Constitutional Reform Bill [H.L.]

HL Deb 14 December 2004 vol 667 cc1180-257

3.2 p.m.

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Falconer of Thoroton.)

Lord Kingsland

My Lords, before we respond to this question I rise to express on behalf of the Opposition our dismay at the timing of the Written Statement issued by the noble and learned Lord the Lord Chancellor. The Statement concerned the anticipated capital and running costs of any future Supreme Court. I understand that it was released only at 9.30 p.m. last night.

As noble Lords will be aware, the question of the future cost of a Supreme Court will have a crucial bearing on the attitudes that your Lordships take to Part 2 of the Bill. In those circumstances, I should like to ask the noble and learned Lord the Lord Chancellor how he envisages that the House can have a properly informed debate about Part 2 before your Lordships have had an opportunity to absorb the contents of the statement.

Lord Falconer of Thoroton

My Lords, I indicated in Committee that before the Bill left this House I would set out the running costs and capital costs. I laid the Statement this morning, in fact not last night—although I am glad to hear that my noble friend Lord Kingsland got it before last night—so that it could inform today's debate, which is the last day of Report. Third Reading is on Monday. It facilitates rather than prevents the debate today.

On Question, Motion agreed to.

Lord Lloyd of Berwick moved Amendment No. 35A:

Before Clause 14, insert the following new clause—

"House of Lords as Supreme Court

The House of Lords, when exercising its appellate jurisdiction, is the Supreme Court of the United Kingdom and the Lords of Appeal in Ordinary shall be appointed in accordance with the provisions of sections 16 to 22."

The noble and learned Lord said: My Lords, in the debate on 11 October this year, the question of whether Clause 14 should stand part of the Bill was linked with so many other amendments that we were in danger of losing sight of the wood for the trees. On that occasion, the noble Lord, Lord Brennan, described the situation as being "legislatively indigestible". He was right. This time we have riot made the same mistake. The amendment now before your Lordships is intended to give us a chance to discuss the pros and cons of a Supreme Court and whether or not we want to remove the Law Lords.

The amendment states boldly that: The House of Lords, when exercising its appellate jurisdiction, is", already, the Supreme Court of the United Kingdom". That is historically and factually correct.

As the noble and learned Lord, Lord Hope, states in a lecture that he has either just delivered or is about to deliver, the House of Lords has exercised the delegated judicial authority of the Crown since Parliament first came into existence in the 13th century. Of course, it was not then called the Supreme Court, but it was the highest court in the land. It was the High Court of Parliament.

In those days, judicial business was the main function of the House of Lords. It heard petitions to the King in Parliament. The legislative business of the House of Lords came only later, at about the time of the Statute of Westminster in 1305. Professor Griffiths in his evidence to the Select Committee was quite right when he said that the House of Lords has exercised what he called "judicial process" for centuries and it still does unless this Bill becomes law.

In calling the Appellate Committee of the House of Lords the Supreme Court I do not overlook the fact that we already have a Supreme Court, which consists of the Court of Appeal, the High Court and the Crown Court governed by the Supreme Court Act 1981. That name would have to change anyway if a Supreme Court came into existence and I understand that the name to be given to what was the Supreme Court is the Senior Courts of England and Wales. That may be found somewhere in the Bill, but I am not sure where. Therefore, there is no difficulty in the House of Lords continuing as a Supreme Court as it has always been, subject to the convention—a convention which has all the force of law—that the Appellate Committee exercises that judicial function.

The other feature of the amendment is the reference to the Law Lords being appointed in accordance with Clauses 16 to 22. That is important; it is there because those of us in favour of retaining the Law Lords, as I am, are also in favour of the Judicial Appointments Commission. There is no conflict there at all. We have never had any quarrel with the concordat made between the Lord Chief Justice and the Lord Chancellor. So we are in favour of the Law Lords being selected in future in the manner which is proposed for the judges of the Supreme Court.

Until last week I had thought that, provided that the concordat remained intact, the Lord Chief Justice and the Judges' Council wished to express no view in favour or against the coming into existence of a Supreme Court. That changed last week—I do not know why, but I think that I can guess. Last week the Lord Chief Justice put forward three reasons why the Judges' Council now supports a Supreme Court, which it had not done heretofore. I shall come to those three reasons later. I shall make only one comment at this stage.

The view of the Judges' Council that it would like to see a Lord Chancellor in the traditional role, as a lawyer and a Member of this House, was both very relevant and important from the council's point of view. It was relevant because everyone accepts that the office of Lord Chancellor is part of the machinery for protecting the independence of the judges. So the council was fully entitled to express a view in that regard. However, the same surely does not apply to the Supreme Court. The independence of the judges is not affected in any way by whether or not we create a Supreme Court. So I was quite surprised to find the Judges' Council expressing a view on that point at this very late stage. The council is not, it seems to me, directly concerned with whether there should be a Supreme Court.

There is another point, which perhaps undermines the views expressed by the Judges' Council about the Supreme Court. With the exception of the Lord Chief Justice and the Master of the Rolls, the members of the Judges' Council can have little idea of what the work of the Law Lords actually involves. They do not know how very different the work of a Law Lord is from the work of a Lord Justice of Appeal, and from that of High Court judges or all the other judges in the land. They cannot assess the extent to which the Law Lords gain judicially by being Members of this House—a point put very persuasively, as some of your Lordships may remember, by the noble and learned Lord, Lord Nicholls, at an earlier stage. They cannot, obviously, assess the extent to which the Law Lords contribute to the work of this House. So I suggest that the views of the Judges' Council are not entitled to the same weight on this question as they undoubtedly were in relation to the future of the Lord Chancellor.

Turning back to the amendment, I hope that we shall have a very full debate this afternoon and evening, but I do not see how we can reach a decision today on whether the Supreme Court should come into existence. Let me explain why that is.

The Lord Chancellor has told us that since June 2003 he has been searching for a site for the new Supreme Court. At first there were 50 sites under consideration, which were reduced to six and then to two—Somerset House and the Guildhall. The rumour now is that Somerset House has been ruled out on the grounds that the Government cannot afford the asked rent. That is only a rumour, and I do not know whether it is true. But we have only rumours to go on. That leaves the Guildhall.

In April this year, the Law Lords visited the Middlesex Guildhall. Their view, as a result of that visit, was that the site of the Guildhall is superb, as it clearly is, but that the building on the site simply would not do. I remind the House that the building was completed in 1913, in a style which the noble Lord, Lord Howie of Troon, described as "Victorian mock-Gothic". Well, he was right so to describe it—that is exactly what it is—but he was not so right when he went on to say that that made it very suitable for the Law Lords.

3.15 p.m.

The Guildhall building comprises a council chamber built for the MCC—which stands here not for the Marylebone Cricket Club but for the Middlesex County Council—and two other criminal courts. Another five other criminal courts have been added since 1913. The interior of the building would have to be very substantially modified, because the existing courts would be of no use to the Supreme Court. Three courts would be required, two for the work currently done by the House of Lords and one for the work currently done by the Privy Council. One of those courts must be large enough to enable nine Law Lords to sit together.

In a memorandum dated 30 April, subsequent to the Law Lords' visit, they said of the Guildhall that they had, grave doubts whether, even if radically transformed"— as it would have to be— these spaces"— that is, the three courts— can ever provide a suitable setting. The impression will always remain that the Supreme Court has been crudely thrust into a building designed and built for quite another purpose … With Parliament Square and the Palace of Westminster to the east, and with Westminster Abbey to the south, the Guildhall site in our view deserves a building very much more distinguished than the Guildhall is or can ever be". That was the unanimous view of the Law Lords, expressed in that written memorandum of 30 April. So far as I know that remains their view.

There remains the question of cost. Again, I remind your Lordships of the story so far. The original estimate in the Explanatory Notes attached to the Bill was that the capital costs would be between £6 million and £32 million—which is perhaps rather a large margin for error. Then, in the Select Committee, after much pressure from members of that committee, we were told that the Guildhall site would cost £32.5 million, which is £500,000 more than the original estimate. Exactly the same figure of £32.5 million was given for the Cost of the alterations to Somerset House, if that had been the choice. Why the figure should have been exactly the same, I know not.

As to the proposed figure of £32.5 million, we were told—and I suggest to your Lordships that it is important: It is not possible to provide definitive figures until the Government has taken final decisions upon the location of the new Court, the method by which the necessary investment will be financed and the detailed design of the internal building changes that will be required (the figures below are based on minimising interior intervention, and, should greater internal reconstruction be required, then costs could increase)". Those are ominous words indeed. They are followed by these even more important words: The figures also exclude any costs for decanting existing occupants and operations". "Decanting" is not, I think, the word that I would have chosen. Decanting wine is something that we all enjoy but decanting judges is by no means so easy. We would have to find seven new courts somewhere for the seven existing active courts in the Guildhall. Where will they go? Again, one has to rely on rumour because we have been told so little. The rumour was—I do not know whether it is still the case—that all seven courts would be accommodated in a new building in Croydon. Then it was said that four courts only would move to Croydon. Where the other three courts were going to go I do not know.

What will it cost? I refer to the cost of rebuilding and refurbishing, including—this is essential—the costs relating to the seven new courts that have to be built somewhere. The cost of rebuilding or refurbishing, if that is the right phrase, the courts in Edinburgh—I am not talking about the Parliament Building in Edinburgh but the courts—has already exceeded £93 million. Yet this morning for the first time we were given a figure for finding seven new courts of £15 million, which sounds suspiciously, even absurdly, low.

However, before I come back to that figure I hope that I may say a word about timing because it is important.

In June this year in answer to a Starred Question from the noble Lord, Lord Peyton, we were told: We shall continue to investigate the relative qualitative and financial merits of those two buildings in consultation with the Law Lords before announcing a final decision in the autumn".—[Official Report, 9/6/04; col. 260.] Autumn came and autumn went but we had no figures to go on. Then on 11 October the noble and learned Lord the Lord Chancellor was pressed hard by the noble Lord, Lord Crickhowell, who I am glad to see is present, that we must be given believable figures. In reply the noble and learned Lord the Lord Chancellor said: I agree with the noble Lord, Lord Crickhowell, that proper information needs to be provided before this Chamber reaches a conclusion … Two buildings are in the shortlist and it is the easiest thing in the world to identify problems related to each of them. We need to reach the end of the process and then talk about the position. However, I agree entirely with the noble Lord, Lord Crickhowell, that before this House takes a final decision, it should have the information before it".—[Official Report, 11/10/04; col. 74.]

Then what happens? He provides us with some figures which are, with one exception, exactly the same figures as we have had all along, on the very day on which he now says we must make a final decision on the existence or otherwise of a Supreme Court. When I say "the very day", I have in my hands a letter from the Lord Chancellor dated 8 December 2004, but which I received only as I was going home last night at about six o'clock, in which he says: I … think it essential that the House's view is tested at Report Stage on the issue of whether there should be a Supreme Court, separate from the legislature. The Bill has been the subject of very extensive scrutiny in the Lords (over a period of more than 12 months), and the issues at stake are clear. It is right that the House decides on the Supreme Court on Tuesday 14th. Deciding an issue of this significance at 3rd Reading would not be a satisfactory way to proceed, and would be fundamentally in conflict with the procedures of the House". I have two comments to make on that. The statement that we received this morning is not, in my submission, a proper compliance with the undertaking which the Lord Chancellor gave us on 11 October. Furthermore, to provide the information which he has done at the very last moment, and then to require us to reach a decision on the same day as the information is provided, is not, in my submission, a proper way to treat this House. Why could we not have had those figures last week? Why could I not have been told about those figures when I rang the noble Baroness's office yesterday to inquire whether any figures were available, and was told nothing whatever about them?

The decision that we are asked to take is one of the highest constitutional importance. It involves weighing the alleged merits of creating a Supreme Court and removing the Law Lords against the cost of doing so. How can we make a responsible decision about that without having had a better chance to study all the figures? That is why I say we simply cannot reach such a decision today. I say it with great regret but we cannot do this matter justice except to say that this decision will have to be taken at Third Reading rather than today.

The Lord Chancellor says that it is quite unsatisfactory to proceed in that way, and that it, would be fundamentally in conflict with the procedures of the House". If that be so, all I can say by way of answer is that it is his doing for not having provided the figures at an earlier stage.

Finally, I must speak briefly to the merits of the proposal, as I said that I would. In Committee I tried to deal with the many arguments that had been put forward from time to time by the Lord Chancellor. I think that there were 10 in all. It sometimes seems to me that multiplicity of arguments often points to the fact that very few, if any, of them are of any great weight.

Today I shall deal only with the three arguments that the Lord Chief Justice put forward last week on behalf of the Judges' Council. The first argument concerns the separation of powers. Secondly, it was said that the role of the Law Lords needs to be better understood. Thirdly, it was said that a new building would provide better access for the public. I shall try to deal with each of those arguments in turn.

As regards the separation of powers, about which we have heard so much during these debates, and about which, it seems to me, there is so little understanding, I can understand that the Lord Chancellor as a member of the Executive should not sit as a judge. I could see why, if we were to reach consensus on the future role of the Lord Chancellor, we had to accept that he should no longer sit as a judge—a decision which I regret as we have had Lord Chancellors who have been very great judges. But, as I say, I understand that and I accept it, but I simply do not understand the argument when applied to the Law Lords, who are not members of the Executive. The separation of powers is not a rule; it is a theory. You have only to look at the position of the Prime Minister in the House of Commons to see that the separation of powers as a theory has no place in our constitution; for there is the Prime Minister, the head of the Executive, sitting at the heart of, and, indeed, in control of, the legislature. That is utterly different from the position in the United States.

In that respect if no other we are not like modern democracies, so why should modern democracies be given as an example to us when answering the question whether the Law Lords should or should not be Members of the House of Lords? The Government argue that there must be separation in order to comply with Article 6 of the European Convention on Human Rights. That is the article that guarantees a fair trial. That argument was supported by Professor Woodhouse, but despite her support, it is simply wrong. As the noble and learned Lord, Lord Hope, made clear in a recent judgment given in this House, there is no requirement that a judge or a part-time judge should not sit in the House of Commons or in the House of Lords. It all depends on the facts of a particular case whether the judge is disqualified by something that he has said in the House of Lords. That point is echoed—

3.30 p.m.

Lord Lester of Herne Hill

My Lords, does the noble and learned Lord agree that the point that he raises has never been decided by the European Court of Human Rights and that it is an open question in the light of the McGonnell decision? There are many in this House and beyond who would not agree with what he is saying about the convention.

Lord Lloyd of Berwick

My Lords, I hesitate to differ from the noble Lord, but it has been decided in the case of Pabla Ky v Finland, which is the very case on which the noble and learned Lord, Lord Hope, relied when he gave his recent judgment.

In the report of the Joint Committee on Human Rights, exactly the same point is made: It is clear that Article 6 does not require the UK to abolish the Appellate Committee of the House of Lords and establish a new Supreme Court which is entirely separate from Parliament". I think that is a committee to which the noble Lord, Lord Lester, is a party. It is true that it goes on to say in paragraph 170 that to have a separate Supreme Court would reduce the risk of violations of Article 6—but what is that risk? We have had the European Convention on Human Rights since 1950, and there has never yet been a single case where that risk has materialised. Far greater is the risk that a Law Lord would say something in a lecture that was inconsistent with a case that he might subsequently be called on to decide. Indeed, that actually happened just a week or so ago, when the noble and learned Lord, Lord Steyn, said something in a lecture and because of that he said that he could not sit on a particular case—and the sky did not fall in. If that applies to lectures, why on earth could it not apply equally to things said by a Law Lord in this House?

I have spoken, as always, for much too long, but I should just add at the very end in answer to this question on separation of powers something that was said in evidence by Lord Wilberforce, probably one of our greatest judges, and certainly one who was very familiar with the ways of the House. In his evidence to the Wakeham Commission, which was accepted by it, he said: I beg the commission not to be confused or led astray by references to the separation of powers. I am sure that they appreciate that the separation of powers is not a legal norm, nor a constitutional principle, which governs the way in which we should conduct our affairs. No instance can be cited where a judge's participation in a piece of legislation can be said to have affected his judgment. In the event of litigation upon it to go further and the more remote likelihood of this occurring, the judge in question would clearly recuse himself. The case to the contrary is indeed not really argued. The most that can be said is that this is a matter of perception". I wish that the Judges' Council had had that evidence in mind when it expressed the view that it did. I beg to move.

Lord Crickhowell

My Lords, I rise at this stage because my remarks on an earlier occasion have been quoted, and the issue of cost has been raised. I start with the comments of the noble and learned Lord, Lord Lloyd of Berwick, about the way in which the information has been provided. He had the advantage of me. He received the information, as I understand it, this morning. As fate would have it, I had to drive for three and a quarter hours this morning to a family funeral, and three and a quarter hours back. I got back to the House only about three quarters of an hour ago. The first that I heard of the Statement was when my noble friend Lord Kingsland mentioned it. I have had to digest it in rather quick time. That follows a pattern, because it was in exactly the same way that information was provided to the Select Committee—right at the end. It is not a good way to treat the House and its committees.

We are told that the decision must, apparently, be made today, certainly on Report and not at Third Reading. On 11 October, the noble and learned Lord the Lord Chancellor said: The search for suitable premises must not distract us from the principles behind these reforms".—[Official Report, 11/10/04; col. 74.] I think that he will repeat that phrase in a similar form many times before the end of this debate, because he is determined to try to get a decision, whether or not we have the necessary information.

The noble and learned Lord, Lord Lloyd of Berwick, has taken us right back to the principles involved with his amendment, which leaves the Lords as the Supreme Court. He rightly précised the argument that he advanced on previous occasions that, whatever the principles involved, the cost and suitability of the buildings should be taken into account when we make our decision.

We are to have an amendment later, as part of this group, tabled by my noble and learned friend Lord Howe of Aberavon, which proposes one possible alternative solution. Right at the end of proceedings on Report, we are to consider a sunrise clause proposed by the noble and learned Lord the Lord Chancellor. In the light of what has been said on earlier occasions by the noble and learned Lord—I will come to that in a moment—that sunrise clause will not be adequate in its present form. One of the difficulties in dealing with a group of this kind—I must again complain about the way in which the grouping has been arranged—is that an awkward mix of amendments are grouped. Some will come up much later.

I shall concentrate on cost and suitability. On I 1 October, the noble and learned Lord the Lord Chancellor said: The Government have agreed a set of requirements with the Law Lords and our commitment to meeting them is clear. The executive must be held accountable for that".—[Official Report, 11/10/04; col. 74.] That immediately prompts the question, "accountable to whom?". Surely, there can only be one answer to that, it must be, "to Parliament". The noble and learned Lord the Lord Chancellor then helpfully made it clear that in his judgment it was not accountability to be exercised after the event, when the accounts of the building costs would be presented to Parliament, but that it should be put before Parliament before it reached its judgment on the principles. The noble and learned Lord could not have made things clearer or given a more absolute pledge than he did on that occasion. He said: I agree with the noble Lord, Lord Crickhowell, that proper information needs to be provided before this Chamber reaches a conclusion". A few moments later, he said it again: I agree entirely with the noble Lord, Lord Crickhowell, that before this House takes a final decision, it should have the information before it".—[Official Report, 11/10/04; col. 74.]

As if that was not enough, in his closing sentence seeking agreement to the principle of a Supreme Court, he said: I believe that the important points about accommodation need to be addressed".—[Official Report, 11/10/04; col.76.] The Written Ministerial Statement that I have just had the opportunity to read cannot be taken as an adequate and complete statement of the information that Parliament should have before reaching a verdict.

On 11 November, I referred to the quite brilliant report of my noble and learned friend Lord Fraser of Carmyllie on what happened to the Scottish Parliament and the construction of Holyrood House. I suggested then that some of the principles that he raised should be the ones that guided us in this matter. It was the comments on his principles that preceded the undertakings and pledges given by the noble and learned Lord the Lord Chancellor. As he is a man of absolute integrity, I am certain that he will wish to provide full and comprehensive information before a conclusion is reached. That means that we cannot possibly take a decision today. Indeed, when we come to the sunrise clause, I will argue that it will have to be amended so that the verdict comes back to both Houses of Parliament; my noble friend Lord Kingsland has already tabled an amendment. The decision should not just be taken by the Executive and the Lord Chancellor after consultation with the Law Lords, which is what is proposed.

We ought to take a brief look at what happened in Scotland, because it gives some interesting lessons. A White Paper published in July 1997 put the estimated capital costs for the Parliament between £10 million and £40 million. As the noble and learned Lord, Lord Lloyd of Berwick, reminded us, the Select Committee on the Bill was told by the noble and learned Lord the Lord Chancellor that set-up costs of the Supreme Court had been calculated at between £6 million and £32.5 million, with the likely figure at the top end of that range. There is an uncomfortable similarity between the starting costs for both projects.

