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Lord Brennan: Before the noble and learned Lord sits down, I invite him to accept that some Law Lords, the noble and learned Lord, Lord Bingham of Cornhill, and others, have expressed the view that they should not participate in debates in this House. They do not believe that it is appropriate. Secondly, so no hare starts running, will he accept my assurance that I have not spoken to any Law Lord about my contribution to this debate?
4.45 p.m.
Lord Goodhart: My Lords, this has been a remarkable debate. We have had contributions from five current holders of high judicial office, including a distinguished maiden speech from the noble and learned Lord, Lord Cullen of Whitekirk. We have also heard from one former Lord Chancellor and five former Law Lords. That makes this in all probability a unique occasion. My pleasure in listening to their speeches has been only slightly reduced by the fact that I do not agree with any of them except for the speech of the noble and learned Lord, Lord Woolf. I thought his remarks were absolutely outstanding and highly persuasive. I also agreed to some extent with the noble and learned Lord, Lord Millett. I do, however, agree very strongly with the two noble and learned Lords who have not spoken but have made their views clear in public. As mentioned by the noble Lord, Lord Brennan, they are the noble and learned Lords, Lord Bingham of Cornhill and Lord Steyn.
We on these Benches, and in saying that I must add the customary proviso, with the exception of my noble friend Lord Phillips of Sudbury, support the setting up of the Judicial Appointments Commission. We support the ending of the office of Lord Chancellor and the creation of a Supreme Court. These are all ideas which we have advocated since long before the Government underwent their remarkably sudden conversion last June.
First and foremost, what we are debating is the independence of the judiciary. That is a matter of the utmost importance. It is important because democracy on its own is not enough. We need democracy strengthened by the rule of law. Democracy uncontrolled by the rule of law leads to populism and the tyranny of the majority. The risk of such tyranny is doubled if we have no written constitution and therefore no entrenched rights that need a special majority to be altered. It is doubled again if we have, as we do, an electoral system that gives an overwhelming majority in the House of Commons on a minority of the vote.
To protect the rule of law, we need a strong judiciary. We need men and women of integrity, intellectual power and independence of mind, buttressed of course by security of tenure. Indeed, to a very high degree, that is what we have had. However, we would be unwise to assume that the present system will always produce the judges that we need, and I believe that there is a real danger that it will not.
Tensions between the executive and judiciary have increased in recent years for several reasons. First, judges have become more activist. Forty or 50 years ago, there was a cosy relationship between the government and the judiciary, and the judges were, in the phrase of Francis Bacon, once Lord Chancellor, "lions under the throne". They rarely interfered with executive decisions. That started to change in the mid-1960s. Judges started to challenge executive decisions, judicial review became an important remedy in public law, and government departments had to recognise that they could be taken to court, and might lose if they were. That led to the publication of that well known circular to civil servants, The Judge Over Your Shoulder.
Secondly, there was the Human Rights Act. That allows judges to declare Acts, although not void, incompatible with human rights, which of course can be a source of great embarrassment to governments. Indeed, the Act enables judges directly to invalidate secondary legislation and executive acts. Thirdly, the Department for Constitutional Affairs is now a major department, with responsibilities that go far beyond the traditional functions of the Lord Chancellor's Department. That means that the role of the head of that department is far more political than in the past.
The greater powers of the judiciary, and its greater willingness to exercise them, means that it is ever more tempting for a government to seek a compliant judiciary. The only existing barrier to that is the office of Lord Chancellor. However, the strength of that barrier depends entirely on the character of the
individual appointed to that post. If judicial appointments are left as they are now—in the hands of the Lord Chancellor, or of a Prime Minister acting on the advice of the Lord Chancellor—sooner or later, and it may well be sooner, a Prime Minister will appoint a Lord Chancellor who is willing to make the sort of appointments that the Prime Minister wants to have made. Judges appointed by that Lord Chancellor will not be corrupt or stupid, but they will be chosen because they have a particular point of view, and that will be the end of judicial independence.That has happened at times in the past. When Lord Halsbury was Lord Chancellor at the beginning of the 20th century, he was quite open about it. It has happened more recently. It is widely believed that Harold Wilson refused to appoint—I hope that he will not mind me saying it—the noble and learned Lord, Lord Donaldson of Lymington, to the Court of Appeal in order to placate the trade unions, which were unhappy with his decisions in the national industrial relations court. Such instances will surely happen again if present powers are left with the office of Lord Chancellor.
