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Baroness Seccombe: My Lords, does the Minister accept that the House of Lords was right in its opposition to the pilots Bill? With the Electoral Commission—the Government's own body—the House of Lords and much of the electorate against the scheme, is it not time to call a halt to this experimentation with our electoral system?

Lord Rooker: My Lords, the history is slightly different. As I understand it, the Electoral Commission was very much in favour of all-postal voting to start with, and then changed its view. However, the commission's own evidence shows that a large majority of people—59 per cent to 29 per cent—found all-postal voting acceptable. Participation rates
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increased from 37 per cent to 42 per cent, which is worth more than a million more votes in local elections. There is a large minority who find all-postal voting acceptable.

Baroness Carnegy of Lour: My Lords, will the noble Lord remind the House why the Electoral Commission, which was set up to advise the Government on these matters, said that there should be no more all-postal ballots?

Lord Rooker: My Lords, I think that there were several reasons for that. The Electoral Commission is coming back with another plan to widen the scope. It is accepted that there should not be only one means of voting; that is to say, turning up at a polling station, some of which are still inaccessible to people with access difficulties. We understand that, on demand, you can get a postal vote. But other ways of voting, even electronic voting, are being considered. The commission intends to report by next year on a new foundation model of voting. I hope that we will discuss that at some time in the future.

Baroness Falkner of Margravine: My Lords, given the ambiguous response of voters towards all-postal ballots as opposed to the unrestricted right to apply for a postal ballot, does the Minister not agree that this move towards all-postal ballots seems designed more for the convenience of bureaucrats than the voting public, who like to have contact, in the democratic process, through the ballot box?

Lord Rooker: My Lords, they might like to, but the fact is that more of them use postal voting when it is available than would otherwise be the case. We know that because the turnout increases. The regional referendum was not quite the same, because personalities were not involved. However, in the earlier pilots that have been running for the past two or three years, turnout for local government elections was close to 47 and 48 per cent. That is remarkably different from the normal turnout in local government elections, so I would not say that there is any ambivalence.

Lord Campbell-Savours: My Lords, why should problems in one or two areas nationally destroy the opportunity for millions of people all over this country to enjoy a new system, which is popular with the electorate and very convenient? It suits the job position of many people in so far as it is difficult for them to vote at other times. Why should we hold up this movement forward in voting practices because of problems in one or two areas?

Lord Rooker: My Lords, the short answer is that we should not. As I said, there is very little evidence of any incidents and we have to go on evidence and not rumours. However, where irregularities are discovered they must be stamped on very firmly. At the moment there are two prosecutions pending—only two—and five petitions relating to last May's elections still to be heard by the Electoral Court.
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Baroness Knight of Collingtree: My Lords, has the Minister been made aware of the extreme concern about this matter in the Birmingham area and the excellent reasons for that concern?

Lord Rooker: Yes, my Lords, because I still carry the baggage of the experience in Birmingham.

The Earl of Northesk: My Lords, despite not inviting any applications for pilots, how might the Government react in the event of such an application being made?

Lord Rooker: My Lords, if an application is made it is at the risk of the authority concerned in terms of funding and other matters. We are talking about county councils and there have been no county council pilot elections because the legislation for pilots was not available four years ago. Any one can work it out. Any city treasurer and chief executive or county council chief executive can look at the cost of setting up such a pilot—we will not be funding it, because we are not inviting it—and then look at the possible risks of what could happen in 2005. However, complications could put all their plans into the dustbin at the cost of the council tax payer. We will not expect any applications from county councils. Under the law they could make an application, but we do not expect to receive any.

Agriculture (Northern Ireland) Order 2004

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

Moved, That the draft order laid before the House on 24 November be approved.—(Baroness Amos.)

Lord Marlesford: My Lords, I apologise for raising a small point, but I have read through this order and would like to ask the Leader of the House what additional staff and what additional public spending will be required as a result of this order.

Baroness Amos: My Lords, I understand that it is not anticipated that there will be additional staff because what is being required in Northern Ireland is a rationalisation. There will be some initial additional funding, but in the longer term the running costs will decrease, so we are not anticipating substantial additional funding as a result of this order.

On Question, Motion agreed to.

