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Lord Lester of Herne Hill: My Lords, does the noble Lord agree that there is a really pressing need to get the arrangements for appointing judges in England and Wales on to the statute book and for strengthening the Bill in this House as soon as possible; and that the worst outcome would be if the Bill was lost and the present unsatisfactory position were to continue until after the next general election? Will he agree with me on those two points?

Lord Alexander of Weedon: My Lords, the noble Lord anticipates my next point and perhaps gives me the opportunity of an extra minute. I was just coming to the view that I supported a Select Committee. I want to make it plain that I do not support a Select Committee with any view to killing this Bill. I believe that it is possible—I will be corrected if I am wrong—for the House to give instruction to a Select Committee to report within three months. If that is so, I believe that it should happen. I also believe that it is possible—as the noble and learned Lord, Lord Donaldson, said—that we could take Part 3 separately by way of a separate Bill to ensure that those arrangements are put in place. I do not shirk that, and I do not believe that in his desire to have a Supreme Court, my noble and learned friend—as he is—should shirk that. Other people do have different views and those views were treated with contempt before this Bill was introduced. Surely now they should have a chance to express those views.

I also believe that when Mr Peter Hain says that for us to vote for a Select Committee would be anti-democratic—which is his favourite way of describing any opposition which is put forward by this House—

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he is actually ignoring the fact that, as the noble and learned Lord the Lord Chief Justice said when ending his speech, a civilised society demands consensus for constitutional reform.

8.25 p.m.

Lord Jauncey of Tullichettle: My Lords, it is always a pleasure to follow the noble Lord, Lord Alexander of Weedon, to whose honeyed words I listened and always enjoyed when he appeared before the Appellate Committee some years ago.

We are dealing at the moment with three items in the Bill. I propose to refer only to one; namely, the Supreme Court. The Appellate Committee has functioned, as is widely agreed, with great distinction and effectively since its constitution by the Appellate Jurisdiction Act 1876. On 10 June 2002, in answer to a question from the noble Lord, Lord Lester, the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, replied:


    "The Government are of the view that a sufficient case has not been made for the abolition of the Appellate Committee".—[Official Report, 10/6/02; col. WA3.]

What happened between then and 12 June 2003? What is the alleged justification for the abolition of the Appellate Committee and its replacement by an institution which will perform almost identical functions at a huge capital and revenue cost?

A little clue is to be found in the consultation paper on the matter. It has been said that the Government have consulted. Consultation papers were handed out for consideration. But the consultation paper on the Supreme Court did not want responses as to whether there should be such a court. The decision had already been made. The paper wanted responses only on the details. So it was perhaps not surprising that not much was said about the reasons for setting it up.

Two matters were mentioned; that the Appellate Committee was no longer sustainable and that the establishment of a Supreme Court would preserve and increase—I emphasise the word increase—the judges' independence. That sounds absolutely splendid. But a bald assertion of unsustainability is absolutely meaningless in the absence of reasons.

The suggestion that a Supreme Court would increase and strengthen the judges' independence, a theme repeated by the noble and learned Lord the Lord Chancellor in the debate on 12 February, presupposes that there is room for such increase in the first place and that if the Law Lords were removed from the Palace of Westminster they would enjoy greater independence than they do now. That is a wholly fallacious suggestion.

The implication that the Law Lords have not felt completely independent of the executive and the legislature in the past is simply laughable. If the noble Lord, Lord Carter, were here I would tell him that I am now judicially geriatric and therefore no longer concerned with the Appellate Committee. But during my service, the fact that I was working here, writing my judgments upstairs in a room, never had the slightest bearing on how I decided a case. I had many, many

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discussions with colleagues about appeals. I am absolutely certain that none of them was in the remotest way influenced by the fact that they were working in your Lordships' House.

