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Mr. Heath: It will not have escaped the notice of the right hon. and learned Gentleman that I believe that all Ministers should be appointed from this House. That is not my party's position, but it is my position. An upper House should be free from any patronage in the form of ministerial preferment, and ministerial appointments should be drawn from the elected House. Accountability is important, but that is not the situation at present. It could be argued that ministerial appointments solely from this House would limit the number of potential applicants for the role. This will not happen in my lifetime, but there could be a Parliament in which no legally qualified Members were returned by the electorate. That would cause the Government some difficulty—although it has not happened yet, and I doubt whether it will happen in the immediate future, judging by recent experience.
I have long advocated Middlesex Guildhall as the right place for the supreme court. I do not understand why anyone should consider it so self-evidently the wrong place. I understand that there are issues concerning the internal decorations of the place, difficulties with its listed building status, and the fact that the potential members of the supreme court will want a level of informality that is not entirely consistent with the rather austere and formal trappings of a court. Nevertheless, there is considerable symbolic importance to the fact that the court would be situated in Parliament square, in the centre of our democratic system, so that Parliament square would be flanked by at least four of the great estates of the realm—the House of Commons on one side, the Church in the form of Westminster abbey on another, the supreme court on another and, God help us, the Treasury on another.
Mr. Garnier: I intervene not because, like the hon. and learned Member for Dudley, North (Ross Cranston), I from time to time sit as a Crown Court recorder in the Guildhall, but to ask the hon. Gentleman whether his views about the suitability of the Guildhall have been informed by a visit to it. Has he been round it inside, as opposed to simply looking at it from the outside?
Mr. Heath: I do not deny that there are difficulties, but they can be overcome. That is the position that the Government have now adopted. The debate has been wonderfully amplified by having a recorder on each side of the Chamber, acting in stereo. I hope the hon. and learned Member for Harborough (Mr. Garnier) will have a chance to contribute to the debate formally.
Will the Minister confirm that under the Bill as it is formulated there will be two supreme courts—the supreme court of the United Kingdom and the Supreme Court of England and Wales? Will he confirm that he will remove one of those nomenclatures before the Bill reaches its final stages, as there is the potential for confusion with two "supremes" in one statute.
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It is extremely important that we get the funding right. I will not tease the hon. Member for Beaconsfield about how he would achieve cuts in the Department. That was dealt with in an earlier intervention. We cannot allow the important process of justice to be curtailed by a lack of funding. The funding must be predictable, so that those who administer the court can do so with certainty.
Mr. Grieve: Will the hon. Gentleman give way?
Mr. Heath: I was trying to take less than an hour over my contribution, but I will give way.
Mr. Grieve: Clearly, savings will not be achieved by spending an extra £8.8 million a year funding a supreme court which, as I explained, is not necessary.
Mr. Heath: The hon. Gentleman has his view. He also has his calculation of the marginal costs after the establishment of the supreme court, as opposed to its predecessor bodies. I am not convinced that that is an accurate representation. The Conservatives may be putting together figures that are not realisable, in a desperate bid to find potential savings in order to present themselves as a tax-cutting party. There is a danger that the debate will become overly partisan, which is not my intention.
Mr. Heath: I shall give way for the very last time to the hon. Member for Stafford (Mr. Kidney).
Mr. Kidney: I am grateful to the hon. Gentleman for making me the last person to whom he gives way. This is the intervention that the hon. Member for Beaconsfield (Mr. Grieve) would not take from me. Do not the Conservative costings deliberately exclude the staff and judicial salaries costs from the present system, but add them on to the costs of the new supreme court? They should, of course, be in both calculations.
Mr. Heath: That is precisely the point that I was making about the marginal cost increase. The hon. Gentleman is right. We can all do fuzzy maths, but it achieves nothing and people see through the credibility or otherwise of such proposals.
On full cost recovery, the hon. and learned Member for Dudley, North (Ross Cranston) was wrong. We have debated the matter. I tabled amendments to the Courts Bill, now the Courts Act 2003, to deal with full cost recovery, which is a serious matter. The idea that litigants in civil actions must pay, for instance, an apportionment for the upkeep of the royal courts of justice is an absurdity that we need to address. I, for one, am not prepared to see the costs of court action being put beyond the means of most ordinary people seeking justice. There is a real fear that that will happen, and the same will apply to cases that are brought to the supreme court under these proposals.
There is much to welcome in the proposals. There is certainly much to welcome in the concordat that was arrived at with the senior judiciary, and it would be foolish of us to seek to unpick that concordat in
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Committee or during the Bill's later stages unless we have very good reason to do so. I shall not resile from my position that the Department for Constitutional Affairs should take a greater role—a matter that I shall debate further—but we shall support the Bill, although not the time allocated to debate it, and we shall resist those who oppose it, either through blind reaction or sectional interest, which are unworthy of the considerable constitutional advance that the Bill represents.
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. Let me offer a word of comfort to right hon. and hon. Members. Provided that everyone does not take a minimum of 29 minutes, there will be ample time for contributions to be made to the debate. I call Mr. David Kidney.
6.31 pm
Mr. David Kidney (Stafford) (Lab): Thank you, Mr. Deputy Speaker, especially for that advice.
If anyone looks at the Register of Members' Interests, they will see that I have only one entry, which is as a non-practising solicitor, so I have no practical interest in the debate. However, as a former solicitor, I strongly support the Law Society's long-running campaign for more judges to be appointed from the country's body of solicitors. If I mention that from time to time during my contribution, that is the reason. It is certainly not from any personal expectation of reward if more solicitors become judges.
I welcome the Bill's commitment to the rule of law, which my hon. and learned Friend the Member for Dudley, North (Ross Cranston) dealt with at some length in his contribution, and the statutory pronouncement of judicial independence, which is an improvement on the present status of the law and gives a statutory underpinning to the safeguards that we enjoy—the safeguard against arbitrary government, the safeguarding of our human rights.
On the separation of powers, those hon. Members who have mentioned Charles-Louis de Secondat, Baron de Montesquieu (1689–1755) have been unfair to the gentleman, who was an influential philosopher and a judge—as it happens—in France and whose influence was sufficiently long-lasting for his views on the separation of powers to be accepted quite fully in the writing of the original American constitution. It is true that he had an idealistic view of the benefits of the so-called separation of powers in this country at the time that he viewed it, which I think was in 1748, but he probably was not that far wrong at that time in the development of our unwritten constitution. As a snapshot at that time, the Executive were very much represented by the Crown and the Ministers who advised the Crown, the legislature was a nascent and growing House of Commons and, effectively, an established House of Lords, and the judges were independent of both, which was what impressed him in his thinking and writing. Time has moved on and he did not foresee the growth of an Executive with the legislature in this country. What is so different here today is the way in which the Executive dominate the
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legislature. Happily, the Executive do not dominate the judiciary, and the Bill is here to ensure that no future development in our unwritten constitution changes that. That is why the Bill is welcome.
Just to finish with the Baron, he did say:
and on the loss of liberty he said:
"there is no liberty if the power of judging be not separated from the legislative and executive powers."
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