We have a window of opportunity to prevent that, and we need to take advantage of it now. If we take the Bill away and bring it back as a draft, we will not get the legislation through in this Parliament, and who knows who will be Prime Minister or Lord Chancellor in the next Parliament? Further, as the noble and learned Lord, Lord Woolf, pointed out, the present situation is untenable as regards the appointment of judges to the courts of England and Wales, and we need to get on with the legislation to create the Judicial Appointments Commission.
We therefore cannot support the recommendations of the Select Committee on Constitutional Affairs, despite the distinction of its chairman, my right honourable friend Alan Beith. We cannot support its recommendations to consider a draft Bill before proceeding to legislate. We need to consider not what should or might have been done last June, but what should be done now.
I note the support of many noble Lords who have spoken for the preservation of the historic office of the Lord Chancellor. However, I do not understand why so many speakers do not see that the real risk to the independence of the judiciary comes from leaving things as they are, not from change. It has also been said that the Lord Chancellor can speak for the judiciary and the rule of law in the Cabinet—as a Lord Chancellor should. Again that depends on the personality of the Lord Chancellor.
I regret having to point out, as did the noble and learned Lord, Lord Donaldson, and other noble Lords, that the present Lord Chancellor was apparently either unwilling or unable to prevent the inclusion of Clause 10 in the asylum Bill, which removed judicial review of the decisions of the Immigration Appeal Tribunal. I believe that the noble and learned Lord is personally committed to the rule of law, but Clause 10 does not suggest that his influence is sufficient to restrain the unconstitutional
proposals of the Home Secretary. As matters stand, if the system ain't broke there is at the very least a nasty rattle in the mechanism. The noble Baroness, Lady Kennedy of The Shaws, made a strong case for saying that the system is broken, and that, too, was the effect of the speech of the noble and learned Lord, Lord Woolf.Whether or not a Supreme Court is created, it is plainly wrong for the Lord Chancellor, whether under his old or new name, to act as head of the judiciary any longer. The Lord Chancellor cannot be regarded as impartial in any proceedings involving the Government and, therefore, cannot sit in any case in which the Government have an interest. That would include tax cases, probably the majority of cases of judicial review and, maybe, crime. That would eliminate him from participating in much of the work of the Appellate Committee. The present Lord Chancellor rightly recognised that it was inappropriate for the holder of that office to sit as a member of the Appellate Committee. However little regard one has for the principle of the separation of powers, a Cabinet Minister acting as a presiding judge of the highest court will not do.
The third main issue involved in the reforms is the creation of the Supreme Court. The nominal retention of your Lordships' House as the highest court is not in itself, I agree, a threat to the independence of the judiciary or the rule of law. It does maintain a fiction at the heart of our legal system. The fact is that your Lordships' House as a legislative body and the Appellate Committee of your Lordships' House are already separate for almost all purposes. Lay Members of your Lordships' House—or legally qualified Members who have not held high judicial office—have not taken part in the judicial business of your Lordships' House for at least 200 years. Serving Law Lords and current holders of other high judicial office, such as the Lord Chief Justice or the Lord President of the Court of Session, now speak only in exceptional circumstances and have not voted, as far as I am aware, for some years.
I welcome the contribution of the noble and learned Lords to the debate today, because the circumstances are exceptional. But it is correct in principle that Law Lords should not take part in the legislative proceedings of your Lordships' House, because I believe—and I agree with the noble and learned Lord, Lord Bingham of Cornhill—that that is inconsistent with their role as members of the judiciary. We are simply maintaining a legal fiction which has long ceased to represent reality and now causes confusion.
Further, any serious reform of your Lordships' House which would introduce a substantial democratic element among its membership would be inconsistent with the retention of the judicial functions of the House. It is surely far better for the Appellate Committee to become a separate Supreme Court with its own premises and facilities.
As the noble and learned Lords, Lord Woolf and Lord Millett, pointed out, this is as much, if not more, a question of accommodation as of constitutional
principle. In fact, it is believed that a few years ago the Law Lords were offered, and turned down, the opportunity to move into the old Public Records Office in Chancery Lane. I believe that that, in many ways, would have been an ideal location for them. The reason they turned it down was not, I think, on grounds of constitutional principle.We need to consider not only facilities for the Law Lords themselves—we have heard differences of opinion about that—but facilities for the staff and, indeed, for the public, who have a right to attend, and do attend, the hearings of your Lordships' House sitting in the Appellate Committee.
