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Lord Grabiner: My Lords, unfortunately, I cannot be here on Monday, so I hope that I shall be forgiven for putting in my pennyworth on this occasion, even if the amendment is not put to a vote.
Like many lawyers, I am quite conservative when it comes to root and branch reform of our constitution. On the whole, I favour the view that if it works, let it be. As a result, I agree with the retention of the office of the Lord Chancellor. I am quite relieved that the holder of the office will, it seems, be a lawyer of distinction. I am not a slavish adherent to the strict doctrine of the separation of powers, which has never been our way.
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That said, I believe that we should have a Supreme Court which will be, and will be seen to be, independent of the legislature and of the legislative process. We are promised a building away from the Palace of Westminster which will be suitable for its purpose. Mechanics are in place in the Bill so that the commencement of the Act will be deferred until the building is ready.
My noble and learned friend the Lord Chancellor is right. We should have a truly independent and properly financed Supreme Court away from your Lordships' House. That will produce greater clarity in the public understanding of the role of our final court of appeal. The Supreme Court will discharge its functions away from the politics of this place. The working conditions of our most senior judges will be improved as will public access to the highest court in the land. Those are important and often underestimated considerations.
In truth, the amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick, are wrecking amendments. The practical effect of his proposals would be to undermine the purity and common sense of the new Supreme Court. In my view, that would not be a wise step for the House to take. Noble Lords should take this opportunity to strike a progressive note. The concept in the Bill is the right one. In my view, blowing hot and cold about it would be a mistake.
Lord Waddington: My Lords, I rise with some diffidence because I did not serve on the Select Committee, but I spoke to some of these matters at Second Reading. It is right at this stage to revert to the basic arguments in favour of and against a Supreme Court.
I am prepared to take the amendments at face value and state bluntly why I am against the proposal. We now know that the Bill, including this proposal, saw the light of day as a result of the decision of a cabal, without any consultation with the Lord Chancellor of the day, the Lord Chief Justice or anyone else, and clearly, in my belief, without careful weighing of the advantages and the disadvantages of the establishment of a Supreme Court. We should certainly carry out that careful weighing operation now, before any decision is reached.
The other day the noble and learned Lord, Lord Woolf, the Lord Chief Justice, told us that, so far as he was concerned, the reasons for setting up a Supreme Court were that it would be,
"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".[Official Report, 7/12/04; col. 758.]
However, at no time did the Lord Chief Justice suggest that it was necessary to carry out that step or we would be in contravention of the law. Of course, it hardly needs saying, but when that step has been taken, we certainly shall not have a constitution that, for one moment, begins to comply with any doctrine of separation of powers, as the Prime Minister and members of the Cabinet are all members of the legislature.
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At no time was it suggested by the noble and learned Lord that the Supreme Court would work better; it has never been suggested at any time that the court will dispense better judgment; and it certainly was not and is not suggested that better judges will man the court, for the simple reason that they will be precisely the same judges as serve as Lords of Appeal now. Like the present Lords of Appeal, they will, in the words of the consultation paper, be people of outstanding integrity and independence, wisely and rightly admired both nationally and internationally. Nothing will have changed.
It is painfully easy to spell out what will be lost if the change is made. For a start, this House will lose the experience and wisdom of the Law Lords, who add lustre to this place and give wise counsel on criminal justice and legal matters. It should not be forgotten that they make a distinguished contribution to our work in committee. Judges will lose a forum in which they can defend judicial independence and fight measures inimical to the proper administration of justice; and taxpayers will lose the very substantial sums of money that the new Supreme Court will cost.
It is argued that it is essential that if there is to be a Supreme Court it must occupy a distinguishedthe noble and learned Lord the Lord Chief Justice said "prestigious"building. That is a very costly operation. I see no reason why such a Supreme Court should not operate within this building, as suggested in the amendment tabled by my noble and learned friend Lord Howe of Aberavon.
However, it cannot be denied for one moment that if we are to embark on this course and have a special building from which the Supreme Court can operate, it will cost money and people will ask why we are embarking on this form of expenditure at this particular time.
My noble friend Lord Crickhowell was right to remind us of what has happened in Scotland with its Parliament building. The preposterous goings on regarding that building should be a lesson to us all. They certainly have done nothing for the reputation of the Scottish Parliament. I fear that the public, who know that the Law Lords' work is carried on with great distinction within this building, will not leap with joy at the news that a new building is to be acquired and adapted at considerable expense to enable precisely the same judges to carry on precisely the same work.
As I pointed out at Second Reading, it by no means follows that as the work proceeds under the expert supervision of the Lord Chancellor and costs spiral out of control Dome-like, the only people who will be criticised will be the politicians. My fear is that some of the mud will stick elsewhere and people will begin to question why on earth the Lords were foolish enough to go along with the plan. So I think that it is time for us all to pause, to weigh in the balance the advantages and the disadvantages and to askif I may change the metaphorwhether the game is worth the candle. I do
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not think that it is. I support the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick.
Lord Ackner: My Lords, I should like to add a few words on a matter which has not yet been touched on. The noble and learned Lord, Lord Falconer, told us that today we were really concerned with the order of magnitude of the costs. That was what he thought we should concentrate on. One matter has not been mentioned on the order of magnitude, so perhaps I may deal with it.
Your Lordships will recall previous considerable discussion on how the costs of administering justice have escalated by the Government's policy decision to recover from litigants the full costs of administering justice. The phrase which may come back to your Lordships is the reference to the fact that even the cost of the cream for the office cat has now to be paid by the litigants. Your Lordships will recall how the salaries of judges, the costs of maintaining the building, the capital costs and the like, now feature as part of the costs. That has led to considerable resistance by the judges, who have had to agree under threat that if they did not the vote which the Lord Chancellor's Department depended upon for financing everything in the administration of justice would be prejudiced.
I understand that the cost of the new Supreme Court is likely to be 10 times the cost entailed in running the House of Lords. That is 10 times the cost of what is paid by litigants for the benefit of being able to take a case to the Lords. The Lord Chief Justice stressed the point that not a penny of new money will be provided by the Government for the new Supreme Court. I understand that instead of loading the 10-times figure on the litigants in the House of Lords or in the Supreme Court, the costs will be spread about the whole of the civil administration of justice. Therefore, litigants will be expected to contribute to the costs of litigation in the House of Lords, despite the fact that the House of Lords in its judicial capacity is essentially making decisions on questions of policy. That is what differs it so much from the High Court and the Court of Appeal. Leave to appeal is granted largely on the basis that an important policy issue is involved.
So we shall have the absurdity of a litigant in the High Court in a personal injury matterso no policy is involved and the question is purely one of quantumhaving to contribute to the costs of deciding some abstruse point which may be largely conditioned by the European approach in matters of natural justice and the like.
However, the matter does not end there, because the litigant will have to contribute not only to that, but also to the costswhich are considerableof moving out those who currently occupy the premises which the new Supreme Court is to occupy. Those are part of the costs of the new Supreme Court. So in addition to the costs which have been referred to are the very significant costs which the Government should themselves be defraying. I ask the noble and learned Lord, Lord Falconer, to tell us whether any other major Commonwealth country looks to the public
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largely to defray the costs of administering justice, or whether the situation isas it was in this country not very long agothat the administration of justice is part of the obligation of any democratic country to defray, leaving minor court costs to be paid by the litigants. It is for that reason that I urge that added to the high costs that have been referred to should be those additional costs, which have been overlooked.
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