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Lord Goodhart: My Lords, we have heard comments today from the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, and from a number of others, about whether we should have a separation of powers between the judiciary and the legislature. Most of them said that it was unnecessary. However, I do not believe that the question here is whether we should have a separation of those powers, but whether we should recognise the separation which has already happened. These powers are already separate.

The lay Members of your Lordships' House do not sit as Members of the Appellate Committee, and have not done so since it was first set up; nor do lay Members of your Lordships' House vote when the Law Lords are sitting in the Chamber in order to vote on their decisions. Serving Law Lords rarely speak and hardly ever vote in this House. The senior Law Lord, the noble and learned Lord, Lord Bingham of Cornhill, has expressed the view that they should not do so.

In fact, two serving Law Lords did vote on the Hunting Bill. I do not think that that was a breach of any formal rule, but some of us—including those, like me, who voted the same way as the two Law Lords—believe that it was unwise of them to take part in a contentious legislative decision. It was inconsistent with the developing convention that serving Law Lords do not speak or vote.

The only official role of serving Law Lords in the business of your Lordships' House as a legislative body is that two Law Lords serve as members of the Committee for Privileges, which hardly ever meets, and one is the chairman of Sub-Committee E of the Select Committee on the European Union. To be chairman of one of the seven sub-committees of one of the several Select Committees of your Lordships'
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House is a tenuous link between judicial and legislative duties and one that, I believe, could be replaced with little difficulty.

As the noble and learned Lord, Lord Bingham, has said, the Law Lords are judges, not legislators. Conversely, in this Bill we are recognising that the Lord Chancellor is a legislator and therefore cannot be a judge.

It is true that some Law Lords wish to remain here. Your Lordships' House is indeed a very pleasant and beguiling place and, no doubt, many Law Lords enjoy being here. But it is hard to see that membership of your Lordships' House adds any benefit to Law Lords in their judicial role.

Holding a peerage is a distinction, but I believe that it will be a much greater distinction to be one of 12 Justices of the Supreme Court than to be one of 700 Members of your Lordships' House. The respect in which we hold the great Law Lords of fairly recent times—such as Lord Radcliffe, Lord Reid, Lord Wilberforce and Lord Scarman, who, sadly, died only last week—would have been no whit diminished if they had been members of the Supreme Court and not of your Lordships' House.

Powers are indeed separated in constitutional practice, and the amendment moved by the noble and learned Lord, Lloyd of Berwick, would preserve what is now only the appearance and no longer the reality; it would preserve the shadow and not the substance. The description of your Lordships' House as the highest court in the land is confusing to ordinary citizens of the United Kingdom and even more so for foreigners. Nor does it add anything to the regard in which the courts of the United Kingdom are rightly held and will continue to be held if the Law Lords move to a Supreme Court.

It is wrong that the judges of the highest court in the land should have to hear cases perching in two of the Committee Rooms of your Lordships' House and not in their own court building. It is wrong that they should have pokey rooms in the Law Lords Corridor rather than proper offices of their own. It is wrong that public access to the sittings of the Appellate Committee is so difficult—particularly now with the heightened security—and that accommodation for the public in those rooms is so bad.

The Statement published today by the noble and learned Lord the Lord Chancellor makes it clear that great advantages to the judges, to the litigators and to the public will result from moving to the Middlesex Guildhall. I see no reason why a vote on that principle should not take place, at least on Monday. The sunrise clause will prevent the Law Lords being moved until the Minister has approved plans for the building that he is satisfied will be appropriate after consultation with the Law Lords. I assume—no doubt the noble and learned Lord will confirm this—that those plans cannot be approved until obstacles such as the objections of English Heritage have been overcome
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and planning permission has been obtained, at least in outline. The sunrise clause does not require the consent of the Law Lords, but the decision of the Minister that the plans are appropriate will be judicially reviewable and can be overturned if they are unreasonable.

The final decision about an appropriate home for the Law Lords cannot be taken until the Act is in force. I accept that the Statement of the noble and learned Lord the Lord Chancellor would better have been made considerably earlier, but there is nothing in it that has not been foreshadowed by the evidence to the Select Committee or which requires any delay to Third Reading. The suggestion made by the noble Lord, Lord Crickhowell, that your Lordships' House should become the arbiter of whether the plans are good value for money is unworkable.

We all know that justice must not only be done but must be seen to be done. A similar principle applies here. Powers must not only be separate—as in substance they are—but must be seen to be separate. I can see no merit in preserving the fiction that the upper House of Parliament and the highest court in the United Kingdom are a combined and indivisible whole. That may have been true in the distant past, but the falsity of that fiction is becoming more obvious every year.

I wish to speak briefly to the amendment tabled by the noble and learned Lord, Lord Howe. Amendment No. 35B is an attempt to create a middle way. The amendment recognises that the Appellate Committee is to become the Supreme Court and should be called that. It then states that the Supreme Court must, by law, sit in the Palace of Westminster and that its judges must, by law, receive peerages and Writs of Summons, although it is suggested that they should not vote, and perhaps not even speak, when they get here. Why on earth should that be? Once we create a Supreme Court, surely it must not be fettered in that way.

No such middle way exists. Either we recognise the reality of the separation of powers or we preserve the fiction of union; we cannot have a bit of reality and a bit of fiction. I believe that the reaction to the proposals of observers from outside your Lordships' House will be one of incredulity. If we accept the principle of the Supreme Court, as the amendments do, it is irrational to say that it must not be a proper Supreme Court with its own building but must continue to be an appendage of the House of Lords. I hope that the noble Lords who have supported the amendments will think again.

