Previous Section Back to Table of Contents Lords Hansard Home Page

The Lord Bishop of Worcester: My Lords, is it not the case that it is 24 hours since the Minister was speaking about the importance of compliance with United Nations resolutions? Is it not also the case that while we absolutely recognise Israel's proper concern about security, that must be held within some kind of international consensus? For instance, there is the fact that the right of a nation to defend itself does not include the right to build defence installations on territory which it has not been agreed to be theirs?

Baroness Symons of Vernham Dean: My Lords, indeed. It is unlawful for the barrier to be built where it is. It is unlawful to have settlements in the occupied territories. These points have been reiterated again and again from this Dispatch Box. The difference between the resolutions which we were discussing yesterday and those as regards Israel's obligations are twofold. First, the resolutions that we discussed yesterday were mandatory under Chapter 7. Secondly, almost all the resolutions which refer to Israel's obligations also refer to Palestinian obligations. The fact is that neither side has fulfilled its obligations under UN resolutions.

Lord Steel of Aikwood: My Lords, as the Minister keeps saying that it is not the existence of the wall which at issue but its route, which is correct, and as Prime Minister Sharon continually ignores the point made by the international court and the Israeli Supreme Court, "what action", to quote my noble friend's Question, are the Government going to take within the EU, for example, to bring to an end the favourable trade treatment arrangement with Israel if it will not subscribe to international law?

Baroness Symons of Vernham Dean: My Lords, I have to tell the noble Lord that no serious attempt has been made to change in any way the trading relationship with Israel within the European Union. The noble Lord suggests by implication that there has been a push for this, and one that we have resisted. That simply has not been the case.

It is important that we continue to press Israel. Only two weeks ago I was in Israel and raised this issue. Over and over again I pressed the Israelis about the route of the barrier. I pressed them not only on the legal basis, which I agree is enormously important and not something to be dismissed, but also on the basis that this would jeopardise the two-state solution, the point made by the noble Baroness, Lady Northover. Moreover, on a day-to-day basis the barrier, built
13 Jul 2004 : Column 1137
where it is so that it separates east Jerusalem, separates not Israeli from Palestinian, but Palestinian from Palestinian. Its impact in humanitarian terms on the day-to-day lives of Palestinians is out of all proportion. That is an enormously important point to keep putting back to the Israelis who, of course, live under the rule of law just as we do.

Business of the House: Standing Order 47

Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with to allow the Finance Bill to be taken through all its remaining stages on Tuesday 20 July.—(Baroness Amos.)

On Question, Motion agreed to.

Scottish Parliament (Constituencies) Bill

Read a third time, and passed.

Constitutional Reform Bill [HL]

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.

Moved, That the House do now resolve itself into Committee (on Recommitment).—(Lord Falconer of Thoroton.)

Lord Richard: My Lords, before the House agrees to the Motion, perhaps I may say a few words about the work of the Select Committee to which the House committed this Bill on 8 March and which I had the honour of chairing. Noble Lords may recall that the Select Committee procedure is used very rarely in respect of government Bills. The last occasion on which a government Bill was so committed and reported to the House with amendments was as far back as 1917. In 1976 a Select Committee on the Hare Coursing Bill recommended that the Bill should not proceed and it was thereby killed. So it is not a procedure that has been in a great deal of use recently.

A Select Committee on a Bill can hear evidence on the policy of the Bill, report on it like any Select Committee on a policy issue and, if it wishes, amend the Bill. That is the real difference between this type of committee and a normal Select Committee. I have to say to noble Lords that we have indeed made 400 amendments to the Bill, and the legislation now before the House reflects those changes.

Between 24 March and 24 June when we were charged to complete our report, we met twice a week for two to three hours at a time. That placed a
13 Jul 2004 : Column 1138
considerable load on members of the committee and I should like to thank them for their assiduity and commitment. I thank also our Clerk, Mr Rhodri Walters, and our specialist adviser, Professor Andrew Le Sueur of the University of Birmingham, for their valuable assistance. I do not think that we could have produced a report which distilled so much evidence and so much argument into what I hope is a reasonably comprehensible form without the efforts of the Clerks and the special advisers.

I pay tribute also to the members of the committee. It was a committee divided on party lines, with five Labour members, five Conservatives, three Liberal Democrats and three Cross-Benchers. What I found especially heartening was the extent to which all members of the committee genuinely sought the maximum amount of agreement consonant with their individual views. It is not always the experience of someone in this building serving on a committee to find such a genuine search for consensus. In this case it seemed that there was, and I should like to make that public.

