HL Deb 11 November 2004 vol 666 cc1070-104

3.4 p.m.

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

My Lords, I beg to move that the House do now again resolve itself into Committee (on Recommitment) on this Bill.

Moved, That the House do now resolve itself into Committee (on Recommitment).—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

House in Committee (on Recommitment) accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gould of Potternewton) in the Chair.]

Schedule 14 [The Judicial Appointments Coinmission: Relevant Offices and Enactments]:

Lord Maclennan of Rogart moved Amendment No. 88CPZA:

Page 214, line 17, at end insert—

"Justices' clerk Sections 2(1) and 27(1) of the Courts Act 2003 (c. 39)"

The noble Lord said: The purpose of the amendment standing in my name and that of my noble friend Lord Goodhart is to take account of the concerns which have been expressed by justices' clerks about the impact on their independence which flows from the reorganisation of the court system and which they contend has failed adequately to appreciate that their principal duties now are in the field of giving advice to the magistrates and, in a number of specified circumstances, taking a judicial role.

They have pointed out most eloquently and most cogently that the balance of the hybridity in their role to which the Lord Chancellor has referred has moved from administration to matters more clearly cognate to that of a judge. The concerns of the 70 justices' clerks are not theirs alone; they are shared very widely by the magistrates, who have written in substantial numbers not only to the Lord Chancellor, but also to my noble friend Lord Goodhart to express their concern and their support for the amendment.

The matter might appear on the face of it to be hypothetical or abstract, but, in practice, it is much more than that. The justices' clerks' concern is that whereas they have hitherto been ultimately appointed by the highest judge—that is, the Lord Chancellor—the change that is proposed in the Bill will result in their appointment being in the hands of a political Minister who will be the head of the department. The consequences they fear will arise from that are not be viewed as purely hypothetical or abstract.

One might have taken that view, perhaps legitimately, had not the most cogent and persuasive evidence been given to the Select Committee by Mr Neil Clarke on behalf of the justices' clerks' committee. He spoke about, and was cross-examined on, evidence of administrative tampering with the role of justices' clerks, which is already in train. As the matter seems to be so important, I draw the attention of the Minister to that evidence, which was given in answer to a question from the noble and learned Lord, Lord Howe of Aberavon, to Mr Clarke. It was Question 1153 at page 313 of the minutes of evidence which were published in the House of Lords Paper 1252. I hope that the House will forgive me if I read the relevant passage. It is a very strong passage and it has not been answered. Mr Clarke said: the practice is that we have been receiving at the moment what are considered inappropriate approaches from both the Department and from regional government offices making suggestions that are at best interference beyond the line and at worst approaching illegality and that is before we go into this new situation of being civil servants". Mr Clarke went on to give three examples of interference. He concluded: I think that sort of pressure is growing in the current system and when you go over to this new system when you become a civil servant and you are in the political process, for the first generation which knows freedom we will probably be quite robust but when it has been in place for a number of years and the culture is one of the Civil Service and promotion et cetera will be dependent upon performance as perceived by your line managers, there is a greater possibility for there to be abuse of the system".

Those concerns have been reiterated by a number of people—magistrates and justices' clerks alike—and seem to point to a need to go beyond the general prescriptions provided in Clause 1 as regards the independence of the judiciary, to providing particular reassurance that such actions would be inconceivable. I know that it is entirely within the Government's intention to strengthen the public perception of the independence of the judiciary through this Bill. That is what lies behind the Bill—that is its philosophical thrust. In a sense, this is an exception, but I cannot suggest that it is one that has been arrived at by inadvertence or oversight, for it has indeed been the subject of substantial correspondence. It is quite clear from the correspondence between the Justices' Clerks' Society and the Lord Chancellor that the Lord Chancellor has given considerable thought to the issue. I understand that he has it in mind to introduce two further amendments, as revealed in his letter of 2 October to the chief executive of the Justices' Clerks' Society.

My own judgment is that these proposed amendments do not go far enough to meet the concerns that have been expressed. They fail to recognise that, although it is true that the role of the justices' clerks is to some extent a hybrid one, with the new role of chief executive, the burden of administration has passed from the justices' clerks, and their pre-eminent role is a judicial one. That role would be vitiated if there were any thought at all that governments were seeking to ensure through favouring particular individuals that their own interpretations of the law were those which were grappled to the bosoms of the magistracy. That would have a distinctly corrupting effect. If that was perceived to be widespread, that could be thought to be undermining the judicial system at its very roots, since 97 per cent of criminal cases considered are handled by those magistrates' courts. While securing the top of the tree, allowing the roots to be undermined in that manner seems injudicious, and I ask the Government to reconsider.

I scarcely need to spell out in this House the role of the justices' clerks. They have an educational role, and an advice and training role. All those matters seem not to be susceptible to pressure from the Civil Service. While one understands the need for coherence in the unified administration, the independence which is characteristic of the justices' clerks in delivering their advice is something that the Government must give particular attention to over the other considerations, which seem to have carried the day.

3.15 p.m.

It is not sufficient to ensure provision for a consultative process before an appointment is made, which is the intention, although it is not expressed in the Bill. That enables the Lord Chief Justice to intervene. Candidly, that is taking a hammer to crack a nut; it is an improvement, but the wrong improvement. I also believe that the issue of reassignment should not be handled in that way either. These matters are best handled in the manner which the Government have in mind for the rest of the judiciary through the Judicial Appointments Commission.

I find it strange to be in this position, because on the whole I strongly support the Government's intentions and particular aspects of the Bill. However, on this occasion, I beseech the Minister to take the matter away and reconsider it. I beg to move.

Lord Kingsland

I support the speech made by the noble Lord, Lord Maclennan, from the Liberal Benches. As he rightly said, 97 per cent of all criminal cases in this country are heard in the magistrates' court. Apart from those times when they are heard by the person who used to be described, although no longer, as the stipendiary magistrate, they are heard by lay Benches, which depend for their understanding of the law entirely on the wisdom of the magistrates' clerk. In effect, therefore, the magistrates' clerk sits as a judge when he gives that legal advice.

Like the noble Lord, I am totally bewildered by the Government's stance on this matter. They say that the principle lying behind this Bill is the principle of the separation of powers. They are eager to remove, as quickly as possible, noble and learned Lords from the House. And yet they totally fail to apply the logic of the principle of separation of powers to the relationship between Parliament and the executive.

The effect of their unwillingness to act on this matter will be to ensure that justices' clerks, who ought to sit as judges, independent of both the legislature and the executive, in effect, sit as members of the executive. In other words, the Government are turning the logic of the principle that they say underlines the Bill on its head.

If the present situation is allowed to stand, there will be no separation of powers between the executive and judiciary in relation to the legal advice that justices' clerks give to the magistrates' Bench; and the Government will have driven a coach and horses through the principles that underlie their own legislation. I hope that they will listen to the noble Lord, Lord Maclennan.

Baroness Ashton of Upholland

I am grateful to both noble Lords who have spoken, and recognise, as the noble Lord, Lord Maclennan, said, that he approaches the Bill from a similar philosophical standpoint to that of the Government. I also agree with him when he says that the position that the Government hold is not an oversight. We are not making these provisions having not thought them through—rather the opposite. As he said, there has been a great deal of correspondence and interest in this area, but we have come to a clear view.

To help the Committee, I shall spend a moment spelling the Government's precise position, not least because it is an opportunity for all of us as a Committee to reflect further on the matter. I also want to indicate what the Government propose to do further in terms of safeguards—although the noble Lord, Lord Maclennan, has done so to some extent—while not shifting from the position that we hold on where justices' clerks should sit.

I shall begin by setting out the steps that we want to take to achieve the right kind of protection to deal with some of the issues that both the noble Lords, Lord Kingsland and Lord Maclennan, raised in terms of appointment and reassignment of justices' clerks. I disagree with the noble Lord, Lord Maclennan, that we have approached this matter in an inappropriate way.

As both noble Lords will recognise, justices' clerks perform both an administrative and an independent function. I believe that is well understood. Their role in the magistrates' court is of critical importance. In that I agree completely with the noble Lord, Lord Kingsland. They hold a management responsibility. They provide, in terms of their non-judicial functions, pastoral support to lay justices, facilitating the lay Bench and its dealings with court users, secretarial support to the advisory committee and sub-committees, leading and managing their legal staff in their areas—that is a very important function—including training, development and assessment. They have a line management function in terms of courtroom and listing staff.

Therefore, they play, and will continue to play, a real part in the management of local areas. They currently do so and we wish them to continue to do so. We want to ensure too that the essential independent advisory role is respected. Noble Lords who participated in the Courts Bill will, of course, remember the extensive discussions and debates that took place on these issues during the passage of that Bill. I believe from my own reflections and, more importantly, from what I have been told, that a consensus was reached on the way forward. The Constitutional Reform Bill now provides for the transfer of existing judicial functions in primary legislation of the office of Lord Chancellor. These provisions follow the agreement set out in the concordat to which we have referred many times in the course of these Committee discussions.

It is right and proper that safeguards are in place to ensure the independence of justices' clerks in their judicial role when Her Majesty's Courts Service is established. To that extent I agree completely with the noble Lord, Lord Kingsland. In that respect Section 29 of the Courts Act is an unambiguous statement of the need to protect the independence of the advice of justices' clerks to magistrates. It provides that, when exercising these independent functions, a justices' clerk is not subject to any direction of the Lord Chancellor or, indeed, of any other person. Clause 1 of this Bill further enhances that by placing a duty on the Lord Chancellor, along with all Ministers, to uphold judicial independence and places on him a particular duty to have regard to the need to defend judicial independence.

