HL Deb 09 February 2004 vol 656 cc926-41

3.11 p.m.

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

My Lords, with the leave of the House, I should like to make a Statement on the proposed new United Kingdom Supreme Court.

On 14 July, we published for consultation our proposals to establish a Supreme Court for the United Kingdom. We published last week a summary of responses. Today, I am setting out our plans—a key element of our comprehensive programme of constitutional modernisation and reform, aimed at enhancing the credibility and effectiveness of public institutions and increasing trust and accountability.

Just as our proposals on the judicial functions of the office of Lord Chancellor rest on the separation of powers between the judiciary and the executive, so too with our court system: we believe that the time has come to make a clear and transparent separation between the judiciary and the legislature. By creating a Supreme Court, we will separate fully the final court of appeal from Parliament.

Nothing in this proposal intends or implies any criticism of the way in which the current Appellate Committee or its members have discharged their functions. They are not in their places today. That is because they are at work hearing cases. But I have been asked to make it clear that no discourtesy is intended by their absence. Indeed, it is another manifestation of the singular consequences of situating our highest court within the legislature; although I see the noble and learned Lord, Lord Hoffmann, so I correct that in relation to him.

The Government's view is that, as part of our plans to sustain and enhance the vital independence of the judiciary, the present position is no longer sustainable. The time has come for the United Kingdom's highest court to move out from under the shadow of the legislature. I have been in close consultation with the Law Lords since these proposals were announced. The Law Lords are aware of the detailed proposals that I am putting before the House today.

We will bring forward legislation to create a Supreme Court. Under our proposals the Supreme Court for the United Kingdom will replace the existing system whereby the Law Lords operate as a committee of this House. The Supreme Court will exercise the same appellate jurisdiction as the Appellate Committee presently exercises, in terms both of the courts from which appeals may lie and reviews by appellate petition. There will be no changes to the rules governing leave to appeal. The Supreme Court will also take over the jurisdiction of the Judicial Committee of the Privy Council in respect of devolution issues under the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998.

The creation of a separate and free-standing Supreme Court does not in any way imply the creation of a new body of United Kingdom law. Being the ultimate court of appeal in the UK does not mean that the court hears "UK appeals". As is presently the case with hearings in the Appellate Committee, decisions made in an appeal from a court in one of the three jurisdictions within the United Kingdom will be of binding effect only within that jurisdiction, and of persuasive effect in the others. Only on devolution issues, as at present, will the decisions of the court be binding in all legal proceedings. The avenues of appeals from Scottish Courts will remain the same for the Supreme Court as they were for the House of Lords, so that only Scottish civil appeals will be heard by the Supreme Court. The final court of appeal for criminal cases in Scotland will continue to be the High Court of Justiciary.

As the key objective is to achieve a full and transparent separation between the judiciary and the legislature, it follows that Justices of the Supreme Court, other holders of full-time judicial office, or retired justices of the Supreme Court who continue to sit, will no longer be entitled to sit or to vote in the House of Lords or to participate in the work of Parliament for as long as they hold their judicial appointment. The same will apply to the Lord Chief Justice, the Lord President of the Court of Session and the Master of the Rolls. I pay tribute to the valuable contribution to the work of this House that they and the Law Lords have made.

Judges of the new Supreme Court will be known as "Justices of the Supreme Court". We propose that the first 12 justices will be those holding office as Lords of Appeal in Ordinary at the commencement of the new Supreme Court. Two of these are from Scotland and one from Northern Ireland, so their appointment would ensure an appropriate balance of expertise across the United Kingdom at the creation of the new court as well as providing continuity. Qualifications for appointments will be unchanged.

Appointments will be made on the recommendation of a new Supreme Court Appointments Commission to be convened when there is an actual or impending vacancy. The composition of the commission, consisting of members of the Appointments Commission from across the United Kingdom—with Members of Parliament and the Government ineligible for membership—guarantees nominations free from political influence. The president of the Supreme Court will chair the Appointments Commission, and the deputy president will also be an ex officio member. That will ensure a proper balance of lay and judicial input to its deliberations. The commission will consider candidates eligible for appointment by reference to criteria that have been approved by Parliament, subject to the overriding principle of merit. It will have a duty each time it meets to survey the field of all eligible candidates across the three jurisdictions and to focus on the most meritorious.

