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In welcoming the Minister to his new responsibilities, I confess that I feel a bit like a baby who, having been abandoned in his pram by one parent, has found another. The noble and learned Lord, Lord Falconer of Thoroton, whose project this truly was, after all, has left us. He was deeply interested in its success and his door was always open when there were problems that needed to be discussed at his level—as indeed there were from time to time. I hope that this will continue to be the case with the Minister and the Lord Chancellor in another place. The project is not without its problems. We need your help and your support.

There are three problems in particular that I should mention. The first relates to timetable. The plan is that the Supreme Court should commence its operations on 1 October 2009, but the timetable is already very

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tight and there may be delays. I wish to stress that we cannot be expected to move into a building that is not yet fit for purpose—that is not proper, as the noble Lord, Lord Goodhart, mentioned, for a supreme court, and that is incomplete. There must be no short cuts and no undue pressure just to meet the timetable. I stress that this is not to suit our own wishes. It is essential if we are to give the public the service that they require.

The second point relates to staff; it is the other side of the coin referred to by the noble Lord, Lord Goodhart. The key to a seamless and successful transfer lies in our staff’s experience and in their commitment and loyalty to the project. But the implications for them of transferring to the Civil Service from employment here in the Palace of Westminster are very serious. That subject has not been addressed in this House so far as I can recall. The new court will be a tiny enterprise in the context of the Ministry of Justice as a whole, and unless some weighting is given in recognition of the court’s importance in matters such as grading, this will have adverse consequences. The grading which our staff will receive under current Civil Service rules is well below the equivalent in this building. This means a standstill on salary increases for several years for those who choose to move. The conditions of service, too, are much less attractive. I am not convinced that enough has been done to address this problem. We may need some political muscle to address it.

The third matter relates to finance, the point raised by the noble and learned Lord, Lord Howe of Aberavon. The funding arrangements for the new court are novel and complex and, in important respects, are still unknown. There is no doubt that the court’s removal from the protective umbrella of Parliament will expose it to the risk of undue pressure on its funding, and on its resources generally, by the Executive. The Executive will have to bear part—perhaps a substantial part—of the running costs, due to the nature of the business that we conduct. This is not a criticism of the present Government, but we cannot predict the future. Safeguards absent from the Act must be put in place. Progress cannot be made until the identities are known of the first President of the Court and of the chief executive. I hope that the Minister can give us his assurance that this vital matter will receive his attention, and that of the Lord Chancellor, in discussion with those individuals once that stage is reached.

7.59 pm

Lord Thomas of Gresford: My Lords, it is my privilege from these Benches also to welcome the noble Lord, Lord Hunt, to his new position. I am sure that we shall be in discussion on many issues. I have always been impressed by his grasp of whatever brief he has taken up, and I am particularly impressed by the principles he courageously displayed in taking an adverse position to that of the Government at a later date. We have a real champion there; I am sure that he will fulfil some of the aspirations of the noble and learned Lord, Lord Hope, in terms of fighting for funds and so on.

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The noble Lord, Lord Norton, referred to the increasing conflict between the Executive and the courts; he said that relations were increasingly strained. I agree. The tension has increased for two reasons. First, there have been unprecedented attacks on the judiciary by Ministers—one has only to think of some of the comments aimed at decisions of judges. Those comments were ill informed and would in a previous age have been regarded as outrageous. The second cause of strain is from the increasing use of judicial review, which has required the Executive to have to explain themselves and their decisions to judges. Adverse decisions by those judges always seem to be taken very hard by the Ministers concerned.

The noble Lord, Lord Norton, thought that a move to the new building across the road would make the court more isolated. I should prefer to say that it will make it more independent. It will be seen to be much more independent of the Executive than if we continued with the arrangements in this House. That independence has been demonstrated in ways that I applaud. The noble and learned Lord, Lord Howe, does not applaud them but I think that it is very good to have the appointments of judges taken away from politicians and the Lord Chancellor, who had a political role, and put in the hands of a commission. I was pleased that the Prime Minister announced yesterday that any remaining link with political appointments will be removed. I also welcome yesterday’s Statement about the position of the Attorney-General. It is wrong to regard the Attorney-General’s role as it has been exhibited in recent years at least as the final apotheosis of that position. In recent years, the essential conflict between a person who advises the Government and acts independently in the public interest has been only too clearly demonstrated. I am glad that independence of the judiciary and the legal system are on the agenda.

