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Lord Kingsland moved Amendment No. 88CQA:
"( ) A person who is a judge of the Supreme Court or a member of the supplementary panel under section 33 of the Constitutional Reform Act 2004 shall be a member of the House of Lords.
( ) A person who by reason of section 33(4) or 33(5) of this Act is no longer a judge of the Supreme Court or a member of the supplementary panel shall continue to be a member of the House of Lords."
The noble Lord said: I can move the amendment briefly. So far, the establishment of a Supreme Court has attracted great attention with regard to its new building. It has attracted less attention with respect to the designation of those intended to inhabit it. I thought it important, therefore, that the Committee should have an opportunity to consider the matter.
The basis on which the Government have proceeded with the Bill is, as we know, that the absence of a separate home for the final court of appeal has created confusion in the public mind. Accordingly, the Government have decided—with great reluctance, of course—that, in future, the final court of appeal should be renamed "the Supreme Court" and sit in a separate building.
The case as to whether or not those who are members of the Supreme Court should remain Members of the House of Lords has not been made out in any detail. Why should future members of the Supreme Court cease to become Members of this House? Wherein lies the confusion for the general public?
There can be no confusion about names. When one appears in front of, for example, a puisne judge in the High Court, one addresses him or her as "My Lord" or "My Lady". From the point of view of the general public, that judge might easily be a Member of the House of Lords. Thus, if there would be confusion if the members of the Supreme Court remained Members of the House of Lords, such confusion also applies to the Court of Appeal and the High Court. There must be some other reason why, in the Government's mind, it would be inappropriate for future members of the Supreme Court to become Members of the House of Lords. What could it be?
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The issue of voting has already, in effect, been dealt with by convention. Lords of Appeal in Ordinary no longer vote in your Lordships' House, except with a few unintended exceptions.
Lord Goodhart: Is the noble Lord aware that two serving Law Lords voted in the principal Division on the Hunting Bill?
Lord Kingsland: I regard that as an entirely distinct matter. The vote on the Hunting Bill was a free vote and therefore did not engage the Law Lords' responsibilities politically; it simply engaged them in expressing their own view of a matter on which all noble Lords had a free vote. I am surprised that the noble Lord, Lord Goodhart, should have raised that matter in the context in which I was speaking.
I am sure that a new convention on speaking could be developed to guarantee that members of the Supreme Court who were also Members of this House would not speak on matters that could, in any way, embarrass them in their judicial activities. If such a convention could be developed, the plus side for having members of the Supreme Court remaining Members of your Lordships' House would, in my submission, be substantial.
The noble Lord, Lord Elton, has, in particular, in a number of debates in your Lordships' House, drawn attention to the important role that noble and learned Lords have played in the general work of your Lordships' House. Sub-Committee E of the European Union Committee has often been mentioned, but that is by no means the only example. It is for the Government to make out the case for members of the Supreme Court no longer being Members of your Lordships' House. I beg to move.
Lord Renton: These amendments, moved by my noble friend Lord Kingsland, are, in my opinion, the most important amendments moved to this Bill. I speak as one who has been a Queen's Counsel for 50 years and a Member of your Lordships' House for 25 years. There is no doubt that all Law Lords deserve to be made Peers and to remain Peers. But some of them, especially those who have retired, play a vital part in the work of this House, especially when we are legislating on constitutional matters and, indeed, on other legal matters as well.
The Government and Parliament would do a great disservice to our constitution if the Law Lords were expelled, as is proposed by the Government, or their successors—that is, the Supreme Court judges—were prevented from helping to improve legislation. Therefore, I hope that the Lord Chancellor, for whom I have some respect, will take very seriously what my noble friend Lord Kingsland has put before the Committee and that the Government will change their mind and allow either Law Lords or future Supreme Court judges to remain Peers.
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Viscount Bledisloe: Amendments Nos. 88CR to 88CU, standing in my name, are not grouped with the amendments tabled by the noble Lord, Lord Kingsland. But the subject matters so overlap that, unless any Members of the Committee or anyone on the Front Bench object, it would be more convenient if I speak to them now. I certainly see the Whip encouraging me on the grounds that that means that we will get on quicker.
Some of those amendments were drafted in the expectation that we would have a vote on the Supreme Court, that the idea of the Supreme Court would have gone and that we would be back to our good, old and sensible Law Lords. Amendments Nos. 88CR and 88CT probably are not wholly applicable, but the principle is, and the other two are.
