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Viscount Bledisloe: My Lords, Amendment No. 120 sought to insist that the Government should have an absolute obligation to provide appropriate premises for the Supreme Court. In Committee, the Government told us that that was not necessary. However, fortunately, they have seen the light.
By Amendment No. 140A they impose an absolute duty on the Minister to ensure that the Supreme Court is provided with appropriate buildings and accommodation. I am grateful to the noble and learned Lord for this change of heart. I cannot, however, refrain from pointing out that whereas my
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amendment would have achieved this result in two words, it has taken the parliamentary draftsmen 23 lines to achieve precisely the same result.
Baroness Carnegy of Lour: My Lords, my noble friend the Duke of Montrose wanted to establish various facts on the Government's new scheme in order to decide what should happen to his amendments, to which I have put my name. The salient point about third parties is whether, when the chief executive appoints officers and staff as a function delegated by the president, he will be able to recruit via third parties. If so, what are the implications of that for the statement that the staff will all be civil servants. Will the chief executive see the need, as does the Law Society of Scotland, to consult the lawyers' bodies and senior judges about the levels of staffing that he establishes?
I welcome the Government's proposal to set up the court in this new way. If we are to have this court, it seems a very big improvement on the original proposals. But if that happens, the Law Society's point does not fall. Lawyers have a great interest in the staffing levels of this court. Will they be consulted? I should be interested to know whether the Minster has considered that point.
Lord Kingsland: My Lords, I hope that the noble and learned Lord the Lord Chancellor will concede that, wax lyrical though he has done at this and earlier stages of the Bill about the enhanced independence that the judges of the Supreme Court will enjoy in the proposed institution, in the financial area at least, the situation is reversed. As a result of the noble and learned Lord the Lord Chancellor's proposals, the Supreme Court will enjoy less financial independence than the Lords of Appeal in Ordinary do in the Appellate Committee. I see the noble and learned Lord shaking his head, but I do not see how any other conclusion can be reached.
I was rather disappointed to hear the noble Lord, Lord Maclennan, say that he would not press his amendment. As he stood up I was looking forward to saying at the end of his speech that I thoroughly concurred with everything that he said and that I would support him in the subsequent vote. Imagine my disappointment when the noble Lord said that he was almost entirely satisfied with the noble and learned Lord's proposals and, in those circumstances, would not be pressing his amendment.
I confess that I entirely share the apposite views expressed by my noble and learned friend Lord Howe. Although I accept that, under the circumstances, the noble and learned Lord the Lord Chancellor had to retreat one step by accepting that the Chancellor of the Exchequer would now inevitably impose cash limits on the Supreme Court, I did not expect him to retreat two steps and re-interpose a Minister between the Supreme Court and the Chancellor of the Exchequer, which he has done.
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For example, I cite the first two subsections of Amendment No. 118B. In subsection (1), we read:
to which I say, hooray. But then, in subsection (2), we read:
"It is for the chief executive of the Supreme Court to determine these matters with the agreement of the Minister".
So the power of the President of the Supreme Court under subsection (1) seems hollow indeed. Although I accept that the President of the Supreme Court may lose his battle with the Chancellor of the Exchequer because of general cash limits imposed on all spenders, departmental or non-departmental, I simply do not understand how subsection (2) fits in with all the statements of the noble and learned Lord about the independence of the Supreme Court. It is quite plain that the power of the president under subsection (1) is wholly meaningless. It would be better were the provision not there at all because I submit that it misleads.
I should have liked to have supported the noble Lords, Lord Maclennan of Rogart and Lord Goodhart, on their Amendment No. 126, which would replace "Minister" by "President of the Supreme Court"—Amendment No. 131 would also replace "Minister" by "President of the Supreme Court"—but I am now unable to do so.
Lord Falconer of Thoroton: My Lords, I am grateful for the welcome that the measures have received, apart from the noble Lord, Lord Kingsland, who made several points, and the noble and learned Lord, Lord Howe. I shall deal first with the points made by the noble Lord, Lord Maclennan. Will the staff be civil servants? Yes, they will. Will the chief executive be subject to the National Audit Office? Yes, he will, as will the whole operation.
