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Lord Falconer of Thoroton: My Lords, I have apologised publicly twice already. Perhaps I may apologise again for making that remark in the Guardian.
Lord Mackay of Clashfern: My Lords, I feel that perhaps the readers of the Guardian who have imbibed this terrible mistake may require the correction. So far I have never seen a correction there. I have certainly heard the noble and learned Lord apologise. It is not a major matter. However, since I was the person who conferred on the Lord Chancellor his silk patent I thought that he might have known. Obviously my accent must have been somewhat blurred that day.
That leads me to say a word or two about Scotland. I understand that the proposed new Supreme Court is to be the Supreme Court of Scotland.
It is also, as I understand it, not proposed that appeals in relation to criminal matters should come to this Supreme Court. Therefore, it is not accurate to describe it as the Supreme Court of the United Kingdom because in that respect it is not the Supreme Court of Scotland. The High Court of Justiciary is the Supreme Court of Scotland in criminal matters, and of course there is the Court of Criminal Appeal set up by statute for appeals on indictment. These all stop in Scotland and never come, so far as I know, to the House of Lords.
When the devolution settlement was set up, it was proposed that there should be an appeal effectively to the Law Lords on devolution issues. But some devolution issues could well involve crime. Therefore, it was felt inappropriate to have devolution issues come to the House of Lords from Scotland because they might innovate on the exclusion of criminal appeals from Scotland to the House of Lords. The proposal will reverse that. Therefore, there will be a very serious question about the extent to which criminal appeals from Scotland will arrive in the House of Lords. In passing, I ask the noble and learned Lord to say whether and to what extent there has been consultation with the Lords of Appeal in Ordinary from Scotland in relation to these matters.
Finally, I want to say a word about resources. It has been pointed out already that some resources will be required in respect of this proposal. I have not seen much by way of estimates or calculations as yet; no doubt they will come. But it is very important to my mind if the Supreme Court is going to be set up as proposed that it be set up in its home. I would have thought that the worst possible start for what is supposed to be necessary, as a new court—taken out of the House of Lords deliberately—to finish up, after all has been done, where one was before. That seems to me to be a complete muddle and completely unnecessary haste, which brings me finally to support the view that these constitutional arrangements are such that a draft Bill may well be the proper way to proceed.
I notice that when the noble and learned Lord the Lord Chancellor gave evidence to the committee in the other Place, he advanced two reasons for haste, the second being that if he did not hurry, the proposal might run out of steam. That does not seem to suggest a high degree of confidence in the strength of his proposal. I can understand, however, in view of what the noble and learned Lord the Lord Chief Justice said, that it may be wise to proceed with the Judicial Appointments Commission. That could be a separate proposal, which could proceed as the present Bill and other matters could be left for a draft Bill, which could then be the subject of rather mature consideration.
5.18 p.m.
Lord Hope of Craighead: My Lords, it is a very real privilege for me to follow the noble and learned Lord, Lord Mackay of Clashfern, who did so much over so many years to uphold and enhance the office of Lord Chancellor in all its aspects.
I should like to add simply a brief footnote to many able speeches on the issue of a Supreme Court. Perhaps I may be permitted to do so from a personal point of view, bearing in mind that I still have more than nine years to go before I shall be disqualified from sitting judicially. Therefore, I have a strong personal interest in the future of this court and the nine years that lie ahead of me leave ample room for slippage in the plans which the noble and learned Lord has in mind.
My primary interest—I am bound to say by way of preface to my remarks—is in maintaining the service which the Law Lords, whatever they may be called, offer to the public to the best of their ability. It would be my intention to serve on the new court, if and when it is set up. So I am particularly anxious to see whether the new system will work and how it will compare with the system in which I have been working now for some seven years. I hope that it will be appreciated that in expressing my own reservations about the wisdom of embarking on this course, I am totally committed to the service of the law in whatever capacity and under whatever name or title I may be called on to provide it. The preservation of the quality of our legal system at the highest level, to which so many distinguished Members of this House have contributed over so many years, is the first priority.
