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Lord Strathclyde: My Lords, one of the reasons why the House has heard so much from the noble and learned Lord, Lord Lloyd of Berwick, is that he was asked by the former Leader of the House, Lord Williams of Mostyn, to chair a committee on the Speakership. The noble and learned Lord, Lord Lloyd of Berwick, has naturally spoken on many occasions on that subject.

Lord Carter: My Lords, the noble Lord, Lord Strathclyde, is quite wrong. If he examines the table helpfully prepared by the Library, he will find that the noble and learned Lord, Lord Lloyd of Berwick, has spoken on 36 occasions on a number of Bills on all sorts of issues, not just on the Speakership of the House.

I am sure that a number of the noble Lords who support this Motion are thinking of a Select Committee that would take evidence and then report in rather the same way as the committees on stem-cell research or incitement to religious hatred, or indeed as a Select Committee of this House or a joint Select Committee of both Houses would in relation to a draft Bill. Having chaired two Select Committees on draft Bills, I know how useful the procedure can be. The case has been advanced that the Constitutional Reform Bill

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should have been a draft Bill. That argument is irrelevant to the amendment tabled by the noble and learned Lord, Lloyd of Berwick. The Government have not produced a draft Bill. There is a substantive Bill before the House and the procedure of a Select Committee on a Bill is very different from that of the type of Select Committee that I am sure many noble Lords have in mind.

I am not sure that the noble and learned Lord, Lord Lloyd of Berwick, consulted the Companion to make himself aware of the specific procedure before he tabled his amendment. It might help the House in this debate to know whether he did. I shall give way to the noble and learned Lord, Lord Lloyd of Berwick, if he would like to inform the House whether he is aware of the specific procedure for a Select Committee on a Bill.

Lord Lloyd of Berwick: My Lords, indeed I am and I have consulted the Officers of the House. They have informed me that what I am proposing is the correct way to approach pre-legislative scrutiny in this House today.

Lord Carter: My Lords, let us see what the Companion says. It states:


    "When the Committee has completed its deliberations, it makes a report to the House on the provisions of the Bill, recommending whether or not it should proceed."

Lord Campbell of Alloway: My Lords, we are not concerned with what the Companion says, but with the answer to the question that the noble and learned Lord, Lord Lloyd of Berwick, asked. What was the advice that was given to the noble and learned Lord, Lord Lloyd of Berwick? That is what we are concerned with.

Lord Carter: My Lords, that advice was entirely correct. Of course the noble and learned Lord, Lord Lloyd of Berwick, can table an amendment such as this. However, there are rules that govern the sending of a Bill to a Select Committee. The Companion states:


    "If it considers that the bill should proceed, the committee reports it with such amendments as it thinks fit, and the bill is then recommitted to a Committee of the whole House in the form in which it has been reported. If the committee considers that it should not proceed, it reports the Bill accordingly, without amendment.


    "When a select committee reports that a bill should not proceed, the Bill is not recommitted . . . The bill remains in the list of Bills in Progress until the end of the session under the heading 'Reported from the select committee that the bill should not proceed'. The House normally acquiesces in a report from a select committee recommending that a bill should not proceed, and no further proceedings on the bill take place."

Are the noble and learned Lord, Lord Lloyd of Berwick, and those who support his amendment really proposing that 12 or perhaps 16 Members of this House should have the power to recommend that a major constitutional Bill should not proceed, or should have the power substantially to amend the Bill? Is the power of such a Select Committee to amend the Bill to be preferred to the Committee, Report and Third Reading of the Bill on the Floor of the House?

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It is no accident that only one government Bill has ever been sent to a Select Committee. If the House were to accept this amendment, it would be setting a very dangerous precedent. It is clear that the Bill could not be completed this Session. The House would be ignoring a very powerful convention that the Government of the day are entitled to get their business through without unreasonable delay.

If the Opposition were to support this amendment, it would be the second occasion in less than two years on which they have supported unprecedented procedures to delay government business. The first occasion was that of the Animal Health Bill 2002, and this is the second example. I find it hard to believe that the Opposition really believe that they will form the Government after the next election if they behave in this way.

