HL Deb 20 December 2004 vol 667 cc1540-4

(1) The chief justice of any part of the United Kingdom may lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice, in that part of the United Kingdom.

(2) But in relation to Scotland those matters do not include matters within the legislative competence of the Scottish Parliament, unless they are matters to which a bill for an Act of Parliament relates.

(3) In this section "chief justice" means—

  1. (a) in relation to England and Wales or Northern Ireland, the Lord Chief Justice of that part of the United Kingdom;
  2. (b) in relation to Scotland, the Lord President of the Court of Session".

The noble and learned Lord said: My Lords, it will be remembered by some of your Lordships that I tabled the amendment, which stands in my name, on Report. At that stage the noble and learned Lord the Lord Chancellor indicated that he would carefully consider the amendment. It is now in a revised form for reasons which I shall explain, but I understand that the Lord Chancellor is now prepared to support the amendment.

My noble and learned friend the Lord President, Lord Cullen, also has his name to the amendment and is fully supportive. Unfortunately, his judicial commitments mean that he cannot be here today. He asked me to convey his apologies to the House.

This is an attempt to square the circle between the present position, where as Lord Chief Justice I can address the House directly, and the position in the future, if the Bill continues in its present form, when I will not have the privilege of appearing before your Lordships.

The virtue of the amendment is that it will allow the three judges—the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland—to lay written representations before Parliament which are, in the opinion of the judge laying the paper, matters of importance relating to the judiciary or the administration of justice.

The main difference between the original form of the amendment and the present one is that of the position in Scotland in respect of devolution. Subsection (2) is designed to meet concerns expressed on behalf of the Scottish Executive, that it would not be appropriate for representations to be made to this Parliament on matters under consideration by the Scottish Parliament. The main concern was thought to be that, without the qualification set out in subsection (2), the amendment might have been regarded as undermining the devolution settlement, although it was recognised that in practice problems were most unlikely to occur.

The formulation which has been agreed means that the Lord President will not be able to make written representations to your Lordships' House on matters that are within the competence of the Scottish Parliament unless there is a Bill or draft Bill under consideration. By convention, this Parliament legislates in devolved areas only with the consent of the Scottish Parliament.

I do not consider that this will be a power that any of the judges will use frequently. It is an additional safeguard. Apart from the amendment, a Joint Select Committee or a committee of either House may also choose to hear representations from the judiciary. That practice is exercised more often than hitherto but is still relatively rare. The senior judges of the three jurisdictions do not regard the possibility of appearing before a committee as a substitute for the protection forwarded by the amendment. I beg to move.

Lord Mackay of Clashfern

My Lords, I support the amendment. I am delighted to hear that the noble and learned Lord the Lord Chancellor is also likely to do so. At the previous stage, I tabled an amendment about committee structure. The noble and learned Lord the Lord Chancellor said that it would be considered, but it is not a matter for Third Reading, so I am delighted that this amendment will be accepted.

Lord Goodhart

My Lords, we too support the amendment. However, it seems to me to belong in Part 5 of the Bill rather than in Part 1. Perhaps that can be looked at in another place.

Lord Kingsland

My Lords, we also supported this amendment on Report stage. I know that the noble and learned Lord the Lord Chancellor was to reflect on the amendment. I understand that he has now done so and is about to tell us that he accepts it.

Lord Falconer of Thoroton

My Lords, I am glad to accept it. I am grateful to the noble and learned Lord the Lord Chief Justice for proposing it. It seems a sensible way of ensuring that the judiciary in every part of the kingdom has the ability to make representations in appropriate cases, which as the noble and learned Lord the Lord Chief Justice says may be rare, but it is a sensible way of dealing with the point. Again, I express my gratitude to the Lord Chief Justice for proposing it.

Earl Ferrers

My Lords, the noble and learned Lord has expressed his gratitude, as has everyone else, for what the noble and learned Lord the Lord Chief Justice—

The Countess of Mar

My Lords, the noble Earl is speaking after the Minister and this is Third Reading.

On Question, amendment agreed to.

Clause 13 [Speakership of the House of Lords]:

Lord Kingsland moved Amendment No. 3:

Leave out Clause 13.

