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Baroness Carnegy of Lour: My Lords, as a member of the Delegated Powers Committee, I was present at the discussion of the amendments which the noble and learned Lord the Lord Chancellor kindly sent to the committee for comment. I am very glad to hear that the Government intend to bring forward amendments in another place. There is no question that these provisions, as drafted, could be used for a considerably wider purpose than exists at the moment in starting from the status quo in future. I think that that is the problem, although I am sure the committee will be very grateful for that.
Lord Kingsland: My Lords, without wishing in any way to tease the noble Baroness, this is an important amendment to introduce at Third Reading in the view of the Official Opposition. At first blush we thought that it could have dramatic effects on the responsibilities of the Lord Chancellor. However, we have now examined Amendment No. 96 in some detail. We have formed the view during the time at our disposal that the noble and learned Lord the Lord Chancellor is probably properly protected.
The noble Baroness underlined to your Lordships' House that she would be reflecting on the committee's observations. I am sure that if some gap in the noble and learned Lord's armour is discovered between now and the various stages in another place, the noble Baroness will be swift to make sure that that gap is closed. On that basis, we are happy with the amendment.
Lord Crickhowell: My Lords, I am the last person who would want to tease the noble Baroness. But, in the light of comments made before we started our discussion, it is worth noting that these amendments are brought forward to bring the Bill into line with the decision of the House of Lords on 13 July 2004. They could, therefore, have been brought forward on Report. So here we have an example of the Government apparently having acted very late.
Baroness Ashton of Upholland: My Lords, I am grateful for the comments that have been made. We trailed very widely those issues that we intended to address, of which this was definitely one. There is no underlying change in policy. As I said, it is designed specifically to bring the provision into line. I am grateful to the noble Baroness, Lady Carnegy, for her comments about the Delegated Powers and Regulatory Reform Committee. We will consider what needs to be done formally in response and in another place.
"PROTECTED FUNCTIONS NOT TRANSFERABLE UNDER MINISTERS OF THE CROWN ACT 1975
(1) The Ministers of the Crown Act 1975 (c. 26) is amended as follows.
(2) In section 1 (power by Order in Council to transfer functions of Ministers), after subsection (5) insert
"(6) This section does not apply to the functions of the Lord Chancellor that are within Schedule (Protected functions of the Minister) to the Constitutional Reform Act 2004.
(7) An Order in Council under this section may amend Schedule (Protected functions of the Minister) to the Constitutional Reform Act 2004 so as to include any function which, by virtue of provision in the Order in Council
(a) is transferred to the Lord Chancellor,
(b) becomes exercisable by the Lord Chancellor concurrently with another person, or
(c) remains exercisable by the Lord Chancellor but ceases to be exercisable concurrently with another person.
(8) An Order in Council under this section may not, to the extent that it amends Schedule (Protected functions of the Minister) to the Constitutional Reform Act 2004, be revoked by another Order in Council under this section."
(3) After section 5(3) (Orders under Act to be revocable) insert
"(3A) Subsection (3) is subject to section 1(8).""
After Clause 13, insert the following new clause
"AMENDMENT OF SCHEDULE (PROTECTED FUNCTIONS OF THE MINISTER)
(1) The Minister may by order amend Schedule (Protected functions of the Minister) so as to include within that Schedule any function of the Minister under an enactment, other than an enactment contained in an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed.
(2) For the purposes of subsection (1) it does not matter whether a function of the Minister is exercisable by him alone or concurrently with another person.
(3) An order made under this section may not be revoked by an order made under this section."
"( ) This section applies where a function of the Minister is transferred to another person ("the transferee") by any provision of this Act or of an order under section (Transfer, modification or abolition of functions by order) ("the amending provision")."
Page 6, line 12, at end insert "amending"
Page 6, line 16, after "by" insert "the amending provision or any other provision of"
Page 6, line 24, after first "the" insert "amending"
Page 6, line 27, at beginning insert "amending"
Page 6, line 29, after second "the" insert "amending"
Page 6, line 36, after first "the" insert "amending"
"HOUSE OF LORDS AS A SUPREME COURT
The House of Lords, when exercising its appellate jurisdiction, is the Supreme Court of the United Kingdom and the Lords of Appeal in Ordinary shall be appointed in accordance with the provisions of sections 17 to 23."
