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The Earl of Onslow: My Lords, noble Lords may laugh because you think he is not here, but he is still here. The noble and learned Lord, Lord Irvine, could be criticised for being too proactive as Lord Chancellor. I suggest that is the fault of the Prime Minister for allowing him to chair those extra Cabinet committees and not confining himself to the duties of Lord Chancellor.
The Government's record on constitutional change is pretty bad. The present Lord Chancellor does not seem to think there is a contrast with what the noble and gallant Lord, Lord Craig, quoted about the policy of the Lord Chancellor's office of only 18 months ago. He does not seem to see that the pledge given by the noble and learned Lord, Lord Irvine, on the hereditary peerage was binding in honour. He says that circumstances have changed. Circumstances changed also in the period between the Treaty of London, which guaranteed Belgium's independence, and 1914, but that did not stop us honouring the treaty.
The Government have abolished double jeopardy for certain offences. The Government want to lower the standard of proof. They want to lock up people without trial. That is not a good record of looking after democratic and libertarian principles. It is an appalling record. I leave aside the oddities of the West Lothian question. If by any chance there were to be a Labour government over the whole of the United Kingdom after the next general election, but a Tory opposition, then Scottish Labour MPs would be imposing their own rules on Tory England. That is not a good effort. The Government boast of their constitutional change, but I think that it has been ill thought out on the back of a tacky cigarette packet—Woodbines Best perhaps.
The noble and learned Lord the Lord Chancellor does not have the right to abolish a 1,000 year-old office. How dare he abolish the office held by Becket, More and Lord Halsbury and that all the Hailshams seem to have held. It is a sad day for the understanding of a liberal democracy, for the rule of law and the high court of Parliament.
12.1 p.m.
Lord Hoffmann: My Lords, on 2 April last year, the then Lord Chancellor gave evidence in another place to the Select Committee on the Lord Chancellor's Department. It was a considered statement of government policy and I have no doubt that, in accordance with the usual practice, it had been cleared with the Prime Minister's office in advance. He was asked about the constitutional position of the Lord Chancellor, and he replied by quoting with approval
what my noble and learned friend Lord Bingham of Cornhill had written on behalf of the Judges' Council when he said:
- "We have no doubt that the Lord Chancellor's dual role has historically proved invaluable in maintaining the independence of the judiciary in England and Wales and we have considerable anxiety that any other arrangement would result in time in the encroachment of executive government into the proper sphere of judicial independence essential in a democratic society".
When he was asked about the principle of the separation of powers, my noble and learned friend Lord Irvine of Lairg said:
- "We are a nation of pragmatists, not theorists and we go quite frankly for what works".
- "The question is whether the present system is a good system".
Less than 10 weeks later, on 12 June, the Prime Minister announced that the office of the Lord Chancellor had been abolished. Someone must have pointed out that he had no power to abolish that office; because the press office at No. 10 Downing Street then issued a clarification saying that it was the Government's intention to abolish the office. Meanwhile, my noble and learned friend Lord Irvine of Lairg was removed and replaced.
It was a remarkable change of policy; made in such haste that, as the first announcement showed, it did not allow time even for private consultation with someone who understood the constitutional position of the Lord Chancellor. And the reason given for the Government's volte face was a sudden realisation that the position of the Lord Chancellor infringed the principle of the separation of powers. Well, that may be, but I doubt whether many juries would believe it. The circumstantial evidence—the secrecy, the haste, the misfired announcement, the public knowledge of personality clashes between my noble and learned friend Lord Irvine of Lairg and other members of the Cabinet—all points to a different explanation. Perhaps my noble and learned friend Lord Hutton ought to be asked to investigate.
One possible answer is that the Prime Minister decided that the then Lord Chancellor had to go, and for some reason his removal had to be dressed in the robes of high constitutional principle. And as the Government were representing that the principle of the separation of powers was the reason for the abolition of the office of Lord Chancellor, it was necessary for the sake of consistency to abolish the judicial functions of your Lordships' House.
It is sad that a great constitutional change should be adopted as a quick fix for personal squabbles in the Cabinet. One of the glories of this country's constitution, unique in the world, has been its continuity. Institutions such as the Lord Chancellor have adapted themselves over centuries to new constitutional roles without having to make a new
start. We have never had a year zero in this country. But that has been achieved not by statutes, and not as is said by the particular personalities of those who held the office, but by the acceptance of constitutional conventions about how the holder of the office ought to behave. It is those conventions, accepted and handed on by successive Lord Chancellors, which have given us an independent judiciary of a quality which is the envy of many other countries.It is no use crying over spilt milk. My noble and learned friend the Lord Chancellor has renounced the powers of his office and the conventions that went with it. He has broken the mechanism which served us so well in the past. Its effectiveness depended on the willingness of people to make it work. Once it is gone, I doubt whether it can be put together again. So my noble and learned friend the Lord Chief Justice and the Judges' Council were doing the best they could to try to ensure that these new and untested proposals for securing the independence of the judiciary are the best that can be devised.
I want, however, to say something about the proposal for a Supreme Court which has got through, so to speak, on the coat-tails of the proposal to abolish the office of Lord Chancellor. There the milk has not yet been spilt and it is open to your Lordships to present proposals to prevent something which is valuable from being lost. I agree with the noble and learned Lord, Lord Nicholls, that there are real advantages to our work being done here. I do not accept the suggestion of my noble friend Lord Lester of Herne Hill that all we want is to belong to an agreeable social club.