By January 1998, Donald Dewar was considering a conventional building at Holyrood costing about £50 million to £55 million, plus VAT and fees of £19 million. We are already seeing the escalation. Independent quantity surveyors tabled significantly higher estimates. There was absolutely no clear understanding whether the original £40 million was a total cost including professional fees and VAT, or only the base construction costs. That therefore takes us to the first questions that the noble and learned Lord the Lord Chancellor will have to answer about the estimates that he has provided and any others that he will give us. Have they been confirmed by independent quantity surveyors of repute? We are entitled to know that.

I shall pose some other questions. My noble and learned friend Lord Fraser of Carmyllie drew attention to the Treasury guidance on project briefs, which define the client's needs and aspirations. We are told in the document published today that a statement of requirements has been agreed with the Law Lords. We should know a little more about that, because there were some vague ideas of what the Scottish Parliament would require. There was a form of statement on that occasion, but it proved totally inadequate, giving no accurate account of what would be required. We therefore need to know whether there is a properly agreed project brief that fully meets the Treasury guidance.

The Scots used a construction management contract, in which design, tendering and construction overlap, with a fee-earning construction manager providing supervision. It is a form of contract that has some advantages but leaves the risks almost entirely with the client. It was the decision to proceed with such a contract with, virtually none of the key questions", asked, to quote my noble and learned friend, and without Ministers being involved that took them to, the point when the wheels began to fall off the wagon". That was my noble and learned friend's typically pungent and effective comment on what happened. My third and fourth questions are: what form of contract is to be used, and what exactly is to be the role of Ministers in managing the project?

3.45 p.m.

By May 1999, our Scottish friends were working on a total project cost of £117 million, but then they were looking at VAT, fees, contingencies, IT fit-out, furniture and so on. It is by no means clear from the Statement today, although there is a reference to a splendid library and to IT, whether the costs of providing that library, IT and so on are included in the numbers presented to us. I suppose that what most people in normal business circumstances describe as contingencies are covered by that wonderful new phrase, "optimism clause"; I had not heard it before. Is that the case?

My next question is what the total estimated cost will be, including all those items and another mentioned by the noble and learned Lord, Lord Lloyd of Berwick; namely, the cost of moving the existing courts and the people who serve them into their new premises. He cast doubt on the estimate of £15 million, including the optimism figure, presented in the paper today. Like him, I am a bit sceptical. We need to know whether it is a comprehensive figure—whether the considerable costs of moving a whole raft of people from one part of the capital to another are covered.

My noble and learned friend said among the key conclusions of his report on Scotland that the feasibility studies were no more than an indication. Do we have more than an indication now? He said that inadequate attention had been given to the brief. Has this brief been properly prepared? On this occasion, Parliament will need to be satisfied that the brief is adequate and has been fully considered, that the feasibility studies are more than an indication, that we are dealing with a properly costed project, and that all the key questions have been asked with adequate answers provided.

I do not suggest that we should finish with a total cost of around £430 million, which is what happened in Scotland, as I hope that we are dealing with a conversion. However, we cannot be certain of that, as the document just put before us includes a statement that, at the moment, is only the favoured option. The Government still have to get planning permission and deal with the points raised by English Heritage. It is by no means clear that we will finally finish with the building at all. It is not impossible that the noble and learned Lord the Lord Chancellor will have to go away and construct a new building.

With that possibility in mind, I say again—it is a simple point—that the decision cannot be taken by the noble and learned Lord the Lord Chancellor after consulting the judges. We must finish the Bill with clauses in it that make it clear that we shall not go ahead unless the full costs and information have been provided to both Houses of Parliament before we are fully and finally committed.

Lord Maclennan of Rogart

My Lords, before the noble Lord sits down, would he make clear that no part of the excellent report of his noble and learned friend Lord Fraser of Carmyllie suggested or even implied that the matter of high constitutional import—namely, the setting up of the Scottish Parliament—should attend upon the kind of assurances which he seeks prior to the passage of this Bill of high constitutional import; and that that report largely exculpated Parliament and Ministers of blame for the escalation of costs?

Lord Crickhowell

My Lords, I thought that I had sat down and I do not intend to take the House through my noble and learned friend's extensive report in detail. But I agree that this is a matter of high constitutional importance. I fear that we will reach a situation where people will say, "We need this new building urgently, because it has taken so long, so far, and it must be a very grand building". Indeed, we heard evidence in the Select Committee from a senior Law Lord that we needed a pretty grand building of the kind that had been constructed elsewhere in the Commonwealth. I am not saying that we should not end up with a very grand building, although we have a pretty grand and suitable building here already, so I do not believe that that is necessary.

Noble Lords

Hear, hear!

Lord Crickhowell

My Lords, if we are to construct a grand building—and I hope that my noble and learned friend Lord Howe of Aberavon will persuade the House that we should not—then the facts and figures about it must be decided by Parliament and not the executive.

Lord Richard

My Lords, perhaps I may persuade the noble Lord not to sit down just yet. I listened, as I always do, to the noble Lord with great attention. As I understand it, he is saying that the House should not be asked to take a decision today. The noble and learned Lord, Lord Lloyd, said the same. May I ask the noble Lord, Lord Crickhowell, if the amendment tabled by the noble and learned Lord, Lord Lloyd, is passed, would he consider that to be a decision? If the amendments tabled by the noble and learned Lord, Lord Howe, are passed, would he consider those to he decisions for the purposes of the passage of the Bill? If they would be decisions—and, on the face of it, they look as if they would be—they could not be brought back to this House during the course of the Bill.

Lord Crickhowell

My Lords, although I cannot speak for my noble friends, my decision is that, due to the situation in which we find ourselves, these crucial decisions should probably be postponed. It is wrong to rush this matter and it may be that, depending upon what the Lord Chancellor says, my noble friends may not press their proposals to a Division today, but will want to see what is said at Third Reading. If Third Reading were to take place early in the new year, surely by then the Lord Chancellor would be in a position to give us the full information which, so far, he has failed to provide?

Viscount Bledisloe

My Lords, before we go any further, could we have some guidance from the Lord Chancellor and the noble and learned Lord, Lord Lloyd, on what on earth we are doing today? The noble and learned Lord, Lord Lloyd, started by saying that he wanted a very full debate, but he then said that we should not take a decision today, because we do not have all the information. I confess that it would be somewhat optimistic for him to think that he will obtain much more information before next Monday.

There are many potential speakers and, I suspect, a great many more potential auditors who, if this matter is delayed until Monday, might well wish to reserve their fire today, and, speaking from the audience's point of view, might well wish to go away and stop listening to a matter that is apparently purely hypothetical and would be debated again when everyone has studied the figures more closely and, hopefully, has more information.

On the other hand, the Lord Chancellor has apparently written to the noble and learned Lord, Lord Lloyd, to say that we must have a vote today and that it would be improper to put it off until Monday. Could we possibly be told which is going to happen?

Lord Elton

My Lords, will the Lord Chancellor say why this matter has to be decided now and not at Third Reading? Everyone seems to have accepted that as a given—the Lord Chancellor said that we must decide today, so this is the day to do it. Surely, we have the right to postpone this until Third Reading. Indeed, in extremis, if the figures still cannot be produced, the Bill could be recommitted to Committee at any stage between now and Third Reading. The procedures are in place, so I cannot understand why this important decision should be taken in great haste without the full information being available.

Earl Ferrers

My Lords, I would not wish to enter that particular—

Viscount Bledisloe

My Lords, could we have an answer from the Lord Chancellor?

Lord Falconer of Thoroton

My Lords, first, I am very much in the hands of noble Lords who are moving amendments. I must wait and see what is said in relation to them. I am very struck by the speech made by the noble Lord, Lord Crickhowell, as I always am. He was my tormentor in relation to the Dome and, once again, he has showed his accountancy prowess in relation to the questions that he has asked. I have no desire to bounce anyone into a decision today. There is a fundamental difference between myself and the noble Lord, Lord Crickhowell, in this respect. I will certainly endeavour to answer all of his questions in my reply to this debate.

I do not believe that the noble Lord, Lord Crickhowell, is saying, "You've got to produce, as it were, a contract and all of the costings available", because we will not reach that point before the Bill has completed its course through Parliament. I think that the noble Lord is saying that we need to have an order of magnitude and some confidence that the order of magnitude is accurate to reach the balance that is required in determining whether we go ahead with the Supreme Court. With respect to the noble Lord, that would seem sensible to me. I believe that I have done that in relation to the statement that I have made, but in my speech I shall certainly endeavour to answer the noble Lord's questions.

As the noble Lord, Lord Elton, said, there is nothing to stop us resolving the issue next Monday, although it is not normal to resolve issues of that magnitude on Third Reading. Indeed, according to the Companion, Third Reading is for delivering undertakings by the Government, drafting issues and clarification of issues of difficulty. So it would be very unusual to resolve this issue on Third Reading. I believe that I have broadly complied with what I said I would do. As the noble and learned Lord, Lord Lloyd, rightly pointed out, the order of magnitude of costs has broadly remained the same throughout. That seems to be the critical issue that this House must focus on in making the decision.

But I have no desire to force noble Lords to make a decision earlier than they would wish to. So, if the noble and learned Lords, Lord Lloyd and Lord Howe, are not going to press their amendments, I shall do nothing to precipitate a vote in relation to them. I am sorry that that would mean that the noble Viscount, Lord Bledisloe, would leave and not listen to the debate, which I am sure will be edifying in every respect.

The only point that I wish to make in conclusion is that I do not think that noble Lords should expect a great tome of material, setting out who I intend to contract with in relation to Middlesex Guildhall, because I am nowhere near contracting with anyone. All that I can do is to provide an order of magnitude in relation to the figures and that would be the right basis upon which the House could make its decision, rather than acting as if it were a planning committee.

4.00 p.m.

Lord Howe of Aberavon

My Lords, it may help the House if I intervene at this point to speak to the amendments in my name which are grouped with the amendment that has been moved by the noble and learned Lord, Lord Lloyd. On the particular point, as I understand the position, because of the proposed existence of a sunrise clause, any final decision about the adequacy of financial supervision of the premises, and so on, in detail, will be postponed until the sunrise clause begins to operate—whenever that may be.

The underlying principle of whether we support the concept of establishing the Supreme Court away from these premises is also something that we have to decide. If I read the Lord Chancellor's intervention correctly, he would not wish to press the House to a decision on that matter, covered as it is by the amendments moved by my noble and learned friend Lord Lloyd and the amendments tabled in my name.

Perhaps I should apologise to the House for my tardiness in developing the alternatives that I propose, because I had discussed the matter in the Select Committee before we completed our work, as colleagues will remember. As my colleagues may also know, since that time I have not been operating on all four cylinders until quite recently, and so I take this opportunity to put my ideas before the House today.

Those ideas are based upon two propositions. The first concerns the lack of convincing credibility of the financial and technical aspects of the plan under consideration by the noble and learned Lord the Lord Chancellor, as already adumbrated by my noble friend Lord Crickhowell and, indeed, by the noble and learned Lord, Lord Lloyd. Are the figures and the analysis sufficient to enable us to go down that route?

I do not believe that the case has been made for the total physical and institutional separation of the Supreme Court from this House, which has, heretofore, been the Supreme Court. I can understand the changes that are proposed in the Bill in relation to the constitution of the Supreme Court, but I suggest to your Lordships that there may well be a middle way which would allow us to avoid the upheaval involved in the transplantation of the institution from this place.

Perhaps I may say a word about the amendments standing in my name. Amendment No. 35B provides that the Supreme Court shall be, situated within the House of Lords, but not entitled to use the chamber of the House of Lords for the hearing of appeals or the giving of judgments". Amendment No.135A, which is grouped with it, concerns the situation of the Supreme Court. It states: The Supreme Court will be situated within the House of Lords", and, Any plans drawn up by the Minister under section 107(3A) shall concern solely accommodation within the Palace of Westminster and its dependent buildings and be subject to approval by affirmative resolution of [this] House". Therefore, the first of the two ideas that I commend is that the Supreme Court should continue to function on these premises.

The second idea, which is covered by Amendment No. 37A, is that: Nothing in this section shall preclude judges of the Supreme Court from continuing to use the style of Lord of Appeal in Ordinary"; in other words, they need not be summarily expelled from this House if a Supreme Court continues along that line.

One implication of this approach, to which I shall return later, is that the financial arrangements for the funding and management of the Supreme Court, if addressed in that way, would remain as they have done until now under the control of this House and of Parliament. Any alternative, involving the intervention of the executive through a Minister, would not be necessary if one continued along the path that I have in mind.

My central reason for arguing against the upheaval involved in the provision put forward by the noble and learned Lord the Lord Chancellor is covered by one paragraph in the report of the Joint Committee. Paragraph 130, which is described as part of the common ground, contains a very important proposition. It states that, the overwhelming view—which the Government accepted from the outset—is that the Appellate Committee of the House of Lords has a high reputation at home and abroad for excellence of its judgments, its efficiency and the probity of its judges. It is accepted that as a matter of fact the Law Lords are independent of pressure of any kind … from either Parliament or the Government". One other sentence in the report states that even people who are in favour of reform identify the risks involved in change. That is why one has to approach this decision with a great deal of caution.

I turn to the grounds already referred to by the noble and learned Lord, Lord Lloyd, for the reasons given for change. One that he did not touch on directly is the suggestion that the existing accommodation provided for the Law Lords is cramped, crowded and inconvenient. I have never had the privilege of serving in those premises, nor even of glancing at them. But that is not a view unanimously maintained by the Law Lords.

One feature should be taken into account. If the Lord Chancellor's office and role are redefined as already proposed in the Bill, the amount of accommodation required for the Lord Chancellor's Department, which is in close proximity to the office where I lurk in the building, would be significantly less than it was a year or so ago. As regards the matter of additional accommodation, the Law Lords themselves are by no means united in expressing dismay at the size of their present premises or enthusiasm for moving somewhere else.

The second matter raised—I know that the senior Law Lord, the noble and learned Lord, Lord Bingham, attaches importance to this—is that there is insufficient quality in the public access to Committee Room 1 in which the Law Lords currently sit. That is a matter with which we can deal. Clearly it would be possible to transform what is now rather modestly described as the Black Rod's Garden entrance—with great respect to Black Rod, it sounds like access to the garden shed—into the Supreme Court entrance. It is possible to present it, as other entrances are identified, as the place to which people come in order to attend the hearings of the Supreme Court of the country in its present location.

The present location is, indeed, one feature to which the Law Lords attach considerable importance. They have made it very clear that they do not want their new location to be a grand, court-like building, with them sitting on high and the poor folk sitting down below. They want to simulate and, indeed, maintain the informality that exists at present between them and the counsel and litigants who appear before them. So, if we were to follow the lines proposed in the amendments tabled in my name, an advantage would also be gained in that respect.

It is that informality which is an ideal and which those in support of change wish to combine with supreme grandeur in the external appearance of the premises. I think that the noble and learned Lord, Lord Bingham, referred to the tourist traveling around Singapore, pointing to a huge building and saying, "Is that not grand? That is our Supreme Court". If he wished to, he could do the same in Hong Kong—one of the achievements of the continuing relationship with the Chinese. But if one went to this grand building and found oneself in a modest little lounge, as it were, that would be a curious contrast. I believe that there is a great deal to be said for the continuity involved in maintaining that modesty, which has earned respect around the world.

One other feature is the perceived subordination of the Law Lords to this parliamentary assembly. One might ask: "Is not the Judicial Committee just a lot of people appointed by you parliamentarians, rather like the corresponding body of the National People's Congress in the People's Republic of China?". One had some difficulty in discussing the difference between a committee which is a subordinate of the NPC and our Appellate Committee, which is a "subordinate of this House". But, of course, it is in no sense subordinate.

It would be even less subordinate if the appointments followed the pattern now set out in the Bill. I am proposing that that should he made clear by making it manifest that judgments will no longer be given in this place. Judgments will be given as the arguments are heard in the informality of the Committee Room in which the Law Lords have conducted their work so far.

I listened with interest to the points made by the noble and learned Lord about the separation of powers. I can add very little to what he said on that matter. It is well known that the executive and the legislature are joined irretrievably in both Houses of Parliament. But no one has ever suggested that impropriety or negative consequences ensue from the presence of Law Lords in this House, and no suggestion has ever been made that that undermines the independence of the Law Lords. On the contrary, the Law Lords themselves say that it is of value to them to be able to listen to the proceedings in this House, to sit in this House and to be part of the law-making establishment.

I know that the noble and learned Lord the Lord Chancellor has sought to make a distinction between judges and lawmakers, but there is such a thing as judge-made law. The Law Lords have told us that, when they consider the statutes that they have to apply, they find it valuable to have been in proximity to those who have argued about them in this House. In so far as they remain able to take part in proceedings here, they can contribute in the opposite direction.

From a constitutional point of view, I see no difficulty in the absence of separation of powers. Indeed, to see some of the consequences of following those arrangements too slavishly, one need only look at countries such as Ukraine, where there is undue separation of powers. Ukraine has attempted to emulate the American model by having strictly separated powers between judges, the executive and the legislature, and they have not learnt, as the Americans have after some 200 years, how to manage gridlock in that situation. Perhaps the Americans had the advantage of a rather different factor: for 100 years their Supreme Court was in the same building as the legislature. None of those physical points should be regarded as decisively important.

My last point is that covered by the second part of my amendment, that the Law Lords should retain the style and title of Lords of Appeal in Ordinary. I do not thereby mean that there should be no change in the present arrangements; indeed, that is probably shorthand for what I mean. I believe that they should remain, not just sitting hearing cases and adjudicating in these premises, but that they should also be part of your Lordships' House. It is perfectly possible within that arrangement to provide, by convention or by other means —by rules of the House, if necessary—that they do not vote. As far as I am aware, they scarcely ever, if at all, vote at present.

It is also perfectly possible to provide that they do not speak. I do not regard that as an ideal conclusion because, clearly, the contribution of those Law Lords who preside over Select Committees of this House, when working in that role, is important. Of course, it is perfectly possible to provide that, while sitting as judges, they do not sit, speak or vote in the House, but when they come to retire, they will automatically be part of the House.

It should be possible, along those lines, to find a conclusion that will be more consistent with our constitutional history. I am not someone who stands in flat opposition to reform or change. When I was younger I sometimes had a rather disreputable reputation for being a dangerous radical. However, I am perfectly prepared to contemplate the kind of changes involved in Part 3 of the Bill and I am perfectly prepared to contemplate some of the other changes.

The case has to be made out more firmly than it has been so far for the transplantation of the institutions that work so well in joint harness in this House. I believe that adequate arrangements can be made for their continuity along the lines that I have suggested. I suggest that those arguments should be kept in mind when the time comes—whenever that may be—to decide the answer to the points raised in the amendments moved by the noble and learned Lord, Lord Lloyd.

Lord Grabiner

My Lords, unfortunately, I cannot be here on Monday, so I hope that I shall be forgiven for putting in my pennyworth on this occasion, even if the amendment is not put to a vote.

Like many lawyers, I am quite conservative when it comes to root and branch reform of our constitution. On the whole, I favour the view that if it works, let it be. As a result, I agree with the retention of the office of the Lord Chancellor. I am quite relieved that the holder of the office will, it seems, be a lawyer of distinction. I am not a slavish adherent to the strict doctrine of the separation of powers, which has never been our way.

That said, I believe that we should have a Supreme Court which will be, and will be seen to be, independent of the legislature and of the legislative process. We are promised a building away from the Palace of Westminster which will be suitable for its purpose. Mechanics are in place in the Bill so that the commencement of the Act will be deferred until the building is ready.

My noble and learned friend the Lord Chancellor is right. We should have a truly independent and properly financed Supreme Court away from your Lordships' House. That will produce greater clarity in the public understanding of the role of our final court of appeal. The Supreme Court will discharge its functions away from the politics of this place. The working conditions of our most senior judges will be improved as will public access to the highest court in the land. Those are important and often underestimated considerations.

In truth, the amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick, are wrecking amendments. The practical effect of his proposals would be to undermine the purity and common sense of the new Supreme Court. In my view, that would not be a wise step for the House to take. Noble Lords should take this opportunity to strike a progressive note. The concept in the Bill is the right one. In my view, blowing hot and cold about it would be a mistake.

4.15 p.m.

Lord Waddington

My Lords, I rise with some diffidence because I did not serve on the Select Committee, but I spoke to some of these matters at Second Reading. It is right at this stage to revert to the basic arguments in favour of and against a Supreme Court.

I am prepared to take the amendments at face value and state bluntly why I am against the proposal. We now know that the Bill, including this proposal, saw the light of day as a result of the decision of a cabal, without any consultation with the Lord Chancellor of the day, the Lord Chief Justice or anyone else, and clearly, in my belief, without careful weighing of the advantages and the disadvantages of the establishment of a Supreme Court. We should certainly carry out that careful weighing operation now, before any decision is reached.

The other day the noble and learned Lord, Lord Woolf, the Lord Chief Justice, told us that, so far as he was concerned, the reasons for setting up a Supreme Court were that it would be, more accessible to the public; it would be more in accord with the separation of powers; and its role would be more understandable to the public".—[Official Report, 7/12/04; col. 758.] However, at no time did the Lord Chief Justice suggest that it was necessary to carry out that step or we would be in contravention of the law. Of course, it hardly needs saying, but when that step has been taken, we certainly shall not have a constitution that, for one moment, begins to comply with any doctrine of separation of powers, as the Prime Minister and members of the Cabinet are all members of the legislature.

