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Lord Carter: My Lords, that is a draft Bill. That is the whole point. You cannot give pre-legislative scrutiny to a substantive Bill.

Lord Henley: My Lords, if the Government are not prepared to offer us a draft Bill as has been recommended, the best procedure to follow is to find a means whereby we can give it a degree of pre-legislative scrutiny. That is why we shall support the amendment to the Motion in the name of the noble and learned Lord, Lord Lloyd of Berwick.

It has been put to us by a number of noble Lords that the amendment is a wrecking amendment. I think the phrase that the noble Lord, Lord Lester of Herne Hill, used was that it would scupper the Bill. I see absolutely no reason why this Bill could not still be enacted before the Prime Minister wishes to go to the country, which we are informed by the noble Lord, Lord Lester of Herne Hill—I do not know how he knows—will be some time next year in the spring or summer if this amendment is agreed to. If it is agreed to, this Bill will go to a Select Committee. That would amount to a considerable degree of the pre-legislative scrutiny for which we have asked. That being the case, I can say to the House and to the noble Lord, Lord Marsh, who made this point—again stressing that it depends on the Bill going to a Select Committee—that we on these Benches would not oppose the Government making use of the carry over procedures for this Bill. As I understand it, those mechanisms were brought in to allow the Government to carry over government Bills from one Session to another where there had been pre-legislative scrutiny, and Bills which failed to complete their course in one Session, as is generally the rule—that is, government Bills.

Indeed, I must again express some surprise at the attitude of the Liberal Benches, in particular the noble Lord, Lord Lester of Herne Hill, in opposing the Motion, when, only last Friday, he moved another important constitutional Bill from the Back Benches—the Executive Powers and Civil Service Bill—and had a degree of support from all parts of the House. The noble Lord proposed that exactly the same procedure should be followed—it should be referred to a Select Committee.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord. I am sure that he is aware that the

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discussion on Friday was about a Private Member's Bill, a draft Bill from a House of Commons committee and a draft Bill still to be published by the Government and the idea of having a joint Select Committee on those Bills? Does the noble Lord not understand that that is an entirely different situation from where we are now?

Lord Henley: My Lords, it is not different at all and, if the noble Lord wishes, I will quote the very words that he used on that occasion. There was a Bill in front of us—it might have been a Private Member's Bill, but it was of great constitutional importance. The noble Lord suggested that it should go to a Select Committee after Second Reading. Today we are considering a Bill that only saw the light of day relatively recently because, as the noble Lord knows, of a botched reshuffle last year. He knows that the Bill that he was talking about had been discussed on and off for some six or seven years. The noble Lord said on that occasion that it had waited a long time. He said with regard to that Bill, and the same would apply to this Bill, that,


    "the consultation would begin under proper joint parliamentary auspices; evidence could be given; the Government would be helped by listening to that evidence; they could produce their Bill in July, September or October".—[Official Report, 5/3/04; col. 934.]

If it is good enough for that Bill, I cannot see why it is not good enough for this Bill, which covers equally important constitutional affairs.

Earl Russell: My Lords, did my noble kinsman hear the quotation from the Lord Chief Justice, that was offered by my noble friend Lord Goodhart, to the effect that the urgency arises from the need for an adequate and safe system of judicial appointments? That will be upon us a little sooner than the next election.

Lord Henley: My Lords, we are not seeking a major delay—that is the point I am trying to make in relation to the Motion. It has been suggested that the Bill could go to a Select Committee that could report in three months. The Bill could then start its proper process through this House and we have given a commitment from these Benches that we would assist, if there was that proper scrutiny, by agreeing, or not opposing, a carry-over, if necessary.

I shall now turn to some of the remarks made by the Leader of another place, Peter Hain. We believe it is unacceptable to ask that this House should not scrutinise a Bill that is so far reaching. We hope that the threat that the right honourable gentleman seemed to make will be ignored and overborne by this House. I do not believe that the House should be cowed by such a threat. The House is entitled to ask what it is about the Bill that the Government cannot brook any change or any questioning before forcing it through.

Finally, I repeat that this Bill is not a manifesto commitment. This Bill was brought forward to deal with a botched ministerial reshuffle. Comments were made by the Commons Select Committee on Constitutional Affairs, which has a clear Government majority, that this

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Bill deserved proper pre-legislative scrutiny. This Bill makes major changes to our constitution—changes which should belong to all parties and not just one. As even the noble and learned Lord, the Lord Chancellor, admitted when he proposed some six different amendments in his opening speech—which I have not often come across, this Bill needs proper detailed scrutiny of a sort that can only be provided by detailed examination resulting from the acceptance of the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick. I recommend that all noble Lords on these Benches support that amendment.

11.19 p.m.

Lord Falconer of Thoroton: My Lords, everybody in this House agrees on the importance of this Bill. It affects great constitutional principles; it is entitled to the best of this House in everybody's view. The points that we will be debating and have debated today, and will debate as the Bill goes through this House, will have an effect for a long time to come. It is in those circumstances, I believe, very important to address the Bill on its merits.

The Bill needs to be scrutinised by the House with all the intelligence and experience that it can command. The Bill needs to be addressed, not on the basis of political points made of what happened 12 months ago, but looking forward for generations to come as to what effect the Bill may have.