As for our contributions to your Lordships, that is not for me to say, though I note what the noble Lord, Lord Elton, and others have been kind enough to mention. But I do not flatter myself that your Lordships could not manage without us; and if we were drawing up a constitution for the first time we would very likely be ordering things differently. But this is the United Kingdom and we are not drawing up a constitution for the first time. And just as there may be no overwhelming arguments for having us here, so, equally, there are no very strong arguments for getting rid of us.
No one suggests that our membership of your Lordships' House compromises our independence. The House of Lords as a judicial body has a high reputation throughout the world. When I discussed the matter recently with an eminent Caribbean judge who had sat here as a member of the Privy Council, he said:
- "You British don't realise what you are throwing away".
The distressing feature about the proposal for the Supreme Court is its abandonment of the constitutional pragmatism on which this country has always prided itself, in favour of a sudden enthusiasm for a fundamentalist interpretation of the principle of the separation of powers. The judicial functions of your Lordships' House are to be rebranded as if they
were a commercial product which an advertising agency thought needed to be repackaged and relaunched somewhere else.And this repackaging comes at some cost. It remains to be seen where the new Supreme Court is to be housed. Some of the sites under consideration have been disclosed to us in confidence, because it is said to be a commercial matter, but I think I am entitled to tell your Lordships that officials from the department of my noble and learned friend the Lord Chancellor have drawn up a system for awarding marks for the various qualities of the buildings under consideration. Under this system, a certain number of marks is awarded for whether the building is of a character suitable to be the Supreme Court of this country; which can bear comparison with the Supreme Courts of other countries. But twice as many marks are awarded for what is called value for money and speedy delivery; that is, getting us out of here as soon as possible. I am bound to say that the Government seem to me to have their priorities seriously wrong. I quite accept that it is not going to be easy to find a suitable building in central London. But what that suggests to me is not that we should compromise on being housed in an unsuitable building but that the whole enterprise is misconceived.
This expensive exercise is being undertaken for purely theoretical reasons at a time when there are courts all over the country, even in the Royal Courts of Justice, in serious need of renovation. The Lord Mayor said the other day that the buildings and facilities of the commercial court were a disgrace. He speaks the truth because I have seen them and they are. This is serious because English commercial law is the jewel in the crown of our common law and its world-wide use in the settlement of commercial disputes in London is of great economic importance. These are serious practical problems. They are surely more deserving of better attention than the imaginary problems which the Government propose to address by the creation of a Supreme Court.
2.41 p.m.
Lord Borrie: My Lords, I am in favour of some of the Government's proposals. These include the appointment of judges by or on the recommendation of an independent Judicial Appointments Commission and ending the right of a Cabinet Minister, namely the Lord Chancellor, to sit as a judge. I do not see the need for—or the desirability of—the abolition of the office of Lord Chancellor and I rather doubt the need to create a Supreme Court severed from this House.
The present system of appointing judges in which the whole process is in the hands of a government Minister has been abused in the now somewhat distant past. It is anomalous and increasingly inappropriate when judges have to adjudicate more and more upon the lawfulness of the actions of the executive. The appointment of judges should be made by or on the recommendation of a well-balanced, independent Judicial Appointments Commission of the kind proposed by the Government. The details of the
composition and procedures have been improved following discussions between my noble and learned friend the Lord Chancellor and the noble and learned Lord the Lord Chief Justice.Unlike the noble and learned Lord, Lord Hoffmann, who has just spoken, I do not believe that the whole thing is over and done with. There is value in retaining the office of Lord Chancellor, headed by a lawyer with a senior position in the Cabinet and continuing the tradition of particular responsibility for upholding the independence of the judiciary and the rule of law in Cabinet and elsewhere. I regret that my noble and learned friend, Lord Falconer of Thoroton, unlike other Lord Chancellors of recent times, has been demoted in the list of Cabinet members which appears regularly in Hansard and elsewhere. I would regret it even more if the Lord Chancellor were replaced by a non-lawyer as is envisaged by the Government.
As many speakers have already said today, the Government's case for a Supreme Court is stronger in theory than in practice. It rests on the theory of the separation of powers. Probably we all accept in this House as a general proposition that judges should not sit as legislators and vice versa. In recent years Lord Chancellors have only rarely sat as judges, depending perhaps on the interest, willingness and personality of the particular holder. But only rarely have they sat, if only because they have enough to do in their other work.
Like, I daresay, many of your Lordships, I was glad when the present Lord Chancellor announced that he, as a Cabinet Minister, would never sit as a judge. But surely there is no need to carry to extremes the theory of separation of powers. It would be very odd indeed if Members of the other place—and some Members of this—were disallowed from acting as part-time judges. Some of them are recorders or deputy High Court judges and the interchange of experience is valuable. I have doubts whether we should exclude current Law Lords and other holders of high judicial office from sitting as legislators in this House.
The Library of your Lordships' House recently produced a useful paper showing how much they have or have not spoken in this House in recent years. We know that only a minority of them do take part in our debates and even then only occasionally. But why go to the length of depriving ourselves of the opportunity of hearing the Lord Chief Justice speaking on a criminal justice Bill, or debates such as today's in which Law Lords are taking an active part? To repeat the example given by the noble Earl, Lord Onslow, why deprive ourselves of having a Law Lord chair the European Union Select Committee's sub-committee on law and institutions?
