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Lord Woolf: My Lords, I rise to address your Lordships primarily with regard to Amendment No. 3, but I hope your Lordships will forgive me if I stray outside that purpose, because the primary reason that I am before the House today is to express the views of the Judges' Council, of which I am chairman. Those views apply to other groups of amendments and it may be convenient for your Lordships to hear what I have to say on its behalf all at one go, so to speak, because that will probably save time later.

As I understand the Bill, it is intended to promote two extremely important constitutional principles. The first principle is that the independence of the judiciary must be preserved. This is essential, not for the benefit of the judiciary, but for the benefit of the public. A healthy parliamentary democracy cannot function satisfactorily without an independent judiciary. That principle is a long-established part of our unwritten constitution.

The second principle is that there should be separation between the different arms of government. This principle is commonly known as the separation of powers. It has not previously been a part of our constitutional arrangements, although it is well observed in most other western democracies.

Significant changes have been made to the Bill since it was originally presented to the House. From the point of view of the judiciary, the most important of these changes has been the amendment which provides for the title—here I use my words carefully—but not all the functions of the Lord Chancellor to be retained.

I have always personally regarded the historic office of Lord Chancellor as a bulwark for the independence of the judiciary, but I recognise that its existence demonstrated a total disregard for the principle of the separation of powers when the Lord Chancellor performed his traditional functions. However, the office as now proposed in the Bill is in accord with that principle.

The critical distinction between what has existed and what is now proposed is that the Lord Chancellor is no longer to be the head of the judiciary or a judge.
 
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His former responsibilities, in the concordat mentioned by the noble and learned Lord, Lord Lloyd, have been reallocated so that he will exercise only functions appropriate to a government Minister, while those functions which should properly be under the control of the judiciary will be exercised by the Chief Justice. Functions that are properly matters for both the executive and the judiciary will, under the Bill, be exercised jointly by the Lord Chancellor and the Chief Justice, although the fact they have jointly to exercise those powers means that if they do not agree, they cannot be exercised.

By changing the functions of the office while retaining the title, it appears to me that the House has managed to square the circle. The House has respected our historic traditions while acknowledging the principle of the separation of powers that has become the symbol of modern democracies.

Before the Bill was introduced, the judiciary had approved the concordat reached between the Lord Chancellor and myself. As the noble and learned Lord, Lord Lloyd, said, the concordat now forms a substantial part of the Bill. As I understand it, all parts of the House accept that the concordat establishes a modern framework for the future relationship between the legislature, the executive and the judiciary.

A strength of the concordat is that it ensures the continuation of the working relationship between the different arms of government. It does this in a manner that furthers both the principles to which I referred at the outset. Indeed, in addition to respecting the separation of powers, the concordat ensures that the judiciary's independence will be fully protected in the future.

However, it is important that the House should hear the views of the Judges' Council on this Bill in its present form. After all, the Judges' Council is the one body that consists of members from, and representing, every level of the judiciary, including the Master of the Rolls, whom I am pleased to see in his place today, supporting what I say. The Judges' Council is in the best position to speak for the judiciary as a whole. Even though it is for the protection of the public that we value the independence of the judiciary so highly, the serving judiciary's collective view on how the Bill will affect its independence is surely worthy of close attention.

At a meeting on 24 November last, the Judges' Council unanimously approved the Bill, subject to the concerns on which I must now address your Lordships. The first concern is that there should be a clear statement on the face of the Bill that the holder of my office will be the head of the judiciary. Without this amendment to the Bill, the Judges' Council is concerned that the retention of the title of Lord Chancellor could send a confusing message as to the role of the holder of my office in the future. The noble and learned Lord the Lord Chancellor recognises the validity of that point and is proposing Amendment No. 11 to Clause 3, which of course I support.
 
