I am pleased to have secured this debate. I was greatly assisted in my deliberations by the investigation, and the evidence taken during it, carried out by the Select Committee on Constitutional Affairs, which is chaired by my right hon. Friend Mr. Beith. I understand that the Committee is due to sit at 10 o'clock this morning, which may account in part for the sparse attendance in the Chamber.
I started with a clear view on several matters relating to the topic, but then I read the evidence received by the Select Committee from several erudite and learned sources and found myself questioning some of the simplest and most straightforward aspects of the proposal. I mention that because it is important to put it on the record that the subject is of immense constitutional significance.
Ever since Montesquieu wrote his seminal work, "De l'esprit des lois", there has been fairly widespread acceptance of the desirability of separating powers among the three pillars of the state: the judiciary, the Executive and the legislature. In our own way, we have managed in the United Kingdom's constitution to respect that principle, but our acceptance of it has sometimes been muddled and messy. The office of the Lord Chancellor and the House of Lords as an appellate court is perhaps one of the best examples of that muddle.
I do not know whether lofty legal principles or lofty legal personnel first spurred the Prime Minister to embark on his consultation in June, but I suspect that it was the latter rather than the former. My one reservation about consultation on the proposal, which I broadly favour, is that we might be biting off more than we can chew because a number of substantial issues that could be considered are not being considered, or are in danger of not being considered properly. My basic thesis is that I would rather get it right than get it quick. I am concerned that a rush to legislate in such an important sphere will, if we do not get the legislation right, have profound and severe implications.
My approach to the subject arises principally from my concerns relating to the position of Scots law. I wish to register my mild irritation that the Advocate-General, the Secretary of State for Scotland and the Under-Secretary of State for Scotland are not in the Chamber for this debate. I am delighted that the Under-Secretary of State for Constitutional Affairs, Mr. Leslie, is here, and I am sure that he is more than equal to the task of answering any questions that I shall ask, but the matter will have a profound effect on the conduct of Scottish business here. Despite that, the Scotland Office, notwithstanding its continuing substantial presence in Dover house, cannot find the time or personnel to attend. Frankly, that is not good enough.
The separation of judicial business from the House of Lords is welcome, although in evidence to the Select Committee, Lord Hope of Craighead said that being able to mix with MPs and other peers and to walk the corridors of Westminster was an important way for him to stay in touch. That is an interesting perspective from a man who is an exceptionally capable judge, and whose father and, I think, grandfather were also judges, and who, notwithstanding his immense talent, typifies the sort of person who becomes a judge. That is how he stays in touch. I feel that I am in danger of being out of touch when I am in Westminster and I go home to my constituency to get in touch, but it is all a matter of perspective. In passing, I point out that if we are to get the judges out of the House of Lords, the Church of England bishops must surely be the next to go.
Principally, I shall discuss the Scottish aspects of a supreme court, but there are two issues of wider importance that I would like to touch on first: the appointment of members of the supreme court and whether a broader range of constitutional issues should be within the court's remit or jurisdiction. Who appoints judges to the supreme court strikes at the heart of the independence of the judiciary. People have struggled for centuries with the question, who judges the judges? Time has moved on and now we have to ask who appoints the members of the independent appointment commission. The Government seek to pursue a policy that involves minimal change, whereby the Prime Minister, following consultation with the First Minister in Scotland and the First Minister and Deputy First Minister in Northern Ireland, will make suggestions on appointments to Her Majesty. Concerns have been expressed that that formalises a process that gives the Executive undue influence in judicial appointments. If judges can be appointed by the Executive in that way, there is a question about their overall independence.
I commend to the Minister the proposals made in response to the Government's consultation by the Law Society of Scotland, which opposes the direct line of appointment from the Prime Minister to the sovereign. It suggests that the chair of the Judicial Appointments Board in Scotland, the Commissioner for Judicial Appointments for Northern Ireland and the chair of the Commission for Judicial Appointments in England and Wales, together with three supreme court judges, should be appointed as members of an appointments panel. My initial concern about that proposal was that it might tend to continue the self-perpetuating appointment of small "c" conservative men by small "c" conservative men, but, in fact, if one applies to that process the Nolan principles of openness and transparency, there is a great deal to be said for it. It balances the need for independence on the one hand with the obvious need for that degree of transparency that we now seek in all public appointments. If the three supreme court judges were, as a matter of fact, if not of law, drawn from each of the jurisdictions in the British Isles, we would have on the appointments commission two members from Scotland, two from England and Wales and two from Northern Ireland. That would go some way to addressing some concerns that have been expressed north of the border and, no doubt, in Northern Ireland that the proposed system will, in effect, be an English court.
The important question of the constitutional matters that might come before the supreme court is not properly considered by the Government's consultation paper. When one speaks of a supreme court, one of course immediately brings to mind the model in the United States, where the Supreme Court exists primarily to adjudicate on questions of constitutional propriety. However, there is now a very strong case for saying that a stronger role could be given to the judiciary in the United Kingdom, especially in respect of the implementation of human rights legislation.
At present, Acts of the Scottish Parliament can be struck down by the courts on the ground of their non-compliance with the Human Rights Act 1998, whereas Acts of the UK Parliament can only be made the subject of a guidance note advising of a lack of compliance with the 1998 Act. That is an obvious difference between the two systems. To my mind, the 1998 Act introduces to United Kingdom law, probably for the first time, the notion of a hierarchy of legislation. The idea that ordinary legislation, if I may call it that, can be struck out by human rights legislation is fairly novel, especially to the constitutional practices and theories that have been followed south of the border.
The proposed supreme court is of huge importance, as it would represent a significant shift in the balance of power between the judiciary on one hand and Parliament and the Executive on the other. It requires more substantial and careful consideration than it has so far been given with the somewhat rushed nature of the consultation. At the same time, however, the measure is necessary. If it is not in the Bill to be introduced early next year, it will almost certainly be in a Queen's Speech two, three or four years down the line—or at some stage. There is an inevitability about it. The fact that an Act of the Scottish Parliament can be struck out by a court puts a foot in the door. If we go down that road, however, the power that we give the judiciary must be very carefully prescribed and defined. It is a missed opportunity that the Government's consultation process does not allow that to be done in the time scale set.
