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Earl Russell: My Lords, I think no one doubts the usefulness in their respective spheres of both the Lord Chancellor or Ede and Ravenscroft, but can the noble Lord explain why he believes that the existence of a Lord Chancellor is compatible with the Human Rights Act?

Lord Elton: My Lords, that is precisely the sort of point that should be argued by those in the Select Committee. We need such a body to do work which touches the future of this country and its welfare at its most intimate and most important. We need the steady application of such a body and not the intermittent, cursory and confrontational proceedings of a Committee of the Whole House. By all means reserve Part 3 for the consideration of the whole House if that is your

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Lordships wish, but I have given the reasons why in my view this Bill should be subjected to a procedure actually asked for by a Select Committee of the other place.

It astonishes me that Mr Peter Hain should take it upon himself to say that this is flying in the face of democracy when the democratically elected House itself has asked for it to be done. The noble and learned Lord, Lord Lloyd of Berwick, does no more than ask your Lordships to agree with the House of Commons in dealing with this Bill in this way. I hope that the noble Earl and many other noble Lords will join me in the Lobby.

10.37 p.m.

Lord Brightman: My Lords, I intend to speak on one topic only; namely, the proposal to remove the appellate jurisdiction of this House and to set up a Supreme Court elsewhere. This proposal seems to me, as at present advised, to be totally unnecessary.

I start by trying to get rid of one misunderstanding. The misunderstanding is based on the proposition, which for present purposes only I am willing to accept, that if Law Lords in office take part in the legislative work of this House, they may be compromised if at some future time they were called upon to deal judicially with the same subject matter. Therefore, it is said that it is necessary to take away the appellate jurisdiction of this House and house it elsewhere in order to prevent such a situation arising. That argument is a fallacy.

There is already a convention that Law Lords do not speak or vote on matters where there is a strong party political ingredient. All that is needed, therefore, is a convention that Law Lords in office do not speak or vote at all. That is a total answer to the problem which I have posed.

But, it may be asked, what about a Law Lord taking his seat in the House and being present at a debate? Will that compromise a Law Lord? Of course not, no more than listening to "Today in Parliament" on the radio. Surely, it will not matter at all if he takes his seat. If there is a convention that Law Lords in office do not speak or vote on Bills, how can it possibly be said that they at present enjoy the dual roles of judge and legislator?

It may be asked, how is such a convention to be established? That is no problem, because this House regulates its own proceedings. Before 1844, lay Peers as well as Law Lords were at liberty, if they wished, to vote, and sometimes did vote, on judicial cases. On 8 June 1844, the then Lord Privy Seal advised this House that this practice should cease. The House accepted that, and the convention was established. The convention was observed without any controversy for almost 40 years, when Lord Denman decided that he would try to cast his vote on a judicial case—he was not a Law Lord. That caused no problem, because his vote was simply disregarded. The convention survived. I hope that we shall hear no more of the fallacious argument that the House of Lords must lose its appellate jurisdiction simply in order to avoid the

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problem of a Law Lord acting both as judge and legislator. That position can be avoided so easily and at no cost.

I must consider whether there are any other reasons for removing the appellate jurisdiction from this House and setting up a Supreme Court elsewhere. I ask three questions, which in my opinion are fundamental. The first question is, in what way will appellants or respondents benefit from the change? Will appeals be heard more speedily or more cheaply? They certainly will not be heard more cheaply. Are there any other benefits to litigants? I can think of none.

My second question is, in what way will Parliament or the general public benefit from the change? I can see none.

This leads inevitably to my third question. If the danger of compromising Law Lords, of confusing the judicial role with the legislative role can be avoided so easily; and if there is no benefit to litigants, no benefit to Parliament and no benefit to the public in general, what precisely is the point of sending the Law Lords packing?

