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Lord Maclennan of Rogart: My Lords, if the noble and learned Lord is not prepared to take seriously the words of the Government as published in their White Paper, is he prepared to take seriously the words of the noble and learned Lord, Lord Bingham of Cornhill, the senior Law Lord, when he said that it is high time that we have a Supreme Court divorced from the legislature and therefore representing in institutional terms what the constitutional reality is and that judges are not legislators, they are judges?

Lord Lloyd of Berwick: My Lords, of course I take seriously the views of the noble and learned Lord, Lord Bingham, and indeed the noble and learned Lord, Lord Steyn, and the noble Lord, Lord Brennan. But they are all what I would call constitutional purists. I am a realist. I see the cost of making this change and I am trying to compare it with the benefit.

The benefit appears to be the so-called perception. I have never met anyone with those perceptions and I wonder whether the noble and learned Lord the Lord Chancellor has done so. This is not the point being made by my noble and learned friend Lord Bingham; it is the point the Government make about what people perceive of the judiciary. The Government have put no evidence forward that any such perception exists. There has been no response from the public on that point because the Government did not ask the relevant question.

It may be said that the Government do not need hard evidence of such a perception because it is the job of politicians to know the public mind. So we in this House are being asked to legislate on the basis of a double perception—I adopt the brilliant phrase used the other day by noble Lord, Lord Norton of Louth—because we are being asked to legislate on the basis of the Government's perception of a perception in the mind of the public. I prefer to stand with my feet firmly on the ground and settle for what we have. Otherwise, we shall risk spending much time and money and cause huge upheaval in solving a problem that either does

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not exist at all—that is my view—or, if it exists, does so only in the minds of those constitutional purists to whom the noble Lord referred just now.

On a cost/benefit analysis, it seems to me that there can be only one outcome. Indeed, the situation is worse than that. Noble Lords who heard the noble and learned Lord, Lord Nicholls of Birkenhead, speak a week or so ago, supported by the noble and learned Lords, Lord Hope and Lord Hoffmann, will realise that there is a real risk, not just of an absence of benefit but of a positive detriment, in moving the Law Lords from their present position to another building. We thus have a novel concept: not a cost/benefit analysis, but a cost/detriment analysis.

Perhaps I may end by addressing a few words to the Liberal Democrat Benches.

Lord Marsh: My Lords, I am grateful to my noble and learned friend for giving way. I am very impressed, as I believe is the whole House, by the detailed analysis that he is giving of what could be achieved through his amendment to improve the Bill. My puzzle or problem is that on 12 February, when he made a typically trenchant speech, he closed, quite rightly and powerfully, saying:


    "A case has not been made and I hope that the legislation will never be brought forward".—[Official Report, 12/2/04; col. 1265.]

What has happened in the past 14 working days?

Lord Lloyd of Berwick: My Lords, I can tell the noble Lord exactly what has happened. The last words in that speech were said in a mood of such exasperation that they may have been better thought out. They were perhaps not the exact words that I should have used.

As I say, I end by addressing a few words to the Liberal Democrat Benches. We all know that a policy of theirs is, and has been for many years, to create a ministry of justice, in place of the Lord Chancellor's Department. Therefore, this Bill undoubtedly represents a step in the right direction. I can well understand that. What I cannot understand is the need to hurry.

From the point of view of those on the Liberal Democrat Benches, surely it is all the more important to get this vital step right, even if it depends on waiting for three months, say, for a report from a Select Committee. Evidently, that was the view of the right honourable Alan Beith, chairman of the Lord Chancellor's Department Select Committee, a view which no doubt Members on the Liberal Democrat Benches in this House will take very seriously. For it would appear odd if the Liberal Democrat Peers took a view that was different from that taken by Alan Beith and his committee in the House of Commons.

Of course, I could understand Liberal Democrat anxieties if this Motion meant that the Government would lose the Bill altogether. But that will not be the consequence. The Select Committee would need about three months to gather evidence and to form a view. It could report by the end of July, which means that the Bill could be through this House by the end of October and, as a matter of course, it could and would be carried over, in the Commons, to the next Session.

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Where a Bill is subject to pre-legislative scrutiny, whether it has been mentioned in the Queen's Speech or not, it has always been contemplated that it may be necessary to carry it over—and why not?

That point appears to have escaped the Lord Chancellor—unless I missed something—when he was engaged in whizzing around studios this morning. When he was asked a specific question he made no reference at all to the possibility of the Bill being carried over. It seems to me that if my figures are right, the Bill could be on the statute book before the earliest date for the next election. I hope that that will provide some comfort to those on the Liberal Democrat Benches.

We are at a crossroads. Do we mean what we say about pre-legislative scrutiny or not? Do noble Lords regard my amendment to the Motion as a mere device, which was how it was described by the Lord Chancellor this morning, to prevent the House of Commons even considering the Bill or not? As far as I am concerned, this is not a device. For I cannot imagine a Bill that is more deserving of pre-legislative scrutiny and I cannot imagine a Bill in respect of which there is less haste. We are not dealing with a sudden catastrophe; we are not dealing with a breakdown in the health service, or a new wave of international terrorism; we are dealing with institutions that have been around for centuries. We have two former Lord Chancellors with us who have carried with distinction the heavy burden that everyone knows rests on the Lord Chancellor's shoulders, a burden which the present Lord Chancellor says he finds too difficult or perhaps too distasteful to carry.

