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Lord Woolf: My Lords, I was especially delighted to hear the important speech by the noble and learned Lord, Lord Cullen of Whitekirk. I share his
hope—I am not entirely disinterested in doing so—that this will not be a sole performance by that noble and learned Lord. Unfortunately, for personal reasons, I had to be absent for part of the debate. But I can assure your Lordships that I shall take care to read carefully the speeches for which I was not present.A package of constitutional reforms was suddenly announced on 12 June. It is fortunate that the Constitutional Affairs Committee published its timely report so that we can take into account its thoughtful recommendations in this debate. The judiciary is most grateful for the fact that that Joint Committee not only was prepared to hear from members of the judiciary, but also took into account what was said. Perhaps that is an indication that a Joint Committee of both Houses, suggested by some of your Lordships, might have some merit.
As we are debating the reforms collectively, it is important to recognise that they fall into distinct parts. The issues in relation to them are not the same. I say that with particular reference to the suggestions made by the Constitutional Affairs Committee, echoed by many of your Lordships, that perhaps we should have a draft Bill so that the matter can be fully considered within Parliament. Certainly I share the view that as full consideration as possible is desirable, but I point out that I have concerns about the present transitional position.
Of course it would have been better if the process had been handled differently. However, I emphasise on behalf of the judiciary that its position is not the same in relation to different parts of the package. As we have sought to make clear in the past, and as we have heard today, the question of whether we have a Supreme Court is quite independent of any other reforms. It involves primarily, but certainly not entirely, a question of accommodation. That was part of the theme of my noble and learned friend Lord Nicholls of Birkenhead. It is the issue on which my noble and learned colleagues are divided. It differs from the other reforms in that it will not be possible for it to be implemented, even if adopted, in the immediate future.
Quite frankly, I must confess that I do not regard the question of a new building for the Supreme Court as a burning issue. After all, the building or site for the court will be difficult to find and, when found, it will be an expensive and complex activity to make it fit for that court. On the other hand, the concordat of reforms submitted on 26 January to this House is of immense importance. Whether we have a Supreme Court or not does not really affect the independence of the judiciary. Unlike the reforms that would follow from the abolition of the office of Lord Chancellor, which affect the independence of the judiciary, there is no need for special protection in relation to the Supreme Court.
In terms of the transitional position, the judiciary finds itself extremely uncomfortable at present, for reasons that I shall try to explain. On 12 June, not only was a package of reforms announced, but a constitutional change actually took place. The change
resulted in our having a Secretary of State and a Lord Chancellor instead of a Lord Chancellor. The combination of the office of Secretary of State with that of Lord Chancellor is fundamentally inconsistent. In addition, by Order in Council, the responsibility for the Court Service was transferred from the Lord Chancellor to the Secretary of State.The noble and learned Lord, Lord Falconer of Thoroton, is now in charge of the Court Service, but not as a Lord Chancellor. He is responsible for supporting the administration of justice as a Secretary of State. I venture to suggest that, had it been proposed that the Home Secretary take over the responsibility for the running of the Court Service, this House would not have greeted that proposal with enthusiasm.
Some of your Lordships are clearly in favour of retaining the office of Lord Chancellor, but some are equally in favour of its abolition. I suggest that no one will be in favour of retaining a Secretary of State and a Lord Chancellor as a single individual. I hope that I will be forgiven for stating clearly that my judicial colleagues and I regard the present position as being a constitutional aberration. The office of Lord Chancellor was unique. The noble Baroness, Lady Kennedy of The Shaws, eloquently explained why that was the case; and how the office itself affected the behaviour of the person who was honoured by holding that office for the time being. The Lord Chancellor regarded himself as different from all other Ministers of the Crown. A Secretary of State cannot, therefore, be a Lord Chancellor and a Lord Chancellor cannot be a Secretary of State.
I happily acknowledge that the noble Lord, Lord Falconer, has striven to fulfil, and has fulfilled, his responsibilities as Lord Chancellor in the same way and with the same distinction as his recent noble and learned predecessors. However, at the same time the judiciary cannot help but note that he has also in relation to his department and his activities consciously acted as a Secretary of State—and there his approach has inevitably differed from that traditionally adopted by a Lord Chancellor.