The other point of some significance for me as a Scot is the current practice whereby devolution issues come from Scottish courts to the Judicial Committee of the Privy Council. Like many Scottish lawyers, I viewed that with great suspicion at first because, in effect, it brought Scottish criminal cases within the jurisdiction of a court in London, which had never been the practice hitherto. However, having observed it for the past six years, I have to say that it has worked well.
None the less, the Government should exercise caution before they move from a position in which such cases go to the Privy Council to one in which they are placed under the jurisdiction of the supreme court. The Minister may be aware that Lord Hope of Craighead made a very good point in his evidence to the Select Committee: there is a degree of flexibility in the composition of the Judicial Committee of the Privy Council that allows extra, almost ad hoc, judges to be imported from north of the border to sit on such cases. That arrangement has worked exceptionally well. As things stand, the supreme court would not have that degree of flexibility. For that reason if for no other, the retention of devolution issues within the Judicial Committee of the Privy Council is devoutly to be encouraged.
A number of items of Scottish business arise from consideration of a supreme court. I am interested in the view of Lord Hope of Craighead on one matter, and I will be very interested to know what advice the Minister has had on it. I quote from Lord Hope's answer to question 300, which is on page 13 of the transcript of evidence to the Select Committee, which I understood was to be placed in the Library or the Vote Office. He says that
"the whole issue of Scottish participation in the new court is a matter which is devolved, because, if you look at Section 126 of the Scotland Act, the whole of Scots private law and criminal law is a matter for the Scottish Parliament unless it touches on reserved matters. That suggests to me that what we are talking about, when we are talking about a final court of appeal in Scottish cases, is an amendment of the Court of Session Act, which is a Scottish Act, which really is under the supervision of the Parliament. Certainly it will be dealt with by a Sewel motion, which would require a vote in Edinburgh, but the ideal position would be for the matter to be debated fully by the Members of the Scottish Parliament."
Does that coincide with the Minister's understanding of the situation? Does the measure constitute an amendment to the Court of Session Act, and will it be taken from the Scottish Parliament by way of a Sewel motion, or dealt with by the Scottish Parliament under its own powers? The Minister may wonder what will happen to the Government's time scale if the Scottish Parliament declines to pass such a Sewel motion. I find it more than slightly alarming that we have reached the middle of December and an issue of that fundamental importance does not appear to have been dealt with, at least in public.
Lord Hope of Craighead also raised several practical considerations—I hesitate to call them objections. He made the point that situating a supreme court close to the Strand and the Inns of Court would send a rather poor message to those of us who are not subject to the law of England and Wales, as it would appear somehow to subsume Scottish business within the greater mass of English and Welsh business. Given the difficulties experienced by my colleagues in Edinburgh, I hesitate to suggest the creation of a new building, but there is a lot to be said for keeping the supreme court closer to this place than to the Strand, and wherever it is, it should not be seen as an adjunct to the English and Welsh system.
I shall not get drawn into a debate on the relative merits of different buildings at this stage. Apart from anything else, besides the Palace of Westminster, its surrounding satellites and my flat in Kennington, I do not really know many buildings in London, such is the nature of the life that we lead, but I am sure that the Middlesex guildhall is delightful.
In passing, I wonder why the supreme court has to be in London at all. Why are we pulling yet another aspect of Government business into London? I am sure that Manchester, Birmingham, Edinburgh, Belfast or Cardiff could easily provide suitable facilities. Why should there be an assumption that the court comes to the capital? I merely float that idea, but if we are to start with a blank sheet of paper—apparently we are—why not take advantage of that? If we are looking for value for money and best value, as we are encouraged to do, surely best value would be found in the property market elsewhere in the country.
Substantial concern has also been expressed about the proposed administration of the supreme court by the Court Service of England and Wales. That would be an unfortunate signal to send to the rest of the country. Again, if the court is to be seen as truly independent, it has to be independent in all its structures. It would be a missed opportunity if the supreme court were seen to be dependent on the court system in England and Wales.
I turn to the question of the business that would be justiciable by the supreme court. At present, all civil cases relating to statute or Scottish civil law can go from Scotland to the House of Lords; there is no right of appeal to the House of Lords on criminal matters. Devolution issues can be taken to the Judicial Committee of the Privy Council. We should perhaps consider the matter afresh. My gut instinct is to say that the present arrangement works pretty well. I do not favour the repatriation of common law civil cases to the Court of Session in Edinburgh; that is unnecessary and undesirable. Taking statutory law but not common law cases to the supreme court artificially divides the law and is unhelpful.
Interestingly, some thinking north of the border says that there is a case for taking Scottish criminal cases to the supreme court on appeal. I can see some advantage to that, but I remain to be convinced that Scots criminal law, which is a much smaller branch compared with the totality of Scots civil law, could survive being subsumed in that way. The principles of Scots civil law are broadly similar to those south of the border, particularly in relation to cases that go to the House of Lords, which tend to be the larger commercial cases. In an article in The Scots Law Times on
"a mere historical anomaly that few would seek to defend."
However, it is an historical anomaly that has worked rather well. I would not close the door on bringing appeals from criminal cases to the supreme court, but I would require further persuasion. That is another issue that might have been considered by a fuller and lengthier consultation period, but it will not be done properly now.
I am aware that others wish to speak. I am pleased that we are at last seeing some meaningful reform of the conduct of judicial business within the House of Lords. I hope that the Minister will take it from one who is broadly supportive of the Government's aims that there are big issues to consider and there are still opportunities to do things better.
On a point of order, Sir Nicholas. I ask you to take advice, because I wish to participate in the debate. I shall stand corrected by any ruling you may give, but my understanding is that, as a Member, I am entitled to participate, and I wish to do so.
Further to that point of order, Sir Nicholas. It may assist you in appreciating the structure of the Opposition Front-Bench team if I were to explain that I am the official spokesman on this issue. Given the fluid structure of the Opposition, my hon. Friend the shadow Attorney-General would speak as if from the Back Benches. Therefore, I trust that you will see fit to call him, as I am the official Opposition spokesman for the purpose of this debate.