The noble and learned Lord said: My Lords, much of the debate on Report was taken up with the Written Statement that the noble and learned Lord the Lord Chancellor produced on the morning of the debate. It showed the projected capital cost for the conversion of Middlesex Guildhall at £30 million. It showed for the first time the cost of building seven new courts to replace the existing courts in the Guildhallpresumably, somewhere near the centre of London. I visited the Guildhall this morning. Six of the seven courts were in operation and I was told that the seventh would also have been in operation, had it not been for Christmas.
It is saidthis is only rumourthat buildings for those seven courts are to be found, four in Croydon and three in Isleworth, neither site being very near the centre of London. Be that as it may, the cost, which was given for the first time, is £15 millionan extraordinarily low figure for building seven new courts. I had hoped that by today we would have had a breakdown of that £15 million, but it has not been provided. So, for the moment, we must accept the figures of £30 million plus £15 million as the capital costs involved in creating the Supreme Court. There will be increased annual running costs of £5 million which, I suppose, can be conveniently capitalised at £100 million, so we are talking of a total in capital terms of £145 million on present estimates.
I shall leave the question of costs there because, important though they are, something else is more important today. For today is our last chance to stand back from this whole affair and ask a simpler question: not what this will cost but, rather, what is it all for? On 14 December, we had some discussion about the separation of powers. That was because separation of powers had been one of the three reasons given by the noble and learned Lord the Lord Chief Justice on behalf of the Judges' Council for supporting the proposed Supreme Court.
I say no more about that for this reason. The noble and learned Lord the Lord Chancellor himself accepted in Select Committee, at Question 75, and on the Floor of the House, that something more than a theoretical objection to the presence of the Law Lords is needed if we are to remove them from this House. He said that there must be some positive reason, some tangible and real advantage to be gained.
What, then, are those advantages? From the start, it has been a constant theme of the Government that we need a Supreme Court to bolster or enhancevarious words have been usedthe independence of the Law Lords. It will not have escaped your Lordships' notice that on Thursday of last week, the Law Lords gave judgment against the Home Secretary in the case concerning the detention of men without trial in
20 Dec 2004 : Column 1549
Belmarsh prison. In the light of that judgment, I think that I need say no more about the actual independence of the Law Lords.
Then it is said, "Ah, but that is not all that matters. What also matters is the perception". It is said that the people are confused. They believe that the judgments of the Law Lords are biased or politically motivated. Those are not my words, they are taken from the Government's consultation paper. The noble and learned Lord the Lord Chief Justice puts it more diplomatically. He saidthis is his second reasonthat the creation of a Supreme Court will make the role of the Law Lords more understandable. What more do we want the public to understand?
On the Friday morning following the decision of the Law Lords to which I referred, I looked through the 10 daily papers in the Library. As one would expect, all 10 covered the story in considerable length. There were numerous references to individual Law Lordsnot always, I must say, complimentaryand numerous references to the Law Lords being the highest court in the land. Thus, the Mirror said that,
Surely any reader of the Sun or the Mirror would realise that the Law Lords, the highest court in the land, had done something that the Government did not like. How, then, can it be said that there is confusion in the minds of the public? How can it be said that their decisions are thought by the public to be politically motivated? The Government produced not a shred of evidence to the Select Committee to support any suggestion of confusion. When I suggested rather timidly that if that was an important part of the Government's case, as it appeared to be, we might commission a survey of public attitudes, the suggestion was brushed aside.
I accept of course that the public do not know what is meant by a Lord of Appeal in Ordinary. I accept of course that the public do not know that the Law Lords are an Appellate Committee of this House. But what, I ask, does that matter? They understand very well what matters: that the Law Lords, the name by which they are universally known, form the highest court in the land; and they understand that the Law Lords are completely and fearlessly independent of governmentof any government of whatever colour. I therefore cannot accept that public understanding would be improved by moving the Law Lords from here to the Guildhall and calling them a Supreme Court.
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