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Lord Marsh: My Lords, I can imagine an entire Select Committee and its witnesses going home to their wives and saying, "Sorry about the holiday, darlingI have been appointed to go a House of Lords Select Committee". That lack of reality characterising such ideas means that the amendment has a distinct possibility of being passed.
How can anybody seriously believe that, even if the Select Committee were a serious proposition, which it is not, the logistics allow the committee to be assembled, have a series of meetings, summon experts, get staff and produce a report in 12 weeks? The reason is that the key people supporting the amendment do not want the Bill to go through. That is what this is all about. Of course it will not go through on the Select Committee basis. But what comes in its place will be a source of some misery to many of those who thought that it was a good idea to get rid of it at this stage.
The fact isI do not say this offensivelythat this is a blatant wrecking amendment, which can only make worse a situation that is already bad. When the Lord Chief Justice assumes that the public ridicule of the Lord Chancellor is acceptable, even if it amuses a group of undergraduates, it is time to bring the whole issue to a conclusion. No one questions the contributions made by the judiciary to this country. They, together with the Armed Forces and the Civil Service, constitute the three key institutions that support governments of whatever political complexion. Where a substantial number of judges differ from the Armed Forces and the Civil Service is in their conviction that they enjoy some divine right to defend and protect the nation's freedoms and the tolerance which it has enjoyed for so many years.
However, that is not the case. It is an understandablealbeit, rather romanticconcept but, throughout modern history, social justice in this very sophisticated country has quite properly come by way of politicians and not from judges. I refer to freedom for homosexuals to choose their lifestyle, freedom for pregnant women to seek abortion, freedom for working men and women to combine, and the right of women to vote. In every case, the judges put them in gaol and the politicians took them out. It is a romantic falsity to take any other view.
The key fact is that this country has a very stable society. That is not because of the judges or primarily because of the politicians; it is because we are a pluralist society. Uniquely, this country enjoys"enjoys" is probably not a good word to usethree political parties, each of which carries people of every creed, colour and class. Whichever party is in power in this country, it will recognise when things have gone wrong and are running badly and if it does not recognise that, this country, with all its history, is sophisticated enough to get rid of it and from time to time does just that with no help whatever from the judges.
Lord Desai: My Lords, that is a very hard act to follow, but I agree with practically everything that the noble Lord, Lord Marsh, said. I was surprised that when we discussed the Sunday Trading Bill, I saw, for the first time, all the Bishops in your Lordships' House at one time. Today, I have seen more Law Lords than I have ever seen before in my life. There must be some connection between those two phenomena. Hanging does concentrate the mind.
For a long time, I have been in favour of the removal of the post of Lord Chancellor. Together with the noble Lords, Lord Lester and Lord Patten, I have taken part in three discussions in your Lordships' House about why the Lord Chancellor's position was anomalous and why something should be done about it. Just because the office is ancient, that does not mean that it is good. In the same way that we do not drive 12th century cars or have plumbing based on mediaeval times, we do not need law officers just because the offices are ancient. The point is that, with the European Convention on Human Rights on the statute book, it is an anomaly to have the head of the judiciary sitting in Cabinet and sitting in this House.
It may seem that the rest of the world is completely ignorant and stupid, that we are uniquely the best and that we alone understand what justice and the rule of law are about. Of course, it is easy to have that kind of delusion. However, if one looks at countries which have adopted the Westminster constitution, in the new and old Commonwealth not a single country has adopted the Lord Chancellor model. Every country rejected that model, created a Supreme Court and ensured that it did not go down that road. It is not a road that you go down with your eyes open; you go down that road because you do not want to think about matters clearly but to continue the path of tradition.
I believe that we should stop being complacent about the quality of justice and order in this country. One has only to go abroad to Boston and ask the people there what they think about the quality of British justice and an American-Irish person will tell you his view.
As was pointed out by my noble friend Lady Jay, it is also quite anomalous that we have a remarkably homogeneous judiciary. It consists mainly of white males and its members come from perhaps one or two universities and three or four public schools. Over many years, we have failed to recruit widely for the judiciary. Somehow, because for a long time the elite was unitedthe elite in this country is very homogeneous and solidit appeared that there was justice, independence and integrity. The same thing that happened at the BBC happened in the judiciary. What appear to be good, sound and independent institutions run by a homogeneous elite fall apart when the elite is fragmented. One side suddenly realises that it no longer has access to power in certain institutions.
We urgently need judicial reform and we urgently need to reform the way that we appoint judges. What has been happening until now will not do any longer. Injustice has been piling upon injustice and, time and again, we have lost cases before the European courts because, in a sense, what we consider to be justice is not viewed as such elsewhere. It is necessary to say these things because, otherwise, one might imagine that the Government were committing some outrage by modernising our constitution.