Finally, I thank the House for giving me the opportunity of chairing the committee. It was a stimulating and, as it turned out, very enjoyable task.

Our work was divided into three main phases. First, we met in public to take oral evidence from more than 32 witnesses. We received over 80 written submissions. We considered the views of 14 serving judges, seven retired judges, 14 academics, the lawyers' professional bodies in England and Wales, Scotland and Northern Ireland, as well as campaign groups, individual lawyers and law firms, and members of the public. The evidence is published in Volume 2 of the report.

This collation of the evidence and analysis of the facts and opinions about the reforms proposed in the Bill will, I hope, be of assistance to the House as it now resumes its scrutiny. I hope, too, that it provides a firm evidential basis for future argument, which no doubt will take place.

During our deliberation stage we met in private to consider the central issues that had emerged from the evidence. In total, we identified and examined 44 separate issues. On many of those questions we were able to reach conclusions on the basis of consensus. On some, our report shows that the committee supports the policy of the Bill. On other issues, we agreed to amend the Bill on the basis of amendments tabled by the noble and learned Lord the Lord Chancellor. Alternatively, we have indicated our support for amendments that the Government have undertaken to bring forward at a later stage.

It will be no surprise to noble Lords to learn that there were issues on which we did not reach agreement and consensus. Those included the two major questions of whether the office of Lord Chancellor should be abolished and whether a Supreme Court should be established. The committee was more or less evenly divided on those issues and we have explained the reasons for our disagreement in the report. Not only were we more or less evenly divided, but under the procedures of the committee the chairman had no
13 Jul 2004 : Column 1139
casting vote. However, I have to say that, even if he had had such a casting vote, he would not have exercised it because it would have defeated the whole object of the committee if we had voted along those lines. These are major constitutional changes and it is right that they are determined by Parliament as a whole.

In the final, formal stages of our work, we amended the Bill and agreed our report. The amendments included those to which I have already alluded—the ones brought forward by the noble and learned Lord the Lord Chancellor in response to our discussions. Here I should say in parenthesis how valuable it was to have the noble and learned Lord there as a member of the committee. He could hear the argument, he had the authority and, in circumstances in which he thought it proper, his flexibility and natural charm allowed him to agree. Not only that, we accepted amendments which we felt would give better effect to the concordat between the Lord Chancellor and the Lord Chief Justice. Finally, we made a large number of minor drafting and technical amendments at the request of the Lord Chancellor. All the amendments were made by agreement.

What of the points of disagreement? As we explain more fully in paragraphs 7 and 8 of the report, we took the view early on that little would be served by seeking to vote. Instead it was better to register the areas of our disagreement in the report itself. I think that some of my colleagues on the committee would also wish me to emphasise that, in those areas of disagreement, the fact that we have stood the clauses and schedules as part of the Bill does not imply that we all acquiesce to them, nor will it inhibit some of our number at least from registering such disagreements at later stages of the Bill.

I turn briefly to some of the chief points we made. Given that the House set up the committee, which then collected evidence and sat for three months, I think it is quite important to put the committee's report in the context of this debate, and perhaps just as important to put the context of this debate in the framework of the report.

In Chapter 2 we considered in detail the issues arising from the policy of the Bill to abolish the office of Lord Chancellor. Like most of our witnesses, we all agreed that change is inevitable. No one suggests turning the clock back to before 12 June last year when the Government announced their proposals for reform. None of us supports the idea that the Minister responsible for the courts should continue to sit as a judge. We all accept that the Lord Chief Justice of England and Wales should be recognised as head of the judiciary.

But what should be the characteristics of the Minister responsible for "judiciary-related matters"? About this we certainly disagreed. Some of us support the Government's policy that the Minister should be a mainstream Secretary of State, and so not necessarily a senior lawyer but possibly an MP rather than a Member of the House of Lords. Some of us believe that the Minister should continue to be called the Lord
13 Jul 2004 : Column 1140
Chancellor and be a senior lawyer and a Member of the House of Lords. It will now be a matter for the Committee of the Whole House to consider this important issue further.

It is also fair to say that there was, among those who wished to retain the office of Lord Chancellor, no clear agreement on what his precise functions would be. We hope that the analysis of the rival arguments set out in our report will provide a sound basis for this continuing debate.

One of the issues we also examined, which was a fairly controversial one, was the proposal in the Bill to put the constitutional conventions safeguarding the independence of the judiciary, and the rule of law, on a statutory footing. The Government brought forward an amendment to the Bill to put that into statutory form. We all agreed that the Bill should say something about these matters and the report set out various options as to how the Bill could achieve this, but we were unable to reach a consensus about the best way forward.

