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Lord Carter: My Lords, that is correct because the Bill, which was introduced by the Government in the Session 1974–75, failed to progress after Second Reading. In the next Session, on a proposition of the Conservative Opposition to a Labour Government Bill, it was sent to a Select Committee which recommended that the Bill should not proceed, and it did not. That is the only example of a government Bill in the last 30 or 40 years which has gone to a Select Committee. That is why the example was chosen.

Lord Mayhew of Twysden: My Lords, that is entirely consistent with what I somewhat more succinctly had endeavoured to say. It is very hard to see why what was appropriate then, albeit at the second Second Reading of that Bill—a Bill which was a manifesto Bill, possibly not a flagship one—is not appropriate for this Bill which wrenches our constitutional arrangements about in so violent and so controversial a manner.

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The noble Lord, Lord Carter, told us that under our rules, if the Bill went to a Select Committee and if it were to report that it should not proceed, it would have to stay on the list until the end of the Session. But with the greatest respect and diffidence, I suggest that the Government are the masters of their own intentions and the House the master of its own rules. If the Government wanted the Bill to be brought back and recommitted to a Committee of the Whole House, they could perfectly well do so. I do not believe that there is any procedural reason why this would be impossible and, in any event, if they ran out of time the new carry-over rules would permit the Bill to be saved.

I want only to advert to one final matter. It derives from the almost frivolous removal of the Lord Chancellor from the scene and, more particularly, from the Cabinet. Although all institutions are mortal and therefore liable to be inconsistent, Lord Chancellors stood up in Cabinet for the rule of law and for the independence and unfettered functioning of the judiciary when these were threatened by their more enthusiastic colleagues. Lord Chancellors were a formidable and effective influence and force. But now look at Clause 11 of the latest asylum Bill.

After the unprecedented thunderbolt hurled by the noble and learned Lord the Lord Chief Justice on behalf of the judiciary, it would be idle for me to attempt to add to the denunciation that your Lordships have already heard. I find it impossible to believe that any "pre-6/12" Lord Chancellor—I might well have said any "proper" Lord Chancellor—would ever have stomached such a measure. And I do not believe that the noble and learned Lord, Lord Irvine, did, although I have not discussed it with him.

This is not Cicero's Rome. Even amid the clash of arms, the laws are not silent, as a great Law Lord once remarked to the discomfiture of the wartime government. Yet the silencing of the judges is what Clause 1l of the asylum Bill is about. I believe that the asylum Bill has served us with a warning of what we can expect. We have in the amendment our opportunity for wiser counsels to be developed and to take root. A safeguard, if not a remedy, is at hand tonight and we should seize it.

10.7 p.m.

Lord Phillips of Sudbury: My Lords, an issue of principle is at stake tonight. It is of more importance than any particular provision in this 212-page Bill. It can be characterised as being, on the one side, a clash between normal parliamentary procedures—the noble Lord, Lord Carter, spoke clearly on that—and the objections of the Government Benches to the notion of the Lloyd amendment being carried and, on the other side, a sense of rejection of the exceptional circumstances attending the bringing forward of the Bill.

By that I refer to the fact that it appeared out of thin air. Talk about a flagship Bill—it was more like a ghost ship Bill! It arrived one day in June without consultation or mention to the judges affected. It was followed by a consultation process which offered only two options: the status quo or what the Government

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had already decided. As everyone who has spoken agrees—and as even those who support the Bill accept—that is no way to legislate major constitutional change. The fact that we do not have a written constitution speaks ever more loudly in support of clinging on to whatever conventions we have in that regard.

One of the influences on me today—I cannot say that I came here with a closed or clear mind—is the political pressure being put upon this House from the other place. Perhaps I can read what was written in today's Times following an interview with Mr Peter Hain, who is reported as saying:


    "What peers are proposing is completely undemocratic. We cannot allow it to happen. Peers are being incited by Michael Howard and his lieutenants to overturn the will of the elected chamber".

I wonder what he is talking about; what will of the elected Chamber? The elected Chamber has not considered any of these matters, neither in theory nor reality. What pressure? I do not know about the noble Lords on the Conservative Benches, but I do not see them quaking in their shoes at whatever pressure has been exerted by Michael Howard, if any. The truth of the matter is that Peter Hain appears to be spoiling for a fight. I do not believe that we should rise to the bait or withdraw from what appears to be our clear duty to deal with a profoundly important constitutional Bill in the manner that we believe is most appropriate and which will yield the best reform that our common wits can achieve.

I believe that everyone accepts that the independence of the judiciary and the integrity of the rule of law are the key criteria by which this measure should be judged. We accept the absolutely invaluable pricelessness of an independent judiciary and of a rule of law that, by and large, in this country still maintains its integrity.