Everyone is agreed that the standard of service that the Law Lords have provided to the public on behalf of the House is very high. It is rigorous in its attention to detail, dignified in its presentation, and highly effective in terms of cost. It is sometimes said—the noble and learned Lord, Lord Millet, made this point—that we are under-resourced and lack sufficient facilities. I am bound to say that I do not agree. It is true that the rooms which we occupy on the Law Lords' corridor lack some of the grandeur of the rooms that are available in the Royal Courts of Justice. We do not have individual toilet facilities, or the individual showers that are for some reason provided to judges in modern court buildings. We do not each
have our own secretaries and judicial assistants. In my experience, in comparison with what we do have, these are trivial disadvantages.I, at least, have never felt that my work here was in the least inhibited by lack of space or lack of assistance. On the contrary, I have been greatly assisted by the facilities that I am given as a Member of the House. The personal service that we receive from doorkeepers, our secretaries, and our judicial assistants is beyond praise. I particularly value the access that membership of this House gives to our Library. I am not just talking about the Library on the Law Lords' corridor, but the Library in which we gather before we go upstairs to sit in Committee. I value access to the range of parliamentary papers that keep one up to date with affairs both inside and outside Parliament. I greatly value contact with your Lordships. As many of your Lordships know, I make a practice quite often of sitting and listening to debates to enable myself to keep in touch with ideas and events.
The question that is uppermost in my mind is how the new system will stand comparison with what we have now. We all know the arguments for change—how will it work in practice? The comparison that I see, against which to measure our current arrangements, is of location in some building yet to be identified, sufficiently remote from this place for it to be impossible to maintain contact to the degree that I have described, even if one was allowed to. Access to the Library as it is will go, as will access to all the parliamentary papers, and the free access to your Lordships will go as well. The purist will say that that should never have happened in the first place. The noble and learned Lord the Lord Chancellor has said that we shall have our own library. I have been told that if I wish to maintain contact with those outside the building in which I shall be working, I should have to change my social arrangements. The reality is that, due no doubt to one of the many accidents of our history, we have built up a system here that has advantages that simply cannot be reproduced anywhere else.
Take the Library. We have here in the Library of the House an excellent collection of law books, filling many shelves in that room with which we are all familiar. Through that Library we have access to all the draft Bills and all the other material that is created during the legislative process. Much of the judicial work that we do relates to the effect of legislation enacted here in Parliament. An understanding of how the legislative process works and access to these materials to enable us to put particular issues into context is an essential part of what we do. We could, by research, obtain information by using judicial assistants—we would not have to do it all ourselves. At present, we have direct and immediate access to the Library, and to these materials, so that we can be provided with answers in very quick time. It makes for efficiency, and it makes for economy.
There is a real cause for concern on the issue of economy. I speak with the experience of having served for seven years as Lord President of the Court of Session in Edinburgh. It is a great pleasure to see one of my successors, the noble and learned Lord,
Lord Cullen of Whitekirk, here in his place. During my time, there was constant pressure from the executive to reduce costs. "A good thing", some might say; value for money is a proper objective of government. However, my experience was of a constant search for a given percentage of savings, year after year, to the point where judicial standards were at risk of being compromised. Excessive use of temporary sheriffs and temporary judges was one of the products of that phenomenon. There was also pressure for the recovery of all our costs from court fees—the noble and learned Lord, Lord Woolf referred to that—which risked reducing access to justice. That was a serious matter, at a time when the availability of legal aid was being cut back.When I came here as a Lord of Appeal in Ordinary, I was immediately aware of a change of environment. So much of what would have to be paid for separately by a Supreme Court is shared with the House in the building that we all occupy. If one is searching for value for money and efficiency in cost, the system that we have cannot be bettered. That is not all: the judicial function that we perform is, in my experience, not in the least inhibited by pressure of any kind from the executive. Our independence from that kind of pressure—acute pressure, if it falls into the wrong hands—is complete. The fact that we share so many facilities is one of our great strengths. There is no pressure on us to pitch our fees at such a level that we recover all our own costs, let alone the full value of the costs that we would have to recover if we were on our own. A few simple calculations would reveal the enormity of the proposal, if it were to be made, that that was how our annual costs should be funded.