Law Lords have been around since 1873 and before that there were famous judges. Great changes in the constitution, especially when they concern the administration of justice, should be made by consensus and not by government diktat.

My amendment to the Motion would mean that the whole Bill should be referred to a Select Committee. But I would not expect that committee to have any trouble with Part 3, which has already been subject to the closest possible pre-legislative scrutiny by the Lord Chief Justice himself and the judges. What better pre-legislative scrutiny could one have? It is Parts 1, 2 and 4 that worry me.

My last point is that last Thursday I had a conversation with the Chief Whip at his request. He asked me to bear in mind that if my amendment to the Motion were carried it would mean that this House would never again, during the lifetime of this Government, have a major Bill for consideration at the start of a parliamentary Session.

Lord Grocott: My Lords, perhaps I can respectfully say that there were two parties to that conversation and that certainly is not what transpired between the noble and learned Lord and myself. I said to the noble and learned Lord—I took the precaution of noting it down—that it would make it extremely difficult for business managers such as myself to argue with other colleagues

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in government that major legislation should start in this House if the effect were to delay it or even prevent it proceeding to the other Chamber.

Lord Lloyd of Berwick: My Lords, I entirely accept the correction, but it makes not the slightest difference to what I was about to say. The noble and gallant Lord, Lord Craig of Radley, the Convenor of the Cross-Benchers, was asked by the noble Lord, Lord Grocott, to inform the Cross Benches of what would be the likely result if the amendment to the Motion were carried. I do not know whether that was an attempt to twist my arm. On the whole, judges are not used to having their arms twisted. But if my arm was being twisted, I did not feel any pain. I told the Chief Whip that if that were a factor in the equation, it was not for me to decide, but for the House as a whole, which is why I mention it now.

4.20 p.m.

Lord Carter: My Lords, the noble and learned Lord, Lord Lloyd of Berwick said that as he had spoken on 12 February he intended to truncate his remarks. I cannot help wondering how long he would have spoken for if he had not spoken on 12 February.

It had not been my intention to speak in this debate, but I decided to do so when I saw the amendment that was tabled and has now been spoken to by the noble and learned Lord, Lord Lloyd of Berwick. To send a major Government Bill to a Select Committee is completely unprecedented and the procedure of such a committee is singularly inappropriate for the consideration of a major Bill. I will show this later in my speech. As we have heard, only one government Bill has ever been sent to a Select Committee—the Hare Coursing Bill 1976. That was an important but not a major Bill. The Select Committee effectively killed it. Incidentally, that Bill was produced by a Labour government and the Conservative opposition proposed the setting up of a Select Committee. With this one exception, the Select Committee procedure has been used only for Private Members' Bills.

Before dealing with what I regard as the fatal flaws in the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, I should like to deal with the anomalous position, in respect of this Motion and the proceedings of the House generally, of the 12 Lords of Appeal in Ordinary and the eight retired Law Lords who are still eligible to sit judicially. In my view, this anomaly shows exactly why it is right that the Law Lords should no longer be Members of this House, as set in Clause 94.

The principles of participation by the Law Lords were clearly set out by the noble and learned Lord, Lord Bingham of Cornhill, the senior Lord of Appeal in Ordinary, in his Statement of June 2000. He stated that:


    "As full Members of the House of Lords the Lords of Appeal in Ordinary have a right to participate in the business of the House. However, mindful of their judicial role they consider themselves bound by two general principles when deciding whether to participate in a particular matter or to vote: first, the Lords of Appeal

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    in Ordinary do not think it appropriate to engage in matters where there is a strong element of party political controversy; and secondly the Lords of Appeal in Ordinary bear in mind that they might render themselves ineligible to sit judicially if they were to express an opinion on a matter which might later be relevant to an appeal to the House."—[Official Report, 22/6/00; col. 419.]

The amendment that we are considering is clearly a matter of party political controversy. The Government are strongly opposed to the amendment, but the Opposition, as we have heard, support it. If the principles of the statement of the noble and learned Lord, Lord Bingham of Cornhill, are to be observed, the Law Lords should not participate or vote on this amendment or indeed take part in proceedings on the Bill.

This Bill and this Motion directly concern the future of the Law Lords and the role of the judiciary, yet by their own self-denying ordinance the Law Lords remove themselves from the debate and the vote. Nothing could more clearly show the anomaly of the Law Lords as Members of this House. In my view, if there was an argument for them staying, it was effectively ended by the statement of the noble and learned Lord, Lord Bingham of Cornhill, who has not spoken in this House since that statement. I would interpret the statement as also applying to the eight retired Law Lords who are still eligible to sit judicially. It is interesting to note that of those retired Law Lords, seven have either not spoken at all since June 2000 or have spoken on four occasions or fewer. The noble and learned Lord, Lord Lloyd of Berwick, has spoken on 36 occasions since June 2000 and has sat judicially 28 times, most recently in December 2003.

I use those figures to illustrate the anomaly of the Law Lords being Members of this House. It is clear that the noble and learned Lord, Lord Lloyd of Berwick, does not consider that that part of the Bingham statement referring to party political controversy applies to him, since if he did he would not have been able to table his amendment or vote for it.


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