Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Clinton-Davis: My Lords, I am much obliged to the noble and learned Lord for giving way. If judges were automatically to be Members of this House, why should that privilege not also be extended to members of other professions and other jobs?

Lord McCluskey: My Lords, having heard what the right reverend Prelate has just said, one could say that it already is. I do not know why that is the case. Traditionally, since 1870, there have been Members of the House of Lords who are judges and who are entitled to take part, and do take part, in the work of the House. On the occasion of which I speak in 1998 when we carried an amendment against the government, four serving judges voted in the Lobby in which I was a Teller. That is the tradition that we have.

I could multiply the ways in which judicial Members of this House have helped it to improve legislation, but I believe that if they are no longer allowed to speak that would be a loss. It might be a tolerable loss, but it is a real and palpable one. No doubt, a young academic, sitting down with a blank sheet of paper, would not frame a constitution where judges were allowed to speak in the upper Chamber. But he would never get around to creating an upper Chamber that resembled this one at all. Can one imagine the constitutional purists creating the House of Lords? I certainly cannot.

We are not starting from scratch. We are the inheritors of centuries of history, which have seen the constitutional institutions and conventions evolve. That history has fashioned a court, within this building, of unequalled reputation, both for quality and independence—a beacon of legal excellence, as it was called by my noble and learned friend the Lord Chancellor. No one could image that it is at all corrupted or influenced by politics.

By contrast, if we look at the United States of America, we see, or at least we think we see, a constitution that is built on the basis of the strictest separation of powers. American judges are not in Congress or the executive, but the Federal judiciary is by no means non-political. When I was privileged to give a Reith lecture in 1986, I quoted a statistic that showed that 98 per cent of judges appointed to the Federal bench by President Reagan were registered Republicans; and when President Carter appointed his Federal bench, 97 per cent of his appointees were

8 Mar 2004 : Column 1032

registered Democrats. It is no wonder that many commentators argued that there is a political slant to the judiciary in the United States, despite their separation of powers, and that that political slant perhaps influenced the members of the Supreme Court to come to a narrow majority on the question of the voting in Florida in the year 2000.

I do not believe that constitutional purism or purity in relation to the separation of powers guarantees either the independence of the judiciary or even the appearance of independence. What is important for the independence of judges is the manner of appointment, so I support Part 3 of the Bill. Even more important is the manner of dismissal and I hope that the Government will look again at the provision that they put into the Scotland Bill to see whether something similar might be introduced in relation to English judges—if only for the sake of appearances, which seem to be important.

I will not take up your Lordships' time by talking about the costs of the court. However, it must be borne in mind that in 1999 the then Secretary of State for Scotland told us that the new Parliament would cost 40 million. That cost has now reached 440 million and is rising. By the way, it will also be five years late. Lessons are to be learned from that about predictions. I discovered that the estimate of the cost of the new Supreme Court is between 6 million and 32 million. That would be a fairly wide range if one were buying ice cream or anything else. Something is wrong with that estimate. It means that the Government have not decided on a place or a design for it, so that they do not know what they are predicting.

There is a widespread perception that the principles behind the Bill were not thoroughly considered before they were announced. It may be true that the Lord President of the Court of Session, the Lord Advocate of Scotland and the Dean of the Faculty of Advocates were not consulted. As far as I know, no one was consulted in Scotland. I wonder if even the Advocate General for Scotland, who is a member of the Government, was consulted. Has the matter suddenly become of such urgency that it cannot be subjected to scrutiny by a Select Committee? I would hate to be accused of sinking a flagship, but I certainly would not mind if it were put into dry dock and had its bottom examined by a few experts—just to see whether it was seaworthy.

6.24 p.m.

Lord Waddington: My Lords, I keep asking myself why, if there is to be an appointments commission, should it not be there to advise the Lord Chancellor, leaving that prestigious office in existence. That brings me straight to a fundamental objection to the Bill.

The Lord Chancellor said,


    "we must ground our changes in history".—[Official Report, 12/2/04; col. 1212.]