I turn briefly to the amendments before us. As we have indicated, justices' clerks carry out an important role but they are not judges. As noble Lords will be more aware than I, they do not have formal judicial status. They do not conduct trials or sentence offenders and they do not take the judicial oath. The Judicial Appointments Commission will be set up to select judicial office holders and will have the skills and expertise to do so. I do not believe that it would be adequately equipped to select people for their administrative and managerial skills as well as their skills in giving legal advice.

Moreover, it would also not provide any opportunity for the justices' clerks' employer—that is, Her Majesty's Courts Service—to be involved in the selection process. The role of the employer in that process will be an important one—to ensure that candidates are found who can effectively balance both elements of this hybrid role, and that they are selected on that basis. It would also not be in anyone's best interest to exclude the body that employs and sets the terms and conditions for the office in the way this amendment proposes.

We believe it is appropriate for the power to appoint justices' clerks to rest with the Minister given his overall accountability to Parliament under Section 1 of the Courts Act 2003 for the administration of the courts. That power will, however, be delegated to Her Majesty's Courts Service under the Carltona principle in line with the appointment of all employees of that organisation. Appointments will be made in accordance with the code of the Civil Service Commissioners, which is based on the principle that appointments must be made on the basis of merit in fair and open competition. That, of course, underpins the maintenance of a politically impartial Civil Service, and very important it is too. There will, therefore, be no actual ministerial involvement in the appointment process.

The Lord Chancellor has discussed the matter of appointment of justices' clerks with the Lord Chief Justice, who I recognise takes this issue very seriously, and they have agreed that the Government should bring forward an amendment to the Bill on Report. As the noble Lord, Lord Maclennan, indicated, this will provide that the Minister should consult the Lord Chief Justice before designating and assigning a justices' clerk. In practice this will be achieved by including a judge or a magistrate on the local selection panel arranged by Her Majesty's Courts Service for any justices' clerks appointments. That will ensure direct judicial involvement in the selection process, which is important given the dual role of justices' clerks. We believe that this process is the most appropriate way forward and best reflects the role that justices' clerks play.

I refer to the evidence of Mr Clarke raised by the noble Lord, Lord Maclennan. Indeed, the Government have responded to the examples that were raised by the Justices' Clerks Society in its written evidence to the Select Committee, which forms part of the committee report. It is entirely right that where the judiciary considers that the initiatives that government take have implications which it feels would undermine its judicial independence or interfere with its work, it should, of course, point that out. That should then be considered and resolved. The judiciary should not be afraid to raise those issues relating to the independent aspects of its role. I understand that the Deputy Lord Chief Justice pointed that out when he spoke at the justices' clerks' last conference, as well as emphasising that, if necessary, any issues about their independence would be fought as determinedly as they would be if they related to the senior judiciary. I hope that that did a great deal to reassure justices' clerks.

We think it is right that we should look at whether further safeguards should be put in place to preserve the independence of justices' clerks in the advice they give to magistrates. In that context the Judicial Committee, chaired by the Deputy Chief Justice to whom I have just referred, proposed that an area judicial forum and justices' issues group should be established in each of the 42 management areas. These are now being set up in advance of the establishment of Her Majesty's Courts Service. They will provide the opportunity for justices' clerks to raise any matters relating to their work, including issues surrounding their independence, if they arise. We think that this will be a very effective mechanism for dealing with issues or concerns. As I have said, the Deputy Chief Justice has indicated his strong support to fight determinedly on behalf of justices' clerks if they felt their independence was being affected in any way.

The Lord Chancellor has also agreed with the Lord Chief Justice that he will bring forward an amendment to Section 27(4) of the Courts Act on Report to provide that any reassignment of justices' clerks should be with the concurrence of the Lord Chief Justice. This is in addition to the current provision of Section 27(4) which provides for consultation with the Bench chairmen, which was discussed during the passage of the Courts Act.

I believe that the Government have reflected very carefully on the best way forward for justices' clerks recognising the very important and valuable role that they play and the independence which they need to have. But having reflected we are quite clear that the proposals we have in place, with the safeguards I have indicated, and the proposals for Report stage, are the way forward.

I hope that, having spoken at length, I have reassured the noble Lords, Lord Maclennan and Lord Kingsland, and that the noble Lord, Lord Maclennan, will feel able to withdraw his amendment.

Lord Maclennan of Rogart

I begin by thanking the Minister for giving a full reply to my remarks. I have to say that I do not think that she introduced a new argument this afternoon in support of the Government's position. As the justices' clerks have already indicated their dissatisfaction with what the Government have in mind, I am reluctant to see the back of this issue.

This is not the final occasion on which it will be possible for this House to give consideration to these issues. I think that some further reflection and discussion—also involving the Government, I hope—may prove of value to test whether the Government's proposed safeguards, particularly about enabling the justices' clerks to complain in a timeless fashion about the sorts of pressure which have evidently been brought to bear upon them, can be properly ventilated so as to extirpate any meddling of this kind by a civil servant or a department, whether or not there is ministerial involvement. It would be rather unlikely that there would be. I cannot say that the Minister's answer entirely removes my anxieties. None the less, the pause for reflection is to be welcomed. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 14 agreed to.

3.30 p.m.

Clauses 72 and 73 agreed to.

Clause 74 [Report]:

[Amendment No. 88CPZB not moved.]

Clause 74 agreed to.

Clause 75 [The Minister's options]:

[Amendment No. 88CPZC not moved.]

Clause 75 agreed to.

Clauses 76 and 77 agreed to.

Clause 78 [Reconsideration of decision not to select]:

[Amendment No. 88CPZD not moved.]

Clause 78 agreed to.

Clauses 79 to 85 agreed to.

Lord Goodhart moved Amendment No. 88CPZE:

After Clause 85, insert the following new clause—


(1) The Ombudsman must in each year review the process of selection under this Part by the Commission and selection panels to establish whether selections are being made in accordance with section 54 and any guidance given under section 55.

(2) The Ombudsman must prepare a report on the outcome of the review and send a copy of the report to the Minister and the Commission.

(3) The Minister must lay a copy of the report before each House of Parliament."

The noble Lord said: The amendment proposes setting up a system to review the work of the Judicial Appointments Commission. In speaking to it, I shall speak also to Amendment No. 88CPZF. The amendments were suggested originally by the Commission for Judicial Appointments. I am afraid that the language is now somewhat confusing. The Commission for Judicial Appointments is, of course, an existing body, whose functions do not include the making or recommending of individual appointments, but whose job is to oversee the process of selection currently exercised by the Lord Chancellor and the Department for Constitutional Affairs. The amendments are supported by the Law Society.

The existing process has been much improved in recent years by the review of the process of appointment, both to the judiciary and to Silk, which has been carried out by the CJA. The CJA will cease to exist as such when the Bill comes into force, but the substitution of the new Judicial Appointments Commission for the Lord Chancellor and the appointments unit at the DCA will not necessarily mean that everything in the appointments system will be perfect. Indeed, the JAC may stick too rigidly to existing practices of appointment, some of which have already been found by the CJA to be unsatisfactory. The JAC may be overcautious in making appointments. For example, it may improve diversity of backgrounds among the judiciary but not diversity of personality. It may be unwilling to take a chance on individuals who do not fit into the mainstream. The noble and learned Lord, Lord Mackay of Clashfern, took a chance, extremely successfully. Without any kind of audit, the Judicial Appointments Commission may become slipshod or develop questionable practices of its own.

The Judicial Appointments Commission will be a body of enormous constitutional importance. It is therefore highly desirable that there be some form of continuing external oversight. The obvious person to exercise that oversight is the Judicial Appointments and Conduct Ombudsman, whose appointment is contained in the Bill. As the Bill stands, he will investigate individual complaints against the Judicial Appointments Commission by individuals who feel that the process has, in some respect, been improper when applied to them. If the investigation convinces the ombudsman that there is a systematic problem with the processes of the Judicial Appointments Commission, the report will obviously have to say so.

It is a desirable extension of the ombudsman's duties and powers to enable him or her to be proactive. He or she can then investigate the system, even if there are no complaints or, for example, if the complaint leads to a suspicion that there may be some systematic problem but it is impossible for the ombudsman to be sure without further investigation of the process. Of course there could be alternative methods of review, such as by the office of the Commissioner for Public Appointments. However, the fact that the Judicial Appointments and Conduct Ombudsman already has a duty to deal with individual complaints about defects in the appointments process makes him or her the obviously appropriate person to conduct the wider review.

The amendment will encourage good practice, help to detect flaws in the system, and increase public confidence in the process. It will do all that without adding greatly to the existing duties of the ombudsman under the Bill. The amendments deserve acceptance. I beg to move.

