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Lord Goodhart: My Lords, I wonder whether the noble Lord, Lord Kingsland, has actually been listening to the speech of the noble and learned Lord the Lord Chancellor. He said that he would introduce an amendment to make sure that a Minister was not able to specify what was meant by merit.
Lord Kingsland: My Lords, I am most grateful to the noble Lord, Lord Goodhart, but that is not the point I am about to make, which is that the whole definition of merit should be on the face of the Bill. It is vital that this definition is not, in any way, contaminated by any inappropriate ingredients. I hope that the noble and learned Lord the Lord Chancellor will at least bring forward at an early stage in the Committee procedure a full definition of merit as an amendment to the Bill itself.
My second observation is the extent to which the executive is to be involved in judicial selection. I know that the Lord Chancellor also proposed some amendments to this aspect of the Bill in the course of his speech. But it is still a fact that the Secretary of State for Constitutional Affairs will have considerable veto powers over the selection of most judges and quite extensive veto powers over the selection of judges in the Supreme Court.
I find that quite bewildering. The principle upon which these constitutional changes is based, as I understand it, is the principle of separation of powers. This principle has been applied most rigidly in the relationship between the judiciary and the legislature. The Lord Chancellor intends to remove the Lord Chief Justice from your Lordships' House; he intends to move the Law Lords from your Lordships' House; and yet when it comes to the relationship between the judiciary and the executive, we continue to have a relationship of deep intimacy.
I accept that the Lord Chancellor is a member of the Cabinet, but in a very special constitutional position. He is a senior lawyer; he takes the judicial oath and he is a heavyweight politician on a par with the Chancellor of the Exchequer, the Home Secretary and the Foreign Secretary; and he receives respect as such. He is also responsible to Parliament for judicial selection. Parliament is the only institution which has
Contrast the position of the Lord Chancellor with the Secretary of State for Constitutional Affairs. We understand that future Secretaries of State for Constitutional Affairs are unlikely to be lawyers. If they are not going to be lawyers, how can they possibly make an assessment of the merits of a candidate? How can they possibly exercise the discretion that they are given in this Bill to choose judges? Moreover, we all know that future Secretaries of State for Constitutional Affairs will be junior Ministers in the Cabinet. They will be unable to hold their ground against the invasive tendencies of more senior Cabinet Ministers.
In my submission, if the selection of judges is going to be done by this very close relationship between the Secretary of State for Constitutional Affairs and the Judicial Appointments Commission, then the Secretary of State for Constitutional Affairs will have to be a clone of the Lord Chancellor.
My third observation, which I make very briefly, is about that part of the Bill that deals with the establishment of a Supreme Court. Our view is that establishing a Supreme Court is pointless and extravagant. Any dispassionate observer who read the debate on 12 February in your Lordships' House will see that the majority of speeches came to the same conclusion.
I now turn to the amendment of the noble and learned Lord, Lord Lloyd of Berwick. The Opposition were the first to call for the pre-legislative review, which we did on 26 January 2004. Our request is recorded at col. 18 of Hansard. We felt that we received some support from the Prime Minister on 4 February when he gave evidence to the Liaison Committee in another place. The Times reported the right honourable gentleman the Prime Minister to have said:
On 12 February, at cols. 1219 and 1220 of Hansard, we repeated again our request for a pre-legislative review. The noble and learned Lord, Lord Lloyd of Berwick, then tabled his amendment to leave out reference to,
The speech of the noble and learned Lord, Lord Woolf, in your Lordships' House on 26 January on the occasion of the Statement by the noble and learned Lord the Lord Chancellor on judicial selection concentrated very narrowly on the issue of the concordat and the criteria for judicial independence.
In the speech that the noble and learned Lord made in Cambridge, he ranged much more widely. Among the issues upon which the noble and learned Lord touched was the issue of the Supreme Court. His conclusions can be briefly summarised by three extracts from his speech. He states first of allI quote from page nine of the Times online report:
Unlike the Supreme Court, the noble and learned Lord, Lord Woolf, had much to say on the question of the independence of the judiciary and the rule of law in the course of his intervention on 26 January. I hope that I shall not be accused of inaccuracy or unfair distortion if I make the comment that what he says on these issues in his speech suggests that some of the confidence he had in the arrangements to which he in effect gave his name on 26 January has been undermined since then by various events.
The noble and learned Lord went on to describe his experience of this much vaunted co-operation between the judiciary and the Department for Constitutional Affairs. The noble and learned Lord said that,
In all the circumstances it is clear that this experience has not been a happy one for the judiciary. I believe that the amendment of the noble and learned Lord, Lord Lloyd, is a timely one and I urge your Lordships to support it.
