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Lord Lester of Herne Hill: My Lords, does the noble and learned Lord agree that the point that he raises has never been decided by the European Court of Human Rights and that it is an open question in the light of the McGonnell decision? There are many in this House and beyond who would not agree with what he is saying about the convention.
Lord Lloyd of Berwick: My Lords, I hesitate to differ from the noble Lord, but it has been decided in the case of Pabla Ky v Finland, which is the very case on which the noble and learned Lord, Lord Hope, relied when he gave his recent judgment.
In the report of the Joint Committee on Human Rights, exactly the same point is made:
"It is clear that Article 6 does not require the UK to abolish the Appellate Committee of the House of Lords and establish a new Supreme Court which is entirely separate from Parliament".
I think that is a committee to which the noble Lord, Lord Lester, is a party. It is true that it goes on to say in paragraph 170 that to have a separate Supreme Court would reduce the risk of violations of Article 6—but what is that risk? We have had the European Convention on Human Rights since 1950, and there has never yet been a single case where that risk has materialised. Far greater is the risk that a Law Lord would say something in a lecture that was inconsistent with a case that he might subsequently be called on to decide. Indeed, that actually happened just a week or so ago, when the noble and learned Lord, Lord Steyn, said something in a lecture and because of that he said that he could not sit on a particular case—and the sky did not fall in. If that applies to lectures, why on earth could it not apply equally to things said by a Law Lord in this House?
I have spoken, as always, for much too long, but I should just add at the very end in answer to this question on separation of powers something that was said in evidence by Lord Wilberforce, probably one of our greatest judges, and certainly one who was very
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familiar with the ways of the House. In his evidence to the Wakeham Commission, which was accepted by it, he said:
"I beg the commission not to be confused or led astray by references to the separation of powers. I am sure that they appreciate that the separation of powers is not a legal norm, nor a constitutional principle, which governs the way in which we should conduct our affairs. No instance can be cited where a judge's participation in a piece of legislation can be said to have affected his judgment. In the event of litigation upon it to go further and the more remote likelihood of this occurring, the judge in question would clearly recuse himself. The case to the contrary is indeed not really argued. The most that can be said is that this is a matter of perception".
I wish that the Judges' Council had had that evidence in mind when it expressed the view that it did. I beg to move.
Lord Crickhowell: My Lords, I rise at this stage because my remarks on an earlier occasion have been quoted, and the issue of cost has been raised. I start with the comments of the noble and learned Lord, Lord Lloyd of Berwick, about the way in which the information has been provided. He had the advantage of me. He received the information, as I understand it, this morning. As fate would have it, I had to drive for three and a quarter hours this morning to a family funeral, and three and a quarter hours back. I got back to the House only about three quarters of an hour ago. The first that I heard of the Statement was when my noble friend Lord Kingsland mentioned it. I have had to digest it in rather quick time. That follows a pattern, because it was in exactly the same way that information was provided to the Select Committee—right at the end. It is not a good way to treat the House and its committees.
We are told that the decision must, apparently, be made today, certainly on Report and not at Third Reading. On 11 October, the noble and learned Lord the Lord Chancellor said:
"The search for suitable premises must not distract us from the principles behind these reforms".—[Official Report, 11/10/04; col. 74.]
I think that he will repeat that phrase in a similar form many times before the end of this debate, because he is determined to try to get a decision, whether or not we have the necessary information.
The noble and learned Lord, Lord Lloyd of Berwick, has taken us right back to the principles involved with his amendment, which leaves the Lords as the Supreme Court. He rightly précised the argument that he advanced on previous occasions that, whatever the principles involved, the cost and suitability of the buildings should be taken into account when we make our decision.
We are to have an amendment later, as part of this group, tabled by my noble and learned friend Lord Howe of Aberavon, which proposes one possible alternative solution. Right at the end of proceedings on Report, we are to consider a sunrise clause proposed by the noble and learned Lord the Lord Chancellor. In the light of what has been said on earlier occasions by the noble and learned Lord—I will come to that in a moment—that sunrise clause will not be
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adequate in its present form. One of the difficulties in dealing with a group of this kind—I must again complain about the way in which the grouping has been arranged—is that an awkward mix of amendments are grouped. Some will come up much later.
I shall concentrate on cost and suitability. On 11 October, the noble and learned Lord the Lord Chancellor said:
"The Government have agreed a set of requirements with the Law Lords and our commitment to meeting them is clear. The executive must be held accountable for that".—[Official Report, 11/10/04; col. 74.]
That immediately prompts the question, "accountable to whom?". Surely, there can only be one answer to that, it must be, "to Parliament". The noble and learned Lord the Lord Chancellor then helpfully made it clear that in his judgment it was not accountability to be exercised after the event, when the accounts of the building costs would be presented to Parliament, but that it should be put before Parliament before it reached its judgment on the principles. The noble and learned Lord could not have made things clearer or given a more absolute pledge than he did on that occasion. He said:
"I agree with the noble Lord, Lord Crickhowell, that proper information needs to be provided before this Chamber reaches a conclusion".
A few moments later, he said it again:
"I agree entirely with the noble Lord, Lord Crickhowell, that before this House takes a final decision, it should have the information before it".—[Official Report, 11/10/04; col. 74.]