Lord Crickhowell

I hurried from the Chamber to fetch my copy of the report prepared by the committee that considered the Bill, because I wanted to refresh my memory about a later amendment tabled by the noble Viscount, Lord Bledisloe. As it happened, I then turned to the page on which the committee considered the proposition that the noble Lord has just advanced. It states: The Lord Chancellor disagreed with this proposal. He told us that the audit function will no longer be needed as the system is being made more transparent". He went on to advance the argument rather further; the matter is covered in paragraph 296 of the report. I shall not read it all out, as I suspect that the Minister will advance exactly the same arguments when she winds up. However, I remind noble Lords that the committee agreed that no further provision in respect of audit of appointments need be made. The Liberal Democrat members of the committee believed that it should be, but that was not generally supported by others.

Baroness Ashton of Upholland

I am very grateful to the noble Lord, Lord Crickhowell. The timeliness of his speech means that I may be able to keep my remarks shorter. Both he and I can refer people to the report of the Select Committee, which is a very important document, particularly in this context.

As the noble Lord, Lord Crickhowell, said, the basis on which we disagree with the amendment is that the system that we are putting in place is about transparency and openness. We have the existing provision because the system is seen to be in the hands of a single government Minister, and seen as closed and opaque. However wonderful and worthy it may be, that is the case. We wanted to make sure that we had some external guarantee of the integrity of that system.

We will have a non-departmental public body with 15 independent commissioners and its own staff, their role being to guarantee the independence and impartiality of the selection process and, as the noble Lord, Lord Goodhart, said, to increase public confidence in the system. They will be the Minister's prime source of expert advice on any issue relating to judicial appointments.

The difficulty with the amendment is that it would establish the ombudsman as a rival source of advice in addition to the Judicial Appointments Commission on general questions about the direction of judicial appointments or the manner in which competition should be run. We do not believe that there are any obvious reasons why the views of the ombudsman on these matters should prevail over those of the commission. Indeed, it is undesirable that they should. Otherwise the ombudsman would be placed in charge of the JAC and that would undermine the commission.

The role that we have envisaged for the ombudsman is set out in the concordat with the judges, but I shall examine carefully the noble Lord's comments. Perhaps the noble Lord and I might discuss these matters to ensure that the noble Lord recognises everything that we have done. But I fully agree with the noble Lord, Lord Crickhowell, and the Select Committee. We believe that what we have in place is appropriate. On that basis, I hope that the noble Lord will withdraw the amendment.

Lord Goodhart

I am grateful to the Minister for her comments, although they were not satisfactory. We were not suggesting that the views of the judicial ombudsman should prevail. It is desirable that there should be some form of external monitoring of what is done by this extraordinarily important committee. Particularly, since monitoring is provided for individual cases—because they can be referred to the judicial ombudsman if an individual were to complain about the way in which he or she had been treated by the JAC—it would be a small but sensible step to extend that more widely. I must admit that this would go somewhat beyond the line that we took at the time of the report of the Select Committee, but, subsequent to discussions with the CJA, I have found that its arguments were increasingly persuasive on this issue. It has a significant point.

However, this is not a matter which can be taken any further today. We will consider carefully whether this matter is or is not one that needs to be brought back at a later stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 86 [Information]:

[Amendment No. 88CPZF not moved.]

Clause 86 agreed to.

Clause 87 agreed to.

Clause 88 [Confidentiality]:

Viscount Bledisloe moved Amendment No. 88CPA:

Page 33, line 4, after "person" insert— (a)

The noble Viscount said: In moving the amendment, I shall also speak to Amendments Nos. 88CPB, 88CPC and 88CPD.

These amendments relate to Clause 88 and the question of the confidentiality of proceedings and the workings of the appointments commission. It is universally agreed that when someone has applied for an appointment, that must be kept extremely confidential, as well as the views, favourable or unfavourable, of those who are consulted. I shall return to the importance of that in a moment.

Clause 88 imposes a duty of confidentiality only on a commissioner, a member of the commission staff or an agent of the commission. My amendments seek to extend that to a member of a panel of the commission and, most importantly, to those who are consulted or otherwise involved in the process.

Amendment No. 88CPD is slightly different. It also imposes a duty of confidentiality for the first time on the different commission that is responsible for the appointment of justices of the Supreme Court or Law Lords—whichever we end up with. At the moment, for some reason, that commission does not have any duty of confidentiality at all.

3.45 p.m.

Returning to the main substance of my amendments, the Select Committee heard evidence from Sir Colin Campbell, who said that he, "very, very strongly" emphasised that the confidentiality should be preserved. The same was said by Sir Hayden Phillips, the then Permanent Secretary of the Department for Constitutional Affairs, who, in a candid moment, stated: We all know in life there are … leaks and … gossip and those, I am afraid, the appointed authorities cannot always absolutely control". There are certain noble Lords, including the Lord Chancellor, who know from one very unfortunate incident that occurred recently, how very true those words were. Her Majesty's judges may be wonderful people at their judicial affairs, but there are few more leaky or gossipy places than the Benches of the four Inns of Court. Such matters do get talked about with distressing regularity and with unfortunate consequences. Both the Law Society and the Bar Council in their evidence emphasised strongly that if people were to be expected to apply they had to be as certain as possible that those applications would be kept confidential. I know full well that it is very damaging to a barrister's practice if it is thought that he is about to go to the Bench, because obviously people do not wish to instruct him in case he will not be there to do those cases. The Law Society pointed out that the situation was even worse for a solicitor, because the last thing that one would want one's partners to know was that one might be jumping ship when one might not be given the appointment and might not be able to jump ship.

So confidentiality is essential and the Select Committee recognised that. It stated: The Committee agrees that a duty of confidentiality relating to the judicial appointments process should extend beyond the Commissioners and staff … to others involved in the appointments process. Amendments to that effect will be brought forward by the Lord Chancellor at a later stage in the bill". They have not been brought forward thus far, but we hope that they will be forthcoming. Will the Minister assure me that those amendments will be forthcoming and that they will extend to cover the various categories of people I have included in these amendments? I shall not press the amendments today, but I ask for her assurance that it is recognised that it is essential to extend the duty to these further persons. I beg to move.

Lord Crickhowell

In moving the amendment, the noble Viscount referred to the evidence that Professor Sir Colin Campbell gave to the committee on 6 May and the strongly held views that he expressed. The noble Viscount also drew attention to the paragraph summarising the conclusion of the committee, which I would have referred to. Like him, I wait with interest to hear what amendments the Government intend to bring forward in accordance with the undertaking that they gave.

My specific point arises from the same piece of evidence and the question that I asked Sir Colin Campbell regarding the point that the consultation process involved the First Minister in Scotland and the Deputy First Minister in Northern Ireland, but the Welsh Assembly in Wales. As soon as I asked the question, our chairman, the noble Lord, Lord Richard, who, after all, had recently completed a substantial report on the work of the Welsh Assembly, intervened to say: Sorry, I have been obsessed with this recently, there is a problem with the Welsh Assembly, which Lord Crickhowell knows, which is effectively it is a corporate body. That is absurd under the existing Government of Wales Act, it should never have been that". I said: This does raise the crucial question of confidentiality. I do not think that I am being unkind if I say that if there are doubts regarding the confidentiality around the Inns of Court, then there are far greater doubts about confidentiality around the Welsh Assembly. Frankly, it is an appalling thought that individual Members of the Welsh Assembly might become involved in the process and that no absolute obligation of confidentiality should be imposed on them.

I hope that, when she replies, the Minister will be able to assure me that not only will a clause be brought forward on confidentiality generally but that she will ensure that the problem raised by the fact that the Welsh Assembly is consulted as a corporate body and not through its First Minister is adequately covered by that amendment.

Lord Carlisle of Bucklow

Having been on the committee which considered the Bill, I agree wholeheartedly with every word that the noble Viscount, Lord Bledisloe, and my noble friend Lord Crickhowell have said. There must be a clear duty of confidentiality on anyone who receives information regarding a possible appointment to the Bench at all levels. We are told that one desire of the Government is that those who are to go on the Bench will be drawn from a wider area than is currently the case. People will not come forward or apply to go on the Bench if they feel that there is a danger that the knowledge that they applied but failed will get out. Therefore, I hope very much that the Government will meet the point made by the noble Viscount, Lord Bledisloe.

Lord Kingsland

The noble Viscount, Lord Bledisloe, has summarised the issue with his customary cogency and comprehensiveness. He has therefore lightened my burden enormously. I wholly agree with what he said. His remarks about the undertakings given by the noble and learned Lord the Lord Chancellor to the Select Committee should be incentive enough to the noble Baroness to stand up and say that she concedes everything to the noble Viscount.

Baroness Ashton of Upholland

Thanks to the noble Viscount, Lord Bledisloe, I have some new insights into the incentive in terms of its leaky nature. I also have new insights into the views and thoughts of the noble Lord, Lord Crickhowell, and the Welsh Assembly. I agree, too, with what the noble Lord, Lord Carlisle, said, which was also reflected in the remarks of the noble Viscount. It is important that when people come forward they do so with a sense of confidentiality. I recognise entirely what has been said.

I have an enormous amount of sympathy with the amendments before us. As noble Lords know, at the moment the Bill has, in Clause 88, separate provisions in relation to the Judicial Appointments Commission and in relation to the Judicial Appointments and Conduct Ombudsman in Clause 99. I agree that the current provisions are not wholly satisfactory. Instead of provisions directed at particular bodies, we need provisions which guarantee confidentiality in relation to the appointments process and judicial disciplinary matters. Those provisions should cover all those involved in these processes and not only the Judicial Appointments Commission and the ombudsman. Therefore, it is our intention to move appropriate amendments on Report, and I give that commitment.