There is the notion that introducing a single clause into this long Bill, stating as a matter of law that there must be maintenance of the integrity of the judiciary, somehow does the trick, or that the means by which this country has proceeded hitherto, mainly on the grounds of custom, tradition and common values, should be jettisoned in favour of a single, simple statutory measure. If that were the yardstick of effective protection of judicial independence, one may wonder why many countries, awash with such constitutional and statutory protections, fail to acquire that priceless independence and integrity that we enjoy. Does anyone pretend that in Italy, for example, the massive amount of statutory and legislative protection for judges achieves its purpose? Germany in the 1930s had a constitution and a system of law that was all the things that ours apparently failed to provide, but I do not believe that there is any doubt about their ineffectiveness.

I shall say a word about the Lord Chancellor and why I believe that his presence in Cabinet is integral to the maintenance and continuance of that precious independence and integrity. In response to the point made several times by the noble and learned Lord,

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Lord Falconer, the burden that rested upon the Lord Chancellor immediately prior to the June announcement was largely of the Government's making. Since the Government came to power in 1997 there has been a rapid accretion of responsibilities and powers on the shoulders of the Lord Chancellor. One way of resolving that matter would be to shed most of those added powers, as indeed has been anticipated by the creation of the Department for Constitutional Affairs. I am still not persuaded, as I believe many noble Lords are unpersuaded, that having created that department there is a need to abandon the Lord Chancellorship and all that goes therewith.

That is especially the case, as the noble Baroness, Lady Kennedy of The Shaws, made very explicit during the debate that we had on 12 February. The circumstances giving rise to the cessation of the Lord Chancellorship of the noble and learned Lord, Lord Irvine of Lairg, were highly political and had nothing whatever to do with great constitutional issues. Tonight the noble and learned Lord, Lord Ackner, has made more oblique reference to that. There has been no attempt by anyone on the government Benches to deny what was said on 12 February. I believe that it is an open secret that the circumstances giving rise to this Bill do not bring credit on the Government.

I turn lastly to the question of evidence. If ever the old adage "If it ain't broke, don't fix it" was justified it is with regard to judicial integrity and independence. Those are elusive qualities. I rather favour, unlike my noble friend Lord Maclennan, the notion of the mysticism around those commodities. The absolute absence of any compelling evidence as to the insufficiency of independence or the lack of integrity makes the proposals in this Bill simply unacceptable. As the Lord Chief Justice said, if the need for a judicial appointments commission is pressing in the wake of what has already happened, then we can legislate for that quickly and effectively.

Of course there are aspects of the Bill that many of us would be willing to accept, with sensible amendments. However, the manner in which this reform has been brought forward and the absence of due process, which is often as important as the substance of reform, make the present position untenable. The sort of open-minded consensual consultation that would be involved in setting up a Select Committee in accordance with the proposals of the noble and learned Lord, Lord Lloyd of Berwick, would be sensible, constructive, in the best traditions of this House and would represent the best discharge of the duty that rests upon us.

10.16 p.m.

Lord Neill of Bladen: My Lords, I begin with an apology that I have already addressed to the Lord Chancellor. Unfortunately I had to be in court this afternoon and I missed the first six speeches. I hope nevertheless that your lordships will hear me.

I want to confine myself to one topic—the case or absence of a case for the creation of a new Supreme Court and the eviction of the Law Lords from the House of Lords. I believe that that case has not been

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made in the very slightest degree. Those who espouse the Supreme Court base their case on an article of faith; namely, a belief that judging, legislating and creating or implementing social policy are different activities. I do not believe that that is true any more. I believe that the role of the courts and of the judges has changed fundamentally during the past 50 years or so.

I shall deal briefly with the causes of that phenomenon. The most modern cause is the Human Rights Act 1998. In the mid-70s, there was the introduction of judicial review, which opened up a vast field of government and local authority decision making for review by the courts. Finally, there was a change in attitude by the judges themselves, beginning probably with the great career of Lord Denning. Judges are now every day involved in highly political issues—social issues, life and death issues. Fifty years ago, who would have thought of a case such as the one that reached the House of Lords concerning whether or not a life-support machine could or could not be turned off? Those are the types of issues that are reaching the highest courts. The House of Lords naturally gets the most difficult and toughest cases.

Another factor is involved, which I have not heard mentioned so far. That is that the Law Lords are no longer bound, and have not been since the mid-1960s, by their own decisions. The doctrine of precedent does not apply in the House of Lords. I can give numerous examples of occasions when they have exercised this power or wondered whether they should do so.