My noble and learned friend the Lord Chancellor has said that retired Law Lords might be made life Peers. I would have thought that retired Law Lords might be more useful and keener to take part in our deliberations if they had taken some part in our work
before they reached the age of 70 plus. The noble Lord, Lord Neill of Bladen, had this to say last year at the memorial service for Lord Wilberforce:
- "Even when a Law Lord, Lord Wilberforce was not, I think, over-impressed by fashionable arguments about the separation of powers. With his pragmatic approach to problems he saw no harm in a Law Lord initiating a debate—or intervening—on such topics as law reform, higher education, treaty implementation, the protection of the weak—to name but four matters where his interests were heavily involved. Naturally, he would never allow himself to sit judicially in a case where he might conceivably be thought to be parti pris."
As the noble Lord, Lord Lester of Herne Hill, mentioned earlier, there is a difficulty when a Law Lord is contemplating taking part in one of our legislative debates. He cannot be sure that the subject will not be relevant to some later case on which he is asked to sit judicially. Several instances from the 1990s are given in the article in the current issue of Public Law to which the noble Lord referred. Law Lords have spoken on matters relevant to later cases. The Pinochet case and Pepper v Hart were two such cases. In the Fire Brigades Union case on criminal injuries compensation, it was apparently difficult to constitute a Bench to hear the appeal. That was because so many Law Lords had already spoken out legislatively against the proposals of the then Home Secretary which were the subject matter of the litigation.
I doubt whether we need to go to the lengths of throwing out the Law Lords and creating a new and expensive Supreme Court separated from this House in order to deal with this difficulty. In practice, surely it should suffice to rely on the statement made by the senior Law Lord, the noble and learned Lord, Lord Bingham of Cornhill, in June 2000 outlining the limitations under which Law Lords would exercise their present right to speak in the legislative Chamber. When my noble and learned friend the Lord Chancellor made his Statement on the Supreme Court earlier this week, he said in a reply to me that the Government do not argue that that guidance of 2000 is inadequate.
I cannot imagine how the independence of the judiciary, a concept with which we all agree, would be any stronger among members of a new Supreme Court than it now is among members of the judicial committee of this House.
2.50 p.m.
Lord Lloyd of Berwick: My Lords, it is a privilege to follow the noble Lord, Lord Borrie, who seemed to make a very strong case indeed. I agree with almost everything that he said. Like him, I start with the position of the Lord Chancellor. The question that I ask myself is a simple one, and noble Lords will see that I do not put it very high. That question is about whether it is in the public interest that the office of Lord Chancellor should continue to exist. My answer is an unhesitating, "Yes".
In his opening remarks, the noble and learned Lord the Lord Chancellor referred to the evidence of Justice before the Wakeham commission, but he did not refer to the evidence of the Judges Council. According to
its evidence, the judges had no doubt that the dual role, as it called it—others have used the same phrase—of the Lord Chancellor as head of the judiciary and as a member of the Cabinet had proved invaluable in maintaining the independence of the judiciary. One finds those words echoed over and over again. The judges were concerned that any other arrangement would result in a gradual erosion of judicial independence and a gradual encroachment by the executive on what are properly to be considered judicial functions.We thus get to the supremely ironical position that the Government, whose whole case is based on the need to preserve the independence of the judiciary, are by their proposal to abolish the office of Lord Chancellor taking the step most likely to endanger that independence.
However, it is said that that is of no matter, because we can substitute for the Lord Chancellor a statutory duty on the Secretary of State, and on everyone in the Government, to preserve the independence of the judiciary. What does that mean? It is easy to impose a statutory duty—it sounds fine—but it is mere words unless it means something in practice. How will the statutory duty be enforced? Who will bring the proceedings to enforce it? What will be the remedy for breach of it? If ever we were to embark on an uncharted sea, that would be it, yet we are proposing to do so in place of a Lord Chancellor and the functions that he has performed, which we all know so well. I simply cannot accept that a statutory duty is an adequate substitute for a man on the ground—a senior member of the Cabinet, such as the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg—who could speak up for the judges in Cabinet when their independence is threatened or their functions are about to be curtailed.
Let me give an instance of how that can happen; it is actually happening at the moment. We all accept that judicial review lies at the very heart of the rule of law. I have no doubt that it is because of the presence of Lord Chancellors in Cabinet over many years that judicial review is still with us—that we still enjoy its full protection—given that it has been threatened on many occasions by Ministers who would so like to limit it. Clause 11 of the asylum Bill currently before the other House contains a proposal to abolish judicial review. I view that clause with very considerable alarm. It is only the start of what might happen.
How have we come to this pass? As recently as 7 March last year, the Government were saying that the case for reviewing the role of Lord Chancellor had not been made out. They said that his unique position as head of the judiciary and a member of the Cabinet enabled him to mediate between the executive and the judiciary. I entirely agree. So what has changed since? To put it more particularly, what changed between March and June 2003? One thing only changed; namely, the incumbent holding the office.
