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Mr. Wills: May I start by welcoming you to the Chair, Mrs. Anderson? You have assumed it since we began this debate, and although that might seem like a long time ago, I would still like to take this opportunity to welcome you to it.
I congratulate the hon. Member for North-West Norfolk (Mr. Bellingham) on his marathon tour of the horizon, as I think the translation goes. He ranged very widely indeed. I congratulate him in particular on his accomplishment of spending 30 minutes advocating what he described as a modest step. If I take it rightly, the reason he spent so much time on it is that he was treating the issue as a microcosm of what he and some of his colleagues who intervened on him see as wrong with the Government's constitutional reforms. He was right to treat the issue as a microcosm of different attitudes towards constitutional reform, because his approach, as seen in his colleagues' interventions on him too, reflects precisely the problems with the Conservatives' approach to constitutional reforms: a mistrust of the British people, a mistrust of change and a misunderstanding of the consequences of their own advocacy.
The hon. Member for Rugby and Kenilworth (Jeremy Wright), who has now wafted off somewhere- [ Interruption. ] No, he is still here, on the Front Bench. He said that he thought that the issue was a microcosm of how the Government did not know where we were going. He is wrong, because we know precisely where we are going in all the areas covered by new clauses 20 and 22. What lies at the heart of the arrangements that the new clauses seek to alter is the principle of the separation of powers and the independence of the judiciary from the Government, which is fundamental.
The hon. Gentleman may not recognise those principles; he may not think them important. But we recognise them and we think that they are fundamental to the health of our constitution. They are particularly important now, in what many commentators have described as a constitutional crisis. People have lost trust in the processes of their democracy, including those in this House, and in Members of this House. We know that, and every Member knows that we have to change that.
One of the key things, as we take forward a programme of constitutional reform that all parts of the House recognise has to be undertaken, is that power should never be concentrated in one place. The best protection against the arbitrary or absolute use of power is the separation of powers-in other words, the diffusion of powers.
Mr. Heald: Is not the fault in the Minister's thinking the fact that, in Britain, that has never been our way of doing things? In Britain, all the power in the country is focused in the Cabinet, where we had the Lord Chancellor, a judge who spoke up for the judiciary, the Leader of the House, who spoke up for the Back Bencher, and the Attorney-General, who spoke up for the legal profession. That is an odd way of doing things, but it was our way, and now the Minister has broken it.
Mr. Wills: With all respect for the hon. Gentleman, his understanding of our constitutional history is flawed. He is right that in this country we have always evolved, rather than had revolutions, although there have been great disjunctions in our political history-far more than we perhaps realise-and there has been a certain fuzzy logic about our arrangements. Nevertheless, there has always been a logic. Montesquieu, the great proponent of the separation of powers, took his inspiration from the way this country operated. I am proud to say that this country has always followed the principle that healthy societies are democracies in which power is diffused as widely as possible. All parts of the House can agree on that.
That is fundamental, and it is precisely the area at which the measures that the proposed new clauses would overturn are directed-that is, the independence of the judiciary. It is profoundly important that we do nothing to harm that principle and that, as far as possible, we pursue the principle of the separation of powers. It is important not only that powers should be separated in practice, but crucially that they are perceived and believed to be so by the people we all serve.
Mr. Heald: I agree with the Minister that there are elements of separated powers in Britain, because each of the institutions has fought for its rights. The judges fought for theirs, Parliament fought for its right over the King, and so on. However, the compromise was that we had to have representatives of all the main interests right at the heart of power, at the Cabinet table, because the Executive are not separate from our Parliament. The Government fell into error by breaking the role of the Lord Chancellor, and that is why we have to have a massive concordat and a great big Bill to deal with this. I still worry that Ministers do not understand that we do not have a true separation of powers, as they do in America; that is not our system.
Mr. Wills: Of course the hon. Gentleman is right. We do not have a written constitution in which these things are formally codified, although we have elements of codification in our constitution. He is right to say that this is a complex issue. Inevitably, the patterns shift over time. The courts arrogate powers to themselves, for example, and Parliament tries to get power back from the Executive. Under this Government, the Executive are giving power away to Parliament. This is a constant process that ebbs and flows and, in among the inevitable conflicts and tensions that arise, I believe that we have a healthy democracy. We have to prove that in the months and years ahead. We have to reinvent our democracy for ourselves collectively, and we must ensure that the people we serve know that that is what we are here to do.
We broadly agree that, as we do not have a written constitution, these matters are flexible. However, the goal of diffusing power as widely as possible and, in this context, maintaining the robust independence of the judiciary is fundamentally important to the liberties of the British people.
Is not the central thesis of the argument put forward by my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) that if it ain't broke, don't fix it? The problem here is that the Government have embarked on a programme of constitutional reform with regard to the judiciary that they did not need to
start and that they have no idea how to finish. The Minister cannot possibly argue that the independence of the judiciary was weak before these reforms and is stronger now. The judiciary challenged Executives of both political colours in a robust way well before the Judicial Appointments Commission was thought of.
