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The point is that employers take on one part of the state GMP liability and, under the scheme, they are remunerated on an actuarial basis, not on a basis that suits the Government from time to time. Of course, employers are making these decisions about whether they are contracted in or contracted out not on a quinquennial basis but on a much longer-term basis. The truth is that the Government are using the rebate as yet another stealth tax, because it is one of those things that they can get away with—extracting more money from employers without appearing to take it overtly.

We are not at all convinced by this. It is a very big issue, which we shall need to look at again at some stage. I shall not take it forward this evening, but the Minister should be in no doubt that we are far from convinced that the Government are correct in their approach and that they are acting honourably in relation to those schemes that have been contracted out. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Morgan of Drefelin: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.30 pm.

Moved accordingly, and, on Question, Motion agreed to.

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Supreme Court

7.29 pm

Lord Lloyd of Berwick asked Her Majesty’s Government what progress they are making in moving the Supreme Court to the Middlesex Guildhall.

The noble and learned Lord said: My Lords, your Lordships will have noticed that the noble Baroness, Lady Ashton, was due to reply to this short debate, but since she has been called to higher things, I am very pleased that her place has been taken by the noble Lord, Lord Hunt of Kings Heath.

It is not my purpose to go over old ground tonight. In the short time available I shall concentrate on one single issue. For better or worse, Parliament has decided that we should have a Supreme Court. I accept that decision although I did not, and do not, agree with it. Parliament has also decided that the present Law Lords, who will be the first members of the Supreme Court, should no longer be entitled to take part in legislative business of this House. I accept that decision too, although again I do not agree with it. What I do not accept, and what I ask the House to consider tonight, is whether in order to achieve those two ends, whether laudable or not, it is necessary to move the new Supreme Court into the Middlesex Guildhall. That is the question I raise.

The principal reason for doing so is that it would symbolise,

That is a direct quotation from the most recent Written Statement dated 14 June this year. The second reason given is that it would breathe new life into a fine historic building. I am all for cleaning up the Middlesex Guildhall, which has been allowed to become disgracefully drab and dingy both inside and out, due no doubt to a shortage of money, but when that task has been completed I see no reason at all why the Crown Courts should not return to the Guildhall where they have been for the past 100 years.

I come now to what it will all cost. We did not have the full costs when we debated these matters in 2005, but now that the contract has been let we are told that the total cost of setting up the Supreme Court in the Guildhall will be £57 million. However, the Ministry of Justice does not have £57 million to hand, so most of that cost will be met on what I might call the “never never” system. Thus the contractor’s costs of £36 million will be met by leasing the Guildhall to the contractor and then entering into a sub-lease under which the Ministry of Justice will pay rent of £2.1 million a year for 30 years, increasing at a rate of 2.5 per cent per annum.

That may seem an odd set-up for our prestigious new Supreme Court, but there it is. However, it is not the end of it. The great bulk of the £2.1 million which will be required annually will be met not out of the existing resources of the Ministry of Justice but by increasing the fees payable by civil litigants in the lower courts. That cannot be right. Why should

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litigants in the lower courts pay for the new Supreme Court? Of what conceivable interest is it to them?

Looking at costs the other way round, the cost of servicing the Law Lords where they are at present is very modest indeed. The additional cost of moving them to the Guildhall was estimated in 2004 at £5.2 million a year. It is now estimated at £9.7 million a year—nearly double, and far in excess of the current cost.

So far I have mentioned only the cost of setting up the Supreme Court in the Guildhall, but there is also the cost of creating seven new courtrooms to replace those which were used daily in the Guildhall until March this year. The plan was to create seven new courtrooms somewhere in the centre of London. That is where they are needed, especially since Knightsbridge Crown Court no longer exists. As I understood it, that was the plan in 2005, but it is now proposed to build five new courts at Isleworth—six new courts less one old court which has to be demolished—at a cost of £18.2 million. However, Isleworth is nowhere near the centre of London and is not where new courts are needed. The total cost of this whole unnecessary operation will be £75 million—£57 million plus £18 million—and all to symbolise, as we have been told, the physical separation of the Supreme Court from the legislature. I emphasise the word “symbolise”.