It is said that it is only a question of perceptions—that it is symbolic—to move across the road. One of the fine buildings in Washington is the Supreme Court; that symbolises the importance of the judiciary. In Australia, the High Court is in a wonderful modern building that demonstrates its independence of the Executive in a very real way. Those are federal systems. It is significant that the Supreme Court will take over devolution issues from the Judicial Committee of the Privy Council. In dealing with devolution issues, there may well be conflicts between the Welsh Assembly, the Scottish Parliament, the Northern Ireland Assembly and this Parliament in Westminster. It is surely appropriate that conflicts of that nature should be decided in a completely different building that symbolises independence.

I disagree with the method of funding in the Government’s proposals. It is astonishing that civil litigants are required to pay through increased fees for such a building. What has the ordinary run of civil litigation got to do with the numerous cases that come before the House of Lords? Civil cases must be a fairly small percentage; I would only be guessing if I gave a figure. So much of the business of the Judicial Committee—devolution issues, issues concerning criminal matters and so on—are nothing to do with civil litigation, yet the system is apparently designed so that it is paid for in that way.

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We have heard of the practical problems from the noble and learned Lord, Lord Hope, and we know that there is a long way to go before the building is complete. I look forward to it and I hope that we have a building of which we are proud, and a building of which we are as proud as we are of our independent judiciary and of the Lords of Appeal, who are the apotheosis of that system.

8.05 pm

Baroness Seccombe: My Lords, it is my pleasure to welcome the noble Lord, Lord Hunt, to his new position. He comes from an area in which he had huge expertise. I wish him well as he accepts this new challenge.

I thank the noble and learned Lord, Lord Lloyd of Berwick, for bringing this issue before us. I am sure that some noble Lords will understand it if I do so with the greatest sadness. Whenever I hear the noble and learned Lord—or the noble and learned Lord, Lord Hope of Craighead—I am struck by how very much this House will lose when it loses the wisdom of the Law Lords and former Law Lords, as the creators of this unnecessary court want. I hope that retired Law Lords will still come here after they have left the Supreme Court but they must all come or none must come. We cannot have just some selected; otherwise, the taint of political inducement or favouritism would touch an institution that is beyond reproach. What is government policy on peerages for former Law Lords?

We are to have the Supreme Court, so the builders are moving in. A wonderful courthouse is about to be dismembered at great expense—£57 million, as we have heard. Did no one appreciate that we already have a Supreme Court and that it operates effectively within this place and could continue to do so? Any perceived conflict is resolved by the practice of Law Lords not entering into debate on controversial topics and not sitting in relation to areas in which they had expressed a view—a view formalised by the Bingham declaration.

To rip the Law Lords and the Lord Chancellor out of this place on a whim, as Mr Blair so deplorably did, with eager support from those selfsame Liberal Democrats who now prate about concern for judicial independence, was a folly. It was opposed by at least half of the Law Lords, much of the senior judiciary and, to his lasting credit, the noble and learned Lord, Lord Irvine of Lairg, the former Lord Chancellor.

It is no offence to the noble Lord, Lord Hunt, if I say how sad it is that there is no Lord Chancellor, graced with all the immense legal authority and influence that that office used to command, to respond to this debate. Many noble Lords would once have found that unbelievable. A fine old mess we now find ourselves in, as the noble and learned Lord, Lord Lloyd of Berwick, has shown, with the costs of what will become known as Falconer Towers soaring.

The Supreme Court was conceived in haste and some are now, it seems, repenting at leisure. Many will remember the then Lord Chief Justice coming to this House and telling us that he was fully satisfied with the so-called concordat that would protect judicial

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independence in the new framework set up by the Constitutional Reform Act. Some now find it predictable that the court came into being with fears and doubts about judicial independence and funding in future.

Mr Straw is a measured man but he will not be there for ever. The judiciary has potentially been delivered trussed and bound into the hands of a career politician on the make in another place. No expensive new courthouse will protect the judiciary from that. Even if there are no second thoughts about expelling judges from membership of this House, could we—I hope that, with his readiness to look again at Mr Blair’s constitutional mistakes, the new Prime Minister will consider this—allow the Law Lords to continue to work here as they have done for so long? The noble and learned Lord has suggested that, and how sensible it seems. There would be no tying of the hands of a future Parliament; no destruction of a historic treasure of Victorian Gothic; no loss of court rooms in London that need to be replaced; no diversion of resources from other hard-pressed areas of the legal system; and a saving of taxpayers’ money that could be far better spent.

If the Government truly are a changed Government, they must be ready to think again. Either all those who leave the Supreme Court must come here or none must, as I said earlier. Can the Minister assure us that the future of the judiciary will be safe and that the new Prime Minister will certainly think again on what has been proposed so far?

