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Mr. Lammy: The Government have specifically talked about the pool from which candidates are drawn, and about diversity in the context of race and gender. We have made it clear that that is the case for opening up the appointments system.

Mr. Heathcoat-Amory: Yes, and I have no difficulty with that. Those additional criteria can be taken into account by the present Lord Chancellor in making those appointments. I have no quarrel with the proposal to amend the system of judicial appointment. What worries me is that the final decision and the accountability to Parliament will rest with a comparatively junior Minister if the office of Lord Chancellor falls into the hands of a career politician whose final loyalty is not to the office of Lord Chancellor, as it has been up to now.

My other observation about appointments goes a little wider than the Bill. I am worried by the fact that judges' political backgrounds will become more relevant to the judicial appointments system. This is perhaps inevitable, with the spread of human rights legislation, but it will be extremely dangerous if the background and opinions of judges are to be taken more explicitly into account. That is certainly the case in the United States, simply because judges there, particularly those in the Supreme Court, make political decisions. The whole issue of abortion, for instance, is not decided by Congress, by the political system or by the interplay of political forces at election time. It is not fought out in the political arena. The issue of abortion is a judicial matter. That is why frustrations build up, and why people shoot doctors and blow up abortion clinics in the United States. Those actions are borne out of a frustration that nothing can be done through the political system—by lobbying Congressmen or asking their opinions, for instance—except by going to the extreme lengths of passing a constitutional amendment. None of that can affect the abortion issue; it has to be decided judicially. That builds up frustration and takes decision making further away from the ordinary citizen, and I am worried that we might be moving gradually down that route because of the impact of human rights legislation on our judicial system.
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My last point concerns the supreme court. It has been said that a move out of the House of Lords to a separate building will somehow enhance the court's authority and standing. I think that the opposite will happen. It is almost certain that the new building will turn into another procurement fiasco, which will undermine the public's belief that these changes are anything more than an attempt to endow the governing class—the judiciary, the legislature or whoever; they are all rolled together in the eyes of the public—with another grand building and another opportunity to spend more public money.

I was disturbed by the non-answers that we received to our questions about the costs involved. The explanatory notes to the Bill seem to suggest that the Treasury's attitude is that the costs of administering the civil law should be recouped in court fees. Indeed, 80 per cent. of the running costs of the supreme court will have to be recovered in that way. It follows, therefore, that the obviously greater cost of moving to a different building—the Minister mentioned a capital cost of £30 million, with another £15 million for the displaced court that currently occupies the proposed building—will have to be recovered. Under resource accounting, the capital cost of such a building appears as a depreciation charge and is therefore included in the running costs. In addition to the cost of running the new building, the capital cost of it will also have to be recovered, not as a contribution from the taxpayer or from the Exchequer, but by those who are seeking access to the courts system.

A supreme court is a rarified forum for most people to litigate in, but it follows from what the Government said that the additional costs—as the Government already admit, even before the predicted escalation—will be a cost on the courts system and, indirectly, will fall on those who seek access to our system of justice. That worries me and during discussion of the Bill we need further and better particulars about the accuracy of the estimates.

My final point concerns the name "supreme court". If the Government get their way over the European constitution, the supreme court will be not in this country, but in Luxembourg. That is the juggernaut coming down the road towards us in the form of the European constitution. I represented the interests of this House on the Convention on the Future of Europe and several members proposed that the European Court of Justice should be renamed the European supreme court. That idea was turned down for reasons of political sensitivity in member states, but the powers of the European Court of Justice will expand enormously under the European constitution and it would be appropriate to call it a supreme court. It will have the power to interpret the new constitution and in cases of dispute it will have judicial authority. There will be no right of appeal from the European Court of Justice on matters of the European constitution. Of course, the constitution takes in new areas, including criminal justice. Under the primacy clause—article I-5a—the whole constitution and all its institutions have a claimed explicit primacy over any national laws.

The European constitution incorporates formally the whole European charter of fundamental rights. The British Government's objections were overruled, so when the Union legislates on a matter such as asylum, as it has done, the EU charter of fundamental rights will,
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thereby, become fully binding on this country. No British court and no part of the British Parliament will be able to overrule the decisions of the European Court in that interpretation.

We may debate what we fondly still imagine to be a supreme court in this country, but its title will be incorrect. It will not have supremacy over the new, rebranded European Court of Justice under the proposed constitution. I suggest that if the constitution is ratified—I hope that it will not be—our court should be called not a supreme court, but, more accurately, the British national court.

This is a bad Bill born of expediency. The principles that are supposed to underlie it are confused and mistaken. It has learned nothing from the past, but seeks to overturn the inherited wisdom that has built up in what we call the British constitution. It ignores the real constitutional revolution that is heading our way in the form of the first written British constitution since 1653: the European constitution. For all those reasons, I recommend that the House rejects the Bill.

