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House of Lords

Tuesday, 21 July 2009.

11 am

Prayers-read by the Lord Bishop of Norwich.

11.06 am

Lord Aberdare took the oath, following the by-election under Standing Order 10.

Lords of Appeal in Ordinary

Motion of Appreciation

11.07 am

Moved By Baroness Royall of Blaisdon

The Chancellor of the Duchy of Lancaster (Baroness Royall of Blaisdon): My Lords, I pay tribute to the Lords of Appeal in Ordinary, and to the judicial work of the House of Lords, on this historic day when we mark the move by the Law Lords from this House.

This is a significant day for this House, and a sad one too, but it is also an important day for British justice, for the British justice system, and for this country: its history and its future. It is significant because the move of the Lords of Appeal in Ordinary from the Palace of Westminster brings to an end a hugely important part of this House's history and role: the judicial work of this House. It is sad for the same reason, of course: because this House will lose the advantages of having in and around the House people of such calibre as the current 12 Lords of Appeal in Ordinary and their predecessors, who are still in the House. It is, however, enormously important because of what they are going from this House to be: the first 12 Justices of the new United Kingdom Supreme Court-the new apex of the British justice system.

It is inevitably also a day not without its controversy. I know that there are people, in this House and beyond, who still disagree with the changes to our constitution which we as a Government made in the Constitutional Reform Act 2005, including establishing for the first time in this country an institution that most democracies have seen for decades, and longer, as a fundamental part of their constitutional arrangements: a Supreme Court. However, now is not the time to revisit these controversies; now is the time to celebrate the Law Lords for their contribution to this House, to the law and to this country, to thank them for their service and to wish them well in their future role.

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By my calculation, there have been a total of 112 Lords of Appeal in Ordinary since the first two Law Lords, Lord Blackburn and Lord Gordon, were appointed in 1876 following the passing of the Appellate Jurisdiction Act in that same year. Since then, the Law Lords have been dispensing justice as the highest court in the land, right up until this present day.

Of course, the judicial history of the House of Lords, rather than the Law Lords, goes back a great deal further than the 1876 Act, stretching back to the early Middle Ages and through such great landmark cases as Thomas Skinner and the East India Company in 1666 and Shirley and Fagg in 1675. Both cases marked crises between this House and the House of Commons which dwarfed the controversies with which this House has been dealing over the past few days with the Parliamentary Standards Bill. Interestingly, our own legislative and constitutional changes in the 2005 Act, which led directly to the departure of the Law Lords from this House, had their precursors.

In 1834, the great reforming Lord Chancellor, Lord Brougham, introduced a Bill which would have separated his legal and political roles so that the head of the judiciary would not also be the Speaker of this House-precisely the reform we enacted 171 years later. In 1869, the Royal Commission on the Judicature proposed the establishment of a Supreme Court-precisely the reform we enacted a mere 136 years after that. It was that proposal which, after a slight slip between cup and lip as Gladstone's Government fell in 1874, led eventually not to a Supreme Court but to the 1876 Act establishing the Law Lords. I would hesitate before describing the long and illustrious history of the Lords of Appeal in Ordinary of the House of Lords as a 133-year-long detour, but it seems somehow fitting that we should now, finally, see the establishment of a Supreme Court.

The current Law Lords will not be far away from this House. The new Supreme Court's home is in the refurbished Middlesex Guildhall just across Parliament Square and we hope to see the new Justices of the Supreme Court as visitors to this House as often as they wish. In addition, the Lord Chairman of Committees will seek your Lordships' agreement a little later this morning to a report from the House Committee which will enable the Justices of the Supreme Court to make use of the facilities of this House. I am sure that noble Lords will wish to support this Motion.

I am sure too that the House will join me in thanking the staff of the Judicial Office and the Ministry of Justice who have worked so hard to ensure a seamless transition between the jurisdiction of the House of Lords and that of the Supreme Court. Many of the staff of the Judicial Office will transfer to the Supreme Court. I thank them for all that they have done and wish them well for the future. Of course, when noble and learned Lords retire from the Supreme Court they will be able to play an active part in this House on their retirement and I know the House will want to join me in expressing the hope that they do.

