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Ross Cranston (Dudley, North) (Lab): The hon. Member for Beaconsfield (Mr. Grieve) began with the location of the court. He rightly said that the Judicial Committee of the House of Lords currently operates in a seminar style. I have appeared before the House on several occasions and my experience is of academic, to quote the hon. Gentleman, discussion. It is the sort of discussion that needs close interaction and a dialogue between counsel and the members of the Judicial Committee. There is nothing inconsistent between that style of judicial decision making and a new location.
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To broaden the perspective, if one considers the operation of comparable courts such as the supreme courts of Canada or Australia, one see that style in a separate supreme court building or its equivalent. The Law Lords who support the change and the Government's proposals do not believe that the current style of decision making is inconsistent with having a different location.
The hon. Gentleman mentioned Westminster guildhall. I have sat there several times as a recorder and there is no doubt that structural changes must occur if the seminar style is to continue. That will require substantial expenditure. However, that is a consequence of the principle. That court has built up good relations with other parts of the criminal justice system in central London and I should like assurances from my hon. Friend the Under-Secretary that everything will be done to facilitate transition for the judges and staff of that court and for the continuation of the good relations. I therefore have no problem with a move to a separate building or with Westminster guildhall. Situated on Parliament square, it is an appropriate place for a supreme court.
The more substantial point is the creation of the supreme court. As I said on Second Reading, I was initially sceptical about the proposal. There is no doubt that the House of Lords is an outstanding body. The judges are of the highest integrity and standing not only in common law but more generally in the international legal world. When one hears from judges such as Lord Nicholls, who opposes the change, that gives one
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pause for thought. We heard evidence before the Constitutional Affairs Committee from Lord Hope, the former Lord President of the Court of Session in Scotland and now a member of the Judicial Committee, who said that he appreciated the opportunity to sit in the House of Lords in its legislative capacity, listen to debates and hear the issues of the day discussed. He believed that that was beneficial in the performance of his judicial functions. It gave him a wider perspective. There is no doubt that judges at that level need a wider perspective because they make decisions that have profound social consequences. However, as I also said on Second Reading, I am persuaded that the case for a supreme court has been made. I mentioned other jurisdictions. No other jurisdiction has our arrangement. Although that is not necessarily conclusive, it is a persuasive argument for change.
I mentioned the supreme courts of Canada and Australia in the common law world. The Indian supreme court is also an eminent judicial body. Across the North sea in Germany, arrangements at the highest levels are different, in that there are supreme courts in functional areas such as tax, labour and administration. However, in Karlsruhe, we find the Bundesfassungsgericht—the German constitutional court—and the supreme court of justice, the Bundesgerichtshof. We have only to read the judgments of those courts to see why the Bundesfassungsgericht is so highly regarded as a constitutional court. Those are examples using comparisons. Other countries have supreme courts, so why do not we?
The argument relating to the rule of law is strong. It is not an argument about the separation of powers, but, as Lord Bingham has said, judges are judges. The hon. Member for Beaconsfield asked why we needed a supreme court. Bagehot talked about the effective parts of the constitution, but he also talked about its symbolic aspects. Sometimes, as in this case, symbols are important. Here we would have a separate supreme court illustrating the fact that judges are functionally separate and that judges do judging.
Let us look at the historical situation. The hon. Gentleman rightly said that we had had courts in this location for centuries. Furthermore, members of the Judicial Committee have also been members of the legislative body in the House of Lords, but those were different times. When we had our debate in Westminster Hall on the Constitutional Affairs Committee report, I quoted the words of Lord Salisbury on the kind of person who ought to be a judge. He also said that the judges in the House of Lords should be Members of the House of Lords,
"since, practically, they have often to make law as judges, they will do it all the better for having also to make it as legislators".
Frankly, I do not think that that argument holds water any more. I accept the point that judges make law. We lawyers all know that Lord Reid famously said that it was a fairy tale that judges did not make law. They do, but, more importantly, they make law within a social and economic context. In a case before the Privy Council in 1949, Lord Porter said:
Judges make important decisions that have social ramifications.
The fact that we now have the Human Rights Act 1998, that we are getting important decisions such as the Belmarsh decision, and that, in a different context, we have had cases such as the Pinochet case, illustrates that judges are now making decisions that have a much greater impact on our social lives, in terms of both public perception and reality.
Peter Bottomley (Worthing, West) (Con): I do not want to challenge anything that the hon. and learned Gentleman is saying, but in what kind of forum should a judge be able to say, "The law requires decision X, whereas justice would require decision Y."?