A recent example concerned a minor part of the law—whether exemplary damages can be awarded for particularly outrageous conduct by the defendant. In a recent case, the House of Lords indicated clearly that, not being bound by precedent, it was open to them to go in either of two directions. One Law Lord in particular wanted to strike down the whole doctrine, believing that damages are compensation and so cannot be exemplary or act as punishment. Others indicated a different view and wanted to free themselves from a 1964 precedent of the House of Lords, which incidentally has been widely ignored by the Commonwealth, which lays down restrictive rules for when exemplary damages are applicable. I take that as a random example. In some instances—I do not say in every case—the House of Lords exercises a power which is, in effect, legislative; that is, it departs from the law as it was recently laid down.

I move on from the general consideration that the whole argument in favour of a Supreme Court is based on fallacious thinking and turn to the more practical considerations, which are: what is the effect and what is lost? In eloquent speeches made in February and on occasion in this debate, the Law Lords have, for the most part, expressed the view that being Members of this House puts them in a unique and special position—to be au fait with current ideas and to meet people who are not professional lawyers. The virtue of this Chamber is that it is not dominated by lawyers. Although there are many lawyers here—I have heard complaints that there are too many—other kinds of life go on here. From that point of view, the idea of taking away the Law Lords and placing them in a

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Supreme Court or an ivory tower, if it is ever built, is very bad. I believe that they have a very good time by being present in this House and by making use of the facilities. If the facilities are poor, let us improve them.

It seems to me that the loss to the House is perfectly obvious: we would lose their presence. They participate in key debates. As a recent example, I think of the noble and learned Lord the Lord Chief Justice talking about the Criminal Justice Bill. It is a tremendous privilege for this House to hear directly from the head of the judiciary what is good. He considered most of it to be fairly good but there were some bad parts and he exposed those in very clear terms. There is no way that the same effect could be achieved by having him appear as a witness in front of a committee of the House of Lords. Here, as a Member, he speaks and we listen and take note. His is a very important role.

Another role to which I attach importance is that of a Law Lord acting as chairman of a committee. The one on which I am privileged to serve is the scrutiny committee for European legislation, now chaired by the noble and learned Lord, Lord Scott of Foscote. He comes to this House and presents the committee report in a manner which I consider to carry more conviction and be superior when compared with any of the more humble members of the committee. I know that that is not a universally shared opinion—I do not refer to the noble and learned Lord, Lord Scott, but speak in general terms. However, I believe that it is a great advantage for the Law Lords to chair important committees.

What about the public? It seems to me that the public will lose the benefit of the Law Lords being present in part of the legislature. What shall we gain? I believe that we shall only achieve a look-alike. Some agonised consciences will have a healing balm applied to them but, beyond that, we shall be able to say to ourselves only that we now look rather like several other countries in Europe. One thinks of the old historical argument: if you were starting from here, you would not take the House of Lords as your model.

I want to ask another more fundamental question. What do the Government conceive to be the role of the judges? Are they to be cut off from high political debate and issues? And what about the great rows which must be resolved by appointing a Law Lord as chairman? I go back to Lord Wilberforce, whose name has been mentioned. He decided two disputes which baffled everyone: the electricians' strike; and he solved the miners' strike in the space of, I believe, five days from being appointed to producing a report. That was an incredible feat. As he recorded in an autobiographical note, he suffered the severe punishment of being cut dead by a mandarin in the Athenaeum. But he was the only person in the country who was capable of solving that strike, and solve it he did.

If one believed in the separation of powers, the last thing one would do would be to appoint a Law Lord to head a highly political, sensitive public inquiry. What did this Government do? In July—noble Lords will already have guessed the answer—a mere six

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weeks after 12 June, they appointed the noble and learned Lord, Lord Hutton, to hold the inquiry into the death of Dr Kelly.

I think it is right that judges should be used—as they have been used in the past—for that sort of function. The Law Lords will be available in due course to discharge that role, and the best possible home for them—the best possible training ground for the difficult jobs that they have to do—is right here in this House.

I will not go on to the practical difficulties about the new building. There are two certainties and one probability. The certainties are that there will be an overrun on cash and an overrun on time—the building will be late. The probability is that it will be ugly.

10.25 p.m.

Lord Borrie: My Lords, I had the opportunity of addressing your Lordships on 12 February, and therefore I will keep my remarks short, especially at this late hour.

Since 12 February we have all had the benefit of seeing the text of the Bill. I continue to think that considerable chunks of what the Government are proposing are undesirable in principle and bad in practice.

The Government have not made out a convincing practical, pragmatic case—as distinct from a theoretical one—for setting up a new Supreme Court of the United Kingdom and removing or tidying away the Law Lords from the legislature.

My noble and learned friend says that the presence of the Law Lords in this House causes confusion, which has led to the Law Lords themselves issuing a self-denying ordinance indicating circumstances when they may and may not speak in debate.