Financial Provisions (Northern Ireland) Order 2004

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

Moved, That the draft order laid before the House on 25 November be approved.—(Baroness Amos.)

On Question, Motion agreed to.
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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 Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Falconer of Thoroton.)

Lord Kingsland: My Lords, before we respond to this question I rise to express on behalf of the Opposition our dismay at the timing of the Written Statement issued by the noble and learned Lord the Lord Chancellor. The Statement concerned the anticipated capital and running costs of any future Supreme Court. I understand that it was released only at 9.30 p.m. last night.

As noble Lords will be aware, the question of the future cost of a Supreme Court will have a crucial bearing on the attitudes that your Lordships take to Part 2 of the Bill. In those circumstances, I should like to ask the noble and learned Lord the Lord Chancellor how he envisages that the House can have a properly informed debate about Part 2 before your Lordships have had an opportunity to absorb the contents of the statement.

Lord Falconer of Thoroton: My Lords, I indicated in Committee that before the Bill left this House I would set out the running costs and capital costs. I laid the Statement this morning, in fact not last night—although I am glad to hear that my noble friend Lord Kingsland got it before last night—so that it could inform today's debate, which is the last day of Report. Third Reading is on Monday. It facilitates rather than prevents the debate today.

On Question, Motion agreed to.

Lord Lloyd of Berwick moved Amendment No. 35A:

"House of Lords as Supreme Court
The House of Lords, when exercising its appellate jurisdiction, is the Supreme Court of the United Kingdom and the Lords of Appeal in Ordinary shall be appointed in accordance with the provisions of sections 16 to 22."

The noble and learned Lord said: My Lords, in the debate on 11 October this year, the question of whether Clause 14 should stand part of the Bill was linked with so many other amendments that we were in danger of losing sight of the wood for the trees. On that occasion, the noble Lord, Lord Brennan, described the situation as being "legislatively indigestible". He was right. This time we have not made the same mistake. The amendment now before your Lordships is intended to give us a chance to discuss the pros and cons of a Supreme Court and whether or not we want to remove the Law Lords.
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The amendment states boldly that:


That is historically and factually correct.

As the noble and learned Lord, Lord Hope, states in a lecture that he has either just delivered or is about to deliver, the House of Lords has exercised the delegated judicial authority of the Crown since Parliament first came into existence in the 13th century. Of course, it was not then called the Supreme Court, but it was the highest court in the land. It was the High Court of Parliament.

In those days, judicial business was the main function of the House of Lords. It heard petitions to the King in Parliament. The legislative business of the House of Lords came only later, at about the time of the Statute of Westminster in 1305. Professor Griffiths in his evidence to the Select Committee was quite right when he said that the House of Lords has exercised what he called "judicial process" for centuries and it still does unless this Bill becomes law.

In calling the Appellate Committee of the House of Lords the Supreme Court I do not overlook the fact that we already have a Supreme Court, which consists of the Court of Appeal, the High Court and the Crown Court governed by the Supreme Court Act 1981. That name would have to change anyway if a Supreme Court came into existence and I understand that the name to be given to what was the Supreme Court is the Senior Courts of England and Wales. That may be found somewhere in the Bill, but I am not sure where. Therefore, there is no difficulty in the House of Lords continuing as a Supreme Court as it has always been, subject to the convention—a convention which has all the force of law—that the Appellate Committee exercises that judicial function.

The other feature of the amendment is the reference to the Law Lords being appointed in accordance with Clauses 16 to 22. That is important; it is there because those of us in favour of retaining the Law Lords, as I am, are also in favour of the Judicial Appointments Commission. There is no conflict there at all. We have never had any quarrel with the concordat made between the Lord Chief Justice and the Lord Chancellor. So we are in favour of the Law Lords being selected in future in the manner which is proposed for the judges of the Supreme Court.