I refer to two matters that seemed to run through the debate on 12 February and, indeed, through the remarks of the noble and learned Lord the Lord Chancellor. I refer to the separation of powers. One might ask why that doctrine has suddenly been invoked after well over 100 years as a ground for abolishing the Appellate Committee. What has happened? We do not know but I suggest that the views of Lord Wilberforce, who is widely acknowledged to have been one of the giants of the Appellate Committee during the latter half of the past century, are worthy of consideration. In his submission to the Wakeham Commission Lord Wilberforce expressed the opinion that the separation of powers had never been a governing principle in this country and concluded that,


    "there is not the beginning of a case for separating off the Law Lords".

I submit that those words are entitled to very careful consideration.

As I have mentioned, it is also said that independence will be increased. I think I have explained why I consider that to be quite unfounded. A suggestion was made in the previous debate that the fact that the final Court of Appeal is in your Lordships' House causes confusion. The example given was of some senior Law Lord who had to excuse himself from sitting on a particular case that involved legislation upon which he had commented in this House. He might just as well have excused himself because he happened to be a shareholder in a company that was a party to the appeal or a member of the National Trust which the case involved.

I am bound to say that my impression is that the Government have so far failed to produce any reasonable justification for the abolition of the Appellate Committee and its replacement by a new and vastly more expensive organisation. It seems to me to be an exercise in presentation, dressing up the creation of an unnecessary institution to fulfil an imaginary need as a step forward in the modernisation of the constitution. In my view the matter should be looked at further. I support the amendment of my noble and learned friend Lord Lloyd.

8.33 p.m.

The Lord Bishop of Chelmsford: My Lords, my predecessor when I was Bishop of Guildford was Michael Adie. He had at one time been chaplain to the Archbishop of Canterbury, Geoffrey Fisher. The story is told that it fell to his lot as chaplain to go to the Archbishop and suggest that it was time he retired, which he did. When Geoffrey Fisher retired, so the story goes, Harold Macmillan as Prime Minister rang up Michael Ramsey the very next day and offered him the job.

Those stories led to the reforming of the process of appointing bishops in the Church of England. In the end, after work with Jim Callaghan when he was Prime

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Minister, the Crown Appointments Commission came into being and in the past two or three years that system has been further reflected on and has undergone yet further reforms. So it is possible for us to engage with change within the shape of our constitution.

Earlier this afternoon the noble Baroness, Lady Jay, made the point that others have made—that we are talking about the separation of powers. She asked, if the judges can sit in this House, why not senior people in the medical profession, and so on? Those comments misunderstand the constitution.

Paragraph 44 of the Explanatory Notes on the Bill also misunderstands the constitution. It says,


    "the Bill seeks to make a distinct constitutional separation between the legislature and the judiciary".

Parliament is not just the legislature. Under the Crown, it is the institution, on behalf of the people, that calls government to account—the executive who all have to be Members of Parliament. Parliament is responsible for democratic and public debate, for ensuring good legislation on behalf of the people of the country and is, as the highest court of the land, called the high court of Parliament, ultimately responsible for the rule of law and the practice of judicial life in our country. That is our constitution. In Parliament we hold together those three bases of our life under the Crown. That is our history.

That does not necessarily mean that we carry on as we have always done and it does not necessarily mean that we have to leave the judicial functions of the House of Lords as they have always been. But it does mean that we have a duty to ensure that any changes and developments we make hold faith with our constitutional history. If we are to change that and move radically in a new direction to a system of separation of powers, that needs proper and independent reflection in its own right. From a variety of points of view we all recognise that we entered this issue in an unhappy way last June, and in a way that opened up constitutional issues that needed to be properly considered in their own right. None of that necessarily holds up reform of the system.

The second matter that I wish to raise arises from the events of 12 June last year. We have talked about whether they have irreversibly changed things. If the Government were able to act in that way in the middle of a reshuffle, what is to prevent governments from doing that again? Is that not the problem with the position of Secretary of State for Constitutional Affairs in the Government? What happens if, by some extraordinary change of political fortune, the Members opposite end up on this side of the Chamber, the Government of the day decide that they have no major programme of constitutional change in their agenda and do not need a senior Minister for such matters? Will we have a member of the Government called "Home Secretary and Secretary of State for Constitutional Affairs"? Will that properly deal with the necessary relationship that there must be between the judicial function of our constitution and government, and the judicial function of our constitution and Parliament?