The truth is that we now have a Lord Chancellor who is nothing if not a politician, and I am sure that the noble and learned Lord will not mind me saying that. Indeed, one might say that he was nothing but a politician. He does not want to be head of the judiciary or our Speaker. He does not want to fulfil all the other roles that the Lord Chancellor has traditionally performed. That leads one to think that if those really are his views—I have no reason to doubt it—might it not have been better had he declined the office when offered it? Might it not have been better had the Prime Minister appointed a Lord Chancellor in a more traditional role, so that proper consideration could be given to the future of the office in a more measured way?
Instead, as we all know, the Government committed themselves to the abolition of the office overnight, and the noble and learned Lord and his staff moved out the next morning, without any consultation at all. That is not the way to carry out fundamental constitutional changes. As the excellent report of the Constitutional Affairs Committee in the other place asked, what on earth is the hurry? It cannot simply be to satisfy the needs of the present incumbent of the office.
I will mention one other way in which it seems that the Lord Chancellor has done us nothing but good. No one would forget the way in which the noble and learned Lord, Lord Mackay of Clashfern, piloted through the Children Act 1989, or the way in which the noble and learned Lord, Lord Irvine of Lairg, piloted through the Human Rights Act 1998. It is very important to perform such functions in this House. Who will perform them if the office of Lord Chancellor is abolished? They will be lost irrevocably to this House if we set about such a reform in that way. I accept, as we all do, that the Lord Chancellor should not now sit on appeals, although it has never done any harm of which I am aware. If that is the real problem, it would be easily solved by his simply saying that he will not sit in future.
I had intended to speak on the subject of the proposed new Supreme Court, but the points have been put so admirably well and with such precision by my noble and learned friend Lord Nicholls that I will not follow him down that line; I agree with everything he said. However, I will mention one point. The noble and learned Lord the Lord Chancellor referred to the evidence of the noble and learned Lord, Lord Bingham, to the Constitutional Affairs Committee of the House of Commons.
The line taken by the noble and learned Lord has always been that the Law Lords are judges and not legislators. Where does that argument carry him? Exactly the same argument could be made about the many distinguished doctors in the House. They are doctors not legislators. Who will say that they do not make a valuable contribution to the functions of the House? Why should only Law Lords be excluded from membership of the House simply on the ground that they are judges? That point was made by the noble and learned Lord, Lord Cullen, in his excellent maiden speech. A case has not been made and I hope that the legislation will never be brought forward.
3 p.m.
Lord Hobhouse of Woodborough: My Lords, people have spoken elegantly and eloquently about all of the difficulties that exist in the Government's present proposals. I had proposed to address your Lordships on the detailed document, which starts a long way down the line and accepts a fait accompli up to that point. That fait accompli is receding further into the distance. I shall still make a few short points and my most useful contribution will be brevity.
First, there is confusion about our constitution. It slides from reference to the Government as incorporating everything, to referring to the judiciary as an arm of government, with another arm of government being the executive and the third being the legislature. The executive arm has no priority in matters at all. It is there to perform executive functions and nothing more—just as with the other arms. A striking point about the paper is that it is founded on the independence of the judiciary. Yet, like my noble and gallant friend Lord Craig, I believe that the paper is redolent with statements about how the Government—the executive—will keep their hand in the pie; not even a finger, a whole hand.
If the Government really believe in independence they should do the job properly. They should cut themselves out of the loop altogether and eliminate from their proposals all parts played by the executive, except for one or two vital matters. We have heard analogies regarding the delivery of services and we could easily move from that to selling cans of beans. The role of the executive is to provide a law courts system within which the judges can operate and properly resource everything that is needed. The Government are already lamentably failing in that task and that is clear from the responses to the consultation paper. We have courts where there are still leaking roofs with buckets to catch the water where judges are sitting. The state of the law courts themselves is regrettable. A fine historical building is being allowed to fall into a state of disrepair and become thoroughly dilapidated, as anyone who goes there may see.
The executive should first put its own house in order before it starts trying to apply additional recourses for creating an ivory tower or making other changes to the system. Its promise to resource those areas properly is just not credible, particularly when everything is subject to ministerial spending limits. The delivery of the service to the public, the legal aid scheme and many other similar schemes have been under-resourced and effectively abolished. That is where attention should be directed.
I shall turn from the issue of independence to the question of accountability. If the executive is cut out of the loop, as it should be, then there is no question of accountability, except for the provision of the means—to which I have just referred. The idea of a political Minister in the House of Commons being accountable for the appointment of judges is not acceptable and should have no place in our constitution. The
proposed system is seriously flawed and must be re-thought from the very start—as has become apparent from today's debate.I shall make two points by way of encouragement. I am pleased that the detailed paper recognises that there is a raft of different layers of appointments that have to be considered by the appointments commission. That is a definite advantage, with different criteria applying at the bottom and top ends. My second point arises from what the noble and learned Lord the Lord Chief Justice said in the House on 26 January. He said:
- "The sole criterion for making appointments will be merit, and it will be an important part of the commission's role to work out ways of increasing the diversity of those who apply for judicial appointments so that there will be a wider range of applicants from which to choose".—[Official Report, 26/1/04; col. 23.]
I will leave the matter there. There have been excellent speeches, with virtually all of which I thoroughly agree. I hope that the Government will think again.
3.8 p.m.
Lord Norton of Louth: My Lords, I take as my starting point the response of the noble and learned Lord the Lord Chancellor to the question posed to him on Monday by the right reverend Prelate the Bishop of Worcester regarding how justice may be delivered. The noble and learned Lord said:
- "we will look at the whole of our institutions and formulate the best way forward".
