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Lord Roper: My Lords, if the noble Lord, Lord Rees-Mogg, reads the remarks of my noble friend Lord Lester, he will find that he said that he believed that changes could and should be made when we come to consider the Bill—not in a Grand Committee, as the noble Lord, Lord Rees-Mogg suggested in the Times this morning, but in a Committee of the Whole House.

Lord Rees-Mogg: My Lords, I am more than happy to accept that the noble Lord, Lord Lester, said that changes ought to be made, but he was reluctant to accept the recommendation of the noble and learned Lord, Lord Lloyd of Berwick. I think that that was a mistake.

The next speech that struck my mind was that of the noble Lord, Lord Marsh. What a good speech it was, and how wrong-headed. He basically said that we ought to give in to the Government, however mistaken they might be—governments always are mistaken in my experience—because we were going to get something worse if we did not. That was rather like the argument of the noble Lord, Lord Lester. I do not believe in these arguments. I think that one needs to pin governments against the wall and when they are making mistakes one ought to make them responsible for their mistakes. That seemed to me not to be the view of the noble Lords, Lord Lester or Lord Marsh.

I have a bone to pick with the noble and learned Lord, Lord Lloyd of Berwick, who found against me on a judicial review relating to the Maastricht treaty. That was his last action in the Court of Appeal. I am sure that he meant well at the time, but that was a little matter on which I did not wholly agree with his judgment.

Lord Lloyd of Berwick: I hope that the noble Lord, Lord Rees-Mogg, will not hold it against me this evening.

Lord Rees-Mogg: I would not dream of doing so. I admired the speech of the noble and learned Lord,

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Lord Lloyd of Berwick. I thought that he made an overwhelming case and I certainly intend to vote with him.

I cannot call the noble and learned Lord the Lord Chancellor an old friend because of the political divide, but I have known him for a long time. I thought he made a splendid point, with which I was in complete agreement. He said that these were vital constitutional changes that we cannot afford to get wrong. That is my view entirely. It is also the view of the noble and learned Lord, Lord Lloyd of Berwick, and represents the strongest reason that has been given in this House for voting for his amendment.

8.58 p.m.

Baroness Goudie: My Lords, I would like to start by saying that in my view this Government have a splendid record to be proud of on constitutional reform and modernisation. I shall briefly rehearse the record. First and foremost on the list of achievements is the enactment of the Human Rights Act 1998. All other legislation passed before and after it is subject to it and has to be interpreted so far as possible to comply with it and with the European Convention on Human Rights.

The Human Rights Act is a finely crafted measure, which on the whole has worked well and which is highly relevant to our debate. It struck a careful balance that duly respected parliamentary sovereignty. That balance should be preserved. Our final court, whatever it is called, should have broadly the same jurisdiction as at present. I do not agree that this role makes it second-class, or that it will not in fact be a Supreme Court. "Supreme" does not mean above the law. Every court, however high, is itself subject to the law. As has aptly been said, we want the rule of law, not the rule of lawyers. Some lawyers may have an agenda of seeking to take power to strike down Parliament's legislation. That must be resisted.

"Supreme Court" is a totally appropriate description for what will be created by the Bill. The public, here and overseas, will clearly understand its role. The descriptions "Appellate Committee", "Judicial Committee of the House of Lords", or whatever, make only for confusion. The title "Lord Appeal of Ordinary" is archaic. The legislative and judicial functions are separate. Most judges are not legislators; most legislators are not judges—certainly not at the same time. It makes sense to keep the two functions apart.

I support the principle of a Supreme Court. It will not be a poor relation; it will have a broad role. It should not be modelled on other Supreme Courts which have operated in federal or other ways. It is important that the new Supreme Court should have suitable premises and be adequately resourced. Those resources should not come from excessive fees imposed upon litigants or by way of transfer from the legal aid budget. The necessary time should be taken to get it right.

I mentioned that first and foremost of the Government's constitutional reforms has been the Human Rights Act. Of course, there are others.

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Prominent among those has been devolution. A new Supreme Court, which is, in part, a product of the Human Rights Act, must respect the balances within that Act and respect the devolution settlement and the particular position of Scotland.

There have been other notable constitutional reforms; for example, data protection, freedom of information and the phasing out of hereditary Peers and so on. Parliamentary reform is ongoing with the suggestion of a Speaker for this House—a proposal of which I am wholly in favour. There will be a new process for the creation of new Peers. The Law Lords are not immune from these changes. The Law Lords have been a first-class final court of appeal and they will ensure that there is a first-class Supreme Court. But giving up such limited legislative roles as they have will not impede them.

It is a well known maxim of the law, uttered by a Lord Chief Justice 80 years ago, that justice should not only be done but should manifestedly and undoubtedly be seen to be done. Justice is done by the Law Lords. It will be better seen to be done by a Supreme Court separate from the Westminster/Whitehall machine and estate and, as a Supreme Court for the United Kingdom, separate from the courts of England and Wales as well.