Until last week I had thought that, provided that the concordat remained intact, the Lord Chief Justice and the Judges' Council wished to express no view in favour or against the coming into existence of a Supreme Court. That changed last week—I do not know why, but I think that I can guess. Last week the Lord Chief Justice put forward three reasons why the Judges' Council now supports a Supreme Court, which it had not done heretofore. I shall come to those three reasons later. I shall make only one comment at this stage.
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The view of the Judges' Council that it would like to see a Lord Chancellor in the traditional role, as a lawyer and a Member of this House, was both very relevant and important from the council's point of view. It was relevant because everyone accepts that the office of Lord Chancellor is part of the machinery for protecting the independence of the judges. So the council was fully entitled to express a view in that regard. However, the same surely does not apply to the Supreme Court. The independence of the judges is not affected in any way by whether or not we create a Supreme Court. So I was quite surprised to find the Judges' Council expressing a view on that point at this very late stage. The council is not, it seems to me, directly concerned with whether there should be a Supreme Court.

There is another point, which perhaps undermines the views expressed by the Judges' Council about the Supreme Court. With the exception of the Lord Chief Justice and the Master of the Rolls, the members of the Judges' Council can have little idea of what the work of the Law Lords actually involves. They do not know how very different the work of a Law Lord is from the work of a Lord Justice of Appeal, and from that of High Court judges or all the other judges in the land. They cannot assess the extent to which the Law Lords gain judicially by being Members of this House—a point put very persuasively, as some of your Lordships may remember, by the noble and learned Lord, Lord Nicholls, at an earlier stage. They cannot, obviously, assess the extent to which the Law Lords contribute to the work of this House. So I suggest that the views of the Judges' Council are not entitled to the same weight on this question as they undoubtedly were in relation to the future of the Lord Chancellor.

Turning back to the amendment, I hope that we shall have a very full debate this afternoon and evening, but I do not see how we can reach a decision today on whether the Supreme Court should come into existence. Let me explain why that is.

The Lord Chancellor has told us that since June 2003 he has been searching for a site for the new Supreme Court. At first there were 50 sites under consideration, which were reduced to six and then to two—Somerset House and the Guildhall. The rumour now is that Somerset House has been ruled out on the grounds that the Government cannot afford the asked rent. That is only a rumour, and I do not know whether it is true. But we have only rumours to go on. That leaves the Guildhall.

In April this year, the Law Lords visited the Middlesex Guildhall. Their view, as a result of that visit, was that the site of the Guildhall is superb, as it clearly is, but that the building on the site simply would not do. I remind the House that the building was completed in 1913, in a style which the noble Lord, Lord Howie of Troon, described as "Victorian mock-Gothic". Well, he was right so to describe it—that is exactly what it is—but he was not so right when he went on to say that that made it very suitable for the Law Lords.
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3.15 p.m.

The Guildhall building comprises a council chamber built for the MCC—which stands here not for the Marylebone Cricket Club but for the Middlesex County Council—and two other criminal courts. Another five other criminal courts have been added since 1913. The interior of the building would have to be very substantially modified, because the existing courts would be of no use to the Supreme Court. Three courts would be required, two for the work currently done by the House of Lords and one for the work currently done by the Privy Council. One of those courts must be large enough to enable nine Law Lords to sit together.

In a memorandum dated 30 April, subsequent to the Law Lords' visit, they said of the Guildhall that they had,

as it would have to be—

that is, the three courts—

That was the unanimous view of the Law Lords, expressed in that written memorandum of 30 April. So far as I know that remains their view.

There remains the question of cost. Again, I remind your Lordships of the story so far. The original estimate in the Explanatory Notes attached to the Bill was that the capital costs would be between £6 million and £32 million—which is perhaps rather a large margin for error. Then, in the Select Committee, after much pressure from members of that committee, we were told that the Guildhall site would cost £32.5 million, which is £500,000 more than the original estimate. Exactly the same figure of £32.5 million was given for the cost of the alterations to Somerset House, if that had been the choice. Why the figure should have been exactly the same, I know not.

As to the proposed figure of £32.5 million, we were told—and I suggest to your Lordships that it is important:

Those are ominous words indeed. They are followed by these even more important words:

"Decanting" is not, I think, the word that I would have chosen. Decanting wine is something that we all enjoy but decanting judges is by no means so easy. We would have to find seven new courts somewhere for the seven existing active courts in the Guildhall. Where will they
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go? Again, one has to rely on rumour because we have been told so little. The rumour was—I do not know whether it is still the case—that all seven courts would be accommodated in a new building in Croydon. Then it was said that four courts only would move to Croydon. Where the other three courts were going to go I do not know.