- "I suggest, with diffidence, that that is the way in which we have looked at the matter".—[Official Report, 9/2/04, col.937.]
The much criticised way in which the proposals for change to our judicial system were announced was not simply a problem of presentation, as the Prime Minister appeared to imply in his appearance before the Liaison Committee. The announcement reflected the Government's fundamental failure to grasp the nature of our constitutional arrangements and to discuss change within the context of a clear view of the constitution that it wishes to craft for the United Kingdom.
The Government have implemented significant constitutional changes on a scale that does not simply affect particular parts of the constitution but has changed the basic contours of our constitution. However, the changes have been pursued as disparate
and discrete changes, with no consideration of how they fit together and relate to an intellectually coherent view of the constitution. We are moving away from the Westminster model of government. That much is clear. But what are we working towards? The Government appear not to know.Perhaps the noble and learned Lord the Lord Chancellor can tell us how these changes fit into a coherent "whole view" approach to constitutional change. What coherent approach to constitutional change provides the basis for the Government's raft of changes, including the proposals before us today?
I turn to the specific proposals, announced precipitately and without adequate consultation on 12 June last year. My starting point, as was that of many noble Lords, is the benefit derived from the existing arrangements. As I argued in my evidence to the Constitutional Affairs Committee in the other place, having the Law Lords within the House of Lords is beneficial to the legislative and judicial branches. It enables each to have a greater appreciation of the role of the other and to do so without affecting the independence and integrity of our highest court of appeal. That appreciation helps to protect, not undermine, the House of Lords in its judicial capacity.
There is a greater awareness on the part of your Lordships of the role of the Law Lords and that, I think, provides a valuable buffer between the courts and the Executive. Conversely, the Law Lords do not have to be active participants in debates in order to have an awareness of parliamentary concerns and, indeed, to utilise membership of your Lordships' House as a source of information—a point put most cogently by the noble and learned Lord, Lord Hope of Craighead, in his evidence to the Constitutional Affairs Committee and reiterated today by the noble and learned Lord, Lord Nicholls of Birkenhead, in a powerful speech.
Creating a separate Supreme Court may have the consequence of isolating the judiciary. Far from protecting the highest court of appeal, I fear that it may make it more vulnerable to attacks from the Executive and from Parliament. Given the clashes that have occurred in recent years, I am not sure we should be encouraging a change that may exacerbate the situation.
The detachment of the Supreme Court from Parliament will become more pronounced with the appointment of justices who have not served in Parliament. The court will move away from Parliament and towards the Inns of Court. The noble and learned Lord, Lord Hope of Craighead, made that point rather tellingly when he appeared before the Constitutional Affairs Committee. He was referring to the consequences of a physical move to Somerset House, but the move could also be seen as taking place in a political sense. I fear that such detachment from Parliament will not serve to protect the position of the courts but, rather, will leave them isolated when they make decisions that prove controversial and unpopular.
What, then, of the arguments for change? The case for change has all the qualities of a lemon meringue pie: superficially attractive but, when you bite it, there is nothing there. We are told by some Law Lords that the functional separation of judiciary and legislature is a cardinal feature of a modern, liberal, democratic state governed by the rule of law. Either we are already a liberal democratic state governed by the rule of law or we are not. The statement by some Law Lords implies that we are not. I do not accept that. Rather, I believe there is a case for arguing that existing arrangements enhance rather than undermine our liberal democracy.
We are told that change is necessary to enhance the independence of the courts and in order that the courts are seen to be independent. Since no one is arguing that the highest court of appeal is not a body of integrity and independence, what is there that needs enhancing? Physical separation will not enhance the independence of the Law Lords in their judicial deliberations. That independence exists already and is not in doubt. Physical separation will have no bearing on its exercise.
The noble Lord, Lord Filkin, has argued that the general public do not perceive that the Law Lords act differently from the other Lords. Perception, he argues, matters as much as reality. As I pointed out in my evidence to the Constitutional Affairs Committee, even if there is a misperception on the part of the public, that does not necessarily affect the delivery of a sound and effective system of justice or lead citizens to believe that there is a problem in such delivery. The noble Lord, Lord Filkin, appears to equate confusion as to the role of the House of Lords with doubt as to impartiality. The fact that people may not grasp the distinction between the House of Lords in its legislative and judicial capacities does not necessarily raise a doubt as to the capacity, or the perceived capacity, of the Law Lords to remain unbiased.
Also, the Government's claims as to public perceptions rest on presumptions: we are offered the Government's perception of perception. No hard data are presented for their claims as to the public confusion and certainly none to sustain the claim of any perception of bias. Given the weight resting on the Government's claims, it is difficult to see how the Government can proceed with these proposals without putting some evidence for their assertion into the public domain.
The noble Lord, Lord Filkin, wrote to me to say:
- "If an institution is not perceived to be independent, impartial and fair, then trust in that institution will falter no matter what internal procedures are put in place to ensure that it is impartial and independent".
The Government and the noble Lord, Lord Lester, also argue that the proposals are necessary because of Article 6 of the European Convention. The Constitutional Affairs Committee in the other place recorded that the evidence it received from judges suggested that it was highly unlikely that any challenge to a decision made by the House of Lords under Article 6 would succeed.