This debate has from time to time identified what the major principles engaged are. I will deal with each of the three main points of principle identified in relation to the Bill.

First, the Supreme Court: there are those led by the senior Law Lord, the noble and learned Lord, Lord Bingham of Cornhill, who say that our constitutional arrangements should reflect the reality. The noble and learned Lord said, and we support him, that people who are appointed to the final court of appeal should be appointed as judges not as legislators. Some in this House dismissed that as constitutional purism. They say that they have their feet on the ground; they understand the practicalities; they dismiss that argument.

We do not dismiss that argument; we think that argument is right. We accept that giving effect to that argument will cost some money; we have identified how much money that will cost. We believe it will bring benefit to litigants because there will be an identifiable Supreme Court in this country, visible to all, visitable by all, which will become a beacon of legal excellence. These are major points of principle.

The noble and learned Lord, Lord Lloyd of Berwick, suggested that a Select Committee should be set up consisting of between 12 and 16 Members of this House. He cited two examples of what that Select Committee might consider: first, the cost of setting up the Supreme Court, and secondly, what the benefits might be in relation to it. Those were the only two examples he gave of what the Select Committee might consider. I suggest, respectfully, to your Lordships' House that it is far better that the whole House in the

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course of a normal Committee stage addresses those particular issues. I suggest with respect to this House that the House would be far better off in addressing those issues in a direct way without there being any suspicion whatever that some sort of ploy or stratagem was being used in order to kick the Bill into the long grass.

In relation to the point about the Supreme Court, it was decided to start the Bill in this House because this House had so much to offer in relation to the Bill. We would have the benefit of the wisdom of the whole of the House in relation to an issue like the Supreme Court. That is the first point of principle. That is the first basis on which the noble and learned Lord, Lord Lloyd of Berwick, suggested that we should submit it to a Select Committee.

The second point of principle raised by the Bill is the Judicial Appointments Commission. The noble and learned Lord, Lord Lloyd of Berwick, said that does not need pre-legislative scrutiny, because it has already been considered by the judges. Nobody suggests that that part of the Bill would benefit from a Select Committee or pre-legislative scrutiny. So the second point of principle suggests that it should stay on the Floor of the House.

The third issue is the abolition of the role of the Lord Chancellor. As the noble and learned Lord, Lord Lloyd of Berwick, knows, the concordat reached between myself on behalf of the Government and the noble and learned Lord, Lord Woolf, on behalf of the judiciary, involved not just Part 3 of the Bill; it involved Part 1 of the Bill as well. Part 1 includes vital protections to ensure that the independence of the judiciary is embedded. What is more, as the noble and learned Lord, Lord Woolf, made clear on 26 January when we both reported to this House about the concordat we had reached, it was a package. All of it was inextricably linked. You could not separate one part from another. Therefore, Parts 1 and 3 go together. Parts 4 and 5 are provisions ancillary to other parts.

So what do we have? We have a proposal that the Bill should be referred to a Select Committee to deal with Part 2. The two particular points it should deal with are cost and the benefit of setting up a Supreme Court—points I would have thought, fairly, this House would be better off dealing with on the Floor of the House.

But it goes much further than that. The noble and learned Lord, Lord Lloyd of Berwick, says that it can all be dealt with by the Summer Recess. As he knows, there would need to be a second Motion after this one to set out the membership, representation and terms of reference of the Select Committee. I do not believe that the terms of reference would be at all difficult. They would be to report on the whole Bill, but the membership, representation and reference would take some time. A reasonable estimate would be at least a month to agree names and members.

There would then have to be four to six weeks for evidence to come in. There would then need to be consideration by the Select Committee. The idea that

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that could be done before 22 July seems, with respect to the noble and learned Lord, Lord Lloyd of Berwick, fanciful.

Then as the noble and learned Lord, Lord Mayhew of Twysden, identified in his researches during the course of the afternoon, in the light of his misfortune of having heard me on the "Today" programme this morning, the last time that this was done, 30 years ago, the Select Committee proposed that the Bill be, in effect, rejected by the House.

So what is being proposed in relation to the amendment is that because of the two points on Part 2, the matter should be referred to a Select Committee of between 12 and 16 Members of this House to last for an indefinite period which could result in the Bill never coming out of the Select Committee. That does not seem a sensible way to proceed in relation to a Bill of this importance.

In my respectful submission, the right thing for this House to do is to move on from the process and start addressing the important issues that the Bill raises. I believe that this Bill represents a real opportunity for improvement in our constitutional arrangements. It allows a Supreme Court to stand clear, with judges in it—not people who are also legislators. It allows a proper and sensible method of judicial appointment; it allows a Minister to get on with the difficult but vital task of running a 3 billion budget; and it allows the Lord Chief Justice of England and Wales to become acknowledged as the head of the judiciary.

I strongly urge the House to reject the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick. I strongly urge the House not to be drawn into what is political mischief-making by the party opposite, which sees an opportunity, as the noble Lord, Lord Goodhart, said, of rejecting the advice of the Lord Chief Justice. I suggest that we move as quickly as reasonably possible to consider these provisions and make them law. I commend the Bill to the House.

On Question, Bill read a second time.


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