It may be possible to turn the clock back and sever the Lord Chancellor from his conjoined twin, the Secretary of State, for the future. I would not like to venture an opinion on that subject. However, I would like to make clear that, whether it is possible or not, the judiciary would like to see enshrined in statute as soon as possible the protections provided for in the concordat. That may be complex, as has justifiably been said. But the judiciary now feels that detailed protection is required. That has to be set out clearly and in detail so that the judiciary's position can be seen, not only by it, but the public for whom it has the responsibility of administering justice.
As far as the judiciary is concerned the need for those protections should not be controversial. For example, we need to have in place an appointments commission. Appointments are needed. The comments of the noble Baroness, Lady Howe of Idlicote, regarding the fact that the Commission for Judicial Appointments has been a catalyst were
absolutely true. Having appointments scrutinised in the manner of the commissioner and his fellow commissioners has changed the whole process of appointments. It has also made an interim appointments system difficult to design. So it is now important to have a good appointments commission in place as soon as possible. The noble and learned Lord, Lord Irvine of Lairg, was already investigating the type of appointments commission that would be appropriate, thus demonstrating that it is quite independent of the question of whether one has an appointments commission and a Lord Chancellor or an appointments commission and a Secretary of State—it does not mean that one is dependent upon the other.Finally, I turn to the question of resources. I make it clear that it worries the judiciary immensely that, so far as we know, not one penny of new money is available for these reforms. The budget of the department is already stretched and, without new money, the reforms will detract from the administration of justice generally. If the Government are proposing these significant changes, I suggest that it is their responsibility to make clear, first, that new money will be available and, secondly, that there is no question of litigants generally having to bear the costs of the new Supreme Court. They may have to do so unless that is made clear because, very unwisely, the Treasury is committed to full cost recovery from court fees. That being so, the money for running the new Supreme Court could be intended to come out of such fees at the expense of litigants generally.
4.56 p.m.
Lord Millett: My Lords, as a recently retired Law Lord only just coming to terms with his new status as an old age pensioner, I find myself in an unenviable position, speaking between a serving Lord Chief Justice and a former Lord Chancellor. However, I am driven to speak because I have long advocated the creation of a Supreme Court. It is precisely because I am in favour of such a court that I am dismayed by the Government's proposals and appalled at the proposal to abolish the office of the Lord Chancellor.
There is, to my mind, one ground and one ground only that could justify the creation of a Supreme Court and the abandonment of a court—the Appellate Committee of this House—which has not only served this country well but has an enviable reputation throughout the world. It has a reputation, I like to think, not only for intellectual rigour and ability but also for integrity, impartiality and, above all, complete independence from the executive branch of government.
My reason for favouring the creation of a new court is entirely practical and pragmatic. The fact is that this House can no longer provide the accommodation, resources and facilities which a properly serviced Supreme Court requires—or, if it can, it is not minded to do so. There are 12 Law Lords and, at present, they occupy 11 rooms between them. We have been able to get by only because my noble and learned friend Lord Saville of Newdigate has been otherwise occupied for
the past five-and-a-half years, but even his secondary job is likely to come to an end at some point. There is no room at all for retired Law Lords when they continue to sit.There are four judicial assistants for the 12 Law Lords and no room for any more. In the United States, each member of the Supreme Court has four law clerks to himself, and a member of the High Court of Australia has three. The maximum number of judicial assistants which a member of the Appellate Committee of this House can have is one-third each. We are probably the worst supported Supreme Court of any major jurisdiction in the world and we act throughout on a shoestring. The time is rapidly approaching when this simply will not do.
Therefore, there are certainly compelling grounds for a physical move. However, as my noble and learned friend Lord Nicholls of Birkenhead observed, there is much which may be lost. A great brand name will go unless considerable steps, which are not envisaged, are taken to preserve it. Thus, my support for the proposal to create a new Supreme Court is heavily conditional. I would support it if, and only if, accommodation suitable for the Supreme Court of a major jurisdiction were found in a proper location. If it is no longer to be part of this House, it need not, and should not, be in Westminster but should be in the complex which surrounds the Royal Courts of Justice and the Inns of Court. In addition, if the new court were not properly staffed, properly resourced and properly budgeted with new money, and plenty of it, it would be detrimental to the present system to make the move. To my mind, all this should be in place before the legislation is enacted, or at least before it is brought into force. The present signs are not at all encouraging.