Further, I support the principle of a Judicial Appointments Commission. Here, too, great care will have to be taken in relation to the detail. Again, adequate resources are important. Without them, a good idea can be a disaster in practice. The birth of the Crown Prosecution Service is only one example.

There is great good sense in the report of the Constitutional Affairs Committee of the House of Commons. One of its recommendations, which I support, is that the Government must make it a clear objective of the new Judicial Appointments Commission to ensure that an effective effort of the kind made by the noble and learned Lord, Lord Irvine, as Lord Chancellor to promote diversity will be continued in future. That recommendation was based in part on the response to the Government's consultation paper from the Society of Black Lawyers. It said:


    "There has been some improvement to the appointments system for the ethnic minority. This has largely come about as a result of the personal attention to appointments paid by the Lord Chancellor, Lord Irvine of Lairg. He took a pro-active approach to the appointment of judges. In particular he was happy, if a case warranted it, not to act on the recommendation given by his officials or by any advisory panel but instead to make appointments based on his personal assessment of an applicant. He actively encouraged ethnic minority applications, agreeing to look personally into the grievances of any applicant and the Society is aware of the number of occasions where Lord Irvine reversed a decision not to give an interview or to appoint".

Recent Lord Chancellors will be a hard act to follow. In establishing a new system we must build on the strengths of past practice. I believe that we will.

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I commend to the House that we give this Bill a Second Reading, following our normal practice. We should have no truck with what can only be called wrecking amendments, such as sending this Bill to a Select Committee.

9.5 p.m.

Lord Campbell of Alloway: My Lords, I support this amendment and it is not a wrecking amendment.

I accept, of course, that parliamentary reform is an ongoing affair, but not for the reasons given by the noble Baroness, Lady Goudie, who has just spoken.

This amendment was accepted by the Table as in order, on the advice given to the noble and learned Lord, Lord Lloyd of Berwick. In any event, the House is the master of its own procedures. There is no reason why we cannot go back to that bungled reshuffle as concerned the ancient office of Lord Chancellor, sought to be abolished by prime ministerial decree made in error.

I wholly agree with the noble and learned Lord, Lord Lloyd of Berwick, respectfully, fundamentally disagree with the noble and learned Lord, Lord Woolf, on this issue. Yes, we must go back to where we were.

The threat to withdraw the Bill that I read in the papers this morning to oppose this amendment, to invoke the Parliament Acts and to tighten the rope around our necks is yet another bungled exercise and another abuse of the constitution. If any precedent would be set by the tabling of this amendment, that is the total responsibility of the Government, first by declining to deal with a full scrutiny of a draft of the Bill, and secondly, to decline to heed the recommendations of the Select Committee totally within the remit of the Government.

The delay of three months for a report is wholly acceptable to the noble and learned Lord, Lord Woolf, as the favoured means to preserve the independence or integrity of the judiciary. If I have got that wrong, I seek a correction.

What grievance of the nation is addressed by the abolition of the office of Lord Chancellor, or the exchange of the Appellate Committee of your Lordship's House for what the noble and learned Lord, Lord Woolf, described as a second-class court of Supreme Courts in the world, subservient to Parliament and having limited jurisdiction?

Only the interests of this Government, who seek to govern without the Constitution and the rule of law, are to be served. That is the hidden agenda. I say nothing about the right honourable gentleman the Home Secretary.

On 12 February it was wholly apparent that this concordat was made to avoid conflict between the judiciary and Parliament. That is why it was made. I talk not about pressure. I criticise no one, but that had to be made and was made. I attended on that day but did not speak. The closing speech of the noble and learned Lord, Lord Falconer of Thoroton, made no attempt to engage with the merits of the argument as to the consequences of the abolition of the constitutional

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role in Cabinet, the parliamentary role as Speaker in your Lordships' House, as head of the judiciary and having control, if I may put it shortly, of judicial arrangements.

This amendment is supported as a viable means to escape from entrapment and to afford some acceptable resolution such as proposed by the Select Committee, no less, of another place. In the absence of any manifesto commitment to introduce the Bill, it would be in accordance with the acknowledged functions and duties of this House if your Lordships were to delay the passage of the Bill for, say, three months until the report of the Select Committee had been debated, if so advised.

As to the constitutional role, the Lord Chancellor advises the Cabinet as head of the judiciary to protect the rule of law, the integrity of the judicial system and of the judiciary. He represents the judges without ministerial power and, as has been said by the noble and learned Lord, Lord Woolf, the combination of the office of Lord Chancellor with the office of Secretary of State is fundamentally inconsistent.