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We are bound to ask, if we agree with the remarks of the noble Lord, Lord Lester, and agree that whoever takes on that role has to be highly qualified in law, what is wrong with the Lord Chancellor continuing to do that? That is at the heart of the debate. We seem to have a historical constitutional position which, properly and with genius, combines both the political side of government and a constitutional position that is seen to have the independence necessary to perform that role in relation to the judiciary. Why are we seeking to change that position? I do not think that we have had an adequate answer to that issue.

The last thing I want to say is this: do we not have a duty in Parliament as a whole to preserve jealously the powers of Parliament? Is it right that we should be considering hiving off functions and powers which historically and properly our constitution have vested in Parliament? Reform them? Yes. Evolve them? Yes. Change them? Yes. But have we not a responsibility jealously to guard those powers and to ensure that we hand on to the next generation a constitution which is intact? From my perspective in this debate, we have not sufficiently done the thinking nor the work on the principle underlying these issues to be sure that this legislation will achieve all the Government want of it.

8.41 p.m.

Lord Carlisle of Bucklow: My Lords, I was not able to be in the House on 12 February this year and therefore I did not take part in that debate. However, I can assure the House that nevertheless I will abide by the Chief Whip's request to be brief, not so much because I did not speak in that debate but for the very good reason that practically everything I wanted to be said has already been said and presumably will be said again by other speakers.

There is one thing on which this House can surely all agree: that the abolition of the position of Lord Chancellor, particularly as head of the judiciary; the creation of a Supreme Court in place of the Judicial Committee of this House; and the Judicial Appointments Commission for the purpose of appointing the senior members of the judiciary, are all matters—as the noble and learned Lord, Lord Falconer, said—of vitally important constitutional change. Having listened to this debate, and in particular—although he is not in the Chamber at the moment—to the speech of my good friend the noble Lord, Lord Brennan, of course I accept that you can argue individually a case for any one of those changes.

You can argue, certainly, for a Judicial Appointments Commission. Indeed, like my noble friend Lord Alexander, I support the idea of a Judicial Appointments Commission. You can argue that we should have a Supreme Court, provided you are prepared to consider at the same time what the powers of that court should be. You can say—although the argument has been effectively demolished by the right reverend Prelate the Bishop of Chelmsford who has just spoken—that the present situation breaches the separation of powers, with the Judicial Committee of the House of Lords being a part of this House. You can say that the office of Lord Chancellor has in itself

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become so substantial and so involved in the Cabinet and in politics that he cannot at the same time carry on the role of being head of the judiciary and appointing an independent judiciary. All those are perfectly good sound issues to be argued.

But surely, as the noble and learned Lord the Lord Chief Justice said in his speech, if you are setting down the road towards a constitutional change of that nature, it is important that you do everything you can to carry the consensus of the country with you. Instead of that, in an extraordinary act of apparent incompetence and arrogance, in June last year the present Government announced overnight the abolition, or the purported abolition, of the office of Lord Chancellor. They did so without consulting the judiciary or, what is worse, consulting Her Majesty on what was being done. Therefore, the failure to consult at that stage; the arguments about the powers and role of the Supreme Court; the failure to consider the role and relationship of the Lord Chief Justice with this House; and the failure to consider the role, position and rights of the Law Lords in this House as senior members of the judiciary all argue in favour of the amendment tabled by the noble and learned Lord, Lord Lloyd.

I want to make three points on the merits of the Bill. The first relates to appointments. It is said that the purpose of changing the method of appointment is to ensure that the judiciary is seen to be wholly independent. Like my noble friend Lord Alexander, I have sympathy with the argument of a Judicial Appointments Commission. But let us be clear what will happen in this case. The Judicial Appointments Commission—I am talking about the level of the High Court and upwards—having made its decision, refers it not to the Lord Chancellor but to the Secretary of State for Constitutional Affairs.