The commission will recommend to the Secretary of State a minimum of two and a maximum of five candidates for each vacancy. On receipt of the nominations, the Secretary of State will be under a statutory duty to ensure that the court has among its members sufficient knowledge and experience of the law in each United Kingdom jurisdiction. In doing so he will be required to consult the senior judiciary in the three jurisdictions. The Secretary of State will then submit a name from the shortlist to the Prime Minister, who will make a recommendation to Her Majesty accordingly. There will also be an obligation to canvass the views of the First Minister of Scotland, the First Minister of Wales, and the First Minister and Deputy First Minister of Northern Ireland if responsibility for criminal justice matters has been devolved to the Northern Ireland Assembly.

The requirement for a longer shortlist than is presented to the Secretary of State for vacancies for judicial offices in England and Wales derives from the UK-wide jurisdiction of the Supreme Court. Justices of the Supreme Court must be the best available in the United Kingdom as a whole, but the court must always contain the necessary breadth of experience of each constituent jurisdiction. In order to balance those requirements it will be necessary for the Secretary of State to consult on a wider range of candidates. It is envisaged that there would never be fewer than two Scottish justices, and that there would normally be one justice from Northern Ireland.

The Supreme Court will be administered as a distinct constitutional entity. Special arrangements will apply to its budgetary and financial arrangements in order to reflect its unique status. It will present annual reports which will be made available not only to the Westminster Parliament, but also to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. The chief executive, who will be appointed through a fair and open competition, will be responsible for accounting for the court's finances and will report on a day-to-day basis directly to the justices of the court. The court will have a staff of its own working to the chief executive.

The Supreme Court will stand at the apex of the judicial systems of England and Wales, Scotland and Northern Ireland. As such, it is appropriate that it should be based in London as the capital city of the United Kingdom. It may, however, on occasion be appropriate to hear cases in other parts of the United Kingdom, such as devolution cases, or cases raising issues specific to Scottish or Northern Ireland law. It would, however, be for the President of the Supreme Court to decide when it would be appropriate for it to sit elsewhere.

It is clearly important that the new Supreme Court should be housed in an appropriate building. I have therefore commissioned an extensive property search to identify suitable locations. The search has been based on a statement of requirements which has been discussed and agreed with the Law Lords and has considered a wide range of options, both commercial sites and those already on the government estate. An evaluation is currently being conducted to identify the preferred location. I will be seeking the views of the Law Lords, the First Ministers of the devolved administrations and the Lord President of the Council before any final decision is made. Until that process has been completed, it could be prejudicial to our commercial position to disclose details. I will, however, undertake to inform both Houses of the preferred option at an appropriate time.

There will be plenty of opportunity for debate on and scrutiny of the proposals I lay before the House today. I also look forward to receiving the report of the Constitutional Affairs Select Committee which will comment not only on the Supreme Court but also on the Judicial Appointments Commission for England and Wales. I believe that these proposals will result in a Supreme Court that will be, in the words of the noble and learned Lord, Lord Steyn, a badge of independence and neutrality … a potent symbol of the allegiance of our country to the rule of law". My Lords, that concludes the Statement.

3.20 p.m.

Lord Kingsland

My Lords, I thank the noble and learned Lord the Lord Chancellor for letting me see an advance copy of his Statement. I believe that the noble and learned Lord extended the same courtesy to the noble Lord. Lord Goodhart.

As the noble and learned Lord is well aware, the Opposition believe that the real motive behind the Government's proposed Bill, of which today's Statement will form a part, is to weaken the judicial arm of the constitution.

The declared motive of the Government is that they seek to align our constitutional arrangements more intimately with the doctrine of the separation of powers. This motive has been frequently asserted but, in my submission, never properly argued. Moreover, there is no sign of compensating arrangements to be put in place to bolster the rule of law against the depredations of populist Ministers in the light of the imminent departure from the Cabinet of the Lord Chancellor and of the Lord Chief Justice from your Lordships' House.

I note from the Statement that the Law Lords are, aware of the detailed proposals I am putting before you". I am sure that they are, but do all or at least a majority of them agree that these arrangements will deliver a higher degree of judicial independence than that enjoyed at the moment by the Judicial Committee of your Lordships' House?