The last in this group of amendments—Amendment No. 88CPD—would, as the noble Viscount said, extend the confidentiality requirements of Clause 88 to the process of selecting Supreme Court justices. The Government believe that this provision does not belong in Part 3 of the Bill because the appointments are governed by Part 2. Therefore, we shall also endeavour to consider whether a provision needs to be added to Part 2 in order to protect the confidentiality of that process, as the noble Viscount indicated.

In response to the noble Lord, Lord Crickhowell, on the matter of the First Minister in Scotland and the corporate body of the Welsh Assembly, I understand that that was in relation to Supreme Court appointments and not the Judicial Appointments Commission. None the less, the Government are planning to change that to the First Minister in Wales, and I believe that that addresses the noble Lord's point.

On the basis that I accept the sentiments behind these amendments and that we are committed to bringing forward appropriate amendments on Report, I hope that the noble Viscount will feel able to withdraw his amendment.

Viscount Bledisloe

I am most grateful to all noble Lords who have spoken. The noble Lord, Lord Kingsland, will be well aware that flattery will get him everywhere. I am also extremely grateful to the Minister. I am delighted by what she said. So far as I am concerned, provided that I get the substance of the amendments, she can put them anywhere in the Bill that she likes, and I do not mind where they are. I am very grateful to her. Perhaps she and the noble and learned Lord the Lord Chancellor will consider whether it would be helpful for us to have a discussion at some point before we return to the matter on Report. I should be more than happy to take part in such a meeting. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 88CPB to 88CPD not moved.]

Clause 88 agreed to.

Clause 89 agreed to.

Clause 90 [Disciplinary powers]:

Viscount Bledisloe moved Amendment No. 88CPE:

Page 34, line 26, after "but" insert "save in the case of advice given under subsection (3)(a) below"

The noble Viscount said: We now come to Clause 90, which concerns the question of disciplining all the office holders listed in Schedule 14. I emphasise that that includes judges of the High Court, who of course cannot be removed other than by an address of both Houses.

Amendment No. 88CPE deals with one small point. Under Section 90(3), the Lord Chief Justice can, give a judicial office holder any of the following for disciplinary purposes— … advice … a warning … [or] a formal reprimand", but he cannot exercise any of those powers, save with the agreement of the Minister and after complying with prescribed procedures.

I suggest that applying that to "advice" is going bureaucratically mad. It was said that it was not intended that it would apply to advice where the Lord Chief Justice was speaking only somewhat robustly to the judge but nothing would go on the judge's record. With respect, that is a distinction that cannot be made. The judge receiving the advice is likely to be one of the more difficult of the judicial characters.

Perhaps I may take those who are dead as examples in order to avoid any offence—let us say Mr Justice Roxburgh or Mr Justice Hallett. If the Lord Chief Justice had tried to give them advice, the first thing that either of them would have said was, "Have you consulted the Lord Chancellor about this?". The Lord Chief Justice would say, "No, I'm only talking to you, old boy, and giving you a bit of advice". The judge would reply, "I don't care. You can't do that. Look at the Bill". Quite frankly, it is ridiculous to say that the Lord Chief Justice cannot give even serious advice to the judges for whom he is responsible without asking the Lord Chancellor. Until he hears their reaction, he will not know whether he is going to pat them on the back and say, "Oh dear, old boy, do try to avoid doing that again", or, if they take a recalcitrant attitude, whether he will say, "Well, I have to advise you formally that if you do that again, something serious will have to be done". He will not know.

In some cases, the Lord Chief Justice may want to consult the Lord Chancellor in advance because he may be considering something more serious, such as a warning or a reprimand. He may want to say, "Is it all right if I give him a reprimand if he is a recalcitrant or if I give him advice if he is very amenable and apologetic?". But where the worst that he can contemplate is giving advice, it is going far too far to say that that must go through the Lord Chancellor first. It will completely inhibit the freedom of the Lord Chief Justice to deal with matters at the initial stage reasonably informally and sensibly and without the pedantic and difficult judge making procedural points. I beg to move.

Lord Lloyd of Berwick

I support the amendment. It has been put so well and so strongly by the noble Viscount that I feel that I can add nothing other than my support.

4 p.m.

Lord Kingsland

I have very little to add to what the noble and learned Lord, Lord Lloyd, has said about the speech of the noble Viscount or about the substance of the amendment. I wonder whether the Minister has had a good look at the categories of office set out in Schedule 14. It contains a very large number of appointments, ranging from High Court judges to road-user charging adjudicators. Is it seriously intended that, before the Lord Chief Justice gives a warning to a road-user charging adjudicator about his or her conduct, he has to consult the Lord Chancellor?

Lord Carlisle of Bucklow

Before the Minister replies, perhaps I may ask one question on the amendment. I notice that not only is the Lord Chief Justice required to obtain the agreement of the Minister before giving advice, but he is also required to comply with prescribed procedures. I am not sure whether we have been told what are the "prescribed procedures". Perhaps the noble Baroness can add light to the phrase "complying with those prescribed procedures".

Baroness Ashton of Upholland

I shall endeavour to obtain an answer for the noble Lord, Lord Carlisle, as swiftly as possible. I say to the noble Viscount, Lord Bledisloe, that I shall be delighted to have discussions with him on the previous amendments and any others. That invitation is open to any noble Lord. As these amendments are prepared, it will be important for the noble Viscount to see them.

I express my sympathy with the spirit of the amendment. Of course, it must remain possible for the Lord Chief Justice to advise or to have an informal word with any of the judges without needing to have the approval of the Minister and without having to go through the formal disciplinary process.

The noble Viscount made reference to my answer that the provisions of Clause 90 are not intended in any way to restrict that. They are concerned with those cases that go through a formal disciplinary investigation and procedure. In those cases, it is agreed within the concordat between the Lord Chancellor and the Lord Chief Justice that they should both have to agree to any decision to impose a disciplinary sanction on a judge, including giving warning and advice.

We believe that we have addressed this matter. Having listened to what has been said, I believe that it is appropriate to consider the drafting of these provisions further to ensure that they do not have any unintended effect. If necessary, I shall commit to tabling an amendment on Report. Perhaps that could inform the basis of any discussion with the noble Viscount and with other noble Lords.

I have the answer to the noble Lord, Lord Carlisle. Prescribed procedures are rules made by the Lord Chief Justice under Clauses 92 and 94. It says here, "See Clause 100". I shall look at Clause 100 presently. On the basis of what I have indicated to the noble Viscount—that I shall ensure that there is nothing further we should be doing on this and endeavour to discuss that with the noble Viscount—I hope that he will feel able to withdraw the amendment.

Viscount Bledisloe

I am grateful to the noble Lord, Lord Carlisle, and to the Minister. On the basis of what she has said, I am delighted to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Bledisloe moved Amendment No. 88CPF: Page 35, line 2, after "office," insert— () the person or body who or which had so determined under prescribed procedures had recommended that the office holders should be so suspended,

The noble Viscount said: In moving Amendment No. 88CPF, I shall speak also to Amendments Nos. 88CPG, 88CPH, 88CPJ and 88CPK. They are all concerned with discipline and, in particular, with the very powerful power given to the Lord Chief Justice to, suspend a judicial office holder for any period during which any of the following applies … or for any period".

In relation to someone who cannot be removed, say, by special procedures, such as a puisne judge in relation to addresses of the House, we are giving powers to the Lord Chief Justice and the Lord Chancellor to suspend such a person for any period. That period could be for 90 per cent of his remaining serving time, which would virtually be getting rid of him almost entirely. The circumstances in which they can do that are very widely expressed.

First, Clause 90(5) deals with the issue of an officer having been convicted of a criminal offence and it being determined by the proper body that he should not be removed from that office but it appears to the Lord Chief Justice that a suspension is necessary for maintaining confidence in the judiciary. Amendment No. 88CPF suggests that the body that decides that he does not merit removal should also be the body that recommends a period of suspension.

It seems ridiculous to me that that body can say, "No, we shall not remove you because really there is nothing wrong and the criminal offence does not in any way render you unsuitable and you should go on sitting", but that that body can be second-guessed by the Lord Chief Justice who says, "No, I am going to suspend you for three years". Where it has been decided by that body, that body should also determine whether it recommends suspension.

Turning to the next amendments, the Lord Chief Justice can suspend the holder of an office, again for any period during which he is under investigation for any offence or is subject to any disciplinary proceedings. Surely, that should be a serious offence and there should be disciplinary proceedings which could reasonably lead to his removal or suspension. If the worst that can possibly happen or is likely to happen from those disciplinary proceedings is that he receives a wrap over the knuckles, it seems absolutely ridiculous that he should be suspended while the proceedings are pending.

Again, he can be suspended if he serves a sentence imposed in criminal proceedings. A sentence involves anything other than a fine. I suggest that having three points on his licence would hardly merit his indefinite suspension. The suggestion is that only a serious offence should lead to suspension.

Those are various points that in total amount to a suggestion that these powers are much too wide. I have every confidence that the Minister will say that they will be subject to review and that she and the noble and learned Lord will reconsider them. If 1 do hear that I shall be very happy. Again I hope that we can make progress. But I hope that the Committee will recognise that these are important points. Unsuitable persons in those offices could seriously undermine the independence of the judiciary. I beg to move.