The noble and learned Lord, Lord Howe, makes the point that because the expenses of the Law Lords are currently in the House of Lords Estimates, the Treasury does not really scrutinise them. That is absolutely true. As the noble and learned Lord knows, the expenditure is made up of £2.1 million on judicial salaries, which would not be scrutinised by the Treasury anyway; £600,000 on staff salaries attributable to the Law Lords; £400,000 on administration; and £100,000 on utilities and rates. The three figures of £600,000, £400,000 and £100,000 are largely notional estimates of what is spent by this building and its staff on the Law Lords. Hitherto, the Law Lords have avoided Treasury scrutiny because there is no separate expenditure for a Supreme Court or a final court of appeal.
Let us assume, if the noble and learned Lord will, that there was a separate Supreme Court, which is the assumption on which the provision is made. Clearly, a
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separate amount would have to be considered for the funding of that operation. It would be a matter for the Chancellor of the Exchequer of the day.
I was interested to hear that when the noble and learned Lord was Chancellor of the Exchequer and the Commons told him to go away when he wanted to apply cash limits, he went away. I can understand why: because he knew that the Commons would not vote for the Estimates if he sought to apply cash limits. What would his attitude have been if they had been £5 million a year for the Supreme Court? Would the Lords and the Commons have said, "We do not apply cash limits to the Supreme Court"? That is a rhetorical question, so I do not invite the noble and learned Lord to rise; I regret asking the question anyway.
However, with the greatest of respect to the noble and learned Lord, one must be realistic. If one is setting up a Supreme Court, there will be a separate figure that will be considered by the Chancellor of the Exchequer. One cannot imagine that the figure would not be looked at, but the reality is that, in the context of public expenditure, which is about £500 billion a year, it is not that great a figure. It is extraordinarily unlikely that it would create significant issues.
Lord Howe of Aberavon: My Lords, allow me to interrupt the noble and learned Lord, because he is not asking rhetorical questions. Surely, the figure of £76.7 million to be spent by this House in the year ahead is not something in respect of which the Chancellor can come pounding along to impose a cash limit. The very fact that Parliament together votes itself the total figure is the one area in which the separation of the Supreme Court from the omnipotent spending power of Parliament itself jeopardises the financial independence of the Supreme Court.
Lord Falconer of Thoroton: My Lords, it cannot. Before he answered my rhetorical question, the noble and learned Lord nodded enthusiastically when I said that the reason that the Chancellor cannot impose cash limits on Parliament is that the Commons would never vote for the Estimates if he started to do so. The position would inevitably be different if there was a separate and identifiable sum, as we would have to have for a Supreme Court. So, with the greatest of respect to the noble and learned Lord, the idea that, because no separate amount of money is in practice attributable to the Law Lords, it follows that the same approach would be taken when there was approximately £8 million of expenditure for the Supreme Court may not necessarily be reflected in practice.
Secondly, and separately, in any event, there should be a separation between Parliament and the Supreme Court. Thirdly, the Supreme Court would have the benefit of being, as part of the ministry, being able to look to that ministry first before it had to go back to the Treasury.
The noble Duke, the Duke of Montrose, referred to the amendments about consultation, to which the noble Baroness, Lady Carnegy, also referred. They refer to third-party schemes which, by removing
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Clause 40, we remove altogether. We shall return later to the issue of consultation on matters such as fees, which is an issue also raised by the noble Duke and the noble Baroness. As for the noble Duke's question about why the clause states that the chief executive "may", not "must", appoint, that is because it is intended that the chief executive should have the power to decide how the money is disposed of. We do not want to place any obligations on him; that is entirely a matter for him.
As for the points made by the noble Lord, Lord Kingsland, I have made clear in all that I have said that the intention is that the money, once granted by the Commons in its Estimates, is passed not from the DCA but directly from the Consolidated Fund to the chief executive who, working to the direction of the president and the other members of the Supreme Court, decides how it should be spent. It is hard to imagine more financial independence than that.
The arrangements that we have followed here are similar to that of the High Court of Australia, where a Minister of the Attorney-General intervenes, but the Supreme Court Justices in the High Court of Australia, which is the Supreme Court of Australia, are very satisfied with the model.
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