Thank you, Sir Nicholas. I am pleased to be called to speak in this debate. I congratulate Mr. Carmichael on securing this extremely important debate, which neither the UK Government in London nor the Government in Edinburgh appear to want to have in their own time—at least, not to date. I am not entirely sure whether I am required to declare an interest, but I am a qualified Scots lawyer and, hence, a member of the Law Society of Scotland.
I believe that the hon. Lady is required to make such a declaration. Perhaps I, too, should have made such a declaration, but I did not because I do not hold a practising certificate, although I am an enrolled solicitor.
I felt that I should make that declaration, as I do hold a full practising certificate, although I am not practising at present.
I also join the hon. Member for Orkney and Shetland in noting with some astonishment and, indeed, dismay that no Scotland Office Minister is here today, nor is the Advocate-General for Scotland or any Scottish Labour Back Bencher. That speaks for itself and for their commitment to uphold the integrity of Scots law.
As far as Scotland is concerned, the proposals for a supreme court represent a missed opportunity to end the 18th century anomaly whereby final appellate jurisdiction in civil cases in Scotland lies south of the border. As we have heard, the final appellate jurisdiction over Scots criminal law, leaving aside the particular instances of devolution cases, lies with the High Court of Justiciary in Scotland and not, thankfully, the House of Lords. Therefore, the question must be posed as to why in post-devolution Scotland the final right of appeal in civil cases should lie south of the border.
Both the announcement and the substance of the proposals to create a new supreme court with jurisdiction in Scotland attracted fairly strong criticism from those in senior legal circles in Scotland. Of course, the announcement followed the Prime Minister's botched reshuffle in June and was preceded by no consultation whatever with the Scottish First Minister, Scottish Executive Ministers or the Scottish Parliament. I raised the matter in a point of order in the Chamber on
On the lack of prior consultation, Scotland's estimable First Minister said simply that there was "absolutely no reason whatsoever" for the Prime Minister to have consulted him on such a major constitutional change. That speaks volumes about the limited length to which the estimable First Minister is prepared to go to stand up for the Scots legal system and the interests of his country.
I thank the hon. Gentleman for his intervention. He is correct in saying that the way that the proposals were dealt with—their announcement and the prior consultation—was a disgrace. I hope that the Minister will reflect on that in his winding-up speech.
Many concerns have been raised by senior legal figures in Scotland on the substance of the proposals for a UK supreme court. The hon. Member for Orkney and Shetland referred to Lord Hope of Craighead—a senior Scottish Law Lord—who raised serious concerns at the outset about whether the proposals would fall foul of the treaty of Union of 1707. Those concerns were raised in the light of the fact that Scottish cases could be heard on appeal south of the border only in a court that was entirely separate from the English legal system.
As the Minister will be aware, that key issue was the nub of the response by the Faculty of Advocates in Edinburgh to the Department for Constitutional Affairs consultation paper. The Faculty of Advocates concluded that the proposals were both unconstitutional and unlawful in their present form. That conclusion has been widely regarded in Scotland as a devastating critique of the proposals and was based on the fact that they did not meet the requirements of the Act of Union. Indeed, they contain no provision for the new supreme court to be run, administered and—importantly—funded separately from the DCA, which is also responsible for the administration of legal services in England and Wales. That is the key issue—the nub of the matter.
The Government may not have realised initially that the treaty of Union of 1707 had implications for their proposals. They may not have been aware of that issue—indeed, they may prefer to regard it as unimportant—but it remains the key constitutional matter regarding the application of the proposals to Scotland. Aside from the constitutional implications, that raises the question whether the proposals would be in breach of the Act of Union if they go ahead in their current form, which is the view of senior legal figures in Scotland. What validity would a judgment handed down by that new body have in Scotland, when the Government have clearly breached the founding constitutional document setting up the Union between Scotland and England? The fact that the UK Government and the Government in Edinburgh do not appear to have grasped that key constitutional dilemma is difficult to fathom and alarming.
I had the great pleasure of attending the Scottish Grand Committee on
"The question of who pays for the supreme court and whether the money comes through the Department for Constitutional Affairs would, perhaps, be of extreme interest in a rarefied debate in the Court of Session, or somewhere similar. In practical terms, however, for money to come to a particular organisation, it must go through one Department or another. There is no escaping that."—[Official Report, Scottish Grand Committee,
That statement, by no less a person than the Secretary of State for Scotland, reflects a breathtaking lack of understanding of the key constitutional issues involved. Thank goodness that, in the absence of the Government, we in Scotland have defenders of the integrity of Scots law and strong voices in the legal profession that are prepared to stand up and be counted.
For the record, we in the Scottish National party are in favour of the general principle of the separation of the judiciary from the Executive and legislature. Of course, as democrats, we are also in favour of a written constitution and a Bill of Rights for our citizens.
As far as Scots law is concerned, the proposals represent a missed opportunity. The renowned and well-respected professor of Scots law at Edinburgh university recently described the present system of sending final civil appeals to the House of Lords as "crazy". He went on:
"I've always thought that civil appeals should be decided in Scottish courts . . . A UK supreme court should only be for constitutional issues."
That quote was taken from the Holyrood magazine of
In conclusion, in post-devolution Scotland, the 18th century anomaly of final appellate jurisdiction in civil cases lying south of the border should be brought to a timely close.
I congratulate my hon. Friend Mr. Carmichael on securing this debate, which is a valuable curtain-raiser to the Government's proposals. Oddly enough, we have not yet had the opportunity to debate them either on the Floor of the House or in Westminster Hall. Clearly, there are some big issues on which we should at least express some view before we move to legislation, which, I suspect, may not be far away in the new year.
In constitutional terms, nothing could be more significant than the Government's proposals for the supreme court. I suspect that that was lost on the Prime Minister when he made the initial announcement; things were not thought through. A matter of such importance should not be essayed on the back of a rather botched reshuffle and the need to move one Secretary of State into another role.
