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Lord Richard: My Lords, I share the view expressed by the noble Viscount, Lord Bledisloe, at the outset of the debate. I am not exactly certain what we are debating this afternoon. We have heard various speakers, all of whom have complained that we are not in a position to take a decision today. We have also heard speeches in favour of taking a firm decision today, notably that of the noble and learned Lord, Lord Lloyd. If his amendment were passed, it would be a clear decision against the establishment of a Supreme Court. We have also heard of a halfway decision from the noble and learned Lord, Lord Howe.

When the noble and learned Lord, Lord Lloyd, was speaking, I took down a note of one of his sentences. He said: "We are not like modern democracies". Precisely so. I must say that that seems to me to prove the case on our side of the argument, not on his. I want us to be a modern democracy. I think that most people in this country would want us to be a modern democracy. We should therefore ask ourselves what being a modern democracy entails.

In a parliamentary system of government, it entails one thing for certain: governments are formed from the party that has a majority in the legislature. I find no offence in the proposition that the Executive should sit in the House of Commons, in Parliament. That is the essence of the system. If it were otherwise, it would be an entirely different system of government. But I find it somewhat offensive that judges should be legislators and sit in a House of the legislature.

It is interesting how the argument has developed over the months. Every time that those of us on this side of the argument have made that point, the answer has come back, "Well, of course they need not sit". Very well, then why are they here? Or it is argued that they need not speak. Again, why are they here? Or it is argued that they should not be allowed to vote. Again, why are they here? I know not.

I was fortified in that position when the noble and learned Lord, Lord Ackner, mentioned other common law jurisdictions. As far as I know, neither Canada, Australia, New Zealand nor South Africa has found it necessary for their Supreme Court judges to sit in the legislature in order to absorb this miasma or atmosphere—I am not quite sure what it is—that somehow seeps from the House of Lords and infects the judiciary so that they can be better judges than they would otherwise. I do not believe that for a moment.
 
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I happen to be a slightly old-style separationist when it comes to powers, and I think that the presence of judges in the legislature is offensive, arcane and way out of date, and it is time that something was done about it. The question is what.

Lord Carlisle of Bucklow: My Lords, I thought that the noble Lord had finished his speech.

Lord Richard: No, my Lords, I am afraid not. The noble Lord will have to restrain himself a little longer. If he gets up too often, he might even encourage me.

I now want to deal with the proposition advanced by the noble and learned Lord, Lord Howe. In our previous debate, the noble and learned Lord, Lord Lloyd of Berwick, used the phrase: "If it looks like a duck and quacks like a duck, the chances are that it is a duck". As I see it, if the proposition made by the noble and learned Lord, Lord Howe of Aberavon, is accepted, we will have someone who looks like a Law Lord. He will be a Member of this House—a Lord—and will give judgment in this building, as Law Lords do. In those circumstances, it is a bit difficult to see precisely how he will differ from the existing Law Lords who sit in your Lordships' House, except perhaps in name.

If I could see a way to do it, I would perhaps be prepared to come halfway to meet the noble and learned Lord, Lord Howe, but I do not. If he is proposing that the Supreme Court, which is separate from the legislature, should be housed in part of this building, one would want to consider that proposition. But if the proposition is that they should continue to be housed in this building; that, as I understand it, they should have a separate entrance; but that nevertheless they should still be Members of this House and be entitled to participate in debates of this House, that is not a compromise at all. If anything, it is a proposition that is designed to confuse rather than to elucidate. So I am not in favour of that.

For the benefit of the noble Lord, Lord Carlisle, I am just coming to the end of what I want to say. I hope that if we take a decision today, it will be taken firmly on the basis that something must be put right when we have judges sitting in the legislature of a parliamentary system of government—which is, as far as I know, not followed in any other parliamentary legislatures that have a common law jurisdiction. I hope that the time has come when it will cease to be followed here.