Lord Donaldson of Lymington

Perhaps I may intervene for one moment. I have always been worried about the aspects of the Bill and the concordat in so far as they produce something in the nature of a service disciplinary attitude. One of the strengths of the puisne judges—and a fortiori a bit further up—is that they are highly responsible people who can be relied on, with very few exceptions, to act responsibly. Peer pressure has a considerable effect. An open suspension of any judicial officer of the rank or seniority—whatever you would like to call it—of a puisne judge would be immensely damaging to him. In fact, it would really force his resignation. It would not be necessary in some cases.

Some people may know the sort of background history which moves me. There was a case where a puisne judge suffered from a curious form of mental illness whereby for much of the time he was perfectly rational and at times he was not. That was dealt with by simply not providing him with work at moments when he was not as rational as he might be. It is perfectly true that on one occasion something escaped the system, but that was obviously a judicial administrative error.

The point remains that I do not believe that High Court judges and above—and it may go a little further sthan that—should be subject to disciplinary proceedings other than the ultimate sanction of a joint address of both Houses Parliament. I have not checked it again, but I believe that at one stage I found that it was open to the Lord Chief Justice to censure, suspend or give formal advice to the Master of the Rolls. I suggested to the present Lord Chief Justice that that was not a good idea. He persuaded me not to take up arms on the subject by saying that he could not conceive of any Lord Chief Justice trying it on. That may be so. It is not actually a very happy basis for legislation.

I believe that the independence of the higher judiciary, to some extent, depends on maintaining traditions and not backing them up with judicial processes. It was possible for the Lord Chief Justice—he did not—to have taken a view on some of the rather peculiar things that I as president of the National Industrial Relations Court was doing. I was dealing with a very peculiar world in which it had to be recognised that what was said in private bore little relation to what was said in public.

Some people might have taken the view that that was improper on my part. I did not take that view, nor in fact did the Lord Chief Justice. However, it would have undermined my independence very considerably if people had been able to give me formal advice not to conduct that court in the way I saw fit. Indeed, in that context I was asked by the noble Lord, Lord Carr, the then Secretary of State for Employment, whether I was responsible to the Lord Chief Justice. I said, "No, certainly not". He said: "Well, I suppose then that you are responsible to the Lord Chancellor". I said, "No, the essence of my job is that I am responsible to the law and to my conscience and to no one else". I was convinced, particularly at that period in my career, that my ability to approach things—I may have got it wrong—without any feeling of pressure was dependent on my view that I was responsible to no one other than my conscience. I am troubled about the whole basis of this part of the concordat.

Lord Goodhart

It seems to me that the noble Viscount, Lord Bledisloe, has raised a number of interesting and important points. Certainly, I should be grateful if the Minister would agree to take these matters away and to look at them again because I think they deserve it.

I have one question. Clause 91(2) of the Bill states: A judicial office holder is subject to criminal proceedings from the time when he is committed for trial on indictment for an offence". Does that mean that criminal proceedings for the purposes of Clause 90 refers only to criminal proceedings on indictment? That of course would somewhat alter the position.

Lord Kingsland

I have just one small additional question. As I understand it, Clause 90 refers to all the judges in Schedule 14; that is to say, it includes puisne judges. Clause 91, however, which purports to interpret Clause 90, appears to exclude puisne judges by virtue of subsection (4)(b). By that I mean that a puisne judge's status changes from being a judicial officeholder, under Schedule 14, to a senior judge. Can the noble Baroness shed light on what implications that has for the interpretation of Clause 90 in relation to puisne judges?

4.15 p.m.

Baroness Ashton of Upholland

I am grateful to all noble Lords who have spoken in this important debate. I have a long answer and a short answer to give the noble Viscount, Lord Bledisloe. Having listened carefully to what he said, I shall stick with the short answer. My reason is that, rather than go through the specifics of each amendment, I take from the tenor of the debate and noble Lords' contributions that there is desire for me to say precisely what the Government will do—which, in a sense, is the short answer. We recognise that some of the provisions relating to judicial discipline require further refinement to bring them fully into line with the concordat. We intend to move amendments on Report following further discussions with the judiciary. In that context, I undertake to consider carefully the noble Viscount's amendments. Again, perhaps I could form part of the discussions.

The noble Viscount and the noble and learned Lord, Lord Donaldson, raised the issue of High Court judges. The power to suspend High Court judges will apply only while they are subject to parliamentary proceedings. But there should be the ability to consider complaints and, if necessary, to issue some form of reprimand. For example, in recent years, I understand, there has been a reprimand for delay in giving judgments. It is on such a basis that we are considering those matters. I would be delighted to hear more from the noble and learned Lord if there are other issues that he wishes us to think about in that context.

The noble Lord, Lord Goodhart, gets my prize of the evening; the issue of trial on indictment is a mistake. It should also apply to summary proceedings. The noble Lord is quite right; we will seek to amend the provision.

I cannot give a proper answer to the noble Lord, Lord Kingsland, on the relationship of Clause 91 with Clause 90, recognising the issue of puisne judges. I will write to him before Report and ensure that his question is answered appropriately and properly. On the basis of the commitment that I have given, I hope that the noble Viscount will feel able to withdraw his amendment.

Lord Donaldson of Lymington

If anything that the noble Baroness said constituted an invitation to me to put forward issues for consideration, perhaps I might suggest that it would be wrong to allow people, certainly at High Court level, to be censured over delays in judgments. As Master of the Rolls I was very concerned about it. I did two things. In jest I circulated to all Lords Justices a newspaper cutting in which a Chief Justice somewhere in the Far East said that it was intolerable that judgments should be delayed for 20 years or more. I made it clear that perhaps that was overdoing it.

More seriously, some judges, whether through conscientiousness or otherwise, take far too much time to prepare judgments. I dealt with it as I should have thought heads of division would deal with it: simply to say, "I understand that you have problems with this judgment. I propose to assist by not giving you work to do until you have done it". It would be very surprising if a judge at that level said, "Fine, I am off to play cricket".

Baroness Ashton of Upholland

The noble and learned Lord's points are well made. I did not wish to imply anything but wanted to give an instance of the reality of the situation. I will reflect as we look carefully at the concerns and amendments of the noble Viscount, Lord Bledisloe, and all that has been said by noble Lords on this particular amendment. I will take into account the noble and learned Lord's comments.

Viscount Bledisloe

Once again I am grateful to the noble Baroness for her very helpful and co-operative reply. I only hope that the appearance of the noble and learned Lord the Lord Chancellor to sit alongside her does not mean that this charming spirit of assistance and conciliation will be diminished.

I am also grateful to the noble Lord, Lord Goodhart, for his interesting point on Clause 91(2). If the criminal proceedings were only those on indictment, much of my worry would disappear. But the definition in Clause 91(2) relates only to any subject of criminal proceedings—that is to say, it relates to Clause 90(4)(a) and not 90(4)(b). If the provision could be adapted, that might solve quite a lot of our worries. I look forward to a helpful dialogue either with the noble Baroness or, if needs be, with the noble Baroness and her colleague. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 88CPG and 88CPH not moved.]

Clause 90 agreed to.

Clause 91 [Disciplinary powers: interpretation]:

[Amendments Nos. 88CPJ and 88CPK not moved.]

Clause 91 agreed to.

Clauses 92 to 100 agreed to.

Clause 101 [Parliamentary disqualification]:

[Amendment No. 88CQ not moved.]

Lord Kingsland moved Amendment No. 88CQA:

Page 40, line 8, at end insert—

"() A person who is a judge of the Supreme Court or a member of the supplementary panel under section 33 of the Constitutional Reform Act 2004 shall be a member of the House of Lords.

() A person who by reason of section 33(4) or 33(5) of this Act is no longer a judge of the Supreme Court or a member of the supplementary panel shall continue to be a member of the House of Lords."

The noble Lord said: I can move the amendment briefly. So far, the establishment of a Supreme Court has attracted great attention with regard to its new building. It has attracted less attention with respect to the designation of those intended to inhabit it. I thought it important, therefore, that the Committee should have an opportunity to consider the matter.

The basis on which the Government have proceeded with the Bill is, as we know, that the absence of a separate home for the final court of appeal has created confusion in the public mind. Accordingly, the Government have decided—with great reluctance, of course—that, in future, the final court of appeal should be renamed "the Supreme Court" and sit in a separate building.

The case as to whether or not those who are members of the Supreme Court should remain Members of the House of Lords has not been made out in any detail. Why should future members of the Supreme Court cease to become Members of this House? Wherein lies the confusion for the general public?

There can be no confusion about names. When one appears in front of, for example, a puisne judge in the High Court, one addresses him or her as "My Lord" or "My Lady". From the point of view of the general public, that judge might easily be a Member of the House of Lords. Thus, if there would be confusion if the members of the Supreme Court remained Members of the House of Lords, such confusion also applies to the Court of Appeal and the High Court. There must be some other reason why, in the Government's mind, it would be inappropriate for future members of the Supreme Court to become Members of the House of Lords. What could it be?

The issue of voting has already, in effect, been dealt with by convention. Lords of Appeal in Ordinary no longer vote in your Lordships' House, except with a few unintended exceptions.

Lord Goodhart

Is the noble Lord aware that two serving Law Lords voted in the principal Division on the Hunting Bill?