I have intentionally not posed a fourth question—whether the establishing of a Supreme Court elsewhere would be beneficial to Law Lords. The point was, I think, raised earlier. I have little doubt that it might perhaps improve the working conditions of Law Lords, but I can assure your Lordships that when I came to this House 22 years ago, I found the working conditions perfectly adequate. The only small deprivation was that I no longer had my own personal loo, which I had as a High Court judge. But I feel that that particular deprivation is not worth the expenditure of millions of pounds setting up a Supreme Court elsewhere.

The move to send the Law Lords away from your Lordships' House is, I believe, built on a total misunderstanding of how the system works. People do not realise how easily judging can be wholly separated from law-making without incurring the expense of setting up a Supreme Court somewhere else.

We have it in our own hands to avoid a useless expenditure of millions of pounds. Why can we not deal with it in the way which I have suggested?

I conclude by expressing the hope that someone will answer my three questions—what benefits will litigants, Parliament or the general public derive from setting up a Supreme Court elsewhere? If there are no benefits, why do it?

10.47 p.m.

Lord Moran: My Lords, as I am at No. 42 on the speakers' list, when we are nearing the wind-up speeches and the vote, your Lordships will be glad to know that I have scrapped much of my speech, notably those parts concerned with excessive haste—on which I agree with the noble and learned Lord, Lord Mackay of Clashfern; with the Government's inability to leave anything alone—even, now, the United Nations; and their strange priorities, involving us in small wars and making extraordinary changes to the constitution

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while failing to do anything effective about crucial domestic problems or our steady drift into an integrated Europe.

I have no problem with Part 3 of the Bill, and the suggestion by my noble friend Lord Bledisloe and others that it might be taken out and introduced on its own seems very sensible. Like the noble Lord, Lord Waddington, I deplore Part 1 of the proposed summary abolition of the historic office of Lord Chancellor. His duties could easily be amended or, as the noble Lord, Lord Alexander, suggested, reshaped, to suit today's needs.

On Part 2, since the Supreme Court will apparently have much the same role as that played by the Law Lords in our House, why move them at prodigious expense? Translation from Westminster to, say, a huge new building in Ealing or, as my noble and learned friend Lord Ackner, fears, a scruffy commercial floor, has nothing to commend it.

The removal of the Law Lords from this House seems to me a thoroughly bad idea. On this, I agree very much with my noble friend Lord Neill of Bladen. The present arrangements are, I think, probably good for the judges, who gain a close perspective of the matters that concern us. They are certainly good for us, as they add to our number a body of men of the highest intellectual calibre. This often makes our work on legislation more effective than it would otherwise be.

Of course, judges—active or retired—do not always do what one wishes. When I tried in January to secure a Select Committee to consider our relationship with Europe, my noble and learned friend and one or two other legal luminaries voted against my amendment, presumably judging that euthanasia was more important than Europe. Taking that view, they were fully entitled to vote as they did, although it seemed to me surprising. But I have no doubt that distinguished members of the legal profession in this House are valuable to us and it would be a mistake to expel the Law Lords and shut them up in a small bubble where they could speak only to each other.

One never knows when the help of notable men of the law may not be useful in our House. Some years ago, when I was grappling with a salmon Bill, I encountered legal problems that I did not know how to resolve. One day, I went into the Library and there saw Lord Denning writing at a desk. I did not know him personally but I knew his reputation as combining deep knowledge of the law with wholly exceptional common sense and great courtesy. Summoning up my courage, I approached him and asked him if he could give us a little help. He immediately agreed and thereafter gave us far more help than I had ever expected, drafting amendments and speaking to them in the House. What a wonderful man!

I have no hesitation in fully supporting my noble and learned friend's amendment to the Motion, which I hope will secure the approval of the House.

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10.50 p.m.