The noble Lord, Lord Brennan, made reference to Clause 1. The objection to Clause 1 is that there are no effective means of enforcement of any of its provisions to safeguard the rule of law, the integrity of the judicial system and of the judiciary. Under our largely unwritten constitution, the Bill affords a very substantial written contribution. We have no constitutional court. There is no way in which the provisions of Clause 1 may be enforced unless, by statute, jurisdiction were to be conferred on the High Court, on judicial review, or a constitutional court were to be set up with limited competence to enforce Clause 1. The extant system under which the Lord Chancellor advises Cabinet on all such matters works and is wholly understood. Removal of that office leaves a vacuum, which cannot be replaced and assuredly is not replaced by any provisions in the Bill. What is the justification for tinkering with Parliament?

I was going to say a word about the parliamentary role of the Lord Chancellor, his status and authority and symbolic presence as Speaker as affording the irreplaceable safeguard for self-regulation, but my time is up.

9.14 p.m.

Lord Cullen of Whitekirk: My Lords, I would like to make some comments from a Scottish point of view on the implications of what is proposed as a Supreme Court for the United Kingdom. As has often been remarked, the legal systems of England and Scotland are not only different, but they are separate from each other as if they related to two foreign countries. Thus, as the final court of appeal in civil cases the House of Lords functions at times as an English court and at times as a Scottish court.

There is a striking illustration of this in the words of Lord Eldon, who held office as Lord Chancellor in the 19th century. When addressing this House in a Scottish appeal he said that,


    "there is no principle which I have held more sacred, ever since I had the honour of assisting your Lordships in judicial matters respecting the law of Scotland, than to recollect, and to act upon

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    that recollection, that we are sitting here as the Court of Session in Scotland, to decide as that court ought to decide, and that we are bound not to apply our English principles, and our English doctrines, in judicial decisions upon the law of Scotland".

Now, one might have expected that, in line with the Statement made by the noble and learned Lord the Lord Chancellor and Secretary of State on 9 February, and indeed repeated here today, that the Bill would state that, leaving aside decisions on devolution issues, decisions of a United Kingdom Supreme Court would be of binding effect only within the particular jurisdiction from which the appeal arises, so that the decision on an English appeal would not overrule a Scottish decision. However, the Bill does not state that.

But the matter of concern to me goes deeper. It is well known that for centuries, despite what Lord Eldon referred to as the "sacred principle", there has been a tendency for judges in the House of Lords who had an English background to assume that what is right for English law must surely be right for Scots law. That has led from time to time, and especially in the 19th century, to innovations in Scots law which were not in harmony with its own principles.

Under the Bill the jurisdictions of the House of Lords in English and Scottish appeals would be put into a single package and transferred to a unitary court, a court serving two separate legal systems. The amount of law which is identical both north and south of the Border is fairly limited. In any event, its application may lead to different results, depending on the general law of the jurisdiction where the question arises.

My concern is that this proposal, as it is expressed, will mean a gradual erosion of the difference between Scots law and English law. The same point arises in regard to the Supreme Court's involvement with Scots criminal law in dealing with devolution issues. There is nothing in the Bill which states that, in exercising the transferred jurisdictions, the Supreme Court is to respect the continued separate existence and identity of the legal systems of England on the one hand and Scotland on the other. And yet the Bill is concerned with constitutional changes of a fundamental character, presumably intended to last for many a year, long after ministerial assurances have been forgotten.

I can think of no better illustration of what concerns me than to refer to the remarks of the noble and learned Lord, Lord Hope of Craighead, when he gave evidence to the Select Committee on Constitutional Affairs in the other place on 2 December last year. He said:


    "The problem is, I think, if you describe the court as a supreme court of the United Kingdom, it tends to suggest that there is a body of United Kingdom law. In a court which inevitably is filled with a majority of English judges there may be a temptation to say, 'Well, we see differences between Scots law and English law on issues relating to property or other matters, what's the point of having a difference when we're sitting as a United Kingdom court?' The Scots may well feel that would introduce a drift away from their system of law into an English system, and there are signs in case law, even now, that there is a temptation along that line".

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Finally, I add a few words on Clause 1, which would place on Ministers of the Crown a duty to uphold the continued independence of the judiciary. No doubt, this clause refers to the English judiciary, as part of the proposed arrangements to replace the office of the Lord Chancellor. However, it has a rather curious result. A Scottish Minister, being a Minister of the Crown, would have a duty to uphold the independence of the English judges, if he were involved in English proceedings. I ask for equality of treatment. If this clause is worth something, why should Scottish Ministers not have a duty to uphold the independence of Scottish judges?

9.21 p.m.

Lord Plant of Highfield: My Lords, at the risk of being regarded as—and criticised by the noble and learned Lord, Lord Lloyd of Berwick, for being—a constitutional purist, I offer the Government my full support of the basic principles of this Bill, in particular for the establishment of a Supreme Court as a further step in a welcome separation of powers. The establishment of a Supreme Court, and the separation of powers that it will embody, is rather overdue, for reasons that I will seek to explain.