I do not know whether it is the immediate intention that the Supreme Court should adopt that system of recovery or how else it should be done. Is the court's income from fees to be supplemented by funds raised from general taxation, as I respectfully suggest that it should? However, I know that the immediate intention of the executive in such things does not really matter. The executive can change its mind, and assurances that proper facilities will be provided are easily given by a government who cannot bind their successors. We are being asked, after all, to set up a new court that is to last for a hundred years, not just the lifetime of this Government. The annual cost of a new court, the way in which the costs are to be met decade after decade and the risk of undue pressure from the executive to reduce costs should be points of concern to those who support the proposal in principle.
As I said, I would regard it as my duty to do everything that is in my power to make the new system work, if it were Parliament's wish that we should adopt it. I must confess, however, that I face the future with more than a little concern. When all is said and done, the justification for having a court of final appeal at our level lies in its ability to add value to the judgment of the lower court. The environment in which we live and work at present assists that process, as does the extent to which we are insulated by that environment against pressure from the executive. It is inevitable that we will lose something of real value if we are moved
elsewhere. I cannot, I regret, see in the new arrangements any practical advantages that will take its place.5.28 p.m.
Lord Brennan: My Lords, I regret that I was unable to attend the earlier part of the debate today. Naturally enough, I apologised to my noble and learned friend personally, but I have not been able to address an apology to the House until now. I apologise in particular to the noble and learned Lords on the judicial committee who made speeches that I did not hear, especially as I may appear in front of them at some stage in future. I hope that the noble and learned Lords will treat that apology as fulsome, because I am about to disagree with much that I have heard from them in today's debate.
It is over 100 years since the appellate jurisdiction of the House, through its judicial committee, has been debated as vigorously as it is likely to be in the coming year. It would be unfortunate if, as a result of the debate, the impression went about that there was strong judicial dissent from the proposal for a Supreme Court. There is a major contribution to the debate—the general debate, not today's—that has not been heard by your Lordships but to which the House should pay especial attention. I refer to the views of the noble and learned Lord, Lord Bingham of Cornhill, the senior Law Lord, who is strongly in favour of a Supreme Court, as, I understand, are several of his colleagues on the committee. He is in favour of a Supreme Court from a totally apolitical, judicial and constitutional point of view, which he summed up admirably and succinctly in his Ditchley Park lecture last year. He said:
- "The case for change rests on two propositions: first, that institutional structures should reflect constitutional realities; and second, that the serving Law Lords are judges, not legislators".
I am going to deal with the need for a Supreme Court, as I see it, by reference to several different arguments. None of them, I hope, will be tarnished with the fatuous incantation of the need to modernise. I shall state what I trust to be serious constitutional argument in favour of this proposal.
The first is the role of the House of Lords judicial committee or a new Supreme Court. We think, in this place, in generations and in decades. But the process of judicial change in our Supreme Court over the past 20 to 30 years has been dramatic. The impact of European law, of human rights law, of public law in particular, of judicial restraint of excesses by the executive, and of findings that legislation, particularly subordinate legislation, is invalid, are major changes in the legal and constitutional life of our country. To that we must now add devolution and, within the next year or two, perhaps, the arrival of regional government, a yet further tension between that form of government and central government and this Parliament. All of that will, I suspect, occupy the Supreme Court.
In the public image, public perception and public understanding of the Supreme Court, how can the public possibly understand that the judges of such issues technically sit in the legislature, as a judicial committee? How will they understand that there is a constitutional division between their judicial role and what they are doing vis-a-vis the citizen and the executive or Parliament? The role of the court has changed and will continue to change.
My second point concerns the balance of constitutional power. Many think that we have, not only as always, but particularly in recent decades, an immensely strong executive and a weak Parliament—weak in the sense that its committee control over the executive is inadequate. In that situation, is it not appropriate that the supreme court of the nation—of the people of the nation—should be entirely separate from those two institutions? This may be unpalatable to state in such blunt terms, but as a defender of the citizen against the executive and even Parliament, the Supreme Court has a vital constitutional role to play.