Mr. Wills: I am grateful to the hon. Gentleman for that intervention, because I was about to come to precisely that point. I would just say that clichés are not really a maxim for constitutional reform, but I shall rephrase that, and say that we should not approach constitutional reform in this country as engineers with a blueprint into which everything has to be shoehorned. If that is what he is saying, I agree with him. He is nodding. We should approach it as physicians, healing what needs to be healed and encouraging preventive medicine. We need to be fit, and constantly to respond to the needs of the people we serve.
The gist of the arguments in favour of the new clauses is that the system was good before, so let's not change it. I agree with the point made by the hon. Members for North-West Norfolk, for North-East Hertfordshire (Mr. Heald) and for Rugby and Kenilworth that our judiciary has comprised many individuals of surpassing excellence. The hon. Member for North-East Hertfordshire listed many luminaries of the bench, and we look back on their judgments and see their wisdom, their command of the law and the way in which they developed the common law. Of course, no one could possibly be anything other than full of admiration for the work that they have done over decades and generations. The hon. Gentleman is right about that. So, too, is the hon. Member for Somerton and Frome (Mr. Heath) when he says that we should not be complacent about these things, however. Just because we have a list of luminaries, that does not mean that the system is perfect. Of course it is not, and we should always strive to do better. That is my response to the hon. Member for Rugby and Kenilworth. The fact that the system was good does not mean that it cannot be better.
I urge hon. Members to focus on this point: the system should not only work but be seen and believed to work in accordance with the fundamental principles of the British people. We have to give the British people confidence in the system. It is not enough that the hon. Member for North-East Hertfordshire thinks that those judges have been brilliant; the people we serve have to believe it as well.
David Howarth: May I support the Minister even further? It is clear to those who have studied the judiciary over long periods that the quality of judicial appointments under the old system was highly dependent on the quality of the Lord Chancellor of the day. There were some immensely good Lord Chancellors, but, to be frank, others were not so good.
I am grateful to the hon. Gentleman who, as always, brings a great deal of learning and knowledge to our proceedings. He is right. We have to be clear about the purpose of new clause 20: it is to return to the old system. Various points are made about the role of the Judicial Appointments Commission, but even in its own terms-and the terms of the argument made by the hon. Member for North-West Norfolk-the provision is flawed. The hon. Gentleman quoted a letter from an anonymous judge, although I am not quite sure whether
this was a High Court judge. The hon. Gentleman does not want to clarify that, so let us call him the anonymous judge of whatever level. He said that these appointments would be made by people with no experience of these matters, so let me remind the hon. Gentleman what happened before our reforms were put in place-the position to which he wants to return-and what happens now.
Previously, these judges were appointed by the Queen-that remains-on the recommendation of the Prime Minister. According to our anonymous judge, the Prime Minister presumably has no experience relating to the people being appointed. The advice of the Lord Chancellor was also relevant, and he may well have had some experience before the reforms. The Lord Chancellor consulted the various heads of division; that was the role-they were consulted, and that was it. What happens now is that the Lord Chief Justice takes part in the proceedings and the Constitutional Reform Act 2005 establishes the selection panel-this is what the new clause would abolish-chaired by the Lord Chief Justice who I think all Conservative Members would accept has had day-to-day experience throughout his working life. [Interruption.] The hon. Member for North-West Norfolk might want to listen to this, as he seemed to have forgotten it in his remarks.
As I say, the Lord Chief Justice chairs the selection panel, so I assume that the anonymous judge whom the hon. Gentleman quoted would be content with that. The Lord Chief Justice or his nominee chooses another judge-again, I hope our anonymous judge would be happy with that-and another lay member of the JAC. This system therefore puts two judges, with all the experience that the hon. Gentleman wanted to see deployed in the appointment of lords justices of appeal, in the driving seat in the selection of those judges. That is precisely what the new clause would remove. Even in terms of the hon. Gentleman's own argument, it does not fly.
There are enormous benefits from having the Judicial Appointments Commission, but the hon. Member for Crewe and Nantwich (Mr. Timpson) has made various complaints about it. I would like to reinforce what the hon. Member for Somerton and Frome said to him when he pointed out that the fact that a system may not work perfectly does not mean that we have to ditch the whole system; we simply have to improve it. We have to decide first whether the system we have is better than the one we had before-and I think that it is, unarguably. It is unarguably better because it ensures greater levels of independence and transparency in the appointment process. I do not understand, particularly nowadays, how anyone-even those on the Conservative Benches-can argue against having greater independence and transparency in an appointments process.
To clarify, the JAC appoints candidates solely on merit, so the various innuendos we heard floating around that judges were appointed on criteria other than merit are not right. This system works and continues to work well; of course it can work better; that is what we all want it to do.
I could go through various arguments for and against the written tests. As hon. Members have said, there are arguments both for and against them, but it is worth
bearing in mind that some recent selection processes had up to 1,000 candidates applying. We need a sifting process to deal with that. As to the comments about costs and all the rest of it, I ask hon. Members to reflect on how they would carry out the sift. Having a personal system of interviews is likely, as a first sift, to be considerably more expensive than a written test. Every business has to do this and the civil service adopts similar processes for its fast-stream.