What will it cost? I refer to the cost of rebuilding and refurbishing, including—this is essential—the costs relating to the seven new courts that have to be built somewhere. The cost of rebuilding or refurbishing, if that is the right phrase, the courts in Edinburgh—I am not talking about the Parliament Building in Edinburgh but the courts—has already exceeded £93 million. Yet this morning for the first time we were given a figure for finding seven new courts of £15 million, which sounds suspiciously, even absurdly, low.

However, before I come back to that figure I hope that I may say a word about timing because it is important.

In June this year in answer to a Starred Question from the noble Lord, Lord Peyton, we were told:

Autumn came and autumn went but we had no figures to go on. Then on 11 October the noble and learned Lord the Lord Chancellor was pressed hard by the noble Lord, Lord Crickhowell, who I am glad to see is present, that we must be given believable figures. In reply the noble and learned Lord the Lord Chancellor said:

Then what happens? He provides us with some figures which are, with one exception, exactly the same figures as we have had all along, on the very day on which he now says we must make a final decision on the existence or otherwise of a Supreme Court. When I say "the very day", I have in my hands a letter from the Lord Chancellor dated 8 December 2004, but which I received only as I was going home last night at about six o'clock, in which he says:

I have two comments to make on that. The statement that we received this morning is not, in my submission, a proper compliance with the undertaking which the Lord Chancellor gave us on 11 October. Furthermore,
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to provide the information which he has done at the very last moment, and then to require us to reach a decision on the same day as the information is provided, is not, in my submission, a proper way to treat this House. Why could we not have had those figures last week? Why could I not have been told about those figures when I rang the noble Baroness's office yesterday to inquire whether any figures were available, and was told nothing whatever about them?

The decision that we are asked to take is one of the highest constitutional importance. It involves weighing the alleged merits of creating a Supreme Court and removing the Law Lords against the cost of doing so. How can we make a responsible decision about that without having had a better chance to study all the figures? That is why I say we simply cannot reach such a decision today. I say it with great regret but we cannot do this matter justice except to say that this decision will have to be taken at Third Reading rather than today.

The Lord Chancellor says that it is quite unsatisfactory to proceed in that way, and that it,

If that be so, all I can say by way of answer is that it is his doing for not having provided the figures at an earlier stage.

Finally, I must speak briefly to the merits of the proposal, as I said that I would. In Committee I tried to deal with the many arguments that had been put forward from time to time by the Lord Chancellor. I think that there were 10 in all. It sometimes seems to me that multiplicity of arguments often points to the fact that very few, if any, of them are of any great weight.

Today I shall deal only with the three arguments that the Lord Chief Justice put forward last week on behalf of the Judges' Council. The first argument concerns the separation of powers. Secondly, it was said that the role of the Law Lords needs to be better understood. Thirdly, it was said that a new building would provide better access for the public. I shall try to deal with each of those arguments in turn.

As regards the separation of powers, about which we have heard so much during these debates, and about which, it seems to me, there is so little understanding, I can understand that the Lord Chancellor as a member of the Executive should not sit as a judge. I could see why, if we were to reach consensus on the future role of the Lord Chancellor, we had to accept that he should no longer sit as a judge—a decision which I regret as we have had Lord Chancellors who have been very great judges. But, as I say, I understand that and I accept it, but I simply do not understand the argument when applied to the Law Lords, who are not members of the Executive. The separation of powers is not a rule; it is a theory. You have only to look at the position of the Prime Minister in the House of Commons to see that the separation of powers as a theory has no place in our constitution; for there is the Prime Minister, the head of the Executive,
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sitting at the heart of, and, indeed, in control of, the legislature. That is utterly different from the position in the United States.

In that respect if no other we are not like modern democracies, so why should modern democracies be given as an example to us when answering the question whether the Law Lords should or should not be Members of the House of Lords? The Government argue that there must be separation in order to comply with Article 6 of the European Convention on Human Rights. That is the article that guarantees a fair trial. That argument was supported by Professor Woodhouse, but despite her support, it is simply wrong. As the noble and learned Lord, Lord Hope, made clear in a recent judgment given in this House, there is no requirement that a judge or a part-time judge should not sit in the House of Commons or in the House of Lords. It all depends on the facts of a particular case whether the judge is disqualified by something that he has said in the House of Lords. That point is echoed—

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