On 4 February the Times published an account of the Prime Minister's speech to the Commons Liaison Committee. In the course of that speech and in answering questions, the Times reported the Prime Minister to say: In retrospect, it would have been better probably had we published a paper, had we taken a step back and separated the reshuffle very clearly from departmental changes". In my response to the Statement made the other day by the noble and learned Lord the Lord Chancellor on the subject of judicial independence, I invited him to institute in your Lordships' House a pre-legislative review of the government Bill. That would give your Lordships an opportunity, on the basis of evidence, to compare these proposals with the existing situation. I asked, rhetorically, why that had not happened. Perhaps I may now answer that question by saying that I suspect it is because the Government fear that these proposals will not show up nearly as well as the effectiveness of our existing arrangements.

Before the Government embark on the enterprise of a separate Supreme Court, it is absolutely crucial that both they and we are clear that it will be of real benefit to the nation. I say that because it is going to cost an awful lot. If not only your Lordships but, even more importantly, the nation perceives that the cost is not worth it, what will be undermined will be the institution itself. We have a very good example of a similar process which has taken place to the north of here, in Edinburgh. So it is crucial that we know what we are to have for what we are to pay.

What are we to have? In his Statement, the noble and learned Lord the Lord Chancellor said that he had based his search for appropriate premises on a statement of requirements which has been discussed and agreed with the Law Lords—on the assumption, I suppose, that the Government will get their Bill. Is this another deal like the one struck in secret over judicial independence? If so, at least your Lordships had the benefit the other day of two very full papers from the noble and learned Lord the Lord Chancellor and detailed comment in reply from the noble and learned Lord the Lord Chief Justice.

I should like to ask the noble and learned Lord this: what are the details of the bargain struck with the Lords of Appeal in Ordinary? What accommodation has been agreed? Is it to form part of a plan for a new building? Or has a building for purchase been identified? Or is the noble and learned Lord minded to rent an appropriate building? What of the question of the scale, which must be intimately related to the assessment made by the Lord Chancellor and the Lords of Appeal in Ordinary about their accommodation needs—the administrative staff required, IT arrangements, additional legal staff and library facilities? All these ingredients will have been fed in to determine what will be the cost of the accommodation. Since the noble and learned Lord the Lord Chancellor has already reached an agreement with the Lords of Appeal in Ordinary, the noble and learned Lord must be in a position to tell us about the scale and the cost of the accommodation.

Finally, I turn to the proposals for a Supreme Court Law Commission to select new justices of the Supreme Court. The noble and learned Lord has said that the appropriate standard will be based wholly and solely on merit, which I welcome very much indeed. He has said that, invariably, a recommendation will be made to the Secretary of State for Constitutional Affairs of between two and five members. The noble and learned Lord has also informed us that the Secretary of State for Constitutional Affairs will select the final name to propose to the Prime Minister only after the senior judges in all the jurisdictions of the United Kingdom and the First Ministers of Scotland, Wales and Northern Ireland have been consulted.

While that is all well and good, what is to happen if, as a result of these conversations, irreconcilable differences emerge about who should be the proposed candidate? Although the noble and learned Lord did not say so, I assume that the Secretary of State for Constitutional Affairs must also make the final selection on merit, as must the Supreme Court Law Commission. I also understand that, in future, the Secretary of State for Constitutional Affairs is likely to be an elected politician, usually a non-lawyer, in another place. However, if the Secretary of State for Constitutional Affairs is under an obligation to select on merit one of the proposed five, what qualifications does he have to do so? Does this not mean that, in effect, the Secretary of State for Constitutional Affairs will have to be someone like the Lord Chancellor?

3.28 p.m.

Lord Goodhart

My Lords, Members on these Benches support the creation of a Supreme Court separate from your Lordships' House and, indeed, we advocated that proposal long before the Government became converted to it. We disagree strongly with the view put forward by the noble Lord, Lord Kingsland, that the Government's aim is to weaken the role of the judiciary and the constitution. On the contrary, taken as a whole, the Government's reforms will substantially strengthen the role of the judiciary and therefore we welcome much of the Statement.

However, we have a number of questions and one issue that is causing serious concern. I shall start with the questions. Can the noble and learned Lord the Lord Chancellor confirm that retired Law Lords and retiring Supreme Court justices will be eligible to be called on to serve, if they wish to do so, as part-time members of the Supreme Court up to the age of 75, and will anyone else be able to sit as a part-time member?