My hon. Friend the Member for Orkney and Shetland started the debate in a high tone of academic brilliance—as is his habit—with a reference to Montesquieu. He is quite right that the concept of the separation of powers, although not explicit in the British constitution as it is in the constitutions of other countries with comparable jurisdictions, is nevertheless a theme that has been well understood by jurists, politicians and the general public. That makes anomalous the position in this country, where a single individual sits as a member of the Cabinet, the Executive and the legislature and as head of the judiciary. That point has been raised many times.
My hon. Friend said that on the whole that system has worked okay. I am inclined to agree, although, in history, there have been many examples of Lord Chancellors who were anything but impartial in their political outlook and in the actions that they undertook. At times, the post has thrown the question of the role of the Lord Chancellor into very sharp relief.
I thought that I was on the Back Benches anyway, because I did not think that this Chamber had a Front Bench and Back Benches as Committees do.
Does the hon. Gentleman agree that, in the past 50 years, no questions have been raised about the impartiality of judicial appointments made by Lord Chancellors, whether they are from one party or another?
I am inclined to agree. I am trying to remember whether there have been problems with judicial appointments, but I do not believe that there have. However, that does not alter the fact that it is a constitutional anomaly—I would say, to use the mildest terms, a constitutional outrage—to have that mixing of roles in the Cabinet embodied in the present post of Lord Chancellor. We have argued that for a long time. Indeed, we have argued that case in the face of blank rejection from the Government in previous years. I recall several occasions on which the point was put to Ministers occupying the post held by the Under-Secretary of State for Constitutional Affairs, Mr. Leslie, only for it to be met with the blank assertion that all was well and the Lord Chancellor right. It is difficult to reconcile that with the present policy direction, but I welcome the change in tone.
If the Government are right in principle, why have they made such an unholy mess of the process, which, frankly, is what they have done? This fundamental reform to our constitution and legal system has been introduced in such a manner that it has caused the maximum upset, disagreement and loss of confidence. That is extraordinary.
My hon. Friend the Member for Orkney and Shetland concentrated, for obvious reasons, on some Scottish aspects of the proposals. That is the right thing to do from his point of view, and he will forgive me for not being as expert in those aspects as he or Annabelle Ewing. I agree that it is odd that the Advocate-General for Scotland did not feel that examining this matter might be a profitable use of her time. I know that she is busily engaged in her duties; we regularly discover that at Advocate-General's questions. However, I had hoped that she might spare a little time from her busy day to understand more fully the concerns of hon. Members about the Scottish aspects of the supreme court.
There is a fundamental issue. Is this going to be a supreme court of England and Wales or a supreme court of the United Kingdom? The Government's proposal is that it will be a supreme court of the UK. If that is the case, why were discussions not opened at an early stage to examine the consequences for Scotland? Scotland has a separate legal identity and system. If the supreme court is established, it will have an appellate function on matters that come in some instances from the High Court of Justiciary and in others from the Court of Session, but it is unclear whether that can be effected without primary legislation being passed in the Scottish Parliament. I tend to the view that that will be needed. If so, it surely would have been better to examine those consequences in depth before embarking on over-hasty legislation.
That haste is at the core of many objections that have been raised. It is deplorable that splits have now occurred among the Law Lords on this issue: it is sad that the Government have been unable to take with them the highest echelons of the judiciary in England and Wales or in Scotland or in Northern Ireland. One of the first problems was the haste to which Mr. Grieve referred. The Lord Chief Justice was not consulted before the proposals were brought forward. It is deplorable that the Lord Chief Justice was not given the opportunity of expressing a view on those matters before they were announced. Indeed, as we recall, the original announcement was that the Lord Chancellor's post no longer existed. A few hours later, we discovered that it did, because otherwise the House of Lords could not sit. So we have the spectacle of the Secretary of State for Constitutional Affairs having to don a wig and sit on the Woolsack in the full post of the Lord High Chancellor, despite having disavowed it only a matter of hours earlier.
Let me enlighten the hon. Gentleman further; there was a famous e-mail in which the Lord Chief Justice, on hearing what happened, told his brother judges that he felt that, in the circumstances, he had to take over as head of the judiciary. When that reached the Secretary of State for Constitutional Affairs, as he then was, he was rather upset, and said, "No, no, no; I'm still head of the judiciary." It was only at that point that the Secretary of State decided that it was inevitable that he would have to maintain the title of Lord Chancellor. That is the extent to which the Government have messed up the system through complete arrogance and lack of consultation.
I tend to agree. It reminds me of the shooting of President Reagan, and of Al Haig not being able to decide whether he was in charge of the country. He first said that he was, and then that he was not. The matters that we are discussing do not have quite the same consequences for the freedom of the western world, but it is none the less important to decide who is in charge of the judiciary.
I do not accept the second argument against the supreme court, which is simply one of reaction. It is the view that everything works okay so we have no need to reform or change—a traditional Conservative position. The role of the Lord Chancellor was unacceptable, and I see great merit in a supreme court. I would not die in a ditch to preserve the term of Lords of Appeal in Ordinary. If one were to ask average citizens what a Lord of Appeal in Ordinary was concerned with, they would have some difficulty in identifying the fact that the title referred to the supreme appellate court of England and Wales—and of the United Kingdom, in some cases. The term "supreme court" is not new, of course; in fact, there is a question about what we do with the existing supreme court's nomenclature: it is, of course, the higher court in England and Wales. Nevertheless, there is a strong argument for moving forward.
There is a more substantial argument about judicial independence, and that has to be grasped. Under the proposals, the role of the Lord Chancellor as the underwriter of judicial independence in the Cabinet has effectively been lost, and that has to be replaced, whether by statute, as I attempted to do through amendments to legislation in the last Session, or by other means. We have to ensure, in the absence of a written constitution, that the concept of judicial independence is clearly delineated. It is just too easy for senior Ministers to get on their high horses and start judge-bashing—they do it with monotonous regularity—and undermining the concept of judicial independence.
