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Mr. Richard Shepherd (Aldridge-Brownhills) (Con): The Minister referred to the "continued independence of the judiciary" being maintained. It is independent now. What is the point of this Bill, if we already have confidence in the existing arrangement?

Mr. Leslie: We need to strengthen that independence further, and we are doing that by taking away the judicial role of the legislature and taking away the legislating role of the judiciary. I hope that that explains the measures to the hon. Gentleman in a nutshell.

Mr. Grieve: Will the Minister now take the opportunity to accept that the original proposals did not envisage a concordat, and that the concordat was required because of the alarm of the judiciary, which was reflected in the comments of the Lord Chief Justice that, without it, this measure would constitute a serious transfer of power to the Executive that would affect the independence of the judiciary? That is why the concordat was necessary. This colours the entire nature of this debate and, particularly, the Government's bad faith in respect of it.

Mr. Leslie: I am delighted that the hon. Gentleman thinks that the concordat is necessary. We do, too, and it is now on the table and part of the package that we are offering. I restate the quote from the Lord Chief Justice that he

"would consider it an unsatisfactory situation if the present position were left in place."—[Official Report, House of Lords, 8 March 2004, Vol. 658, c. 1004.]

We have taken great care to do nothing to diminish the independence of the judiciary. On the contrary, clause 4 of the Bill provides a new statutory guarantee of continued judicial independence. It creates a duty on all Ministers of the Crown and all others with responsibility for the administration of justice to uphold the continued independence of the judiciary.
 
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Vera Baird: Coming back to what the hon. Member for Beaconsfield (Mr. Grieve) said a moment ago, I should like to point out that Lord Woolf said on Third Reading that

"even in its original form, the judiciary was supportive of the Bill . . . as a package of reforms that would significantly improve the protection provided for their independence."—[Official Report, House of Lords, 20 December 2004; Vol. 667, c. 1555–56.]

Mr. Leslie: Yet again, my hon. and learned Friend helps to give breadth and depth to the debate. That was most useful.

Mr. Garnier : I would not like the Minister to ruin a great legal and political career by giving too much praise to the hon. and learned Lady. Will he tell us which parts of the concordat are to form parts of the legislation, and which parts we are simply to rely on by placing our trust in the Government?

Mr. Leslie: Some parts are in the Bill and some are not. That is by agreement, and we shall no doubt go through those matters at great length in Committee, much of which, hon. Members will be delighted to know, will be held on the Floor of the House. The hon. Gentleman will have plenty of opportunities to go into that issue in detail later.

The Bill also places an additional duty on the Lord Chancellor to have regard to defending the continued independence of the judiciary. That duty will also apply, for example, in his handling of the recommendations from the new judicial appointments commission and in funding and running the administration of the courts. Clause 5 amends the Justice (Northern Ireland) Act 2002 to ensure that the provisions made by that Act in relation to the guarantee of judicial independence are consistent with the provision made by clause 4.

Our judiciary will have strengthened independence, but will still have a dialogue with the Government and Parliament. In recognition of the important contribution of the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland, clause 6 provides that they may table written representations to Parliament on matters relating to the judiciary or the justice system. In addition, the Bill recognises the important role of the Lord Chief Justice in respect of the judiciary. It sets out his responsibilities, including representing the views of the judiciary to the Government, and the training, guidance, welfare and deployment of the judiciary of England and Wales.

The role of the Lord Chancellor in delivering the concordat will be fundamental. It has been agreed between the Lord Chief Justice and the Lord Chancellor that functions of the Lord Chancellor that relate to the judiciary and the court system should not, in future, be transferable away from that Minister without primary legislation. That is set out in clause 17. It is another protection that the Chairman of the Committee has mentioned.

I turn now to the question of who will act as the presiding officer of the other place. The Government continue to believe that, for a busy Minister of the Crown, sitting also as a Speaker or presiding officer over a House of Parliament is a heavy burden indeed. We
 
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therefore take the view that the House of Lords should have the benefit of a presiding officer who can devote his or her time solely to its service.

Ultimately, of course, decisions on who should be the presiding officer of the other place are a matter for their lordships themselves as part of the Standing Orders of the House of Lords, which currently stipulate that the duties form part of the role of the Lord Chancellor. But it is undoubtedly odd that any House of Parliament should automatically accept the appointee of the Prime Minister as its Speaker or presiding officer, a state of affairs not conducive to the supremacy of Parliament in our constitution. The Bill therefore helps to facilitate the process now in train in the other place about who might take on that aspect of the Lord Chancellor's current functions. The House of Lords has not yet formed its view, nor decided the title of that presiding officer.

Part 2 of the Bill therefore allows the statutory functions of the Lord Chancellor, in his capacity as Speaker of the other place, to be exercised by anyone who fills that role in future.

Mr. Paul Tyler (North Cornwall) (LD): I hope that Members on both sides of the House will accept what the Minister says. I would put the case even more strongly, because it is surely wrong that a member of the Executive should preside in either House of Parliament. It is important to try to keep apart the roles of the Executive and the legislature, and that proposition should have the support of every right hon. and hon. Member.

Mr. Leslie: I tend to agree with the hon. Gentleman on that point, although he will understand that it is for the other place to decide on the arrangements for its presiding officer.

Sir Patrick Cormack : Should not we put it on record that the so-called presiding officer in the other place fulfils a function wholly different from that performed by Mr. Speaker in this place? The other place is self-regulating and wishes to remain so. Whoever sits on the Woolsack does not exercise the power and responsibility of Mr. Speaker, and the title of that person should not be confused with that of Mr. Speaker.

Mr. Leslie: I understand that there are differences between the two presiding officer functions, but that is not to say that there are not public expectations about the role of the individual who sits on the Woolsack or that he or she will not undertake presiding officer duties in the course of business in the House of Lords. It is not for us to dictate to the House of Lords, at this stage, the arrangements that it should make for its presiding officer.

Mr. Garnier: If the House of Lords decides that it wishes its presiding officer—whatever he will be called—to be the present Lord Chancellor, but the Prime Minister decides that the Lord Chancellor's office should be held by a Member of the House of Commons, how will the Government square that circle? [Interruption.]

Mr. Leslie: As voices off remind us, it would be very difficult to do so. However, it would be a matter for the other place to find an appropriate person to be its presiding officer.
 
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Part 3, another fundamental part of the Bill, would create a new supreme court for the United Kingdom, separate from Parliament but with the current appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. Two principles underpin the Government's proposals for a United Kingdom supreme court: first, the functional separation of the judiciary from the legislature, and secondly, the need for greater constitutional clarity and visible independence for the United Kingdom's highest court.

The ultimate court of appeal is doing something different from the legislature; it should be doing it separately, and should be clearly seen to be doing it separately. Functional separation of the judiciary at all levels from the legislature and the Executive is a cardinal feature of any modern, liberal and democratic state governed by the rule of law.

Furthermore, the Law Lords are judges, not legislators. They are specifically appointed to act as the UK's supreme court

"for the purpose of aiding the House of Lords in the hearing and determination of appeals",

in the words of the Appellate Jurisdiction Act 1876. They are there as judges and it is no longer tenable to see those judges act in the legislative role.

I emphasise that the proposals imply no criticism of the performance of the Law Lords. I know that they are admired around the world and have always acted with the utmost integrity, independence and objectivity. However, that is not reason enough to maintain the current position. The very fact that in recent years the Law Lords have had to exercise a self-denying ordinance neither to speak nor vote in the House of Lords on matters that might come before them in a judicial capacity indicates that there is something fundamentally flawed in the current arrangements, however well they may seem to work.

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