At no time was it suggested by the noble and learned Lord that the Supreme Court would work better; it has never been suggested at any time that the court will dispense better judgment; and it certainly was not and is not suggested that better judges will man the court, for the simple reason that they will be precisely the same judges as serve as Lords of Appeal now. Like the present Lords of Appeal, they will, in the words of the consultation paper, be people of outstanding integrity and independence, wisely and rightly admired both nationally and internationally. Nothing will have changed.

It is painfully easy to spell out what will be lost if the change is made. For a start, this House will lose the experience and wisdom of the Law Lords, who add lustre to this place and give wise counsel on criminal justice and legal matters. It should not be forgotten that they make a distinguished contribution to our work in committee. Judges will lose a forum in which they can defend judicial independence and fight measures inimical to the proper administration of justice; and taxpayers will lose the very substantial sums of money that the new Supreme Court will cost.

It is argued that it is essential that if there is to be a Supreme Court it must occupy a distinguished—the noble and learned Lord the Lord Chief Justice said "prestigious"—building. That is a very costly operation. I see no reason why such a Supreme Court should not operate within this building, as suggested in the amendment tabled by my noble and learned friend Lord Howe of Aberavon.

However, it cannot be denied for one moment that if we are to embark on this course and have a special building from which the Supreme Court can operate, it will cost money and people will ask why we are embarking on this form of expenditure at this particular time.

My noble friend Lord Crickhowell was right to remind us of what has happened in Scotland with its Parliament building. The preposterous goings on regarding that building should be a lesson to us all. They certainly have done nothing for the reputation of the Scottish Parliament. I fear that the public, who know that the Law Lords' work is carried on with great distinction within this building, will not leap with joy at the news that a new building is to be acquired and adapted at considerable expense to enable precisely the same judges to carry on precisely the same work.

As I pointed out at Second Reading, it by no means follows that as the work proceeds under the expert supervision of the Lord Chancellor and costs spiral out of control Dome-like, the only people who will be criticised will be the politicians. My fear is that some of the mud will stick elsewhere and people will begin to question why on earth the Lords were foolish enough to go along with the plan. So I think that it is time for us all to pause, to weigh in the balance the advantages and the disadvantages and to ask—if I may change the metaphor—whether the game is worth the candle. I do not think that it is. I support the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick.

Lord Ackner

My Lords, I should like to add a few words on a matter which has not yet been touched on. The noble and learned Lord, Lord Falconer, told us that today we were really concerned with the order of magnitude of the costs. That was what he thought we should concentrate on. One matter has not been mentioned on the order of magnitude, so perhaps I may deal with it.

Your Lordships will recall previous considerable discussion on how the costs of administering justice have escalated by the Government's policy decision to recover from litigants the full costs of administering justice. The phrase which may come back to your Lordships is the reference to the fact that even the cost of the cream for the office cat has now to be paid by the litigants. Your Lordships will recall how the salaries of judges, the costs of maintaining the building, the capital costs and the like, now feature as part of the costs. That has led to considerable resistance by the judges, who have had to agree under threat that if they did not the vote which the Lord Chancellor's Department depended upon for financing everything in the administration of justice would be prejudiced.

I understand that the cost of the new Supreme Court is likely to be 10 times the cost entailed in running the House of Lords. That is 10 times the cost of what is paid by litigants for the benefit of being able to take a case to the Lords. The Lord Chief Justice stressed the point that not a penny of new money will be provided by the Government for the new Supreme Court. I understand that instead of loading the 10-times figure on the litigants in the House of Lords or in the Supreme Court, the costs will be spread about the whole of the civil administration of justice. Therefore, litigants will be expected to contribute to the costs of litigation in the House of Lords, despite the fact that the House of Lords in its judicial capacity is essentially making decisions on questions of policy. That is what differs it so much from the High Court and the Court of Appeal. Leave to appeal is granted largely on the basis that an important policy issue is involved.

So we shall have the absurdity of a litigant in the High Court in a personal injury matter—so no policy is involved and the question is purely one of quantum—having to contribute to the costs of deciding some abstruse point which may be largely conditioned by the European approach in matters of natural justice and the like.

However, the matter does not end there, because the litigant will have to contribute not only to that, but also to the costs—which are considerable—of moving out those who currently occupy the premises which the new Supreme Court is to occupy. Those are part of the costs of the new Supreme Court. So in addition to the costs which have been referred to are the very significant costs which the Government should themselves be defraying. I ask the noble and learned Lord, Lord Falconer, to tell us whether any other major Commonwealth country looks to the public largely to defray the costs of administering justice, or whether the situation is—as it was in this country not very long ago—that the administration of justice is part of the obligation of any democratic country to defray, leaving minor court costs to be paid by the litigants. It is for that reason that I urge that added to the high costs that have been referred to should be those additional costs, which have been overlooked.

4.30 p.m.

Lord Richard

My Lords, I share the view expressed by the noble Viscount, Lord Bledisloe, at the outset of the debate. I am not exactly certain what we are debating this afternoon. We have heard various speakers, all of whom have complained that we are not in a position to take a decision today. We have also heard speeches in favour of taking a firm decision today, notably that of the noble and learned Lord, Lord Lloyd. If his amendment were passed, it would be a clear decision against the establishment of a Supreme Court. We have also heard of a halfway decision from the noble and learned Lord, Lord Howe.

When the noble and learned Lord, Lord Lloyd, was speaking, I took down a note of one of his sentences. He said: "We are not like modern democracies". Precisely so. I must say that that seems to me to prove the case on our side of the argument, not on his. I want us to be a modern democracy. I think that most people in this country would want us to be a modern democracy. We should therefore ask ourselves what being a modern democracy entails.

In a parliamentary system of government, it entails one thing for certain: governments are formed from the party that has a majority in the legislature. I find no offence in the proposition that the Executive should sit in the House of Commons, in Parliament. That is the essence of the system. If it were otherwise, it would be an entirely different system of government. But I find it somewhat offensive that judges should be legislators and sit in a House of the legislature.

It is interesting how the argument has developed over the months. Every time that those of us on this side of the argument have made that point, the answer has come back, "Well, of course they need not sit". Very well, then why are they here? Or it is argued that they need not speak. Again, why are they here? Or it is argued that they should not be allowed to vote. Again, why are they here? I know not.

I was fortified in that position when the noble and learned Lord, Lord Ackner, mentioned other common law jurisdictions. As far as I know, neither Canada, Australia, New Zealand nor South Africa has found it necessary for their Supreme Court judges to sit in the legislature in order to absorb this miasma or atmosphere—I am not quite sure what it is—that somehow seeps from the House of Lords and infects the judiciary so that they can be better judges than they would otherwise. I do not believe that for a moment.

I happen to be a slightly old-style separationist when it comes to powers, and I think that the presence of judges in the legislature is offensive, arcane and way out of date, and it is time that something was done about it. The question is what.

Lord Carlisle of Bucklow

My Lords, I thought that the noble Lord had finished his speech.

Lord Richard

No, my Lords, I am afraid not. The noble Lord will have to restrain himself a little longer. If he gets up too often, he might even encourage me.

I now want to deal with the proposition advanced by the noble and learned Lord, Lord Howe. In our previous debate, the noble and learned Lord, Lord Lloyd of Berwick, used the phrase: "If it looks like a duck and quacks like a duck, the chances are that it is a duck". As I see it, if the proposition made by the noble and learned Lord, Lord Howe of Aberavon, is accepted, we will have someone who looks like a Law Lord. He will be a Member of this House—a Lord—and will give judgment in this building, as Law Lords do. In those circumstances, it is a bit difficult to see precisely how he will differ from the existing Law Lords who sit in your Lordships' House, except perhaps in name.

If I could see a way to do it, I would perhaps be prepared to come halfway to meet the noble and learned Lord, Lord Howe, but I do not. If he is proposing that the Supreme Court, which is separate from the legislature, should be housed in part of this building, one would want to consider that proposition. But if the proposition is that they should continue to be housed in this building; that, as I understand it, they should have a separate entrance; but that nevertheless they should still be Members of this House and be entitled to participate in debates of this House, that is not a compromise at all. If anything, it is a proposition that is designed to confuse rather than to elucidate. So I am not in favour of that.

For the benefit of the noble Lord, Lord Carlisle, I am just coming to the end of what I want to say. I hope that if we take a decision today, it will be taken firmly on the basis that something must be put right when we have judges sitting in the legislature of a parliamentary system of government—which is, as far as I know, not followed in any other parliamentary legislatures that have a common law jurisdiction. I hope that the time has come when it will cease to be followed here.

Lord Carlisle of Bucklow

My Lords, I hesitated to intervene in this debate because, I confess, the train on which I travelled down was two hours late arriving and I therefore missed part of the opening speech by the noble and learned Lord, Lord Lloyd. I decided that I was entitled to do so despite that, if for no other reason than that it gives me a chance, as a member of the Select Committee, to add my congratulations to those of other members of the committee to the noble Lord, Lord Richard, on the way that he handled that committee.

I shall be brief. The argument for having a Supreme Court is obviously in effect, as the noble Lord, Lord Grabiner, said, one of principle. The principle is based on the separation of powers and yet it has been conclusively shown by many speakers in this debate and the evidence given to the Select Committee that the separation of powers does not really apply as a principle in this country. So we are not considering a major change of principle but a change in perception between the House of Lords, the Judicial Committee and the Supreme Court.

What is there to put against that perception? There is the fact that the practicalities of change will be very few. We will have the same number of the same judges, who will be required to have the same qualifications—all those matters were agreed in Committee—doing the same work as they do at the moment. More importantly—I will not repeat what my noble and learned friend Lord Howe said—it is accepted that they have a high reputation at home and abroad for the excellence of their judgments. The Government accepted that their probity and ability was beyond question. So we are being asked to spend a substantial amount of money to find a new building outside this one for what I suggest are no practical advantages at all.

In the Select Committee, we also heard of the advantages to this House of having the Law Lords as Members: the advantages from the point of view of the House, in that the Law Lords take part as chairmen of committees and such things; and the advantages, according to the Law Lords, that they get from the atmosphere that they absorb. Therefore, not only will there be little change in practice, we will lose that which we have. The noble and learned Lord the Lord Chancellor says that we could deal with that by making them Law Lords or Lords Peers as members of the Supreme Court. If one did that, one would have to make all Members members of the Supreme Court and that would have to be done when they were appointed rather than later.

As my noble friend Lord Crickhowell said, the expense becomes very central and relevant to the argument. I have just seen the Lord Chancellor's Written Ministerial Statement, which, apparently, is based on the fact that he has come to the conclusion that the Middlesex Guildhall is the preferred option. He has made it clear throughout that this was a conclusion that he wished to reach in consultation with the Law Lords. It states: The Law Lords have continuing reservations as to the suitability of this building to house the Supreme Court of the United Kingdom". That seems a rather watered down statement. I understood at the time of the evidence that the Law Lords were totally opposed to the use of the Middlesex Guildhall because it is unsuitable both externally and internally.

Therefore, I suggest that the cost, which will be at the very least £38 million and probably more, is not justified by anything that we will achieve from this move. That is why I will support the amendment tabled in the name of the noble and learned Lord, Lord Lloyd, if it is put to the vote today.

Lord Tordoff

My Lords, we have had no one speak from our Back Benches. Perhaps a non-lawyer may be allowed to speak in this debate. I presume that we have not changed the rules quite so much today as to go that far. We have obviously changed the rules for proceedings at Report stage: we are now told that we will have amendments at Third Reading which are fundamental to the Bill. I deplore that. Taking between six and nine clauses from a Bill at Third Reading is a complete negation of the procedures of your Lordships' House. We should do that with great caution.

I have listened with great interest. I have a strong sense of déjà vu. When people start number crunching on important issues of principle such as this, I am reminded of the days when there were great arguments about the setting up of coeducational comprehensive schools. The argument used to revolve not around the benefit to the children of having coeducation but the cost of the changes that were necessary to the lavatories. So many building plans were delayed because of that really important position. I fear that we might be getting into the same thing here. But that is not really what I stood up to say.

I want to point out that it is now quarter to five. We have been dealing with the first amendment for one and a half hours. There are 30 groups of amendments. Do the Government have any idea whether we intend to go home tonight, whether we intend to get through Report stage today and, if not, what will happen to the rest of the Bill?

Earl Ferrers

My Lords, rather like the noble Lord, Lord Tordoff, as a non-legal person perhaps I may join the debate. One of the fascinations of any debate on anything to do with the law is that we get a number of noble Lords and noble and learned Lords taking part and going over everything with a fine toothcomb. I would not venture to enter into the intellectual heat that is generated by noble and learned Lords or noble Lords who are knowledgeable of the law.

I shall look at the matter from a slightly different position. We have heard much about the independence of the judiciary and the protection of the law. On 7 December, the noble and learned Lord the Lord Chief Justice said: I urge your Lordships to recognise that, if we value an independent judiciary and its task in protecting our personal freedoms, we should ensure that this Bill reaches the statute book".—[Official Report, 7/12/04; col. 759.] On the same date, the noble and learned Lord the Lord Chancellor said: As to the third function—namely, ensuring the independence of the judiciary and the rule of law, which is vital—it is impossible to ignore the speech of the noble and learned Lord, Lord Woolf. He has made it clear that the new arrangements which he specifically put to the House … provide better protection for the independence of the judiciary than the current arrangements".—[Official Report, 7/12/04; col. 775.] I am bound to say that I find that argument hard to follow. If the future is going to be better than the past, the inference is that the past was poor, unstraight or somehow inadequate. I do not find that at all an attractive proposition. I have always thought—I think that every noble Lord has always said—that the British system of justice is the best in the world.

4.45 p.m.

People come from other countries to see what we do and how we do it. They marvel at it. Yet we dismantle it on some pretext of improving it. Of course, anything can be improved, but does one really have to get hold of the Law Lords, unseat them like forking cabbages out of a garden, knock all the soil off and then plant them in a different place of residence? That is not necessary.

If we do that, will the people of the country exclaim with excitement, "Ah, now we have a Supreme Court just like all the other emerging countries in the world. Now our law will be safer, less corrupt, more transparent"—whatever that may mean, but one has to use it on every occasion nowadays— "and it will give better judgments"? With the greatest of respect to your Lordships, if one believes that, one will believe anything.

In my modest view, the people of this country, in so far as they take any interest at all in these things, will say that it is a complete waste of money, it is an increase in bureaucracy and that we will have lost that which we have always respected; namely, the judgment of the House of Lords.

The new body will have to earn its respect. We should not be under the misapprehension that the respect in which the Appellate Committee of your Lordships' House is held will automatically transfer to the new body that government speak might love to call "a seamless legal transfer"

Apart from my overall dislike of the prospect, I have two fundamental concerns. My first concern is the further disfigurement of the membership of your Lordships' House. It was only a few years ago that the great rage was to get rid of hereditary Peers. That occupied your Lordships' and everyone else's minds perpetually ad nauseam. It was decided to get rid of all of the hereditary Peers. Then the Government decided that the House of Lords could not do without them so they had 100 of them back. I am bound to just mention in passing that we are the only Members of this House who are elected.

Not satisfied with that, the Government turned around and said, "Now we want to get rid of the Lord Chancellor". It was only due to the amendment of the noble and learned Lord, Lord Lloyd of Berwick, last week that that was put on the back burner temporarily. Now the Government say, "We want to get rid of the Law Lords; get rid of them altogether".

What will be left? Just before answering that question, I should warn the right reverend Prelates—at least there is one here. I remember a quotation from the book with which he is familiar. It is something that he will probably remember better than I: Don't sleep—keep awake because a thief comes in the middle of the night". The right reverend Prelates will be the next to go. The Government, given half an opportunity, will change their numbers from 26 to 15.

Who will be left? It will be only—with the greatest of respect I say "only"—our dear friends the life Peers. And they will be the next to go. Make no mistake about it. There will be alterations and that will happen.

I want to know why the Government are doing that to your Lordships' House. Why are they ruining the second Chamber of Parliament? Why are they denuding Parliament from the benefits and wisdom of the Law Lords? Why do they continue like vultures to pick at the carcass of your Lordships' House in order to try to consume anything that they can? Everyone knows—it is constantly repeated—that there is no other Chamber in the world with such knowledge and wealth of experience as your Lordships' House. Much of that comes from the noble and learned Lords, the Law Lords, as well as others. I find it extraordinary that this House should be denied that expertise and rendered bereft of it.

People talk about the separation of powers, but no one has ever suggested that Law Lords, in the operation of their work, have used their seats in this House in making their judgments, or that their experience here is such that, when they do make contributions, they do so with the knowledge they have gained over the years in dealing with the law, with criminals, and doing what they do.

My second concern is what the court will cost. On 8 March last, the noble and learned Lord, Lord Lloyd of Berwick, said: The current gross cost of running the House of Lords as a judicial body in this House is given [in a report from the Select Committee] as £623,000. The net cost—that is, net of fees—is £168,000. I would expect your Lordships to be astonished by those figures". One noble Lord was "staggered" by them. The noble and learned Lord went on to say of the new court: The capital cost is given as between £6 million and £32 million. which seems a wide bracket. The annual running costs, excluding Law Lords' salaries so as to make it comparable with the other figures I have given, will amount to £8.7 million".—[Official Report, 8/3/04; col. 995.] I gave the noble and learned Lord the Lord Chancellor notice that I would ask this question: how do the Government justify increasing the cost of servicing the Law Lords from £168,000 to £8.7 million? Those might be called Mickey Mouse figures. I do not understand how they can contemplate that kind of expenditure when, in another breath, they want to get rid of the band of the Coldstream Guards because they cannot afford it. I should declare an interest since I did march to the happy tune of the band of the Coldstream Guards, and that made me a better person than I would otherwise have been.

Sometimes I think that we really have gone mad. What will we get for all this extra expenditure? My noble friend Lord Waddington asked whether we will get better judgments, better lawyers, or different lawyers? Will we get quicker processing of waiting lists?

I had not realised, when I wrote to the noble and learned Lord the Lord Chancellor asking him to explain this, that his explanation would be made this morning in a Written Ministerial Statement. I felt a momentary excitement because I thought that I had made an impression on the Government because they put out a Statement before I had even asked the question. But of course such inflated arrogance soon went back to its normal position when I realised that the noble and learned Lord gave those figures as a result of the amendment put down by the noble and learned Lord, Lord Lloyd.

I fear that we are going to get more bureaucracy and a lessening of the huge respect presently enjoyed by the Law Lords as they are gradually merged into the pompous anonymity of a Supreme Court.

Baroness Carnegy of Lour

My Lords, in the midst of so many distinguished speakers, my natural diffidence has made it difficult for me to follow up the words of my noble friend Lord Crickhowell rather earlier in the debate. I turn to the question of the broad cost set out in the Statement of the noble and learned Lord. Indeed, he was kind enough to send it to me a day in advance. It details the capital costs of setting up the Supreme Court, should it be at Middlesex Guildhall.

My noble friend referred to what happened to the Parliament building in Scotland. I want to ask the noble and learned Lord whether he has taken into account the fact that it is much more difficult to estimate the cost of altering an old building than of constructing a new one. Anyone who has been involved in large expenditures within government, local government or even in commerce will know that. Moreover, it is particularly important to ensure that the right sort of contract has been agreed.

The noble and learned Lord quoted £30 million as the broad estimate of what the renovation will cost. Even the most enthusiastic supporters of the notion of a separate Supreme Court will not disagree that the broad cost must be understood before any decision is taken. On behalf of the taxpayers of this country, that is only right.

The noble and learned Lord has explained that the figure was calculated by looking at what the base costs might be —the construction costs, statutory fees, professional fees and VAT—and then adding half as much again to cover risks, unforeseen issues and changing project specifications. I know from experience that when making alterations to an old building, the risks and unforeseen issues are enormous. We need to know how confident the noble and learned Lord is that he is in the broad area of expenditure or, as happened in the case of the Scots Parliament, might the costs multiply by 10?

I see that my noble and learned friend Lord Fraser of Carmyllie is in his place. In his report he criticised the process used in the building of the Scots Parliament. Can the noble and learned Lord confirm, first, that he is confident that the £30 million estimate is roughly the right figure, or, like the Scots Parliament, could it swell to 10 times as much? Secondly, can he assure us that the contract is properly suited to making alterations to an old building—controlling costs before the project starts and not as it goes along, which is what happened in Scotland?

I hope that the noble and learned Lord can respond to those two questions because, however cautious or enthusiastic one is about the proposal for a Supreme Court, they are part of the bigger decision we are discussing.

4.45 p.m.

Lord Goodhart

My Lords, we have heard comments today from the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, and from a number of others, about whether we should have a separation of powers between the judiciary and the legislature. Most of them said that it was unnecessary. However, I do not believe that the question here is whether we should have a separation of those powers, but whether we should recognise the separation which has already happened. These powers are already separate.