I agree that it would be inappropriate for the Supreme Court to sit, even temporarily, in the Palace of Westminster. Therefore, while we support the idea of including the creation of a Supreme Court in the forthcoming Bill and very much wish to see it there, we can see some justification for deferring the implementation of that part of the Bill until proper accommodation has been found. We certainly hope and expect that the search for proper accommodation will continue with all due speed.
The debate today has reminded me rather painfully of the debate that we had this time last year on options for reform of your Lordships' House. I was reminded of that because of what seems to me too often to be a reflex resistance to any proposals for change in your Lordships' House. A few of the speeches—I pick out, in particular, those of the noble Baroness, Lady Kennedy, and the noble Lord, Lord Brennan—have been notable exceptions.
That is perhaps highlighted by the fact that there has been relatively little criticism of the Judicial Appointments Commission, which has little impact on your Lordships' House. Criticism has centred overwhelmingly on the removal of the Law Lords from your Lordships' House and on the abolition of the office of Lord Chancellor. We have heard almost no serious argument that the Lord Chancellor should either continue to sit as a judge on the Appellate Committee or continue to appoint judges to the courts of England and Wales with the liberty that he now does. If the office were stripped of those powers, it would be utterly changed, even if it kept the same name. It would be a different office and I see no justification for keeping it under the name of the Lord Chancellor rather than that of the Secretary of State.
We have spent much of today's debate arguing for the retention of the Law Lords as Members of your Lordships' House. That would mean retention of the historic anomaly, whose benefits are questionable and which will, in any event, have to go when we achieve democratic reform of this House.
Of course, we shall contest aspects of this legislation—especially the system for the appointment of the justices of the Supreme Court. However, we shall support the principles, as we have done for years.
6.13 p.m.
Lord Henley: My Lords, there was one small point on which I agreed with the noble Lord,
Lord Goodhart, and that was that this has been a most remarkable debate. Other than that, I have to say that I was not in full agreement with the noble Lord or with his noble friend Lord Lester. I preferred the views of the good liberal, the noble Lord, Lord Phillips of Sudbury.As, I believe, the most junior member of the Bar taking part in this debate, it is with some trepidation that I wind up the debate, which has been going on since 11.30 this morning. I suspect that most noble Lords would like to hear from the noble and learned Lord the Lord Chancellor and Secretary of State for Constitutional Affairs, if I may give him both his titles, as soon as possible. However, there are just one or two points that I would wish to make to re-emphasise the line taken by my noble friend Lord Kingsland earlier.
I start by offering my congratulations to the noble Lord, Lord Cullen, on his maiden speech and by saying how much I agreed with his distinctly non-controversial request—I think that we can all agree that it was non-controversial—that the senior judges will continue to sit and speak in this House.
Next, perhaps I may refer to the remark of the noble Lord, Lord Phillips, about betting £100 to a penny that if the noble and learned Lord the Lord Chancellor put the proposals to consultation with all those actively involved in the administration of justice, they would get, as I think the noble Lord put it, a "thumbs-down". After this debate, given the number of those who have spoken and the views that they have expressed, I suspect that even the noble and learned Lord, Lord Falconer, would have to agree with that point.
I have to say that he did not get very much support, even from his own Benches. As I understood it, the noble Lord, Lord Brennan, was in support. There was some partial support from the noble Baroness, Lady Kennedy of The Shaws—but only a very partial support. The support from his noble friend Lord Borrie was distinctly lukewarm when, as I think I noted correctly, the noble Lord said that he was in favour of some of the Government's proposals but not supportive of their plans for a Supreme Court or the abolition of the Lord Chancellor. That took away from virtually all of the Government's proposals, with one exception. The noble and learned Lord the Lord Chancellor should be grateful for that support—for what it is worth.
As I said, I want to make two or three brief points, to re-emphasise the position of these Benches and to underline what my noble friend Lord Kingsland was saying earlier. First, I underline the desirability, as we see it and as the Constitutional Affairs Committee of the House of Commons sees it, of some degree of pre-legislative scrutiny. Some noble Lords went even further. I think that it was the noble and gallant Lord, Lord Craig, who said that he would like a Royal Commission to look into constitutional changes of this importance and depth. We would not necessarily go as far as that, but we certainly would like to see some more pre-legislative scrutiny.