Clause 101(2) would disqualify any Member of this House who holds any judicial office from sitting or voting in this House or in any committee of this House. That is extreme and all wrong. Even if the Supreme Court is to go forward, there will still be a period until it takes effect, so there will still be some Law Lords who will be both Members of this House and members of that court. And, in future, it may well be that the Lord Chief Justice and the Master of the Rolls could also be Members of this House.
What I propose is this. Except that they cannot vote, thus encapsulating the convention in the Act—and excluding even the exception to it made by the noble Lord, Lord Kingsland—do not prevent them taking part in the proceedings of your Lordships' House either by speaking, and so giving us their tremendously important advice on constitutional matters, complicated points of law and so forth, or taking part in committees of your Lordships' House. As someone who has served twice on Sub-Committee E under three wonderful chairmen, all Lords of Appeal, do not deprive us of services of that sort. What possible objection can there be to the Law Lords sitting and speaking, provided that they are debarred from voting?
That is what I suggest should be done. I have chosen to speak to my amendments because they tie in closely with the topic raised by the noble Lord, Lord Kingsland.
Lord Campbell of Alloway: I shall make a brief speech. Leaving aside the question of voting, to which reference has just been made, and in saying that I support the amendment moved by my noble friend Lord Kingsland, surely it is right that a Lord of Appeal in Ordinary, whether he serves on the Appellate Committee of your Lordships' House or what is supposed to be a Supreme Court, is neither here nor there. The point is that if he is in either, he should be entitled to a Writ of Summons to attend this House and to speak here. This House will be much the poorer if Lords of Appeal in Ordinary are not entitled to speak here.
For my part, I think that the entitlement to vote should be retained, but that is an extension of the argument. I have supported this contention on previous occasions, so I shall not repeat the
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arguments. I also support the contention that the Lord Chancellor must be a Member of this House. At a later stage I propose to return to that in a more formal manner, so I shall not take up the time of the Committee at the moment.
Lord Lloyd of Berwick: I had intended to move Amendment No. 88CR in due course, but I note that my noble friend Lord Bledisloe has to a certain extent already jumped the gun. I am very happy to jump the gun as well so as to avoid a separate debate later. The key amendment in the group is Amendment No. 88CS, the effect of which would be to enable the Law Lords, if they continue to exist as Law Lords, to continue to sit and take part in the proceedings of this House, but not to vote.
I should have thought it must be common ground that, over the years, the Law Lords have made an enormously valuable contribution to the proceedings of this House while still serving as Law Lords. We all remember Lord Wilberforce, Lord Scarman and, I suspect, a particular speech made by Lord Taylor when he was Lord Chief Justice. It would be the greatest of pities to deprive ourselves of the opportunity of hearing contributions of that calibre by what, in effect, amounts to only a theoretical argument. Moreover, as has already been mentioned, Law Lords make a particular contribution to House of Lords committees, one that I should say is unpaid. Unlike other members of such committees, Law Lords are not paid.
My personal view is that Law Lords should also be allowed to vote. It seems in a sense artificial to allow them—as I hope we shall—to take part in debates and express their views but then not to allow them to back those views in the Lobbies. I accept what the noble Lord, Lord Goodhart, said earlier, but very occasionally the Law Lords do vote. However, I simply cannot accept that by doing so they would disqualify themselves under the European Convention on Human Rights from sitting on an appeal totally unrelated to the matter on which they had voted. Indeed, at an earlier stage in Committee I drew attention to a recent decision of the European Court of Human Rights—I think from Finland—which has decided that very point: there is no automatic disqualification.
I should like to see the law remain exactly as it is with the Law Lords continuing, not very often but occasionally, to take part in debates—I hope with some effect—and also being allowed to vote, as they do very occasionally. I am sure that we can rely on the Law Lords to exercise wise discretion in the matters in which they take part and vote.
I suspect that in the minds of some Members of the House the issue of voting raises a particular problem. It is for that reason that I have brought forward the amendments in the hope that they might provide a compromise. I would like the Law Lords to continue to sit and vote but, as a form of compromise, I would be happy if they were allowed to speak but not vote. We cannot afford to do without them.
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Amendment No. 88CT is simply consequential if Amendment No. 88CS is accepted. Again, that has already been explained.
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