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Mr. Speaker: The hon. Gentleman asks me to do something in which the usual channels should be involved. The Whips are obliged to listen to Back Benchers, especially senior ones. I know that the Government have a majority, but we are in danger of pre-empting the decision on the programme motion, which is not for me to do.
 
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4.31 pm

Mr. Dominic Grieve (Beaconsfield) (Con): I beg to move,

That this House declines to give the Constitutional Reform Bill a second reading because it creates a costly and unnecessary Supreme Court exercising the same functions as the current Law Lords; is based on the false premise that the separation of powers between the judiciary and legislature requires the physical removal of the Law Lords from Parliament; fails to demonstrate how the proposed Supreme Court would exercise its functions with any greater degree of impartiality, independence and integrity than the Appellate Committee of the House of Lords; will deny Parliament the experience and expertise that the Law Lords bring to debates and legislation; and notwithstanding the benefits of a Judicial Appointments Commission, offers no convincing justification for replacing a system that works well.

I move the reasoned amendment with considerable regret, because I am by no means averse to the idea of evolutionary constitutional reform, and certainly not in respect of the judiciary and its appointments system, or of the operation of the House of Lords and the role of the Lord Chancellor. Far from it. As the hon. Member for Nottingham, North (Mr. Allen) said, it has always been a subject of legitimate public debate. Constitutions will survive the test of time only if they adapt. I have no difficulty with those arguments, but we cannot get away from the fact that the manner in which constitutional reform of a major kind was introduced was disastrous—disastrous for the reputation of the Government, disastrous in terms of undermining the independence of the judiciary, which it involved at its outset and disastrous in the whole manner of its announcement.

In early 2003, we were assured by the previous Lord Chancellor that the Government on whose behalf he was speaking had no intention of changing the current systems in respect of the Lord Chancellor and the Supreme Court. In summer 2003, an announcement was made on the back of a Cabinet reshuffle—an announcement of which, it has become apparent, the Lord Chief Justice was informed only a few minutes before it was made. It was obvious that the Cabinet Secretary, who is supposed to steer Ministers, in particular the Prime Minister, away from serious pitfalls, had not been consulted. The announcement envisaged the immediate axing of the office of Lord Chancellor. It was a back-of-the-envelope job and within 24 hours we had the bizarre scene of the person who had announced that, whatever he was, he was not the Lord Chancellor, having to go the royal courts of justice to take the Oath of Allegiance to fulfil precisely that role. Not only was the spectacle unedifying as a piece of history, but it colours my approach to the Government's handling of the matter and the degree of trust that I place in the Government's delivery of their promises on it.

Mr. Hogg: Will my hon. Friend also point out that the affair showed extraordinary ignorance on the part of those advising the Prime Minister, because there were hundreds of references in many statutes to the role of the Lord Chancellor, which had to be dealt with before the office could be abolished?

Mr. Grieve: I agree entirely. There were, I believe, more than 500 such statutory references that could not be expunged by the executive fiat of the Prime Minister, but whether the right hon. Gentleman was badly
 
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advised, I do not know. I have a funny feeling that he was not advised at all. I think that he concocted the change in cahoots with the present Lord Chancellor on the back of an envelope—or certainly over a glass of good claret. I cannot imagine what else what else was going on.

Mr. Garnier: I am grateful for my hon. Friend's opening remarks. Does he accept that the logic of his amendment and what he has just said is that the next Conservative Government would repeal the Bill if it is on the statute book when we return to office?

Mr. Grieve: The position is clear. We are committed to the preservation of the office of Lord Chancellor in a form in which he is both a lawyer and a Member of the Lords. That is fundamental, and I believe and trust that we would take action to restore the office. As for the supreme court, we must see what the position is when a Conservative Government come to office. [Interruption.] I must tell the Minister that our position, too, is straightforward. If the supreme court has not been set up, I assure my hon. and learned Friend that we do not intend to set it up. It is unnecessary, for reasons that I shall explain.

Mr. Gummer: Will my hon. Friend return to his point about the proposal being made on the back of an envelope? Is it not likely that it was introduced in that peculiar way, given that the creation of both the Office of the Deputy Prime Minister and the Department for Environment, Food and Rural Affairs was worked out on the back of an envelope to satisfy individuals, rather than for the better governance of the nation?

Mr. Grieve: I agree. A number of people were satisfied with the reform of the office of Lord Chancellor. The present Lord Chancellor seemed to be pleased with his promotion. Notoriously, the previous Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), was filmed at the entrance to the Home Office embracing the present Lord Chancellor, who was about to carry out his new duties. The right hon. Member for Sheffield, Brightside was overheard to say sotto voce, "Now at last we will get the judges we want." Another reason why I find it hard to trust the Government on this issue is that, in the initial stages of reform in the period immediately after the announcement of the back-of-the-envelope proposals and the ensuing fiasco and back-tracking, the judiciary, who certainly did not wish to be dragged into the argument—none the less, they were—were under the impression that the proposals as they stood were the most serious threat to judicial independence in their lifetime. That was apparent from their response.

I accept that, since then, the Government have taken steps to satisfy many of the judiciary's anxieties, but it is extraordinary that a Government committed to human rights and the rule of law should, in the summer of 2003, have introduced a series of proposals that threatened to undermine both. However, I have ceased to be surprised at the way in which they operate, because although they are loud in their rhetoric about trying to improve and
 
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modernise, the reality is a constant accretion of centralising control to Ministers—that has been their absolute and consistent hallmark.

Mr. Soley: Before we leave the question of what a future Conservative Government, if there is one, would do, will the hon. Gentleman explain something? I am not a lawyer but, as I understand it, if we do not have a supreme court and a clearer separation of powers, it is only a matter of time before someone goes to the European Court of Human Rights and argues that case. Is it the intention of a future Conservative Government to take us out of human rights legislation?

Mr. Grieve: The hon. Gentleman has made a perfectly reasonable point, but the problem that he identified is a fiction. Many of the Law Lords who considered that problem decided that it was most unlikely to arise and I believe that, if such a challenge was mounted in Strasbourg, the margin of appreciation allowed for a country's individual judicial system would enable our arrangements to stand the test without difficulty. The only issue that might have presented problems was the Lord Chancellor sitting as a judge, which is why, as the Minister knows, we have always been consistent in the view that that was a practice that could be ended as part of the evolutionary change. I disagree with the analysis of the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) of what would have happened, or what would happen—after all, we have not brought these changes about—if we left the Law Lords as they are at present.

The Minister said that it is wrong that judges should have to exercise forbearance in what they say, but the reality is that judges have to do so at almost every moment, including in private conversations and at dinner parties. I do not think that that made any difference and they succeeded in managing membership of the House of Lords and active participation in it without difficulty. I shall return to that point.

Vera Baird: The hon. Gentleman will appreciate that there is a real academic conflict in respect of what he has said and that there might be something in the assertion of my hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley). There is a respected school of thought that says that having judges in the legislature at all is capable of breaking the convention.

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