Lord Kingsland: My Lords, when the noble Earl, Lord Ferrers, sat down at the end of his speech, I conducted a whispered exchange with my noble friend Lord Henley. We concluded that only Earls could make speeches such as the one made by my noble friend Lord Ferrers and that mere barons, whether hereditary or life, simply could not aspire to such heights of oratory.

The Government have consistently used the doctrine of separation of powers as the basis for their radical changes to our constitution and, in particular,
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to the Appellate Committee of your Lordships' House. I hope that the speech made by my noble and learned friend Lord Howe will have effectively dispelled any final illusions that your Lordships may have about the relevance of that doctrine to the reality of our constitution. As my noble and learned friend said, paragraph 130 of the Select Committee report gives the lie to any evidence at all of any collusion at any time between the judges of your Lordships' House and either the executive or the legislature. The noble and learned Lord the Lord Chancellor repeatedly, both to the Select Committee and in public thereafter, confirmed that that is so.

By contrast, the doctrine of the separation of powers does not seem to work at all between the executive and the legislature. Indeed, the story of most of the 20th century—particularly its last three years—and the first four years of the 21st century has been an ever-increasing dominance of the executive over the legislature. How much more useful it would have been for the Government to have proposed changes in the relationship between the executive and the legislature as a justification for using the separation of powers as a constitutional principle; instead of which they have ignored that great defect in our constitution and focused on another relationship which, in practical terms, is working extremely well.

I was struck by the irony of the idea of removing the Lords of Appeal in Ordinary from your Lordships' House. This House is one of the two component parts of Parliament; and Parliament is the "High Court of Parliament". It was originally, and still is, described as a judicial and not a legislative body. Perhaps the Law Lords should be asking themselves whether they want to throw us, the legislators, out rather than the other way around.

The Government's proposed changes have three elements to them. The first is to change the name of the Appellate Committee of your Lordships' House to the name "Supreme Court"; the second element is to change the building and the location of the final court from Parliament to, it appears, somewhere quite near Parliament in Parliament Square; and the third element is the removal of the Lords of Appeal in Ordinary from your Lordships' House.

The change of name concerns us least. It was said, very effectively, by the noble Lord, Lord Rees-Mogg, to the Select Committee that there was a danger in calling the final court of appeal the Supreme Court in this country, because it will give the illusion to the electorate that the Supreme Court has the last word about the validity of the law. That, of course, is not true because the Supreme Court will inherit exactly the same powers as those exercised by the Appellate Committee. So there is a sense in which one misleading name, the House of Lords, is to be exchanged for another.

I ought to add that the noble Lord, Lord Rees-Mogg, also made out a strong case by speculating that, although the Supreme Court will inherit only the powers of the final court of appeal, it might, rather like the Supreme Court in the United States, acquire a
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great deal more power as it moves from judgment to judgment. As noble Lords are well aware, the United States constitution never gave the Supreme Court power to have the last word over legislation made by Congress. It was only in the great case of Marbury v Madison in 1803 that the Supreme Court gave itself the power to strike down congressional legislation. So the Government may be taking a risk with its prized constitutional principle of parliamentary sovereignty by establishing this new institution.

The second change that is proposed is to move the location of the court from Parliament to a new building in Parliament Square. I was very struck by a speech made by the noble and learned Lord, Lord Hope of Craighead, last Saturday, 10 December 2004, to the Faculty of Law at the University of Strathclyde in which, about the proposed building, he said:

If we are to have a Supreme Court in a separate building, I suggest to the noble and learned Lord the Lord Chancellor that it must be a building that reflects the status of the institution that will inhabit it. I respectfully share the conclusion of the noble and learned Lord, Lord Hope of Craighead, that the Lord Chancellor's preferred building is simply not up to the image that he rightly wishes to convey. He wants a Supreme Court for this country that is worthy of its name. In my submission, the building that he prefers is simply not up to that.

Finally, there is the question of whether the Lords of Appeal in Ordinary should cease to be Members of your Lordships' House when the Supreme Court is established. I far prefer the proposal made by the noble and learned Lord, Lord Howe. Indeed, his amendment is one to which I have put my name. That is, why not designate a specific and easily identifiable part of the Palace of Westminster for the Supreme Court of the future. There need be no confusion between the legislature and the judiciary if it has a separate entrance. This building is of unequalled prestige in the country and that prestige would be shared by the Supreme Court.

Of course, if they inhabited the same building, it would be necessary for the members of the Supreme Court to be Peers, not necessarily Lords of Appeal in Ordinary, but life Peers. It would be inappropriate for their decisions to be given in your Lordships' Chamber but they could be given, like decisions of the Privy Council, in the committee room designated for the Supreme Court at the Lord Chancellor's end of the Palace. There would be no reason why members of the Supreme Court should not continue to serve on committees but, of course, it would be inappropriate for them to vote in your Lordships' House. As to
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whether they should speak in your Lordships' House, I suggest that should be a matter of further consideration by your Lordships. I do not think that my noble and learned friend Lord Howe has reached a final conclusion about that, as he indicated to your Lordships' House this afternoon, and I see him nodding now.

Those three components of change need to be looked at individually on their merits, as well as being part of a whole. When your Lordships do so, I hope that noble Lords will conclude that there is a great deal of merit in the proposal made by the noble and learned Lord, Lord Howe. I hope that between now and Third Reading, your Lordships will give it your most earnest consideration.

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