Therefore, my bottom line is that what is now being done is long overdue. The fact that it happened accidentally in a botched job on 12 June, or whenever it was, is not relevant; nor, in my opinion, is it relevant whether the Supreme Court has a nice building. Presumably the judges are happy where they are now. Therefore, they can continue where they are until a building is provided. If we have to put a different sign on the doors of Committee Rooms 1, 2 and 3 saying "Supreme Court", that is fine. It will not cost very much to put up a new sign and the Law Lords can continue there. As and when a better building is found, they will move there.
Just because we do not like the building which has not yet been proposed or built or which, if built, might cost too much, I do not see that that is a sufficient reason to reject Bills or kick them into the long grass. That is not how constitutional issues should be decided; they should be decided on the merit of the case. Is it true that we need a far more modern judiciary? Is it true that we need to get in line with the rest of the world in relation to the separation of powers? Whether Montesquieu got it right or wrong is neither here nor there.
As was pointed out, it is clear that if we were to apply to join the European Union now, we would not be admitted, given our current judicial system. That should tell us that what we have is not really perfection. What we have is a higgledy-piggledy system and any attempt to put it right should be welcomed, as should any attempt to put the independence of the judiciary in statute rather than leave it to the effervescent and mysterious workings of the Lord Chancellor's mind. I believe it would be preferable to have that written down. I am sure that until now all Lord Chancellors have been perfect butwho knows?one of them may turn out to be imperfect. That is always a possibility.
I think that most Lord Chancellors are human. If they have not been so far, the next one may be, and what shall we do then? We cannot rely on the magic of individual personalities and the mysteries of the constitution to guarantee judicial independence; it must be put in statute form. If that is done, it can be argued about; if not, we shall risk grave injustice being done without anyone being able to check it. That will especially be the case as society becomes more fragmented and more pluralistic. If, however, society becomes so democratic that every member of the community feels that he can become a member of the judiciary and rise to the highest position in any part of society, that is when we shall have a fully modern constitution.
I believe that reforming the judiciary will open it out to elements of society which do not have access to it today. The political system needs to be reformed. Similarly, the House of Lords needs to be reformed, because people should have access to this House. When those things can happen, we shall have a good constitution. I welcome the Bill as a major step towards a modern constitution for the country.
On the same day on the "Today" programme, he said that it was because the justice system works so well that now is the ideal moment to change it, arguing that strength is the best position from which to make reforms.
While sound reform may be easier to achieve when things are working well rather than badly, surely we ought to make sure that the new arrangements will work better and not worse than those that they replace.
Before seeing the Bill many people, including myself, believed that it should be subject to pre-legislative scrutiny; we had that belief reinforced a hundredfold when we read it. It was with a sense of relief that I heard that the noble and learned Lord, Lord Lloyd of Berwick, was tabling an amendment to the Motion to the effect that the Bill should be considered by a Select Committee. That would not, of course, be as good as full pre-legislative scrutiny, but it would provide an opportunity for evidence to be taken on key issues.
The noble Lord, Lord Marsh, says that we will get a bloody nose. The Leader of the House of Commons says that no Bills will be introduced first in this Chamber. If you believe that, you will believe anything. The whole of the Government's legislative programme would then be in ruins. The reality is that compromises would have to be reached in Select Committee, just as they will if we have a prolonged Committee stage.
This House has no more important duty than to uphold the rule of law, which the Lord Chief Justice reminded us prevents the Government from abusing their powers and stops a democracy descending into an elected dictatorship.
We are not dealing with abstract theory or some remote and unlikely possibility. We are dealing with a threat that confronts us here and now. The noble and learned Lord, Lord Woolf, has revealed that the judges were consulted about Clause 11 of the Immigration Bill and advised:
On the other side of the argument, there are those who claim to speak for the supremacy of Parliament, for those whom they term "real people" represented by that Parliament, which should not be challenged by a Supreme Court, and human rights principles that ignore political realities. The arguments between the two sides are so fundamental that they demand thorough pre-legislative scrutiny.
The noble and learned Lord, Lord Lloyd of Berwick, and my noble and learned friend Lord Mackay of Clashfern asked those questions on 12 February. The noble and learned Lord, Lord Lloyd, observed that it is easy to impose a statutory duty, and that that sounds fine, but that is mere words unless it means something in practice.
The Lord Chancellor's reply to those questions was one of the most astonishingly inadequate responses that can ever have been delivered by any Lord Chancellor in the long history of that office. His response to the question about how the duty to protect the independence of the judiciary would be enforced was that that would be a matter for debate and development over a period of time.