A less valuable argument is that judges rather like sitting in the House of Lords. I noted the references to Lord Hope of Craighead and his evidence; he thought it was rather a good idea to mix with the common people in the House of Lords to gain life experience. I do not think that that is a good enough reason. There is an argument for what we have—an appointed part of the House of Lords—although I hope, for heaven's sake, that we do not continue to have that because I would like an elected second Chamber. However, if we have an appointed section, there is a case for making sure that retired Law Lords or lords from the supreme court are appointed, because the value of their judicial experience is evident. There is no obvious reason why a sitting judge should be a Member of our second Chamber.
I must draw my remarks to a close, but there are still a number of unanswered questions about the appointments system. I am concerned that the Government are attempting to preserve an influence in the appointment of the judiciary that their rhetoric suggests they wish to remove. That needs to be looked at closely.
There is the issue of funding the supreme court. I agree that it should have independent funding, and I believe that that has to be ring-fenced from the generality of English and Welsh courts. I particularly take the point made by Scots colleagues that, if it is to be a wholly owned subsidiary of the courts of England and Wales, it will have less value as a supreme court of Scotland.
Premises are important, and the betting seems to be on Somerset house. There are various reasons why that is not the ideal solution. I had not appreciated the strength of feeling in Scotland against placing the supreme court so clearly within the purview of the English and Welsh court system because of its proximity not only to the Royal Courts of Justice, but to the Inns of Court. As a genuine suggestion, I believe that the Middlesex guildhall would be a suitable place; it looks out across Parliament square at the Houses of Parliament, yet it represents the independence of the judiciary. I hope that that suggestion will be seriously considered.
Lastly, there is the question of the Judicial Committee of the Privy Council. I do not accept that it must be preserved simply as a last court of appeal for those countries in the Commonwealth, principally, to which we provide that service. Logic suggests that if we have root-and-branch reform, we should lose it, gain a single appellate body—the supreme court—and make it available to other people. We must take into account the suggestion for a panel of judges that can support the supreme court in matters of Scots law, where appropriate, and on matters involving jurisdictions that look to Britain for their final court of appeal.
The problem is that we have a rushed proposal with huge consequences that has not been thought through. It emanated from a Prime Minister who was trying to carry out a reshuffle on the back of an envelope rather than considering the constitutional round and putting forward sensible proposals that we would support. In its present form, we have serious questions about it.
Before I call the next speaker, may I help the House? First, I apologise for the rather confused structure of this very important debate in Westminster Hall. There has been a lack of communication between the authorities in the House, resulting in this important debate taking place when the Constitutional Affairs Committee is meeting upstairs. I hope that the authorities will take note and ensure that it does not happen again. I am sure that the Minister will take that on board.
Secondly, in so far as Members can sit where they like here, this is a more informal Chamber than the main Chamber of the House. Perhaps the atmosphere is less confrontational, but I must say to Mr. Duncan that the rules of the House apply in Westminster Hall as they apply in the House. In the House, we do not have two Front-Bench spokesmen. Quite exceptionally, because of the time that is available, and without setting any precedent, I am prepared to call Mr. Grieve as a Back-Bench Member to participate in the debate.
Thank you, Sir Nicholas. It was not my intention to sow confusion on proper procedure. However, if this situation helps to clarify matters, it will have been helpful.
One merit of the post that I hold in my party is that I am asked to engage in independent thinking; I thought it might therefore be useful if I were to participate in the debate. The subject is of interest to me, as a practising barrister; however, I am also a pragmatist. If somebody were to propose to me that improvements could be made to the judicial system, I would be prepared to listen and, as it might turn out, to work with the Government to try to achieve a satisfactory outcome.
The proposals we are discussing started off in a most extraordinary fashion—extraordinary because of the way in which the Government launched the reform as a diktat back in the summer. They pronounced on the form that they wanted, did so without any prior consultation or warning, including with those parties most intimately connected with the situation, and tried to implement the proposals in a way that was total nonsense: they were impossible to implement because the post of Lord Chancellor could not be abolished without primary legislation. Serious questions were raised about the underlying motive behind the Government's proposals.
I listened carefully to Mr. Carmichael and I congratulate him on prompting this debate and, in particular, on his comments about Scotland. From his participation in debates, I know of his expertise. He raised important issues that we are going to have to consider. I hope that he will forgive me for widening the scope a little to one or two other matters.
The hon. Gentleman started by referring to the doctrine of the separation of powers and Montesquieu. As I am half French, I have some interest in that doctrine. Constitutionally, I do not believe that it has ever existed in this country. It is a philosophical principle that has been widely adopted on the continent and that undoubtedly commands and deserves respect. It is something that we must take into account in deciding what arrangements to have here. However, it is worth pointing out that in the country where Montesquieu lived, wrote and died, and where his maxims are applied as far as possible, it is the unfortunate truth that, far from the public perceiving that there is a true separation of powers between the judiciary and the Executive, there is a widespread perception that the Executive can influence judicial decisions.
In a country that, on the face of it, has put the relevant structures in place, not a week goes by without the newspapers reporting instances of examining magistrates having been placed under improper pressure during their conduct of investigations in a judicial capacity. There are also allegations that the French court system comes under political influence. I make that point because we need to contrast it with the bizarre, archaic, curious system that we have in this country. I have never come across allegations of political bias against the judiciary in this country, especially the higher judiciary, about the way in which they make their decisions, notwithstanding the fact that the Law Lords sit in an assembly.
I read what the Government had to say in their reform document. The preamble—I always pay some attention to preambles—is a woolly piece of writing. For example, it says:
"The considerable growth of judicial review in recent years has inevitably brought the judges more into the political eye. It is essential that our systems do all that they can to minimise the danger that judges' decisions could be perceived to be politically motivated."
The growth of human rights legislation makes almost inevitable the risk of political motivation being attributed to judges being realised. That will continue irrespective of whether there is an Appellate Committee of the House of Lords. We have a lot of evidence already that, with the changes to Kilmuir rules, judges are being obliged to speak out more frequently and to justify their decisions. That worries me; I am not sure that it is desirable. If I had to choose between that and a senior judiciary whose members have the ability occasionally to participate, with great restraint, in debate in the House of Lords, I would prefer the old arrangement.
The Government then tell us in the preamble:
"It is not always understood that the decisions of the 'House of Lords' are in practice decisions of the Appellate Committee and that non-judicial members of the House never take part in the judgments."