We agree that serving members of the judiciary should not be Members of your Lordships' House. We recognise the valuable contributions made by many of them over the years, and notably in the past few weeks by the noble and learned Lord the Lord Chief Justice, Lord Woolf. I notice that at least one serving Law Lord intends to speak in the debate on Thursday.

Continued membership of the legislature is not appropriate. We recognise that the corollary is the need to create new channels of communication between the judiciary and the legislature. We already have the Select Committee on Constitutional Affairs in the House of Commons, but this is a time for some novel thinking. Should there be a Joint Committee of both Houses to deal specifically with the relationship between the judiciary and the legislature? Might one even consider going beyond membership of the two Houses and inviting senior members of the judiciary to become members of that same committee, so that they have full rights to speak?

We assume that Law Lords who were appointed before the Supreme Court came into existence will receive peerages and will be entitled to sit and vote in your Lordships' House on retirement, as will, of course, existing Law Lords when they retire. We believe that it is intended that Supreme Court justices, appointed after the Supreme Court comes into existence, will not have an automatic right to membership of your Lordships' House on retirement. if so, that is a matter on which we can agree. Will the noble and learned Lord say whether that is so? There is no reason why retired Supreme Court justices should not be eligible for appointment, as long as non-political appointments continue to be made to your Lordships' House.

We understand the reasons for not informing us of the progress in finding a home for the Supreme Court, but will the noble and learned Lord tell us what guarantees, if any, have been given by the Treasury for providing the funding? I am referring not just to one-off funding to buy premises, but to continuing funding for the running costs of staff, library, IT systems, and so on.

I turn now to an issue of concern with which, on this occasion, I very much agree with the noble Lord, Lord Kingsland. I refer to the method of appointment of Supreme Court justices. We agree that there should be a Supreme Court appointments commission consisting of members of the Judicial Appointments Commission for England, Scotland and Northern Ireland. Will the noble and learned Lord confirm that some appointees will be lay members?

It is proposed that the appointments commission should make recommendations to the Secretary of State for Constitutional Affairs, who will then make recommendations to the Prime Minister. We believe that that would be wrong. The Department for Constitutional Affairs is basically a department for the legal system of England and Wales. It has a few wider functions tagged on, but they do not really belong there. We believe that recommendations should go straight from the appointments commission to the Prime Minister.

The Statement suggests that the appointments commission will recommend a minimum of two and a maximum of five candidates per vacancy. The idea of a list of five candidates is absurd. We believe that the system should follow the system already recommended for the appointment of judges in England and Wales, which is that one name should be recommended by the appointments commission. The Prime Minister should have power to reject the nominee, or to ask for reconsideration, but only for reasons. If two names have to be submitted, it could lead to a situation in which, although the appointments commission believes that there is an outstanding candidate, that candidate may have made himself or herself unpopular with the Government. If another name has to be submitted as well, the Prime Minister can appoint the second name without giving reasons for rejecting the first. The reasons given in the Statement for requiring two names are unconvincing. The Statement says that, it will be necessary for the Secretary of State to consult on a wider range of candidates"— because— the Court must always contain the necessary breadth of experience of each constituent jurisdiction". That is surely what the appointments commission is for. Why should the Secretary of State need to carry out further consultations? Unless there are real grounds for rejecting a nominee, we believe that the Prime Minster should be required to accept the nominations from the appointments commission.

The Statement leaves a lot of detail to be filled in. It is much less full than the Statement we had two weeks ago on the appointment of judges in England and Wales. We have serious concerns about the appointments system for the justices, and a number of details need to be filled in. We shall reserve judgment on the Supreme Court until we see the Bill.

3.35 p.m.

Lord Falconer of Thoroton

My Lords, I am grateful to the noble Lord, Lord Goodhart, for his welcome in principle to the Statement. I fully accept that there are details to be filled in, but I shall deal first with the points raised by the noble Lord, Lord Kingsland.

He said that it was a scheme intended to undermine the independence of the judiciary. He is the only one who has made such a suggestion, and it is completely wrong. The proposal to create the Supreme Court is a view shared by the current senior Law Lord and a number of other Law Lords. The senior Law Lord said that it was the mark of an independent, liberal democracy to have a Supreme Court separate from Parliament. That shows that it is a sensible proposal.