If the first and most crucial Clause of the Bill can be defended only with a statement of such astonishing vacuity, then the whole basis on which the Government defend their proposals seems to have been blown apart; and if there is to be debate, it should be in advance, during an adequate process of scrutiny by a Select Committee.
The noble Baroness, Lady Kennedy of The Shaws, pointed out on 12 Februaryas the noble and learned Lord, Lord Rawlinson, did earlier in this debatethat reform of the Lord Chancellor's role did not require the abolition of that institution of state. She spoke of her concern that we have reduced the role to just another Secretary of State, who may still have political ambitions. Worse, the Minister may, under the new dispensation, be given the role precisely because he is thought unlikely to be an obstacle to a politically powerful Home Secretary.
The present Lord Chancellorno, it must be the lesser individual, the Secretary of State for Constitutional Affairs, with whom he so uncomfortably cohabitsdefends this Bill by suggesting that each of the areas of the state will work better when they are fully, clearly and transparently separated from one another.
When I examine the appointment arrangements proposed in the Bill it does not seem to me that the separation is as full and clear as the Government have pretended. Politicians and the Minister will still have a finger in the pie. But that is just the kind of important subject that a Select Committee could examine.
I began by quoting the Lord Chancellor's comments about the quality of the judiciary. On 12 February he appeared for judgment before a remarkable cross section of the senior Law Lords. Their verdict was clear and overwhelming. He should take note and, before it is too late, fulfil the historic role of the high office that he now still holds, and use all the authority that resides with the Lord Chancellor to insist that the Government think again.
Lord Morgan: My Lords, as a non-lawyer I intervene with diffidence in this debate. It is a topic on which I have never previously pronounced. I intervene with less diffidence as a historian, in view of the extraordinarily bad history that we have heard at various times during the past few hours.
I take the criticism seriously, particularly that of the noble Lord, Lord Woolf, in his lecture, particularly his view on the Clause 11 of the Asylum Bill and the inability or refusal to include judicial review of decisions there, even if the law is mistaken. That should be changed, and I hope will be changed in Committee.
Eminent jurists from Blackstone to the noble and learned Lord, Lord Bingham, have endorsed the substance of these proposals, not to mention Montesquieu who was misrepresented earlier today. I agree with the noble and learned Lord, Lord Bingham, that we should reflect institutionally the reality in our arrangements. As he said, the Law Lords are judges, not legislators.
The proposals have been endorsed by the legal profession, the Bar Council and by five of the 12 Law Lords. They reflect what happens in many other countries in the Commonwealth and Europe, and the Republic of Ireland. Those countries do not seem to have these terrible crises and problems with which we have had our blood curdled.
The proposals reinforce the Government's earlier constitutional changes. They continue some of the good things that the Government have done and may check some of the less good things they have done or threatened to do in respect of civil liberties. They remove an historic anomaly by which the independent court of appeal is a committee of the legislature. I believe that the Bill strengthens the rule of law. Indeed, I would not support it if it were otherwise.
The Government's constitutional reforms have sometimes been criticised, perhaps with some justice, for being incoherent or lacking an organised principle or grand design. I believe that the first wave of reforms had organising principles in terms of accountability and a focus on rights, and that the new proposals have organising principles in reinforcing the context of law and of independent judicial review.
These reforms follow on from earlier reforms passed by the Government. I refer to devolution, the Human Rights Act and European legislation. In connection with devolution, which I strongly support, there is a need for a different way of resolving disputes. I welcome the fact that devolution issues will be transferred from the Judicial Committee to the new Supreme Court. The Bar Council argued in favour of this and against having what it calls a "a dual apex" in dealing with legal questions of devolution compared with other areas of litigation.
The situation on human rights makes the present situation more and more anomalous. It is very difficult for our jurists to argue internationally against executive or legislative interference with the judiciary when our own judges are part of the legislature and can, if they want, vote and intervene at will, and when the head of our judiciary is a party politician. The independence of the judiciary should be and, I believe will be, reinforced.
I also believe that strengthening the independence of the judiciary will provide a check on all governments including this one, against the overwhelming feature of constitutional development in recent times: the overweening growth of the executive. This Government, like other governments, have shown a tendency to take the law into their own hands as they did in parts of the Criminal Justice Bill, and perhaps in the lead up to the Iraq war, which is a very dubious story. In part, the Government's reforms are needed to restrain themselves and not to allow the legal agenda to be dictated by the Home Office. The present situation is not sustainable. The status quo is not an option.