Lord Kingsland

I regard that as an entirely distinct matter. The vote on the Hunting Bill was a free vote and therefore did not engage the Law Lords' responsibilities politically; it simply engaged them in expressing their own view of a matter on which all noble Lords had a free vote. I am surprised that the noble Lord, Lord Goodhart, should have raised that matter in the context in which I was speaking.

I am sure that a new convention on speaking could be developed to guarantee that members of the Supreme Court who were also Members of this House would not speak on matters that could, in any way, embarrass them in their judicial activities. If such a convention could be developed, the plus side for having members of the Supreme Court remaining Members of your Lordships' House would, in my submission, be substantial.

The noble Lord, Lord Elton, has, in particular, in a number of debates in your Lordships' House, drawn attention to the important role that noble and learned Lords have played in the general work of your Lordships' House. Sub-Committee E of the European Union Committee has often been mentioned, but that is by no means the only example. It is for the Government to make out the case for members of the Supreme Court no longer being Members of your Lordships' House. I beg to move.

Lord Renton

These amendments, moved by my noble friend Lord Kingsland, are, in my opinion, the most important amendments moved to this Bill. I speak as one who has been a Queen's Counsel for 50 years and a Member of your Lordships' House for 25 years. There is no doubt that all Law Lords deserve to be made Peers and to remain Peers. But some of them, especially those who have retired, play a vital part in the work of this House, especially when we are legislating on constitutional matters and, indeed, on other legal matters as well.

The Government and Parliament would do a great disservice to our constitution if the Law Lords were expelled, as is proposed by the Government, or their successors—that is, the Supreme Court judges—were prevented from helping to improve legislation. Therefore, I hope that the Lord Chancellor, for whom I have some respect, will take very seriously what my noble friend Lord Kingsland has put before the Committee and that the Government will change their mind and allow either Law Lords or future Supreme Court judges to remain Peers.

Viscount Bledisloe

Amendments Nos. 88CR to 88CU, standing in my name, are not grouped with the amendments tabled by the noble Lord, Lord Kingsland. But the subject matters so overlap that, unless any Members of the Committee or anyone on the Front Bench object, it would be more convenient if I speak to them now. I certainly see the Whip encouraging me on the grounds that that means that we will get on quicker.

Some of those amendments were drafted in the expectation that we would have a vote on the Supreme Court, that the idea of the Supreme Court would have gone and that we would be back to our good, old and sensible Law Lords. Amendments Nos. 88CR and 88CT probably are not wholly applicable, but the principle is, and the other two are.

Clause 101(2) would disqualify any Member of this House who holds any judicial office from sitting or voting in this House or in any committee of this House. That is extreme and all wrong. Even if the Supreme Court is to go forward, there will still be a period until it takes effect, so there will still be some Law Lords who will be both Members of this House and members of that court. And, in future, it may well be that the Lord Chief Justice and the Master of the Rolls could also be Members of this House.

What I propose is this. Except that they cannot vote, thus encapsulating the convention in the Act—and excluding even the exception to it made by the noble Lord, Lord Kingsland—do not prevent them taking part in the proceedings of your Lordships' House either by speaking, and so giving us their tremendously important advice on constitutional matters, complicated points of law and so forth, or taking part in committees of your Lordships' House. As someone who has served twice on Sub-Committee E under three wonderful chairmen, all Lords of Appeal, do not deprive us of services of that sort. What possible objection can there be to the Law Lords sitting and speaking, provided that they are debarred from voting?

That is what I suggest should be done. I have chosen to speak to my amendments because they tie in closely with the topic raised by the noble Lord, Lord Kingsland.

4.30 p.m.

Lord Campbell of Alloway

I shall make a brief speech. Leaving aside the question of voting, to which reference has just been made, and in saying that I support the amendment moved by my noble friend Lord Kingsland, surely it is right that a Lord of Appeal in Ordinary, whether he serves on the Appellate Committee of your Lordships' House or what is supposed to be a Supreme Court, is neither here nor there. The point is that if he is in either, he should be entitled to a Writ of Summons to attend this House and to speak here. This House will be much the poorer if Lords of Appeal in Ordinary are not entitled to speak here.

For my part, I think that the entitlement to vote should be retained, but that is an extension of the argument. I have supported this contention on previous occasions, so I shall not repeat the arguments. I also support the contention that the Lord Chancellor must be a Member of this House. At a later stage I propose to return to that in a more formal manner, so I shall not take up the time of the Committee at the moment.

Lord Lloyd of Berwick

I had intended to move Amendment No. 88CR in due course, but I note that my noble friend Lord Bledisloe has to a certain extent already jumped the gun. I am very happy to jump the gun as well so as to avoid a separate debate later. The key amendment in the group is Amendment No. 88CS, the effect of which would be to enable the Law Lords, if they continue to exist as Law Lords, to continue to sit and take part in the proceedings of this House, but not to vote.

I should have thought it must be common ground that, over the years, the Law Lords have made an enormously valuable contribution to the proceedings of this House while still serving as Law Lords. We all remember Lord Wilberforce, Lord Scarman and, I suspect, a particular speech made by Lord Taylor when he was Lord Chief Justice. It would be the greatest of pities to deprive ourselves of the opportunity of hearing contributions of that calibre by what, in effect, amounts to only a theoretical argument. Moreover, as has already been mentioned, Law Lords make a particular contribution to House of Lords committees, one that I should say is unpaid. Unlike other members of such committees, Law Lords are not paid.

My personal view is that Law Lords should also be allowed to vote. It seems in a sense artificial to allow them—as I hope we shall—to take part in debates and express their views but then not to allow them to back those views in the Lobbies. I accept what the noble Lord, Lord Goodhart, said earlier, but very occasionally the Law Lords do vote. However, I simply cannot accept that by doing so they would disqualify themselves under the European Convention on Human Rights from sitting on an appeal totally unrelated to the matter on which they had voted. Indeed, at an earlier stage in Committee I drew attention to a recent decision of the European Court of Human Rights—I think from Finland—which has decided that very point: there is no automatic disqualification.

I should like to see the law remain exactly as it is with the Law Lords continuing, not very often but occasionally, to take part in debates—I hope with some effect—and also being allowed to vote, as they do very occasionally. I am sure that we can rely on the Law Lords to exercise wise discretion in the matters in which they take part and vote.

I suspect that in the minds of some Members of the House the issue of voting raises a particular problem. It is for that reason that I have brought forward the amendments in the hope that they might provide a compromise. I would like the Law Lords to continue to sit and vote but, as a form of compromise, I would be happy if they were allowed to speak but not vote. We cannot afford to do without them.

Amendment No. 88CT is simply consequential if Amendment No. 88CS is accepted. Again, that has already been explained.

Lord Goodhart

I think that noble Lords and noble and learned Lords who have spoken so far will not be surprised to learn that I am unable to support Amendments Nos. 88CQA or 88CTA. The amendments in the following group which have been spoken to would arise only in the event that the proposal to set up a Supreme Court is defeated. I therefore do not wish to speak to those amendments on this occasion.

So far as Amendments Nos. 88CQA and 88CTA are concerned—

Viscount Bledisloe

The noble Lord, Lord Goodhart, is not correct. Amendment No. 88CS, which refers to sitting, would apply even if the Supreme Court is set up. There will be a number of people who are Lords and members of the Supreme Court. The Lord Chief Justice, the Master of the Rolls and various other people will be covered whether or not there is a Supreme Court.

Lord Goodhart

That seems to me to be something of a second order question and I do not wish to take up the time of the Committee discussing it.

It seems inappropriate that the members of the Supreme Court should also ex officio continue to be Members of your Lordships' House. The post of Lord of Appeal in Ordinary was created in order to facilitate the appointment of people who were to be members of the Appellate Committee of your Lordships' House. They were appointed for the specific purpose of acting as judges—although, of course, under the terms of their appointment, they remain for life. After they have ceased to hold the office of Lord of Appeal in Ordinary they remain Members of your Lordships' House.

In the event of a Supreme Court being created, I can see no reason why that membership should be continued. As the noble and learned Lord, Lord Bingham of Cornhill, said, the Law Lords arc judges and not legislators. While they remain Members of your Lordships' House there is indeed a case for saying that they should be entitled to speak—although I have much more difficulty in saying that they should have any right to vote—but, once they have moved out of this building, different considerations apply. I do not believe that the historic link should be continued.

I think there is a case—I am not saying necessarily that I agree with it—for saying that a small number of senior members of the judiciary should be Members of your Lordships' House in order to represent the views of the judiciary. They would be the Lord Chief Justice, the President of the Supreme Court, the Lord President, the Lord Chief Justice of Northern Ireland and possibly the Master of the Rolls.

There can be no justification for saying that all 12 members—justices of the Supreme Court—should, ex officio, become Members of your Lordships' House. That number of judges cannot be justified on the basis that they represent the opinions of the judiciary. I can see no justification for saying that they should have the right, speaking as individuals, to express their views on the political issues that come before your Lordships' House. Therefore, I feel unable to support the amendments.

Lord Carlisle of Bucklow

In some ways, this debate is out of time in the Bill. As I understand it, we have not yet voted or decided on whether we are to have a Supreme Court. If, as I hope, the decision is taken not to proceed with a Supreme Court and to continue with the Judicial Committee of the House of Lords, then presumably the present Law Lords will continue, and any new appointment will be a further Law Lord.

