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Lord Kingsland: My Lords, I have had the opportunity on a number of occasions to speak on this matter in your Lordships' House. As far as concerns Amendment No. 14, I have nothing to add to the outstanding speeches of the noble and learned Lords, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead and Lord Slynn of Hadley. I rise only to say something about the amendment in the names of my noble and learned friend Lord Howe of Aberavon and myself. It is in the next group but it is wholly relevant to the subject matter of your Lordships' speeches today.
I had hoped that that my noble and learned friend Lord Howe of Aberavon would be with us this afternoon. He has been receiving an honorary degree from the University of Glamorgan. The noble Baroness, Lady Howe, has assured me that he is, at this moment, on the motorway with his foot hard down on the accelerator, hoping to get here in time to add his voice to what I am about to say. But he is, as your Lordships can see, not with us at the moment. So I shall, in a minute and a half, briefly remind your Lordships of what my noble and learned friend Lord Howe said on Report.
The amendment tabled by my noble and learned friend Lord Howe and myself essentially represents a halfway house between the amendment tabled by the noble and learned Lord, Lord Lloyd, and the position taken by the noble and learned Lord the Lord Chancellor.
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What is the mischief against which the noble and learned Lord the Lord Chancellor directs Part 2 of the Bill? Apart from the noble and learned Lord's wholly misplaced obsession with the doctrine of separation of powers, the noble and learned Lord's main concern has been with the potential confusion between the role of your Lordships' House as a legislature and its role as a court. So far as I can discern, however, there is no evidence, of any cogency whatever, to justify that confusion.
Indeed, when some of your Lordships sought in the Select Committee hearings to get the Government to undertake some research and public opinion sampling to see whether or not in reality the confusion existed, the Government were extremely reluctant to do so. Nevertheless, so as to make the matter clear beyond peradventure, my noble and learned friend Lord Howe of Aberavon has tabled an amendment that accepts that the final court of appeal, in future, should be called the Supreme Court but that it should continue to sit in the Palace of Westminster, with its own entrance—perhaps the existing entrance, known as Black Rod's entrance.
My noble and learned friend's proposals would have the double advantage of providing a Supreme Court at minimal cost and at the same time allowing it to continue to operate in a building of unimpeachable quality and excellence. In addition, the amendment would foresee the judges in the Supreme Court continuing to be life Peers, not Lords of Appeal in Ordinary, sitting not in the Chamber of your Lordships' House to give their judgments but in one of the Committee Rooms of your Lordships' House.
In the view of my noble and learned friend and myself, that would alleviate the concerns that the noble and learned Lord the Lord Chancellor has about the confusion that might be caused, whether or not those concerns were justified, and at the same time preserve the essential traditions of the Appellate Committee of your Lordships' House, which has served this country so well.
Lord Falconer of Thoroton: My Lords, we have debated this matter now for many months, and the time has come to deal with the principle of whether or not we should have a Supreme Court. The arguments are well known and I do not intend to rehearse them. It is the position of the Government, the Liberal Democrats, the senior Law Lords and the noble and learned Lord the Lord Chief Justice, and I suspect it is the position of quite a number of noble Lords on the Conservative Benches, too, that the time has come for there to be a court that is separate from the House of Lords.
Those of us who were members of the Select Committee that this House sensibly set up to consider the matter were treated to a debate between the noble and learned Lords, Lord Bingham and Lord Nicholls, as to the merits or demerits of having a Supreme Court.
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They both came and gave evidence together. We have heard only from the noble and learned Lord, Lord Nicholls, today, because the noble and learned Lord, Lord Bingham, takes the view that he should not speak in relation to those issues. Those of us who heard the noble and learned Lord, Lord Bingham, give evidence on that occasion found his evidence extremely powerful.
Today, added to that, has been the voice of the noble and learned Lord the Lord Chief Justice, who makes the point—a point not made before—that half of the Law Lords now feel uneasy about being Members of this House and sitting in this House as a court. He also makes the point that, if it is half of them now, how many more will it be as time goes on?