The process of reform has, perhaps, not been handled well. We all remember what happened last summer. The words "coach" and "horses" were commonly in conjunction, and, perhaps, "organise" and "brewery". The process is one thing; the substance is another.
I believe that the proposals are logical and wholly defensible. The role of the Lord Chancellor is an historic anomaly. In some senses he is still the refugee from "Iolanthe" that he has been for many decades:
He is a serving Minister rather than a judge. I do not believe that he is the safe haven for the judiciary or a buffer between the executive and the judiciary as is commonly imagined. That has been argued by the noble and learned Lord, Lord Steyn, in an article in Law Quarterly Review. He pointed out the advantages that would accrue if the Lord Chancellor were to forego his privilege of serving on the Appellate Committee.
I agree with the former chairman of the Bar Council that it is extremely important that ministerial interference with the appointment of judges at all levels should be minimised. It seems reasonable to offer guidelines but some of the more direct forms of intervention in terms of choice should be considered carefully in Committee.
Certainly, I support the proposals for a supreme court. The noble and learned Lord, Lord Woolf, observed that it was a second-class court instancing the fact that it was not based on the American model. I taught American history for many years and I am extremely glad that it is not like the Supreme Court in the United States. I believe it is stronger for that and certainly not second class.
In practice, the Law Lords operate as a separate court yet they are not commonly perceived as so doing. They are compromised by the ambiguity of their role in this House. If they sat separately, that would enhance their status, particularly in a culture shaped by that of human rights. They would not be seen as sitting in judgment on themselves.
With respect, the presence of the Law Lords in this House does not seem to be a decisive factor. It is said that they provide us with the benefit of their wisdom, and that all judges are wise, just as all scientists are brilliant, but they do so on very few issues. It reminds me of an old Roman tag, si tacuisses; that is, the more silent you are the more you are thought to be a philosopher. Rather like the independent nuclear deterrent: it is useful as long as you never use it. That is rather the way the judges are hailed in this House. Many other democratic countries which also respect the rule of law do not have this system and see many advantages in judges being shown to be truly independent, losing their voting rights and their position to speak in this House.
In general I welcome the changes. It seems to me that Committee stage will be active and constructive. It will be a Committee of the Whole House, which will improve the Bill. I note that a proposal has been made for a judicial committee of the two Houses or something of that nature which might monitor arrangements between the executive and the judiciary in the long term. However, the general thrust of the reforms is that they are radical and courageous. I
Lord Donaldson of Lymington: My Lords, if it is possible to think back to 11 June last year, noble Lords will remember that at that time the judicial system headed by the Lord Chancellor was generally accepted as having worked very well. It was based upon conventions accepted by the Cabinet as to the pre-eminent position of the Lord Chancellor in relation to judicial matters. It was accepted by the Lord Chancellor that he had an enormous personal responsibility so that there might well be circumstances arising in which his colleagues were proposing matters concerning which he had to get them to change their minds or he had to resign.
That was the position then. It is true that various peopleI am sure that the noble Lord, Lord Brennan, was one of themwould have said that the whole thing was not exactly politically correct. I would not argue with that. However, if it was not politically correct, I do not see that it follows from that that there was any need for haste in correcting that defect.
After 12 June we were faced with a different position. So far as this House as a final Court of Appeal is concerned, I do not believe that there was any change, but there was a vast change in the position of the judicial system headed by the Lord Chancellor. I say that because it was made perfectly clear on and after 12 June that the Government as a whole no longer accepted the conventions which had applied theretofore.
It has also been made reasonably clear that the noble and learned Lord, Lord Falconer of Thoroton, does not accept it either. Indeed, as Secretary of State for Constitutional Affairs, it would be very difficult for him to accept it as the nature of the offices are very different. Hence the need for the concordat and hence the need, as the noble and learned Lord the Lord Chief Justice said, to enshrine that in statute. That need not necessarily be tomorrow, he said, but within a relatively short time. On the other hand, there is no need for pre-legislative scrutiny in relation to that part, which is Part 3 of the Bill. That has been done and very carefully done. Of course at some stage there will be minor changes one way and another to improve it. Cherry picking cannotand should notbe allowed.
That said, surely it would not be beyond the ingenuity of this House to take that part and enact it separately. An obvious way to do that would be to introduce a number two Billcall it the temporary provisions Bill, if you likewhich simply takes the whole of Part 3 and says, "Let's rush it through". I would have no problem with that. However, for the rest there is a clear need for some scrutiny in depth. It is for those with much greater experience of this House than I to say whether that is best done by a Select Committee or in the form of scrutiny on the Floor of the House.