The lay Members of your Lordships' House do not sit as Members of the Appellate Committee, and have not done so since it was first set up; nor do lay Members of your Lordships' House vote when the Law Lords are sitting in the Chamber in order to vote on their decisions. Serving Law Lords rarely speak and hardly ever vote in this House. The senior Law Lord, the noble and learned Lord, Lord Bingham of Cornhill, has expressed the view that they should not do so.

In fact, two serving Law Lords did vote on the Hunting Bill. I do not think that that was a breach of any formal rule, but some of us—including those, like me, who voted the same way as the two Law Lords—believe that it was unwise of them to take part in a contentious legislative decision. It was inconsistent with the developing convention that serving Law Lords do not speak or vote.

The only official role of serving Law Lords in the business of your Lordships' House as a legislative body is that two Law Lords serve as members of the Committee for Privileges, which hardly ever meets, and one is the chairman of Sub-Committee E of the Select Committee on the European Union. To be chairman of one of the seven sub-committees of one of the several Select Committees of your Lordships' House is a tenuous link between judicial and legislative duties and one that, I believe, could be replaced with little difficulty.

As the noble and learned Lord, Lord Bingham, has said, the Law Lords are judges, not legislators. Conversely, in this Bill we are recognising that the Lord Chancellor is a legislator and therefore cannot be a judge.

It is true that some Law Lords wish to remain here. Your Lordships' House is indeed a very pleasant and beguiling place and, no doubt, many Law Lords enjoy being here. But it is hard to see that membership of your Lordships' House adds any benefit to Law Lords in their judicial role.

5 p.m.

Holding a peerage is a distinction, but I believe that it will be a much greater distinction to be one of 12 Justices of the Supreme Court than to be one of 700 Members of your Lordships' House. The respect in which we hold the great Law Lords of fairly recent times—such as Lord Radcliffe, Lord Reid, Lord Wilberforce and Lord Scarman, who, sadly, died only last week—would have been no whit diminished if they had been members of the Supreme Court and not of your Lordships' House.

Powers are indeed separated in constitutional practice, and the amendment moved by the noble and learned Lord, Lloyd of Berwick, would preserve what is now only the appearance and no longer the reality; it would preserve the shadow and not the substance. The description of your Lordships' House as the highest court in the land is confusing to ordinary citizens of the United Kingdom and even more so for foreigners. Nor does it add anything to the regard in which the courts of the United Kingdom are rightly held and will continue to be held if the Law Lords move to a Supreme Court.

It is wrong that the judges of the highest court in the land should have to hear cases perching in two of the Committee Rooms of your Lordships' House and not in their own court building. It is wrong that they should have pokey rooms in the Law Lords Corridor rather than proper offices of their own. It is wrong that public access to the sittings of the Appellate Committee is so difficult—particularly now with the heightened security—and that accommodation for the public in those rooms is so bad.

The Statement published today by the noble and learned Lord the Lord Chancellor makes it clear that great advantages to the judges, to the litigators and to the public will result from moving to the Middlesex Guildhall. I see no reason why a vote on that principle should not take place, at least on Monday. The sunrise clause will prevent the Law Lords being moved until the Minister has approved plans for the building that he is satisfied will be appropriate after consultation with the Law Lords. I assume—no doubt the noble and learned Lord will confirm this—that those plans cannot be approved until obstacles such as the objections of English Heritage have been overcome and planning permission has been obtained, at least in outline. The sunrise clause does not require the consent of the Law Lords, but the decision of the Minister that the plans are appropriate will be judicially reviewable and can be overturned if they are unreasonable.

The final decision about an appropriate home for the Law Lords cannot be taken until the Act is in force. I accept that the Statement of the noble and learned Lord the Lord Chancellor would better have been made considerably earlier, but there is nothing in it that has not been foreshadowed by the evidence to the Select Committee or which requires any delay to Third Reading. The suggestion made by the noble Lord. Lord Crickhowell, that your Lordships' House should become the arbiter of whether the plans are good value for money is unworkable.

We all know that justice must not only be done but must be seen to be done. A similar principle applies here. Powers must not only be separate—as in substance they are—but must be seen to be separate. I can see no merit in preserving the fiction that the upper House of Parliament and the highest court in the United Kingdom are a combined and indivisible whole. That may have been true in the distant past, but the falsity of that fiction is becoming more obvious every year.

I wish to speak briefly to the amendment tabled by the noble and learned Lord, Lord Howe. Amendment No.35B is an attempt to create a middle way. The amendment recognises that the Appellate Committee is to become the Supreme Court and should be called that. It then states that the Supreme Court must, by law, sit in the Palace of Westminster and that its judges must, by law, receive peerages and Writs of Summons, although it is suggested that they should not vote, and perhaps not even speak, when they get here. Why on earth should that be? Once we create a Supreme Court, surely it must not be fettered in that way.

>No such middle way exists. Either we recognise the reality of the separation of powers or we preserve the fiction of union; we cannot have a bit of reality and a bit of fiction. I believe that the reaction to the proposals of observers from outside your Lordships' House will be one of incredulity. If we accept the principle of the Supreme Court, as the amendments do, it is irrational to say that it must not be a proper Supreme Court with its own building but must continue to be an appendage of the House of Lords. I hope that the noble Lords who have supported the amendments will think again.

Lord Kingsland

My Lords, when the noble Earl, Lord Ferrers, sat down at the end of his speech, I conducted a whispered exchange with my noble friend Lord Henley. We concluded that only Earls could make speeches such as the one made by my noble friend Lord Ferrers and that mere barons, whether hereditary or life, simply could not aspire to such heights of oratory.

The Government have consistently used the doctrine of separation of powers as the basis for their radical changes to our constitution and, in particular, to the Appellate Committee of your Lordships' House. I hope that the speech made by my noble and learned friend Lord Howe will have effectively dispelled any final illusions that your Lordships may have about the relevance of that doctrine to the reality of our constitution. As my noble and learned friend said, paragraph 130 of the Select Committee report gives the lie to any evidence at all of any collusion at any time between the judges of your Lordships' House and either the executive or the legislature. The noble and learned Lord the Lord Chancellor repeatedly, both to the Select Committee and in public thereafter, confirmed that that is so.

By contrast, the doctrine of the separation of powers does not seem to work at all between the executive and the legislature. Indeed, the story of most of the 20th century—particularly its last three years—and the first four years of the 21st century has been an ever-increasing dominance of the executive over the legislature. How much more useful it would have been for the Government to have proposed changes in the relationship between the executive and the legislature as a justification for using the separation of powers as a constitutional principle; instead of which they have ignored that great defect in our constitution and focused on another relationship which, in practical terms, is working extremely well.

I was struck by the irony of the idea of removing the Lords of Appeal in Ordinary from your Lordships' House. This House is one of the two component parts of Parliament; and Parliament is the "High Court of Parliament". It was originally, and still is, described as a judicial and not a legislative body. Perhaps the Law Lords should be asking themselves whether they want to throw us, the legislators, out rather than the other way around.

The Government's proposed changes have three elements to them. The first is to change the name of the Appellate Committee of your Lordships' House to the name "Supreme Court"; the second element is to change the building and the location of the final court from Parliament to, it appears, somewhere quite near Parliament in Parliament Square; and the third element is the removal of the Lords of Appeal in Ordinary from your Lordships' House.

The change of name concerns us least. It was said, very effectively, by the noble Lord, Lord Rees-Mogg, to the Select Committee that there was a danger in calling the final court of appeal the Supreme Court in this country, because it will give the illusion to the electorate that the Supreme Court has the last word about the validity of the law. That, of course, is not true because the Supreme Court will inherit exactly the same powers as those exercised by the Appellate Committee. So there is a sense in which one misleading name, the House of Lords, is to be exchanged for another.

I ought to add that the noble Lord, Lord Rees-Mogg, also made out a strong case by speculating that, although the Supreme Court will inherit only the powers of the final court of appeal, it might, rather like the Supreme Court in the United States, acquire a great deal more power as it moves from judgment to judgment. As noble Lords are well aware, the United States constitution never gave the Supreme Court power to have the last word over legislation made by Congress. It was only in the great case of Marbury v Madison in 1803 that the Supreme Court gave itself the power to strike down congressional legislation. So the Government may be taking a risk with its prized constitutional principle of parliamentary sovereignty by establishing this new institution.

The second change that is proposed is to move the location of the court from Parliament to a new building in Parliament Square. I was very struck by a speech made by the noble and learned Lord, Lord Hope of Craighead, last Saturday, 10 December 2004, to the Faculty of Law at the University of Strathclyde in which, about the proposed building, he said: Looked at from outside however the building has a rather modest appearance. Compared with the purpose-built buildings that house the supreme courts in other countries such as Canada, the United States and Australia, for example, it makes no statement to proclaim its existence. It cannot be said, to use the Lord Chancellor's own adjective, to be a 'prestigious' building. In comparison with its surroundings, there is nothing about it that suggests that anything of any very great importance happens there. That is to be expected of a building in Parliament Square that was designed for use by one of London's many local authorities". If we are to have a Supreme Court in a separate building, I suggest to the noble and learned Lord the Lord Chancellor that it must be a building that reflects the status of the institution that will inhabit it. I respectfully share the conclusion of the noble and learned Lord, Lord Hope of Craighead, that the Lord Chancellor's preferred building is simply not up to the image that he rightly wishes to convey. He wants a Supreme Court for this country that is worthy of its name. In my submission, the building that he prefers is simply not up to that.

Finally, there is the question of whether the Lords of Appeal in Ordinary should cease to be Members of your Lordships' House when the Supreme Court is established. I far prefer the proposal made by the noble and learned Lord, Lord Howe. Indeed, his amendment is one to which I have put my name. That is, why not designate a specific and easily identifiable part of the Palace of Westminster for the Supreme Court of the future. There need be no confusion between the legislature and the judiciary if it has a separate entrance. This building is of unequalled prestige in the country and that prestige would be shared by the Supreme Court.

Of course, if they inhabited the same building, it would be necessary for the members of the Supreme Court to be Peers, not necessarily Lords of Appeal in Ordinary, but life Peers. It would be inappropriate for their decisions to be given in your Lordships' Chamber but they could be given, like decisions of the Privy Council, in the committee room designated for the Supreme Court at the Lord Chancellor's end of the Palace. There would be no reason why members of the Supreme Court should not continue to serve on committees but, of course, it would be inappropriate for them to vote in your Lordships' House. As to whether they should speak in your Lordships' House, I suggest that should be a matter of further consideration by your Lordships. I do not think that my noble and learned friend Lord Howe has reached a final conclusion about that, as he indicated to your Lordships' House this afternoon, and I see him nodding now.

Those three components of change need to be looked at individually on their merits, as well as being part of a whole. When your Lordships do so, I hope that noble Lords will conclude that there is a great deal of merit in the proposal made by the noble and learned Lord, Lord Howe. I hope that between now and Third Reading, your Lordships will give it your most earnest consideration.

5.15 p.m.

Lord Falconer of Thoroton

My Lords, the Supreme Court is an integral and vital part of the Bill. If there is no Supreme Court, then the Bill loses one of its vital parts. The Lord Chief Justice, who is in his place today, described the Bill as a great reforming constitutional Bill because it contains so much of value: the concordat; the Judicial Appointments Commission; the new relationship with the judges; and the Supreme Court. I invite your Lordships to pass the Supreme Court in principle so that the whole Bill can pass and the future can be clear. As I made clear in my intervention in response to the question asked by the noble Viscount, Lord Bledisloe, I shall not precipitate a vote today, so that there can be further consideration next Monday, on Third Reading. But I invite your Lordships to look at this issue in a straightforward way, which is the way that we always deal with business in this House.

The Supreme Court is a proposal on which the Government published a consultation paper in July 2003. The Bill was introduced into this House in February 2004 and has been before the House for almost 10 months. The Bill has been considered in a special Select Committee, and the report of that Committee devoted 37 paragraphs to the question of whether to create a new Supreme Court. On 11 October, we discussed the issue in Committee. There have been numerous discussions since then, and the Government have continued to listen to the points that have been made and have tabled several amendments to give effect to considerable concessions that have been made.

The essence of the proposal put by the Government is a new final court of appeal that is clearly and functionally separate from the House of Lords. There has never been any doubt about the Government's proposal. There have been those who have opposed it, but there has never been any doubt about it. The case for the Supreme Court has been made time and time again. As the noble and learned Lord, Lord Bingham, has said on many occasions, it is the mark of a modern democracy that it has a final court of appeal separate from the legislature. One committee of this House should not be deciding the meaning of statutes passed by this place and another place. All noble Lords who have spoken in this debate have accepted that the public should be able to identify when the courts decide something and when Parliament decides something. The Supreme Court should be somewhere that the public can identify it as being different from Parliament. It should be somewhere where the public can, in a meaningful way, visit.

The noble and learned Lord, Lord Howe, who described himself as once having been a "dangerous radical", now puts forward, as I understand it, the following proposal: there should be a Supreme Court, but it should sit in this place; the members of the Supreme Court should be Members of the House of Lords; and they should be able to call themselves Lords of Appeal in Ordinary. On the face of it, that does not look like a clear functional or operational separation between the House of Lords and the final court of appeal.

The noble and learned Lord said that there should be a separate entrance—he referred to Black Rod's Garden—and that there should be substantial refurbishment of the part of the Palace where my current offices are. I have no objection to my part of the Palace being taken away for a good cause, but I simply raise the question of how much the noble and learned Lord, Lord Howe of Aberavon, thinks would be the cost of providing, in effect, a separate Supreme Court in this building. It would be an enormous amount. I thoroughly and wholly agree with the noble Baroness, Lady Carnegy of Lour, that the cost of refurbishing existing buildings is always considerably more than building new buildings to achieve the same result. Although I hold the noble and learned Lord, Lord Howe, in the greatest and most genuine respect, I submit that his proposal is not realistic. It is not realistic either as a means of delivering the separation that he seeks or in terms of the cost of such a proposal.

Lord Howe of Aberavon

My Lords, I respond courteously to the observations that the noble and learned Lord makes about me. I was not proposing a vast construction project. One of the things that the Law Lords regard as important is a continuation of the present atmosphere of the committee room in which they sit. Arrangements should be made so that it is quite clear that there is a separate entrance to a separate institution, and so on. Of course there will be some cost, but we do not need a magnificent reconstruction from the ground upwards.

Lord Falconer of Thoroton

Then, my Lords, I do not see how that would lead to the benefit that the noble and learned Lord described, such as the public having proper access. He will remember the evidence given by the noble and learned Lord, Lord Bingham, to our Select Committee regarding the total absence of members of the public attending his deliberations when he was sitting as chairman of the Judicial Committee of the House of Lords.

As has been made clear, the Government's preferred site for the new Supreme Court will be Middlesex Guildhall but, as the Written Statement said, there is much work to do. I believe that the Supreme Court should not start work until there is an appropriate building for it. Only with a clear and separate building does the functional and operational separation, so vital to the proposal, occur. That is why I agree with those who wish to see a sunrise clause in the Bill, which would prevent the Supreme Court coming into force until it has a suitable home. A sunrise clause, which has been much discussed around the House and has been agreed with a senior Law Lord, will, if your Lordships agree, be included in the Bill.

This means that until the new Supreme Court comes into being, the Judicial Committee of the House of Lords will continue as before. While the Judicial Committee of the House of Lords continues to sit here before the Supreme Court comes into existence, all its members will be Members of this House, with all existing rights. When the Supreme Court comes into existence there will for a transitional period be some who are and some who are not Members of the House of Lords. But then the Supreme Court will be outside the Lords, and the issues of a differential tier within the Supreme Court will not apply.

The cost of the new Supreme Court, in capital terms, will be £30 million for the renovation of Middlesex Guildhall and £15 million for the cost of additional courts and the decanting costs of the work currently taking place in Middlesex Guildhall.

Running costs are also dealt with in today's Written Ministerial Statement. Current running costs for the Law Lords are £3.2 million, which include judicial salaries. The running costs of the new Supreme Court, including judicial salaries, will be £8.4 million. So in terms of order of magnitude, £45 million will have to be spent on the refurbishment of Middlesex Guildhall and the decanting costs of the criminal court work currently carried out there. The additional running costs per year will be approximately £5 million. That is the scale of cost that will be incurred in setting up a Supreme Court. I believe that the House should have that information available before making its decision.

I should like to go through in detail the questions raised by the noble Lord, Lord Crickhowell, to assist noble Lords in coming to a conclusion. He asked about the statement of requirements. The statement of requirements was agreed between myself and my department and judicial Members of the House of Lords. It sets out the rooms required by the Supreme Court and their sizes. It specifies, for example, that there should be three hearing rooms larger than the current Appellate Committee rooms, 14 justices' chambers, and a library of 250 square metres. The noble Lord, Lord Crickhowell, will see that the Written Statement broadly sets out the main provisions of the statement of requirements.

The noble Lord asked about the total estimate. The £30 million estimate for the refurbishment of Middlesex Guildhall represents all building works, professional fees, statutory fees, VAT and the cost of fitting out and furnishing the building to a very high standard. It does not include ongoing running costs, as I think I have made clear. Dependent upon the procurement approach, which can be done in a number of ways, the £30 million does not necessarily represent a single capital sum. Part or all of those costs could be rentalised.

Lord Crickhowell

My Lords, on that point, does the estimate include the cost of the very smart library referred to and the cost of IT?

Lord Falconer of Thoroton

Yes, my Lords, it does.

The £15 million estimate for the reprovisioning of Crown Court rooms is based on the figures provided by external professional advisers. As with the refurbishment costs, it contains an element of optimism bias to take account of risks and unforeseen problems.

The noble Baroness, Lady Carnegy, asked how confident we were about meeting this figure. The department which has done the work has a good track record in building procurement, as the Treasury recognises, particularly in large-scale refurbishments such as this. From time to time, those running a court estate refurbish old buildings to make them into appropriate court buildings. This is such a project, and it has been estimated by a team with a good track record.

The noble Lord, Lord Crickhowell, asked whether quantity surveyors have been engaged. The costs in the Written Statement were prepared by a team of professional advisers, including reputable quantity surveyors.

If they care to look, noble Lords can see in the Treasury Green Book the detailed explanation of the factors taken into account in an optimism bias. I earnestly ask the noble Lord, Lord Crickhowell, to read it if he has a couple of days spare. Overall, the optimism bias aims to cover all the predictable risks and any changes which need to be made to a project specification as well as an uplift for wholly unforeseen issues. That is why an uplift over professionally assessed costs is as high as 50 per cent.

Risk factors taken into account in the Middlesex works include hidden building defects and supposed extensive hidden asbestos, although I do not believe that to be the case. So our optimism bias needs to take account of matters which we do not know to he true but which present a risk.

The noble Lord also asked about the form of contract. The noble Baroness is absolutely right about the care we should take on the sort of contract entered into. The noble and learned Lord, Lord Fraser of Carmyllie, referred to that in his report in relation to the Scottish Parliament building. We cannot and will not decide the precise form of the contract until rather later in the procurement process to ensure the most effective project management. That is vital if we want to learn the lessons that the noble and learned Lord, Lord Fraser of Carmyllie, asks us to learn about the Scottish Parliament.

The form of the contract will be decided on the basis of legal advice and professional advice from quantity surveyors and project management. The Department for Constitutional Affairs does not sign building contracts which result in the taxpayer taking the greatest share of the risk, which everybody is urging us to avoid. We would normally retain a single, professionally qualified project manager to oversee the entire contract, with a single departmental official acting as project sponsor representing the customer. This provides accountability for cost, quality and time. Ministers, quite rightly, are not involved in the operational process of supervising such a contract as this, which your Lordships may think is a good thing, although of course they are accountable to Parliament for it.

Lord Crickhowell

My Lords, the point made by my noble and learned friend Lord Fraser was that when the decision was taken to enter into a particular form of contract, Ministers were not informed. What the noble and learned Lord says is rather different—he is not responsible. I seek an assurance that Ministers will be fully informed of each important decision at every stage.

Lord Falconer of Thoroton

My Lords, I accept that. I was not trying to discharge my responsibility but to reassure the House that I would not be on site making decisions about the colours of the taps. The noble Lord is absolutely right that Ministers should be kept informed about what is going on.

I hope that I have answered every single question asked by the noble Lord, Lord Crickhowell. I believe that I have been as full and frank as I could possibly be in relation to the costs and now the House is in a position to decide. The noble Earl is bursting to intervene.

5.30 p.m.

Earl Ferrers

My Lords, before the noble and learned Lord sits down, he has answered many questions but he has not answered one of which I gave him prior notice. He has been kind enough to say what the figures and costs are, but he has not justified how the costs can be increased from £167,000 to £8 million for what is apparently the same service. What are we getting for that other than an esoteric view that we have a new kind of court?

Lord Falconer of Thoroton

My Lords, as I hope my Written Ministerial Statement makes clear. I do not accept that the comparison is between £167,000 and £8 million. If the noble Earl has a moment, I ask him to look at the Statement. I submit that the correct comparison is between £3.2 million and £8.4 million. That is £5 million extra. What we get for that extra £5 million per year, in addition to the capital cost, is a Supreme Court that is separate from Parliament and which I believe will be the envy of the world. We get a functional and operational separation that every single modern democracy in the world has. I believe that it is money well spent. I say with the greatest respect that that is the decision that the House must take.