But the Government have done precisely the reverse. Instead of adapting what we have now in order to meet what the Government believe to be new demands and changed circumstances, instead of keeping the office

8 Mar 2004 : Column 1033

of Lord Chancellor but circumscribing his powers of appointment and building on the network of conventions that already exist to ensure that it remains acceptable for him to be both head of the judiciary and a member of the Cabinet, instead of keeping the Lords of Appeal on the understanding that they would not speak on the Floor of the House on politically controversial matters or a matter that might become subject of an appeal to the House sitting in a judicial capacity, the Government have gone in for mass destruction without even giving us 45 minutes' warning.

I do not believe that the wisdom of the ages should be abandoned readily in favour of political theory. When change is necessary it should not be brought about by the rooting out of well-tried institutions which command public respect and confidence, it should come as a result of the adaptation of those institutions to meet the new needs.

I fully appreciate that some people find the anomalies in the present system hard to stomach, find it offensive that the head of the judiciary sits in the Cabinet and that our most senior judges sit in this House. But although there are people of that persuasion—the noble Lord, Lord Lester of Herne Hill, is one—who have wanted a change of this nature for years, up to last summer the Government showed few signs of being of that persuasion. Until last summer they were steadfastly defending the system that they now want to scrap.

That presents us with another difficulty. If proposals for constitutional change are made out of the blue, without a hint of what is to come, let alone any prior consultation, and if those proposals conflict with what has previously been the Government's declared policy, some people will doubt the Government's motives. Some are bound to think that the object of the exercise may not be to get the best judges but to get judges more to the liking of the Government. That is not good for any of us and is certainly not good for the judicial system.

For the life of me, I cannot see how matters are improved by removing the Lord Chancellor as the key figure in the appointments system and then putting responsibilities for appointments on the Secretary of State for Constitutional Affairs. The office of Lord Chancellor had, in the words of the House of Commons Select Committee on Constitutional Affairs,


    "a special constitutional importance enjoyed by no other member of the Cabinet".

He was so senior that he could have no further political ambitions; and before his appointment he stood so high in his profession that no one could doubt his integrity, his standing or his ability to resist political pressure. On the other hand, the new Secretary of State for Constitutional Affairs will not be bound by the judicial oath, may well not be a lawyer and may be a very junior member of the Cabinet in the other place with a desire to climb higher up the political ladder.

Is it seriously being suggested that it is better that the Secretary of State for Constitutional Affairs should have his finger in the pie of judicial appointments rather than someone of the standing of the Lord Chancellor? One

8 Mar 2004 : Column 1034

has only to pose that question to know perfectly well what the answer is. If the Government really believe that it is no longer proper, for reasons of separation of power, for the Lord Chancellor to be the key figure in judicial appointments, it is wholly illogical and equally offensive to any doctrine of separation of powers for the Secretary of State, who is a party politician and member of the Government, to be given the powers of appointment described in the Bill—the powers in Clause 69—and, regarding the Supreme Court, the power to pick from a list of between two and five names.

The noble and learned Lord the Lord Chancellor, with all his prestige and dignity of office, might get away with that. But a Secretary of State for Constitutional Affairs, perhaps even a non-lawyer Secretary of State, without even a scrap of knowledge about the rival candidates—I do not think has a cat in hell's chance of getting away with people thinking that his exercise of choice between various candidates is correct.

It is small wonder that the Bill, which gives the Secretary of State such powers, also imposes on him a solemn statutory duty to uphold the independence of the judiciary. But is it not a very serious matter that it is thought necessary—because of these so-called reforms—to include in the Bill a clause designed to secure a judicial independence which was never in doubt until the noble and learned Lord and the Prime Minister launched their proposals last summer?

I now revert for a moment to the office of Lord Chancellor. I am bound to say, and I know that I am not alone, that I feel a sense of outrage at the cavalier way in which the Government determined to do away with an office older than Parliament itself, and to do so without even informing the Queen of their intention. We are talking about an office the holder of which has precedence over the Prime Minister himself. We are talking about one of the most senior posts, one of the key posts, under our constitution, and a guarantee of the judicial independence about which the Government talk so much.

I may be old-fashioned, but I am afraid that I do not think that ancient offices of this kind should, any more than any other part of the constitution, be the playthings of politicians who are here today and gone tomorrow. Certainly no one with any sense of history at all could have imagined that a Prime Minister had the right to snap his fingers and say, "The Keepers of the Great Seal no longer exist." It is really quite outrageous and I am absolutely horrified to think that the Prime Minister of the day actually imagined that it was proper to do what he did in June last year.