I would invite noble Lords to listen carefully to what has been said, to weigh up the merits of the argument and to come to the conclusion that the time has come for the separation to occur, not because of any slavish adherence to the doctrine of the separation of powers but because the idea of having a court separate from the legislature is the way in which every other modern democracy has gone. It is the way that leads to people seeing with great clarity what the true position is.
I quote Mr Walter Bagehot on the matter; he said:
"I do not reckon the judicial function of the House of Lords as one of its true subsidiary functions, first because it does not in fact exercise it, next because I wish to see it in appearance deprived of it. The supreme court of the English people ought to be a great conspicuous tribunal, ought to rule all other courts, ought to have no competitor, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly".
The time has come to give effect to that quote.
I turn to two other matters. First, on the accommodation issue, no one disputes that Middlesex Guildhall is able to provide the accommodation that the Law Lords, in the committee chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, said that it needed. The noble and learned Lord expressed the view that he did not think that it was quite appropriate as a Supreme Court. That is an aesthetic judgment that we are all able to make. However, I quote what other noble and learned Lords, who for obvious reasons have not spoken in the debate, have said. The noble and learned Lord Hobhouse, said:
"Major needs: 1) move to new premises nearer to the RCJ and the Inns and their facilities, 2) have a building sufficient to house us properly and our staff and the facilities which we need".
The noble and learned Lord, Lord Millett, said:
"My reason for favouring the creation of a new court is entirely practical and pragmatic. The fact is that this House can no longer provide the accommodation, resources and facilities which a properly serviced Supreme Court requires".—[Official Report, 12/2/04; col. 1293.]
The noble and learned Lord, Lord Bingham, said:
"I doubt if any supreme court anywhere in the developed world is as cramped as our own. This is not the product of spite or malevolence or public parsimony. It is the result of an acute shortage of space available to the House of Lords in the Palace of Westminster and a wholly understandable precedence given by the House authorities to those who manage and work in the legislative chamber".
Lord Carlisle of Bucklow: My Lords, having heard the noble and learned Lord, Lord Bingham, speak at that committee, and having read the various recommendations that he put to it, does the noble and learned Lord the Lord Chancellor not accept, and should he not make it clear, that the noble and learned Lord, Lord Bingham, was totally opposed to using the Middlesex Guildhall?
Lord Falconer of Thoroton: My Lords, I would not accept that he was totally opposed to using the Middlesex Guildhall. I have discussed with the noble and learned Lord, Lord Bingham, his position, and he has reservations about the Middlesex Guildhall, but he is prepared to talk them through and see whether changes can be made. So I strenuously dispute what the noble Lord is saying in that regard.
Lord Lloyd of Berwick: My Lords, with respect, that is simply not right. The noble and learned Lord the Lord Chancellor will perfectly well remember document no. 93, which was created by the noble and learned Lord, Lord Bingham, and had the support of all the Law Lords, in which they said that the Middlesex Guildhall would never be the right building.
Lord Falconer of Thoroton: My Lords, I have spoken to the noble and learned Lords, Lord Bingham and Lord Nicholls of Birkenhead. I make it clear that they have reservations about the building, but the noble and learned Lord, Lord Bingham, does not take the position of saying that it could never be a Supreme Court.
I turn to the comments of the noble Lord, Lord Kingsland, on the matter of the Supreme Court building. He suggests that we keep the Supreme Court in the House of Lords, and refers to the speech made by the noble and learned Lord, Lord Howe of Aberavon, on the last occasion that we debated this matter. He suggested, too, that it should have Black Rod's entrance as its own separate entrance and that the offices and residence of the Lord Chancellor could be used for the purpose. There are 301 square metres in that part of the building, while the requirements agreed with the Law Lords were that 2,932 square metres were needed. So the idea that it would be possible to make a separate Supreme Court out of that part of the building is, with the greatest respect, not feasible or sensible.
I respectfully invite the House not to accept the amendment tabled by the noble and learned Lord, Lord Howe of Aberavon. It would involve calling the House of Lords Appellate Committee the Supreme Court; it would have to sit in the House of Lords and have as its members Members of this House; and it would get no greater accommodation than it has already. Perhaps a separate entrance could be opened in Black Rod's Garden—but with the greatest respect, that does not involve making the change required to set up a Supreme Court.
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5 p.m.
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