Over the past generation, we have seen the emergence of a more complex idea of political accountability compared with what previously obtained. The growth of judicial review, with its judgments on the legality, rationality, fairness, and proportionality of the exercise of powers by the executive and its various administrative arms and agencies has led to a dual form of executive accountability. The first is to Parliament, for the executive's general legislative and policy programme, and secondly to the courts, through judicial review, for the exercise of the powers conferred under such legislation and in pursuit of such policies. This process has been considerably enhanced by the passing of the Human Rights Act.

In the view of some judges, this process has led to a more complex and dynamic account of the nature of sovereignty. In 1991, the noble and learned Lord, Lord Bridge of Harwich, argued that:


    "In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making law and the sovereignty of the Queen's courts in interpreting and applying the law".

That is in the case of Morgan Grampian (Publishers) Ltd. The same point is to be found in Lord Justice Sedley's argument in his essay, "The Common Law and the Constitution". In that essay, Sedley argues that it is in Parliament and the courts that the sovereignties of the state reside—note the plural in respect of sovereignties. He repeated the argument in an article in Public Law, where he says that the pure idea of parliamentary sovereignty is giving way to a bipolar sovereignty of the Crown in Parliament and the Crown in the courts, to each of which the Crown's Ministers are answerable—politically to Parliament, and legally to the courts. Not dissimilar points have been made by the noble and learned Lords, Lord Steyn and Lord Hoffmann, in cases

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involving the Home Secretary. The argument has been endorsed by many senior academic commentators on public and constitutional law.

It is certainly arguable now that judicial review and the Human Rights Act have led judges to believe that it is part of the remit of the courts to utilise and invoke ideas of constitutional rights as a constraint on the pure exercise of parliamentary sovereignty and a parliamentary majority, thus leading to the dual accountability, or dual sovereignty, view. I am sure that we shall see arguments that exactly mirror these points being deployed in the debate on the asylum Bill next Monday. If this is a fair picture of how the constitution is developing—I believe that it is—it has obvious implications for the separation of powers. I strongly welcome the development of judicial review and the processes by which, according to the noble and learned Lord, Lord Steyn, we are "edging towards a constitutional state". But if the judges have the opportunity to hold Government to account in judicial review for its exercise of powers, it seems to me to be entirely wrong that they should be part of the legislature. If judges were to remain in Parliament, this would be a form of double counting, giving judicial judgment a double place—in the legislature on the one hand and in the courts on the other. To coin a phrase much used in judicial review, such double counting would be procedurally unfair. By all means, let the judges be very active in judicial review—I welcome that. But they should not expect to stay in the legislature as well if we are moving to this bipolar form of sovereignty.

The Lord Chief Justice is something of a judicial icon to me since his report on the Strangeways riots, which I had to deal with in 1992 when I was a Home Affairs spokesman for my party. The Lord Chief Justice is a most distinguished alumnus of University College, London, whose presiding genius was Jeremy Bentham. He and his colleagues should recall Bentham's profoundly democratic principle that in a democracy, each one should count for one and not more than one. I do not think there is a case for judges having a double voice.

To retain judges in the legislature while they embark on what, to me, is an entirely legitimate form of vigorous judicial review, would be to give the judiciary a uniquely privileged position in the constitution, and I, for one, can see no reason at all for this. This will become even clearer if judges threaten to use ideas about basic constitutional rights such as access to the courts to challenge the asylum Bill, for example, both in Parliament and subsequently in the courts. That gives them a status that is denied to every other citizen, and I respectfully submit that this would be wrong. The fact that I rather agree with what the Lord Chief Justice has said about the asylum Bill does not alter the fact that judges should not have the power to challenge such a Bill both in Parliament and in the courts. I do not think that the judges can stand on secure ground in claiming to be defenders of basic constitutional and democratic rights while at the same time claiming two voices for themselves.

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Of course it might be said—and it has been said—that judges in the House of Lords should take a vow of silence and inaction in respect of the legislative function of the House of Lords, but then one has to ask the question of why they need to be here at all. The answer has been given that they will learn something about real life by being Members of the House of Lords. Devoted as I am to the ethos of the House of Lords and to its many great virtues, I am sure that if judges lead such cloistered lives, there are more direct ways of finding out about real life than being Members of the House of Lords.

Finally, I have to confess some sympathy for the idea that this proposal could have been made in a more considered way than it was. Indeed, this is true of a good deal of the Government's constitutional legislation, where we still have to see the overall picture. It seems that the position of the Government is akin to that taken by Cardinal Newman in "Lead, Kindly Light",


    "I do ask to see


    The distant scene,—one step enough for me".

Well, as an academic philosopher, I am rather attracted to the distant scene. But we are where we are, and for the reasons that I have given, so far as I am concerned, the step proposed in this Bill is good enough for me.

9.29 p.m.

Earl Ferrers: My Lords, I suppose that this must be one of the most important Bills which your Lordships have ever discussed. It is not just the alteration or even the reform of the constitution—it is the carving up of it.

