Legislative process
8. After the introduction of the Constitutional Reform
Bill [Lords] into the House of Lords there was a series
of statements and debates on the proposals in the Bill. From February
to October the Bill was debated extensively in the House of Lords.
This included the highly unusual step of referral of the Bill
to a Select Committee, which reported on 2 July 2004 with an amended
Bill. The amended Bill was given extensive examination during
subsequent stages on the floor of the House. As part of the arrangements
for scrutiny, the House of Lords agreed to carry over the Bill
into the next Session.[8]
9. The House of Lords Select Committee approached
their task of considering the Bill in a consensual way, without
taking votes. Many Government amendments to the Bill were agreed
to. It was clear from the outset that on three of the main planks
of the Bill—abolition of the office of Lord Chancellor,
establishment of a Supreme Court and disqualification of judges
from sitting and voting in the Upper House (then Clause 94)—there
was a division of opinion. On these three issues the report of
the Lords Select Committee on Bill sets out the rival arguments
based on the written and oral evidence received. There was broad
agreement that a Judicial Appointments Commission for England
and Wales was desirable.
10. Despite disagreement over the formal qualifications
and characteristics of the minister responsible for judiciary
related matters (should he be called 'Lord Chancellor', be a senior
lawyer and a member of the Upper House—or be a mainstream
Secretary of State?), there was broad acceptance that the minister
should no longer be head of the judiciary in England and Wales,
or sit as a judge, and that the terms of the Concordat should
be fulfilled
11. There was significant debate and comment on the
Bill outside the House of Lords. There was a further debate on
27 March 2004 in Westminster Hall on this Committee's Report.
Between March and May the Justice 2 Committee of the Scottish
Parliament conducted an inquiry into the Bill and published a
Report.[9] On 1 July 2004
the Commission for Judicial Appointments published a review of
the High Court 2003 competition. On 13 October 2004 DCA published
a consultation paper: "Increasing Diversity in the Judiciary"
(responses were requested by 21 January 2005).[10]
12. In our First Report we emphasised that the way
in which these complex and fundamental proposals were announced,
as a part of a Cabinet reshuffle and without consultation or advice,
had created anxieties amongst the most senior members of the judiciary
and was felt by some supporters of the changes to have been unhelpful
in presenting the case in favour of them.[11]
The consultation process had been too short and the legislative
timetable as originally planned was too restrictive to deal with
changes which were so far reaching in their effects. We recommended
that the Government proceed with the Constitutional Reform Bill
on the basis of its being draft legislation—in particular
in respect of the proposals for a new court of final appeal. [12]
13. We believe that our previous inquiry, the
Lords Select Committee and the Carry Over procedure have ensured
that there has, after all, been proper examination of the Government's
proposals set out in the Bill. In practical terms these processes
gave the Bill the scrutiny that a draft Bill would expect to receive.
14. The Bill was introduced into the House of
Commons on 21 December 2004 and received its Second Reading on
17 January. This interval did not allow us sufficient time to
report to the House in time for the Second Reading debate, which
is regrettable.
Amendments in the Lords
15. The Bill has been extensively amended since its
introduction in the House of Lords. The Select Committee agreed
to over 400 amendments to the Bill—all moved by the Government.
The principal changes to the Bill which were made by the House
of Lords are set out in the Table below (see Table B).
16. Debate concentrated on several important issues:
- whether the office of Lord
Chancellor should be retained in some form; and if so whether
the holder must be a senior lawyer and member of the Upper House
- how Ministers' responsibility to uphold the rule
of law should be expressed
- the principle of whether a Supreme Court should
be established
- resourcing and administration of the Supreme
Court.
17. We discuss the outstanding issues in detail below.
1 DCA Consultation Paper, CP 11/03 Back
2
DCA Consultation Paper, CP 10/03 Back
3
DCA Consultation Paper, CP 13/03 Back
4
Judicial appointments a and a Supreme Court (court of final
appeal), First Report of the Constitutional Affairs Committee,
Session 2003-04, HC 48-I and II Back
5
Judicial appointments and a Supreme Court (court of final appeal):
The Government's response to the report of the Constitutional
Affairs Committee, Cm 6150 Back
6
The text is published at House of Lords, Report of the Select
Committee on the Constitutional Reform Bill [HL], Session 2003-04,
HL Paper 125, pp 202-224 (Appendix 6) Back
7
ibid, para 85; and see ibid Qq 713, 726 Back
8
HL Deb, 22 March 2004, col 472; the debate about the reforms has
also been informed by recent academic literature, including Andrew
Le Sueur (ed) Building the UK's New Supreme Court: National
and Comparative Perspectives (OUP, 2004) and Derek Morgan
(ed) Constitutional Innovation: the Creation of a Supreme Court
for the United Kingdom: Domestic, Comparative and International
Reflections (LexisNexis 2004) (also published as a special
issue of the journal Legal Studies, vol 24, March 2004) Back
9
Justice 2 Committee, Fourth Report, 2004 Back
10
DCA Consultation Paper, CP 25/04 Back
11
op cit, paras 14 and 15 Back
12
op cit, paras 188 and 193 Back