The noble and learned Lord the Lord Chancellor should consider very carefully, particularly when he considers the composition of that House of Commons
committee—a committee dominated by supporters of the Government—how to respond to that. I shall not repeat the quotations from paragraphs 26, 27, 28 and 29 of that report made by my noble friend. However, I do recommend that the noble and learned Lord looks at them again, recognising that this was a point made not only on these Benches—though it was made on these Benches by my noble friend Lord Alexander and my noble and learned friend Lord Mayhew—but also by the noble and learned Lord the Lord Chief Justice and by the noble and learned Lord, Lord Donaldson. I should be grateful, therefore, if the noble and learned Lord could again address the question as to why there cannot be pre-legislative scrutiny of the Bill—and possibly more than one Bill—as complicated as these will be.Secondly, I turn to the proposed Supreme Court and ask a number of straightforward, practical questions about the cost. This is a relevant matter and I think that we should all be grateful for the remarks made by the noble and learned Lord, Lord Hope, when he spoke of the need for value for money. I appreciate that it was the noble and learned Lord, Lord Millett, who said that the facilities they had in front of them were not sufficient and that they needed more rooms, more staff, and so on. In my time as Chief Whip, I remember that there was a request from the Law Lords for some extra rooms, which we on the Conservative side might have been able to give up. However, at that time we came under pressure from the Lord Chancellor's predecessor for yet more offices for the aggrandisement of the Lord Chancellor's Department—offices which have since been returned to the use of Back-Bench Peers.
The whole issue of cost is important. Perhaps the noble and learned Lord could answer the question posed, I believe, by my noble friend Lord Onslow when he suggested that the additional cost of having the Law Lords in this place, after one has ignored their salaries, is about £180,000. The figure that I had heard was about £165,000. I do not know what is the extra cost of having the Law Lords here, but perhaps the noble and learned Lord could give us an estimate of the cost and an estimate of the cost of installing them in a brand new building with the same number of assistants that Supreme Court judges have in Australia, America, or wherever. I understand that the Government have not decided whether to build a new one or adapt an existing building.
Bearing in mind the experience of the noble and learned Lord in dealing with the Dome, he will certainly recognise the danger of escalating costs in setting up a new building. If he has forgotten his experiences with the Dome—I dare say he has not—he can ask his colleagues in Scotland about the dangers of escalating costs when new parliamentary buildings are constructed. When we see the Bill we should have estimates from the Government on the actual costs—capital and running costs—of a new court building so that we can make a direct comparison between what we are paying now and what we may have to pay in the future.
I turn briefly to the proposed new appointments commission and particularly to the remarks of my noble and learned friend Lord Mayhew. As the noble and learned Lord will remember, he made it clear that judges would be appointed by the appointments commission only on merit and, according to the Lord Chancellor, merit would be the sole criterion. As my noble and learned friend put it, we need to know not only what merit means, but also how merit will be defined in the Bill. We look forward to an answer from the noble and learned Lord on that point.
Another point I wish to make on the appointments commission is one made by the noble Lord, Lord Phillips of Sudbury. He pointed out that what was being proposed was that two to five names would be put forward by the appointments commission for appointment to the new Supreme Court from which not the Lord Chancellor but the new rather political Secretary of State for Constitutional Affairs— not the Prime Minister—would be able to choose one. As the noble Lord, Lord Phillips, said, that appears to be, if anything, a recipe for greater politicisation of the process.
I turn to the abolition of the post of the Lord Chancellor and to the sorry events of 13 June. That appears to have been political incompetence of the worst kind. Two possible scenarios—there was a third—were put forward by the noble Baroness, Lady Kennedy. My noble friend Lord Onslow implied that the first was, in effect, just like a wheeze dreamt up by a couple of law students as they sat over coffee. The noble and learned Lord, Lord Hoffmann, put a slightly more conspiratorial gloss on the situation and said that it was part of a quick fix for getting rid of the previous Lord Chancellor. Quite frankly, either interpretation is equally likely, but what is clear—and what I believe the Prime Minister has now made perfectly clear—is that the whole matter was dealt with fairly incompetently. It was not the best way to start a major constitutional debate.