As if that was not enough, in his closing sentence seeking agreement to the principle of a Supreme Court, he said:
"I believe that the important points about accommodation need to be addressed".—[Official Report, 11/10/04; col. 76.]
The Written Ministerial Statement that I have just had the opportunity to read cannot be taken as an adequate and complete statement of the information that Parliament should have before reaching a verdict.
On 11 November, I referred to the quite brilliant report of my noble and learned friend Lord Fraser of Carmyllie on what happened to the Scottish Parliament and the construction of Holyrood House. I suggested then that some of the principles that he raised should be the ones that guided us in this matter. It was the comments on his principles that preceded the undertakings and pledges given by the noble and learned Lord the Lord Chancellor. As he is a man of absolute integrity, I am certain that he will wish to provide full and comprehensive information before a conclusion is reached. That means that we cannot possibly take a decision today. Indeed, when we come to the sunrise clause, I will argue that it will have to be amended so that the verdict comes back to both Houses of Parliament; my noble friend Lord Kingsland has already tabled an amendment. The decision should not just be taken by the Executive and the Lord Chancellor after consultation with the Law Lords, which is what is proposed.
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We ought to take a brief look at what happened in Scotland, because it gives some interesting lessons. A White Paper published in July 1997 put the estimated capital costs for the Parliament between £10 million and £40 million. As the noble and learned Lord, Lord Lloyd of Berwick, reminded us, the Select Committee on the Bill was told by the noble and learned Lord the Lord Chancellor that set-up costs of the Supreme Court had been calculated at between £6 million and £32.5 million, with the likely figure at the top end of that range. There is an uncomfortable similarity between the starting costs for both projects.
By January 1998, Donald Dewar was considering a conventional building at Holyrood costing about £50 million to £55 million, plus VAT and fees of £19 million. We are already seeing the escalation. Independent quantity surveyors tabled significantly higher estimates. There was absolutely no clear understanding whether the original £40 million was a total cost including professional fees and VAT, or only the base construction costs. That therefore takes us to the first questions that the noble and learned Lord the Lord Chancellor will have to answer about the estimates that he has provided and any others that he will give us. Have they been confirmed by independent quantity surveyors of repute? We are entitled to know that.
I shall pose some other questions. My noble and learned friend Lord Fraser of Carmyllie drew attention to the Treasury guidance on project briefs, which define the client's needs and aspirations. We are told in the document published today that a statement of requirements has been agreed with the Law Lords. We should know a little more about that, because there were some vague ideas of what the Scottish Parliament would require. There was a form of statement on that occasion, but it proved totally inadequate, giving no accurate account of what would be required. We therefore need to know whether there is a properly agreed project brief that fully meets the Treasury guidance.
The Scots used a construction management contract, in which design, tendering and construction overlap, with a fee-earning construction manager providing supervision. It is a form of contract that has some advantages but leaves the risks almost entirely with the client. It was the decision to proceed with such a contract with,
asked, to quote my noble and learned friend, and without Ministers being involved that took them to,
That was my noble and learned friend's typically pungent and effective comment on what happened. My third and fourth questions are: what form of contract is to be used, and what exactly is to be the role of Ministers in managing the project?
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3.45 p.m.
By May 1999, our Scottish friends were working on a total project cost of £117 million, but then they were looking at VAT, fees, contingencies, IT fit-out, furniture and so on. It is by no means clear from the Statement today, although there is a reference to a splendid library and to IT, whether the costs of providing that library, IT and so on are included in the numbers presented to us. I suppose that what most people in normal business circumstances describe as contingencies are covered by that wonderful new phrase, "optimism clause"; I had not heard it before. Is that the case?
My next question is what the total estimated cost will be, including all those items and another mentioned by the noble and learned Lord, Lord Lloyd of Berwick; namely, the cost of moving the existing courts and the people who serve them into their new premises. He cast doubt on the estimate of £15 million, including the optimism figure, presented in the paper today. Like him, I am a bit sceptical. We need to know whether it is a comprehensive figure—whether the considerable costs of moving a whole raft of people from one part of the capital to another are covered.
My noble and learned friend said among the key conclusions of his report on Scotland that the feasibility studies were no more than an indication. Do we have more than an indication now? He said that inadequate attention had been given to the brief. Has this brief been properly prepared? On this occasion, Parliament will need to be satisfied that the brief is adequate and has been fully considered, that the feasibility studies are more than an indication, that we are dealing with a properly costed project, and that all the key questions have been asked with adequate answers provided.
I do not suggest that we should finish with a total cost of around £430 million, which is what happened in Scotland, as I hope that we are dealing with a conversion. However, we cannot be certain of that, as the document just put before us includes a statement that, at the moment, is only the favoured option. The Government still have to get planning permission and deal with the points raised by English Heritage. It is by no means clear that we will finally finish with the building at all. It is not impossible that the noble and learned Lord the Lord Chancellor will have to go away and construct a new building.
With that possibility in mind, I say again—it is a simple point—that the decision cannot be taken by the noble and learned Lord the Lord Chancellor after consulting the judges. We must finish the Bill with clauses in it that make it clear that we shall not go ahead unless the full costs and information have been provided to both Houses of Parliament before we are fully and finally committed.
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