These are very large sums of money, and no doubt they will be a great deal larger by the time the final bill is paid, for any good that will ensue. However, they must also be looked at in the context of the economies that are currently being forced on the Courts Service—economies which I believe are unprecedented. On the previous occasion that we discussed these matters, the noble Viscount, Lord Bledisloe, mentioned that magistrates face cuts of 3.5 per cent in each of the next three years. However, that is only the tip of the iceberg. The Courts Service as a whole has suffered a cut of 5.4 or 5.6 per cent in the current year. No doubt that cut will be even greater next year when the Ministry of Justice has to find money for prisons as well as funding the black hole in legal aid.

In the face of these severe and painful cuts, what must ordinary people who work in the Courts Service think when they read that £75 million is being spent on moving the Law Lords to the Guildhall, where, incidentally, they will perform exactly the same function as they do in the Palace of Westminster? They will surely regard it as a complete waste of public money which could be much better spent elsewhere. What is to be done? As we all know, the Ministry of Justice is under new management. I hope that it will be less concerned with symbolism and more concerned with value for money.

The Government could have the Supreme Court they want, exactly as they want it, tomorrow if only they would abandon the idea of moving it to the Guildhall. It would require only a very simple amendment to Section 148 of the Constitutional Reform Act, and Part 3 creating the Supreme Court could be brought into force now instead of having to wait until October 2009. Surely that would be symbolism enough. It is not too late for the Ministry

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of Justice to take that course and I urge it to do so. If we are serious about value for money, it is the only sensible course. Then, when the necessary refurbishment of the Guildhall is complete, at comparatively little cost, the Crown Courts could return to the Guildhall where they belong and the Law Lords could remain as the new Supreme Court where they are—here in the Palace of Westminster.

7.38 pm

Lord Howe of Aberavon: My Lords, I am delighted to have the opportunity to follow the noble and learned Lord’s presentation of this case and to make the point that, quite apart from the extravagance involved, which he described so well, the more one looks at it, the more one realises that the theoretical purpose underlying this change has no foundation whatever and that the consequences of it will be damaging to the independence of the Supreme Court, when the opposite was the objective of the exercise.

The concept of the separation of powers, from which all this started, does not recognise that the real power which needs to be separated from the others is that of the Executive. For the most part the judiciary and the legislature work in a close partnership. The legislature is, of course, acknowledged to have the supremacy—the judiciary acknowledges that—but the judiciary has its own independence. As I say, they work in partnership. The trouble comes when the Executive’s influence is extended in either direction.

For example, one thinks about the change in the method of appointing judges to the High Court. Although it embraces one solid and sensible thing; namely, the establishment of an Appointments Commission and machinery of that kind, the ultimate political authority over it—there has to be some; it is there in the statute—has passed from the Lord Chancellor, whom we now see is becoming symbolic in name rather like the Chancellor of the Duchy of Lancaster, to a non-lawyer outside this House. That, if anything, diminishes the fraternity between the head of the judicial system, supervising the old system of appointment, and replaces it by a politically accountable authority. There is no sense in that. It is not only in that respect that the change is being made. If one looks at the financing as well, that has much the same effect.

I digress for a second because I detect a similar lack of respect for the values of integrity and independence in the decisions being taken about the Attorney-General. The decision that the Attorney-General is no longer to determine whether prosecutions should be brought puts that in the hands of a perfectly respectable but non-accountable official within the Civil Service system—or several of them. The Attorney-General is no longer a Member of the Commons and no longer going to accept this responsibility, and moreover, if symbolism is relevant, in the days long ago when I was a law officer myself, the Law Officers Department, although small in numbers, was a department lodged in the Royal Courts of Justice, manifestly linked to the judicial arm of the constitution. Now its name has changed—it is now the Attorney-General’s Office. It

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sits alongside Scotland Yard. All the efforts made in other jurisdictions to separate the police court from the police station are being taken in the wrong direction by the transformation of the Law Officers Department—a body with some sounding authority—into the Attorney-General’s Office next to Scotland Yard. It is a symbol of the way in which these things are being allowed to go in the wrong direction.