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Subject to that clarification, the Judges' Council would welcome the retention of an office called "the Lord Chancellor". It would like to see a requirement that the holder should be a lawyer, ideally with similar qualifications to those required before a person can be appointed a High Court judge. The Lord Chancellor will not be a judge, however, and so he should not take the judicial oath. But, again, there is a proposal for a different form of oath in one of the groups of amendments.

The Judges' Council recognised that there were difficulties in fettering the Prime Minister's discretion as to his choice of Lord Chancellor. Therefore, the council considered it preferable, but not vital, that the Lord Chancellor should be a Member of this House.

The second concern is that there should be some way of compensating for the fact that the Chief Justice of the day will no longer be a Member of this House and thus entitled to draw to your Lordships' attention matters of importance to the judiciary. I hope that in due course noble Lords will consider that Amendment No. 24, as tabled by me and my noble and learned friend Lord Cullen of Whitekirk, meets this need.

The third and final concern of the Judges' Council is with the provisions of the Bill dealing with the creation of the Supreme Court and the consequences of its creation. The Judges' Council considers that the provisions of the Bill relating to the Supreme Court should not come into force until a suitable prestigious building is ready for occupation. The Judges' Council recognises that that concern could be met by an appropriately drafted sunrise clause. The council has not itself drafted a clause but is happy to leave its approval to the senior Law Lord, who, I believe, has already seen and approved a draft.

In the past, I personally have not been vocal in support of a Supreme Court. However, I recognise that it would have very real advantages over the Appellate Committee. It would make our final court of appeal more accessible to the public; it would be more in accord with the separation of powers; and its role would be more understandable to the public.

My coolness to what should be an exciting innovation in this jurisdiction was primarily financial. Would the new court be housed in a building worthy of a Supreme Court and would it take money away from the existing courts? My coolness was limited in that direction because I understand that the Supreme Court's powers will be virtually identical to those of the Appellate Committee.

Here, I recognise that a sunrise clause could go a considerable way towards meeting my reservations. My noble and learned friend Lord Bingham of Cornhill and his fellow Lords of Appeal have made clear the nature of a building that would be worthy of a Supreme Court. In addition, the practicalities involved in the creation of the court mean that, almost inevitably, it will be delayed for a sufficient number of years for the necessary resources to be made available without unduly prejudicing the existing overstretched court budget. Accordingly, subject to there being a
 
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suitable sunrise clause, the creation of a Supreme Court will have my support and that of the Judges' Council.

Those concerns apart, the Bill has the strong support of myself and the Judges' Council. Of course, there is some tidying up still to do and no doubt there are parts of the Bill that do not match individual preferences.

However, as a whole, the Bill marks a gigantic step forward in our constitutional arrangements. Above all, it means that the future independence of the judiciary will be safer than it has ever been. That independence will no longer be dependent on the hope that there will be in the future, as there has been in the past, a benevolent Lord Chancellor or Prime Minister who is prepared to mount his steed and ride to the rescue of the judiciary.

We must recognise, however, that the world has changed and that today the pressures on the judiciary are of a different order from those of the past. The temptations for an administration, irrespective of its political hue, to select a route that impinges on access to justice can be enormous. The danger to the judiciary will not, in this country, come from a single fatal blow but from the more insidious effect of a thousand cuts. Against that, the concordat will provide protection.

I urge your Lordships to recognise that, if we value an independent judiciary and its task in protecting our personal freedoms, we should ensure that this Bill reaches the statute book. The time available for that to happen is limited. Delay could result in its loss. We must not, in order to achieve a short-term advantage, miss the window of opportunity that the Bill still has for this new constitutional settlement to be entrenched in statute.

The Bill's conception may have been in unfortunate circumstances. Fortunately, thanks to an extraordinary amount of effort by the Department for Constitutional Affairs and a small team of the judiciary led by Lady Justice Arden, and thanks also to the improvements made during its passage through this House, particularly in the Select Committee, the Bill has developed into a piece of great reforming legislation. If it is given life, it will rank in importance with the great constitutional instruments of the past. We must ensure that that happens.


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