Some of the details of the Bill are hugely complicated and will be mostly understood only by lawyers or bureaucrats or such other esoteric folk, not by simpletons like me. I am quite content with that. I am much more concerned about what is happening with the down-to-earth stuff. What is happening to our country, and what is happening to your Lordships' House? The present Government, in their charmingly friendly way, decreed in 1999 that they were going to get rid of all hereditary Peers—gone, finished, vaporised. I thought then, and I still do, that that was a tough and misguided action, despite the fact that those hereditary Peers who are left are the only Members of your Lordships' House who happen to have been elected.

The hereditary Peers have become an endangered species, but we are not alone. Now the Law Lords are to be thrown out. We look across and up to those noble and learned Lords, and say, "Et tu, Brute? Going too?" And it is not only the Law Lords but the Bishops as well. They do not appear in the Bill but, apparently, so rumour has it, they are going to be reduced from 26 to 15. What have those poor chaps done to deserve that?

The final coup de grance is that the noble and learned Lord the Lord Chancellor, like some kamikaze Japanese pilot, decides to commit hara-kiri and destroy not only himself but the machine in which he sits. What on earth has come over the Government? What is so wrong with the House of Lords? What is so

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wrong with the lawyers and judges that they have to be upheaved in this manner? Why do we have to despise and destroy so much of what is good about this country?

We have always said that the British system of justice is the best in the world, and so it is. I have never experienced it at first hand, but I am quite happy to believe that it is. The judges and Law Lords are deeply respected, always, but they are respected because of the manner in which they and their predecessors have conducted themselves. Like a wall, confidence is built up, brick by brick, but it can be knocked down in one blow. But now they are not going to be allowed to sit in your Lordships' House, or even to participate in our affairs. That is a tragedy; they are always listened to with respect and admiration, especially when they do not agree.

The Law Lords contribute hugely to the formative process by which raw Bills are turned into reasonable laws. The noble and learned Lord, Lord McCluskey, referred to the Scotland Bill of the mid-1970s, and listed all those noble and learned Lords who took part—and very impressive it was, too. I remember that I was supposed to be in charge of the team opposing the Bill, which I found a most scary business, particularly with the noble and learned Lord, Lord McCluskey, opposite, acting for the government. I am glad to say that the Bill failed, although not because of my efforts.

The noble Lord, Lord Carter, said that he was convinced that Law Lords should not speak in the House. I regarded that as pretty offensive. Who would he prefer to listen to—more pedestrian noble Lords, such as myself? I regard that as a compliment in vacuo, but I believe that the noble Lord was wrong.

When I had the privilege of being a Minister in the Home Office and we had some frantic piece of legislation to try to weave through your Lordships' House, we waited with bated breath to see what the Law Lords were going to say. If the Lord Chief Justice was on our side, there was a great feeling of hooray! If he was against us, one was terrified and thought, "My goodness, perhaps we've got it wrong". That applied to all the other Law Lords. It was not a matter of the Lord Chief Justice or the other Law Lords transposing themselves from being judges to becoming legislators or law-makers. They were merely giving their advice to Parliament on the proposals before it, with all those years of experience of legal life in the rough and tumble of the real world behind them. I do not see anything wrong with that. It was valuable advice; it always was and always is. That advice is now to be denied to Parliament. Does the noble and learned Lord the Lord Chancellor really believe that Parliament will be the richer and the better for that? Why do we need to throw the Lords of Appeal out of Parliament and out of the physical premises of the House of Lords?

I was impressed by the remark of the noble and learned Lord, Lord Lloyd of Berwick, who said that the cost of running the Appellate Committee in the House of Lords was 168,000. The cost of running the equivalent committee in its new premises is going to be not 168,000 but 6.5 million. The cost of moving

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premises is likely to be anything between 6 million and 32 million. Should this not be considered? Is this really desirable? I found it extraordinary that the noble Baroness, Lady Jay of Paddington, and the noble Lord, Lord Desai, said that cost should not matter, that that is not the way in which one justifies constitutional matters. I consider regarding costs and the constitution in this manner as pretty flippant. It does matter. What is the advantage of finding new and hugely expensive premises, which will have to be of a manner and character suitable to reflect the solemnity and the importance of the court?

When one thinks of those who are made life Peers—and all life Peers are jolly fellows and very good ones—why should that preferment to nobility be denied to those who have arrived at the pinnacle of such a distinguished and respected profession? Why is it necessary to change the method of appointment of judges? I know that we hear all about the necessity to keep the judiciary separate from politics and all that jazz. The continued independence of the judiciary is the familiar theme. We have heard it stacks of times today. We are constantly told of the importance of ensuring that the system is pristine clear. Listening to the noble and learned Lord the Lord Chief Justice last week, it did not seem to me to indicate that there was any particular inhibition or lack of independence there under the present system—I am bound to say that when I heard him today I began to wonder a little.

