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Lord Falconer of Thoroton moved Amendment No. 168AA:
The noble and learned Lord said: My Lords, this is about the supplementary panel. Issues arise about whether members of the supplementary panel of the Supreme Court should be able to sit and vote in your Lordships' House.
I have closely considered the views expressed on this issue by your Lordships, and I have concluded that membership of the panel is in reality a part-time judicial office, and it would not work against our principle of functional separation to allow members of the panel to participate in the business of the House as fully as may other holders of part-time judicial office. The proportion of time that they would spend sitting judicially would be limited, and the ability to ensure that they are not called on to sit in cases with which they have had any connection through business of this House is far greater than is possible with full-time, permanent judges. Amendment No. 168AA therefore deletes the reference to members of the Supreme Court's supplementary panel from Clause 98(1), with the effect that they will not come under the disqualification in subsection (2).
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Some concern has been expressed by this House that it will suffer from the loss of judicial expertise in its committee work; I hope that the amendment will go some way towards alleviating that concern. The other amendments that I propose to Clause 98—Amendments Nos. 168AB, 168AC and 169C—are technical amendments to ensure that the rules governing disqualification from membership of the Northern Ireland Assembly are, as respects Supreme Court judges, aligned with those for the House of Commons and the Scottish Parliament, and to improve the structuring of the clause in consequence. I beg to move.
Viscount Bledisloe: My Lords, grouped with the amendment is my Amendment No. 169, which I tabled to give the noble and learned Lord the Lord Chancellor the opportunity to put on public record what he has said privately; namely, that Clause 98(2) will not alter the position of Lords of Appeal in Ordinary in relation to their participation in this House, until such time as the Supreme Court comes into being. As I understand it, Lords of Appeal in Ordinary are, not surprisingly, not dealt with in the House of Commons Disqualification Act 1975. I invite him to confirm that that is the position.
Lord Falconer of Thoroton: My Lords, I confirm it, not only privately but publicly. If the noble Viscount had been listening earlier—I can understand why he was not—I said it in my speech at the end of the first amendment. I repeat it now for noble Lords who were not there.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendments Nos. 168AB and 168AC:
"( ) In Part 1 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (c. 25) (judicial offices disqualifying for membership) at the beginning insert—
"Judge of the Supreme Court.""
Page 41, line 34, leave out from "any" to "disqualified" in line 36 and insert "disqualifying judicial office,"
On Question, amendments agreed to.
[Amendments Nos. 169 to 169B not moved.]
Lord Falconer of Thoroton moved Amendment No. 169C:
"( ) In subsection (2) "disqualifying judicial office" means any of the judicial offices specified in—
(a) Part 1 of Schedule 1 to the House of Commons Disqualification Act 1975, or
(b) Part 1 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975."
On Question, amendment agreed to.
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[Amendments Nos. 169D and 170 not moved.]
Schedule 13 [Judicial Committee of the Privy Council]:
[Amendments Nos. 171 and 172 not moved.]
Lord Falconer of Thoroton moved Amendment No. 173:
Page 42, line 15, leave out "Secretary of State for Constitutional Affairs" and insert "Lord Chancellor"
On Question, amendment agreed to.
Clause 103 [Orders and regulations]:
The Duke of Montrose moved Amendment No. 174:
"(2) Any power to make an order or regulations under this Act shall only be exercised after appropriate consultation has been undertaken with persons likely to be affected by it."
The noble Duke said: My Lords, the amendment ensures that the Minister must consult before making orders or regulations under the Bill. The creation of the Supreme Court is an important constitutional event and requires an inclusive approach to its provisions. The amendment ensures that consultation is required to take place before the making of orders and regulations under the Bill, as well as their being subject to oversight by the House. I beg to move.
Baroness Ashton of Upholland: My Lords, I thank the noble Duke and the Law Society of Scotland, which has been involved with the amendment, for their work on the matter. We have considerable sympathy with the spirit of the amendment, but considerable difficulty with the letter of it.
I appreciate the concerns regarding the setting up of the Supreme Court. I agree with the noble Duke that an inclusive approach is required in making the orders and regulations. We accept and understand the need to consult the right people before framing the secondary legislation under the Bill, and value the responses that we have had to ensure that we get that right and make the right decisions.
The Bill sets out detailed arrangements for consultation where there is a clear individual or group of persons whose input is essential to make sure that the legislation will operate effectively. As I stated in response to Amendments Nos. 142 and 143 to Clause 44, tabled by the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour, the Government agree with the consultation requirement in relation to Supreme Court fees and I have tabled Amendment No. 141A to that effect.
In other cases, we expect to hold a proper consultation of those who can help in framing any provision, but we do not believe that those arrangements, of the kind which apply in many areas of government business, should in the case of this Bill be overlain with such a broad and unspecific requirement. I hope that on that basis the noble Duke will withdraw his amendment.
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The Duke of Montrose: My Lords, I thank the noble Baroness for that explanation of the Government's view. It has certainly gone a long way toward allaying fears that there might not be enough consultation. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 175 not moved.]
Lord Henley moved Amendment No. 175A:
The noble Lord said: My Lords, I referred to this matter in Committee when I received an assurance from the noble Baroness, Lady Ashton, that I had spotted a mistake in the Bill. I am asking for the removal of the reference to "section 51", because the subsection specifies that any orders made under paragraphs (a) and (b) would be made by affirmative resolution. If one then refers back to Clause 51 on page 21, one discovers that no orders are made under that clause. The Minister assured me that that would be corrected. That has not been done. I have, therefore, tabled the amendment for the noble Baroness, hoping that she will accept it. I beg to move.
Baroness Ashton of Upholland: My Lords, nothing would please me more than to be able to accept the amendment, but unfortunately, as drafted, it would leave Clause 103 saying:
I am sure that the noble Lord would not want me to accept it on that basis. I completely accept the noble Lord's point. I absolutely assure him that the mistake will be corrected; I will indicate to him precisely when and ensure that it happens.
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