The Earl of Erroll: My Lords, I want to mention four fundamental principles. First, I refer to the independence of any Judicial Appointments Commission. The problem with any such body is that it is set up by statute but no Parliament can bind its successor. In addition, as we have discovered in debates on the composition of this Chamber, even an unambiguous Privy Council oath has no standing if it is felt that it should be reinterpreted to suit circumstances. Therefore, any statute can be changed and any safeguard is only temporary, so any assurances that we have today about the independent nature of an appointments commission can be changed by another place tomorrow.

Secondly, I refer to control by the executive. There used to be three pillars: the executive, with the Monarch as its titular head and the Prime Minister in actual control; the legislature, with the two Houses of Parliament, and Back Benchers wielding considerable power; and the judiciary, headed by the Lord Chancellor, responsible through the judges to Parliament. The Prime Minister tells the Monarch what to do. The Prime Minister controls the Commons now, and that control could easily be extended to the Lords, too, as any statute regarding this House can be changed, as I have just pointed out. It is now proposed that a junior Cabinet Minister, head of a department in the executive and appointed by the Prime Minister, should exercise co-decision processes with the chief judge and have a power of veto over the appointment of judges. Only in Orwellian doublespeak could that be called greater independence for the judiciary. The executive controls the purse strings. I seem to remember an old saying, "He who pays the piper calls the tune". We will have swapped a senior Minister for a junior one.

My third point relates to the office of Lord Chancellor. I notice that the order of precedence in this country goes: Monarch and Royal Family, Archbishop of Canterbury, Lord Chancellor, Archbishop of York, Prime Minister. If we removed the Lord Chancellor—and we notice that the Crown is being steadily removed from government branding, probably in preparation for a downgrading of the monarchy, and we know that certain elements would dearly like to get rid of the Royal Family—and then we also remember that the Prime Minister appoints the two archbishops, using much the same mechanism as he intends to use to appoint the judges, we have a Prime Minister who is truly an elected dictator.

The fourth point relates to the right of the Government to get their business through. I always understood that the Salisbury convention applied only to policies declared in the manifesto. I do not see why there is any duty on this House to put through anything that might subsequently be dreamt up by a government in power. The Government should go back to the country if they want to exercise that prerogative.

In conclusion, if one wants a true separation of powers, the only logical answer is to have a totally separate Supreme Court with no executive Department for Constitutional Affairs, which is likely to accrue

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undue indirect influence. That Supreme Court could be the only body with powers to alter constitutional Bills, so the Bill that created it could not itself be amended by Parliament alone. That could also help to safeguard any constitutional changes that might be enacted by statute such as may affect this Chamber in future. On the other hand, with the ECHR in its early days, bringing in new interpretations of the balance between the rights of the individual to be protected from an overbearing government and the rights of society to protect itself from disruptive individuals, I am not sure that this is the moment to set up such an absolutely separate court.

With so many questions hanging in the air, I believe that the old saying, "Act in haste, repent at leisure", is very true. I therefore urge all noble Lords to back the amendment of my noble and learned friend Lord Lloyd of Berwick.

10.55 p.m.

Lord Goodhart: My Lords, we now come to the wind-up speeches in what has been a long and, frankly, repetitive debate, lit only by a few flashes of the unexpected, such as the disclosure by the noble Lord, Lord Stoddart, that it was all a European plot.

I shall concentrate on the amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, because that is the issue that your Lordships have to decide today. I have no hesitation whatever in saying that that amendment should be firmly rejected. The reasons why that amendment should be rejected and why the Bill should proceed through the usual course were stated unanswerably by the noble and learned Lord, Lord Woolf. Since he made his speech, I have obtained a copy of his text and I would like to refer your Lordships to what I believe to be the central paragraph in it. It reads:


    "While it is extremely important for the Bill to be properly scrutinised during its passage through this House, I would hope that this can occur in the conventional way because the present transitional position is wholly unsatisfactory for the administration of justice. The Lord Chancellor is already a Secretary of State. It would be difficult, if not impossible, to return to the position that existed before 12 June. A new method of appointing judges is also urgently necessary. The judiciary do not want the present situation to continue longer than is absolutely necessary. They want to see the protection for the justice system that the package provides enshrined in statute at the earliest practical date. They would be concerned if the House took a course which delayed the concordat being implemented".