Lord Lester of Herne Hill: My Lords, I shall not repeat the reasons why we on these Benches support the broad thrust of the Bill's proposals, on which some of us have worked for more than two decades. I shall concentrate on the practical choices that are open to the House, before turning briefly to some of the important matters in which we will seek to amend the Bill during its progress.
The House will have to confront a difficult dilemma at the conclusion of this debate in deciding what means are realistically open to us that will best protect and strengthen judicial independence and the rule of law. That should be our touchstone in reaching our collective decisions: what will best protect and strengthen judicial independence and the rule of law? Whatever reservations are held about parts of the Billand we certainly share some of themthe House will agree that it should be read a second time. But what happens then? Should the House agree, as we would hope, to commit the Bill to a Committee of the Whole House so that the Bill can be amended and improved in the normal way, or should we follow the course to be advocated by the noble and learned Lord, Lord Lloyd of Berwick, with the support of the Official Opposition, and commit the Bill to a Select Committee?
On the face of it, the course advocated by the noble and learned Lord, Lord Lloyd of Berwick, is beguilingly attractive. The way in which the Government introduced the proposals was botched, by their own admission, with the attempt to abolish the office of Lord Chancellor by press release. By acting clumsily, with undue haste and without consulting the senior judiciary, the Government lost much potential goodwill and support for proposals that would strengthen rather than weaken judicial independence and the rule of law. That was disheartening for those of us on these Benches and beyond who have developed broadly similar proposals for more than two decades.
The argument in favour of the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, is that a Select Committee would be able to receive evidence and scrutinise the details of the Bill and make recommendations to remove its undoubted defects. That is at first sight an attractive argument that shortly will be put more attractively by the noble and learned Lord. But, if accepted, one of two unhappy consequences would be likely to result. I am sure that neither of those consequences is intended by the noble and learned Lord and neither of them would afford the best protection of the paramount constitutional values of judicial independence and the rule of law.
The first consequence would be the real risk that the Bill would be slowly scuttled. That would be for two main reasons. First, the legislative process would be halted until the Select Committee had completed its work, say by some time next autumn. There would be no likelihood that the Select Committee's work would hasten the passage of the Bill through this House, even if its recommendations were positive in nature. Detailed scrutiny and revision of the Bill would still be needed and people like the noble and learned Lord, Lord Lloyd of Berwick, who have root-and-branch objections to the parts of the Bill dealing with the abolition of the office of Lord Chancellor and the creation of a Supreme Court, would not give up their opposition. Although the Bill could, in theory, be carried over until the next Session, there would be no certainty, or even a strong probability, that it would be enacted by both Houses before a general election next spring.
Some root-and-branch opponents, including the Official Opposition, would be delighted with the prospect of sinking one of the Government's flagship Bills in that way. But, we need to look realistically at the practical consequences of sinking the Bill. We would be left with a Lord Chancellor who has candidly accepted that the division between his political loyalties and his professional loyalty to judicial independence mean that there is now an institutional schizophrenia that has become constitutionally unacceptable. It is also regrettable that recent events have seriously weakened judicial confidence in the effectiveness of ministerial protection that has traditionally been given by previous Lord Chancellors and Home Secretaries to maintaining judicial independence and the rule of law. And as the Lord Chief Justice said, in his powerful Squire Centenary lecture, there is a risk of the Department for Constitutional Affairs becoming a subsidiary of, or being unable to compete with the dominance of, the Home Office.
The noble and learned Lord, Lord Woolf, also explained that he has reluctantly joined those who say that the Lord Chancellor can no longer play his traditional role as head of the judiciary unless his responsibilities are significantly reduced. But, the noble and learned Lord, Lord Woolf, rightly recognised that it is now not possible simply to go back to the position as it was before 12 June. He said:
The noble and learned Lord explained the reasons why he and the judiciary had concluded, after the sudden removal of the last traditional Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, on 12 June, that
One matter which the noble and learned Lord, Lord Woolf, described as "particularly regrettable"and has been mentioned alreadyis the fact that the Lord Chancellor and Secretary of State should find it acceptable to have responsibility for promoting Clause 11 of the current Asylum and Immigration (Treatment of Claimants, etc.) Bill when the judiciary had advised him that such a clause,
We entirely share those concerns. But if this Bill is scuppered as a result of the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, the present Lord Chancellor and Secretary of State will remain yoked in double harness in office, without the much-needed statutory safeguards of judicial independence; and, constitutionally, the Lord Chancellor, with the Prime Minister, will remain exclusively responsible for making all appointments to
These Benches strongly favour the creation of a powerful ministry of justice with the legal stature and qualifications of a traditional Lord Chancellor and that has a specific duty to uphold the rule of law and the integrity of the judicial system. We hope that the Official Opposition will agree with that core policy of our party. It would do much to repair the damage done in the aftermath of 12 June. However, if the Bill is scuttled the House will disqualify itself from introducing that essential bulwark into the statutory scheme at the present stage.
