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Lord Carter: My Lords, I am sorry. I do not understand the point at all. The noble Viscount referred to the Companion to Standing Orders. I believe that he was recently on the committee with me that redrafted the Companion.
Let me deal with just one aspect of this Bill which cries out for pre-legislative scrutiny as to what should replace the present role of the Lord Chancellor in protecting the rule of law. On that point there was an interesting divergence of words which emerged during the short debate on the Statement on 26 January. The noble and learned Lord the Lord Chancellor spoke only of protecting "judicial independence", while much more accurately the noble and learned Lord the Lord Chief Justice spoke of protecting the "administration of justice" and the noble Lord, Lord Kingsland, of preserving "the rule of law". The latter are the true objectives and the independence of the judiciary is only a small part of that.
It may well be that the so-called concordat may do something for judicial independence. It will protect judges against a brutal suggestion that unless they decide in favour of the Government, they will be sent to some unattractive outpost of the country to try only dreary, second-rate cases. That is not the problem. The concordat cannot possibly be adequate to replace the role of the noble and learned Lord the Lord Chancellor in preserving the rule of law.
In the debate on 12 February, the noble Baroness, Lady Kennedy of The Shaws, eloquently and accurately explained why the Lord Chancellor is infinitely better suited to the role of protecting the rule of law than some transient Minister who is hopefully pursuing the upward course of his career.
There is another point. It is well recognised in life that it is infinitely easier and more effective to influence policy when it is a mere proposal than when it has been formulated, hardened and published. At present, a Lord Chancellor is well placed to give a warning in advance where some part of a proposed measure is unacceptable or dangerous to the rule of law. It can then be dropped or modified before it has seen the light of day.
We should contrast that with the position of the Lord Chief Justice on the present proposal. He may well have no advance knowledge of ministerial intent and thus no opportunity to intervene in advance. Even when the Bill is published, how on earth will he discover the danger lurking in some remote provision of an apparently innocuous Bill? And if he does discover it, how is he to do anything about it?
The noble and learned Lord the Lord Chancellor has said that the Lord Chief Justice is well placed to speak on behalf of the judiciary. But speak where and when? It will not be in Parliament because he is about to be expelled from Parliament. The noble and learned Lord the Lord Chancellor says that the Lord Chief Justice can resort to the media. But surely we all agree with the noble and learned Lord, Lord Cullen of Whitekirk, when he said that it was,
If this matter was considered in the calm of a Select Committee, one might be able to devise some more satisfactory procedure. One might be able to work out whether one could require the promoter of each Bill to decide whether the Bill had any implications for the administration of justice. If so, we should submit it to the Lord Chief Justice or, if it is considered to be one straw too many, we should put it on an already over-loaded back of some constitutional committee. It should then be stated on the face of the Bill, as is now required under the Human Rights Act, whether that Bill has implications for the rule of law and, if so, whether he has consulted the Lord Chief Justice or the committee and what their response was.
I have many serious concerns which time does not permit me to expound, but I strongly submit that the right course is to vote in favour of the amendment of the noble and learned Lord, Lord Lloyd of Berwick.
Baroness Jay of Paddington: My Lords, I hope that the noble Viscount will forgive me if I do not follow him in all his points, not least because I am afraid that I did not hear the exchanges between the noble and learned Lord the Lord Chancellor and Mr Humphrys on the "Today" programme this morning.
I want to make a few broadly political points on the Bill, which I greatly welcome. I have not taken part in previous debates on the issue, largely because they seemed to be exclusive debates between lawyers in which the lay person would have trepidation in taking part. But today we have reached the Second Reading of the Bill, which has wide political implications, and it is relevant to make some broadly political points.
After all, many of us regard constitutional change as a means to renew our institutions in the general interests of our democracy and specifically to renew the parliamentary process. From that perspectiveand it is the perspective of many political working Peers in this Housethe Bill's provisions are most welcome. They take forward the Government's programme of parliamentary reform and, as has been argued cogently, give an enhanced independence to the judiciary. The result is the clear separation of the three arms of state authority: the legislature, the executive and the judiciary. Each should be strengthened by the separation.
It will be a huge political achievement to make all our key institutions more fit for purpose in the 21st century through this one Bill. Those of us whose ambition is primarily overall to improve the governance of the country will do all we can to support it.