The effect of the amendment of the noble and learned Lord, Lord Lloyd, would be to defer the enactment of the Bill for much more than the three months that the noble and learned Lord, Lord Woolf, said might possibly be acceptable. More than that, it would very probably mean that we would not see it until the next Parliament and we could very well lose it altogether.

It has been suggested that Part 3, which appears to be relatively uncontroversial, could be taken out of the Bill and dealt with separately. You cannot just take bits of the Bill out and say that we shall pass that provision but not others. In particular here, Parts 1 and 3 are intimately connected. The transitional position, as the noble and learned Lord, Lord Woolf, said, is deeply unsatisfactory.

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Part 3 has been closely scrutinised by the judiciary. That scrutiny has produced a concordat that has been widely welcomed on all sides. We on these Benches might, by choice, have produced something a bit different. We recognise that the concordat has been criticised by some, for example, by Sir Colin Campbell on behalf of the Commission for Judicial Appointments, who called for a lay majority on the new JAC. Other things being equal, we might well have supported Sir Colin but we believe that the concordat is of such critical importance that we are not prepared to start unravelling it. We hope that, in the light of the powerful and convincing speech by the noble and learned Lord, Lord Woolf, the noble and learned Lord, Lord Lloyd, will not divide this House on his amendment. If he does press his amendment, then I hope that your Lordships will not support it. If your Lordships do support it, we shall potentially be blocking the creation of an essential Judicial Appointments Commission.

The Conservatives do not oppose the Judicial Appointments Commission in principle. If they vote in favour of the amendment, they will be acting against the advice of the judiciary and of the noble and learned Lord the Lord Chief Justice that the Judicial Appointments Commission is urgently necessary.

Of course these reforms have been introduced clumsily. Everybody has said that and we have said it as loudly as anybody. But that is not a reason for blocking a constitutional change that we now know has the support of the noble and learned Lord the Lord Chief Justice and the judiciary.

We have Part 1 of the Bill on the abolition of the office of Lord Chancellor. We have Part 2 on the Supreme Court. Let me take Part 2 first. The noble and learned Lord, Lord Lloyd, gave two examples of what the Select Committee might do in that respect. He said first, that the committee could look at the costs and secondly that the committee could take evidence on whether the new Supreme Court would be a benefit.

I agree that it would be a good idea to see the costings, but we do not need a Select Committee to do that. A much better way, which I believe we would support, would be to put into the Bill a sunrise clause that would prevent the Supreme Court from starting up until satisfactory arrangements for the venue had been drawn up, had perhaps been approved by Parliament and had been implemented. I agree that it would be impossible for the Supreme Court to function in the Palace of Westminster and should not function in inadequate temporary premises elsewhere.

As for whether there is benefit to the legal system from having the Law Lords in your Lordships' House, that matter seems to be almost entirely subjective—half the Law Lords think there is, the other half think there is not. A Select Committee could ask all of them for their views, but I doubt whether the committee would be very much wiser at the end of it.

We prefer the views of the noble and learned Lords, Lord Bingham and Lord Steyn, and will support Part 2. However, we believe that that matter should be

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debated and voted on in your Lordships' House on a future day. Other issues, such as those rightly raised by the noble and learned Lord, Lord Mackay of Clashfern, can be covered and should be covered in a Committee of the whole House. We would certainly wish to table amendments in Committee ourselves on issues such as the appointment of Justices of the Supreme Court and the system proposed for funding the Supreme Court.

I agree profoundly with the noble Lord, Lord Brennan—who I thought made an outstanding speech—that your Lordships should debate and decide these issues. It would be the whole House that does that, through a Committee of the Whole House and not just a small Select Committee which will reach conclusions that will no doubt then have to be considered again in a Committee of the Whole House.

