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Mr. Grieve: Another oddity is that our constitution means that the proposed court will not be a supreme court so much as the final Court of Appeal for the UK. Moreover, in the Strand there sits already the supreme court established by the Supreme Court of Judicature Act 1891. The Government have not explained what they intend to do with that, but it is one reason why it might have been appropriate to call the supreme court's judges Lords of Appeal—whether in Ordinary or not.
Mr. Leslie: Some courts are commonly called supreme courts, although they are not used as such, and we have suggested that they be called superior courts. The supreme court will be the UK's final Court of Appeal, but it will not take on what are regarded as the functions of the US Supreme Court. Our supreme court will act as the Court of Appeal for cases produced in all of the UK's different jurisdictions. The proposed title is the one that will best fit its functions.
We consulted widely about the name change. The proposal to adopt the title of Supreme Court Justice received widespread support from those who responded to the consultation process.
Simon Hughes: My party supports the proposal for a supreme court, with supreme court justices. However, will the term for those who do the Appeal Court job remain Lords Justices of Appeal? In any case, the supreme court will be able to do its job properly only when we have our own Bill of Rights.
Mr. Leslie: The hon. Gentleman may be the Liberals' liberal, but the changes on the tables are enough for now. I shall stick to them.
Various amendments apply to the appointment process for Lords of Appeal and Law Lords. However, increased transparency in the appointment process is not the only requirement when it comes to reforming the system. We want there to be a separate court, so it would therefore not be enough merely to change titles. The court must be separated from Parliament.
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Mr. Grieve: I appreciate that the amendments envisage retaining an appointments procedure, but that mechanism is rendered ponderous by the requirement that there be a president of the supreme court, and a deputy president. At present, the senior among the corporate group of judges is, by convention, the one who presides and undertakes a certain amount of regulatory function. The provision in the Bill represents quite a change, as we shall discuss at more length in the debate on clause 21 stand part. However, I should be grateful if the Minister would say why the Government have decided formally to appoint a president and a deputy.
Mr. Leslie: The proposed president of the supreme court will have different functions and characteristics from the present senior Law Lord. We believe that the job will merit its own appointment process. The appointment process for supreme court justices will have to be more transparent and formalised than at present, and I know that the hon. Gentleman agrees with that. That reform is well worth while.
Although the amendments are founded on clear principles, I hope that the Committee will reject them. We need to move away from having a legislative body that interprets and applies the laws that it passes. It must not be perceived to do that, so we must secure the functional separation of judiciary and legislature. The highest court in the land must have clarity, transparency and visible independence. These are high constitutional matters, although the hon. Member for Beaconsfield suggested that they were academic and esoteric, without great importance for the public at large. He said that the expenditure incurred by the reform was not necessary, and it may be true that the constitutional environment just at the moment is placid and calm. However, we should not ignore the potential problems in the system or shy away from making improvements.
Mr. Grieve: I do not disagree with the last part of the Minister's peroration, but he did not understand at all my use of the words "academic" and "esoteric". I was talking about how members of the public might regard the deliberations of the court, but I did not intend to diminish the importance of what it does. In its current form, the court performs vital work. It will continue to do so in any new form that it might be given.
Mr. Leslie: I understand what the hon. Gentleman says, but his earlier comments betrayed a view that these issues are remote and distant from the public at large. They are fundamental and that is why they require attention, even if they seem from time to time to be academic. They are central questions and my point is simply that it is important to keep the health of our institutions in prime condition. We should not accept a conservative attitude from the Opposition. We have a duty to maintain the health of our institutions as best we can and that is why a new supreme court is necessary. I hope that the amendment will be withdrawn or, if not, rejected.
Mr. Jonathan Djanogly (Huntingdon) (Con):
I am a practising solicitor and, technically, a solicitor of the Supreme Court. The Minister may wish to consider
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the fair point made by the hon. Member for Southwark, North and Bermondsey (Simon Hughes) that there are complications surrounding the use of the words "supreme court". Those will need to be dealt with if the Bill is passed in its current state.