Lord Kingsland

My Lords, I want to make it clear that I did not say that the scheme undermines the independence of the judiciary, but that it undermines the strength of the judiciary as an arm of the constitution in this country. That is a quite different point from the point about independence.

Lord Falconer of Thoroton

My Lords, the noble Lord makes a slightly subtle point. Putting the final court of appeal into a separate organisation in which it has control over its own budget could not possibly undermine the judiciary as an independent arm of the state. With the greatest respect to the noble Lord, I do not think that there is much in that point.

With regard to the agreement of the Law Lords, it is well known that Law Lords have different views about the right course to take, which is exactly what one would expect from an independent group of people.

On the issue of accommodation, there is certainly no deal or arrangement with the Law Lords. They have made clear the sort of accommodation they are looking for, and we are seeking accommodation on that basis. To deal with the point made by the noble Lord, Lord Kingsland, the right course will be to publish an outline of the accommodation required, rather than for me to go through it today.

The noble Lord, Lord Goodhart, asked about retirement ages. The normal retirement age for future justices will be 70, but they can continue up until 75. On the question of who else can sit in the Supreme Court, there will be those who are retired, but who are still under 75 and wish to do so. In exceptional circumstances, particularly in relation to devolution issues, the president can invite members of the Courts of Appeal of the three jurisdictions to sit. But that would be in exceptional circumstances on issues particularly focused on devolution. Such justices would not be full members of the Supreme Court.

The noble Lord raised the question of new channels of communication between Parliament and the Supreme Court. Again, that is very much a matter for Parliament to develop. We would not wish to stand in the way, but it is for both Houses to discuss those issues. On the matter of guarantees from the Treasury, I should be glad if the noble Lord could introduce me to any Minister who has a guarantee of funding from the Treasury in perpetuity. I cannot give the noble Lord such an assurance on guarantees.

On the method of appointments, the noble Lord, Lord Kingsland, raised the question of someone who is not a lawyer making the choice. Until now that problem has been wrestled with by Prime Ministers of the day. The noble Lord knows that Prime Ministers make recommendations to Her Majesty, albeit on the advice of the Lord Chancellor. Although the current Prime Minister is a lawyer, the noble Lord may find it hard to believe that there have been previous Prime Ministers who were not lawyers.

The noble Lord, Lord Goodhart, referred to merit. Plainly such issues exist, but there are also issues about geographical balance that must be addressed in appointing members of the Supreme Court. I said that we would expect there to be two Scots and one person from Northern Ireland. It is a matter, rightly, for the Secretary of State for Constitutional Affairs, whose responsibilities are not just for England and Wales but cover the whole country. Our proposal reflects the need for merit to be the underlying purpose, but allows for a judgment to be made about the balance throughout the kingdom.

3.40 p.m.

Lord Bridges

My Lords, it is apparent from the noble and learned Lord's Statement that he bases much of his approach on the principle of the separation of powers between the judiciary, the legislature and the executive. That theory, it will be found from study, derives from the works of the French jurist, Montesquieu, who in the 18th century wrote a classic work, De lesprit des lois, which was based to a large extent on a study of the workings of the British constitution. He thought that in the workings of our 18th-century constitution, which he much admired, he perceived that separation of powers. However, students since that time have tended to doubt the theory. Rather, they believe that our constitution has worked at its best—it did not always work very well in the 18th century—because of the respect shown by one power to the other. As an undergraduate at Oxford 50 years ago, I remember reading a study to that effect in the classic work by HAL Fisher, A History of Europe, in which that very thought is expressed.

I further suggest that that other great democracy, the United States, does not adopt that approach either. The President of the United States appoints the Chief Justice of the Supreme Court, or at least suggests his name. I therefore believe that the historical basis for the separation of powers deserves a little more examination before we accept it at its face value.

Lord Falconer of Thoroton

My Lords, the approach that we are taking is based in large measure on the separation of powers, but it is also a practical approach. As time has gone on, it has seemed wrong that in order to be appointed to the final Court of Appeal in this country one has to be appointed as a Member of the second Chamber. That there have been increasing difficulties in that respect can be seen from the approach of the Law Lords themselves, who a few years ago, through their senior Law Lord, issued a statement with regard to when they would think it appropriate to participate in the proceedings of the legislative House. That was a recognition on their part that what had gone before needed modification. I believe that a clear separation between the role of the final Court of Appeal and the second Chamber of legislature would be a further sensible step down that road. It would make it much clearer and much easier for those who will sit in that final Court of Appeal.