The noble Lord said: My Lords, the reason for tabling this amendment is not to question the substance of Clause 13, but to ask whether it ought to be in the Bill at all. Surely, issues concerning the Speakership of your Lordships' House, whatever your Lordships' views on the appropriateness of such an office or otherwise, should be a matter solely for your Lordships' House in the context of the Standing Orders of the House.

In our submission, it is wholly inappropriate for another place to be invited to consider whether or not your Lordships' House should change the arrangements about who sits on the Woolsack. The amendment is tabled for that reason. I do not ask your Lordships to seek to open a debate upon the substance of the clause. I beg to move.

3.30 p.m.

Lord Campbell of Alloway

My Lords, to save time I shall speak to Amendment No. 95 in the group. It would leave out Schedule 5. It is consequential on Amendment No. 3, which would leave out Clause 13. Therefore, Amendment No. 95 may in due course be dealt with formally. Both these enabling provisions on the transfer of the Speakership were consequential upon the office of Lord Chancellor. On Report, it was common ground that they should be left out. An undertaken was given to table these amendments to give effect to that undertaking.

Lord Maclennan of Rogart

My Lords, I rise briefly to support the noble Lord, Lord Kingsland, on behalf of my noble friends. My reasoning is entirely the same as his. I therefore need not detain the House.

Lord Falconer of Thoroton

My Lords, the principle expressed in our debates on the Speakership of this House by a number of noble Lords, including the noble Lords, Lord Kingsland, Lord Campbell of Alloway, Lord Goodhart and Lord Maclennan of Rogart, is that the Speakership is a matter for this House alone. I firmly agree with that principle.

I equally firmly believe that the choice of Speaker of this House should not be in the gift of the governing party. The provisions in Clause 13 and Schedule 5 remove the automatic link between the Lord Chancellor and the Speakership of this House in primary legislation. They do not preclude the Lord Chancellor from continuing to hold the office of Speaker, if that is the will of this House. They vest those functions, currently vested in the Lord Chancellor as Speaker, in a generic office of Speaker. They ensure that the House can, under its standing orders, appoint a Speaker who is empowered to carry out all the functions currently attached to the Speakership, rather than having a Speaker imposed on the House by the Executive, as is, in effect, the case now.

That the Speakership is a matter for this House alone is underpinned and underlined by Clause 13 and the Schedule it introduces. The decision we are being asked to make today is not who should occupy the Woolsack, nor whether the Lord Chancellor should continue or discontinue to be Speaker. We are not being invited to agree today—as the noble Lord, Lord Kingsland, would have had noble Lords believe on 7 December—to, a wholesale change that would dispense with the traditions of your Lordships' House and could see us moving towards a full-time Speaker with authority over the House".—[Official Report, 7/12/04; col. 886.] Such a claim is, with the greatest respect to the noble Lord, Lord Kingsland, without foundation and is a misrepresentation of what these provisions achieve, and what they are intended to achieve.

All the provisions do is ensure that, should this House collectively choose, at some future date, a Member of this House other than the Lord Chancellor as Speaker, that person can exercise the whole range of functions that fall to that post without the need for further amendment by primary legislation. The amendments would also work if the House were to decide, against the wishes of the Government, that the Lord Chancellor should continue as Speaker, because it would not be prevented by any of the amendments. That is what these provisions achieve—no more, no less.

In doing so, the provisions strengthen this House's powers of self-regulation. They do not diminish them. I utterly confirm what the noble Lord, Lord Kingsland, said. It is our view that this is a matter for this House to decide and not both Houses. I hope that in the light of the reassurance I have given the noble Lord feels able to withdraw his amendment.

Lord Kingsland

My Lords, we debated this matter at some length on Report. I do not propose to reopen all the questions that were fully discussed then. I remain unconvinced about the merits of leaving this clause on the face of the Bill. But the noble and learned Lord has given an unequivocal undertaking that the Speakership of your Lordships' House remains exclusively a matter for your Lordships' House and that another place will not in any way be involved in our decision. On the basis of that undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland) moved Amendment No. 4:

After Clause 13, insert the following new clause—