The arguments against the creation of the Government's new supreme court were eloquently set out during the Bill's passage through the other place.
Mr. Leslie: I need to correct a comment that I made earlier. I said that we would change the colloquial term Supreme Court, covering the High Court and Appeal Court, to the superior courts. In fact, the title in England and Wales will be the senior courts and in Northern Ireland it will be the court of judicature. I wanted to put that on the record.
Mr. Djanogly: I thank the Minister for that clarification.
Arguments against the creation of the new supreme court were set out on Second Reading in this House and by my hon. Friends the Members for Beaconsfield (Mr. Grieve) and for Worthing, West (Peter Bottomley) today. Because the Government will not drop this divisive proposal, my hon. Friends and I feel that we must speak out again in the hope that some sense might prevail. We remain convinced that the creation of a new supreme court would not only be a pointless and costly exercise, but cause significant damage to the excellent position we enjoy now.
Despite all their attempts to convince us otherwise, the Government's proposals to scrap the judicial functions of the House of Lords in favour of a new supreme court are unnecessary. The hon. and learned Member for Dudley, North (Ross Cranston) spoke about the chances of the Bill leading to a fundamental revolution. This Bill will not do that. It is a damp squib or, at best, what my hon. Friend the Member for Worthing, West described as change for change's sake. The proposed court would exercise the same role already carried out by a combination of the existing Appellate Committee and Judicial Committee of the Privy Council. Under clause 21, the existing Lords of Appeal in Ordinary would, logically, become the first judges of the supreme court. Legal rulings by the Law Lords already command the highest respect in this country and around the world. Indeed, there is no suggestion from any quarter that the existing Law Lords are anything other than excellent at their work, and the hon. and learned Member for Dudley, North made that point earlier.
What is the justification for wrecking the present arrangements? Again, we come back to change for change's sake and the Minister citing what he thinks is a modern, liberal separation of powers. Not only would the move to a new supreme court do nothing to improve the Law Lords' reputation, the opposite might be the case, as Lord Nicholls of Birkenhead rightly pointed out in the other place. The Appellate Committee's esteemed reputation might not pass seamlessly to a new body. The proposed supreme court would not begin its life as a supreme court as the term is understood in almost any other jurisdiction. It would not have the power to override parliamentary supremacy and strike out legislation as unconstitutional. The question then arises
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as to whether we would be swapping the prestige of our present Appellate Committee for a court perceived, as the Lord Chief Justice, Lord Woolf said, as a sort of "second class" supreme court.
The Government justify the new supreme court on the grounds of ensuring the independence of the judiciary, yet concerns about that have never been more than anecdotal. No one has seriously suggested impropriety on the part of the Law Lords.
What of the Human Rights Act 1998? I concur with the view expressed by my hon. Friend the Member for Beaconsfield on Second Reading when he suggested that only the fact that the Lord Chancellor sits as a judge—we are all happy to change that—could, arguably, provide grounds for a human rights challenge. That aside, one can point to the fact the despite all the scaremongering, no legal challenge has ever been made to allege that our existing arrangements do not ensure a fair trial, in line with the European convention on human rights. The need for greater separation of powers in the British system is also a spurious justification for a supreme court. As Lord Kingsland said in the other place,
"the argument that the separation of powers requires these reforms proposed by the Government is wholly unsustainable."—[Official Report, House of Lords, 12 February 2004; Vol. 657, c. 1222.]
Democracy has long been upheld in this country without the requirement for the type of rigid separation of institutions favoured in, for instance, the United States. Even if some notion of political correctness were to require such separation, would not the link between the legislature and the Executive be rather more pressing? However, there are no plans—as far as I know—to remove the Executive from this place, notwithstanding the fact that it has vastly more impact on the affairs of the legislature than a few Law Lords in the other place.