As the noble and learned Lord has pointed out, the expense is enormous and is already ravaging the budgets of the court system and doing nothing to improve the performance of the Supreme Court. If one looks at the way in which our present Supreme Court is financed, so far as I can discover its total budget, apart from the judicial salaries, administered as it is by this House, is about £200,000. It has been administered well, within that framework, for a very long time. Moreover, Resource Accounts for 2005-06 says:

I know that for myself because, when I first went to the Treasury, I tried to impose cash limits on this House and was rebuffed by the noble Lord, Lord Barnett. Then when I was wearing the other hat, as Leader of the House, I was able to rebuff a similar onslaught by the then Chancellor, Sir John Major as he now is.

We have sacrificed independence of the Executive, both in financing and in the overall appointment of members of the Supreme Court, when we need have done none of those things and could well have remained—even under the legislation—as the noble and learned Lord has said, with the Supreme Court still functioning in this building with a separate, independent entrance. It is a case that I argued when we were looking at the so-called Constitutional Reform Bill. Why not have a separate entrance with as much aggrandisement as you like? You could have a very splendid special entrance for a good deal less than £50 million and the Supreme Court would remain functioning, manifestly and symbolically independent of this House. That would do at least something to mitigate the damage in the substance of the relationship, which I have tried to describe.

7.44 pm

Lord Goodhart: My Lords, the noble and learned Lord, Lord Lloyd of Berwick, has returned us to an important issue. As I expected, his purpose is not just to get the information requested by his Question, which could have been obtained by tabling a Question for Written Answer, but to suggest that the Supreme Court should remain in the Palace of Westminster. I thought he might go further and suggest that the Supreme Court should not be brought into existence at all, but he has gone only half way there.

The noble and learned Lord and I have been involved in many debates in your Lordships’ House. He and I, on many of these issues—for example, terrorism—are comrades in arms. On others, and I am afraid this is one, we find ourselves as opponents.

I have always thought that it was absurd that the highest court in the land was technically a committee

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of your Lordships’ House. That issue is not being raised again today, though perhaps we have come close to it. But the noble and learned Lord says that he accepts that decision. To keep the Supreme Court in the Palace of Westminster would be an entirely unsatisfactory halfway house. So long as the Supreme Court is perching in the Palace of Westminster, it will be seen as part of your Lordships’ House. It will still use perhaps a Committee Room, perhaps the Lord Chancellor’s old Room—certainly something that is a traditional part of the Palace of Westminster—for its hearings.

It will still have offices in the Palace of Westminster, or in one of the adjoining buildings in Millbank or elsewhere that belong to the House of Lords. It will still, in that capacity, be seen as an offshoot of your Lordships’ House. But future justices of the Supreme Court, under the Constitutional Reform Act, will not be Members of your Lordships’ House. They will not have a right to sit in this Chamber or to speak here, though no doubt they will have the right to use the refreshment facilities. They will in effect be strangers in their own building, and I do not believe you can have a Supreme Court with the proper authority that it should have if it has no building of its own, no courtrooms and no proper facilities for the judges.

Let me look briefly at the question of the conversion of the Middlesex Guildhall. The location is ideal—it is in the heart of the historic centre of government. The building is not ideal—I am not an admirer of it as a piece of architecture. Its neo-Gothic style was already out of date when it was built in 1911. It was built for a local authority, Middlesex County Council. Only later did it become a court, so already it has had one fundamental change of use. The internal fittings, while interesting, are not of great merit. But I think it is capable of conversion into something that would be a more than adequate home for the Supreme Court.

It is certainly much better than what the Law Lords have now. The Committee Room, as a court, has very little space for observers or indeed for lawyers. The Law Lords themselves have tiny rooms on the second floor. The refurbishment of the Middlesex Guildhall and providing accommodation for the courts displaced by its transfer to the Supreme Court will indeed cost money—quite substantial money. But is this country so poor that we cannot provide proper accommodation for our Supreme Court? Surely we do not want a Supreme Court stuck in an archaic rut in the Palace of Westminster. The Supreme Court needs to be a proper Supreme Court, with its own building, not an adjunct of your Lordships’ House, and of course the Supreme Court needs to be properly housed and with the proper facilities, which I believe it will get in the Middlesex Guildhall.