In short, the case for change is simply not made. It rests on a series of unsubstantiated assertions. The Government's consultation paper essentially takes the case for change as given and concentrates on the detail. The announcement of the Government's intentions was rushed and inadequate. No thorough debate, and certainly no empirical evidence, has been presented to justify the proposals.
Given that, I share the view of my noble friend Lord Kingsland that the recommendations made by the Constitutional Affairs Committee in the Commons have much to commend them. As we have heard, the committee concludes that the changes have been bundled together and dealt with over a very short timescale as a single reform. This, it says, is unwieldy and, in the case of some of the proposals, precipitate. The committee's report goes on:
- "The consultation process has been too short and the legislative timetable is too restrictive to deal with changes which are so far reaching in their effects. The reason for haste seems to be primarily political.
- The Committee recommends that the Government proceed with the Bill as draft legislation to enable proper scrutiny of these fundamental changes".
I believe that the Government must justify these proposals other than in terms of unsubstantiated generalisations and submit them to the sustained scrutiny of both Houses. If the Government proceed with their proposals, then a Joint Committee to consider the legislation in draft form is, I think, essential. Then, and only then, can some of the concerns raised today by noble and learned Lords and others be properly addressed.
3.18 p.m.
Lord Rees-Mogg: My Lords, this is a very important debate with an exceptionally distinguished list of speakers. I shall focus on the issue of the Supreme Court and, in particular, on the historic example of the Supreme Court of the United States. I entirely agree that the British rule is for Parliament to make the laws and not the courts. In the United States, the Supreme Court has acquired substantial legislative power.
No one in 1787 contemplated that, 200 years later or more, the United States Supreme Court would be choosing the President by a party majority of five to four rather than refer the Florida vote to a recount. There was, of course, no way that Congress could overrule that strange decision.
The noble and learned Lord the Lord Chancellor himself does not want a US-style Supreme Court, as he told us in a reply following Monday's Statement:
- "As to the American model, we are most strenuously not going down that route. The final court of appeal, which will sit separately from the legislature, will not be a supreme court of appeal such as the one in the United States of America, which has the power to strike down legislation because there is a written constitution that is superior to it".—[Official Report, 9/2/04; cols. 937-38.]
That presupposes that Britain does not have any written constitution. Yet we adopted the Human Rights Act in 1998, which gives our courts quite wide powers to protect:
- "rights and freedoms guaranteed under the European Convention on Human Rights".
Some of the most contentious rulings of the US Supreme Court have been derived not from the original constitution but from the Bill of Rights added in the first 10 amendments to the constitution. From those rights, the court has derived many of the doctrines which override federal legislation by Congress.
The US Bill of Rights is closely analogous to the European Convention on Human Rights, which we have incorporated into our law, or indeed to the European Charter of Rights, which we may yet incorporate. If the US Bill of Rights allows a Supreme Court to overrule the legislature, then European rights may come to do so as well.
It is in the nature of courts to extend their jurisdiction over time. In the history of the US Supreme Court, there has been a steady progress of extension—some of it disastrous, much of it reflecting the ideology of the progressive or, more often, conservative thought of the time. If we have a separate Supreme Court, already armed with the Human Rights Act 1998, we can expect to see the same process repeated here. It may take time, but it will happen. The Supreme Court will have the last word in determining its own powers.
The US Supreme Court first claimed the right to judicial review of legislation in Marbury v Madison (1803) and, with it, the right to declare a validly passed law contrary to the constitution. The Human Rights Act 1998 gives British courts, including the House of Lords, the right to make a declaration of the incompatibility of primary law with the Human Rights Convention.
The worst decision the Supreme Court ever made was the Dred Scott case in 1857, which established the property rights of slave owners over their slaves. This helped to make the American Civil War inevitable. The European Convention forbids slavery, but Article 1 of the First Protocol specifically protects property. Each clause in the US Bill of Rights proved to be an acorn from which a judicial oak of derived law was to grow.
In the case of Schechter in 1935, known as "the Sick Chicken Case", and similar cases, a Supreme Court, mainly nominated by the Republicans, struck down the laws which a Democratic Congress passed to fight the Great Depression. This occurred in the presidency of Franklin Roosevelt, and led to the President's unwise plan to pack the Supreme Court with friendly judges.
In more recent times, European countries have all dealt with the problem of abortion law by legislation in their elected Parliaments. In Roe v Wade (1973), the US Supreme Court took the issue away from Congress and from the state legislatures, and decided that a right to abortion was a matter of constitutional law. Such a ruling would have seemed inconceivable to the framers of the constitution in 1787. That has made it impossible for the individual states to pass their own laws, which might have been much like ours. Social issues are better decided by democratic legislatures than by judicial decree.
All of these problems could confront us. Even election issues, as in the election of President Bush, can go to the Supreme Court, and they could go to a Supreme Court in Britain. Article 3 of the First Protocol of the European Convention, which is part of British law states,
- "The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature".
That is an admirable doctrine, but a judicial review might some day be sought to determine whether our elections were "free"; whether the intervals were "reasonable"; whether the ballot was truly "secret"; whether the conditions ensured "the free expression of opinion". On these questions the future choice of a British government might depend.