Lord Borrie

My Lords, my noble and learned friend the Lord Chancellor said—I hope I quote him correctly— that it is important that the final Court of Appeal in this country should move out from under the shadow of the legislature. That phrase also appeared in the consultation document last July. I am surprised that it should be repeated orally today. I have never thought that the Law Lords, acting in their judicial capacity, operate under the shadow of the legislature or indeed under the shadow of anyone. They have maintained their independence, which has been recognised by others, including the House of Lords sitting in its legislative capacity. Therefore, the phrase is quite inappropriate. We know that the Supreme Court will be independent. There seems to be—I agree with the noble Lord, Lord Bridges—a much greater theoretical than a pragmatic basis for Her Majesty's Government's proposals. One practical consequence of that is that we shall lose out as a legislature if and when the sitting Law Lords are no longer allowed to sit. It will mean that representations by, say, the Lord Chief Justice on a criminal justice Bill, or speeches by others in debate, will be lost to us.

In reply to the noble Lord, Lord Bridges, the noble and learned Lord the Lord Chancellor referred to the statement in 2000 by the noble and learned Lord, Lord Bingham of Cornhill, to the effect that, as a self-denying ordinance, the judges would not speak on politically controversial matters or matters in which they may be involved in judicial proceedings. Is the noble and learned Lord saying that he is dissatisfied with that statement and its results? The statement seems to me to solve the problem, if there is any practical problem, of a number of judges who sit in the House of Lords in its legislative capacity choosing to speak and others choosing not to speak while they are still sitting as judges.

Lord Falconer of Thoroton

My Lords, first, I thoroughly agree with the noble Lord's remarks about the shadow of the legislature. I hope that nothing that I have said could remotely be taken as indicating that I think the Law Lords are not completely independent and do not deliver a quality of judgment that is second to none throughout the world. I hope that I did not imply anything to that effect. I entirely agree with the noble Lord that they are completely independent. However, the phrase is intended to convey the sense that the final Court of Appeal should be identifiably separate from the legislature, so that what it does can be clearly seen to be separate from what the legislature does.

Secondly, with regard to the question of whether I am dissatisfied with the consequences of the statement of the noble and learned Lord, Lord Bingham, in relation to the circumstances in which the Law Lords would speak, I am not dissatisfied at all. However, it is surely an indication that as time goes by there needs to be a separation. The noble and learned Lord, Lord Bingham, tells the story of his making a statement in the House of Lords about a particular criminal justice Bill, which he broadly welcomed, and making a number of remarks indicating that he had some reservations about it, after which he was unable to hear a number of cases because of his comments.

There needs to be greater clarity. The statement that the noble and learned Lord made in February recognised that further steps need to be taken, and that is what we are doing.

The Lord Bishop of Worcester

My Lords, is it perhaps not the case that the form of the answer has been somewhat determined by the form of the question that the noble and learned Lord the Lord Chancellor has addressed? If the question is how we can visibly secure the independence of the judiciary, then an answer similar to his seems to follow. If the question is how all the parts of our society and our authority structure work together for the securing of justice for all our people, a different set of problems may arise, therefore resulting in different answers.

The traditions that I have observed since coming to the House have come to mean rather more to me than when I perhaps did not understand them as well. The constitutional arrangements of this country bear witness to the notion that the word "supreme" is properly applied to a judge who stands judge over all things; that also is witness to how we begin our proceedings in the House when it sits judicially. It may be judged that we live in a secular society in which those signs of the coherence of our society are no longer relevant and that we need others. However, I have some reservations about the wholesale importing of the kind of post-enlightenment reasoning that led to the American constitution—a constitution that I greatly admire, but which, of course, means that the United States Supreme Court is never really supreme.

In a country that does not have that, a country that is surrendering the religious dimension of the way in which it expresses its coherence, I wonder whether we are going down a track without fully understanding where we are heading. Therefore, although I greatly respect the noble and learned Lord's answer to his question, I want to express to him that for some of us there may be questions of a rather fundamental kind about the coherence of our society, which his proposals do not answer.