While in recent years the Law Lords have exercised much less often their right to take an active part in the legislating and debating functions of this House, they have often played an active role behind the scenes. I know that the House will again want to join me in

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thanking them for their work as successive chairmen of Sub-Committee E on Law and Institutions of your Lordships' European Union Committee. I pay tribute too to the work of successive Law Lords as chairmen of the Joint Committee on Consolidation Bills doing demanding and very important parliamentary work.

The Law Lords' recent reticence about taking part in the House's legislative business is matched by the fact that no Member of this House who is not a Law Lord would dream of taking part in the House's judicial business. It was not always so. When the Duke of Buccleuch was Lord President of the Council in the 1840s, he was asked to sit on an appeal from India, which was estimated to last for 11 days. He hesitated, both because of the length of the appeal and because he was utterly unqualified to sit and take the case. "Don't worry your Grace," he was told, "The natives of India would much prefer their case to be decided by a great Scottish Duke than by a common lawyer."

Uncommon lawyers the Lords of Appeal in Ordinary have certainly been. It would be invidious to single out the contributions made by particular individuals since 1876, but perhaps I may crave the House's indulgence and break that rule immediately in relation to the noble and learned Baroness, Lady Hale of Richmond, who in 2004 became the first ever female Law Lord, and I pay tribute to her in that role.

In conclusion, I pay tribute too to all noble and learned Lords who have served, to the work they have done, to the contribution they have made to the development of British and Commonwealth law, and indeed to international law beyond that. It has been remarkable-for this House, for this country, and for justice. The new Supreme Court will, I am sure, be equally influential. It will be more accessible and transparent. Its role will be clearer to the public. Its establishment will mark a proper separation of powers between the legislature and the judiciary.

If, in relation to the 12 noble and learned Lords who are the present and the last Lords of Appeal in Ordinary, the Supreme Court's gain is this House's loss, then the Supreme Court will be as fortunate a place as your Lordships' House has been in these past 133 years. If the judicial role of this House in the past has been illustrious, as is unquestionably the case, I am sure that so too will be the future of the Supreme Court as the pinnacle of the United Kingdom's system of justice. I beg to move.

11.16 am

Lord Strathclyde: My Lords, I rise on behalf of the Opposition to wholeheartedly support the resolution that has been put before us by the noble Baroness the Leader of the House, but she might forgive me if it is not entirely with the same spirit of enthusiasm. For me, this day is one that closes the door on centuries in which this House has stood as the supreme arbiter of justice and, with the other place, the highest defender of the freedoms of this land. For 300 years that authority has been enshrined in ancient laws and customs that we were told had no relevance to the modern era, but which recent debates on the Parliamentary Standards Bill have reminded us are the very embodiment of hard-won and precious liberties. The presence of

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the judiciary in this House, as assistants or Members, has enriched our debates. They have informed our decisions and we have safeguarded them from executive interference.

I wonder how many of us, in the long hours of a Committee stage of a Bill, glance up and look at the murals above the Throne and above the Gallery. We see reflected in them the historic tripartite nature of the House-a convergence of the peerage, the Lords Spiritual and our judicial role. Over the Gallery is the "Spirit of Justice" by Maclise, and on the wall over the Throne there is Cope's fresco of Prince Hal being constrained to acknowledge the authority of Chief Justice Gascoigne. They symbolise the age-old authority of justice in this place and the power of the high court of Parliament over the highest in the land.

We mark today the passing of the Lords of Appeal in Ordinary, but if they do not mind me saying so, and as the noble Baroness has pointed out, they are comparatively new fry. They came in in 1876, only three years after the previous attempt to end the judicial role of the House was written into law. Long before, in the late 17th and early 18th centuries, this House and the other place fought battles over their respective areas of authority. A settlement was reached that the other House would be supreme in finance and your Lordships' House in justice. It was a good deal and served Britain well. Now that it is ending, who knows where constitutional change will take us? Let us hope that the new Supreme Court will never come to set itself against this place.

I think it would be fair to say that the overwhelming need for the expulsion of the Law Lords from this House had not struck many of us until that infamous press release from No. 10. I remain unashamedly one of the unconverted today, and I suspect that I am not alone. Having been told they had to go because people were confused that they were in Parliament, I was a little confused myself to find they wanted the address of the Supreme Court to be Parliament Square. Of course I sincerely wish the Law Lords well in their fine new home, where they will find their budgets under scrutiny as never before. We shall all miss them.