9.19 pm

Mr. Clive Soley (Ealing, Acton and Shepherd's Bush) (Lab): If the right hon. Member for Wells (Mr. Heathcoat-Amory) was so concerned about the European constitution he should have voted against Lady Thatcher's introduction of the Single European Act, which was one of the biggest constitutional changes made in this country.

First, I have an apology. Like my hon. Friend the Member for Stafford (Mr. Kidney), I missed part of the debate to attend one of those quiet and relaxing meetings of the parliamentary Labour party where nothing ever happens. However, on this occasion the Lord Chancellor spoke extremely well on the very issue that we are discussing.

As a member of the Select Committee on Constitutional Affairs, and as someone who has been interested in the subject for many years, I have a few comments to make, but I shall be brief. As I have said before in the House, the British constitution has evolved over many hundreds of years, but at times—as at present—the Conservatives seem to think that it is set in aspic and that we should hold on to it for ever. We would not have some of our great traditions to defend if we had not changed things in the past. Change is long overdue. Before the 1997 election, I said that even if the Labour Government did nothing but make the constitutional changes we were talking about at that stage, Britain would never be the same again. Such change is a good thing. It is long overdue, and we should have made it before.

Opposition Members say that judges must be appointed on merit, and they are right, but they are only just beginning to recognise that something was seriously skewed in the previous judicial system, inasmuch as that there were hardly any—if any—women or ethnic minorities at senior level. The Conservatives could have done something about that when they were in government, but they never did.

I have listened to comments made throughout the debate about the need to debate all the Bill's stages on the Floor of the House. The Opposition may win that concession. Who knows? We should recognise,
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however, that, as my hon. Friend the Member for Stafford said, few Members from any party have attended the debate today. The reason for that, I suspect, is that for too long we have seen such issues as issues for the Lords. The Lords have debated the Bill, and I can assure Members on both sides of the House that the Labour party has held plenty of discussions about it, but there has been relatively little debate in the Chamber. I am concerned that if we were to take all stages of the Bill on the Floor of the House we might have difficulty in increasing the number of Members who want to take part. There is something to be said for taking the important parts of the Bill on the Floor of the House while dealing with less contentious parts elsewhere. That would achieve a better debate.

As a member of the Select Committee, I visited Australia and New Zealand, which have many similarities to Britain, to look at their constitutional courts. One of the most important lessons we learned was that although, as we all agree, it is vital to make a distinction and ensure the independence of the judiciary from the political system, it is a mistake to have too much of a gap between the two, in the sense that we could end up with a closed-shop legal system in which judges appoint judges and the whole thing feeds on itself—something greatly feared in Australia and New Zealand. I regard the legal profession as one of the strongest closed shops of all time, yet it was never dealt with by either Lord Tebbit or Margaret Thatcher.

Opposition Members must take on board the complicated arguments about the need to bring the judicial system closer to the people. People in my constituency and elsewhere feel that things are moving on crime and law and order, and that policing is getting better. However, the trouble is the view that, as someone who phoned me today about offences said, "But of course the courts will ignore that, won't they?" One reason for that view is that the legal system, especially as set up in the House of Lords, is not close enough to the people—as we have argued in the Labour party for many years.

The Opposition say that the Lord Chancellor—someone who spends about £3 billion a year, running a Department—must be a lawyer and sit in the Lords. Why? There is a very strong case for the Lord Chancellor to be answerable in this House and to be heard on the media, defending the way in which the system works and arguing about how it needs to change to improve the lot of the people of this country, when we are dealing with judicial matters.

If we consider what happens in other countries that have systems similar to ours—the Constitutional Affairs Committee rightly chose to visit Australia and New Zealand—there is strong evidence for better political oversight of the judicial system, and the independence of the judiciary from the political system can be maintained. I agree about the need for the independent appointments body and all that goes with it, but there should be more effective political oversight, with a requirement that the people in the key positions—obviously, the Lord Chancellor is one of them—must be answerable to the people.
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I might have got some of the details wrong about the father of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), but I have a vivid memory of his father ringing the bell and making a great Conservative speech, while aiming to become Prime Minister and then popping up as Lord Chancellor. As a relatively new and interested person in politics, I was told that those two things must always be kept separate—but that was always nonsense, and a bit of a window-dressing exercise.

In fact, Lord Chancellors are politicians, and most people outside the House have spotted it—they know that Lord Chancellors are members of political parties—and it is time that we recognised that, but let us not worry too much about whether they sit in the Lords or the Commons. Certainly, let us not worry too much about whether they are lawyers. I agree that they must be able to speak up effectively for the independence of the law, but they do not have to sit in the Lords.

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