I was a member of a Cabinet in which the Secretary of State for Education was one from the bottom in the pecking order. That is usually his position. I understand that at present the Secretary of State for Constitutional Affairs is one from the bottom in the Cabinet's pecking order. He may not be a lawyer and he may, unlike some of us, be an ambitious politician. He may be greatly subject to the views of the Home Secretary, who is about third in the Cabinet. But he will have the right to reject the decision of the Judicial Appointments Commission and to order it to reconsider its decision. He may have no legal background, but when considering an appointment to the highest court of all—the Supreme Court—he will have the right to chose from five names the one which goes to the Prime Minister for recommendation to Her Majesty the Queen. That proposed scheme is far more open to political interference in the appointment of the judiciary than the present appointment by the Lord Chancellor.

My second and third points relate to the Supreme Court. We have heard important and moving speeches today about the importance in this House of the Law Lords. I do not attempt to add to what was said by the right reverend Prelate the Bishop of Worcester and the

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noble and learned Lord, Lord McCluskey, on that matter. They made a most strong case. Equally, we heard today and in the previous debate about the strength which the Law Lords feel they gain from membership of this House. What is to be achieved by removing that membership? In particular, what is to be achieved before this House has yet had the chance to consider its future composition?

My third and final point—I promised that I would not speak for more than the recommended time—is to ask whether all this is necessary. What is the rush? Everyone says that the system works. If ain't broke why mend it? No one questions the independence of the appointments made by the Lord Chancellor; no one questions the present independence of the judiciary.

What will the cost be? I happened to have the good fortune to bump into the noble and learned Lord, Lord Fraser of Carmyllie, who is conducting an inquiry in Scotland, which noble Lords may know about—it is well known to the noble and learned Lord, Lord McCluskey. The Scottish Parliament set out with an estimate for its building of 40 million. It is now costing 430 million and that figure is rising. We are told that the cost of a new Supreme Court—although no one yet knows where it will be—could be 32 million which presumably may become 320 million.

Simply for reasons of perception, we are being asked to change a situation that works, by having the same 12 people called by a different name, sitting in a place we know not where and at a cost that is not known. For all those reasons I believe that this matter should go to a Select Committee as proposed by my noble and learned friend.

8.51 p.m.

Lord Rees-Mogg: My Lords, we have had an excellent and interesting debate. I certainly feel that I have learnt a good deal from it. I shall not rehearse many arguments that your Lordships' House has already heard, but I want to refer to some speeches that appear to me to be the most interesting. I always listen with particular interest to the speeches of the noble Lord, Lord Alexander of Weedon, partly for one particular reason: he and I are twins in this House. We were introduced on the same day. I have heard many of his speeches, all of which have been filled with a deep understanding of the law and a deep love for it and all of which have struck a note of moderation. He sits on the Opposition Benches and I sit on the Cross Benches, but he is a far more moderate man than I could ever claim to be.

I listened tonight with particular interest because he is a moderate man who is deeply concerned. He is particularly deeply concerned about the deterioration of the relationship between the judges and the Government. That must be a bad thing, whatever view we take of who is to blame. I take one view and the Government take another. Whoever is to blame, it must be bad to have conflict between the executive and the judiciary. The concern of the noble Lord, Lord Alexander, represents a concern felt throughout the debate and throughout the House.

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I was also interested to listen to the noble Lord, Lord Lester of Herne Hill, whom I am sorry to see is not in his place. He is another noble, learned Peer. His speech was remarkably interesting, but in a way remarkably unsatisfactory. He is a man whom I have often followed in the House. When he has said that we should stand up for juries, I have stood up for juries; when he has said that we should stand up for judges, I have stood up for judges. On the whole, I have followed his line and that of the noble Lord, Lord Goodhart—the Liberal Democrat line—on the need to defend the principle of law in this House. That is one of the central functions of the House and it is necessary to take a liberal view of the issues as they come along. I have been just about as loyal to those liberal issues as Liberal Democrat Members have been.

I thought that the gist of the speech of the noble Lord, Lord Lester was that this is not a very good Bill and that it has a good deal wrong with it, but that we cannot do anything about it and it will be worse if we delay it. That seemed to me, to be frank, to be an attitude of appeasement. I regretted deeply that the Liberal Democrats, with whom I have so often voted in the past on these issues, should take such an attitude.


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