The other likely scenario, if a majority of the House accepts the amendment, is that the Government will withdraw the Bill from this House and introduce it in the other place. It is a flagship Bill to which they are firmly committed. If they do so, that will greatly reduce our power to influence the Bill's contents, not least because it is likely that the Government will invoke the Parliament Act in the name of upholding good governance, judicial independence and the rule of law.
The Government have paid us a compliment by introducing the Bill in this House, where they lack an inbuilt political majority, rather than in the other place. Surely it would be wiser to keep the Bill here, firmly under our control, rather than weakening our real influence if the Bill is transferred to the Commons. We will then have ample opportunity to scrutinise and revise the Bill in the ordinary way.
Like many across the House, we on these Benches would oppose the creation of a Supreme Court separate from and independent of this House, unless and until it were given a proper home and sufficient resources. The way to deal with that is not by sinking the Bill, but by amending it to ensure that Part 2 cannot be brought into force until those requirements have been fully met. For all those reasons, we hope that the noble and learned Lord, Lord Lloyd, will
I have already explained that the main proposals in the Bill have our support and that they reflect long-standing core Liberal Democrat policy. But there are several flaws in the Bill that need to be tackled. I mentioned the pressing need for a well qualified Minister of Justice with a clear duty to uphold judicial independence and the rule of law, and who is a lawyer. We also believe that there should be a formal procedure, by means perhaps of a Joint Committee of both Houses, through which the views of the judiciary can be given to Parliament. We are grateful that the noble and learned Lord the Lord Chancellor and Secretary of State has just conceded that the concordat has not been fully translated into the Bill, but we greatly welcome the fact that he has undertaken to introduce necessary amendments. In view of what the noble Lord, Lord Kingsland, said, I will spell outso that there is no doubt about itwhat has been said. The panel to appoint members of the Judicial Appointments Commission for the Supreme Court will be an appointing panel and not an advisory panel to be consulted by the Minister. That is the first point.
The second point is that appointments on merit are of fundamental importance. What we have heard from the noble and learned Lord, Lord Falconer, is that he will amend Clause 51 so that it will be the Judicial Appointments Commission and not the Minister that specifies the considerations to be taken into account in assessing merit. As Professor Sir Colin Campbell, the wise chair of the Commission for Judicial Appointments, noted in his letter to the Times on Saturday, it is:
As regards Part 2 of the Bill, we believe that the process of appointment to the Supreme Court for the UK should correspond to the process for the appointment of senior judges in England and Wales, with only one namerather than two to fivebeing submitted by the Appointments Commission. The name of that candidate should be submitted not to the Ministerat least certainly not unless we have a Minister of Justicebut to the Prime Minister, with a requirement to give reasons to the commission for the rejection if the Prime Minister does not find the candidate acceptable. Those changes would reduce the scope for political interference.
When selecting candidates for the Supreme Court, the commission needs to be broad-based and to include members of the Scottish and Northern Ireland commissions. The provision in the Bill for further consultation by the Minister with politicians in Scotland, Northern Ireland and Wales, and with secret soundings by Ministers with senior judges, is wholly objectionable because of the risk of political
The senior Law Lord, the noble and learned Lord, Lord Bingham, the noble and learned Lords, Lord Steyn and Lord Woolf, have expressed similar views, combining pragmatism with constitutional principle. The House will surely agree with them that the Supreme Court of the United Kingdom must have adequate resources not only to promote efficiency and quality in the judicial process but also for the lawyers and the general public. It has to be at least on a par with other final courts across the Commonwealth.
The Supreme Court should have responsibility for the administration of its own resources and for negotiating them with the Treasury. The noble and learned Lord, Lord Bingham of Cornhill, explained in his evidence to the committee in the other place that the Supreme Court should have its own staff, employees and budget. That committee concluded that,
Again we agree. The Supreme Court should have responsibility for administering its own resources. Its running costs should not be recouped by imposing a surcharge on court fees, but should come from general taxation.
To conclude, we support the main proposals for constitutional reform contained in this Bill and recognise the pressing need for the Bill to be enacted before the next election. We oppose referring the Bill to a Select Committee because we believe that it would sink the Bill and weaken judicial independence and the rule of law, instead of enabling the House to have primary responsibility for scrutinising and revising the Bill. We will seek to amend the Bill in important respects to give greater protection to judicial independence and the rule of law. We support deferring Part 2 until suitable accommodation and resources for the new Supreme Court become
Lord Lloyd of Berwick: My Lords, as I spoke in the debate on 12 February I will follow the Chief Whip's advice and concentrate today solely on the question of whether the Bill should be referred to a Select Committeea view which was expressed by very many speakers in the debate on 12 February, including the right reverend Prelate the Bishop of Portsmouth, who I see is present, together with a number of the other right reverend Prelates.