Thirdly, today's world—a phrase which the noble and learned Lord, Lord Bingham, used in the Ditchley lecture—is, I regret to say, not the world of which your Lordships have been speaking today. The world outside simply does not understand the arguments about the judicial committee and the value in the way that Law Lords can participate. It is a matter of incomprehension. The means of communication today are so direct and immediate, and issues are so stark for public debate. I may be wrong, but I think that the public expect the Supreme Court to be their court.
It is said that the system works—that pragmatism is endorsed. I am simply not able to comprehend the constitutional or intellectual concept of pragmatism. It may represent an ability to change where necessary, but it is not an excuse for not changing because some time we might if we need to. The argument put forward by the noble and learned Lord, Lord Bingham, is compelling. In his speech he quoted Bagehot from 1867:
- "The supreme court of the English people ought to be a great conspicuous tribunal, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly".
The need for change is established, but accompanying this change must be real measures to preserve the independence of the judiciary. In the Northern Ireland legislation of 2002, there is a specific provision under the rubric guarantee of continued judicial independence. That guarantee is set out in longer form beneath the rubric. It already exists within our legislative structure and I understand that it has caused no difficulty. If there is a duty in this Bill for a Supreme Court and it is accompanied by a separate and distinct duty on the Secretary of State for
Constitutional Affairs to preserve that independence in so far as he or she can, and we consider that, when making appointments, the Attorney-General should be consulted, then all of those represent the means to guarantee independence.I cannot conceive of the need for a Secretary of State for Constitutional Affairs to discuss with any Member of the Government other than the Attorney-General an appointment to the Supreme Court. If a separate commission proposes names and does so with an open, proper system of selection based on merit, although it is not inconceivable, it is difficult to see how a Secretary of State could make appointments that could be said to be political or unjustified. If there were such an attempt, surely the very body that put the names forward would create a public scandal? It is not a question of judicial review, but of basic constitutional propriety. I will return to the independence of the judiciary in a moment when I deal briefly with the position of the Lord Chancellor, but it is clearly essential that that independence is preserved.
I now turn to the jurisdiction of the Supreme Court. I accept and endorse that it should have the power to determine which cases it will hear—and not have that determined for it. I also fully accept that it should deal with matters of devolution in a way that is sensitive to and respectful of the devolved powers and rights of Scotland, Wales and perhaps Northern Ireland where devolution falls to be considered. But I do not regard this issue of jurisdiction to be insoluble, particularly with regard to Scotland and Wales and devolution. My main point is that the jurisdiction should be as now—within the power of the members of a court to determine.
I turn to resources. My semi-political career up to arriving here and my experience in this place tell me that public expenditure is the bane of reform. I earnestly implore the Chancellor of the Exchequer to bear in mind the words of the noble and learned Lord, Lord Bingham, who said,
- "it would be recognised as an independent court, and should be properly accommodated, resourced, staffed and equipped to meet the needs of the whole nation in a new and challenging world. The country which sired those two world-famous twins—the common law and the rule of law—surely deserves no less".
If, as my noble and learned friend Lord Morris pointed out, it is democratically and constitutionally appropriate that such a large spending department should be represented by a Minister in the other place, the role of the Lord Chancellor in protecting the judiciary as in times past will not be there to be exercised. You cannot expect within the realpolitik of
government a Lord Chancellor with very little to do to be regarded as someone of considerable weight in this field. It may be a blunt thing to say but it is true.I turn to the appointment of judges. I am able to say this because of my name. You must look at this with great care. As a lecturer said recently, in many ways the Irish legal system for selecting judges is of value only as an awful example of what not to do. I hope that in the selection of judges in this country we shall be extremely careful.
The concordat that was reached a while ago is a good sign for co-operation. Forget the provenance of this Bill; let us look at its content. I hope that the Government—as I am sure they will—will accommodate reasoned debate so that the mechanical changes these changes in principle require will be efficient and adequate to the principle that they hope to serve.