But is the present system not pristine clear now? Do those kinds of somewhat supercilious remarks imply that because this new system is not in place, those who have been appointed judges have been appointed by a less good and a more suspect system and that they are therefore somehow less good and more suspect? I have always had a deep admiration for the judges and I see no justification whatever, despite the niceties of the intellectual arguments, for imposing a new system in order to make them better.

I was appalled when the noble and learned Lord the Lord Chief Justice said that we cannot go back to before June 12. Why not? If this is so, it means that the action that the Government then took was so precipitate that it cannot be reversed or revised. It is a devastating indictment of what the Government can do, or just say, and then get away with it. If that is so, it is the Government who have got us into this muddle. It ought to be appropriate for it to be considered.

One does wonder why the Government want your Lordships to be a check on government. They always say that the second Chamber must be a good check on the executive. But whenever we mention this in a whisper, howls come from the Government saying that it is absolutely disgraceful, we should not do it, it is absolutely wrong and we shall never have any new Bills in the House of Lords again. I agree with my noble friend Lord Crickhowell. That is a lot of old nonsense. The Government could not manage if they did not produce new Bills in the House of Lords. I do not believe that these threats ought to be taken seriously.

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I wonder why we, so often called the "clever people", wring our hands and minds to pieces in order to try to improve what we have when other countries look at our system in wonder, admiration and envy of what we do and the way that we do it. Other countries, particularly new ones, wondering how to create their new country, look at the United Kingdom and marvel at its institutions, its history and its dignities and say, "this is our model". Yet we, who created it and have it, seem to be intent on destroying it.

I remember that, in 1959, there were problems with the Central African Federation and the Conservative government of the day set up the Devlin Commission to look into it. The commission consisted of some of the country's most brilliant people, such as Lord Devlin, Sir Walter Monckton and other what one might call brilliant "eggheads". It produced a report which the government did not like, the opposition despised and the Central African Federation could not stand. When the Devlin report was debated in your Lordships' House, the late Lord Coleraine—and here I paraphrase his words—said, "Why is it that only the most intelligent people can come to such stupid conclusions?" I wonder whether that does not ring a bell 40 years later.

What are the Government trying to do? They are getting rid of the hereditary Peers. They are getting rid of the Law Lords. They are getting rid of the bishops. They are getting rid of the Lord Chancellor—who is, after all, the Keeper of the Queen's Conscience and Keeper of the Great Seal. One gathers that the Queen was never consulted about this. The monarch has a right to be consulted, a right to encourage, and a right to warn. But how can Her Majesty exercise those last two rights if the first one was denied her? Why is all this being done? "Modernisation", we are told. This is not modernisation; it is destruction. It is, in effect, a virtual rape of the constitution.

The late Lord Fisher, Archbishop of Canterbury, said that there is no unreasonable argument which cannot be proved reasonable by reason. The noble and learned Lord the Lord Chancellor is a very agreeable fellow with friends all the way around the House. It just saddens me that, despite all his many virtues, his name will be for ever linked with and sullied by this destruction. However, it is not over. There is still time for him to retrieve some of the position—provided that he is prepared to listen to others who are just as concerned about the future and the constitution as is he, even though their approaches and views may come from a different angle.

9.42 p.m.

Lord Ackner: My Lords, although your Lordships will long have forgotten it, I am bound to confess that I did make some timid and deferential submissions on 12 February. I will therefore do my best to keep my observations short.

First, I submit that my noble and learned friend's amendment is not a wrecking amendment; it is consistent with the Government's desire for pre-legislative consideration. It is quite clear that the carryover

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procedure will apply and the Bill can still be passed in the Lords, appropriately amended as a result of the committee's intervention.

Before referring to the Bill, I have one preliminary observation. The noble and learned Lord, Lord Hoffmann, in the February debate, was seeking an explanation for why not only was the Lord Chancellor sacked, but the office of Lord Chancellor was, it was thought, abolished at the same time. He said:


    "One possible answer is that the Prime Minister decided that the then Lord Chancellor had to go, and for some reason his removal had to be dressed in the robes of high constitutional principle".—[Official Report, 12/2/04; col. 1259.]

I suggest that that overcomplicates the position. The short answer was that if a Lord Chancellor worth his salt—and that is not meant to be offensive to the noble and learned Lord the Lord Chancellor, because he is worth his salt as Secretary of State—was appointed to replace the Lord Chancellor who was so unceremoniously dismissed, then exactly the same would happen on the next occasion when a Home Secretary produced his Schedule 17 to the Criminal Justice Act, doubling sentences for murder because he was enraged at losing his power to decide how long one would stay in prison. There would be a row with that Lord Chancellor. There would be a row with the next Lord Chancellor over his insistence that jury trials should not take place in the circumstances of the domestic violence Bill. As regards the ouster provisions, one cannot envisage a Lord Chancellor who is worth his salt doing other than stand up against that situation.