The abolition of the office of the Lord Chancellor is a very different matter. There are indeed arguments—powerful arguments perhaps—advanced, for example, by my noble and learned friend Lord Morris of Aberavon, for transferring some of the spending responsibilities of the Lord Chancellor's Department to an ordinary spending department, under an ordinary Minister of the Crown. However, the Lord Chancellor and his office are very much more than merely the head of a spending department. The Lord Chancellor is the living embodiment of the rule of law itself and the independence of the judiciary. It is his main function to protect those in Cabinet.
A constitutional change of this magnitude, which gets rid of that office and which will be irreversible, as my noble and learned friend the Lord Chancellor himself said, must be designed to stand for centuries and must not be advanced on grounds of mere abstract legal theory. Abolishing the office of the Lord Chancellor meets neither of those criteria. It is advanced on the theoretical ground that the present arrangements infringe the separation of powers—which is just about as abstract a legal theory as ever there was. It has certainly never been a pillar of our constitution and, as many of my noble friends have observed, our constitution is one which not only permits but actually requires every Minister of the Crown—that is to say, a senior member of the
executive branch of government—to be a member of the legislature. A country which really believed in the separation of powers, like the United States, would not tolerate that for a moment.I do ask myself whether we are likely to see a sequel in legislation which will revert to the historical position in this country, under which any Member of Parliament sitting in the House of Commons who accepted an office of profit under the Crown would automatically resign his seat and submit himself for re-election by the electorate.
We must surely distinguish between the separation of powers, which is a theoretical doctrine not embraced by this country, and the independence of the judiciary, which is anything but a theoretical construct. It is part of the rule of law itself and fundamental to a democratic and modern country under the rule of law.
Does anyone seriously believe that the creation of a new Supreme Court, modelled on that of the United States, will make the judiciary more independent of the executive? Does anyone seriously believe that transferring the ultimate responsibility for appointing judges from the Lord Chancellor to a Secretary of State will entrench the independence of the judiciary?
The Secretary of State in future, whatever he may be at the moment, is likely to be a middle-ranking, ambitious, career politician, with hopes of attaining yet higher office, dependent on the patronage of the Prime Minister and certainly subject to his direction. Moreover, he can be removed easily and at a moment's notice, without causing the kind of outrage which greeted the announcement last June.
The Lord Chancellor, by contrast, is a man bred to the law, holding an office which has existed for centuries, and which in itself tends to model his own conduct. He fills one of the great offices of state. He has reached the highest office any man of ambition could reach. There is nowhere else for him to go. Even historically, when he held not the greatest office of state but only the second office of state, the only place he could go was to become Archbishop of Canterbury.
His function in Cabinet is not to advise on the law. That is the function of the Attorney-General. His function is to represent the rule of law and to represent the judiciary. In performing his vital function, fundamental to the rule of law, he needs to be a member of the Cabinet. His brooding presence at the Cabinet table ensures the independence of the judges. He is the only person at that table who can say to a Minister, "You cannot do that; if you do you will cause an almighty row with the judges". When he makes such a point, he does not do so as a Cabinet Minister, but as head of the judiciary who happens to be sitting at the Cabinet table; and not exercising ministerial powers but representing the judges.
The same is true when the Lord Chancellor exercises his power of recommending the appointment of Queen's Counsel and of new judges. He is answerable to Parliament for policy; he is not answerable for individual appointments. Time and again, I have
heard Ministers of the Crown, and even the present Lord Chancellor and Secretary of State, say about Queen's Counsel, "Why should the Government have any part to play in what, after all, is no more than a professional preferment?" The answer is that they do not. Someone must be answerable to Parliament—a Member of one or other House—who can be accountable for the policy of appointing Queen's Counsel and judges. It is absolutely wrong and dangerous for any such person to be accountable to Parliament for individual appointments.A Lord Chancellor is not entitled to discuss a proposed individual appointment of a judge with his Cabinet colleagues before making the appointment; nor is he required to justify it afterwards. If he discussed such an appointment with his Cabinet colleagues beforehand, I venture to think that he would not be fit to be Lord Chancellor.