I say in the friendliest possible way to the Opposition that the Chief Whips are renowned for their longevity and their long memory for devices which delay government business. I see from today's press that Mr Alan Duncan, the opposition spokesman in the other place, said that the Government should bin the Bill. If that is what the Opposition think, why did they not have the courage of their convictions and table a Motion that the Bill should not receive a Second Reading? Instead, they have hidden behind the amendment of the noble and learned Lord.

I have set out very clearly why a Select Committee on a major government Bill is unprecedented and why its procedure is singularly inappropriate. I ask the noble and learned Lord, Lord Lloyd of Berwick, to consider very carefully the implications of what he proposes. If the amendment is put to a vote and accepted, it will be an unprecedented challenge by a House where the Government are substantially in the minority to the undoubted right of the elected Government to secure their business, and it would go to the heart of the powers of this House to scrutinise and revise legislation.

If the amendment were accepted, in my view, the Government would be acting entirely properly and well within their rights if they withdrew the Bill and immediately introduced a No. 2 Bill in the Commons. In that event, this House would lose the advantage of being the first House to consider the Bill, which would then, of course, become subject to the Parliament Acts.

This House should not allow itself to become party to a confrontation between some elements of the judiciary and the Government.

Lord Alexander of Weedon: My Lords, I speak as someone who does not want to become a party to any confrontation but who is trying to achieve decent legislation in decent form, and I address the noble Lord, who, as a government Chief Whip, was a very fine supporter of this House. Can he give his view on whether the Bill should have been subject to pre-legislative scrutiny before it was introduced?

Lord Carter: My Lords, there were two major consultation papers and 442 responses to those consultations on reforming the office of Lord Chancellor

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and setting up a Supreme Court. Thorough consultation has taken place with a substantial response. Incidentally, if the Select Committee were set up, presumably all the people whose evidence is already in the public domain would have to repeat it for the Select Committee.

This House should not allow itself to become party to a confrontation between some elements of the judiciary and the Government. I ask the noble and learned Lord and those who support his amendment to think very carefully indeed about the course of action that he is proposing.

4.32 p.m.

Lord Woolf: My Lords, as I see it, my role in your Lordships' House is, because of the office that I hold, to communicate to your Lordships directly the views of the judiciary and, in particular, those of the Judges Council, of which I am chairman. I appreciate that the desirability of the Chief Justice of the day continuing to perform that role is controversial. However, for the time being, I shall continue to assist the House to the best of my ability without aligning myself with any political party. Consistent with that position, I do not, and will not, vote while I hold my present office.

Whatever may have been the position historically, the modern judiciary, far from being opposed to change or reform, is willing to embrace it and support its implementation. However, it wants to see that what is proposed will improve the quality of justice available to the public. Increasingly, it is the judiciary's experience that, if it is involved in proposals for reform from an early stage, it can help to ensure that the changes are successfully devised and implemented in a way that would not be possible without its support.

That experience has dictated the judiciary's approach to the proposals for constitutional reform. In the past, I have made no secret of the judiciary's unhappiness about the manner in which the proposals were first announced. However, we have put that concern to one side in order to focus on the future. Representatives of all levels of the judiciary have worked, within a constrained timescale and in close co-operation with the Department for Constitutional Affairs, to identify the safeguards that need to be put in place to protect judicial independence.

That work resulted in the agreement reached between the judiciary, the noble and learned Lord, Lord Falconer of Thoroton, and myself, which we have heard described in this House as the "concordat". Its terms have been included in the Bill, subject to certain amendments which the noble and learned Lord has agreed are needed.

The noble Lord, Lord Kingsland, was right and correctly quoted from the speech that I gave last week. However, nothing that I said in that speech was intended to detract from the concordat or to indicate that I am in any way dissatisfied with it. However, as I indicated in that speech, it is correct that there are matters of concern to which I referred and, in particular, one matter which is not before this House today.