We have at present a "joined-up" constitution in which there is no complete separation of powers: not from the legislature to the executive; not from the legislature to the judiciary. In two centuries in which the Supreme Court of the United States has been in repeated conflict with the legislature, and has sometimes been disastrously mistaken, our judges and Parliament have been able to work together in harmony. We would do better to stay with a system that has preserved the ultimate supremacy of Parliament and of democracy. Judges are not legislators, but in the United States an independent Supreme Court has politicised their function.
3.26 p.m.
Lord Morris of Aberavon: My Lords, I have been a proponent of the transfer of functions of the Lord Chancellor to another Minister for many years.
The 1992 Labour manifesto, when I was leading for the Opposition on legal affairs in the Commons, promised:
- "To appoint from the House of Commons a Minister for legal administration, who will initially be part of the Lord Chancellor's Department. We will go on to create a Department of Legal Administration headed by a Minister in the Commons".
This step-by-step approach was a recognition of what I was told by the then Permanent Secretary of the Lord Chancellor's Department, who came to see me with the then Prime Minister's permission, that it would take up to two years to divest the Lord Chancellor of his responsibilities.
Three hundred and forty-seven Acts of Parliament refer to the Lord Chancellor, and even that does not wholly illustrate his constitutional position: in particular, that he is a constitutional link between Her Majesty the Queen and the judiciary. Where that knowledge was lost, by the famous reshuffle of 2003, I do not know; but we all know now that a press statement has no legislative effect.
While I believe in the transfer of functions, I do not necessarily believe in the abolition of the title. My belief regarding the transfer of functions is based on the fact that, until recent years, the Lord Chancellor's Department was a fairly small-spending department, with comparatively few financial responsibilities. I understand that it will shortly be staffed by more than 12,000 civil servants and have a spend of £3 billion annually, by reason of the accumulation of its powers over the years.
I believe that it is constitutionally inappropriate and politically unacceptable for it to be headed by a Minister in the Lords, other than possibly for a short time. This is a matter of principle, not a question of personalities, and applied equally when the overseas development office was headed by my noble friend Lady Amos.
Since the last half of the 17th century, if not earlier, it became established that the granting of supply and its appropriation was a matter for the Commons. It is one of our hard-won liberties as a democracy. It follows that the head of a significant spending department should be accountable to the House of Commons.
I hope that mentioning these matters will be of help in our deliberations on the Supreme Court and the role of the Secretary of State specifically, and the Government as a whole, to defend and uphold the continuing independence of the judiciary. We should be conscious of the likelihood that a future Secretary of State may come from the House of Commons. The safeguards of the procedures of the appointments commission and the role and endorsement of the Lord Chief Justice are therefore vital. We shall have to examine them very closely.
I trust that the appointment of our judges and their promotion will continue to be solely on merit. Merit must be paramount. In no way should there be social engineering in the appointment of our judges. That does not detract from a recognition of and a catering for career gaps for those who are eventually considered. I draw some comfort from the fact that the same principles will apply to the Supreme Court, with judges appointed on merit alone from a pool of properly qualified candidates.
My noble and learned friend the Lord Chancellor states that the Secretary of State's discretion in appointments should be severely circumscribed, and
that it is not right that a political appointee should be able to cut across the system who he or she thinks right. I agree entirely. His discretion is to be limited to asking for a different name to be submitted from the appointments commission's own alternatives and he is not to suggest a name himself. That is my understanding of the statement made by the Lord Chief Justice too. I trust that it will be a very rare event indeed for a name to be refused by the appointments commission.In the interests of accountability, it is proposed that the Secretary of State will be a party to a number of checks or locks on the decision making involving the judiciary, either by way of consultation or agreement. That was referred to briefly by the noble and gallant Lord, Lord Craig. I believe that we should examine carefully each and every one of those locks or checks to see how far they can be justified and how far they might be seen to militate against the independence of the judiciary.
The Lord Chief Justice acquires a new title, the President of the Courts of England and Wales, and other senior judges acquire new titles too. When I was Her Majesty's Attorney-General I occasionally lectured students on the antiquity of the Law Officers. In their modern form, they date from the 16th century. The Lord Chancellor's office is more than 800 years old. Now that the title of the Lord Chancellor is to be shorn of its political implications, can it not be given to the Lord Chief Justice, thus maintaining the constitutional link between Her Majesty the Queen and the judiciary or, despite the arguments that I have read to the contrary, even to the senior Law Lord rather than the new title of President of the Courts?
I believe that it is right for the Supreme Court to be divorced from this legislative Chamber. The interpretation of human rights legislation and the self-denying ordinance of the Law Lords has already, in practice, resulted in a great deal of that. I say in passing, as one of the architects of the devolution Acts when I was Attorney-General, I am content for the transfer of judicial responsibility to go from the judicial committee to the Supreme Court, as proposed.
I turn to one other matter that has not been raised, but which was part of the speeches of the Lord Chancellor and the Lord Chief Justice—the magistrates who will eventually come within the purview of the appointments commission and, initially, the Lord Chief Justice. I declare an interest. By virtue of being a Lord Lieutenant, I am chairman of two and a member of a third of the Lord Chancellor's county advisory committees for the appointment of magistrates. I very much welcome the recent reply of the Lord Chancellor to my question regarding their importance as the best judges of local needs. That has been deeply appreciated.