My own experience of Committees of the Whole House has not been fortunate. But that perhaps is because I have no big battalions behind me and therefore when I make a point it usually falls into the wilderness. However, I get the impressionand it is only an impression; I may be wrongthat in the circumstances of a Committee of the Whole House the Government feel that they are on the defensive. They have put forward a Bill, to which they have given a great deal of time and thought, and they have a highly skilled Bill team which has worked long and hard on the detail. Then some upstartnot necessarily me, but another upstart who leads better and bigger battalionscomes forward and says, "Well, that really is not a good idea". And you get them on the defensive.
So you really have to pin the Government in if you are going to get any concessions. I would much prefer to have some form of tribunal which would make concessions and which would, as it were, talk around a table, the objective of all being the sameto get a better Bill.
There is one other issue that I would like to mention. I appreciate that I have spoken on previous occasions. It is the importance which is now being attached to the self-denying ordinance of the noble and learned Lord, Lord Bingham of Cornhill. I mentioned to my noble and learned friend the Lord Chief Justice the possibility of legislating for the concordat separately. I asked him whether he would have any problem with that. He has authorised me to tell the House that he would have no problem with that whatever.
I return to what I was saying about the noble and learned Lord, Lord Bingham. The noble and learned Lord said that Law LordsI think it would apply to retired Law Lords tooshould not take part in political controversy. He has said that they should not deal on the Floor of the House with matters which they might subsequently have to construe in a judicial capacity. There is nothing new about that. That existed long before the noble and learned Lord, Lord Bingham, came to this House. It was true in my days as Master of the Rolls; it was true in the case of the then Lord Chief Justice. It is true that both of us came out from our corners fighting whenbut only whenwe thought that the judicial system was under attack. I would hope that nobody would think that that was a reason for sitting in our tents and saying nothing.
This is a very old system. There is nothing new about it. The only thing that is perhaps new is that it would appear that the noble and learned Lord thinks it applies only to utterances in this House. I am convinced that it applies equally to utterances outside the House as long, at any rate, as one is a serving judge.
The noble and learned Lord, Lord Bingham, fought for the chancellorship of the University of Oxford on what struck me as being a distinctly political platform. The campaign did not last long, so perhaps no harm was done. But as a matter of principle I think that the same attitude has to be adopted outside the House as well as within it.
Lord Stoddart of Swindon: My Lords, this Bill was bound to face fierce opposition, not only because of most of its contents, but also because a Bill of this constitutional importance was heralded by a curt announcement without previous trailing and without prior consultation. Indeed, in my view, the Bill itself is a piece of constitutional vandalism undermining judicial and political relationships and balances built up over centuries, which still work well and which have the confidence of the country.
Our unwritten constitution demands that before significant alterations are made to it there should be wide and, if necessary, long consultation between the parties in Parliament and others, especially in this case the judiciary and the practitioners of the law.
The failure of the Government to consult invites the charge that they are careless of our constitution and that they are guilty of the charge of authoritarianism and of imposing an elective dictatorship on Britain. They do not even have the fig leaf of a specific manifesto commitment to use in their defence. As far as I can see, there was no commitment in the 2001 new Labour manifesto, or in that of 1997.
The Government may claim a majority of 163 in the House of Commons, but that is based on their gaining only 42 per cent of the vote on a 59 per cent turnout at the last election. That does not give them the right to ride roughshod over our constitution on one sunny afternoon in June by way of a throwaway line in a government reshuffle.
Under such circumstances it is surely quite legitimate for the noble and learned Lord, Lord Lloyd, to move an amendment to send the Bill to a Select Committee. The opportunity of a pre-legislative examination has been denied, so it must surely be right for him to be able to move this amendment to send the Bill to a Select Committee; and I hope that noble Lords will not be intimidated by the threats of reprisals from government Ministers.
The amendment seems sensible to me. After all, there really is no urgency to get this measure onto the statute book. The present system has worked well over some centuries and even the noble and learned Lord the Lord Chancellor admits that it still works well and is full of praise for those who run and participate in it.
The Lord Chancellor is standing truth on its head when he suggests that the time to fix something is when it is working well. There seems to be some suggestion that our system of justice conflicts with Article 6 of the European convention. That convention has been around for over 50 years. So there seems to be no case for this unseemly haste in relation to the convention.
I have searched my mind to find a plausible reason for the Prime Minister's peremptory announcement on 12 June last year that the Lord Chancellor was to be abolished, Law Lords were to be expelled from the House of Lords and that a Supreme Court was to be set
I find it hard to believe that even this Prime Minister could take arrogance to such lengths, or subvert the constitutionbecause that is what he is doingto his own general election timetable. Could there be something else behind the rush to make that announcement? It occurred to me that perhaps the European Union constitution
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