The key point is that I am deliberately not going to comment on the efficacy of the written tests. I invite hon. Members to reflect on it for themselves. The reason I am not going to do that is that doing so would be another instance of the Executive trampling into terrain that should properly be the preserve of the independent Judicial Appointments Commission.
"I will ensure that the definition of merit should be for the commission itself and not for Ministers."-[ Official Report, House of Lords, 8 March 2004; Vol. 658, c. 984.]
The Act went on to recognise that, and the importance of the JAC and the judiciary, by providing that the JAC should determine its own selection processes. That is right and proper. That is our position, too. The JAC should determine its own processes. There are arguments for and against, which we could have until 7 o'clock, but I do not intend to do so.
When I began my remarks, I referred to the traditional Conservative attitude towards constitutional reform. There is another tradition of Conservatism, which I invite the hon. Member for North-West Norfolk to discover: the tradition of progressive Conservatism of Disraeli and Lord Randolph Churchill. They would never have pressed such a new clause, so I invite the hon. Gentleman to rediscover that tradition and withdraw his new clause.
Mr. Bellingham: I will be brief. The Minister has been his normal charming self. I do not agree with everything he said, but I listened carefully to his comments on our new clause 20, and to the compelling points of the hon. Member for Somerton and Frome (Mr. Heath). Although we in no way resile from the arguments we put forward, I accept what the Minister has said. On that basis, I will not press new clause 20, but I would nevertheless like to put new clause 22 to the vote at the appropriate stage.
New clause 21 relates to the Supreme Court. Again, I declare an interest as a barrister. The background to the establishment of the new Supreme Court was due entirely to the Constitutional Reform Act 2005, the relevant section of which made it clear that the Supreme Court would be set up. Section 48 refers to appointing a chief executive.
This reform was part of a wider package, which we discussed in detail on earlier new clauses, and I do not want to repeat those discussions. It is worth pointing out, however, that the Judicial Committee of the House of Lords-the Law Lords, as they were known-did a first-class job. No one complained that they were not doing a good job. No one complained that their location in any way inhibited or restricted their professionalism or their work. They started off, many years ago, in the main Chamber of the House of Lords, but as pressure on business increased they were exiled to a Committee room on Committee corridor.
The Temporary Chairman (Janet Anderson): Order. I remind the hon. Gentleman that we are discussing whether to have a chief executive of the Supreme Court. I would be grateful if he restricted his remarks to that.
Mr. Bellingham: I will come on to that quickly, and I am grateful to you, Mrs. Anderson, for that reminder. Obviously, it is difficult to explain what the chief executive is about without looking at what the chief executive does, which is preside over the Supreme Court on which the former Law Lords are judges.
Although one might well have taken the view that it was quaint, quirky, anachronistic and so on to have Law Lords sitting in a small Committee room, the arrangement worked very well. However, it was decided that they should be moved across to the new Supreme Court. Obviously, that decision was taken at a time when the economy was booming, and no one worried too much about the costs. The original estimated cost was £30 million, which then went up. As we know, the ultimate capital cost of the Supreme Court came in at £58.9 million: a vast amount of money to locate those judges in a new building when they had a perfectly good place to sit already. I believe that only one Law Lord agreed, and publicly stated, that it was a good idea to move across to the Supreme Court. The other Law Lords were all opposed to the move. They felt that the existing arrangements worked extremely well.
I will not dwell on the capital costs, however, because I want to consider the current costs of running the new Supreme Court. Let us consider the previous arrangements that were in place in the House of Lords. Of course, it is difficult to work out exactly what the costs were, but the cost of the Clerks, the Librarian and the other officials who serviced the Law Lords amounted to roughly £600,000. That was not a huge sum, and I think that it represented very good value for money. Back in July it was announced in a written parliamentary answer that the running costs of the new Supreme Court would be £12.3 million. That is a pretty staggering figure compared with £600,000. The new chief executive, who is the subject of new clause 21 -
Mr. Wills: I am sorry to intervene on the hon. Gentleman again, but I want to be absolutely clear about this. He knows for a fact, does he, that the costs have escalated twentyfold as a result of the move from the House of Lords?
Mr. Bellingham: Yes-the actual administrative costs: the running costs. As Hansard shows, in 2005 the Minister replying to the debate in the House of Lords agreed that the actual costs amounted to £600,000. Obviously the costs of the salaries and pensions of the Law Lords were additional to that. The original figure given for the running costs of the Supreme Court back in July was £12.3 million, to which must be added the salaries and pensions of the Law Lords. Between July and September, that figure rose to £13.5 million. May I ask the Minister who is in charge of these costs? Who is controlling them?
Six full-time staff serviced the Law Lords, and I think that they did a very good job in looking after their interests. There are 39 people in the new Supreme Court. The other day I tabled a parliamentary question asking
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