I want to look at the main provisions of the Billthe creation of a Supreme Court; the establishment of a Judicial Appointments Commission; and the abolition of the office of Lord Chancellorand briefly explain why in that context I see each one to be politically significant.
The legal debate about setting up the Supreme Court has rightly dominated earlier discussions. But, personally, I have found no persuasive argument against the political judgment that the roles of the senior judiciary, Parliament and the executive should be clearly delineated in a modern constitution.
I am afraid that from my observation, as so often when we debate these types of questions in your Lordships' House, appeals were made to tradition and history as the final and absolute touchstone of defence for the status quo.
It is interesting that external commentators who have looked in some detail at the proposals have not been swayed by such appeals. For example, the authoritative constitutionalist, Professor Jeffrey Jowell QC, has noted that today candidate states for membership of the European Union would simply not be admitted if their judges sat in their legislatures. Other outsiders have seen the determination to continue the traditional conflation of roles as protection of special interest. I quote with some trepidation but with some enthusiasm the political columnist, Mr Peter Riddell, who is uncompromising and has described some of the actions of the lawyers as
I would not like to be so harsh, but I have been thinking about other learned professions in the way other noble Lords have described. My noble friend Lord Clinton-Davis raised the point earlier. I take the case of doctors. The medical profession is another ancient body and fierce defender of its rights and privileges, but how ludicrous it would seem if the president of the General Medical Council claimed either a seat in Parliament or in government.
Of course this does not mean that the views of doctors or lawyers are irrelevant to Parliamentwe gain a great deal by hearing them in this Housebut I understand that there are about 100 Peers with a legal background among your Lordships and therefore I do not think we are in danger of losing a legal perspective if the 12 judges of the new Supreme Court are excluded in the future.
I realise that some of the Law Lords have argued for a separate Supreme Court for several years and describe the anomalies in the present system most succinctly. The noble and learned Lord, Lord Steyn, was particularly outspoken in pointing out the anomalies of the present position and in 2002 drawing attention to the potential conflicts with the Human Rights Act 1998. His overall conclusion was political. He wrote:
I must say that from the point of view of those of us who observe the political debate, the existence of a long-standing public discussion of that kind between the Law LordsI believe that the noble Lord, Lord Lester of Herne Hill, said that it had been going on for more than two decadesmakes it surprising that parts of the legal establishment are now arguing that more time is needed for review and debate of the principles of the proposal. They seem to suggest that somehow they have been caught unprepared by the Government's proposals.
Another argument for delay, which we have heard about again today and which frankly does not convince me, concerns a suitable building to house the Supreme Court. Clearly, as many noble Lords have saidand I certainly agreethe Supreme Court must have an appropriate location and a suitably resourced judicial office. But perhaps I can gently suggest that, again, there is an element of special pleading. I know that the noble and learned Lord, Lord McCluskey, has referred to the escalating costs of the Scottish Parliament building, but thankfully I do not remember there being similar arguments for legislative delay when the Acts on devolution went through this House in the late 1990s. We may now have queries about the costs or indeed the aesthetics of the Scottish Parliament building or indeed Mayor Livingstone's headquarters, but their non- existence as the relevant Bills were passing through
Part 3 of the Bill, as we have heard, reinforces the new statutory independence of the judiciary by establishing the separate Judicial Appointments Commission. To me, that is very important. I am glad that it has more general support than some of the other proposals. I am particularly pleased that the commission will have six lay members and that the chair will come from that number. Those people will have a special responsibility to ensure that the judiciary becomes more reflective of society. This year, in this House, we have all greatly welcomed the appointment of the noble and learned Baroness, Lady Hale, to the Appellate Committee as the first woman member. Let us hope that in the new Supreme Court she will be quickly joined by other female justices as well as by those from minority ethnic backgrounds. In the 21st century we must give priority to the goal of diversity in all our institutions. It is right that the new Judicial Appointments Commission will be specifically tasked to achieve that.
Part 1 of the Bill contains the headline controversythe decision to try to abolish the office of Lord Chancellor, thus, among other matters, creating a vacancy for the presiding officer in your Lordships' House. Again, from a political and parliamentary perspective, that seems to me to be a positive and an important opportunity. Again, I take as my benchmark the more efficient and effective working of this second House of Parliament.
I say to the noble and learned Lord, Lord Lloyd of Berwick, that although I regard his delaying amendment as very unhelpful for the extremely cogent reasons put forward by my noble friend Lord Carter, I found his report on the Speakership
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