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Lord Tordoff: My Lords, I know that the noble and learned Lord has not had too much opportunity to intervene in these debates before, but we are going over and over old ground. I know that noble and learned Lords feel very strongly about this, as do noble Lords on all sides of the House. But we have now spent 25 minutes on this amendment. This is Third Reading. As was pointed out at the beginning, the purpose of Third Reading is not to go into the basic substance of the Bill. The question of whether it is proper to strike out so many clauses at all is debatable.
Matters about the windows in the Guildhall, the lifts in this House and so on are not Third Reading points. If we could move to accepting that there is firm opposition in principle to this suggestion, perhaps we may get away from some of the detail that has been dealt with many times beforein Select Committee, in Committee and on Report. It must be remembered that these clauses were all stand-part debates in Committee.
Lord Nicholls of Birkenhead: My Lords, I am grateful for that reminder, but I shall move on now to a question that is at the heart of the amendment; that is, the much-debated question of the separation of powers. Contrary to what has been said, there is no ground for thinking the present arrangements carry a risk that decisions of the Law Lords may be impeachable in Strasbourg as a violation of the European Convention on Human Rights.
True, such a breach might occur if a Law Lord were to be involved actively in some material way in the legislative process and then proceed to hear an appeal raising a question on the same legislation. But, like all judges, the Law Lords are well aware of the need to be circumspect in their extra-judicial activities. Mention has been made of a recent occasion when a Law Lord recused himself from sitting because of views that he had expressed in a lecture. But that has nothing to do with membership of this House. The position would be the same with any judge who had given such a lecture. That is a non-point.
Nor is there a question of the Law Lords lacking what has been called "institutional" independence. The conventions of your Lordships' House guarantee
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as effectively as any statute that only the Law Lords participate in the judicial business of the House. That is another non-point.
What does remain of this "separation of powers" question is concern that the Law Lords' undoubted independence is not sufficiently obvious. The position is not sufficiently transparent because the Law Lords when discharging the judicial functions of the House are known to the outside world simply as "the House of Lords". That is confusing, it is said; the more so because the Law Lords actually sit to hear appeals within the Palace of Westminster.
This point calls for serious consideration. If there were substance in it, it would be important. As every lawyer knows, appearances matter. But where the argument falls down is that there really is no ground for thinking that this suggested public misconception actually exists. Last Thursday, nine Lords of Appeal announced their decision in this Chamber in the cases concerning the detention of suspected terrorists. Nothing I have seen or read in the media reports of that House of Lords judgment suggests that anyone misunderstood the position. So far as I know, there was total clarity that the decision was that of the judges known as Law Lords, and they are so known because they sit in the House of Lords at the apex of our judicial system.
Even so, if the proposed abolition of the Law Lords had no disadvantages, something might be said for making the change on the basis that something might be gained and there is little or nothing to lose. But there is something to lose, something of importance in our constitutional arrangements. I believe that the Law Lords gain from being here and that they would be the poorer. Observations made by many of your Lordships suggest that if we go, the House would be the poorer, and the judicial reputation of this country's court of final appeal long known and respected as the House of Lords would suffer because that reputation would not pass seamlessly to a newly created body.
Let me put it this way. If all the Members of your Lordships' House were expelled from here tomorrow and given the same job to do, but under a different name and in a different placesomewhere along Millbank, saywould the public perception be the same? I doubt it. The new body would have to build up its own reputation as the Millbank Senate or whatever.
At the end, your Lordships have to weigh up the different factors: the lack of any real advantage in making the change; the presence of intangible but real disadvantage; the fact that by common accord the present system works; the substantial expense, initial and continuing, of the proposed change; and the absence of any really suitable building. Put all those together and I suggest that the answer to the question before the House is clear.
Lord Woolf: My Lords, when this Bill is compared with the version introduced into the House, there are vast improvements. The judiciary are grateful to the House for making those improvements. However, even in its original form, the judiciary were supportive of the Bill
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I emphasise these wordsas a package of reforms that would significantly improve the protection provided for their independence. Naturally, and particularly in view of the improvements, the judiciary will be deeply disappointed if the Bill does not now reach the statute book.