That is the position on the costs. I will not rehearse again the arguments about why there should be a Supreme Court.

Lord Ackner

My Lords, does that £5 million include extra staff for the judges so that like their counterparts in the Commonwealth they have research assistants and other such assistance in performing their work?

Lord Falconer of Thoroton

My Lords, the figure includes additional staff. Precisely how those staff are to be deployed is a matter for the chief executive, who will, under the Government's arrangements, report to the Law Lords themselves. It is for the Supreme Court Justices in conjunction with their chief executives to decide how the staff will be deployed.

Lord Ackner

My Lords, is the major proportion of that £5 million to be devoted to extra staff?

Lord Falconer of Thoroton

No, my Lords, the major proportion goes to the maintenance of the building. The final court of appeal appears so cheap because there is next to no building cost involved. We are on the back, as the noble and learned Lord, Lord Howe, said, of Parliament. The choice and the facts are pretty clear. I strongly invite your Lordships to agree to the idea that we need a Supreme Court. Once this country has one people will wonder why it took so long.

Lord Lloyd of Berwick

My Lords, in a minute or so I shall be seeking the leave of the House to withdraw the amendment in my name. I am glad that the Lord Chancellor has said that he will not insist on a decision being taken today. That would have been quite wrong and I am grateful to him for taking the view that he has. We have had a good debate about whether or not we should have a Supreme Court and whether to remove the Law Lords from this place. We shall of course return to that debate on Third Reading, whether on Monday or, as I think better still, in the new year.

Lord Tordoff

My Lords, when the noble and learned Lord says that we will return to this debate on Third Reading, surely that is not what we should be doing. We have had a whole series of Second Reading speeches today. I hope that we will not also have Second Reading speeches at Third Reading.

Lord Lloyd of Berwick

My Lords, I understand that if I withdraw my amendment it will be open for my amendment or the amendment tabled by the noble and learned Lord, Lord Howe, to be argued at Third Reading. That is the information that we have from the Table.

Lord Brooke of Alverthorpe

My Lords, could the noble and learned Lord explain why we have to argue the matter again?

Lord Lloyd of Berwick

My Lords, we do not need to argue the matter again. It is simply that we cannot take the decision today because we have been given the figures only today. That is basically why we cannot make the decision today. Happily, by the time we return to this matter at Third Reading we will have some better figures. The figures that we have been given which appeared this morning contain absolutely nothing new except that the annual building costs have now gone up from £2.5 million to £3.8 million and the cost of reconstructing the Guildhall have gone down from £32.5 million to £30 million.

I remind your Lordships that the figure of £32.5 million was estimated on the basis of minimum alterations required for that building. We need to know whether that figure is genuine and believable having regard to the alterations that have been required since the figure of £32.5 million was given by the Law Lords themselves. The only other new figure is that of £15 million for the decanting of the seven existing courts in the Guildhall. The figure of £15 million for that is frankly unbelievable. There are not seven empty courts waiting somewhere in London for those courts to move to: they have to be created or found somewhere. We have no information at all about where those seven courts will sit from the moment they are relocated or decanted, nor how the figure of £15 million has been arrived at.

Lord Renton

My Lords, surely, we also need to be told what offices and other facilities there will be for judges and other staff.

Lord Lloyd of Berwick

My Lords, indeed. I am grateful to the noble Lord. We have been given a figure of £15 million and told that that is the basis on which we must make a decision about whether we will get value for money by removing the Law Lords from this place and creating a Supreme Court. That is why we cannot make the decision today and that is why it would be much better to make the decision in the new year.

Lord Falconer of Thoroton

My Lords, the arrangement is that Third Reading will take place on Monday.

Lord Lloyd of Berwick

My Lords, indeed, I understand that. I am suggesting to the noble and learned Lord the Lord Chancellor that it would be better to provide proper figures in the new year rather than return to the matter again on Monday with these inadequate figures. In any event, we will not make a decision today and I am grateful to the noble and learned Lord for not insisting on one.

Lord Howie of Troon

My Lords, the noble and learned Lord should consult the Companion. He will find there that the purpose of amendments at Third Reading is to tidy up the Bill, not to raise matters of this consequence.

Lord Lloyd of Berwick

My Lords, I entirely agree with that. However, the reason why we cannot make that decision, as I tried to explain in my speech today, is that I have been given these figures only today. If we had been given them a week or so ago, we would have been able to make the decision today—but we were not. That is why we must return to the matter on Third Reading rather than decide it today. On that basis, I beg leave to withdraw the amendment.

The Deputy Speaker (Viscount Ullswater)

My Lords, is it your Lordships' pleasure that the amendment be withdrawn?

Lord Richard

No.

The Deputy Speaker

My Lords, the Question is that the amendment be agreed to.

Lord Kingsland

My Lords, my understanding is that the noble and learned Lord, Lord Lloyd, begged leave to withdraw the amendment. The noble and learned Lord the Lord Chancellor made it absolutely clear on behalf of his side of the House that he would not oppose that. That is my understanding—therefore, I do not hear voices to the contrary from his side of the House.

Lord Lloyd of Berwick

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 [The Supreme Court]:

[Amendments Nos. 35B and 36 not moved.]

Clause 15 [First members of the Court]:

[Amendments Nos. 37 and 37A not moved.]

Lord Lloyd of Berwick moved Amendment No.38: Before Clause 16, insert the following new clause—

"AMENDMENT OF THE APPELLATE JURISDICTION ACT 1876 (c. 59)

(1) The Appellate Jurisdiction Act 1876 is amended as follows.

(2) Section 5(1) is omitted.

(3) After section 5 there is inserted—

"5A LORD CHANCELLOR

(1) The Lord Chancellor is not a Lord of Appeal.

(2) A person who holds the office of Lord Chancellor is disqualified for appointment as a Lord of Appeal in Ordinary while he is Lord Chancellor."

(4) Section 6 is amended as follows.

(5) Leave out from first "been" to second "Every" and insert "recommended to be so appointed under the provisions of Part 2 of the Constitutional Reform Act 2005".

(6) After section 6 there is inserted—

"6A SENIOR AND SECOND SENIOR LORD OF APPEAL IN ORDINARY

Her Majesty may, by Commission, name two Lords of Appeal in Ordinary as senior and second senior Lord of Appeal in Ordinary to preside over the judicial business of the House of Lords."

(7) In section 25, leave out "of Lord Chancellor of Great Britain or"."

The noble and learned Lord said: My Lords, happily, this is a relatively simple amendment that is intended to be consequential on the decision that the House took last week that the Lord Chancellor should remain as a Member of this House and a lawyer but on the terms that he would no longer sit as a judge in the appellate court. The amendment would therefore amend the Appellate Jurisdiction Act 1876 to exclude the Lord Chancellor from sitting as a Lord of Appeal in Ordinary. It is a straightforward amendment and, on that basis, I beg to move.

Lord Renton

My Lords, may I say, with deep respect, that I am very surprised by this amendment? On this side of the House, we have taken the view not only that the Lord Chancellor should remain a high dignitary of the House—perhaps even the Leader of it—but that he should continue to have some judicial responsibilities. The amendment would remove those responsibilities altogether.

Lord Falconer of Thoroton

My Lords, the amendment would do two things. First, in effect it applies the appointments procedure to Lords of Appeal in Ordinary. We disagree with that because we believe that there should be a Supreme Court, with the same sort of appointments process. The amendment is posited on the basis that the Supreme Court does not come into existence and, for that reason, we oppose it. Secondly, it says that the Lord Chancellor should not sit as a Lord of Appeal in Ordinary. We agree with that and believe that the Bill already achieves that.

Lord Lloyd of Berwick

My Lords, of course, like the noble Lord, Lord Renton, and as I said earlier, I greatly regret that the Lord Chancellor should no longer be able to sit as a judge. However, it seemed to us that because of the Lord Chancellor's position as a member of the executive, the argument about separation of powers applied rather more strongly in the case of the Lord Chancellor than it did in the case of the Supreme Court. For that reason, we were prepared to accept that he should no longer sit as a judge or be head of the judiciary. That is part of the concordat between the noble and learned Lords the Lord Chancellor and the Lord Chief Justice and, on that basis, I do not feel in a position to disagree with it. Though I regret it, therefore, the amendment must stand.

The Deputy Speaker

My Lords, the Question is that the amendment be agreed to.

Noble Lords

Withdraw!

Lord Lloyd of Berwick

My Lords, I am getting confused. Amendment No.38 is not withdrawn. It is an amendment to which the noble and learned Lord the Lord Chancellor has already agreed. It simply deals with whether the Lord Chancellor should—

Lord Falconer of Thoroton

My Lords, the noble and learned Lord may have changed his position from approximately four minutes ago, but I believed that he was saying that we should not determine the issue of whether there should be a Supreme Court or a continuation of the current arrangements. The amendments that we are discussing here relate to whether the Lords of Appeal in Ordinary should be appointed by the appointments process that applies to the Supreme Court. That is consistent with the noble and learned Lord's approach that there should not be a Supreme Court. It is consequential on a principle issue that has not yet been resolved.

Lord Lloyd of Berwick

My Lords, the amendment is both. It is consequential on something that has been resolved, which is that the Lord Chancellor is not a Lord of Appeal—a question on which there is agreement on all sides. However, I accept that the amendment also covers the position of the senior and second senior Lord of Appeal. Perhaps, on that basis, the amendment should have been split into two parts. The best thing to do is to withdraw it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 [Qualification for appointment]:

[Amendment No.39 not moved.]

Clause 17 [Selection of members of the Court]:

[Amendments Nos. 40 to 43 not moved.]

The Deputy Speaker

My Lords, before calling Amendments Nos.44 and 45, I remind your Lordships that they have been pre-empted by Amendment No.22, agreed to on the first day of the Report stage.

[Amendments Nos. 44 and 45 not moved.]

Schedule 7 [Supreme Court selection commissions]:

[Amendments Nos. 46 to 94 not moved.]

5.45 p.m.

Lord Kingsland moved Amendment No. 95: Before Clause 18, insert the following new clause—

"LORD CHANCELLOR NOT TO HAVE JURISDICTION AS A JUDGE

The Lord Chancellor shall not have any jurisdiction, and shall not act, as a judge of any degree or as a magistrate."

The noble Lord said: My Lords, I do not believe that the contents of the amendment are controversial. It is merely a question of whether they ought to appear in the Bill. Naturally, I should be interested to hear the views of the Government on this matter. I beg to move.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)

My Lords, I believe that I explained in Committee that we supported the tenor of the amendment. The proposal that the Lord Chancellor should no longer be a judge is one of the main planks of our reform. However, I would argue that, in the light of the other provisions of the Bill, the noble Lord's amendment is simply unnecessary. Among other things, as noble Lords will know, Schedule 4 removes the statutory basis for the Lord Chancellor's current authority to sit as a judge. Additionally, in Committee, we tabled amendments to Clause 48, providing that the office of the Lord Chancellor no longer qualified, as opposed to attracting the status of high judicial office.

The combined effect of those two changes is that future office holders and the current Lord Chancellor would no longer sit in a judicial capacity. The effect is therefore achieved, and, as the noble Lord, Lord Kingsland, will know, when the effect is achieved it is appropriate to leave it there and not to add another effect of the same kind. Nothing further is required—it is done—and I hope that the noble Lord will withdraw his amendment on that basis.

Lord Renton

My Lords, before my noble friend replies, could I point out that whether the amendment shall ever apply or not depends on the decisions taken finally—at Third Reading—about the fundamental position of the Law Lords, including the Lord Chancellor?

Lord Kingsland

My Lords, in my experience, it is unusual for the Government to want less rather than more. However, if the Minister is satisfied that there is enough in other parts of the Bill to meet the objective of my amendment, who am I to quarrel with her? In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Selection process]:

Baroness Ashton of Upholland moved Amendment No. 95A:

Page 8, line 8, at end insert—

"(1A) As part of the selection process the commission must consult each of the following—

1. (a) such of the senior judges as are not members of the commission and are not willing to be considered for selection;
2. (b) the Minister;
3. (c) the First Minister in Scotland;
4. (d) the Assembly First Secretary in Wales;
5. (e) the Secretary of State for Northern Ireland.

(1B) If for any part of the United Kingdom no judge of the courts of that part is to be consulted under subsection (1A)(a), the commission must consult as part of the selection process the most senior judge of the courts of that part who is not a member of the commission and is not willing to be considered for selection.

(1C) Subsections (2) to (8) apply to any selection under this section or section 22."

The noble Baroness said: My Lords, this group of amendments does two separate things although structurally our attempts to improve their accuracy and comprehensibility are best considered together. I expect, however, that the House will welcome both elements as they address concerns expressed in your Lordships' House at earlier stages.

The first element addresses concerns about the possibility that there might be no senior judicial input from a part of the United Kingdom into the selection process for a Supreme Court judge in certain circumstances. Clauses 18 and 19 require the selection commission and the Minister respectively to consult "the senior judges", as defined in a list in Clause 48 (which is the subject of an amendment to which I shall speak later). As the clauses stand at present, there is a possibility that, for a given vacancy, all of the "senior judges" from one or other part of the United Kingdom may be ruled out of consultation because they are members of the selection commission or are candidates to fill the vacancy. For example, it might be that the Lord Chief Justice of Northern Ireland, who is in the list of "senior judges" representing Northern Ireland, is a prime candidate, and cannot be consulted.

The provision in Amendment No. 95A, therefore, amends the duty to consult the senior judges, to the effect that if there is no senior judge from a specific part of the United Kingdom who is able to be consulted, the selection commission must consult the available next most senior judge of the courts of that part of the UK who is not ruled out for consultation purposes; that is, the most senior judge who is not a member of the commission and does not wish to be considered for selection.

There is a consequential amendment also to Clause 19. The Minister is required to consult the judges who are consulted by the commission. The amendment ensures that the Minister will consult any judges required under this fallback provision. Thus it is guaranteed that at least one serving senior judge within a jurisdiction will be consulted. That is a matter which noble Lords considered we should address.

The second element of these amendments addresses the concern expressed in the Select Committee and again in Committee of the whole House that the selection commission and the Minister would be required to consult the National Assembly for Wales rather than its First Secretary, the First Minister. The objection was the obvious possibility that it would be difficult to ensure confidentiality if the consultation requirement was taken to include the whole Assembly.

It was always envisaged that, as is customary for functions of this type, the Assembly would delegate to the First Secretary in Wales and not opt for some kind of consultation in plenary session. However, I appreciate the benefit of certainty, and so the amendments, which have the approval of the Assembly, replace the references in Clauses 18 and 19 to the National Assembly for Wales with reference to the Assembly First Secretary in Wales. I trust that this offers the necessary reassurance and allays any fears about breaches of confidentiality. I beg to move.

Baroness Carnegy of Lour

My Lords, I am sure the House will be grateful to the Minister for including these consultations. It is very important that consultation should take place on this point throughout the United Kingdom because it is a United Kingdom court. This is one of a number of amendments that the Government have tabled in view of the need for this widespread consultation. I am sure that we are grateful for that.

On Question, amendment agreed to.

[Amendments Nos.96 and 97 not moved.]

Baroness Ashton of Upholland moved Amendment No. 97A:

Page 8, line 15, leave out subsection (6).

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendments Nos. 97B and 97C:

Page 8, line 25, leave out "under this section or section 22"

Page 8, line 26, leave out "under this section or section 22"

On Question, amendments agreed to.

Clause 19 [Report]:

Baroness Ashton of Upholland moved Amendments Nos. 97D to 97F:

Page 8, line 32, leave out "18(6)(a)" and insert "18(IA)(a) and any judge consulted under section 18(1B)"

Page 8, line 38, leave out "18(6)(a)" and insert "18(1A)(a); (aa) any judge consulted under section 18(1B)

Page 8, line 40, leave out "National Assembly for" and insert "Assembly First Secretary in"

On Question, amendments agreed to.

Clause 21 [Exercise of powers to reject or require reconsideration]:

[Amendment No. 98 not moved.]

Viscount Bledisloe moved Amendment No. 99: After Clause 22, insert the following new clause—

"SELECTION COMMISSION MEMBER: CONFIDENTIALITY

A person who is a member of the selection commission, or a member of its staff or an agent of the commission and who is consulted by or on behalf of the Commission or is otherwise involved in the process of selection must not disclose confidential information except with lawful authority and the provisions of section 85 of this Act shall apply to all such persons."

The noble Viscount said: My Lords, we now come to the question of confidentiality, to which the noble Baroness, Lady Ashton, referred a moment ago in passing. With this amendment I wish to speak also to Amendment No. 168, which is the more important of the two amendments.

Amendment No. 168, to which I spoke in Committee, seeks to extend the duty of confidentiality not merely to members of the Appointments Commission alone but also to all the people whom they consult. I pointed out that those persons were dangerously likely to leak information unless it was impressed upon them that it was very important that they should not disclose the identity of persons who were being considered for appointment because of the vast damage it might do to their career and to their position in their firms if it was known that they had applied but been rejected.

Amendment No. 99 merely applies that to the commission for the appointment of members of the Supreme Court, who otherwise by a curious omission would not be covered at all. These are essential provisions and, indeed, in Committee the Government accepted that they should be included. I do not know whether they are happy with my drafting or whether parliamentary counsel, as always, think that they can do better by saying the same thing less elegantly. However, I hope to hear at least that the substance of the amendments, if not the exact wording, will be accepted, although I urge the Government merely to accept them as they stand at this stage.

Lord Renton

My Lords, will the noble Viscount explain what is meant by the words "except with lawful authority", which appear at the end of Amendment No. 168? Whose authority would that be?

Viscount Bledisloe

My Lords, I do not mean anything by that. The Bill already contains the provision that members of the commission are not to disclose confidential information without lawful authority. I have merely repeated the words of the Bill when seeking to extend that duty. I imagine that the Government have in mind that people such as the ombudsman may want to know how the process is conducted and so on, or someone may complain that he has not been selected, and obviously his complaint cannot be investigated without confidential information being revealed. However, I may have given an inadequate response in which case I know that the noble Baroness, Lady Ashton, will tidy up the matter for me. I beg to move.

Baroness Ashton of Upholland

My Lords, I hesitate to suggest that the noble Viscount has not given a perfectly adequate response. As I indicated, I have great sympathy with these amendments. In Committee we said that we would table amendments to provide proper arrangements for confidentiality in relation to the Supreme Court, appointments made on the advice of the Judicial Appointments Commission and in relation to judicial disciplinary matters. I must apologise that the amendments are not yet ready but I am told that they will be ready for Monday. We agree with the noble Viscount that they are of great importance. We shall indeed ensure that they are available as quickly as possible so that we can lay them and deal with them.

Noble Lords will have noted in the previous group of amendments to which I spoke what we have already done regarding the National Assembly for Wales and the Assembly First Minister in Wales. It is not that we are being tardy; there is simply a lot to do. The amendments will be ready for Monday and they will address the noble Viscount's point. I hesitate to say whether parliamentary counsel consider that the noble Viscount's drafting is inappropriate, but let us say that in order to fit in with other things parliamentary counsel need to draft these matters alongside other measures. I hope that on the basis of the assurance I have given the noble Viscount will feel able to withdraw the amendment.

Viscount Bledisloe

My Lords, as always it is a pleasure to have one's proposals responded to by the noble Baroness, Lady Ashton, as one gets so much more joy out of her than out of the noble and learned Lord the Lord Chancellor. On the basis of her delightful assurances I am very happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 [Oath of allegiance and judicial oath]:

[Amendment No. 100 not moved.]

6 p.m.

Clause 24 [Tenure]:

The Duke of Montrose moved Amendment No.101:

Page II, line 2, leave out lines 2 and 3 and insert—

"(1) A judge of the Supreme Court may be removed from office only by Her Majesty and any such recommendation to Her Majesty shall be made by the Minister.

(2) The Minister shall make such recommendation if (and only if) the recommendation has been approved by both Houses of Parliament.

(3) Provision shall be made for a tribunal constituted by the Minister to investigate and report on whether a judge of the Supreme Court is unfit for office by reason of inability, neglect of duty, or misbehaviour and for the report to be laid before Parliament.

(4) The Minister may only seek the approval of Parliament under subsection (2) if—

1. (a) he has received from the tribunal constituted under subsection (3) a written report concluding that the judge is unfit for office by reason of inability, neglect of duty or misbehaviour and giving reasons for that conclusion, and
2. (b) he has consulted with the Prime Minister."

The noble Duke said: My Lords, this amendment deletes Clause 24 and inserts a new provision for the removal of a judge of the Supreme Court. The Bill currently provides that a judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament. There is no provision for investigation into the judge's behaviour, and no definition of good behaviour in the Bill.

This amendment, which closely follows Section 95 of the Scotland Act 1998, as mentioned in Committee, makes provision both for a process of investigation and for guidance on what constitutes unacceptable behaviour. Such behaviour is that which renders the judge unfit for office by reason of inability, neglect of duty or misbehaviour. These provisions clarify the provisions currently in the Bill and bring the process for removal of judges of the Supreme Court into line with recently approved legislation on the removal of judges.