Ross Cranston: Judges already do that in the context of their judgments, although they might not put it in exactly those terms. The Law Commission, for example, will often draw on what judges have said about changes in the law. A judge might say, "I have to decide this case in this way, but there is a problem with that." That is something that the Law Commission should look at. That judge might suggest that justice required a change in the law, although, as the hon. Member for Beaconsfield said, judges have to be extremely careful about what they say.
It is difficult to characterise the times in which we live. In a decade's time, when the supreme court is up and running, we might look back and see this as a fundamental revolution in our constitution. However, the proposal seems to me to be the kind of pragmatic, incremental change that is characteristic of constitutional change in this country. Today seems to be an appropriate time to make that change and I support the Government's proposals.
Simon Hughes: It is a pleasure to intervene in this debate at this stage, having not taken part in it earlier—perhaps a greater pleasure than for those other Members who have laboured day and night over the Bill. I shall be brief, but I shall also be slightly self-indulgent, because this is an enjoyable extra to my normal duties. I have declared an interest, in that I am a member of the Bar. Although I do not currently practise, I am still a member of chambers, so, like the hon. Member for Beaconsfield (Mr. Grieve), I have performed over the road at the Middlesex guildhall in its capacity as a Crown court.
I want to address the two questions raised by the amendments, but I have one preparatory comment. The good knowledge of history that the hon. Member for Beaconsfield demonstrated reminded me that this place now lacks the kind of great historical contributions that used to be made here. He also reminded me of his very-much-still-alive predecessor, Lord Brooke of Sutton Mandeville, formerly Peter Brooke, whose knowledge of London and Westminster history was without parallel. We miss him, although those at the other end of the building still have the benefit of hearing from him.
On the venue for the supreme court, my hon. Friends and I have always supported the idea that there should be a supreme court and that it should be visibly and
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organisationally separate from the working of the legislature. On Sunday, there was an insert into the "Politics Show" on television; I discovered that it is running a series of them. Last week's asked, "How Conservative are the Conservatives?" This week, it was, "How Liberal are the Liberals?", and next week it will be, "How Labour is Labour?" As I was listening to the hon. Member for Beaconsfield, it struck me that, if ever we wanted an illustration that the Conservatives were still Conservative, he would be a living manifestation that that was the case.
We need to scrutinise the argument for keeping an arrangement that grew up for a reason that has now changed. The reason that the courts were in this building, a royal palace, was that the king was the fount of justice. He invited the courts to sit in Westminster Hall and we are proud of Westminster Hall's history, both its conservative and its progressive, radical history. That must include its most radical moment of all, when King Charles I was sentenced to death in the hall attached to this building.
That was the reason for the courts being here and when the fire happened in the 19th century, the opportunity was taken to move almost all the courts to the new law courts in the Strand. The only court that remained here was the Law Lords. They represent the highest court in the land and effectively form the supreme court, but they are also members of the legislature, which is part of the other historical anomaly.
The hon. and learned Member for Dudley, North (Ross Cranston) rightly said that no other place in the world had the same judicial arrangements as ours. Well, no other place in the world has the same parliamentary arrangements as ours, namely an elected Chamber at one end, and at the other, a Chamber that is, with the exception of nearly 100 people who are the elected residue of the hereditary peers, all appointed. One historical anomaly is that, when the senior judges were appointed, the same group of people were appointed to be Members of the House of Lords. We delude ourselves if we imagine that the judges are regular, active participants there, because they are not. They are given that job incidentally, having been appointed as senior judges. They may incidentally contribute to debate and some benefit may result from their being able to talk to legislators, but I envisage much greater benefit from a separate supreme court elsewhere.
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Let us take the great December judgment, when the House of Lords decided by a majority of eight to one that the Government were acting illegally—unlawfully. It is interesting to note that Ministers find it very difficult to use those two words. The Lords said that the Government were acting without the law in detaining people in Belmarsh and required them to change the law. That was a hugely significant constitutional judgment, for which many of us are very grateful.
The House of Lords does its job in a very different style from the one that people would normally expect. The Lords do not sit in robes or on pedestals and do not wear wigs, but the House of Lords hardly ever experiences public involvement, acclaim or participation in its processes. People go much more
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often to the law courts in the Strand, and even more often to Crown courts around the country, which are visited by school parties, college and university students and others with an interest. Very few people come to the supreme court of this country, although it would be far better if they did.
Members have given examples of courts in other countries that are frequently visited. There is the Supreme Court of the United States. There is the European Court of Human Rights, which has its own building in Strasbourg. There is the European Court of Justice in Luxembourg. People go to those courts and see judges interpret the law, and it is important that the judges can be seen to do that in a way that the public can fully appreciate. The public would be far more likely to appreciate the significance of what the judges do here if they were in a free-standing location and seen to be wholly independent of the legislature. This is about perception as much as reality.
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