8.10 pm

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, I thank noble Lords for welcoming me to my first appearance at the Dispatch Box speaking on behalf of the Ministry of Justice. I thank the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Seccombe, for their warm words of welcome and I thank the noble and learned Lord, Lord Lloyd, who has allowed us to debate an undoubtedly important matter, for his welcome, too. In my first debate, it is somewhat daunting for me to discuss the Supreme Court with noble Lords.

Of course, the Law Lords are widely admired throughout the world. They stand at the pinnacle of our legal system. They are renowned for their robust impartiality, independence and intellectual rigour. I say at once from these Benches that the Government are absolutely determined that their translation into a Supreme Court should go as smoothly as possible, that their enduring characteristics should be carried forward and that the facilities at Middlesex Guildhall should be supportive of the Supreme Court, all those who come before it and, more generally, the wider public.

In this debate, we have reprised a number of important matters that noble Lords have discussed over the past year or so. I shall comment on one or two of those matters before turning to the substance of the question posed by the noble and learned Lord, Lord Lloyd.

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Whether the Lord Chancellor could be a Member of the House of Commons was extensively debated. It is worth reminding noble Lords that that matter was debated during the passage of the Constitutional Reform Act and that Parliament agreed that the Prime Minister should be entitled to appoint the best person for the job, whether that person sits in the Commons or the Lords. I well remember listening to some of the debates when it was suggested that a person of very junior rank might be appointed and that the role of the Ministry of Justice, or the Department for Constitutional Affairs as was, would somehow be subordinate to other government departments. My right honourable friend the Prime Minister, in appointing my right honourable friend Mr Jack Straw, has surely signalled the Government’s recognition that the Ministry of Justice is indeed a very important department of state. I have no doubt whatever that my right honourable friend Mr Jack Straw, who was appointed as Lord Chancellor on 28 June, recognises well the robust nature of the independence of the judiciary and will ensure that that independence is continued for good. I am sure that he will bring that important characteristic to the post.

The noble Baroness, Lady Seccombe, will know that there has been discussion on whether members of the Supreme Court could be Members of the House of Lords in the future. The White Paper on Lords reform, published in February 2007, recommended offering every retiring justice of the Supreme Court a seat in the House of Lords. The noble Baroness will know that discussions continue on Lords reform and that my right honourable friend the Prime Minister signalled in a Statement to Parliament yesterday our intention to make further progress in that area. The membership of retiring justices of the Supreme Court needs to be seen in that context.

The noble and learned Lords, Lord Lloyd and Lord Howe, and the noble Lord, Lord Norton, expressed considerable doubts about the philosophy of the creation of a Supreme Court. That has been debated and disposed of and I do not want to go over old ground, but we consider that, as the noble Lord, Lord Goodhart, said, the creation of the Supreme Court will achieve three main objectives: a clear separation between the judiciary and the legislature; improved access to the highest court of the land; and the renovation of a significant, but rather dilapidated, building. We believe that locating the apex of the judicial system away from the Houses of Parliament, yet right in the heart of the capital, will both symbolise its separation from the legislature and reiterate its national and international importance.

As the noble Lord, Lord Goodhart, put it, the practical issues of a suitable building cannot simply be brushed aside. Yesterday, I spent a happy time sitting in a hearing of the Law Lords upstairs in the Committee Room. I then went across to Middlesex Guildhall to look at the building. The hearings of the Law Lords in your Lordships’ House are enormously impressive for a lay person like me. Who could not admire the rigour of the questioning or the debate and who could not be impressed by the stature of Law Lords sitting in that Committee Room? However, I sat on a very hard bench for 20 minutes; the room was

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very congested; the facilities for counsel are very limited; and for members of the public the access is very difficult indeed. I could not spy a cafe or a refreshment area. Although that might be seen to be secondary to the quality of the decisions made by the Law Lords, none the less the Supreme Court of this land deserves to be housed in adequate facilities.

I agree with the noble Lord, Lord Goodhart, that Middlesex Guildhall is an interesting building, although it is not a fine building. Walking round it, as a former local authority councillor, I thought that it reflected its municipal basis and foundation. Nevertheless, having seen the designs and having met the builders, I am convinced that the sensitive approach that has been taken will enable a modest but acceptable building to be provided in which the Supreme Court can do its job effectively.

I pay tribute to the many organisations—Westminster City Council, English Heritage and the designers—who have clearly put a considerable amount of time and energy into ensuring that a sympathetic design is produced. It is clear that the—I shall not call it “renovation”—modernisation programme that took place in the 1980s in Middlesex Guildhall was typical of much modernisation in that rather disappointing decade as regards design and architecture. The work taking place will restore some parts of the Guildhall to their original glory. It may not be as glorious as one might have hoped but, in many ways, the work being undertaken will enhance Middlesex Guildhall rather than detract from its history.