I have to say to the Minister: come off it. I have never heard it suggested that decisions taken by the Appellate Committee are taken by the House of Lords generally. That is a fantasy, yet it is the fantasy that underpins the preamble on which the Government build their arguments.
Towards the end of the preamble, the following statement is made:
"In proposing that the time has come to change these arrangements, no criticism is intended of the way in which the members of either Committee have discharged their functions. Nor have there been any accusations of actual bias in either the appointments to either body or their judgments . . . The arrangements have served us well in the past. Nonetheless, the Government has come to the conclusion that the present position is no longer sustainable."
I am prepared to accept that it is no longer sustainable, but I need more persuasion than is contained in this document that that is the case.
What will be the consequences of the proposals? The House of Lords might be turned into a supreme court. The expression "supreme court" is wrong, and I think that the Government are halfway to acknowledging that. We cannot have a supreme court in this country because the court system is not the supreme body, as is the case in the United States. If a supreme court exists anywhere, it is in this Parliament. If the Law Lords are set into a separate body and are unable to take their seats in Parliament, the cross-fertilisation between them and senior Members of the legislature will be lost. I suspect that that is one of the ingredients that has made the independence of the judiciary from the Executive so successful in this country.
What mechanisms will be put in place to ensure that that independence can continue? The risk to the judiciary's independence comes not from the legislature but from the power of the Executive, who manipulate the media by making hostile pronouncements on judicial decisions that are intended to influence the judiciary thereafter. The great protection that the judiciary has always had in that respect comes from the office of Lord Chancellor, because he takes the judge's oath and he is a judge within Government. It is a unique institution that has served this country very well. The office of Lord Chancellor might need to be reformed: if he does not sit as a judge but still takes the judicial oath, the independence of the judiciary would be strengthened, whereas the Government's proposals raise a great fear that it might be weakened.
Cost is a small matter in the context of the totality of the Government's proposals. I accept the comments of Lord Bingham of Cornhill that the Law Lords are under-resourced. Apart from judicial salaries, they cost about £600,000 a year and recoup £400,000. In administrative terms, therefore, the cost to the taxpayer of this extraordinary court with a worldwide reputation is £200,000 per annum.
One thing we can guarantee—everything might be shoved off to Somerset house. I can tell Mr. Heath that Middlesex guildhall has already been ruled out. My understanding—the Minister might tell me more about it—is that Middlesex guildhall is a grade 1 listed building and its main court would have to be changed, because as currently constituted it is wholly unsuitable for the Appellate Committee's sittings. The hallmark of the Appellate Committee is that it has informality. The Minister might not have been to have a look at Middlesex guildhall, but I assure him that its main court has everything except informality; it is a very grand room. Therefore, there are cost implications. We are entitled to know whether we are going to get value for money, or whether we will spend £50 million on building a new court complex with many hundreds of thousands of pounds of running costs.
If the Government want to introduce changes that command widespread acceptance, they must start arguing from basic premises about the basic philosophical ideas underlying the proposals. Saying, "We have an idea and you can provide a few steers on the detail," is not enough. I am unconvinced of the need for the changes, although I am open to be convinced. However, one thing is clear: a system that has served us very well for a long time does not need to be changed overnight—there is no urgency. If the Government would like to start the process properly, we might end up with a satisfactory outcome.
Sir Nicholas, thank you for your earlier guidance on how this Chamber works. It showed the confusion that can arise when established practices are disturbed and was a microcosmic and useful example to us in our debate today.
All of us thank Mr. Carmichael for securing the debate. It was mentioned earlier, and all hon. Members can see, that the proposal for a supreme court was born of a botched reshuffle. It came out of the blue—none of us knew that it was coming. It is as if the Government were forced to make the proposal by accident, on the back of ill thought out proposals for the reform of the upper House. Although the Government's stated objective is to make the upper House more democratic and representative, perversely they want to appoint all its Members and, doubly paradoxically, they want to remove the Law Lords.
There has been no debate. There is no consensus. As a former Law Lord said in The Spectator:
"But I can see no reason at all why the law lords, who are not members of the executive, should not sit as members of the Upper House."
The Liberal Democrat view was expressed in the upper House by their spokesman Lord Goodhart, who said, as if with a flick of the hand, that the proposals would
"do no more than put an end to what is now an historic anomaly."—[Hansard, House of Lords, 8 September 2003; Vol. 652, c. 129.]
His analysis is wrong. The present arrangement is, perhaps, anomalous in some respects—although I would challenge that—but it is fundamentally wrong to say that the proposals would simply put an end to that anomaly and formalise the position. In fact, they would do much more.
Perhaps across this horseshoe Chamber there is a fundamental political difference in our approach to change. For a socialist, a clean sheet of paper and abstract thinking are permissible. A conservative, however, prefers evolution, rather than revolution, in any change that we oversee. We believe in tests of practicality, rather than mere conformity to abstract thinking, and although we are always happy to make changes, we prefer them to be made gradually. Teachers have commented on many a student's great proposals by saying, "Well, that might work in theory, but it does not work in practice." The House of Lords and the existing judicial system work in practice, but not in theory. We regard that as an adequate reason for retention.
The proposed changes are based on a flawed concept. The hon. Member for Orkney and Shetland and my hon. Friend Mr. Grieve touched on that. They made a distinction—which exists—between the independence of the judiciary and the separation of powers. However, there is confusion in this debate around the Government's defence of their reforms. Although they claim that the changes are about the judiciary's independence, they deploy arguments about the separation of powers. Let me quote a Law Lord, Lord Hobhouse of Woodborough, who encapsulates so much of our thinking in two paragraphs:
"It is important not to confuse the United Kingdom's constitutional principle of the independence of the judiciary with the United States of America's principle of the separation of powers."
One might mention Montesquieu at that point. Lord Hobhouse continues:
"The latter is a doctrine based on a mistaken analysis of the British constitution developed by French thinkers in the 18th century. It involves the complete and balanced separation of all three branches of Government—the Executive, the legislature and the judiciary—from each other. Thus in the United States, the President and other members of the Executive are debarred from being members of the legislature whereas in the United Kingdom the position is the reverse. It is the serious flaw of the Consultation Paper that insofar as it adopts any constitutional principle, it appears to choose the doctrine of the separation of powers not the independence of the judiciary."