In the next chapter of our report we considered the proposal to create a Supreme Court for the United Kingdom. We received a wide range of views in evidence: some strongly supporting the idea that there should be a Supreme Court; some strongly supporting keeping the United Kingdom's highest court within the House of Lords. It will come as no surprise to anyone that there was no consensus within the committee on this issue.

Although we made no recommendations on the basic issue of whether there should be a Supreme Court, we did go on to make several important amendments to this part of the Bill. Indeed, this is a very good example of the way in which the committee approached its task. We disagreed on whether there should be a Supreme Court at all. We disagreed on whether commencement of this part of the Bill—the commencement of the Supreme Court assuming its responsibilities—should be delayed, pending a move to permanent premises.

Apart from those major issues, there was very considerable consensus. We agreed on the name of the court, the number of justices and that at least two should be Scottish. We agreed the qualifications for appointment to the Supreme Court. We agreed the composition of the selection commission. We agreed further that the selection commission should provide the name of only one candidate for appointment. We agreed the extent of consultation with senior justices and the devolved administrations.

We agreed that the role of the Prime Minister should solely be to act as a conduit between Ministers and the Queen. We agreed on the provisions for acting justices and the supplementary panel. We agreed that the designation of the Supreme Court as a superior court of record should remain. We agreed that there was no need to change provisions of the Bill in respect of the Scottish civil and criminal appeals or the leave arrangements for Scottish civil appeals. We agreed with the proposal to transfer devolution jurisdiction from the Privy Council to the Supreme Court. We
13 Jul 2004 : Column 1141
agreed that the court should make its own rules. We agreed—extremely importantly—that the court should be established according to the model of a non-ministerial department, so that it would have greater control over its own financial and administrative agreements. We agreed that it should set its own fees.

We agreed that there should be an amendment to the Bill which safeguards the separate jurisdiction to be examined by the Supreme Court in respect of Scottish, Northern Irish, English and Welsh laws.

The effect of this procedure is that, if the House decides that it wants a Supreme Court to be established, many of the subsidiary issues will already have been considered in the committee and, I hope that the House will come to the conclusion, have been fairly dealt with. Of course, it will be open to the House to arrive at different conclusions, but I hope that the House will at least take the broad view that, having set up the committee and the committee having deliberated in the way that it has, the House should perhaps concentrate on the major issues. The virtue of this report is in the details, and I hope that we managed to give those details a thorough examination.

I apologise for taking some time before we reach the main debate of the day, but it is perhaps important that I spell out how we approached what we did.

Chapter 4 of the report deals with the reform of judicial appointments in England and Wales. We considered whether the Bill is correct to propose a recommending rather than an appointing Judicial Appointments Commission. We agreed—some of us reluctantly—that a recommending commission was a satisfactory system. We agreed that the composition of the 15-person commission struck the right balance between judicial and lay involvement. We accepted amendments proposed by the Government to ensure that every panel of the commission should include at least one judicial and one lay member. Some members of the committee took the view that the arrangements for the appointment of High Court judges needed to be altered. Accordingly, we made no recommendation about that.

We were of one view in supporting the policy of the Bill that judicial appointments should be made on the basis of merit alone, and therefore accepted a government amendment to allow the Judicial Appointments Commission rather than the Minister to define "merit". We also agreed that diversity among the judiciary should be promoted, without diluting the merit principle, to ensure that more women and people from ethnic minorities are able to serve as judges. We therefore made an amendment to the Bill encouraging specific reference in the guidance issued to the commission to the importance of,

Chapter 5 of the report deals with two parliamentary matters of extreme importance, certainly to this House. Clause 94 of the Bill proposes
13 Jul 2004 : Column 1142
to remove the right of senior serving judges to participate in the legislative and scrutiny work of the House of Lords. It will be no surprise to anyone that on this—as on the creation of the Supreme Court—we did not reach a consensus. Whether or not judges are disqualified from Parliament, we considered a second question: should a parliamentary committee be established with general oversight of judicial matters? Our view was that such a committee was indeed desirable and could act as a valuable bridge between the legislature and the judiciary.

As to whether this procedure was a success, I confess that I have mixed views. If a Bill is properly prepared and launched after appropriate consultation, then a Select Committee of this sort should not be necessary; but where, as in this case, the proposed legislation involves major constitutional issues, I think that a gathering of the evidence and an examination of the arguments have proved useful. A great deal of ground has been covered and has been cleared, and the Bill is now in a much better state than it was at Second Reading.

Next Section Back to Table of Contents Lords Hansard Home Page