned Lord's wholly misplaced obsession with the doctrine of separation of powers, the noble and learned Lord's main concern has been with the potential confusion between the role of your Lordships' House as a legislature and its role as a court. So far as I can discern, however, there is no evidence, of any cogency whatever, to justify that confusion.
Indeed, when some of your Lordships sought in the Select Committee hearings to get the Government to undertake some research and public opinion sampling to see whether or not in reality the confusion existed, the Government were extremely reluctant to do so. Nevertheless, so as to make the matter clear beyond peradventure, my noble and learned friend Lord Howe of Aberavon has tabled an amendment that accepts that the final court of appeal, in future, should be called the Supreme Court but that it should continue to sit in the Palace of Westminster, with its own entrance—perhaps the existing entrance, known as Black Rod's entrance.
My noble and learned friend's proposals would have the double advantage of providing a Supreme Court at minimal cost and at the same time allowing it to continue to operate in a building of unimpeachable quality and excellence. In addition, the amendment would foresee the judges in the Supreme Court continuing to be life Peers, not Lords of Appeal in Ordinary, sitting not in the Chamber of your Lordships' House to give their judgments but in one of the Committee Rooms of your Lordships' House.
In the view of my noble and learned friend and myself, that would alleviate the concerns that the noble and learned Lord the Lord Chancellor has about the confusion that might be caused, whether or not those concerns were justified, and at the same time preserve the essential traditions of the Appellate Committee of your Lordships' House, which has served this country so well.
My Lords, we have debated this matter now for many months, and the time has come to deal with the principle of whether or not we should have a Supreme Court. The arguments are well known and I do not intend to rehearse them. It is the position of the Government, the Liberal Democrats, the senior Law Lords and the noble and learned Lord the Lord Chief Justice, and I suspect it is the position of quite a number of noble Lords on the Conservative Benches, too, that the time has come for there to be a court that is separate from the House of Lords.
Those of us who were members of the Select Committee that this House sensibly set up to consider the matter were treated to a debate between the noble and learned Lords, Lord Bingham and Lord Nicholls, as to the merits or demerits of having a Supreme Court. They both came and gave evidence together. We have heard only from the noble and learned Lord, Lord Nicholls, today, because the noble and learned Lord, Lord Bingham, takes the view that he should not speak in relation to those issues. Those of us who heard the noble and learned Lord, Lord Bingham, give evidence on that occasion found his evidence extremely powerful.
Today, added to that, has been the voice of the noble and learned Lord the Lord Chief Justice, who makes the point—a point not made before—that half of the Law Lords now feel uneasy about being Members of this House and sitting in this House as a court. He also makes the point that, if it is half of them now, how many more will it be as time goes on?
I would invite noble Lords to listen carefully to what has been said, to weigh up the merits of the argument and to come to the conclusion that the time has come for the separation to occur, not because of any slavish adherence to the doctrine of the separation of powers but because the idea of having a court separate from the legislature is the way in which every other modern democracy has gone. It is the way that leads to people seeing with great clarity what the true position is.
I quote Mr Walter Bagehot on the matter; he said:
"I do not reckon the judicial function of the House of Lords as one of its true subsidiary functions, first because it does not in fact exercise it, next because I wish to see it in appearance deprived of it. The supreme court of the English people ought to be a great conspicuous tribunal, ought to rule all other courts, ought to have no competitor, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly".
The time has come to give effect to that quote.
I turn to two other matters. First, on the accommodation issue, no one disputes that Middlesex Guildhall is able to provide the accommodation that the Law Lords, in the committee chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, said that it needed. The noble and learned Lord expressed the view that he did not think that it was quite appropriate as a Supreme Court. That is an aesthetic judgment that we are all able to make. However, I quote what other noble and learned Lords, who for obvious reasons have not spoken in the debate, have said. The noble and learned Lord Hobhouse, said:
"Major needs: 1) move to new premises nearer to the RCJ and the Inns and their facilities, 2) have a building sufficient to house us properly and our staff and the facilities which we need".
The noble and learned Lord, Lord Millett, said,
"My reason for favouring the creation of a new court is entirely practical and pragmatic. The fact is that this House can no longer provide the accommodation, resources and facilities which a properly serviced Supreme Court requires".—[Hansard, 12/2/04; col. 1293.]
The noble and learned Lord, Lord Bingham, said,
"I doubt if any supreme court anywhere in the developed world is as cramped as our own. This is not the product of spite or malevolence or public parsimony. It is the result of an acute shortage of space available to the House of Lords in the Palace of Westminster and a wholly understandable precedence given by the House authorities to those who manage and work in the legislative chamber".
My Lords, having heard the noble and learned Lord, Lord Bingham, speak at that committee, and having read the various recommendations that he put to it, does the noble and learned Lord the Lord Chancellor not accept, and should he not make it clear, that the noble and learned Lord, Lord Bingham, was totally opposed to using the Middlesex Guildhall?