As such, the entire project is, intellectually, profoundly flawed. Lord Hobhouse says:
"It is convenient, at this stage, to mention" a matter that has
"been used to justify the proposal and . . . shaped some of the questions asked."
"the level of public understanding of the existing structure. The general public are often ignorant of the structure of the court system and, in particular, by the terminology used. Some still believe that an appeal to the House of Lords is determined by the political peers. If this is the cause of the Department's concerns, the correct solution is clear and long overdue. There should be a better education, and dissemination of information, concerning the British constitution. This lack of knowledge and the solution lie in the hands of the Executive and are not a reason for introducing potentially damaging constitutional changes."
So says Lord Hobhouse, even though our young, vibrant and no doubt intellectually acute Minister jeers.
Another aspect of the argument is supposedly the untenable position of the Lord Chancellor. One argument subliminally deployed but never properly put is that his having multiple roles is somehow inconsistent with the convention on human rights. I contend that that is not true. It is the responsibility of the Minister to challenge my contention if he believes that I am wrong. The Lord Chancellor sits in a judicial capacity extremely rarely. It has never been suggested formally that that contravenes the convention on human rights. In any event, it would be part of the Conservative party's proposals that the Lord Chancellor, while retaining his existing position, should cease to sit in any judicial capacity.
Far worse than any supposed conflict now is the danger that may lie ahead if the Government's proposals go through. Ultimately, it is what they are proposing rather than anything that exists now that could lead to the politicisation of the judiciary. At the moment, it has a reputation of total independence. Paradoxically, that independence is well guarded by the Lord Chancellor in his peculiar hydra-headed role. If anyone doubts that, I ask— the Government may be slightly uncomfortable about this—that if we want an inquiry, to whom do we turn first but a judge? That is because of judges' well-established reputation of independence, which by the middle of January the Government may have cause to regret.
What could really politicise the judiciary are the notions that the Government embrace in their criteria for appointment. They say that judges must be representative—not a judicial notion, but a political one. I shall paraphrase an argument put in another place by Lord Mayhew. He said that he did not want his surgeon to be representative and did not care about his background; he wanted him to be good at cutting him up and sewing him back up again.So it is, in a slightly different professional capacity, with a judge. Judges are not there to be representative; they are there to apply and interpret the law. The Minister scoffs at that, but he has to put a clear argument as to why judges have to be representative; merely sneering at my argument will not suffice.
I alluded to the Liberal Democrats' view. Essentially, they argued in another place that the proposals are simply about removing an anomaly and giving the judiciary good facilities. However, let me quote from an interesting article in the Financial Times that cites his honour George Dobry:
"The only practical reasons for the immediate abolition of the appellate committee of the House of Lords are that its position as part of the House of Lords has 'inevitably limited the resources that can be made available to it'".
It is not clear what this means and there is no detailed discussion in the consultation paper of the resources that are thought to be needed. Nor is there any evaluation of the need compared with other priorities for the court service.
No case is made out for treating the reform of the House of Lords in its judicial capacity as a matter of particular priority."
As my hon. Friend the Member for Beaconsfield said, the existing system costs only about £200,000 a year, net. In suggesting evolution rather than revolution, we would say that if judges need a bit more money, support and better accommodation, let them have it. What they do not need is a whole new edifice and budget under a new structure, as the Government propose. As George Dobry QC points out, there is no assessment of other competing priorities. If there is another, better priority, it is that we should have a proper commercial court in London. If the Government want to spend money on improving the court system at this level, we should have a commercial court before we have a supreme court.
The legal community is astounded and perturbed by the Government's agenda. The sudden end to the post of Lord Chancellor—albeit delayed, it would seem—an end to Queen's Counsels, a questionable system of judicial appointments and the setting up of a supreme court have caused great turmoil in the legal community. I urge that community to have the confidence to make its voice clear in challenging what the Government are doing, as many of its members are already doing. We will certainly try to pitch the debate at a higher level than has the Prime Minister, who degraded it when he said in the Chamber that the aim was to get rid of the man in tights. The debate must be pitched much higher.
The Prime Minister is undertaking yet another piece of what I would describe as teenage radicalism, which will give the British legal system a new building, but will not deliver better justice. The Law Lords have served this country expertly for centuries, but the Government seem prepared to restructure them and consign their existing structure to the history books. The Prime Minister seems to think that anything old is bad. He does not understand that it has probably become old because it is good. His arguments in favour of judicial independence are vacuous when that independence already exists and has done for ages. The plan will not secure the independence of the judiciary; it will lead to its eventual politicisation. We all say, spare us from that.
No, because I have many substantive points on which to comment. There are some significant constitutional issues and it is important that we have an opportunity to debate them completely, certainly before legislation is considered by the House.
Our proposals on the supreme court have been sent out for consultation, and the core proposals were made in the consultation paper. It stated that the Appellate Committee should be taken out of the House of Lords and set up as a separate free-standing supreme court, taking with it all its current functions; the devolution jurisdiction of the Judicial Committee of the Privy Council should be transferred to the new supreme court; and the sitting Law Lords should become the first members of the new supreme court.
The consultation paper sought views on those issues and related matters, such as whether holders of high judicial office should cease to sit and vote in the House of Lords while actively sitting as judges; whether we should take the opportunity to separate the judiciary from the legislature by removing all the judiciary from the House of Lords; the number of permanent members that the court should have; how to secure proper representation from all three jurisdictions; how to develop a transparent appointments process; what the qualifications for membership of the court should be; and whether the court should sit in panels or with all the members together on every case. I intend to address many of those points individually.
The consultation period closed on
This is all fascinating, but the Minister's peroration does not explain—I am prepared to be convinced—why the present arrangements would be unworkable in future. Indeed, the Government's own consultation document does not do that, and the subject has never been debated or put to the electorate in a manifesto. Will he explain, if he can, the philosophical problem that underpins the Government's main decision, because that must be the starting point of the debate?