5.43 p.m.
Lord Donaldson of Lymington: My Lords, before the silk system was put on hold, it was regarded as a very great honour to be the last in the list, and therefore the most junior, who had done better than all his peers. I have no hope of the same degree of honour descending upon tail-end Charlie in this debate.
It has been an historic debate. There has been an unrivalled procession of speakers with real know-how. They know the subject from personal experience and professional expertise. There have been a number of speeches from noble Lords who are not lawyers. However, there has been no real difference between their attitudes with the possible notable exception of the noble Lord, Lord Brennan.
The House is being asked in this debate to take note of three government policies. One is the decision to abolish the office of the Lord Chancellor. The second is the decision to create a United Kingdom Supreme Court and the third is the appointment of an independent Judicial Appointments Commission. As to the latter, one need say very little. It has been amply covered by the concordat on which I think everyone would like to congratulate the noble and learned Lord the Lord Chief Justice and the noble and learned Lord the Secretary of State for Constitutional Affairs. He does not like to be referred to as Lord Chancellor, for obvious reasons. That it has been covered is not in dispute. It is true that it might not be necessary in some circumstances but my view is that probably it will be necessary. Whether the other party, if one can put it that way, to the Lord Chief Justice in his representative capacity should be the Secretary of State for Constitutional Affairs or the Lord Chancellor—remember he is still, in form at least, alive, even if he is not kicking—is still open.
The real lesson from this debate is that while the House will take note—it has no machinery for doing anything else—the person who ought to take note is the noble and learned Lord the Lord Chancellor and the Government. This is because there has been an almost universal condemnation of the Government's proposals, although perhaps I should not overstate it,
in deference to the noble Lord, Lord Brennan. To put it more charitably perhaps, scarcely a speaker has supported the "totality" of their proposals—to use the buzz word of today.Support for the United Kingdom Supreme Court has been lukewarm and divided. The speech of the noble and learned Lord, Lord Nicholls of Birkenhead, was devastating. It is extremely unfortunate, perhaps, that the senior Law Lord does not feel able to put forward his point of view, but instead has to instruct the noble Lord, Lord Brennan, to do so.
The speech of the noble and learned Lord, Lord Cullen, was doubly welcome because he brought a breath of Scottish air into the Chamber, which has always been sustained by the noble and learned Lord, Lord Mackay of Clashfern. Nevertheless he sent reinforcements from the north. He also proved what I had not suspected until the Statement on Monday by the Secretary of State for Constitutional Affairs, which is that the Government do not propose to have a United Kingdom Supreme Court.
I shall explain. The United Kingdom Supreme Court's decisions would be binding on all branches, on all jurisdictions. It is true that if it was dealing with an English matter of law, it would be irrelevant in some aspects of Scottish law, but subject to that, it would be binding. The decisions of any court have to be considered if one is considering the question of their being binding. The Government propose to have three new appellate layers—one for England, one for Northern Ireland and one for Scotland. They are distinct and the decisions of those layers, which are really mini Supreme Courts, will be binding only in relation to the jurisdiction in which they are given. That is not a United Kingdom Supreme Court. It is the height of spin to pretend that it is.
Injected into the debate, by remote control as it were, have been the immensely important findings and conclusions of the Select Committee on Constitutional Affairs in the other place. The committee said that what is proposed has not been thought through. That may be obvious, but it is valuable that the committee should say it as it is an all-party committee with a majority of the governing party. Some think that it has not been thought about at all, but that is perhaps an exaggeration. Certainly, it has not been thought through. It has been so little thought through that there is an enormous case for some degree of pre-legislative review, from which enormous advantages would follow.
