| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
The Duke of Montrose: My Lords, I refer to the questions that the noble Lord, Lord Grantchester, asked. I receive SDA payments. Will the redistribution within the SDA involve production grants only and not the LFA grant itself?
Lord Whitty: My Lords, I take it that the noble Duke refers to the hill farm allowance payment in England. I always hesitate with the noble Duke as he normally talks about Scottish land, on which I am much less well informed than he. In England, the payment of the hill farm allowance will not be affected. The area payment will be calculated within the SDA and the historic element will comprise the historic payments which were previously allocated to the SDA.
Supreme Court and Judicial Reforms
2.14 p.m.
Lord Craig of Radley: My Lords, in the course of my remarks during the debate about the Speakership report last month, I said:
- "I am far from persuaded that the reforms of the judicial role and functions of this House and the upheaval involved following a difficult and contentious passage through Parliament will
- produce a better or more cost-effective outcome. Indeed, they would deprive this House of a most important responsibility, weakening that which is left".—[Official Report, 12/1/04; col. 393.]
Embedding the Lords of Appeal in Ordinary in this House provides them with a far greater level of protection within Parliament than their successors might enjoy in a Supreme Court. Any unwarranted attack on them individually or as a group would be an attack on Members of your Lordships' House and an affront to the primacy of Parliament. Far from enhancing independence if they were moved to a Supreme Court, it could weaken it.
That view was strongly upheld in a note written in November 2002 by the Lord Chancellor's Department, no less. It was commenting on a draft resolution about our judiciary to be put to the Parliamentary Assembly of the Council of Europe. I quote the Lord Chancellor's Department:
- "The draft resolution is mistaken in suggesting that the Lord Chancellor's combination of functions calls the independence of the English judiciary into question. On the contrary it is one of its more important safeguards.
- Our Parliamentary democracy makes for a considerable fusion of the executive and legislative branches. Unlike, for example, the position in the United States, every Cabinet Minister is a member of one or other Houses of Parliament. Taken with our doctrine of Parliamentary sovereignty, and the powerful influence of the executive upon the legislature, the judicial arm is not as strong, yet it must ensure that the executive is kept subject to the rule of the law.
- The Lord Chancellor provides a counter-balance for the judicial branch against the centralised power of government and Parliament".
- "The Lord Chancellor is removed to the House of Lords away from the full force of party politics.
- The Lord Chancellor is thus the judges' guardian and representative in the Cabinet and Parliament.
- His answerability to Parliament for the overall administration of justice, and his removability as a Minister, provide a degree of accountability for the judiciary as a whole which would be inconsistent with the professional judges' necessary security of tenure".
However, only six months later all those departmental arguments in support of the Lord Chancellor's position and the Law Lords were dumped. Are Her Majesty's Government suddenly so fearful of an adverse judgment under Article 6 of the human rights convention which came in 50 years ago, that centuries of usus and "opinion necessitates" (custom and its acceptance) provide no legal defence today—the more so when there is the widest agreement that the Law Lords discharge their duties most admirably?
I am reminded of the recent judicial pronouncement in the case of sudden cot deaths that the evidence of expert witnesses alone is not enough. The experts' views must be accompanied by material evidence before an accused should be found guilty.
We should apply the same test to the proposals for a Supreme Court. We have the current fashionable view of some if not all legal experts, but there is not a shred of factual evidence that damns the Appellate Committee. Instead we have a Government trying to bulldoze through a package of constitutional reforms of stupendous import, and contrary to their own strongly expressed views of only a year ago.
If they thought that there was a case for a change of such importance, why on earth tackle it in such an ill considered, ill mannered rush? Maybe our European neighbours have more enlightened judicial arrangements led by Montesquieu's doctrine of the separation of powers set out in 1748. Yet Montesquieu, it seems, was a great admirer of the British constitution and was never critical of the triple role of the Lord Chancellor. Surely, even for a Government so adverse to inquiries, this topic, if it is to be pursued, calls out for a Royal Commission and not merely pre-legislative scrutiny.
What goes forward in our centuries-old unwritten constitution must enjoy widespread national understanding and cross-party support. These proposals are too fundamental to be enacted suddenly by a "here today, gone tomorrow" administration, no matter how strong its contemporary position.
The proposals agreed between the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Chief Justice, like those for the Speakership, are contingency planning. But like those for the Speakership, they show up problems too.
There are numerous occasions when the Secretary of State for Constitutional Affairs and the Lord Chief Justice have to concur or consult with each other. Page 13 of the document lists 11 examples of these in a table but they are by no means the full story.
I looked at the arrangements which would be invoked in the event of a complaint about the behaviour of a judge. The respective roles of the Lord Chief Justice and the Secretary of State seem reasonable and unobjectionable at first. The document states that they,
- "will be jointly responsible for the operation of the complaints system and jointly responsible for the final decisions in relation to individual complaints".