Perhaps it is the unfortunate recent experience of the Scottish justice system in having had to remove a sheriff, and I believe possibly also one other officer, that has concentrated the minds of those north of the border of the need to be rather clearer in the headings that might trigger a move to remove a judge. They are included in Section 95 of the Scotland Act. This is particularly important in these days of the investigative press, who might try to undermine the reputation of a judge on criteria that they themselves have selected.

At present, according to the noble Baroness, Lady Ashton, in her reply on 11 October, the Government are building their hopes on a, draft complaints and discipline protocol".—[Official Report, 11/10/04; col. 95.]

The noble Baroness has kindly put me in touch with officials in her department on this matter, and they tell me that the draft procedures have been prepared and that the Secretary of State is currently consulting the noble and learned Lord, Lord Bingham, on his views. This, at present, would appear to have the form of an extra-statutory provision, which is not subject to parliamentary scrutiny, and neither will any future variations that are contained for it be available for scrutiny. It is really not a satisfactory way to proceed when we are dealing with matters of such fundamental constitutional importance.

We should ask the noble Baroness to lay the draft complaints and discipline protocol before the House, so that we can all consider its effect within this new development in our constitution. It surely is not something that needs to be treated as a secret. Then we can form a decision as to whether certain criteria, such as those contained in this amendment, should be in the Bill. I ask the Minister if we could have sight of this protocol. I beg to move.

Baroness Carnegy of Lour

My Lords, I support my noble friend in putting his amendment down again. When we discussed this last time, we had a positive response from the noble Baroness, but it has not really come to very much. We would like to know rather more strongly what the Government are going to do about this.

The main point of the amendment is the new situation in which we find ourselves. In future, a political Minister in charge might well take against a particular judge, and he might well be supported by the Home Secretary, who might want to put pressure on that judge. The Minister made the point in Comrnittee that there was strong protection for the judge and the public—that of Parliament and the Queen, who would have to agree. However, we all know just how compliant the House of Commons can be with a big majority. Her Majesty would have great difficulty in agreeing to something that Parliament disagreed with.

The existing criteria for good behaviour have, I understand, never been tested in the context of the highest court in the land; that is a significant fact. The wording in the Scottish legislation, as my noble friend said, was included because of the problems that arose when a sheriff was unsatisfactory and had to be removed. It was found that the legislation was really too loose. The Government are being a little sanguine about this. They might be very wise either to accept the amendment, or to make a similar provision.

I notice that the noble Lord, Lord Goodhart, is not in his place. Perhaps he does not wish to support me on this occasion, and I am sorry, because his advice was most helpful.

Lord Renton: My Lords—

Lord Ackner

My Lords, I had the impression that there was provision made for dealing with a judge who has become ill and is unable, as a result of his illness, to carry out his duties. I recollect that there was a procedure under which you had to get the certification of two consultants to confirm the position—

Baroness Carnegy of Lour

My Lords, with the leave of the House, I think that the noble and learned Lord is speaking to the next amendment.

Lord Ackner

My Lords, I am speaking to Amendment No. 101.

Baroness Ashton of Upholland

My Lords, there is a change in the groupings, which may have affected what the noble and learned Lord, Lord Ackner, is looking at, in that this group now concerns itself with exactly what the noble Baroness and the noble Duke have indicated. There is shortly a group on the medical question.

Lord Ackner

My Lords, would you like me to leave that for the moment, then? Certainly.

Baroness Ashton of Upholland

My Lords, I presume that the noble and learned Lord, Lord Lloyd of Berwick, is not moving his Amendment No.102.

Lord Lloyd of Berwick: My Lords, no.

Baroness Ashton of Upholland

My Lords, in that case I will not address it.

I am grateful to the noble Baroness and the noble Duke. They have indicated that they have raised this, I have corresponded with them, and I have put the noble Duke in touch with officials. The critical point is that we are in detailed discussions with the Law Lords, as the noble Duke indicated. I am told that these are now at a very advanced stage, which is good news, and that an announcement will be made shortly. The critical thing, as the noble Duke particularly indicated, but the noble Baroness was also concerned about, is what will happen with that document. I understand that the agreed protocol will be a public document and will be made available—

The Duke of Montrose

My Lords, I am most grateful to the Minister for giving way. It interests me that it appears that the Government wish to present this document as a complete fait accompli that is all tidied up and about which there is no further question. We would appreciate seeing it in the draft stage; especially given the timing of this Bill's progression, even if it was not completely agreed and tidied up, we would still appreciate seeing it.

Baroness Ashton of Upholland

My Lords, we very much wish to be guided by the Law Lords on what the protocol ought to say. I understand the concern of the noble Duke, but it is appropriate to be guided in this context by the Law Lords. Certainly, when I have something to give the noble Duke, I shall be very happy to do so at the earliest opportunity. I am sure that he will appreciate that we want to have it in the form agreed with the Law Lords in order to present it. I shall happily undertake to do so.

The Duke of Montrose

My Lords, I am grateful to the Minister for her reply, although we are looking for slightly more than she can give us at present. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 102 not moved.]

Clause 25 [Salaries and allowances]:

[Amendment No. 103 not moved.]

Clause 26 [Resignation and retirement]:

[Amendment No. 104 not moved.]

Clause 27 [Medical retirement]:

The Duke of Montrose moved Amendment No.105:

Page 11, line 26, leave out "a"

The noble Duke said: My Lords, I shall speak also to Amendment No. 106, for which Amendment No.105 is merely a paving amendment. Amendment No. 106 is designed to require at least two medical certificates of incapability before a Supreme Court judge can be medically retired. Clause 27 currently allows medical retirement on ministerial order if a Minister obtains one medical certificate stating that, a judge of the Supreme Court … is disabled by permanent infirmity from the performance of the duties of his office, and … is for the time being incapacitated from resigning".

The Law Society of Scotland believes that those provisions are inadequate to guard against political interference, and that further safeguards are necessary. The reports should come from two medical practitioners who have adequate experience in assessing capacity. Section 57 of the Adults with Incapacity (Scotland) Act 2000 is the most recent Scottish legislation in the area and provides an example of how the provision may operate. It is not a question of a Minister asking the Chief Medical Officer for an opinion, because he is a civil servant. One issue that comes up is that people can lose their capacity very quickly, but it is a Minister who has the job of signing them off. I beg to move.

Baroness Carnegy of Lour

My Lords, I would again like to support my noble friend's amendment. I had hoped that the noble Lord, Lord Goodhart, would be able to support us. He did last time and seemed to feel quite strongly about the matter, but is not able to be here.

Having reflected on the Minister's reply last time, I notice that she strongly defended the status quo. She argued that we could trust a doctor, and that if a second opinion were needed he would get one. She said that that was, common and correct medical practice". She also questioned whether the amendment was fair for the person concerned, and suggested that it might add to the stress on the judge and his or her family.

I see the issue the other way round; it is rather important. In the new situation, in which a political Minister may be tempted to use deterioration in a judge's health as a means of getting rid of him or her because he or she has been awkward, he can do that simply by declaration on the basis of one doctor's certificate. That seems extraordinary. Surely the judge concerned and his or her family would actually want a second opinion and should be entitled to have it in law.

We are talking about the highest court in the land, and the career and contribution of a top-quality, highly distinguished lawyer. The Minister said last time that we, must always take into account that the future may be different from the past".—[Official Report, 11/10/04; col. 98.] That is the point. The future will indeed be different. In suggesting this change to the Bill, the Law Society of Scotland is right—there should be two medical certificates. Simply because we are apparently in a hurry, we should not disregard the future of judges who may, perhaps very temporarily, become incapacitated and can so easily be removed from the court.

6.15 p.m.

Lord Ackner

My Lords, I support the amendment. I recall that a provision in the past provided for medical certificates by two consultants. Its weakness was that it did not cover the very senior judiciary, particularly the Lord Chief Justice. That gave rise to problems.

I certainly remember appearing before one judge who was a Lord of Appeal in Ordinary. He made up the majority against me and, by common agreement, was beyond his capacity to follow the argument any longer. I remember one case in which I had a consultant present to assist me on the medical issue of a case, and he was so fascinated by the mental condition of the judge trying the case that when I asked him for assistance, he said, "One moment. I find the judge a most interesting personality. You can virtually hear the needle coming on and off the record during the course of his discussion".

The provision has improved the situation very much by providing what should occur where the president of the court is concerned. However, retirement should be on the basis of two medical practitioners, with preferably one at least of consultant status. As it stands, the amendment is certainly an improvement.

Lord Crickhowell

My Lords, I am neither a lawyer nor a doctor, and I have listened to the debate simply on the basis of sensible principle. One's experience of dealing with the medical profession indicates that there is a good deal of wisdom in it. When we are talking about possibly disqualifying or removing a judge, we have to get that right. If the future will be different from the past, we should surely take every possible precaution to make sure that we make it different in the right way. I have not yet heard an argument to suggest that the amendment could be wrong. In principle, we ought to make sure that we get the matter absolutely right. The amendment gives us the opportunity to do so, so I support it.

Baroness Ashton of Upholland

My Lords, I join the noble Lord, Lord Crickhowell, in not being a lawyer or doctor; it is a positive advantage on occasions. It is also very important to take from the past what is relevant to the future. We start from the principle that, in Section 12 of the Administration of Justice Act 1973, we have provisions that have worked well until now and have never been criticised in the past. The clause also mirrors the provisions that cover such matters with respect to the senior judiciary of England and Wales and of Northern Ireland.

The noble Baroness and the noble Duke have been concerned that the purpose of a second medical certificate is to ensure that we do not have political interference. Retirement of a judge of the Supreme Court is simply not possible without the concurrence of the two most senior judges available, usually the president and deputy president of the court. My contention is, as in Committee, that that provides a far stronger safeguard against political interference than simply a second medical certificate.

I also contended in Committee that one should be mindful of distress caused to people, and I am still mindful of that. I pick up the point of the noble and learned Lord, Lord Ackner, about relevant status in saying that, where a medical certificate is sought, it is right to find an appropriate person able to deal with the issue. If a doctor felt unable to give a certificate, the "patient" would be referred on. In terms of the specific desire of the noble Duke and the noble Baroness to ensure that political interference could not happen, my contention remains the same—that having those two very senior members of the judiciary involved in the resignation or retirement is a much better safeguard.

I looked at the Scottish provisions. They are different, because in Scotland it is necessary to seek a guardianship order under the Adults with Incapacity (Scotland) Act 2000 in respect of a judge. Therefore, requiring two medical certificates in those circumstances is an understandable precaution. But the background and the legal framework are very different. Indeed, as the noble Duke and the noble Baroness will know, the amendment departs from the Scottish model in its use of language and what it describes.

I could go into more detail, but I am mindful that my contention is that what the noble Duke and noble Baroness, supported by the noble and learned Lord, Lord Ackner, wish for is achieved through my comments about the senior judiciary and a medical certificate being appropriate, causing the least possible distress but the right level of medical intervention. On that basis I hope that the amendment will be withdrawn.

The Duke of Montrose

My Lords, I listened with some interest to what the Minister said and I am grateful to the noble and learned Lord, Lord Ackner, the noble Lord, Lord Crickhowell, and the noble Baroness, Lady Carnegy, for their support.

A question still hangs in one's mind and, if nothing else, there is still a slight question as to how the single doctor feels about having to give this one opinion. We must look at these matters again and I know that the Minister is worried about the wording. Meanwhile I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 106 and 107 not moved.]

Clause 28 [Pensions]:

[Amendment No. 108 not moved.]

Clause 29 [Acting judges]:

[Amendments Nos. 108A and 109 not moved.]

Clause 30 [Supplementary panel]:

[Amendment No. 110 not moved.]

Clause 31 [Jurisdiction]:

[Amendment No. 111 not moved.]

Schedule 8 [Amendments relating to jurisdiction of the Supreme Court]:

[Amendment No. 112 not moved.]

Clause 32 [Composition]:

Lord Falconer of Thoroton moved Amendment No.112A:

Page 15, line 2, leave out paragraph (c) and insert— (c) more than half of those judges are permanent judges.

The noble and learned Lord said: My Lords, the amendment relates to the composition for proceedings in relation to the Supreme Court. The Government's amendments, which have been drafted in consultation with the noble and learned Lord, Lord Bingham, are designed to address concerns expressed in Committee and outside Parliament that the clauses as they stand both over-restrict the court's operational flexibility compared to that enjoyed by the Appellate Committee of the House of Lords, and inappropriately allow for appeals to be heard by a panel in which non-permanent judges predominate.

Flexibility is achieved because the clauses, by virtue of the third government amendment in this group, will work on the basis that the court is "constituted" for proceedings when the judges to hear those proceedings are "designated", rather than when the hearing commences. An uneven number of judges equal to or greater than three must still be designated. Given that an uneven number must be designated, permanent judges have to be in the majority to ensure that the composition is never "wholly or predominantly" of non-permanent judges; and the first amendment in this group, in which the noble Lords, Lord Goodhart and Lord Maclennan, may discern a resemblance to an amendment tabled by them in Committee, ensures that that is the case. This does not mean that the actual hearing cannot commence before an even number of judges, as "designation" by definition precedes the beginning of the hearing proper.

The final government amendment in the group introduces a new Clause 33 in place of the existing clause. New Clause 33(l) provides for the clause to apply if the court ceases to he duly constituted, because one or more members of the Court are unable to continue", but because the approach now turns around "designation", rather than "commencement of proceedings", the court is enabled, for example, to start the hearing with four judges if five were designated, but one drops out, as long as at least two of the four are permanent judges.

The provision in subsection (1) of new Clause 33 that the section applies to a court constituted in accordance with a direction "under this section" is to allow for the possibility of two judges falling out of a panel which started with at least five. What might happen, for example, is that a panel of five is designated and, before the hearing commences, one judge is unable to continue and the presiding judge directs—the parties being in agreement and there still being four judges of whom at least two are permanent—that the court is still duly constituted. Then another judge is unable to continue, leaving three, of whom two are permanent and the parties are still in agreement that the proceedings should continue. Then there would be a court which ceased to be duly constituted "in accordance with section 32", but the presiding judge may direct that it is still duly constituted.

These amendments will produce flexibility similar to that enjoyed by the Appellate Committee, but with the added benefit, for those who will use the court, of clarity, certainty and transparency. I beg to move.

Lord Goodhart

My Lords, these amendments are responses to concerns which we raised in connection with amendments that we tabled in Committee. They were particularly concerned with the possibility of a situation where a majority of the judges were temporary, non-permanent judges. That concern has now been dealt with and we feel that the concerns that we raised are met by these amendments and we are happy to support them.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos.112B and 112C:

Page 15, line 10, leave out "and section 33"

Page 15, line 15, at end insert— () This section and section 33 apply to the constitution of the Court in any proceedings from the time judges are designated to hear the proceedings.

On Question, amendments agreed to.

[Amendment No. 113 not moved.]

Clause 33 [Changes in composition]:

Lord Falconer of Thoroton moved Amendment No. 113A: Leave out Clause 33 and insert the following new Clause—

"CHANGES IN COMPOSITION

(1) This section applies if in any proceedings the Court ceases to be duly constituted in accordance with section 32, or in accordance with a direction under this section, because one or more members of the Court are unable to continue.

(2) The presiding judge may direct that the Court is still duly constituted in the proceedings.

(3) The presiding judge may give a direction under this section only if—

1. (a) the parties agree;
2. (b) the Court still consists of at least three judges (whether the number of judges is even or uneven);
3. (c) at least half of those judges are permanent judges.

(4) Subsections (2) and (3) are subject to directions given by the President of the Court.

(5) If in any proceedings the Court is duly constituted under this section with an even number of judges, and those judges are evenly divided, the case is to be re-argued in a Court which is constituted in accordance with section 32.

(6) In this section—

1. (a) "presiding judge" means the judge who is to preside, or is presiding, over proceedings;
2. (b) references to permanent judges have the same meaning as in section 32."

On Question, amendment agreed to.

[Amendment No. 114 not moved.]

Clause 34 [Specially qualified advisers]:

[Amendment No. 115 not moved.]

Clause 35 [Making of rules]:

[Amendment No. 116 not moved.]

Clause 36 [Procedure after rules made]:

[Amendment No. 117 not moved.]

Clause 37 [Photography etc]:

[Amendment No. 118 not moved.]

Lord Falconer of Thoroton moved Amendment No.118A: After Clause 37, insert the following new clause—

"CHIEF EXECUTIVE

(1) The Supreme Court is to have a chief executive.

(2) The Minister must appoint the chief executive, after consulting the President of the Court.

(3) The President of the Court may delegate to the chief executive any of these functions—

1. (a) functions of the President under section (Officers and staff)(1);
2. (b) non-judicial functions of the Court.

(4) The chief executive must carry out his functions (under subsection (3) or otherwise) in accordance with any directions given by the President of the Court."

The noble and learned Lord said: My Lords, these are important amendments about governance arrangements over which perhaps I may take a little time. The government amendments to these clauses are a package, which considerably revises the governance model to increase significantly the independence of the court. As your Lordships are well aware, I promised in the Select Committee to bring forward amendments to the existing clauses, which had been criticised on the grounds that they provided insufficient guarantee of corporate independence and, in particular, did not guarantee that the court would be, institutionally free of administrative pressures".

While I remain convinced that the existing provisions provided a robust system which would ring-fence the court's budget and circumscribe ministerial discretion, I have listened to the criticisms and have negotiated a revised model in consultation with the senior Law Lord. I believe that this model meets many of the previous criticisms. I hope, therefore, that noble Lords who have tabled amendments to the clauses dealing with resources and governance will feel able to withdraw them, as I believe that the government amendments will meet their concerns for a Supreme Court with real institutional independence.

Moreover, the package of government amendments, in technical terms would pre-empt not only the amendments tabled by the noble Viscount, Lord Bledisloe, the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy, dealt with in a separate group, but those tabled by the noble Lords, Lord Goodhart and Lord Maclennan, by removing the clauses which they would amend and replacing them with new clauses. Only those amendments tabled by the noble Lords, Lord Goodhart and Lord Maclennan, offer an alternative governance model but, as I will explain to your Lordships, that would be a model that is neither viable nor advantageous to the Supreme Court.

The model now proposed by the Government is to establish the Supreme Court as an independent statutory body with its own estimate within the overall Department for Constitutional Affairs departmental expenditure limit and, as a result of a separate estimate, independent financing from the Consolidated Fund through the normal supply process. The chief executive of the Supreme Court will be a separate accounting officer in right of the court itself and not a sub-accounting officer under the DCA Permanent Secretary.

6.30 p.m.

Treasury accounting regulations make it unnecessary to spell out in full detail in the Bill how the revised model will work. However, I am sure that the House will appreciate my placing on the record how the model is to operate. The Supreme Court will be an independent statutory body responsible for appointing the staff for its own administrative service. That service will be headed by a chief executive—a civil servant appointed by a process involving an ad hoc commission and designed to exclude political interference.

The staff of the court will also be civil servants, accountable to the chief executive and not to the Minister. The chief executive himself will be principally answerable to, and operate under the day-to-day guidance of, the President of the Supreme Court and will be accountable directly as accounting officer for the court rather than under the DCA Permanent Secretary.

The President of the Supreme Court and the chief executive will determine the bid for resources for the court in line with governmental spending review timescales, and they will pass it to the Minister, who will include it as a separate line in the overall DCA bid submitted to the Treasury. The Treasury will scrutinise the overall DCA bid and approve the overall financial expenditure before putting the bid before the House of Commons as part of the overall Estimates. The House of Commons will approve the overall Estimates and transfer resources accordingly. Because the Supreme Court will have its own estimate, the funds approved will be transferred to the court direct from the Consolidated Fund and not via the DCA. That assures the Supreme Court a high level of independence in securing and expending resources and in the day-to-day administration of the court.

In this revised model, the Minister will simply be a conduit for the Supreme Court bid and will not be able to alter it before passing it on to the Treasury. Once the Treasury has scrutinised the bid and it has been voted on by Parliament, the funds will go directly to the Supreme Court from the Consolidated Fund rather than via the DCA. That ring-fences the Supreme Court budget and ensures that it cannot be touched by Ministers. The chief executive will be able to allocate resources as he considers appropriate to ensure an effective and efficient system to support the court in carrying out its business. In other words, the chief executive will be solely responsible for the administration of the court, in accordance with directions from the president, and will be free from ministerial control.

Your Lordships will note, however, that this model retains some ministerial involvement. That remains absolutely necessary as it is a key constitutional principle that a Minister must remain ultimately responsible for securing funding from the Treasury and be answerable to Parliament for its overall operation. Therefore, the amendments proposed by the noble Lords, Lord Goodhart and Lord Maclennan, in the next group are unacceptable as they leave no role for any Minister.