I do not like, in any way, the suggestion that the new appointments commission should be answerable to a Secretary of State who can reject the commission's proposals and ask it to think again. It is a fairly mild proposal on the surface, but we all know that sometimes the Government's wishes exercise a subconscious influence on those to whom it is directed.
My noble friend Lord Rees-Mogg referred to the supremacy of Parliament and his fears that that may be eroded if we go down the American route. I do not know whether that is so or not. That is too far in the future. However, we should remember that the supremacy of Parliament is judge-made law; the judges made it so they can unmake it, and it rests, at bottom, on judicial restraint. The role of the Lord Chancellor in Cabinet is to represent the judges and to try to influence the Cabinet and the Government as a whole to exercise appropriate restraint when dealing with judges. I am afraid that the omens from the present proposals are not good.
5.8 p.m.
Lord Mackay of Clashfern: My Lords, I address these issues with a certain amount of difficulty, having been honoured, for almost 10 years, to hold the office that the Government so resolutely propose to abolish. I was interested in and taken with the description of what happens to a Lord Chancellor on taking office, given by the noble Baroness, Lady Kennedy of The Shaws. That showed the perceptive qualities of a Scots person in these matters, as she has never held the office herself. But, who knows, there may always be a possibility in the future.
The idea that the Lord Chancellorship should be abolished is not entirely new. I believe I am right in saying that Lord Elwyn-Jones, in his autobiography, said that as Lord Chancellor he spent most of his time trying to ensure that he was not the last. He was successful in that, as have one or two others, but the noble and learned Lord on the Front Bench opposite may have a different ambition.
I take from others the fact that the general acceptance that the Lord Chancellor's office is an important part of the safeguarding of the
independence of the judiciary in this country has been established. The constitutional committee of the other place takes that to be so. Therefore, if it is proposed to abolish the office of the Lord Chancellor, we must look very carefully at what is put in its place. As I understand it, what is proposed is, first, a general duty on the Government and those involved in the administration of justice and the appointment of judges to respect and maintain judicial independence. I am not clear about the effect of the word "general". I am conscious that it has been held that some duties are so general they cannot be enforced. At the end of the debate I should like the noble and learned Lord to give in terms the meaning of "general" in this context and whether it is intended that this general duty should be enforced. If so, I reiterate the question asked by my noble friend Lord Alexander of Weedon: by whom?The second proposal is that a specific duty should fall on the Secretary of State for Constitutional Affairs to defend and uphold the continuing independence of the judiciary. What duties will be imposed on officers that are not a present duty; and what does the duty prevent them from doing that they presently can do? I asked that question in the debate on the Queen's Speech. The noble and learned Lord the Lord Chancellor replied that those questions were rightfully asked. So far I have not received an answer. I am happy to think that they are the subject of mature deliberation.
Undoubtedly, from the present list of reforms the most important question for me is the abolition of the office of the Lord Chancellor. I can understand from the remarks of the noble and learned Lord, Lord Morris of Aberavon—it is not the first time I have heard this point—that when a department becomes a large spending department it is almost inevitable that the House of Commons will require the head of that department to be answerable to that House as a Member of that House. That is a reason for seeking to ensure that the Lord Chancellor's Department does not become too large a spending department. Of course, it has done so, as a result of changes which have taken place over the years, in particular over recent years. Therefore, there may well be a question about the possibility of hiving off a good number of those spending responsibilities to a Minister answerable to the House of Commons rather than destroying the office of the Lord Chancellor.
Reference has been made to the Lord Chancellor sitting as a judge. When I was Lord Chancellor, I sat as a judge quite a lot. I felt strongly that if I had any talents it was in that area; and that since I was being paid a reasonably high salary I should do what I could to work for that. Upon becoming Lord Chancellor—I had been previously a Lord of Appeal in Ordinary—I was supported in that belief by a letter from one of the professional associations of barristers inviting me on no account to stop sitting as a judge. I felt encouraged, therefore, to do so.
Perhaps in passing I should mention that in his first interview to the Guardian newspaper on taking office, the noble and learned Lord the Lord Chancellor said that all recent Lord Chancellors had been aged 50-plus
and members of the English Bar. I acknowledge, of course, that when I took office I was 50-plus; but I never aspired to be a member of the English Bar.
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