As regards the Bill, I submit that Clause 1 only seeks to uphold the independence of the judiciary. Towards the end of the July debate the noble and learned Lord the Lord Chancellor accepted that his function was to uphold not only the independence of the judiciary but the rule of law. Those two matters were vital. That is not in this Bill. If it were, out would go, if I am allowed the pun, the ouster clause. Further, in the Bill the Secretary of State "must have regard to". That phrase imposes only the obligation to consider; it does not impose the obligation actually to act.

My next point concerns the way in which the whole of Clause 1 should be set out. Up to date, the Lord Chancellor would have accepted the observation of Sir Thomas Fuller, the 17th century Attorney-General, who said,


    "Be you ever so high, the law is above you".

That is something which Lord Denning accepted and used in the well known Gouriet case in 1977. It has been pointed out by Justice that the terms of the South African constitution are much more appropriate. It reads:


    "Organs of state through legislative and other measures, must consist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts."

In the debate in February, the Lord Chancellor said that it was the Government's desire,


    "to protect and indeed enhance judicial independence".—[Official Report, 12/2/04; col. 1213.]

In those circumstances the words used in South Africa would be much more appropriate.

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The next point I wish to make, which should be considered by the Select Committee is that statutory recognition should be given to the Judges' Council. It has no statutory support at all. If one gave that statutory recognition then there should be a parliamentary joint committee to consider and report on the independence, impartiality, dignity, accessibility and effectiveness of the courts. It should receive annual reports from the Secretary of State and the Lord Chief Justice.

It is clearly wrong that the Secretary of State should have to agree to any disciplinary action which the Lord Chief Justice thought was appropriate. That is a function for the judiciary alone. Maybe it is necessary to inform the Secretary of State but nothing beyond that should be necessary.

With regard to the Supreme Court, the Select Committee should consider a number of points. First, who is to pay for its building and general maintenance? Surely not the litigant, since the function of the court is to develop the law and not to be concerned with the inter-parties dispute. Secondly, why has no provision been made in the Bill suspending the operation of the Supreme Court until appropriate accommodation has been found? Thirdly, why has no cost-benefit analysis been made? The likely denouement, which is deeply depressing, is that, as the Bill stands, the Supreme Court will be set up when there is no accommodation. There will be a period of wait during which one hopes that money may be spent on the Commercial Court since it is a disgrace in its present state. Then, the period having become embarrassing, the Government will say, "Well, as a purely interim and temporary measure, there is a pensions appeal tribunal that is no longer necessary. It has a floor in some office block. As an interim measure"—note the emphasis on "interim measure"—"we are sorry but you must go there". That interim measure will then last for decades and follow the situation of the prefabs. That would be an appalling situation but one which one can easily see happening.

9.52 p.m.

Lord Elder: My Lords, many erudite speakers have already made contributions today. If the House will forgive me, I point out that an awful lot of them seemed to be lawyers. As a person who is very definitely not a lawyer I wish to make clear that I stand with my noble friend Lady Jay of Paddington and the noble Earl, Lord Ferrers, in claiming the right of non-lawyers to make a contribution.

As a result I very much disagree with the comment of the noble and learned Lord, Lord Lloyd of Berwick, who, when pointing out that Part 3 had had scrutiny from the Lord Chief Justice and the Law Lords, added, "and what better scrutiny could there be?" Indeed, the view that this section should now go forward is gaining ground—at least in speeches made here today—at least among lawyers. But surely it is for Parliament to scrutinise, and that means for this House to scrutinise all of this Bill in its normal way with its normal procedures. It is not acceptable that we should somehow subcontract scrutiny to lawyers to do so on our behalf.

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The scope of the constitutional changes that this Government have already made has been great—sustained reform, improvement and modernisation of the constitution—and this Bill takes that process further. But every time I hear talk of the many hundreds of years of our institutions' existence I ask whether they are fit for purpose in the 21st century. I am not talking about change for the sake of change, but necessary change, and that is very much what this Bill is about.

The Bill would establish a Supreme Court. It may not matter particularly to Members of this House but the fact remains that there is not a clear understanding of the role of the House of Lords Appellate Committee. I hesitate to say that the man on the Clapham omnibus does not understand the difference between "them"—the Appellate Committee—and "us"—the House of Lords. That is not helped by the fact that they—members of the Appellate Committee—are us as well, albeit in slightly narrow circumstances.

There has been much support from many quarters for a Supreme Court and I do not believe that the view expressed earlier holds much ground—that it is right to dismiss those in favour of it, in one of the nicest pieces of spin that I have heard in a long time, as constitutional purists, while those who oppose it are called realists. Good arguments are often explained away by a speaker's confident assertion that he is a realist.