I turn to the question of the role of the Lord Chancellor. The Lord Chancellor has traditionally acted as the presiding member of the Appellate Committee of your Lordships' House and head of the judiciary. He also appoints the judiciary in England and Wales below the Court of Appeal level and is the principal adviser to the Prime Minister on higher appointments. The Lord Chancellor runs what is now a major government department, spending something in the order of 3 billion a year. The Lord Chancellor has unofficially acted as a guardian of the rule of law and the integrity of the legal and judicial system in Cabinet; although as my noble friend Lord Maclennan of Rogart said, it is not clear that in practice he has always done that.

The role of the Lord Chancellor is seen by many speakers in this debate as an essential bulwark of the rule of law and the independence of the judiciary. That is an illusion. The Lord Chancellor is, and has always been, a potentially fragile bulwark. That illusion has been encouraged by the integrity and forcefulness of three of the last four Lord Chancellors: the noble and learned Lords, Lord Irvine of Lairg and Lord Mackay of Clashfern, and Lord Hailsham of St Marylebone. The fourth is, of course, the forgotten Lord Chancellor, Lord Havers, who served a brief and unhappy period in the office which was too short to say whether he, too, would have matched up to the others.

The value of the office of Lord Chancellor is based on two conditions which will not always, and are not now, satisfied. The first of those is that the Lord Chancellor must be prepared to stand up and defend the rule of law and the independence of the judiciary under pressure. The second is that, when it comes to the crunch, the Prime Minister must be prepared to back his Lord Chancellor. Within the past year both those conditions have been broken. I believe that the second condition, that the Prime Minister must stand up for the Lord Chancellor, was broken last June, when it seems clear the Prime Minister backed David Blunkett against the noble and learned Lord, Lord Irvine of Lairg. The first condition, that the Lord Chancellor must stand up for the rule of law, was broken when the noble and learned Lord, Lord Falconer of Thoroton, failed to object to the notorious Clause 11—or, as it now is, Clause 14—of the asylum and immigration Bill which ousts judicial review.

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The Conservatives say, "The answer to this is that we must get back to the old-style Lord Chancellor". But how can we do that? It is plain, and the noble and learned Lord, Lord Woolf, agreed, that we cannot have the same person exercising both the departmental functions of the Department for Constitutional Affairs and the other functions that are attached to the office of Lord Chancellor. It has been plain at least since the Human Rights Act 1998 that we cannot have a Cabinet Minister now sitting as a judge. What that will mean is a kind of ghostly Lord Chancellor with no functions except to sit in on Cabinet meetings and occasionally say, "I am sorry, you must not do that". Such a figure would have no stature and no influence.

Furthermore, Lord Chancellors are of course appointed by the Prime Minister and can be removed by the Prime Minister. Let me suggest to your Lordships a little scenario. In a few months' time Gordon Brown becomes head of the IMF. Shortly after that, Tony Blair has a serious heart attack and David Blunkett becomes Prime Minister—not an impossible scenario. Who would Mr Blunkett appoint as Lord Chancellor? Not, I believe, someone with real independence of mind and commitment to the rule of law; not someone like the noble Lord, Lord Brennan. Is that what we want? But it is what we are risking.

The idea that we can go back to the system as it was before 12 June is frankly wishful thinking. As the noble and learned Lord, Lord Woolf, said, it would be difficult if not impossible to do so. I have heard far too often the old remark, "If it ain't broke, don't fix it". This time the system is not just broken but irredeemably shattered.

There are of course better ways of ensuring that the Government respect the independence of the judiciary and the rule of law. First—a view which we on these Benches strongly hold—the Secretary of State for Constitutional Affairs should be converted into a proper Minister of Justice who would have responsibility for the criminal as well as the civil law. That would strengthen the position of the Secretary of State and it would remove the conflict which exists in the Home Office between the police and the courts system.