As I understand the Government's position, should they win the vote and set up a Supreme Court, those who are existing Law Lords and become members of the Supreme Court will of course continue to be Lords, whereas it is not intended that any new appointment to the Supreme Court will be made a Lord. Would that not lead to the position that the noble and learned Lord, Lord Bingham, described as the worst of all, with a Supreme Court made up of half or more Members of your Lordships' House, who are existing Lords, and the new members of the Supreme Court not being made Members of the House of Lords? As I understood his evidence, the noble and learned Lord was very critical of the suggestion and said that anything that led to such a result must be wrong.

The Government have said at some stage that members of the Supreme Court could be made Lords when they had completed their period of service on the Supreme Court. I am not sure whether that is not worse. Do you make every single one of them automatically a Law Lord, or do you pick and choose those whom you make Law Lords at the end of their period of service on the Supreme Court? I do not believe that that would be at all suitable.

Several of those existing Law Lords who gave evidence explained the great advantage that they got out of membership of this House. As members of the Committee, we all accepted the advantage to the House of their membership and chairmanship of Select Committees and matters of that kind.

I hope, therefore, that this matter will be looked at again, even were the Government to win on the issue of the Supreme Court, and that the principle of the amendment will be supported.

The Earl of Onslow

I should like to reminisce, if I may. Many years ago, I sat on Sub-Committee E, the law committee of the European Select Committee. I cannot remember anything as stimulating or as exciting as being chaired by the noble and learned Lord, Lord Scarman. He was incredibly complimentary to me. He said that not only did he like having somebody on his committee who was learned in the law—which obviously he and most of the others were—he liked having somebody who was not learned in the law because they brought a fresh mind to matters. I would suggest to your Lordships that to have Sub-Committee E with only me on it would be stupid and to have Sub-Committee E with only the noble and learned Lord, Lord Scarman, on it would lack another dimension. I would suggest to your Lordships that we should really keep the Law Lords doing those sorts of jobs because of the contribution that they make to the House and the mixture they bring to it.

4.45 p.m.

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

I welcome the suggestion of the noble Viscount, Lord Bledisloe, that we deal with the group of amendments which contains Amendment No. 88CQA with the group which contains Amendment No. 88CR. I took the fact that the noble and learned Lord, Lord Lloyd, spoke on the group containing Amendments Nos. 88CR, 88CS and 88CT as indicative of his acquiescence in that approach.

Amendment No. 88CQA would amend Clause 101 to require Supreme Court judges and members of the supplementary panel to be Members of the House of Lords if they are not Members already and to allow them to remain Members notwithstanding resignation or retirement from the court or panel. Amendment No. 88CTA would lift from members of the supplementary panel only the bar on sitting and voting in the House or on its committees or joint committees.

The debate has revealed two separate strands of argument in support of Supreme Court members being Members of the House of Lords as well. The first strand, which was touched on by the noble Lord, Lord Kingsland, and developed by the noble Lord, Lord Carlisle, related to the issue of inequality between those who are already Members of the House of Lords and those who, if we had a Supreme Court, would not be made Members of the House of Lords, but simply Justices of the Supreme Court. The first strand of argument proceeds from the view that there should not be a situation where some of the judges are Peers and some are not. I assume that it is also said that there should not be any similar difference between permanent judges and members of the supplementary panel.

Oddly, that argument does not appear to be extended to existing members of the highest judicial offices below the Supreme Court; that is, Master of the Rolls, Lord Chief Justice and Lord President. The amendments would leave them eligible under Clause 32 to act as acting judges in the Supreme Court regardless of whether they were Members of the House of Lords.

The second strand of argument is that irrespective of inequality, but as a matter of principle, members of the final Court of Appeal should be Members of the House of Lords because of the huge contribution that Members of the final Court of Appeal have made as legislative Members of the House of Lords. Those are the two arguments that are primarily advanced. I understand them and I accept the great contribution that has been made by Members of the House of Lords who are judicial members to legislative business. In the same way, I imagine that the Cabinet Secretary, if he were a Member of the House of Lords, would make an equally good contribution.

However, the amendments are contrary to one of the key principles behind our proposals; that is, the functional separation of the judiciary from the legislature. As I stated on 11 October, it is the Government's conviction that the Supreme Court must be, and must be demonstrably, independent of Parliament's Upper Chamber. That cannot be achieved—indeed, we would be moving in precisely the opposite direction—if all of the Members of the court must be Members of the House of Lords, although the first Justices of the Supreme Court, being the current Lords of Appeal, will retain their peerages.

The fact that they retain their peerages during a transitionary period does not obviate the need for this House to address the following principle: if we set up a Supreme Court, as we should and will press to set up, with the purpose of separating it from the legislature, we would be wrong to make the members of that Supreme Court Members of this House.

Lord Renton

Under our constitution, the final Court of Appeal has for years and generations consisted of Members of the House of Lords. I have never heard it suggested that their decisions have been politically influenced or influenced merely by their membership of this House. Is the noble and learned Lord suggesting that that has happened?

Lord Falconer of Thoroton

No, I am not suggesting that, but I do suggest that the time has come for the final court of appeal in this country to be separate, and identifiably separate, from the legislature. The court system and the vindication of rights should be clearly separate from the activities of the legislature, both because of the perception and because being separate creates a different atmosphere in which a court sits.

I defer to many Law Lords, but many noble Lords will have read the comments of the noble and learned Baroness, Lady Hale, who describes the House of Lords as an "intensely political" place. I deduce that the atmosphere in the House of Lords is very different from that which prevails in the Royal Courts of Justice. I would think it extremely unlikely that that atmosphere does not have an effect on the approach. I make it absolutely clear, however, that I fully accept every word that the noble Lord, Lord Renton, said and that there is no political bias in the decisions that have been made. But if it is a right approach that there should be separation, and a functional separation, between the legislative chamber and the final court of appeal, it would be wrong, and wrong in principle, to make Supreme Court justices Members of this House.

As for the transitional position, if Parliament decides that we should make the move to have a Supreme Court, there will inevitably be a transitonary period. But the direction of travel in that transitonary period should be in favour of moving away from a connection, rather than continuing it.

Those remarks were primarily addressed to the issue of full-time members of the Supreme Court. The issue of the supplementary panellists is a different one. Once those supplementary panellists are retired, like the noble and learned Lord, Lord Lloyd, but are still from time to time willing to sit, and in fact sitting, as members of the final court of appeal, should that activity bar them—assuming that we have a Supreme Court—from participating in the House of Lords? That is an issue that we need to reflect on. But I have absolutely no doubt that, if we are setting up a Supreme Court, we must say "no" to the members of that court being Members of this House.

In relation to the points made by the noble Viscount, Lord Bledisloe, Amendment No. 88CR adds Lords of Appeal in Ordinary and those qualified to sit as Lords of Appeal to those who are not eligible to vote in the House of Lords or in any parliamentary committees. Amendment No. 88CS removes the words "sitting or" from subsection (2) of Clause 101, which presently bars holders of certain judicial offices from sitting and voting. I understand the effect that the noble Viscount wishes to achieve is that that would allow Lords of Appeal in Ordinary and all other Peers who are holders of full-time judicial office to sit and indeed speak and participate in debates in this House as long as they do not vote.

I do not need to deal with Amendment No. 88CT, for reasons that the noble and learned Lord, Lord Lloyd, gave. The intention is, plainly, only to prevent those people from voting, but to let them participate. I assume, again, that we are dealing with full-time members of the Supreme Court, and that in the transitional period they would be Members of the House of Lords who have moved to the Supreme Court or people appointed Supreme Court judges. In relation to those newly appointed, if the intention is to make the separation, it would be wrong to let them participate.

We can all identify people of great standing in our society who would make a very valuable contribution to this House. But if the principle is accepted that the Supreme Court is separate from this House, it is wrong in principle that people such as those sitting in the final court of appeal should be able to bring their experience here until after they have sat as Supreme Court justices. That is because, again, the principle underlying the proposal for the Supreme Court is that the final court should be separate from the legislature. For that reason, with respect, I reject the proposal made by the noble Viscount in relation to full-time Supreme Court justices, including those who are Lords of Appeal in Ordinary when the transition occurs.

We need to reflect on the position of supplementary panellists. The issue in that case is one of proportionality: whether a complete or partial bar is necessary. In those circumstances, I invite the noble Lord to withdraw his amendment.

Viscount Bledisloe

First, I apologise to the noble and learned Lord, Lord Lloyd, for hijacking his amendment. In the heat of having done about four previously I had forgotten that that one was in his name and not in mine.

Secondly, I am sorry that, just as I anticipated, when the noble and learned Lord the Lord Chancellor comes to the Dispatch Box we are treated to just as much charm but much less satisfactory answers. Perhaps in future he might entrench himself, and the noble Baroness, Lady Ashton of Upholland, can continue to satisfy us as well as charm us.

Lord Kingsland

I shall not say anything about the noble and learned Lord's charm.

I will thank the noble and learned Lord the Lord Chancellor for a very full and, if I may say so, straight reply to my amendment. The noble and learned Lord has made his position perfectly clear. I am grateful to him for that. It is a matter to which I expect we will return on Report. Meanwhile I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 88CR to 88CU not moved.]

Clause 101 agreed to.

Clause 102 agreed to.