- "the Secretary of State will be able to require a judicial investigation in a particular case".
The Secretary of State and the Lord Chief Justice must both agree to the imposition of a disciplinary action, although either may order the judicial investigation of a serious complaint. They may then accept its findings or, the document says,
- "either of them can refer the complaint and the report to the review body for reconsideration".
Judgments that are inimical to the government of the day could lead to political pressure being applied to the Secretary of State to have investigated the private life of the judge concerned when a complaint was made. Once such an investigation has been set in train by the Secretary of State, immediate trial by media of the judge will be inevitable. Even if the judge is found guiltless of any charge, his standing and integrity will have been damaged by political interference, perhaps fatally to his further career and incrementally to the judiciary itself. In his excellent maiden speech, the noble and learned Lord, Lord Cullen, drew attention to other problems with the concordat.
I foresee threats to judicial independence when the Secretary of State is no longer a Member of this House, and maybe not even a member of the legal profession, and sits in another place. One has to look no further than across the Channel at the allegations in the Alain Juppe case to see the judge was being pressured by the state.
Such thoughts also lead me to question whether the responsibilities of the Home Secretary and the Secretary of State for Constitutional Affairs for the criminal and civil systems of the law could also become far more at risk to disagreement and dispute and could lead to difficulties, particularly when both Secretaries of State may be aspiring, ambitious, members of government.
While it is essential for the Lord Chancellor and the Lord Chief Justice to agree proposals about what might be put in place if the Lord Chancellor's post is abolished by statute, surely it does not mean that this concordat therefore underwrites an acceptance or agreement that the Lord Chancellor's appointment should be scrapped.
It would be wrong to argue that the concordat clears the way for the abolition of the Lord Chancellor's post and I hope the incumbent will not be tempted to do this. It would not be worthy of him.
These proposals, and those to set up a Supreme Court, give an opportunity to compare the Government's proposed changes with the current arrangements and to judge whether they are as good, better or worse than the present well tried and tested system. They are not better. They are not even comparable. They are much worse so far as the integrity and impartiality of the judiciary is concerned. They weaken your Lordships' House. Must all this be sacrificed, and at what cost to the taxpayer?
The noble and learned Lord the Lord Chancellor must have thought about cost. I hope that he has and that he will tell this House the present running costs and those for setting up and running the Government's proposals. We should not make such monumental changes with no idea of the price tag.
2.24 p.m.
The Earl of Onslow: My Lords, Montesquieu, who has already been commented on, is the person who started all this trouble. It will be clear to your Lordships, especially those who are better educated
than myself, that Montesquieu noted that in England the powers were separate—not separated but separate, as they happen to be the same word in French. He commented on this as a method that deserved admiration. He was right. Because the Americans misunderstood Montesquieu, mistranslated him and made a completely different constitution by accident, we now do not understand what we mean by the separation of powers. It has to be either the American version or our version. Our powers are separate—they perform different functions.I remember getting angry when it was suddenly announced on television that the Lord Chancellorship was going to be abolished. I moved the adjournment of the House because I thought it was the most ill-mannered, cack-handed way to behave. I do not resile for one tiny moment from that opinion.
There is a song by Rolf Harris about two little boys, who had two little toys. I imagine the two little boys, the noble and learned Lord the Lord Chancellor and the Prime Minister, jumping about in their flat thinking, "Yippee! What shall we do? Shall we ruin the constitution? Oh yes, let's abolish ourselves". What an incredibly irresponsible method of looking at constitutional affairs. So, they came down to this House, under pressure, and made a Statement, having already made up their minds without having put any thought into it. It was admitted that nobody was consulted. It was admitted it was done off the back of an envelope. The Prime Minister admitted it was done incompetently. So why should we not say that this is an incredibly bad idea and please think again?
I served on Sub-Committee E of the European Union Committee under the noble and learned Lord, Lord Scarman. The great thing about the noble and learned Lord, Lord Scarman, was that whenever he spoke one's mind worked another notch or two. It was wonderful to listen to him and to participate in the committee. I think the committee worked extremely well. The point is that if he is not going to be a Member of the House he cannot sit on that committee and the House will be immensely impoverished as a result.
The problem with our constitution is that it can be changed at the whim of two little boys with two little toys. They just bang it through; there are no entrenched constitutional arrangements that can be brought into play. If the noble and learned Lord were to say that before this is done he would give the new Supreme Court a Bill of Rights that is properly entrenched and which can strike down an Act of Parliament it thinks is out of line with what Parliament is doing, then that might have some merit.
The Supreme Court will be housed in a new building. Who will build it? Could it be the Minister in charge of the Dome? He is smiling and nodding. It costs £187,000 to keep the noble and learned Lords in business upstairs. What will the new Supreme Court cost? Millions. It will be in a new building and we do not know where that will be.
The noble and learned Lord, Lord Irvine, great man though he was—that he is—
Next Section
Back to Table of Contents
Lords Hansard Home Page