Lord Falconer of Thoroton

My Lords, we would put the question in the second way: we will look at the whole of our institutions and formulate the best way forward. I am grateful to the right reverend Prelate for formulating it in that way because only then can we arrive at an answer that will benefit the whole of the nation rather than only one part of it.

Looking at the matter simply from the point of view of this Chamber, one might come up with a different answer than by looking at it right across the board—for example, by looking at the way in which the justice system operates and the way in which litigants perceive the system to work. How do they feel when they come to the legislature and hear, for example, a point being made about the fact that you cannot look at debates in the House of Lords, and then see that two or three members of the Appellate Committee have participated in a debate in which they are not allowed to play any part? How do they see the distinction between the two being drawn?

So I fully accept the second formulation, not the first. I suggest, with diffidence, that that is the way in which we have looked at the matter.

As to the American model, we are most strenuously not going down that route. The final court of appeal, which will sit separately from the legislature, will not be a supreme court of appeal such as the one in the United States of America, which has the power to strike down legislation because there is a written constitution that is superior to it. We are not going down that route. We are allowing a system to be developed where the way in which the courts operate and the way in which the legislature operates will be much clearer to the public.

Lord Elton

My Lords, your Lordships have concentrated mostly on the effect that the proposed change will have on the strength of the judiciary. I hope noble Lords will not lose sight of the effect that it will have on this House. First, one of only two voices that we can count on in Cabinet as ours will be lost when the post of Lord Chancellor is abolished; and, secondly, the assured stream of incoming judicial wisdom that we have always had will dry up.

As a Home Office Minister I remember clearly the effective contributions made during the discussions on the Police and Criminal Evidence Bill 1984 by the noble and learned Lord, Lord Scarman, and the powerful interventions made on many occasions through my tenure of office by the late lamented Lord Denning. Your Lordships have placed great weight on contributions made by such noble and learned Lords as the noble and learned Lord, Lord Woolf, in his report on the Prison Service. From whence will this wisdom and experience be replaced? Is it not odd for a legislative body, in effect, to silence all contributions of people who will have to implement the legislation it makes?

Lord Falconer of Thoroton

My Lords, as to the noble Lord's first point, of course we must look at the matter, as the right reverend Prelate said, not by reference only to the justice system but right across the board in relation to how all our institutions operate. With respect, we believe that that is how we have looked at it.

What will strengthen the independence of the judiciary most is the acknowledgement that the Lord Chief Justice is, in truth, the head of the judiciary—which will be the effect of the abolition of the post of Lord Chancellor—rather than leaving the Lord Chancellor as the effective head of the judiciary sitting at the Cabinet table. We believe that a clear acknowledgement that the head of the judiciary is a sitting serving judge, who has worked in the judiciary over a long period of time, will be a much greater protection than simply having a politician appointed as head of the judiciary.

As to the noble Lord's second point, as has been made clear, once judges have ceased to sit as a justice of the Supreme Court they will be eligible to come into the House. They will not be eligible while sitting as a current member of the Supreme Court.

Lord Elton

My Lords, in that case, can the noble and learned Lord elaborate on his reply to the noble Lord—

Noble Lords


Lord Lea of Crondall

My Lords, can the noble and learned Lord comment further on the point made by the noble Lord, Lord Bridges—clearly I speak as a non-lawyer—and the point made by the right reverend Prelate about the United States? Is it not very important that the separation of powers is not seen as a shibboleth because people might then say that, on the Florida chads issue in the United States, the Supreme Court voted more or less five Republicans to four Democrats, or whatever the ratio may have been? Is it not important to show that the separation of powers is not going down that road precisely because there are great strengths in the current system and we do not need to have anything like the American model?

Lord Falconer of Thoroton

My Lords, I repeat what I said in answer to both the noble Lord, Lord Bridges, and the right reverend Prelate: no one envisages or suggests that the Supreme Court which will emerge out of these proposals will be anything other than a court completely independent of politicians. It will be a court that is completely independent of the legislature. Without any real doubt about its independence, it will be able to determine important issues of law and any important devolution issues that need to be resolved.