Before I come to that, I add a short postscript to what I said last time on the question of Part 1 of the Bill. It arises out of something which was said by my noble and learned friend the Lord Chief Justice in his lecture the other daya lecture which has already figured largely in what has been said by Members of the House. If I read him right, he said that he had reluctantly now come to the view that it was, or might be, too late to put the clock back to where it was on 11 June. He said that that was a view which he was expressing personally, not on behalf of the judges. It seemed to me to be a view which went rather further than the views which he expressed when he last addressed this House. But whether that be so, I have to say that I do not share that view. It is not too late to save the office of Lord Chancellor. That is what I hope we shall do, and I hope that very soon the noble and learned Lord the Lord Chancellor will confirm that it is not part of his case that it is now too late to put the clock back, as appears to be the case of the noble Lord, Lord Lester.
What would that mean if that were so? It would mean that the Government could make fundamental changes in our constitution without any mandate from the peoplenone has been suggestedand without any consultation of any kind. Then he might say, eight or 10 months later, "Sorry, the die has been cast; it is now too late to go back". All of us would regard that as intolerable and I hope that the noble and learned Lord the Lord Chancellor will confirm that it is not too late. Otherwise, it seems to me that we are making a mockery of parliamentary control of executive action.
Two years ago, on the initiative of the then Leader of the House, Lord Williams of Mostyn, the House accepted a recommendation that virtually all major government Bills should, as a matter of course, be subject to pre-legislative scrutiny. That has been government policy since 1997, as one can see from the first report of the Modernisation Select Committee in the other place. It said that there is almost universal agreement that pre-legislative scrutiny is right in principle. I assume that that is still government policy on the Front Bench. I look to see whether there is any sign of assent to that, but at the moment I see none.
On any view, the Bill is of major importance, yet there has been no proper consultation even now. Yes, there has been consultation on the details, as the noble and learned Lord the Lord Chancellor pointed out on 12 February,
It follows therefore that this Bill was an obvious candidate for pre-legislative scrutiny. All the more so since the Constitutional Affairs Select Committee of the House of Commons, under the chairmanship of the right honourable Alan Beith, with a large majority of Labour Members, made a strong recommendation that the Bill should be published in draft form so as to allow proper scrutiny for what they called "fundamental changes". I had the honour of appearing before that committee, as did many of my colleagues.
Yet when the Bill was published three weeks later, the Government simply ignored the committee's advice without any apparent explanation. If I had been a member of that committee, I should have been somewhat aggrieved. If the Bill had started in the House of Commons, I would have expected someone to get up and make suitable noises. But that could not happen because the Government decided, for their own purposes, and in my respectful view rightly decided, that the Bill should start not in the Commons but in your Lordships' House. It seems to me to follow, therefore, that it is not only right but our bounden duty to give this Bill the kind of scrutiny which the Commons Select Committee so strongly recommended and on which it might have insisted. We ought to do that if only out of respect for the other place.
Let me give two examples of how we should be helped by a report from a Select Committee. First, there is the question of costs. The only information we have appears on page 50 of the Explanatory Notes. The current gross cost of running the House of Lords as a judicial body in this House is given as £623,000. The net costthat is, net of feesis £168,000. I would expect your Lordships to be astonished by those figures. It seems to me to be extraordinarily good value for money.
What will be the cost of removing the Law Lords to what was the other day called "a place of safety"? The capital cost is given as between £6 million and £32 million, which seems a wide bracket. The annual running costs, excluding Law Lords' salaries so as to make it comparable with the other figures I have given, will amount to £8.7 million, if my arithmetic is correct. These figures cry out for an investigation by a Select Committee before we can go any further with the Bill.
It was said by the noble Lord, Lord Lester, and hinted at by the Government that we need not worry about those figures because the legislation will not be brought into force until a new building has been found or created and the Law Lords are in a position to take possession of it, like the gods entering the new Valhalla. But that objection misses the whole point. We cannot even begin to legislate without knowing what it is all going to cost. How can we form a view,
Then it is said that the enormously increased running costs do not matter because most of them can be recovered from those poor souls who are using the lower courts. But why should they be asked to pay? What will they get out of it?
That brings me to the second point which seems to me to cry out for further investigation. If we are to have a cost/benefit analysis of the new Supreme Court, what exactly is the alleged benefit? The only benefit so far identified by the Government is the removal of a so-called perception in the mind of the public: a perception that the Law Lords are not independent; a perception that their decisions are politically motivated; and a perception that they are operating under the shadow of Parliament. Those are not my words; they are the words of the Government in their consultation paper. I find it very difficult to take those words seriously.
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