One particular advantage of the appearance of the Supreme Court is that we will be able deal with any problems that arise over the devolution settlement without recourse to the Judicial Committee of the Privy Council. I am sorry if one or two speakers—I am about to be added to the list—have told anecdotes about devolution. But one of the first appearances of which I was aware of the Judicial Committee was in the 1978 Act. Because it was there, and no one thought of anything better, it appeared in the latest settlement. The committee was described by one official, when we were seeking guidance on what it was, as a sort of constitutional long stop. Whether there is much advantage in officials using cricketing metaphors to a number of puzzled Scots is one matter, but the Judicial Committee of the Privy Council is very much a committee of this House and, as such, it has always been inappropriate for it to have to sit in judgment between the UK Parliament and Government on one hand and the devolved institutions on the other. The Supreme Court will rightly put that right.

The setting up of the independent Judicial Appointments Commission has already been a matter of great controversy in this debate. As an outside observer, I shall limit myself to two points. First, openness and transparency in appointments ought to be at the heart of a system if it is to hold the full trust of the nation. It is no criticism of judges to say that the system of appointments so far has been lacking in that regard—and that is exactly what the Bill will provide. I cannot see a case against having openness and clarity in the process of appointment.

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Diversity is one of the great concerns that the Judicial Appointments Commission will have to address. I underestimate neither the importance nor the difficulty of that, but I trust that the Judicial Appointments Commission will show more imagination in that task than was shown in the issue of "peoples' Peers"—and let us not hear that candidates were excluded because they would not have fitted in comfortably. The task is likely to be formidable and I am pleased that someone as distinguished and capable as Dame Rennie Fritchie is taking it on.

The final matter upon which I wish to comment is the amendment before us. I can understand my noble friend the Government Chief Whip's sense of frustration at what might now occur. Any sensible management of our business needs major Bills to start their passage here. It is not just a matter of Bills starting here; they must also be major ones. That has always been opposed by another place precisely because the Parliament Act could not then be introduced. If this Bill had been introduced in another place the present position would not have arisen and the tabling of the amendment plays fast and loose with the arrangements between the two Houses. The consequences for this—not least for this House—seem profound and, frankly, ill considered.

Many expert opinions have been expressed today, but if we end up in the situation, described by the noble Lord, Lord Lester of Herne Hill, as an impasse and the worst of all possible worlds, because the Official Opposition are not prepared to admit that the world has moved on since July last year, we will have ourselves and this House to blame. Also, we will have put this House in the worst possible light as far as the other place is concerned. I much agree with the noble Lord, Lord Marsh, who speaks with real authority when he describes what the other place and all parties in it think about this House.

Voting for the amendment in those circumstances would be a grave error. I do not believe, for all the great skills and knowledge that many have brought to the debate, that those who vote for the amendment could be accused of bringing to the debate anything very much in the way of good judgment.

9.59 p.m.

Lord Mayhew of Twysden: My Lords, I, too, am among those who spoke on 12 February and I am afraid that a more diffident and considerate Member of your Lordships' House would, at this stage of such an impressive debate, keep silent. However, I have been moved to detain your Lordships for a short time because of comments made by the Lord Chancellor this morning. I hope to confine myself almost entirely to that matter.

I heard him on the "Today" programme. As ever, I marvelled that he was so nimble at that early hour. But when he came to explain why he would be objecting to the amendment to refer this Bill to a Select Committee, he was not nimble enough. What he said—and he said it more than once—was that one had to remember what happened to the Hare Coursing Bill of 1975. He

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said that after Second Reading that Bill went to a Select Committee—and indeed it did, at the instigation of my noble friend Lord Denham, as it happens. He said that it never came back. He said that more than once in tones as nearly sepulchral as the noble and learned Lord can manage. One might have supposed that the Bill had somehow tumbled into some unfathomed crevasse—a victim of the inscrutable workings of Providence—from which it had proved impossible to extricate, no matter how diligent the efforts of the Ministers responsible. But it did not happen like that.

What happened was that the Select Committee, which was directed to report within four months, gave that Bill the careful examination that it was directed to give it. At the end it came back and reported to the House that in its view the Bill ought not to proceed. Why? Because it was:


    "not a suitable instrument for the reduction of the suffering of hares".

It went on to say, as a result of its deliberations, that:


    "Action should be taken by those concerned to examine further current coursing practice and legislation for the protection of wild animals".

I am indebted to the Library staff for this research, but I have looked at the Official Report and it is true.

Your Lordships would be sorry to think that the objection of the noble and learned Lord the Lord Chancellor to committing this Bill lies in a fear that a Select Committee would report that this Bill too was an unsuitable instrument for sustaining the independence of the judges, or, for that matter, the effectiveness of our court of final appeal. Your Lordships might be driven to that conclusion unless tonight the noble and learned Lord the Lord Chancellor is able to suggest another reason why the Hare Coursing Bill is a precedent at all costs to be avoided. It is hard to see at present why what was appropriate for a manifesto Bill—to outlaw and make criminal the hunting of the humble hare—is not somehow appropriate for a Bill tonight, about which the manifesto was entirely silent, and yet which wrenches—


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