I am sorry that the hon. Gentleman, unlike many other hon. Members, cannot see the glaringly obvious. If we are to ensure that our judicial system meets the requirement of independence that would be expected by any mature democracy, the blurring of judicial, Executive and legislative responsibilities must be brought to an end. That is the simple principle.
Saying that we need reform does not imply criticism of the Law Lords or dissatisfaction with the quality of their work. They are respected the world over for their expertise and have always acted with the utmost integrity and honesty. There has never been any question that they do not act impartially or are not objective.
Nevertheless, the Law Lords have had to find a means of dealing with the constitutional difficulties of their position, which is the point that I am trying to communicate clearly to hon. Members. The Law Lords' solution has been to impose a self-denying ordinance that they will neither speak nor vote in the House of Lords on matters that might come before them in their judicial capacity. However, is not the fact that they have to limit the extent to which they can participate in the business of legislating the clearest signal that something is wrong with the arrangements? If they feel it necessary to impose a self-denying ordinance to clarify the fact that they do not have any dealings in the legislative business of the House, it follows that the present arrangements, which allow for potential conflicts of interest, are flawed.
Order. I deplore the intervention of Mr. Hawkins, who has not been here for anything near the whole debate. Furthermore, he is another Opposition Front-Bench spokesman. Without setting any precedent, I established that Mr. Grieve should speak, but I hope that the Minister will give way only to those who have been present during the debate.
The time has come to reform our constitution and settle the anomalies that all people recognise. The Opposition look set to oppose a supreme court, as is their right, but it is vital that we make the judicial system more comprehensible and create more transparency in our institutional arrangements.
If the hon. Gentleman will listen for a moment, I shall explain my point precisely. The House of Lords Appellate Committee is, in effect, a separate court and should be openly acknowledged as such. A UK supreme court will be a far more visible and distinct entity than is the Appellate Committee. It will reflect and enhance the judiciary's independence from the legislature and the Executive. That really is the nub of the matter.
May I take up the Minister's comment about the need for self-denying ordinances for the judiciary in the House of Lords? He is a Minister of the Crown. He is also a Member of Parliament. He must exercise a self-denying ordinance daily when he says in the House, not what he thinks or believes, but what he as a Minister of the Crown must say as part of being a member of the Government. Surely, when he considers that and thinks it through, he will immediately realise that that is no different from the position of members of the judiciary in their self-denying ordinances. It is a convention. There is nothing wrong with conventions unless it can be shown that they do not work. In this case, they do.
It is quite clear that Conservative Members have taken it into their heads that what is proposed is some isolated separation of the powers of the Executive, the legislature and the judiciary. That is not the proposal. We have a constitutional anomaly whereby there is blurring and confusion between the judicial, the legislative and the Executive, not least in the form of the office of Lord Chancellor. It is important not only to secure the integrity of each branch of our constitution, but to have a clear and transparent system for members of the public, who need to see greater independence for our judiciary from the Executive and the legislature. That is the proposal. We do not have a proposal for an absolute, clear separation of each branch, because of course they will all always be related, but we must always have an eye to improving the independence of the judiciary. That is precisely the rationale behind our proposal to create our new supreme court.
If the hon. Gentleman will allow me, in the five minutes that I have left, I should like to answer some of the points that have been made.
The hon. Member for Somerton and Frome asked about the impact of the reform on the House of Lords. I do not believe that the other place will suffer greatly should a new supreme court be established separately. There is a great deal of other legal expertise in the House of Lords, enough to ensure that, although the Law Lords will not be present, there are many others who bring a legal perspective to debates and Committee work.
The hon. Member for Orkney and Shetland sought to scrutinise the implication of the proposals for devolution and the devolved powers. Although we are open to consultation, we have expressed our preference that the devolution issues currently heard by the Judicial Committee of the Privy Council should be moved to the supreme court. I believe that that would be consistent with the strong arguments that I have already advanced on the need to establish a visible separation between the highest court of the land and the second Chamber of the United Kingdom legislature. It cannot be right that cases that might turn on a dispute between the UK Parliament and the UK Government on the one hand and devolved institutions on the other should be argued before a Committee of the UK Parliament. That argument would not apply to a supreme court, so its creation would give the perfect opportunity to rationalise the situation and remove potential conflicts of interest.
I know that hon. Members, including the hon. Members for Orkney and Shetland and for Somerton and Frome, have raised issues about location. No conclusions have yet been reached on where a new supreme court should be housed. All options are open for consideration, although there is a strong likelihood that it will need to be located in the UK capital city to reflect its UK-wide jurisdiction. However, subject to the results of consultation, I am keen to allow the court to sit around the United Kingdom when hearing devolution matters, if need be. That could enhance the public perception of the supreme court as a UK court. It seems only right that where possible and subject to logistics, cases relating to Scottish, Welsh or Northern Irish devolution could be heard in Scotland, Wales or Northern Ireland respectively.
As I have already stated, it is vital that the supreme court is a UK body and viewed as such by the public. The court, like the Appellate Committee, will have judges from each of the three jurisdictions.
To give the devolved institutions adequate input to our overall proposals, they have all been consulted in the preparation of the consultation paper. My officials have been liaising with officials from the devolved Administrations and we will ensure that the final package takes proper account of the devolution arrangements. We are fully aware of the historic importance of an independent legal system in Scotland and of the requirements of the devolution legislation in relation to Scotland, Northern Ireland and Wales.
The Scottish Executive have announced their broad support for a supreme court. On the point about the Sewel motion, I can assure the hon. Member for Orkney and Shetland that we are working closely with Scottish Ministers to identify any legislation in Scotland that needs amending and to bring before the Scottish Parliament any necessary Sewel motion.
I remain firm in my view that the establishment of a supreme court is a vital step forward for our constitution. It will mean more institutional transparency and it will be more clearly independent and more comprehensible to the general public than the Appellate Committee is. We are working hard to analyse the consultation responses to ensure that we make the right and proper decisions on the detailed policy issues. We are talking about historic changes, and I am proud to be involved in making such a landmark change to the UK legal system.