As a young Minister, I soon learnt to fear stirrings from those Benches: the long figure of Lord Scarman or the incisive rumblings from behind his eye patch of Lord Simon of Glaisdale. When you saw these movements, you knew you were doomed in a way that you were not doomed if a mere politician was probing your arguments. I see the same frowns of concern from my successors on the government side of the House sometimes when the noble and learned Lord, Lord Lloyd of Berwick, takes up his notes.

Who can forget in recent times the contributions of Lord Ackner, Lord Donaldson of Lymington, or that great draftsman, Lord Brightman-or indeed those noble and learned Lords who came here and spoke for the reforms of Scottish Law? Who doubts that this House and the laws that it made were far better for their being here? They followed in a long line of judicial authorities to pronounce in this place to the immeasurable benefit of this House and our country. Warmly though I wish, and sincerely though I thank those who are going, I do not entirely see this day as a cause for a great celebration. Indeed, I suspect that it is a day that we will come to regret.

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Although your Lordships' House is a lesser, and less distinctive, place as a result of the decisions that we mark today, I very much support the resolution. I wish the noble and learned Law Lords well in their new home.

11.21 am

Lord Wallace of Saltaire: My Lords, I suppose that this is, in a sense, the last day on which we can refer to ourselves as the high court of Parliament, with all the confusion that that has left for many of us. Certainly, when I first became a Member of this House, I had to explain to many of my cousins and American friends that when they read that the House of Lords had ruled or decided, I had not personally been involved. The confusion was there for many people outside.

When I arrived here, I was puzzled at first by the little knots of people that would form on occasional days around the newspapers in the Library, almost as if unintentionally and unconsciously, and then would suddenly walk out together. At times I thought that they were a closed circle into which one could not insert oneself. Happily, because of the European Union Committee and the appointment to the Law Lords of someone with whom I used to drink in the pub as a junior law lecturer very many years ago, that circle has been broken and many of us have become good friends with members of the Law Lords as a group.

We also benefit in this House, as the noble Lord, Lord Strathclyde, said, from retired Law Lords and the many contributions that they make. The process of constitutional reform, of which this is now a part, leaves open the question of whether we will find many more retired Law Lords coming to us. Yesterday we had some controversy about whether this House has too few lawyers, or too many lawyers, already.

The process of constitutional reform has been a slow one and will no doubt continue to move slowly. We on these Benches have supported the separation of courts from the legislature for a mere 200 years. I have heard much in the past few days about the principle of unripe time, and that this is a little too early. I would simply remind the noble Lord, Lord Strathclyde, of Francis Cornford's definition of the principle of unripe time-that time,

When Titus Salt, the man who built Saltaire, stood for Parliament as a Liberal MP, reform of the courts and of the Lords were two of his 10 points. I am happy that most of those points have now been achieved. His 10th, which was fixed-term Parliaments, remains for a future date. Perhaps that is something that we will move on to shortly.

It was the Palmerston Government in 1856, after all, who proposed for the first time that legal Members of the Lords should be given life peerages, something that aroused furious opposition from the Conservative Members of the Lords-how unlike their approach to constitutional reform today. No doubt the Conservatives also opposed moving the Court of King's Bench and the Court of Common Pleas out of Westminster Hall, which took place at the same time. It was the Gladstone Government in 1873, with Lord Selborne as the reforming Lord Chancellor, that proposed the separation of the

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Supreme Court from the Lords, and it was Benjamin Disraeli, when he returned the following year, who refused to implement the Act. Well, here we are, only 130 years later, putting through one of Gladstone's measures. After all, part of the tragedy of British constitutional history over the past 150 years is that many of the measures that Gladstone proposed were not implemented because of Conservative opposition in this House.

Incidentally, I note that the Law Lords moved in 1948 from the Floor to upstairs, to Committee Room 1, primarily because of the noise that workmen were making in repairing the war damage around the House. The splendid new accommodation to which they are to be moved in Middlesex Guildhall will perhaps be less cosy and intimate than the second floor and Committee Room 1, but we look forward to seeing them across the square. Some of us perhaps look forward to the square being closed to traffic so that we can walk over there.

The message from these Benches to the Law Lords must be that we have appreciated your company and look forward to seeing more of you. We do not want to lose you, but we think you ought to go.