We are conscious that although the Bill might be reintroduced after the election, there is no certainty that any new version would provide an equally satisfactory balance between our long-term traditions and the need, because society does not stand still, for evolutionary reform.
As I took part in earlier stages of the Bill, I hesitated over whether I should take part on Third Reading, but in my previous addresses to the House I was doing so in my capacity as chairman of the Judges' Council. Although the council approved the package of reforms which included the Supreme Court reforms, it knew, as indicated by my noble and learned friend just a few moments ago, that the Law Lords themselves were split on the advantages of the Supreme Court. I thought, therefore, that as I had myself changed my view from being, so to speak, weakly against the idea of a Supreme Court into being in favour of such a court, it might assist your Lordships to know what has caused me personally to alter my view.
The situation so far as I am concerned is that the Law Lords are split. That is a factor which is very indicative of what the situation should be. I had the advantage of hearing my noble and learned friend Lord Nicholls speak on a previous occasion in very much the same terms as he has today. I also heard my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry, and I have to say that I was influenced by their words. But I have had to bear in mind that there are Law Lords who would not think it right to get involved in any way in the debate that is taking place, and so we have not heard from them.
Equally, there are Law Lords like myself who feel that it is wrong to vote in a debate. Now only a very small minority of the Law Lords think it appropriate for a Law Lord ever to vote on a Division in this House, and when they do vote, unfortunate consequences can arise because of the impression made outside this place.
I can remember a time, I think about nine years ago, when the Law Lords considered moving from this House to occupy what was undoubtedly a prestigious building in Chancery Lane, the then empty Public Records Office. Some of the most senior Law Lords and myself went to inspect the building, and we thought that there would be very real advantages in making the movefor only one reason, that of the improved accommodation. But at the time, because the Law Lords were split, that proposition was taken no further. There was no question at that point of the Law Lords considering there was anything wrong or inappropriate about a Law Lord taking part in a debate or voting. But in the nine years that have
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elapsed, the focus of the issue has changed. Now the focus concerns the discomfort of some Law Lords about being situated inside this House.
With the greatest respect to what has just been said so eloquently by my noble and learned friend Lord Nicholls, it is right that problems can arise. I am very conscious that one of the matters scheduled to come before the courts next term is whether Parliament has complied with the Parliament Act in passing the legislation to ban hunting. That issue goes to the heart of the powers of the legislature. For obvious reasons, I am not going to say anything about the merits of the issue, but there will be court proceedings relating to it unless the present proceedings are withdrawn.
A few years back, litigation of that kind would simply never have been anticipated. Now it is a reality, and when we consider the question of perceptions, it is not the perception of those members of the public who understand our legal system that we are concerned with, but that of the ordinary man and woman in the street. If they hear that an issue of the kind I have just referred to is to be adjudicated upon in this House, by Members of this House, will they have reservations about the impartiality of the body that has to determine those issuesassuming that they have sufficient merit to justify being adjudicated upon? That concerns me very much indeed.
The other matter that concerns me is that if we have six of the 12 Law Lords unhappy at being in this House and in favour of the Supreme Court now, how many more of the Law Lords will take that view in a few years' time? I am in exactly the same position as my noble and learned friend Lord Nicholls. Any decision of this House will not affect my ability to take partif I am invited to do soas a Law Lord in the considerations of the Appellate Committee.
The issues that I have indicated do worry me. They have caused me to come to the conclusion that we should take advantage of this opportunitywhich may not arise againof finding a government who are willing to pay for a new Supreme Court. I have to confess that my experience of getting the Government to pay for courts has not always been successful, but at least on this occasion they are determined to do their best. We may not, to our regret, have another opportunity such as this for a long time. I urge your Lordships to vote in favour of the Supreme Court.
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