Moreover, under the amendments tabled by the noble Lords, Lord Goodhart and Lord Maclennan, the President of the Supreme Court, rather than the Minister, would become responsible for negotiating directly with Her Majesty's Treasury for funding and for the provision of accommodation, staff and services. The Supreme Court would effectively become a department without a Minister but with a judge at its head. It would be required to account for its use of the money voted to it by Parliament rather than a board, a commission or executive office holder. The latter clearly stands in opposition to the principle of functional separation for the judiciary from the legislature, which underlies these proposals.

While the Minister will remain ultimately accountable for the court, his role will be reduced to the inescapable aspects of accountability—presenting and negotiating the court's budget with the Treasury as part of the overall departmental expenditure limit for the DCA and responding to parliamentary Questions about, and otherwise answering to Parliament for, the court's administration. Thus, ministerial involvement will be circumscribed so far as possible and, in all other aspects, the court will be independent.

In Committee, the noble Lord, Lord Kingsland, referred to the conclusions of the Lords Select Committee that the Supreme Court should be a non-ministerial department, suggesting that that would mean that a Minister would not be involved in the funding. That is not an accurate statement of the non-ministerial departmental model but the noble Lord, Lord Kingsland, can hardly be blamed, having regard to the rather misleading nomenclature. Only bodies which are an emanation of Parliament itself are truly self-administering. And clearly, as one of the major principles behind these proposals is functional separation from the legislature, any arrangement whereby the Supreme Court was, for example, funded through the House of Lords—as the noble and learned Lord, Lord Howe, suggested in the Select Committee—would, I believe, be inappropriate.

There is therefore no acceptable way of excluding entirely the involvement of a Minister from the process for determining and allocating the court budget. But I believe that this is the best and most effective way to exclude the Minister as much as possible. No Minister would ever be able to starve the Supreme Court of funds because his role is to pass on the bid as a conduit.

A further reality is that a process requiring the Supreme Court to bid directly for funds would not benefit the court. Without ministerial involvement, the court would not have sufficient clout to negotiate a strong settlement. I say that, of course, without in any way intending to demean the status of the President of the Supreme Court; nor is there any intention to demean that status when I say that, from a practical point of view, it is clearly not reasonable to expect the President of the Supreme Court to find and equip a suitable building for the court, but that would be the effect of the amendments tabled by the noble Lords, Lord Goodhart and Lord Kingsland.

Conversely, the arrangement to which the government amendments give effect would bring additional benefits. Should the court overspend, it would be possible for the DCA Minister to allocate part of his overall budget to the Supreme Court. Moreover, the court, should it wish, would be able to use the DCA's support services, such as human resources and IT, and to benefit from the attendant economies, rather than having to set up its own arrangements.

I very much hope that your Lordships feel reassured by the model that I am now proposing. As I have noted, due to government accounting regulations, it is unnecessary for the new clauses to set out the governance model in the detail that I have outlined. Nevertheless, the clauses themselves provide the Supreme Court with a great deal of protection.

The new clauses establish the post of chief executive of the Supreme Court within a clear statutory framework which places clear and complementary duties on the chief executive and the Minister. The chief executive will be responsible for the non-judicial functions of the court and any functions of the president in relation to the appointment of staff which the president delegates to him—in effect, allowing the chief executive to be responsible for appointing staff to the court.

The chief executive will be answerable to the president, in accordance with whose directions he will be required to act in carrying out his functions. The chief executive will be responsible for ensuring that the court's resources are used to provide an efficient and effective system to support the court in carrying out its business. The Minister has the corresponding duty to provide accommodation for the court and to provide other resources to allow the chief executive to carry out his responsibilities. Clearly the Minister would not be complying with his duty if sufficient funds were not provided to the chief executive to allow him to perform his functions.

I know that there has been some concern among your Lordships that the Government are not sufficiently committed to finding a suitable building for the Supreme Court. As noble Lords will now be aware, the government amendments include a new clause which places a firm duty on the Minister to find such accommodation as he thinks appropriate for the court to carry on its business.

Alongside the sunrise clause that I am tabling, which will no doubt be fully debated later, I hope that my explanation reassures your Lordships that there is no possibility of the Government housing the Supreme Court in inappropriate accommodation. I hope that it also reassures, in particular, the noble Viscount, Lord Bledisloe, the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy. They have all tabled, in another group, amendments to the existing provisions which, in different ways, seek to strengthen the duty on the Minister to provide appropriate accommodation and staffing for the Supreme Court. I hope that, in the light of the overlong explanation that I have given, noble Lords will feel able not to move their amendments.

I do not intend to dwell any further on the building issue as I gave a full explanation of the Government's position during the debate on Clause 14. In summary, these amendments will guarantee the Supreme Court real institutional independence and circumscribe ministerial involvement so far as possible. I beg to move.

Lord Maclennan of Rogart

My Lords, I begin by thanking the noble and learned Lord the Lord Chancellor for what he described as an "overlong" exposition but one that I think was entirely necessary in view of the importance of the issues that he addressed and the authority which a statement of that kind will carry in explanation of the purposes and the mode of operation of the Bill in so far as they are not spelt out in detail in the language of the Bill.

I believe that the Government have moved in a most helpful way to ensure the high level of independence in securing and expending resources which it was the wish of a number of members of the Select Committee to secure and which certainly lay behind the amendments tabled by my noble friend Lord Goodhart and myself.

One or two issues were raised in a very helpful letter from the noble Baroness, Lady Ashton, to my noble friend, to myself and to other Members of the House, to which the Minister may feel it is worth responding. One is whether the staff of the court will be civil servants in the full sense of the term, or whether they will be employed as public servants with equivalent terms and services.

A second question that occurs to me is whether the chief executive, as an independent accounting officer, will be subject to the scrutiny of the National Audit Office, and through that, of the Public Accounts Committee. I imagine that nothing of that kind will be done by any direction, but for the avoidance of doubt, it would be helpful to know what is intended.

The measure announced by the Government in this complex but important package seems to me to go a very long way to meet the desirable goal of ensuring independent management of the court's affairs and the exclusion of the Executive from that. I am bound to say that I am persuaded by what the Minister has said about the importance of not leaving the president of the Supreme Court to argue his corner with the Cabinet for his putative budget. I believe that that ministerial responsibility is an acceptable constitutional propriety which does not provide the wedge that would enable executive interference in the conduct of the court.

These detailed provisions, which will ensure that the budget of the Supreme Court cannot be touched by Ministers, will go far to fortify the underlying objectives of the Bill to secure, as far as is reasonably possible, the separation of the authorities, while retaining the ultimate accountability of the Lord Chancellor. In the light of the government amendments, which have clearly covered other points that we wished to bring to the attention of the Government, my noble friend and I will not wish to press our amendments.

Lord Howe of Aberavon

My Lords, I apologise for pursuing this point once again, but I still wonder where the Treasury fits into the picture. The Lord Chancellor has quite rightly explained that the estimates that have been put forward for the court are not something with which the Minister will interfere; he will simply act as a conduit for them to go forward. But the conduit to where, except the Treasury? The Treasury has a habit of seeking to impose cash limits on such things.

I shall repeat the anecdote that I believe I told the Select Committee. When I was Chancellor I sought to impose cash limits on the House of Commons expenditure and was met by the noble Lord, Lord Barnett, who was then serving on the House of Commons Commission. He snapped his fingers at me and said that the Commons was not subject to any cash limits whatever. When I became Leader of the House of Commons at a later stage, I was delighted when the then Chancellor sought to do the same thing to me. In turn, I snapped my fingers at him.

The report of the Select Committee describes the existing arrangements. It says, While the salaries of the Lords of Appeal in Ordinary are paid direct from the Consolidation Fund, the administrative costs of the Judicial Office (and of course of accommodation) are borne on the House of Lords vote, or request for resources, and accounted for by the Clerk of the Parliaments. The estimates are laid by the Treasury, in like manner as far as a non-departmental public body, though they are not cash limited". I have never been directly concerned with the accounts of the House of Lords, but I have been looking at the annual report for 2003–04 and I perceive accounts that are presented in a most unusually relaxed fashion. All that they set out in appendix F is the outturn of expenditure for each year from 2000–01 to 2003–04, escalating steadily and substantially from £45.67 million in the first year to £61.117 million in the last year. For the year ahead, 2004–05, it simply states the cash requirement, rather as, when a child, one submitted one's bid to one's parents for pocket money. I have the impression that the one benefit of retaining control of the funding of the Supreme Court in one or other of the parliamentary institutions—obviously this one—is that the Treasury will be as powerless as it was in relation to me and the House of Commons.

6.45 p.m.

The Lord Chancellor talks about the Executive not being able to interfere. I appreciate that that means that the Minister has foresworn his ability to intervene, but what about the Treasury? Will not the Supreme Court, in the end, find itself negotiating directly with the Treasury? I seem to recollect one of the Scottish Law Lords who gave evidence to the committee saying that he was uncomfortable about finding himself in that position and appreciated the ability, in his case, to invoke the help of the Secretary of State. It is as though he found himself rather lonely and unprotected by the legislature and was obliged to turn to the Secretary of State for help.

I wonder whether the Lord Chancellor is putting the court in the wrong position. I am not sure what one should do about it, but it seems that the court would be more comfortably protected if it were under the umbrella of unrestricted cash limits, which the two Houses of Parliament appear to enjoy. I may have misunderstood the position, but it seems to me that the most advantageous way of doing it is to bring it under the wing of this House. I am sure that with the utmost benevolence the Lord Chancellor may be depriving the Supreme Court of the liberty that it would have enjoyed under the wing of this House.

Lord Crickhowell

My Lords, I thank the noble and learned Lord the Lord Chancellor for going a very long way to meet the concerns expressed by the Select Committee. Having been a thorn in his side on financial matters, I acknowledge that he has made a considerable step forward on this matter.

Having had to argue public expenditure requirements for eight years as a Minister, when I hear a former Chancellor of the Exchequer make the kind of contribution that he has just made, I have some anxieties. Of course, the reality is that all such matters come back to the Treasury and, as a Minister and later as chairman of a major quango, I sometimes found that the Treasury was extremely difficult and bloody-minded about what seemed to me to be absolutely essential expenditure.

I shall be interested to hear what the Lord Chancellor says in response to my noble and learned friend. I am particularly struck by the fact that earlier this afternoon in answer to a question I put to him about the world-class law library that his Written Ministerial Statement told me we were to have, he said that the costs of establishing that library were included in the capital cost estimates that had been put before us. So far so good—up to a point.

I have done a little research into the matter and have spoken to someone who probably has more wisdom and authority on the matter than almost anyone else. I am assured that the cost of maintaining the law Library in this House is very high. It is a major item of expenditure. Currently, it is absorbed in those items referred to by my noble and learned friend Lord Howe of Aberavon; it is conveniently covered in the expenses of Parliament and therefore is not challengeable by the Treasury.

However, I fear that the ongoing maintenance cost of that library—the provision year after year of a mass of books and learned tomes for the Law Lords—will come under that heading. Therefore, my anxiety about my noble and learned friend's intervention has been magnified by the information that I have discovered in the past hour about the costs of the Library. Perhaps the noble and learned Lord the Lord Chancellor can reassure me on the matter.

But the fact is that the Treasury will be extremely difficult, as it is on all these matters—as any noble Lord who has dealt with it will know—about the very large expense of the Library. Is there not some way in which we can provide for this expense under the kind of arrangements we have at present, which free the final court of appeal from that kind of limitation? Although this is a step forward, is it the best that we can have?

The Duke of Montrose

My Lords, the noble and learned Lord the Lord Chancellor has drawn the House's attention to the fact that this amendment, and the others connected with it, will have a considerable effect on the amendments tabled in my name and that of my noble friend Lady Carnegy of Lour as well as those of other noble Lords. It is probably my own fault that I am at the receiving end of a very inefficient postal system, but I was rather late in finding notice of this new policy introduced by the noble and learned Lord.

Last night I sat in on a debate on the marine environment. The big complaint was that you cannot always see what is going on beneath the surface of the water. Trying to cope with the new concepts being introduced here leaves me in a slightly similar fog.

Through the later amendments in the group, the Government propose to remove Clauses 38 to 43. A lot of the issues which our amendments address and which the House considered in Committee relate to those clauses. I am very grateful to the Minister. He promised us that they would table amendments at this stage, but the amendments make it look as though in Committee they had some idea that they would bring forward this massive new proposal, with which I was suddenly faced yesterday.

However, some of the issues remain and, as far as I can see, they are not all addressed in the new scheme. Certainly, Amendment No.118A allows that: The Minister must appoint the chief executive", but in Amendment No. 118B we are back to: The President of the Supreme Court may appoint officers and staff". It is reassuring to see that on accommodation the Minister must ensure that courts' offices and accommodation are provided. Can the Minister explain why the appointment of staff only requires "may"? These provisions replace the clauses in which Amendments Nos. 124 and 134, which I was due to move, had effect. So I raise my queries at this point.

In Clause 40, which Amendment No. 130 would delete, we were considering the question of consultation on staff provision by third parties. The amendments offered by the Government in the group make no provision for staff provision by third parties. Is that because it is reckoned that the Civil Service is large enough to ensure that there will never be need for outside contractors; or that outside contracts will not be made on the basis of hiring staff?

The amendment still does not address the issue at the heart of the desire for wide consultation, which was addressed by Amendments Nos. 128 and 129, tabled in my name and that of my noble friend Lady Carnegy of Lour. What happens if the decisions of the chief executive upset the working arrangements of other courts or the staff of other legal bodies? Can the noble and learned Lord tell me what approach the Government propose in those matters?

Viscount Bledisloe

My Lords, Amendment No. 120 sought to insist that the Government should have an absolute obligation to provide appropriate premises for the Supreme Court. In Committee, the Government told us that that was not necessary. However, fortunately, they have seen the light.

By Amendment No. 140A they impose an absolute duty on the Minister to ensure that the Supreme Court is provided with appropriate buildings and accommodation. I am grateful to the noble and learned Lord for this change of heart. I cannot, however, refrain from pointing out that whereas my amendment would have achieved this result in two words, it has taken the parliamentary draftsmen 23 lines to achieve precisely the same result.

Baroness Carnegy of Lour

My Lords, my noble friend the Duke of Montrose wanted to establish various facts on the Government's new scheme in order to decide what should happen to his amendments, to which I have put my name. The salient point about third parties is whether, when the chief executive appoints officers and staff as a function delegated by the president, he will be able to recruit via third parties. If so, what are the implications of that for the statement that the staff will all be civil servants. Will the chief executive see the need, as does the Law Society of Scotland, to consult the lawyers' bodies and senior judges about the levels of staffing that he establishes?

I welcome the Government's proposal to set up the court in this new way. If we are to have this court, it seems a very big improvement on the original proposals. But if that happens, the Law Society's point does not fall. Lawyers have a great interest in the staffing levels of this court. Will they be consulted? I should be interested to know whether the Minster has considered that point.

Lord Kingsland

My Lords, I hope that the noble and learned Lord the Lord Chancellor will concede that, wax lyrical though he has done at this and earlier stages of the Bill about the enhanced independence that the judges of the Supreme Court will enjoy in the proposed institution, in the financial area at least, the situation is reversed. As a result of the noble and learned Lord the Lord Chancellor's proposals, the Supreme Court will enjoy less financial independence than the Lords of Appeal in Ordinary do in the Appellate Committee. I see the noble and learned Lord shaking his head, but I do not see how any other conclusion can be reached.

I was rather disappointed to hear the noble Lord, Lord Maclennan, say that he would not press his amendment. As he stood up I was looking forward to saying at the end of his speech that I thoroughly concurred with everything that he said and that. I would support him in the subsequent vote. Imagine my disappointment when the noble Lord said that he was almost entirely satisfied with the noble and learned Lord's proposals and, in those circumstances, would not be pressing his amendment.

I confess that I entirely share the apposite views expressed by my noble and learned friend Lord Howe. Although I accept that, under the circumstances, the noble and learned Lord the Lord Chancellor had to retreat one step by accepting that the Chancellor of the Exchequer would now inevitably impose cash limits on the Supreme Court, I did not expect him to retreat two steps and re-interpose a Minister between the Supreme Court and the Chancellor of the Exchequer, which he has done.

For example, I cite the first two subsections of Amendment No. 118B. In subsection (1), we read: The President of the Supreme Court may appoint officers and staff of the court", to which I say, hooray. But then, in subsection (2), we read: It is for the chief executive of the Supreme Court to determine these matters with the agreement of the Minister". So the power of the President of the Supreme Court under subsection (1) seems hollow indeed. Although I accept that the President of the Supreme Court may lose his battle with the Chancellor of the Exchequer because of general cash limits imposed on all spenders, departmental or non-departmental, I simply do not understand how subsection (2) fits in with all the statements of the noble and learned Lord about the independence of the Supreme Court. It is quite plain that the power of the president under subsection (1) is wholly meaningless. It would be better were the provision not there at all because I submit that it misleads.

I should have liked to have supported the noble Lords, Lord Maclennan of Rogart and Lord Goodhart, on their Amendment No. 126, which would replace "Minister" by "President of the Supreme Court"—Amendment No. 131 would also replace "Minister" by "President of the Supreme Court"—but I am now unable to do so.

7 p.m.

Lord Falconer of Thoroton

My Lords, I am grateful for the welcome that the measures have received, apart from the noble Lord, Lord Kingsland, who made several points, and the noble and learned Lord, Lord Howe. I shall deal first with the points made by the noble Lord, Lord Maclennan. Will the staff be civil servants? Yes, they will. Will the chief executive be subject to the National Audit Office? Yes, he will, as will the whole operation.

The noble and learned Lord, Lord Howe, makes the point that because the expenses of the Law Lords are currently in the House of Lords Estimates, the Treasury does not really scrutinise them. That is absolutely true. As the noble and learned Lord knows, the expenditure is made up of £2.1 million on judicial salaries, which would not be scrutinised by the Treasury anyway; £600,000 on staff salaries attributable to the Law Lords; £400,000 on administration; and £100,000 on utilities and rates. The three figures of £600,000, £400,000 and £100,000 are largely notional estimates of what is spent by this building and its staff on the Law Lords. Hitherto, the Law Lords have avoided Treasury scrutiny because there is no separate expenditure for a Supreme Court or a final court of appeal.

Let us assume, if the noble and learned Lord will, that there was a separate Supreme Court, which is the assumption on which the provision is made. Clearly, a separate amount would have to be considered for the funding of that operation. It would be a matter for the Chancellor of the Exchequer of the day.

I was interested to hear that when the noble and learned Lord was Chancellor of the Exchequer and the Commons told him to go away when he wanted to apply cash limits, he went away. I can understand why: because he knew that the Commons would not vote for the Estimates if he sought to apply cash limits. What would his attitude have been if they had been £5 million a year for the Supreme Court? Would the Lords and the Commons have said, "We do not apply cash limits to the Supreme Court"? That is a rhetorical question, so I do not invite the noble and learned Lord to rise; I regret asking the question anyway.

However, with the greatest of respect to the noble and learned Lord, one must be realistic. If one is setting up a Supreme Court, there will be a separate figure that will be considered by the Chancellor of the Exchequer. One cannot imagine that the figure would not be looked at, but the reality is that, in the context of public expenditure, which is about £500 billion a year, it is not that great a figure. It is extraordinarily unlikely that it would create significant issues.

Lord Howe of Aberavon

My Lords, allow me to interrupt the noble and learned Lord, because he is not asking rhetorical questions. Surely, the figure of £76.7 million to be spent by this House in the year ahead is not something in respect of which the Chancellor can come pounding along to impose a cash limit. The very fact that Parliament together votes itself the total figure is the one area in which the separation of the Supreme Court from the omnipotent spending power of Parliament itself jeopardises the financial independence of the Supreme Court.

Lord Falconer of Thoroton

My Lords, it cannot. Before he answered my rhetorical question, the noble and learned Lord nodded enthusiastically when I said that the reason that the Chancellor cannot impose cash limits on Parliament is that the Commons would never vote for the Estimates if he started to do so. The position would inevitably be different if there was a separate and identifiable sum, as we would have to have for a Supreme Court. So, with the greatest of respect to the noble and learned Lord, the idea that, because no separate amount of money is in practice attributable to the Law Lords, it follows that the same approach would be taken when there was approximately £8 million of expenditure for the Supreme Court may not necessarily be reflected in practice.

Secondly, and separately, in any event, there should be a separation between Parliament and the Supreme Court. Thirdly, the Supreme Court would have the benefit of being, as part of the ministry, being able to look to that ministry first before it had to go back to the Treasury.

The noble Duke, the Duke of Montrose, referred to the amendments about consultation, to which the noble Baroness, Lady Carnegy, also referred. They refer to third-party schemes which, by removing Clause 40, we remove altogether. We shall return later to the issue of consultation on matters such as fees, which is an issue also raised by the noble Duke and the noble Baroness. As for the noble Duke's question about why the clause states that the chief executive "may", not "must", appoint, that is because it is intended that the chief executive should have the power to decide how the money is disposed of. We do not want to place any obligations on him; that is entirely a matter for him.

As for the points made by the noble Lord, Lord Kingsland, I have made clear in all that I have said that the intention is that the money, once granted by the Commons in its Estimates, is passed not from the DCA but directly from the Consolidated Fund to the chief executive who, working to the direction of the president and the other members of the Supreme Court, decides how it should be spent. It is hard to imagine more financial independence than that.