7.48 pm

Lord Norton of Louth: My Lords, I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for raising this Question. I wish to raise two concerns relating to the relationship of the courts to the citizen, and the relationship of the courts to the Executive.

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When the Constitutional Reform Bill was going through your Lordships’ House, the Government justified the need for a new Supreme Court on the grounds that the citizen could not distinguish between the House of Lords in its judicial capacity and the House of Lords in its legislative capacity. The justification was to do with perception, not with the delivery of justice. However, when I asked for empirical evidence to support the Government’s claim, none was forthcoming. As I argued at the time, we thus proceeded on the Government’s perception of the views of the ordinary citizen—in other words, the perception of a perception.

Given the extent to which the Government are prepared to rely on popular perception, perhaps the Minister could tell us what he thinks popular perception will be of the cost of the delivery of justice once the new building is complete. I refer not only to the £57 million set-up costs but also to the running costs. Can he confirm the point made by the noble and learned Lord, Lord Lloyd of Berwick, that the running costs will be met from fees paid by litigants? I am not so much concerned with the actual amounts involved, but simply with the principle and how this will be viewed by the public.

I turn to the relationship between the courts and the Executive. Moving the Law Lords across Parliament Square may be a relatively easy move in a physical sense but it is a potentially damaging one politically. Recent years have seen a notable clash between the Executive and the courts. Successive Home Secretaries have attacked court judgements. Following the Belmarsh case, Jack Straw claimed that the Law Lords were “simply wrong” to imply that detainees were being held arbitrarily. Even Prime Minister Tony Blair involved himself, declaring in August 2005 that,

The extent of Ministers’ attacks led the Lord Chief Justice to defend the judges, stressing that they were doing their job of applying the law and enforcing the rule of law. As he told the Constitution Committee of this House,

The relationship between the Executive and the courts has become increasingly strained. My fear is that moving the Law Lords out of the Palace of Westminster will leave them much more isolated. Having them within this House provides some degree of protection. Members of your Lordships’ House have some appreciation of the role and significance of the Appellate Committee. The Law Lords gain some understanding of the parliamentary process, which is important in allowing some margin of appreciation for that process. Being within your Lordships’ House provides something of a protective shield against the Executive. Once the Law Lords move across Parliament Square, they become isolated. Over time, this House will have less awareness of who they are and what they do. They will potentially be out on a much greater limb politically than is presently the case. Given the tensions between the Executive and the judiciary, this is arguably the worst time to be making such a move.

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And why make such a move? It is, as I say, because of perceptions. If everything is in the name, why not, as the noble and learned Lord said, confine the change to one of name alone? Why does the Supreme Court have to exist outside the Palace of Westminster? I note, in response to the noble Lord, Lord Goodhart, that we would not be the first western country in history to have a supreme court sitting in the same building as the legislature. Leaving the Law Lords where they are, but changing the name of the court, would deal with the problems of perception, cost and political isolation. Given that, would there not be a case for leaving the Middlesex Guildhall as it is and leaving the Law Lords where they are?

7.53 pm

Lord Hope of Craighead: My Lords, I thought it appropriate that one of those who is to work in the building that we are discussing should contribute to this debate. My qualification for doing so is that for the past three years I have been chairman of a Law Lords’ sub-committee, of which the other members are my noble and learned friends Lady Hale of Richmond and Lord Mance. We have been working with civil servants on the implementation programme team on the plans for the building and on a large variety of other matters that need to be attended to in connection with the creation of the new court.

As I am sure your Lordships will appreciate, this is a very detailed and time-consuming exercise. We have monthly committee meetings with the programme team. Each of us, as well as a number of other Law Lords, has individual tasks which are required to be dealt with separately. I pay tribute to the contributions that all my colleagues are making to this work and especially to the Principal Clerk in the Judicial Office, who bears an even greater burden and contributes many hours of his own time to the enterprise.

We are, of course, wholly committed to the project which has been set before us. Our main aim in the short term is to achieve a transfer of the business of the House’s Appellate Committee to the new court as seamlessly as possible. But we are determined also to ensure that the new court will be accommodated and resourced in a manner that fits its status as the country’s Supreme Court.

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