11.25 am

Baroness D'Souza: My Lords, the separation of judicial and legislative powers is upon us. Today, we mark the end of 600 years of judicial work in the House of Lords. Some will lament its passing but, perhaps, it is the inevitable end point to a gradual withdrawal on the part of the Law Lords from the daily business of the House in support of the principle of the independence of the judiciary.

It was not ever thus. Lord Carson, appointed in 1921, was an outspoken controversialist in Irish politics; it is recorded that, contrary to convention, his maiden speech on Home Rule was neither short nor uncontroversial. In the past decade or so, there has been a significant decline in the Law Lords' participation in public business, and now it has for all practical purposes ceased to exist. That said, I have here to acknowledge the valuable chairmanship by the noble and learned Lord, Lord Mance, of Sub-Committee E of the European Union Committee.

There can be no doubt that the presence of the Law Lords has lent Parliament a dignity and a trust that has been very useful in the current climate. There is, too, something less easy to define-dignity and expertise certainly, but also the greatly valued aura of quiet and considered professionalism that the Law Lords have provided and which is conveyed to a wider public. That is another most welcome attribute in this day and age. Most of us would acknowledge that even the so-called educated public are not entirely familiar with the separate nature of the work of the Law Lords, as the noble Lord, Lord Wallace of Saltaire, reminded us. Luckily, we Peers have stood in the shadow of this aura, to our great benefit.

Beyond this, the House has benefited immeasurably from the wisdom and experience of retired Law Lords in contributing to legislation. Here I would mention, for example, the noble and learned Lords, Lord Woolf, Lord Steyn, and Lord Lloyd of Berwick, and the late

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Lords Ackner and Slynn. The judgments delivered by the Law Lords have commanded respect and admiration from other courts around the world for their intellectual force, constitutional perspective and the downright good sense of speeches in the Appellate Committee. Despite the current self-imposed restraint, the importance that the Law Lords have attached to being part of the legislature can be gathered from their refusal, as recently as 1965, to move to the Middlesex Guildhall. The argument then is perhaps much the same now: being physically distant from the Chamber would in their opinion discourage participation in future debates and the necessary familiarity with the House and its practices. This is the issue which we must now tease out and resolve.

Clearly, some Law Lords who retire as Justices of the Supreme Court will return to this House and provide the expertise for which they are renowned. Unhappily, this pool of decades of legal experience will gradually dry up as the Law Lords are no longer automatically granted peerages. Some may well be appointed as Peers upon retirement, but this will also depend on which way House of Lords reform swings. I think it unlikely that these giants of the legal profession will submit themselves to the hurly-burly of electioneering, should a fully elected House be the choice. In the mean time, the task must be to devise mechanisms to keep in touch with what goes on across the square and to ensure that what goes on here is similarly conveyed to Middlesex Guildhall. Conversations are continuing on this matter.

At this historic moment, I would like to thank, on behalf of the Cross Benches, the Law Lords for their contribution to the work of this House and to wish them every success in their new place of work across Parliament Square.

11.30 am

The Lord Bishop of Portsmouth: My Lords, on behalf of these Benches I express my wholehearted support for this Motion of thanks. The noble and learned Lords have made their mark on this House, and that is to state the obvious. We on these Benches have found their companionship and their incisive contributions to this, yes, the high court of Parliament but perhaps not for much longer, congenial, constructive and, at times, appropriately challenging. Their presence here is very often an expression of deep moral courage.

I cannot let this occasion pass without two further comments. When your Lordships came to vote on the legislation creating a Supreme Court, these Benches took some persuading that it was the right course of action; I say that not lightly, because I am hardly one of those Bishops who does not believe that anything should be tried for the first time. So that is another, constitutional, reason for wanting to underscore the full import of this Motion.

Finally, these Benches have had a unique relationship with the Law Lords by virtue of reading Prayers before they sit and of witnessing their work afterwards. Believing, as I have always done, that God has a sense of humour, one of the consequences of these many judgment days is that Members of your Lordships'

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House who may be, by temperament or conviction, a little reluctant to attend prayers are not unknown to come into the Chamber at the start of business in something of a hurry, unaware that Prayers have already been read.

All power to our colleagues the Law Lords, as they continue their very important work in their new, elegant and less cramped premises. We shall miss them.

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