The arrangements that we have followed here are similar to that of the High Court of Australia, where a Minister of the Attorney-General intervenes, but the Supreme Court Justices in the High Court of Australia, which is the Supreme Court of Australia, are very satisfied with the model.

Baroness Carnegy of Lour

My Lords, before the noble and learned Lord sits down, is he saying that all the employees of the Supreme Court will be civil servants and that there will be no third-party arrangements? Will the cleaners be civil servants?

Lord Falconer of Thoroton

My Lords, they will be civil servants. Obviously, that does not rule out the chief executive entering into contract cleaning arrangements with cleaning companies but, in those circumstances, the cleaners would be employed by the cleaning company.

Lord Kingsland

My Lords, before the noble and learned Lord sits down, I should like to turn again to the terms of Amendment No. 118B. I accept the point about Treasury cash limits, and I accept that the Treasury will pass the money directly to the Supreme Court without the interposition of the Minister, but I am still puzzled by the need for the Minister to play a role in the appointment of staff.

If the President of the Supreme Court knows exactly how much money he will get over any given period from the Treasury, why can he not appoint his own staff within that cash limit? Why does the Minister have to play a role—indeed, it seems to be an exclusive role—in deciding who the President of the Supreme Court will employ; despite the fact that the Minister already has the reassurance that the president would be acting under cash limits?

Lord Falconer of Thoroton

My Lords, the president is the appointer, which means the formal person who employs. The chief executive determines these matters. He has to get the agreement of the Minister, but he is the accounting officer. So in operational terms it is the chief executive not the Minister who is ultimately responsible for ensuring those arrangements.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 118B: After Clause 37, insert the following new clause—

"OFFICERS AND STAFF

(1) The President of the Supreme Court may appoint officers and staff of the Court.

(2) It is for the chief executive of the Supreme Court to determine these matters with the agreement of the Minister—

1. (a) the number of officers and staff of the Court;
2. (b) subject to subsection (3), the terms on which officers and staff are to be appointed.

(3) The civil service pension arrangements for the time being in force apply (with any necessary adaptations) to the chief executive of the Court, and to persons appointed under subsection (1), as they apply to other persons employed in the civil service of the State.

(4) In subsection (3) "the civil service pension arrangements" means—

1. (a) the principal civil service pension scheme (within the meaning of section 2 of the Superannuation Act 1972 (c.11), and
2. (b) any other superannuation benefits for which provision is made under or by virtue of section 1 of that Act for or in respect of persons in employment in the civil service of the State."

On Question, amendment agreed to.

Clause 38 [Minister's duty]:

[Amendments Nos. 119 to 121 not moved.]

Lord Falconer of Thoroton moved Amendment No. 122: Leave out Clause 38.

On Question, amendment agreed to.

Clause 39 [Officers and staff: appointment by Minister]:

[Amendments Nos. 123 and 124 not moved.]

Lord Falconer of Thoroton moved Amendment No.125: Leave out Clause 39.

On Question, amendment agreed to.

Clause 40 [Staff: provision by third parties]:

The Deputy Speaker (Lord Carter)

My Lords, I should tell the House that if Amendment No. 126 is agreed to I cannot call Amendments Nos. 128 and 129 on the grounds of pre-emption.

[Amendments Nos. 126 to 129 not moved.]

Lord Falconer of Thoroton moved Amendment No. 130: Leave out Clause 40.

On Question, amendment agreed to.

Clause 41 [Services: provision by third parties]:

[Amendment No. 131 not moved.]

Lord Falconer of Thoroton moved Amendment No.132: Leave out Clause 41.

On Question, amendment agreed to.

Clause 42 [Accommodation]:

[Amendments Nos. 133 to 135 not moved.]

The Deputy Speaker

My Lords, I should inform the House that if Amendment No. 135A is agreed to, I cannot call Amendment No. 136 on the grounds of pre-emption.

[Amendment No. 135A not moved.]

Lord Falconer of Thoroton moved Amendment No. 136: Leave out Clause 42.

On Question, amendment agreed to.

Clause 43 [Annual report]:

[Amendments Nos. 137 and 138 not moved.]

The Duke of Montrose moved Amendment No. 139:

Page 18, line 30, at end insert—

"(3) The Minister must also send a copy of any annual report to—

1. (a) the Scottish Parliament;
2. (b) the Northern Ireland Assembly; and
3. (c) the National Assembly for Wales."

The noble Duke said: My Lords, the amendment is designed to ensure that the report is circulated to the various United Kingdom Parliaments and bodies. I notice that along with the Government's intention of wiping out Clause 43 through Amendment No. 140, to which this amendment was to be added, they have now tabled Amendment No. 145A, which gives an altogether more detailed treatment to the question of who should receive the official report, to which I would be inclined to lend my support. I beg to move.

Baroness Ashton of Upholland

My Lords, as the noble Duke will realise, we have no objections in principle to his amendment. We have tabled Amendment No. 145A, which we think gives the right level of detail, as the noble Duke indicated.

The Duke of Montrose

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No.140: Leave out Clause 43.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 140A and 140B: After Clause 43, insert the following new clause—

"ACCOMMODATION AND OTHER RESOURCES

(1) The Minister must ensure that the Supreme Court is provided with the following—

1. (a) such court-houses, offices and other accommodation as the Minister thinks are appropriate for the Court to carry on its business;
2. (b) such other resources as the Minister thinks are appropriate for the Court to carry on its business.

(2) The Minister may discharge the duty under subsection (1) by—

1. (a) providing accommodation or other resources, or
2. (b) entering into arrangements with any other person for the provision of accommodation or other resources.

(3) The powers to acquire land for the public service conferred by—

1. (a) section 2 of the Commissioners of Works Act 1852 (c. 28) (acquisition by agreement), and
2. (b) section 228(1) of the Town and Country Planning Act 1990 (c. 8) (compulsory acquisition),

are to be treated as including power to acquire land for the purpose of its provision under arrangements under subsection (2)(b).

(4) The Scottish Ministers may make payments by way of contribution to the costs incurred by the Minister in providing the Court with resources in accordance with subsection (1)(b).

(5) In this section "court-house" means any place where the Court sits, including the precincts of any building in which it sits."

After Clause 43, insert the following new clause—

"SYSTEM TO SUPPORT COURT IN CARRYING ON BUSINESS

(1) The chief executive of the Supreme Court must ensure that the Court's resources are used to provide an efficient and effective system to support the Court in carrying on its business.

(2) In particular—

1. (a) appropriate services must be provided for the Court;
2. (b) the accommodation provided under section (Accommodation and other resources) must be appropriately equipped, maintained and managed."

On Question, amendments agreed to.

Clause 44 [Fees]:

Lord Falconer of Thoroton moved Amendment No. 140C:

Page 18, line 33, after "may" insert ", with the agreement of the Treasury,"

The noble and learned Lord said: My Lords, the amendment deals with the issue of fees. The government amendment to Clause 44 simply provides that the Minister may by order, with the agreement of the Treasury, prescribe fees payable in respect of anything dealt with by the Supreme Court. The current provision meant that the Minister did not need the consent of the Treasury to make such an order.

I have tabled the amendment as it is deemed desirable to bring the making of the Supreme Court fee orders into line with the making of court fee orders for other courts whereby Treasury consent is necessary; for example, Section 92 of the Courts Act 2003 and various other Acts, including Section 116 of the Judicature (Northern Ireland) Act 1978 and Section 2 of the Courts of Law Fees (Scotland) Act 1895. This is therefore a standard provision for courts fees throughout the United Kingdom. I beg to move.

On Question, amendment agreed to.

7.15 p.m.

Lord Kingsland moved Amendment No.141:

Page 19, line 2, at end insert— and must ensure that the levels of fees are such that the average cost of bringing appeals to the Supreme Court do not in total exceed, in real terms, the cost of bringing such appeals to the House of Lords in February 2004

The noble Lord said: My Lords, this issue has been pursued on previous occasions in the Select Committee and in your Lordships' House. I shall not speak at length to it. Indeed, my task has been made considerably easier by the intervention of the noble and learned Lord, Lord Ackner, earlier in the debate, on the amendment moved at the beginning of today's proceedings by the noble and learned Lord, Lord Lloyd of Berwick.

I simply wish to draw your Lordships' attention again to the evidence given at the Select Committee by the Bar Council and the Law Society, particularly the observations made by Mr Richard Drabble QC, which are to be found in Volume 2—the evidence volume—of the Select Committee report on the Constitutional Reform Bill.

Mr Drabble gives evidence on behalf of the Bar Council as follows: Can I say a word about the fees issue, which is a matter on which we do feel strongly. Our consultation responses to date have indicated we support the Supreme Court only on the condition that the additional cost of its creation is borne by the Government. I would strongly advocate the view that the sort of litigation … which finds its way at the moment to the Appellant Committee, and will find its way to the Supreme Court—is there because it is in the public interest for it to he heard". The noble and learned Lord should take the evidence of Mr Drabble extremely seriously. It has been reinforced today by the intervention of the noble and learned Lord, Lord Ackner. It is supported entirely from these Benches. I beg to move.

Lord Goodhart

My Lords, I support what has been said about the principle of the matter by the noble Lord, Lord Kingsland. I agree that there are serious issues about fees. There is undoubtedly a threat that increasing fees can lead to the denial of access to justice to a number of people who cannot afford to litigate if they are compelled to pay excessive fees.

I differ from the noble Lord, Lord Kingsland, in that I think that his formula is somewhat too rigid. His amendment states that the Minister, must ensure that the levels of fees are such that the average cost of bringing appeals to the Supreme Court do not in total exceed, in real terms, the cost of bringing such appeals to the House of Lords in February 2004". I suspect that the average costs of court fees at all levels are going to rise faster than the rate of inflation because they tend to be fairly labour-intensive. "Real terms" is not a wholly adequate test, and the proposal is rigid and inflexible.

We have attacked this in a somewhat different way. Amendment No.175—I originally suggested that it should be taken with this group of amendments; that was not done, but I think it is appropriate to speak briefly to it—provides that the setting of fees under Clause 44 should require some further parliamentary input. The fees proposed should require the affirmative resolution in both Houses.

There are precedents for that. A substantial issue arose over the fixing of lees in a Bill in recent years which ended with the Government accepting that there should be a parliamentary process for approving them. The appropriate method of keeping the balance right and ensuring that fees are not put up excessively is to require parliamentary input as set out in our amendment.

Lord Ackner

My Lords, I support the amendment for the reasons that I gave earlier in the debate. I should also like to point out that the stimulus of access to justice is prejudiced by this sort of situation, one in which fees rise way beyond their previous levels purely because the costs involved are looked upon as something to which the Government have no obligation to contribute; rather, only an obligation to indemnify themselves against those costs. Accordingly, I support the proposal.

Viscount Bledisloe

My Lords, the need for the amendment is amply demonstrated by the figures for costs supplied earlier today by the noble and learned Lord. They demonstrate that the estimated annual costs of the Supreme Court will be 250 per cent of the present costs—in fact, somewhat over that. I doubt very much whether, at the moment, the fees of the Supreme Court even cover the £3.2 million quoted in the Statement as the current running costs of the Appellate Committee. Many of those costs are absorbed by the House of Lords and not allocated to the committee itself. Any attempt to achieve full fee recovery would mean that fees would have to rise to more than three times their present level.

I accept that the Government do not intend to load all that on to the Supreme Court fees, but to recover the rest by spreading them over litigation generally. But even if they get back only a small proportion by raising the Supreme Court fees, fees will still rise enormously. That is wholly wrong. Personally, I agree with my noble and learned friend Lord Ackner that the concept of full fee recovery from taxpayers who are paying taxes to provide courts is wrong in any case, but that is a wider topic for another day.

In the Supreme Court, an individual litigant will be seeking to clear up a point of law of general importance for the benefit of the administration of justice. Frequently—this is a point very much ignored by the Government—he will need to do that merely because governments have drafted their Bills lousily. That may not be the case for the Government in power at the moment; it may have been the previous administration. But an enormous quantity of litigation in the House of Lords arises because Bills are not drafted clearly enough.

Why the individual litigant should pay enormous extra sums to clear up the mistakes of governments is something which neither I nor, I venture, anyone else could understand or justify, so I strongly support the amendment. The noble Lord, Lord Goodhart, may be marginally correct to point out that tying the fees to "real terms" would mean that they would not rise quite as fast as other fees, but that is a minor point which might make a difference of around I per cent. Therefore I support the amendment tabled by the noble Lord, Lord Kingsland, which I hope he will press.

Lord Lester of Herne Hill

My Lords, I am broadly sympathetic to the aim of the amendment but not to the means that have been employed. Perhaps I may raise a matter which, when the noble and learned Lord the Lord Chancellor deals with it, may help in his response to the debate.

Clause 44(3) provides: When including any provision in an order under this section, the Minister must have regard to the principle that access to the courts must not be denied". The word "denied" is strong and absolute. However, the point that I wish to make is that surely the provision will have to be read and given effect compatibly with Article 6 of the European Convention on Human Rights. That article guarantees the right of access to courts and case law shows that there must not be any disproportionate hindrance. It goes beyond denial and refers to hindrance, whether that arises in the setting of fees or in the form of any other barrier.

I am worried about the word "denied" being read on its own. However, I hope that the noble and learned Lord the Lord Chancellor will be able to reassure the House that when this provision refers to "denied", it must be read subject to the right of access to courts with no disproportionate interference to that right of access. That would limit the Minister's powers because he would have to act compatibly with Section 3 of the Human Rights Act 1998 and the Article 6 right. That would go a long way towards reassuring me because it would be an overriding safeguard.

I should like to raise one other point in the light of what was said by the noble Viscount, Lord Bledisloe. Of course, it is not only fees that can create a barrier, but also any liability for the costs of the other side. One of the major barriers to going to the Supreme Court will be if the litigant in, let us say, a public interest case involving a constitutional matter, is faced with the liability to pay the Government's legal costs if he fails. I think that that could be dealt with by something like a protected costs order fashioned by the Supreme Court, which would mean that the House would not have to deal with it. But again, Article 6 of the ECHR, when read with Section 3 of the Human Rights Act, will provide a safeguard. I should like the Minister's reassurance that I am right about that.

The Duke of Montrose

My Lords, we seem to be discussing fees in great detail. They are a matter of interest to the whole legal profession and not simply to senior judges. The noble Viscount, Lord Bledisloe, referred to the much higher fees that may have to be charged as we begin to look at the costs now being proposed compared with those set out in the explanatory memorandum from the Law Society of Scotland to the Bill. It stated that the costs were likely to be between 0.8 and 0.1 per cent per civil case in each jurisdiction, but we are now talking about figures that presumably will be much larger than that. At that point we were told that, the total sum recovered by way of fees payable to the judicial office was just under £500,000, which certainly leaves quite a shortfall". At the Committee stage we considered the implications for Scottish litigants. It turned out that this would all be filtered through the Scottish Parliament and might amount to 80 per cent of the cost of cases emanating in Scotland. The noble and learned Lord the Lord Chancellor was reluctant to be pinned down on this subject in Committee. Can he say whether the Government envisaged in their discussions with the Scottish Executive that they will have power to recoup some proportion of the costs of litigation emanating in Scotland, and whether this will be by fees payable through the Scottish courts if they decide to do so?

7.30 p.m.

Lord Brennan

My Lords, I raised some practical questions about fees at the Second Reading of the Bill. At the moment, a legally-aided petitioner to the House of Lords is unlikely to have to pay a fee. I assume that there are special arrangements for conditional fee agreements. When I last looked at this issue three or four years ago the fee for a private litigant to pursue a petition was quite substantial; it cost many thousands of pounds.

My question seeks information. I have looked at the list of appeals currently pending before the House, and more than half of them are judicial review claims involving asylum and government action. Will the fee structure make provision for the fact that with such a number of government departments involved they should have some obligation, win or lose, to make a contribution themselves—especially if the successful litigant achieves a point of public importance and of consequential economic benefit? That is my first point.

Secondly, in the distribution of moneys which are collected in this way, will any attempt be made to be selective? In the same list, there were about six tax appeals—almost entirely brought by extremely wealthy people or companies—which, in terms of the Law Lords' time and effort, will probably be expensive to hear. It would be extremely unrealistic, if not unjust, that such a litigant, expecting to recoup perhaps many millions of pounds, should pay the same fee as a litigant with a private matter which affects only him or her.

So my two questions are, first, what happens to government departments which are involved with the Law Lords; and, secondly, is some kind of selectivity envisaged so that the most expensive appeals—certainly in regard to recovery of tax and so on—should have a selected band?

Lord Falconer of Thoroton

My Lords, the amendment of the noble Lord, Lord Kingsland, would have the effect of freezing fees in the House of Lords—and, when it is transposed, in the Supreme Court—at exactly their current levels, subject to inflation. So the assumption is that they are at a perfect level at the moment and that they should remain so for the next 30,40 or 50 years. This is despite the point made by the noble Lord, Lord Brennan, that some litigants in the House of Lords, and subsequently the Supreme Court, may get considerable benefit from the litigation in which they are involved.

There was a period during the past 20 or 30 years when commercial litigation was most prominent in the House of Lords. It would not be right rigidly to say that fees must stay at their current level. The amendment proposed is inapposite.

Viscount Bledisloe

My Lords, surely that point is wrong. The amendment refers to the "average cost" of bringing appeals. It would therefore be open to double the cost of bringing tax appeals and to halve the cost of bringing matrimonial appeals. It allows you to discriminate against, or in favour of, a particular case. The amendment refers to the overall level of fees, not to each category of fee.

Lord Falconer of Thoroton

My Lords, that question should be put to the noble Lord, Lord Kingsland, rather than to myself.

But let us assume that that analysis of the amendment of the noble Lord, Lord Kingsland, is correct. Even so, it still falls foul of the objection that the amount currently taken in fees is exactly right. I do not accept that it is right. As the noble Lord, Lord Goodhart, said, the amendment would bring an inappropriate degree of rigidity.

The Government have always said that for civil work in the Supreme Court—not for devolution cases and not for criminal cases—we are committed to two principles: access to justice and full cost recovery. The latter principle was recently accepted by Parliament during the debate on the Courts Act on 12 November 2003.

Being mindful of the need to provide access to justice, I confirm the point made by the noble Lord, Lord Lester, that Clause 44(3) of the Bill would be read subject to Article 6. So he need have no fear about the use of the word "denied" because the principles that he outlined would apply.

Being mindful of the need to provide access to justice, rather than raise fee levels directly in the Supreme Court, the Government intend that the cost of civil work should be shared between the generality of all civil litigants appearing before the courts below the Supreme Court. In effect, this would mean placing a very small premium on all civil fees. But, again, we should not be restricted forever to the current level of fees in the Supreme Court. In the light of that explanation, the fears raised by noble Lords in relation to Supreme Court fees are misplaced.

A point was raised about whether there should be a process whereby there needs to be an affirmative resolution of both Houses before the fees are raised. This issue is covered in a later group of amendments but it will be useful to deal with it now. Noble Lords will note that considerable consultation is required before any fees are raised; they will note that it will be subject to Clause 44(3), a point raised by the noble Lord, Lord Lester; and they will note also that where for an individual litigant the fees are prohibitive, they will be waived or legal aid will contribute or pay the whole of them.

It would be wrong in principle—it would be unprecedented—for a fees order to be made subject to an affirmative resolution of the House of Lords. In those circumstances, both the amendment of the noble Lord, Lord Kingsland, and the proposal of the noble Lord, Lord Goodhart, that there should be an affirmative resolution of both Houses, are wrong. We provide sufficient protection.

The noble Lord, Lord Brennan, is right—a significant number of cases involve government departments, whether as appellants or respondents. There are no special provisions in relation to government departments funding particularly the House of Lords. I suspect that government departments are the most common litigants in many courts. Government departments have to pay their fees like anyone else. They make a greater contribution through paying more fees.

Unfortunately I have forgotten the noble Lord's second question.

Lord Brennan

My Lords, I asked about tax appeals and appeals which have large financial benefits.

Lord Falconer of Thoroton

My Lords, I leave open the possibility of looking again at the civil fees structure to see whether there is something in the noble Lord's point.

The noble Duke, the Duke of Montrose, asked about Scotland. The Scottish civil appeals contribution—which will be fairly small—to the Supreme Court will be made through a payment from the Scottish Executive, not by a premium being charged on Scottish civil litigants.

In the light of those remarks, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Kingsland

My Lords, I am very tempted not to do so because I believe my amendment is entirely appropriate for the various situations outlined by other noble Lords who have intervened in the debate. However, I will only win a vote if the party to my right—I hope its members do not object to being described as such—are with me.

I do not know whether or not they are with me—that will depend upon inter-party conversations which I have not yet had the opportunity to conduct—and I shall therefore beg leave to withdraw the amendment. However, I put the noble and learned Lord the Lord Chancellor on notice that I may return to this matter at Third Reading with either the same amendment or an appropriately composite amendment flowing from the negotiations which will take place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.40 p.m.

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