Lord Carlile of Berriew

My Lords, given the great value in times of national emergency that the presence, for the time being, of the Lord Chancellor in the Cabinet has had, and given the value at similar times of the ability of this House to hear speeches from Lords of Appeal in Ordinary, but at the same time given the importance which the noble and learned Lord the Lord Chancellor has emphasised of the true separation of powers, does he envisage including in any Bill arrangements whereby the Government and/or Parliament may be able to seek the advice of the Supreme Court rather than awaiting an adversarial hearing brought by a party? A capacity to seek the advice of the Supreme Court would be of great value to this House, at any rate, at times of great national need.

Lord Falconer of Thoroton

My Lords, the noble Lord referred to the role of the Lord Chancellor in times of great emergency. He will know that, during the Second World War, Winston Churchill removed the Lord Chancellor from the Cabinet—who then, for the first time, sat outside the Cabinet. I mention that in parentheses.

As to whether we envisage the Supreme Court having the power to give advisory opinions, no, we do not. Our legal system has never operated on the basis that hypothetical questions are put to courts. We should not see the courts as having an advisory function; they are bodies which resolve disputes between people. When the Law Lords have spoken here—whether they are retired or sitting as Law Lords—they have expressed individual opinions but they have not been authoritative. Nor do I believe it would be a particularly good idea for the Government to be able to refer issues to the courts for advisory opinions.

Lord Craig of Radley

My Lords, I thank the noble and learned Lord the Lord Chancellor for the Statement. Does he recognise the following quotation: The British judiciary have been independent for centuries, and never more so than today. The United Kingdom is in full compliance with the Committee of Ministers' Recommendation of 1994 to Member States on the Independence, Efficiency and Role of Judges"? Let me help him. That is a quotation from a note by the Lord Chancellor's Department dated November 2002. Perhaps the noble and learned Lord can explain what has changed so abruptly that we must now go down this path.

Lord Falconer of Thoroton

My Lords, I do not believe that anyone has at any stage suggested that under the current system our judges are not fully independent. I do not believe that anyone has convincingly suggested that we are in breach of any convention that requires change. We have not sought to justify the changes we have made on the basis that the judges are not independent at the moment, nor that we are or might be in breach of any international obligation.

We have sought to justify the changes on the basis that they make for more sustainable long-term independence. And also, looking at the right reverend Prelate's proposals, they make for the whole constitution to work better.

Lord Fraser of Carmyllie

My Lords, as I understand it, when the Scotland Act passed through the House the decision that devolution matters should go to the Judicial Committee of the Privy Council was quite deliberate because it would allow, on occasion, for distinguished New Zealand and Australian judges, or others who are Privy Counsellors, to join in the deliberations on such matters. If I understand correctly what is outlined in the Statement, we shall be deprived of that opportunity to take advantage of their legal skills.

Having served for some years, I have recently been removed from Sub-Committee E of the European Union Select Committee, on which the noble Lord, Lord Borrie, served. That Sub-Committee has been successively chaired by Law Lords—in my time by the noble and learned Lords, Lord Hope and Lord Scott, both of whom are extremely distinguished judges. In the context of Europe, the authority of having a Law Lord presiding over that committee gave us a standing in Europe that I honestly believe was not shared by any other country in the European Union. I urge the noble and learned Lord to understand the authority that that gave not only that committee but this House as a whole.

Lord Falconer of Thoroton

My Lords, in relation to the noble and learned Lord's first point, devolution issues were given to the Privy Council partly because people other than serving Law Lords could sit on it, especially those from Scotland or Northern Ireland— although New Zealand and other countries could also have been included. Also, perhaps more decisively, it was thought to be inappropriate for the Westminster Parliament to have a committee of its own to decide issues that might well be between the Westminster Parliament and one of the devolved bodies. Plainly, once the Supreme Court is set up, there will no longer be a Westminster Parliament committee resolving disputes between the Westminster Parliament and the devolved bodies.

I could not agree more with the noble and learned Lord's second point about the distinguished chairmanship by existing Law Lords of Sub-Committee E. Everyone speaks extraordinarily highly of the way in which it is chaired. However, I do not believe that, with all the talent in this House, one could not find people to chair the committee very effectively. The noble and learned Lord will know that until some time in the 19th century, the House of Commons always asked High Court judges to chair their Select Committees. I do not believe that that was a justification for having High Court judges in the House of Commons.