2.15 pm
Another of the Government's arguments has involved the inadequacy of the present working arrangements for the Law Lords, but it is far from the unanimous view of the Law Lords themselves. Lord Nicholls of Birkenhead, for instance, responded to the suggestion that the Appellate Committee made do with impoverished and substandard facilities by saying:
"Nothing could be further from reality."—[Official Report, House of Lords, 20 December 2004: Vol. 667, c. 1552.]
He also said that the Law Lords unanimously favour some of the advantages that the present arrangements bring, such as the informal layout and procedures, which are conducive to the promotion of dialogue. In contrast, Lord Bingham of Cornhill has previously noted that the Law Lords have grave doubts about the suitability of the Government's proposed choice of Middlesex guildhall for the new supreme court. The arguments have been made already today, and I shall not go over them again. However, in terms of prestige, what more fitting location is there for our highest court than right in the heart of Britain's seat of power—here, in the Palace of Westminster? How can a move away from here be anything other than a negative step?
The hon. Member for Southwark, North and Bermondsey acknowledged that the House of Lords does its job in an unusual way, and that few people were
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able to watch it. However, the Law Lords' method of working is collegiate and deals with points of law, rather than the exciting facts of the case as does the High Court. I do not see that as a strong argument. Nor would hot-desking in Church house be a good alternative. I appreciate that the hon. Gentleman rejected that suggestion.
Another weak line of argument with which the Government have attempted to sell us their proposals is confusion among the British public. As Lord Norton of Louth made clear in Committee, the Government cannot provide us with any empirical evidence on that point. The British public are, apparently, overwhelmingly confused about the judicial function of the House of Lords. Well, we beg to differ on that point. As others have pointed out, does it matter if the public cannot always remember that the Law Lords are in fact Lords of Appeal in Ordinary, sitting together as the Appellate Committee? The important point is that the public understand the role of the Law Lords as our highest court, independent of the Government and making decisions on the most important legal issues of the day.
There is an argument that some confusion may occur through the use of the name "House of Lords" to describe sittings of the Law Lords, but if that is the root of the alleged confusion, the solution would be as simple as removing reference to the House of Lords from the name of the court. That would avoid any confusion with the House of Lords as a legislative body, but would allow the existing Appellate Committee to continue with its work free from the unnecessary upheaval of leaving its present surroundings. Just such an outcome would have resulted from the amendment tabled by Lord Howe on Third Reading in the other place. To address that issue, we have again proposed an amendment that any supreme court should remain situated in the Palace of Westminster. As Lord Kingsland pointed out when he moved Lord Howe's amendment, the renamed court could be provided with its own entrance, such as the present Black Rod's Entrance, in order to underline further the court's separation to the wider public. Instead of supporting such sensible proposals, the Government continue to insist that what is required is nothing less than the complete uprooting of the Law Lords to less appropriate and more costly accommodation.
In dubbing the proposed court a supreme court, the Government may in reality just add to the level of public confusion. That is because, as I have already mentioned, the court will not be supreme over Parliament. Perhaps a name along the lines of "Final Court of Appeal" as in Hong Kong, for example, would be a more appropriate title.
As I have stated, not only do we believe that the creation of a supreme court is unnecessary, we would go further and state that the measure will have a damaging effect on the Law Lords and the House of Lords overall. As Lord Norton of Louth pointed out, a freestanding supreme court might be isolated and vulnerable to attacks from Ministers, including having its budget cut. As Lord Kingsland pointed out on Report in the other place, it also appears that the new supreme court
"will enjoy less financial independence than . . . the Appellate Committee".—[Official Report, House of Lords, 14 December 2004; Vol. 667, c. 1244.]
The public's perception of the court could suffer, too. Would not the judges in a new supreme court, away from the House of Lords, be more open to accusations that they were sitting in some ivory tower cut off from real decision making? The introduction of the supreme court could herald the first steps towards the type of rigid written constitution adopted in the United States.
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