Lord Carlisle of Bucklow: My Lords, I hesitated to intervene in this debate because, I confess, the train on which I travelled down was two hours late arriving and I therefore missed part of the opening speech by the noble and learned Lord, Lord Lloyd. I decided that I was entitled to do so despite that, if for no other reason than that it gives me a chance, as a member of the Select Committee, to add my congratulations to those of other members of the committee to the noble Lord, Lord Richard, on the way that he handled that committee.
 
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I shall be brief. The argument for having a Supreme Court is obviously in effect, as the noble Lord, Lord Grabiner, said, one of principle. The principle is based on the separation of powers and yet it has been conclusively shown by many speakers in this debate and the evidence given to the Select Committee that the separation of powers does not really apply as a principle in this country. So we are not considering a major change of principle but a change in perception between the House of Lords, the Judicial Committee and the Supreme Court.

What is there to put against that perception? There is the fact that the practicalities of change will be very few. We will have the same number of the same judges, who will be required to have the same qualifications—all those matters were agreed in Committee—doing the same work as they do at the moment. More importantly—I will not repeat what my noble and learned friend Lord Howe said—it is accepted that they have a high reputation at home and abroad for the excellence of their judgments. The Government accepted that their probity and ability was beyond question. So we are being asked to spend a substantial amount of money to find a new building outside this one for what I suggest are no practical advantages at all.

In the Select Committee, we also heard of the advantages to this House of having the Law Lords as Members: the advantages from the point of view of the House, in that the Law Lords take part as chairmen of committees and such things; and the advantages, according to the Law Lords, that they get from the atmosphere that they absorb. Therefore, not only will there be little change in practice, we will lose that which we have. The noble and learned Lord the Lord Chancellor says that we could deal with that by making them Law Lords or Lords Peers as members of the Supreme Court. If one did that, one would have to make all Members members of the Supreme Court and that would have to be done when they were appointed rather than later.

As my noble friend Lord Crickhowell said, the expense becomes very central and relevant to the argument. I have just seen the Lord Chancellor's Written Ministerial Statement, which, apparently, is based on the fact that he has come to the conclusion that the Middlesex Guildhall is the preferred option. He has made it clear throughout that this was a conclusion that he wished to reach in consultation with the Law Lords. It states:

"The Law Lords have continuing reservations as to the suitability of this building to house the Supreme Court of the United Kingdom".

That seems a rather watered down statement. I understood at the time of the evidence that the Law Lords were totally opposed to the use of the Middlesex Guildhall because it is unsuitable both externally and internally.

Therefore, I suggest that the cost, which will be at the very least £38 million and probably more, is not justified by anything that we will achieve from this
 
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move. That is why I will support the amendment tabled in the name of the noble and learned Lord, Lord Lloyd, if it is put to the vote today.

Lord Tordoff: My Lords, we have had no one speak from our Back Benches. Perhaps a non-lawyer may be allowed to speak in this debate. I presume that we have not changed the rules quite so much today as to go that far. We have obviously changed the rules for proceedings at Report stage: we are now told that we will have amendments at Third Reading which are fundamental to the Bill. I deplore that. Taking between six and nine clauses from a Bill at Third Reading is a complete negation of the procedures of your Lordships' House. We should do that with great caution.

I have listened with great interest. I have a strong sense of déjà vu. When people start number crunching on important issues of principle such as this, I am reminded of the days when there were great arguments about the setting up of coeducational comprehensive schools. The argument used to revolve not around the benefit to the children of having coeducation but the cost of the changes that were necessary to the lavatories. So many building plans were delayed because of that really important position. I fear that we might be getting into the same thing here. But that is not really what I stood up to say.

I want to point out that it is now quarter to five. We have been dealing with the first amendment for one and a half hours. There are 30 groups of amendments. Do the Government have any idea whether we intend to go home tonight, whether we intend to get through Report stage today and, if not, what will happen to the rest of the Bill?

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