The Committee also suggests that the abolition of the office of Lord Chancellor should be put on hold until the rest of the jigsaw is either abandoned or falls into place. I think that that is an eminently sensible suggestion. I rather fancy that this House might have a role to play in ensuring that it was put on hold since it would be impossible for the Government, despite their enthusiasm, to abolish the office of Lord Chancellor without some statutory assistance from this House—unless, of course, they are going to try to invoke the Parliament Act; but that would be a very long, drawn-out proceeding, quite apart from the fact that I imagine that the Bill is going to begin in this House.
What are the advantages claimed? As I say, there is no problem about the concordat. However, on the abolition of the Lord Chancellor's office and the creation of a new Supreme Court, different considerations apply. I really do not know what the claimed advantages are despite the intervention of the noble Lord, Lord Brennan, whose speech I shall have to reread so that I may understand what the opposition is.
Tributes have been paid on all sides to the part played by Lord Chancellors in recent years—tributes to their invaluable role in upholding the rule of law and upholding the independence of the judiciary against the very natural tendency of governments of all political persuasions to find that the activities of the judiciary are distinctly tiresome. Governments see them as standing in the way of what they believe to be policies for the public good which certainly should not be opposed by such non-political people as the judges. There is no suggestion that the Secretary of State for Constitutional Affairs, particularly if he was not in this House, could begin to discharge that role. The Lord Chancellor has no political ambitions. I do not know of any other member of the Cabinet who does not have political ambitions. Most of them have ambitions that, by accident or otherwise, the tenancy of No. 10 Downing Street might become vacant and they might be a possible candidate. Some may overstate their claims; but, nevertheless, that must be a factor which, subconsciously, affects them.
The Secretary of State is a very junior member of the Cabinet, as opposed to the Lord Chancellor's position, which has always been at the very top of the pecking order. Perhaps I am wrong but I have an idea that when the noble Baroness, Lady Thatcher, resigned it was the noble and learned Lord, Lord Mackay of Clashfern, who had to speak on behalf of the Cabinet as a whole in his capacity as the senior member of the Cabinet after the Prime Minister.
It might have been expected that as the noble and learned Lord, Lord Falconer, is still Lord Chancellor he would have spoken out against the Government's efforts in Clause 10—someone said it is Clause 11, but I think it is Clause 10—of the asylum Bill to produce the greatest ouster clause—ouster of the jurisdiction of the courts—that has ever been thought of. I have a nasty feeling that, whereas all previous attempts have failed, this one might succeed. I say I have a nasty feeling because it would then confront the judges with the very real problem of whether they are going to say to Parliament, "Look; thus far but no further. We are appointed to uphold the rule of law and justice. It is not open to Parliament to pass laws which prevent us doing it". But that is for another day. They have yet to get that clause through.
Then there is Clause 5 of the domestic violence Bill which is just emerging from Grand Committee. Nobody will have heard of it, but in Clause 5 it has a clause that on one view at least—and I share that view—reverses the burden of proof, contrary to the Human Rights Act. Then there is the extraordinary recent situation in which the Home Secretary, in
India—and knowing, I suppose, what the Prime Minister was going to say three or four days later—had to float the idea of adopting the civil standard of proof in relation to some crimes. Having scooped the Prime Minister, it was left to the Prime Minister, with the Home Secretary by his side, to announce it himself. He said that where there were sufficiently serious crimes those accused of them—what President Bush would describe as the bad guys—must be pursued with a rather different formulation of the law.The Lord Chancellor could assume all the functions laid out in relation to the concordat. There is no problem about that. I see no reason why he should not continue as the illustrious head of this House representing this House outside with an unparalleled degree of historic authority. In the view of some judges, if judicial capacity were hived off to a new Supreme Court it would greatly impoverish the importance of the judicial capacity of this House and your Lordships' House as a whole. I hope that that will be given very serious thought. It has been said that these changes are not value for money. Not only are they not value for money, they do not add value at all.
In the light of this debate one might expect that the noble and learned Lord, the Lord Chancellor, otherwise known as the Secretary of State for Constitutional Affairs, might hang his head in shame. I have no great hopes he will do so but it is a nice thought and I suppose I have to content myself with the explanation given by the noble and learned Lord, Lord Mayhew of Twysden, that tubeless tyres never deflate.
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