My Lords, I would not accept that he was totally opposed to using the Middlesex Guildhall. I have discussed with the noble and learned Lord, Lord Bingham, his position, and he has reservations about the Middlesex Guildhall, but he is prepared to talk them through and see whether changes can be made. So I strenuously dispute what the noble Lord is saying in that regard.
My Lords, with respect, that is simply not right. The noble and learned Lord the Lord Chancellor will perfectly well remember document no. 93, which was created by the noble and learned Lord, Lord Bingham, and had the support of all the Law Lords, in which they said that the Middlesex Guildhall would never be the right building.
My Lords, I have spoken to the noble and learned Lords, Lord Bingham and Lord Nicholls of Birkenhead. I make it clear that they have reservations about the building, but the noble and learned Lord, Lord Bingham, does not take the position of saying that it could never be a Supreme Court.
I turn to the comments of the noble Lord, Lord Kingsland, on the matter of the Supreme Court building. He suggests that we keep the Supreme Court in the House of Lords, and refers to the speech made by the noble and learned Lord, Lord Howe of Aberavon, on the last occasion that we debated this matter. He suggested, too, that it should have Black Rod's entrance as its own separate entrance and that the offices and residence of the Lord Chancellor could be used for the purpose. There are 301 square metres in that part of the building, while the requirements agreed with the Law Lords were that 2,932 square metres were needed. So the idea that it would be possible to make a separate Supreme Court out of that part of the building is, with the greatest respect, not feasible or sensible.
I respectfully invite the House not to accept the amendment tabled by the noble and learned Lord, Lord Howe of Aberavon. It would involve calling the House of Lords Appellate Committee the Supreme Court; it would have to sit in the House of Lords and have as its members Members of this House; and it would get no greater accommodation than it has already. Perhaps a separate entrance could be opened in Black Rod's Garden—but with the greatest respect, that does not involve making the change required to set up a Supreme Court.
My Lords, before the noble and learned Lord sits down, may I from a sedentary position, which is entirely due to disability and not disrespect, ask him to assist me on one point? There has been more than a hint made that if either of the amendments were approved, the noble and learned Lord the Lord Chancellor could well discontinue the Bill altogether, thereby bringing to an end those parts that have considerable support such as the position of the Lord Chancellor and the matters that have been successfully achieved by the noble and learned Lord the Lord Chief Justice and by the appointments board, thereby causing a great loss of considerable good in the architecture of this legislation. As a Cross- Bencher I have been cautioned to think very carefully how I should vote. Will the noble and learned Lord the Lord Chancellor enlighten us about the threat that has been referred to, certainly obliquely, by the Lord Chief Justice and, I believe, by others?
My Lords, I make no threats. With respect I want a Bill that has the four parts of the reform we are after: the reform of the office of Lord Chancellor; the concordat—the new relationship with the judges; the Judicial Appointments Commission; and a Supreme Court. A Bill with all those four elements would not then require a further Bill. However, if any element goes, obviously we fail to deliver all four parts of the reform. I make it clear that I make no threats; I invite noble Lords to deal with this issue on its merits.
Finally, I wish to deal with what the right reverend Prelate said. He was concerned about how the connection with the law would be retained. I wish to deal with three points in that regard. First, I refer to the written representations amendment that was moved by the noble and learned Lord the Lord Chief Justice. Secondly, we would seek to establish a committee in accordance with what was said when replying to the amendments tabled at Report by the noble and learned Lord, Lord Mackay of Clashfern. I cannot say what form it would take but we would be keen to establish dialogue in that regard. Thirdly, I moved an amendment at Report which indicated that there was no bar on members of the supplementary panel—which means in effect retired Supreme Court justices—becoming Members of this House. As was said by someone in the course of the debate—I believe that it was the noble Lord, Lord Goodhart—the contribution that is made by lawyers tends to be made by the retired Law Lords rather than by the sitting ones. Therefore, I think that in practice the evolution that the right reverend Prelate sought exists.
I invite noble Lords to accept the principle of the Supreme Court. I invite noble Lords not to accept the principle and then in every single respect make it the same as it is already by accepting the amendments of the noble and learned Lord, Lord Howe.
My Lords, the noble and learned Lord the Lord Chancellor has invited the House to deal with this issue on the merits, which is exactly what I asked the House to do, without the thought of any threat in the background that if we do and the Government lose, the Bill will be withdrawn. On the merits, I wish to add only the sentence in document no. 93—which I think the noble and learned Lord the Lord Chancellor must have forgotten—in which the noble and learned Lord, Lord Bingham, and all the Law Lords, said:
"We have grave doubts whether, even if radically transformed, these spaces can ever provide a suitable setting. The impression will always remain that the Supreme Court has been crudely thrust into a building designed and built for quite another purpose".
Having said that, I need only remind your Lordships of the most eloquent speeches of the noble and learned Lords, Lord Nicholls and Lord Slynn, who said all that I would have wanted to say. I wish to take the opinion of the House.