That speech, given by the noble and learned Lord, Lord Bingham of Cornhill, in 2000, helps make it unnecessary to remove the Law Lords from the legislature entirely, and thereby deprive the House of their occasional but invariably pertinent participation in our proceedings. As for confusion, surely once it is understood that the judicial work of this House is done exclusively by judicially qualified Members, and that no lay Peer has taken part in that work since some remote date in the 19th century, there can be no confusion.

Let us remember the plus points of the highest court in the land being the House of Lords. It is—if Members of the Judicial Bench do not mind me using a somewhat crude commercial phrase—a splendid brand name. It is a brand name that is appreciated and respected; it is the "bastion of legal excellence", to use the phrase of the noble and learned Lord the Lord Chancellor; and, especially, it is of great value throughout the common law world where its decisions are persuasive precedents. There is no confusion throughout the common law world by what is meant by the House of Lords and its judicial decisions.

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I have not heard anybody here today say that the Law Lords are not now independent in the way in which they do their work and engage in their decision making. They are independent from the executive and the legislature. Everybody understands that.

The difficulty that the noble and learned Lord, Lord Nicholls of Birkenhead, pointed out on 12 February, is that a new court with a new name—Supreme Court—would have to build up its own reputation from scratch. As for abolishing the office of Lord Chancellor, I say to my noble friends Lord Desai and Lord Morgan that no one drafting a constitution would dream of creating a Lord Chancellor in a new country. But that is no reason for saying that there is not value, and continuing value, in having one in our country.

The Lord Chancellor's office has been headed by a senior lawyer who, until last year at any rate, enjoyed a very senior prominent position in Cabinet continuing the tradition of having a particular responsibility both in Cabinet and elsewhere for upholding the independence and integrity of the judges and the rule of law. That has not been denied in our debates either today or on 12 February.

The present Government envisage, and have openly said, that the Secretary of State for Constitutional Affairs should be of no particular seniority in Cabinet and need not be a lawyer. To my mind, both of those matters are retrograde steps in our constitutional arrangements.

I said that I would be short. I have concentrated on those parts of the Bill with which I have a strong disagreement. I like the parts dealing with judicial appointments, although there are matters of detailed criticism not appropriate for a Second Reading debate.

10.31 p.m.

Lord Elton: My Lords, this debate has focused primarily on what happens to justice when the Law Lords arrive in the Supreme Court. That is important, but equally important, in my view, is what happens to Parliament when the Law Lords leave this House.

It is the function of Parliament to control the executive. As the power of the executive in the other place increases, so the function of this place becomes more important, regardless of how it is composed or changed in future.

The Bill will reduce the quality of the work in this House by cutting off a stream of experience, wisdom and authority that has flowed into it not only since 1876 but in one form or another for nearly 700 years. The noble and learned Lord, Lord McCluskey, asked us to remember what happened on the Police and Criminal Evidence Bill when the noble and learned Lord, Lord Scarman, persuaded your Lordships twice to defeat the Government. I shall not forget that because I was the Minister in charge of the Bill and I had to explain to Lord Whitelaw what had happened. It was a significant example of the improvement of legislation against the Government in power at the behest of a Law Lord.

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The Bill also removes half our remaining voice in the Cabinet. That will reduce our direct influence on government policy by more than half. These are aspects which need profound consideration which they have not been given in this debate by more than three speakers. I have heard all but three speeches in this debate and I think I have heard only three that majored on that feature. That is one reason for doubting whether a Committee of the Whole House would be able to give it adequate consideration.

Every government of every party wish to free themselves from restraint. Secretly or openly, every Minister wants his hands free to carry out his policies without hindrance. I say that having been a Minister. By removing both the Cabinet voice of the Lord Chancellor and the wisdom and prestige which the Law Lords bring with them, the Bill makes a future reduction in the legislative power of this House a little easier, not just for this Government but for any future government to accomplish. It is also a lamentable fact that every government of every party think they will be in power for ever.

The noble and learned Lord opposite and his friends are digging the foxholes for us, the Liberal Democrats or some party undreamt of to fend them off in the next stage of the political life of this country. Those would be sufficient grounds on their own for treating the Bill with suspicious and meticulous care. If that were all, a rigorous Committee stage on the Floor of this House might yet suffice, but that is not all. We must look not only at the context but at the provenance of the Bill before us. Touching as it does the very centre of our constitution, it is brought to us by a Government who have not in the view of many of us properly thought through the consequence of any one of their major initiatives all the way from devolution to the war with Iraq. It is brought to us by a Minister who at 5.30 on a Wednesday night let it be known that he would not be sitting on the Woolsack the following day and at 3 o'clock the following afternoon—properly clad no doubt thanks to Ede and Ravenscroft—he was sitting on the Woolsack.

It is not to be expected that a Bill with that provenance will have been properly thought through by those who bring it to us either. We must do it for them. That requires—


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