Lastly, there is the transfer of magistrates from other parts of the country to more attractive areas, such as Cornwall, north and west Wales and, I am told, some of the border counties of England. If there is a local shortage of magistrates, that creates no problem. I have no hesitation in mentioning this point, as 90 per
cent of criminal work is carried out by magistrates. However, if there is none, and the number of incomers becomes significant, there is a danger of an imbalance between the claims of local justice and the judicial experience of fresh arrivals. Frequently, transfer applicants are retired and come from a social background that enables them to afford to move to our delightful areas, but they certainly do not help an advisory committee struggling to achieve diversity in age and social background. I believe that magistrates should have a deep knowledge of local conditions, income and employment structure and local culture. I hope that the Lord Chancellor will reaffirm that it is for the local advisory committees to do what is best for their own communities and that there is no automatic right or expectation of transfer.3.36 p.m.
Lord Phillips of Sudbury: My Lords, I speak as one of the only two solicitors of the Supreme Court, as we are formally known, in this debate, and I am happy to do so. Although I shall disagree with a large part of what my noble friends have said and are going to say, I certainly agree with them on one particular matter. That matter concerns the arrangements proposed whereby judges in the Supreme Court are to be proposed by a judicial commission, which will put two to five names to a Secretary of State who may not be a lawyer, but a relatively junior politician who has little knowledge of the system. That seems to me to be a recipe not for depoliticisation of the process, but the reverse.
In relation to the basic reforms that are predicated in the Government's proposals, the onus is clearly on them to establish their case beyond reasonable doubt. I say that on common-sense grounds and because, where institutions, arrangements and offices have served so effectively for so many centuries and are so deeply etched into the public consciousness, as far as they ever can be, it is true folly to destroy the reputation, familiarity and public ownership that attaches to them. The assumption that those increasingly rare attributes will automatically accrue to the new order ignores the fact that the strength of bottom-up, organic evolution is created very slowly as compared with the fragility of top-down, statutory imposition.
At a time of undoubted decline in public allegiance to our democratic institutions and of decline of trust in public life and its practitioners, to change settled institutions, arrangements and offices for the sake of it—as most perceive it—is a recipe for the further dilution of civic cohesion. The very fact that our largely unwritten, unseparated constitutional arrangements, theoretically so flawed, have stood the stresses of time almost as well as any, should give the constitutional purists pause. But, deracinated and over-intellectual as some of them are, they have forgotten that the perceptions that count in this debate are not those of academics, mandarins or even, dare I say, senior judges, but those of the general public who set store by the status quo because they have some
familiarity with and rough confidence in the role and person of the Lord Chancellor of the day, and high confidence in the independence and probity of the judiciary.Anecdotally, I have not yet come across a single substantial critique or criticism of the status quo, but I have encountered many deeply perturbed wonderings as to where it will lead. After all, the Government's attempt to justify this upheaval on the grounds of,
- "enhancing the credibility and effectiveness of public institutions and increasing trust and accountability",
- "to enhance the vital independence of the judiciary"—
- "the present position is no longer sustainable".—[Official Report, 9/2/04; col. 926.]
As one who has tried over nearly 30 years of continuous broadcasting to be an interlocutor between the world of the law and the public at large—I was doing so again at lunch time—I do not think that there is any evidence of these assumptions. Even if it were thought pointless to consult ordinary citizens on this— and that would seem to be the case—the Government might have specifically consulted, for example, solicitors, lay justices, county court judges, tribunal chairs and other lowly beasts of burden of the justice system—those who daily deal with the general public. I challenge the Government to do that even now. I would bet a hundred pounds to a penny that they will get the thumbs down for the bulk of their package, let alone the creation of the new Supreme Court Valhalla, shining bright and expensive, free of the taint but also of the dignity and tradition of this place. If we in this House wish to retain the court here, we must provide more space and more facilities for that to be practicable.
I turn now to the evidence for the Government's case in support of the upheaval. When the noble and learned Lord, Lord Falconer, gave evidence to the House of Commons Select Committee on Constitutional Affairs and was asked about the key question regarding where the separation of powers was causing damage, he replied:
- "I think it is more than just perception".
Perhaps I may quote the second anecdote which is even feebler. The noble and learned Lord, Lord Falconer, said:
- "a distinguished advocate refers to addressing the House of Lords Judicial Committee and she says quite legitimately that they excluded some Pepper v Hart material which was slightly odd because one of the Law Lords sitting on the Panel had actually been present at the debate at the time the material had been given, so he had to forget what he had heard".
- "You can see signs of strain already".
Finally, I wish to refer to trust and impartiality because those are key. Sometimes, I believe that the desire to avoid any hint of contamination, partiality, conflict of interest, or lack of separation of powers leads to arrangements which undermine the very culture of trust and the context within which it is upheld rather than subverted: within which trust is strengthened by contact and intermingling. If the arguments advanced are to be taken seriously, we should close down the Inns of Courts because nothing can be more scandalous than judges dining and wining and otherwise being among the advocates who will come before them in the following weeks.
The creation and preservation of public trust in judicial independence is a mysterious process which has a strange chemistry. If it is overprotected it can bring about the very danger it is designed to prevent. If it overregulated it can undermine the individual conscience and collective morale which are pre-conditions of its survival. In effect, in our culture no trust begets no trust.
Where, as is the case, we have evolved by long trial and error a system which preserves judicial independence and integrity, which is admired from afar, we should interfere with it only in response to the most compelling evidence of need for reform; and that is spectacularly lacking.
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