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Lord Lloyd of Berwick: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 [The Supreme Court]:
[Amendments Nos. 35B and 36 not moved.]
Clause 15 [First members of the Court]:
[Amendments Nos. 37 and 37A not moved.]
Lord Lloyd of Berwick moved Amendment No. 38:
"AMENDMENT OF THE APPELLATE JURISDICTION ACT 1876 (c. 59)
(1) The Appellate Jurisdiction Act 1876 is amended as follows.
(2) Section 5(1) is omitted.
(3) After section 5 there is inserted—
"5A LORD CHANCELLOR
(1) The Lord Chancellor is not a Lord of Appeal.
(2) A person who holds the office of Lord Chancellor is disqualified for appointment as a Lord of Appeal in Ordinary while he is Lord Chancellor."
(4) Section 6 is amended as follows.
(5) Leave out from first "been" to second "Every" and insert "recommended to be so appointed under the provisions of Part 2 of the Constitutional Reform Act 2005".
(6) After section 6 there is inserted—
"6A SENIOR AND SECOND SENIOR LORD OF APPEAL IN ORDINARY
Her Majesty may, by Commission, name two Lords of Appeal in Ordinary as senior and second senior Lord of Appeal in Ordinary to preside over the judicial business of the House of Lords."
(7) In section 25, leave out "of Lord Chancellor of Great Britain or"."
The noble and learned Lord said: My Lords, happily, this is a relatively simple amendment that is intended to be consequential on the decision that the House took last week that the Lord Chancellor should remain as a Member of this House and a lawyer but on the terms that he would no longer sit as a judge in the appellate court. The amendment would therefore
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amend the Appellate Jurisdiction Act 1876 to exclude the Lord Chancellor from sitting as a Lord of Appeal in Ordinary. It is a straightforward amendment and, on that basis, I beg to move.
Lord Renton: My Lords, may I say, with deep respect, that I am very surprised by this amendment? On this side of the House, we have taken the view not only that the Lord Chancellor should remain a high dignitary of the House—perhaps even the Leader of it—but that he should continue to have some judicial responsibilities. The amendment would remove those responsibilities altogether.
Lord Falconer of Thoroton: My Lords, the amendment would do two things. First, in effect it applies the appointments procedure to Lords of Appeal in Ordinary. We disagree with that because we believe that there should be a Supreme Court, with the same sort of appointments process. The amendment is posited on the basis that the Supreme Court does not come into existence and, for that reason, we oppose it. Secondly, it says that the Lord Chancellor should not sit as a Lord of Appeal in Ordinary. We agree with that and believe that the Bill already achieves that.
Lord Lloyd of Berwick: My Lords, of course, like the noble Lord, Lord Renton, and as I said earlier, I greatly regret that the Lord Chancellor should no longer be able to sit as a judge. However, it seemed to us that because of the Lord Chancellor's position as a member of the executive, the argument about separation of powers applied rather more strongly in the case of the Lord Chancellor than it did in the case of the Supreme Court. For that reason, we were prepared to accept that he should no longer sit as a judge or be head of the judiciary. That is part of the concordat between the noble and learned Lords the Lord Chancellor and the Lord Chief Justice and, on that basis, I do not feel in a position to disagree with it. Though I regret it, therefore, the amendment must stand.
The Deputy Speaker: My Lords, the Question is that the amendment be agreed to.
Lord Lloyd of Berwick: My Lords, I am getting confused. Amendment No. 38 is not withdrawn. It is an amendment to which the noble and learned Lord the Lord Chancellor has already agreed. It simply deals with whether the Lord Chancellor should—
Lord Falconer of Thoroton: My Lords, the noble and learned Lord may have changed his position from approximately four minutes ago, but I believed that he was saying that we should not determine the issue of whether there should be a Supreme Court or a continuation of the current arrangements. The amendments that we are discussing here relate to whether the Lords of Appeal in Ordinary should be
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appointed by the appointments process that applies to the Supreme Court. That is consistent with the noble and learned Lord's approach that there should not be a Supreme Court. It is consequential on a principle issue that has not yet been resolved.
Lord Lloyd of Berwick: My Lords, the amendment is both. It is consequential on something that has been resolved, which is that the Lord Chancellor is not a Lord of Appeal—a question on which there is agreement on all sides. However, I accept that the amendment also covers the position of the senior and second senior Lord of Appeal. Perhaps, on that basis, the amendment should have been split into two parts. The best thing to do is to withdraw it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 [Qualification for appointment]:
Clause 17 [Selection of members of the Court]:
[Amendments Nos. 40 to 43 not moved.]
The Deputy Speaker: My Lords, before calling Amendments Nos. 44 and 45, I remind your Lordships that they have been pre-empted by Amendment No. 22, agreed to on the first day of the Report stage.
[Amendments Nos. 44 and 45 not moved.]
Schedule 7 [Supreme Court selection commissions]:
[Amendments Nos. 46 to 94 not moved.]
Lord Kingsland moved Amendment No. 95:
"LORD CHANCELLOR NOT TO HAVE JURISDICTION AS A JUDGE
The Lord Chancellor shall not have any jurisdiction, and shall not act, as a judge of any degree or as a magistrate."
The noble Lord said: My Lords, I do not believe that the contents of the amendment are controversial. It is merely a question of whether they ought to appear in the Bill. Naturally, I should be interested to hear the views of the Government on this matter. I beg to move.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I believe that I explained in Committee that we supported the tenor of the amendment. The proposal that the Lord Chancellor should no longer be a judge is one of the main planks of our reform. However, I would argue that, in the light of the other provisions of the Bill, the noble Lord's amendment is simply unnecessary. Among other things, as noble Lords will know, Schedule 4 removes the statutory basis for the Lord Chancellor's current authority to sit as a judge. Additionally, in Committee, we tabled amendments to Clause 48, providing that the office of the Lord Chancellor no longer qualified, as opposed to attracting the status of high judicial office.
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The combined effect of those two changes is that future office holders and the current Lord Chancellor would no longer sit in a judicial capacity. The effect is therefore achieved, and, as the noble Lord, Lord Kingsland, will know, when the effect is achieved it is appropriate to leave it there and not to add another effect of the same kind. Nothing further is required—it is done—and I hope that the noble Lord will withdraw his amendment on that basis.
Lord Renton: My Lords, before my noble friend replies, could I point out that whether the amendment shall ever apply or not depends on the decisions taken finally—at Third Reading—about the fundamental position of the Law Lords, including the Lord Chancellor?
Lord Kingsland: My Lords, in my experience, it is unusual for the Government to want less rather than more. However, if the Minister is satisfied that there is enough in other parts of the Bill to meet the objective of my amendment, who am I to quarrel with her? In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 [Selection process]:
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