Secondly, there should be a statutory duty on the Minister not only to uphold the independence of the judiciary but to uphold the rule of law, as indeed the noble and learned Lord, Lord Ackner, pointed out.

Thirdly, there should be a joint committee of both Houses of Parliament for liaison between the judiciary and Parliament. At present judges are represented in your Lordships' House as they have no access to another place. There are no formal procedures for reporting their collective views to your Lordships' House.

These are all important issues, but they can be dealt with in the course of debate at Committee and Report stages which, I am quite sure, will be long if they go ahead. I see few if any advantages in a reference to a Select Committee. I see one critical disadvantage, which is the delay and perhaps the blockage of the creation of the Judicial Appointments Commission. I regard the amendment of the noble and learned Lord, Lord Lloyd, as political mischief-making. I ask your Lordships with as much force as I can muster to reject it.

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11.8 p.m.

Lord Henley: My Lords, mindful of the strictures of the Government Chief Whip, I too will endeavour to keep my remarks short. I am also mindful that I spoke in the previous debate. I shall try not to repeat some of the comments I made on that occasion.

I should remind the House—and this is by way of congratulating the Government Chief Whip—that when I spoke on 12 February, and the debate was wound up by the noble and learned Lord the Lord Chancellor, those who were present on that occasion will remember that he was a somewhat more lonely figure than he has been this afternoon. There was relatively little support from his own Benches on that occasion. We have to offer some praise to the Government Chief Whip for bringing in so many of what we could call "the trusties" to do a good job. My noble friends were here on that occasion.

On this occasion, bearing in mind the hour we have reached and the amount of time we have devoted to the Bill, I do not intend to cover all the points which have been put before the House.

Like the noble Lord, Lord Goodhart, I want to concentrate on the amendment that will be before us when we have given the Bill a Second Reading. I should stress that we shall, in the usual way, give the Bill a Second Reading; it is a question of what we do with it after that. So I do not intend to deal in any detail with the whole question of the legality of the post of the Lord Chancellor after the passing of the Human Rights Act, the whole question of separation of powers raised by a number of noble and learned Lords, the question of the independence or integrity of the judiciary, the costs of the new court or, as I think the noble and learned Lord, Lord Brightman, put it, who exactly will benefit from the changes that will be proposed. Nor do I intend to follow, much as I would like to, the noble Lord, Lord Stoddart, on the whole question of the European constitution. I suspect that that is somewhat beyond the scope of the Bill.

As I said, I want to discuss the amendment before us and why we on this side feel it is important that this Bill receives appropriate scrutiny, and scrutiny that is greater than the normal scrutiny that a Bill has when it comes before this House. The noble Lord, Lord Rees-Mogg, reminded us of what the noble and learned Lord the Lord Chancellor said in his opening remarks when he talked about this being—I hope that I have his words right—a vitally important piece of constitutional change that we cannot afford to get wrong. I think that everyone in this House would agree with those sentiments, or rather I would hope that everyone in this House would agree with those sentiments. But sometimes, particularly listening to the noble Lords, Lord Goodhart and Lord Lester of Herne Hill, one suspects that they are so desperate to encourage the Government to push these measures through, they seem to be rather half-hearted in their desire to comply with the second half of the remarks of the noble and learned Lord the Lord Chancellor.

For those reasons we believe—I remind the Leader of another place of this—as does the House of Commons Constitutional Affairs Committee under

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the chairmanship of a Liberal MP, Mr Beith, and with a Labour majority, that these changes require proper scrutiny; scrutiny that is greater than the scrutiny that would normally be offered by the usual procedures. That is, in brief, why we support sending this Bill to a Select Committee to give it some degree—I have to say that it is only some degree—of the pre-legislative scrutiny that we have offered to so many other Bills. The noble Lord, Lord Carter, one of those "trusties" who spoke in this debate, is, I believe, involved as chairman of, I believe, the committee looking at the disability reform Bill.


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