Turning for one last moment to the proposals for a Supreme Court, no one has explained to me what practical benefit will accrue from this change. The present Law Lords will get a new name but they will not become more independent and they will remain, as described in the consultation paper,


    "people of outstanding integrity and independence 'wisely and rightly admired both nationally and internationally'".

But we know what will be lost. The judges themselves will lose a forum in which to defend the independence of the judiciary and to fight measures which might

8 Mar 2004 : Column 1035

damage the administration of justice, and we will lose people who add lustre to this place, who give wise counsel on criminal justice and legal matters and make a significant contribution to our other work, such as our committee work.

As to the matter of the building for a Supreme Court, that could turn out to be a very expensive business, as has already been said. It is also a venture which could well end in scandal, like the Scottish Parliament building. The risk is that it will bring public derision down, not just on the Government—which does not matter a jot and is only their desert—but on the judiciary. That is the risk that is involved in all this. The history of the Dome, after the noble and learned Lord got his hands on it, does not exactly inspire confidence. It is simply not in the judges' own interests to move from where they are now.

6.34 p.m.

Viscount Bledisloe: My Lords, regrettably I was not present for the debate on 12 February. I have, however, read the whole debate, and also the shorter debates on the Statements made on 26 January and 9 February. There are a number of aspects on which I will try to expand if time allows.

This Bill is thoroughly ill thought out and requires further scrutiny before it comes before the full body of either House. I wrote those words this morning, and my view seems to have been pretty well confirmed by the fact that in opening the debate on the Second Reading, the noble and learned Lord the Lord Chancellor said, "I shall be amending this and that but I cannot actually tell you now how".

To bring a constitutional Bill before this House and say, before we started the debate—not as a consequence of the debate—that a lot of it needs changing, seems to me, with respect, to demonstrate fairly conclusively that this Bill needs further scrutiny. I therefore wholeheartedly support the amendment of the noble and learned Lord, Lord Lloyd of Berwick.

I would like briefly to answer some of the objections formulated by the noble and learned Lord the Lord Chancellor on the radio this morning, when he suggested that to pass this amendment would be to defy the Commons and impose excessive delay.

First, the noble and learned Lord resolutely ignored the fact that it is the Commons itself which called via its committee for pre-legislative scrutiny, although it is true that the noble Lord, Lord Carter, thinks it was wrong to do so. But all that the amendment of the noble and learned Lord, Lord Lloyd, does, is to give the Commons what it wants, and which the Government have failed to give it. In saying that the amendment defies the will of the people, the Government are, yet again, confusing their own wishes with those of the Commons or of the people.

Secondly, the noble and learned Lord the Lord Chancellor also utterly failed to answer Mr Humphrys' repeated questions about what on earth the hurry was. The noble and learned Lord has accepted that the Supreme Court should only come into existence when a building and its facilities have been created. A Select

8 Mar 2004 : Column 1036

Committee will report a very long time before a building has been found or decisions have been made as to its appropriate designs or facilities. What on earth is the uncertainty of which he spoke, except perhaps his own personal concern as to what suit of clothing he will be wearing in 12 months' time? If it is said that delay will find out whether the concordat works, that is a very good thing.

If there really is—and I fail to quite see how—a pressing need for Part 3 in advance of the rest of the Bill, the Government could easily bring forward Part 3 as a short non-controversial Bill on its own.

Thirdly, the noble and learned Lord the Lord Chancellor suggested that once this Bill went to a Select Committee it would never be enacted, because, he said, that had happened when this procedure was applied to a hare coursing Bill in the 1970s. But that is entirely up to the Government. If they found, after the hare coursing Bill had been to a Select Committee, that it was a lousy Bill and that they could not get it through, then of course they abandoned it. If they consider after this Bill has been to a Select Committee that perhaps with some of the amendments by the committee the Bill should still go through, it is entirely up to them to get it through. I do not understand the suggestion that this is a novel procedure. It is always up to this House to decide which of its committee procedures should be followed for a Bill. With respect, all that was revealed by the speech of the noble Lord, Lord Carter, was that the Companion may not be totally up to date with the concept of pre-legislative scrutiny.

Let me deal with just one aspect of the Bill—


Next Section Back to Table of Contents Lords Hansard Home Page