Schedule 15 [Repeals and revocations]:

Baroness Ashton of Upholland moved Amendment No. 88CV:

Page 221, line 34, at end insert—

"For section 18 substitute—


(1) Her Majesty may, under her sign manual, appoint any person to be the registrar of the said privy council, as regards the purposes of this Act, and direct what duties shall be performed by the registrar.

(2) A recommendation to Her Majesty to exercise any power under subsection (1) may be made only after consultation with the President of the Supreme Court of the United Kingdom.""

The noble Baroness said: This amendment provides for the sovereign to appoint a registrar only after consultation with the President of the Supreme Court. As the Committee will be fully aware, the registrar is in effect the Clerk of the Judicial Committee and is empowered to examine witnesses, take affidavits and depositions in matters coming before the Privy Council and the Judicial Committee.

Currently the sovereign appoints the registrar by convention after receiving advice from the President of the Privy Council. These new arrangements provide for formal judicial input into the decision to appoint the registrar.

These provisions reflect those already in Schedule 15 of the Bill which revise the arrangements for the appointment of an acting registrar to include consultation with the President of the Supreme Court. I beg to move.

On Question, amendment agreed to.

[Amendment No. 88CW not moved.]

Baroness Ashton of Upholland moved Amendment No. 89:

Page 222, line 14, at end insert—

"Judicial Committee Act 1881 (c. 3)

The Judicial Committee Act 1881 ceases to have effect."

The noble Baroness said: With Amendment No. 89 I should like to speak also to Amendments Nos. 93 and 97. As the Committee will appreciate, these are tidying up amendments in relation to repeals relating to the Judicial Committee of the Privy Council. They make no substantive change.

Amendment No. 89 repeals the Judicial Committee Act 1881 which provided for Lord Justices of Appeal who were also members of the Privy Council to sit on the Judicial Committee. This provision has, in effect, been overtaken by the changes in paragraph 2 to Schedule 15 of the Bill which provides for membership of the Judicial Committee of the Privy Council to include those Privy Counsellors who have held high judicial office (as defined in Part 2 of the Bill), so making the Judicial Committee Act 1881 redundant.

Amendments Nos. 93 and 97 are technical in nature, setting out in one group all of those repeals arising from Schedule 15. I beg to move.

On Question, amendment agreed to.

Schedule 15, as amended, agreed to.

Clause 103 agreed to.

5 p.m.

Clause 104 [Interpretation]:

Lord Kingsland moved Amendment No. 89A:

Page 40, line 32, leave out "Secretary of State for Constitutional Affairs" and insert "Lord High Chancellor of Great Britain"

The noble Lord said: I beg to move.

Baroness Ashton of Upholland

I shall be brief. I agree entirely with the principle of the amendment. However, we need the wording to be consistent with that of Clause 1(4); that is, Clause 104 should refer to the Lord Chancellor rather than the Lord High Chancellor of Great Britain. Schedule 1 to the Interpretation Act 1978 already provides that Lord Chancellor means Lord High Chancellor of Great Britain, so it is unnecessary to use his full title in defining "the Minister". For those reasons, I am prepared to accept the principle of the amendment, and I ask that it be withdrawn on the undertaking that I shall table an appropriate amendment on Report.

Lord Campbell of Alloway

Is that an undertaking that the Government will introduce the amendment to Clause 1(4) of their own volition?

Baroness Ashton of Upholland

It is. I was merely indicating how I would do so.

Lord Kingsland

I am most grateful for the noble Baroness's correction. In those circumstances, I am content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland moved Amendment No. 90:

Page 40, line 32, at end insert— "Minister of the Crown" has the same meaning as in the Ministers of the Crown Act 1975 (c. 26).

On Question, amendment agreed to.

Clause 104, as amended, agreed to.

Clause 105 agreed to.

Clause 106 [Orders and regulations]:

Baroness Ashton of Upholland moved Amendment No. 91: Page 41, line 26, leave out "the Minister" and insert "a Minister of the Crown

On Question, amendment agreed to.

[Amendment No. 91A not moved.]

Clause 106, as amended, agreed to.

Clause 107 agreed to.

Schedule 16 [Minor and consequential amendments]:

[Amendment No. 91B not moved.]

Baroness Ashton of Upholland moved Amendments Nos. 91C to 91G:

Page 224, line 4, at end insert— "Ecclesiastical Jurisdiction Measure 1963 (No. 1)

(1) The Ecclesiastical Jurisdiction Measure 1963 is amended as follows.

(2) In section 11 (review of commissions of convocation or Court of Ecclesiastical Causes Reserved) for "Lords of Appeal (within the meaning of the Appellate Jurisdiction Act 1876)" substitute "judges of the Supreme Court, or members of the supplementary panel under section 33 of the Constitutional Reform Act 2004,".

(3) In section 66(1) (interpretation) for the definition of "high judicial office" substitute— "high judicial office" means such office within the meaning of Part 2 of the Constitutional Reform Act 2004 or membership of the Judicial Committee of the Privy Council;".

Page 224, line 15, leave out sub-paragraph (3) and insert—

"() In section 12 (retirement of higher judiciary in event of incapacity)—

  1. (a) in subsection (1)—
    1. (i)omit "as Lord of Appeal in Ordinary, or";
    2. (ii) for "subsections (2) to (4)" substitute "subsection (4)";
  2. (b) omit subsection (2)."

Page 225, line 13, at end insert—

"Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No. 3)

In the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, in section 31(1) (interpretation) for the definition of "high judicial office" substitute— "high judicial office" means such office within the meaning of Part 2 of the Constitutional Reform Act 2004 or membership of the Judicial Committee of the Privy Council;".

Page 226, line 3, leave out paragraph (c) and insert— () paragraphs 1(1)(a) and 2(2) of Schedule 3 (the Tribunal),

Page 226, line 37, at end insert— "Clergy Discipline Measure 2003 (No. 3)

In the Clergy Discipline Measure 2003, in section 43(1) (interpretation) for the definition of "high judicial office" substitute— "high judicial office" means such office within the meaning of Part 2 of the Constitutional Reform Act 2004 or membership of the Judicial Committee of the Privy Council;".

On Question, amendments agreed to.

Schedule 16, as amended, agreed to.

Clause 108 agreed to.

Schedule 17 [Repeals and revocations]:

Baroness Ashton of Upholland moved Amendment No. 92: Page 227, line 17, at end insert—

"Courts Act 1971 (c. 23) In section 24(1)—
(a) ", he may";
(b) in paragraph (a), "or" in the last place where it occurs.
Child Support Act 1991 (c. 48) In section 53, "the Lord Chancellor or"."

The noble Baroness said: These are minor technical amendments relating to Schedule 17, which lists repeals and revocations of statutory provisions made in other parts of the Bill. Amendment No. 92 is a technical amendment to add references to Section 24(1) of the Courts Act 1971 and Section 53 of the Child Support Act 1991 to part 1 of Schedule 17.

Section 24(1) of the Courts Act 1971 is amended by paragraph 25 of part 2 of Schedule 4, which deals with appointments to be made by the Minister. That paragraph omits some of the existing words of Section 24(1), and a reference therefore needs to be added to the list of repeals and revocations in Schedule 17. Section 53 of the Child Support Act 1991 is amended by paragraph 25 of Schedule 5, which deals with other functions of the Lord Chancellor. Again, this is a consequential amendment resulting from that paragraph. As noble Lords are aware, on 13 July the House voted that Schedule 5 should not be agreed to. However, to preserve that part of the amendment which relates to the Courts Act, I would ask that this amendment be accepted as a whole, subject to my undertaking to correct the Child Support Act reference at Report stage.

Amendments Nos. 95 and 96 remove Sections 2(1)(a) and 2A(2)(c) of the Civil Procedure Act 1997 and Section 71(2) of the Courts Act 2003 from the list of repeals and revocations in Part 2 of Schedule 17. These provisions are not being repealed but are being either amended or substituted by paragraphs 327, 328 and 434(3) of Schedule 1 respectively. The references, therefore, need to be removed from Schedule 17. I beg to move.

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendment No. 93:

Page 227, leave out lines 36 and 37.

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendment No. 94:

Page 228, leave out lines 2 and 3.

The noble Baroness said: The amendment is technical and corrects an instance of duplication. Schedule 17 provides for repeals in other legislation consequential on substantive clauses in the Bill. The amendment deletes from Part 1 of the schedule a repeal of Part 1 of the Appellate Jurisdiction Act 1947, which is superfluous, because the 1947 Act, as a whole, is repealed by Part 7 of the schedule. The amendment is minor and technical, and I trust that the Committee will have no difficulty in accepting it. I beg to move.

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendments Nos. 95 and 96:

Page 230, column 2, leave out lines 2 and 3.

Page 230, column 2, leave out line 18.

On Question, amendments agreed to.

[Amendment No. 96A not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 96B to 96D:

Page 232, column 2, leave out line 32 and insert—

"In section 12, in subsection (1) "as Lord of Appeal in Ordinary, or" and subsection (2)."

Page 232, line 34, column 2, at end insert—

"In Schedule 5, in Part 2 the entry relating to the Appellate Jurisdiction Act 1876."

Page 233, line 18, column 2 at beginning insert—

"In section 36(6)(a) "(other than a Lord of Appeal in Ordinary)"."

On Question, amendments agreed to.

Lord Falconer of Thoroton moved Amendment No. 97:

Page 233, line 26, at end insert—

Forward to