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The judiciary considers that the parts of the Bill that reflect the concordat are a highly desirable package of measures designed to ensure the continued independence of the judiciary. The provisions reflect the need, which the judiciary recognises and welcomes, for the executive and legislature to have an appropriate share of the responsibility for the justice system. The continuation of a spirit of partnership between the legislature, the executive and the judiciary is critical if the courts are to be able to meet the evolving needs of society. In that connection, I was pleased to hear this morning during the appearances of the noble and learned Lord the Lord Chancellor on the radio that he is now prepared to reconsider whether anything could be achieved in relation to Clause 11 of the Asylum and Immigration (Treatment of Claimants, etc.) Bill.

However, given that the concordat is designed to protect the independence of the judiciary, I would expect the parts of the Constitutional Reform Bill which are based upon the concordat to be welcomed by all sides of the House. If they are, that will be highly satisfactory as, in my judgment, constitutional reform should be by consensus whenever possible. In that regard, in relation to the concordat, I was pleased to hear my noble and learned friend Lord Lloyd of Berwick indicate that it is not Part 3 of the Bill which he considers should be the subject of scrutiny.

I accept that it is extremely important for the Bill to be properly scrutinised during its passage through this House. However, I hope that that can occur in the conventional way because the transitional position is, in my view, wholly unsatisfactory for the administration of justice. I can see, and would accept, that a delay of about three months might be manageable, but I would consider it an unsatisfactory situation if the present position were left in place.

I base my comments on my experience of dealing regularly with the Department for Constitutional Affairs. I have immense personal admiration for the civil servants who work in that department, and I know the ability that civil servants have to change their approach as a result of a change in administration. However, I have to say to your Lordships that I and my colleagues have reservations about whether it is practical to go back to where we were before 12 June—whether such a situation is regrettable or not.

Quite apart from that matter, a new method of appointing judges is urgently necessary. We need an appointments commission. The present method of appointing judges has proved unsatisfactory by modern standards. We have done our best, and successive Lord Chancellors have done their best, but it is not a novel statement to say that a fresh approach is needed. This could only be properly and appropriately provided by an appointments commission.

The judiciary does not want the present situation to continue longer than is absolutely necessary. It wants to see the protection for the justice system that the package provides enshrined in statute at the earliest appropriate date. It would be concerned if the House took a course which meant that there was a serious risk of that not happening.

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The position as to the Supreme Court is different. Here, the judiciary has no agreed position that I can report to the House. I am myself ambivalent on the subject, and have been very much influenced by the speeches that I have already heard in the House on the advantages and disadvantages of having a Supreme Court. What the judiciary is agreed on is that, if there is to be a new Supreme Court, it should be appropriately accommodated and resourced.

There is but one more matter to which I wish to refer. An advantage of addressing your Lordships in person is that it avoids being quoted out of context. I believe this happened last week, and, as a result, an unfortunate impression was created that I personally intended to be discourteous to my noble and learned friend the Lord Chancellor. I can assure the Lord Chancellor that no discourtesy was intended, but I apologise if offence was caused.

What happened can be seen from the full text of my Cambridge lecture. In the course of my speech I referred to that mythical legal figure "the man on the Clapham omnibus". I suggested that he might not take seriously my concerns about having a single person performing both the roles of a Secretary of State and Lord Chancellor, since, after all, that,


    "engagingly friendly and cheerful chappie",

appeared quite happy performing both roles.

I hope that it is not inappropriate to describe my noble and learned friend as "engagingly friendly and cheerful". This may or may not be a description that all Lord Chancellors would have had applied to them. However, I confess that it reflects my opinion of the present Lord Chancellor.

The rub is the use of the colloquial word "chappie". It betrays a degree of undue familiarity when used of a person holding a high office of state. If I had not been attributing the words to the man on the Clapham omnibus—in a vain attempt to inject a lighter note into a speech out of sympathy for my audience—I would not have used it. However, now that I have explained, I hope it will be accepted that I intended no disrespect.

On reflection, I suspect that I should also apologise to the venerable gentleman on the Clapham omnibus, who I now appreciate would never use the word "chappie".

I also apologise to your Lordships for raising the subject. However, my use of the word "chappie" has over the past few days—to my horror—been treated by a number of commentators as indicating that the country is in a state of crisis, and I thought that your Lordships should see the context.


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