Questions have been raised about the cost of the establishment of the Middlesex Guildhall as the Supreme Court and the running costs, as well as how it is to be paid for. The noble and learned Lord the then Lord Chancellor updated Parliament on progress and costs on 14 June. The headline figures for set-up costs are £56.9 million, including a £36.7 million renovation cost, paid for by an annual lease charge of £2.1 million over 30 years. The noble and learned Lord, Lord Lloyd, questioned the method of payment, but a lease and leaseback route is not unusual. The whole scheme, which is a design and build procurement route, enables much of the risk of the building project to be transferred to the private sector provider.

Of course, I understand noble Lords questioning whether this is worth the money. It is a lot of money and, clearly, there are other necessary public expenditure services that it could have been spent on, including resources within the legal system. I fully accept that, but surely, in view of the importance of the Supreme Court and its having acceptable facilities to discharge justice, it is not a wasted figure. Of course, we must ensure that we are rigorous in controlling those costs and that the running costs of the Supreme Court are kept within balance, although noble Lords have tonight expressed rather mixed views to me on this. They have expressed concern about the cost, but also concerns about the role of the Executive in the budgeting. We clearly have to ensure—and I am sure that the Supreme Court will want to ensure—that the public have value for money. Equally, it is important that there are sufficient resources to enable the Supreme Court to do its job effectively.

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The noble Lord, Lord Thomas of Gresford, made a number of points about fees, as did other noble Lords. Noble Lords will be aware that the intention is that civil fees for the Supreme Court will be recovered, which is estimated to make up about 50 per cent of the total cost. That will be made up of fees from appellants and a contribution from national jurisdiction. The balance between these two sources has yet to be finalised. We expect the total financial burden on lower court users to be less than 1 per cent of the total cost. The rationale for that contribution is for the Supreme Court to make a contribution to the overall wealth of the law, which is then used by all civil court cases. The Supreme Court clarifies issues of law for future use.

I say to the noble and learned Lord, Lord Hope, that these are matters for further discussion. He suggested, and I agree with him, that we might await the appointment of the new president and chief executive. I am happy to give him the assurance that, when those persons have been appointed, the Government will be keen to discuss these matters further with them. I thank the noble and learned Lord and his colleagues for the great amount of work that they have undertaken in helping to make this translation as smooth as possible. He paid tribute to my officials, and I am grateful to him for that. In turn, from the briefings that I have had in the past two days, I can tell him that my officials well recognise the huge amount of work that he and his colleagues have put into the preparation for what I am sure will be a successful move when it takes place. He also paid tribute to the noble and learned Lord, Lord Falconer. I am happy to echo that tribute. The door was open to the noble and learned Lord and his colleagues, and I assure him that it remains open. Ministers are happy and eager to discuss on a regular basis any matters of concern that he may have. The timetable is tight, but we are confident that the Supreme Court is on target to open in October 2009 as planned.

The noble Lord, Lord Norton, referred to the relationship between the Executive and the courts, as did the noble and learned Lord, Lord Howe of Aberavon. The Statement and the White Paper issued by the Government yesterday show a clear intent to ensure that the Executive are as fully accountable to Parliament as possible. I look forward to debating these matters in the future, but the noble Lords’ remarks must be seen in the context of the Government’s clear and stated intention to ensure that the Executive are properly accountable to Parliament, as they should be.

In response to the question of the noble Lord, Lord Norton, I have already said that the Government respect the independence of the judiciary and will continue to do so. I do not agree with him that moving the Supreme Court across the road to the Guildhall will in some way isolate the judiciary and undermine that independence. Surely it is the very opposite. Surely the Supreme Court will be more separately identified than the Law Lords are now. It will be more transparent. Through that, it will not invite pressure from the Executive. It will clearly identify to the public the quality and value of the work undertaken by the Law Lords—

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Lord Norton of Louth: My Lords, is the Minister saying that the Court of Appeal is independent in a way that the Appellate Committee of this House is not?

Lord Hunt of Kings Heath: My Lords, not at all. I am responding to the noble Lord’s point suggesting that moving the Law Lords into the Supreme Court as a separately identified entity will somehow introduce untoward pressure on them. I reject that. I believe that separate identification will enhance the credibility of and public respect for the work of the Supreme Court. I assure noble Lords that the Government are determined to ensure that we have a proper building on time and that the new Supreme Court will enjoy thorough independence from and the respect of the Government, as well as the respect of the public.

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