Finally, I turn to the "if it ain't broke don't fix it" school of thought, which is one that I, as a Conservative, would certainly always wish to support. I say that as a Conservative with a large "C" and a small "c". The noble Lord, Lord Goodhart, seemed to accept that it was not "broke" but said that there were some pretty odd noises coming from the mechanism. I do not accept that; and I do not suspect that the noble and learned Lord the Lord Chancellor accepted that it is broke. He made clear that he saw the judges in the highest possible light; he held them in the highest possible esteem. As I understood what he said, he did not think that there could be any better judges in the world. If that is so, I do not understand why it is necessary to mess around creating a Supreme Court when we have a system which seems to work fairly well. I said that I would be brief. I hope that I have not exceeded my time too much. We all look forward to hearing the noble and learned Lord. I hope that he will be able to address a number of the questions put to him.
6.26 p.m.
Lord Falconer of Thoroton: My Lords, I agree with the noble Lord, Lord Henley, and the noble Lord, Lord Goodhart, that it has been a remarkable debate. I have been described as a self-inflating tyre, not suave and a constitutional aberration. With the possible exception of a self-inflating tyre, I plead guilty to all the charges made against me.
I join other noble Lords in congratulating with real sincerity the noble and learned Lord, Lord Cullen of Whitekirk, on his speech. I join with the right reverend Prelate—he comes from within approximately 20 miles of the area relating to the title of the noble and learned Lord—in saying that he brings not just a breath of Scottish air. There has been an absolute gale blowing through the debate when one considers those who have spoken, including myself. I very much hope that his will not be a valedictory address but that we shall hear more from the noble and learned Lord in later debates.
The noble Earl, Lord Onslow, referred to his time on the committee chaired by the noble and learned Lord, Lord Scarman. I agree that having Law Lords in place pushes up one's game a notch or two. That has been very much in evidence during the course of today's debate.
Many issues have been raised in the course of this long and interesting debate. I shall focus on the three main issues. What is the case for abolishing the role of Lord Chancellor? What is the case for a Judicial Appointments Commission? What is the case for a Supreme Court separate from the House of Lords? Before I deal with each of those points, I categorically deny all the various conspiracy theories which have been advanced. We most certainly do not wish to reduce the independence or quality of the judiciary. Far from it: our intentions are to increase the independence and enhance the quality.
As regards the theory that it is a ruse in order to get rid of a political personality, again that is completely untrue. I believe that the issues must be debated on their merits.
In relation to the abolition of the office of the Lord Chancellor, I agree that there must be a positive case, not just a theoretical reference to the separation of powers, for the abolition of that important role. That it is an important role I fully and enthusiastically accept. Currently, the main functions of the office of the Lord Chancellor are as a Minister, having a substantial role as the protector of the judiciary, and an important role in relation to the rule of law. That role involves appointing judges. That must be done on an objective basis, defending the independence of the judiciary irrespective of any political concern. I shall continue to fulfil that function until the office is abolished and other arrangements are put in place.
How does it work in practice with the Lord Chancellor being both a Minister and having that role in relation to the judiciary? Through no decision of any government, the budget of the Lord Chancellor's department is now between £2 billion and £3 billion. That budget goes on the administration of the courts
and legal aid. Those two issues of expenditure are of huge importance because of the expenditure involved and because the issues they raise are of great importance to the public. The public are keen to see the courts operate in a way which gives them confidence in relation to domestic, civil and criminal issues. So, in relation to the expenditure and those issues, the Lord Chancellor must operate as a Minister. He must be accountable to Parliament and act on behalf of the public in what he does.Regarding his role as the protector of the judiciary, he has a separate, entirely different function. Do these roles come into conflict? They did not much 20, 30, 40 years ago, but as time has gone on, as I think the noble and learned Lord, Lord Woolf, would acknowledge, these roles have increasingly come into conflict. I give a tiny example. Today the noble and learned Lord, Lord Hobhouse of Woodborough, in a very powerful speech, made an impassioned plea for more money to be given to the Court Service. There is a real issue of priorities there. What is the role of the Lord Chancellor in relation to that? Must he act on behalf of the judges or in his role as a Minister? It must be, I submit, as a Minister.
Two other examples were given in the course of the debate. First, the noble Lord, Lord Kingsland, referred to the Criminal Justice Act, which permitted the admission of previous misconduct evidence into criminal trials in certain specified circumstances. Quite legitimately, certain members of the judiciary have made public their concerns about those provisions. Again, in relation to Clause 10 of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which is currently in another place, legitimate concerns have been raised by the judiciary.
There is a policy issue, for which in part the Lord Chancellor is responsible, as well as a rule of law issue in relation to both of those issues. As it happens, neither of those provisions infringes against the Human Rights Act or the convention underlying it. That is the advice that we have received; that is a view that I share.
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