Constitutional Reform Bill [H.L.] (Hansard, 11 October 2004)

HL Deb 11 October 2004 vol 665 cc12-76 12

§ 3.15 p.m.

§ The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)
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 again resolve itself into Committee (on Recommitment).—(Lord Falconer of Thoroton.)

§ On Question, Motion agreed to.

§ House in Committee (on Recommitment) accordingly.

§ [The CHAIRMAN OF COMMITTEES in the Chair.]

§ Schedule 2 [Powers to make rules]:

§ Lord Falconer of Thoroton moved Amendment No. 76A: Page 140, line 11, leave out from "subsection" to end of line 13 and insert "(6A)(a) for "by the Lord Chancellor" substitute "in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2004".

§ The noble and learned Lord said: We have had a long break since 13 July and it will be helpful to remind the Committee of the decisions taken on that day and their consequences. On that day, the Committee made it clear that it wished to retain the office and title of Lord Chancellor; the Government accept that that is the will of the House and will bring forward amendments to give effect to that decision. I made that clear in July. We hope to bring forward those amendments on Report.

§ In line with that, we will ensure that the Bill is amended as follows: the Lord Chancellor will perform those functions that the Bill in its present form currently allocates to the Secretary of State for Constitutional Affairs; the Great Seal will remain with the Lord Chancellor; the Lord Chancellor will retain the current pension and salary arrangements of his office. In bringing forward such amendments our purpose is to ensure that the Bill gives effect to the will of this place. But, of course, that does not preclude the Government from seeking to restore the position of the Secretary of State for Constitutional Affairs in another place.

§ In any event, the decision made on 13 July does not extend to whether the Bill should prescribe that the Lord Chancellor should be a Peer or a lawyer, nor does it extend to the kind of oath that the Lord Chancellor should take. These issues are still open for debate and we shall shortly turn to them. I shall at that time make clear why the Government will be resisting those amendments.

§ In moving Amendment No. 76A, I shall speak also to Amendment No. 77A. These are two very technical amendments needed to Part 2 of Schedule 2 because of changes brought into effect by the Courts Act 2003 (Consequential Amendments) Order 2004. As the name suggests, this statutory instrument made amendments to a number of statutes that were consequential on the passing of the Courts Act last year.

§ Paragraph 7 of Schedule 2 to the Bill currently provides for rules made by the Lord Chancellor under Section 2(6) of the Administration of Justice (Miscellaneous Provisions) Act 1933 to be made, in future, in accordance with Part 2 of Schedule 2 to the Bill, the procedure for making rules where a rule committee does not exist. The statutory instrument removes the existing reference to the "Lord Chancellor" making rules under Section 2(6) and, therefore, there is no longer any need for that provision to be dealt with in the Bill.

§ However, the statutory instrument also inserts a new subsection 2(6A) into the Act, which refers to the Lord Chancellor making rules. It is necessary to amend this new reference to provide for rules made under new subsection 2(6A) to be made in accordance with the procedure in Part 2 of Schedule 2 to the Bill. The amendment achieves this by substituting a new paragraph 7.

§ The effect of Amendment No. 77A is to remove paragraph 9(2) of Schedule 2. Paragraph 9(1) of the schedule amends Section 66 of the Adoption Act 1976. Section 109 of the Courts Act 2003 contains a power to amend or repeal the same section of the Adoption Act. Accordingly, paragraph 9(2) provides that the amending power in Section 109 of the Courts Act 2003 may be exercised in relation to Section 66 as that section is amended by paragraph 9(1).

§ The Courts Act 2003 (Consequential Amendments) Order 2004 was made under Section 109 of the Courts Act and amended Section 66 of the Adoption Act. Because the Section 109 power has now been used to amend Section 66 and because it will not be used again to amend that section, paragraph 9(2) of Schedule 2 is no longer needed.

§ I apologise for beginning with such an electrically exciting amendment. I am sure that, as the afternoon wears on, things will get more exciting. I beg to move.

§ Lord Kingsland
I am afraid that I cannot match the highly charged opening of the noble and learned Lord. I am grateful to him for agreeing to meet the undertakings he gave at the first Committee stage on 13 July. He said that the retention of the office of Lord Chancellor did not necessarily imply that the existing characteristics of that office—namely, the fact that the noble and learned Lord the Lord Chancellor is a highly qualified lawyer and also a Peer of the Realm—would be retained. I shall submit later, when we come to these matters, that if your Lordships reread in Hansard the interventions made by many of your Lordships, it will be absolutely clear that the basis on which the vote was taken was that the Lord Chancellor would be retained with all the characteristics that go with the conventions of that office.

§ On Question, amendment agreed to.

§ Lord Falconer of Thoroton moved Amendment No. 77:

§ Page 140, line 13, at end insert—

§ "Reserve and Auxiliary Forces (Protection of Civil Interests)

Act 1951 (c. 65)

§ ( ) Section 5 of the Reserve and Auxiliary Forces (Protection of Civilian Interests) Act 1951 (appropriate courts and procedure) is amended as follows.

§ ( ) In subsection (2) for "The Lord Chancellor may also make rules" substitute "Rules may be made in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2004".

§ ( ) In subsections (3) to (5) for "Rules so made" substitute "Rules under subsection (2)"."

§ The noble and learned Lord said: I have spoken to this amendment. I beg to move.

§ On Question, amendment agreed to.

§ Lord Falconer of Thoroton moved Amendment No. 77A:

§ Page 140, line 27, leave out sub-paragraph (2).

§ The noble and learned Lord said: I spoke to Amendment No. 77 on 13 July; I have just spoken to Amendment No. 77A. I apologise for that error. I beg to move.

§ On Question, amendment agreed to.

§ Schedule 2, as amended, agreed to.

§ Clause 7 agreed to.

§ Schedule 3 [Powers to give directions]:

§ Lord Falconer of Thoroton moved Amendment No. 78:

§ Page 144, line 22, leave out paragraph 8.

§ The noble and learned Lord said: I spoke to Amendment No. 78 on 13 July. I beg to move.

§ On Question, amendment agreed to.

§ Schedule 3, as amended, agreed to.

§ Clause 8 [Transfer of appointment functions]:

§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland) moved Amendment No. 79: Page 3, line 37, leave out from "or" to end of line 3 on page 4 and insert "the Schedule contains amendments that relate to other appointment functions of the Lord Chancellor.

§ The noble Baroness said: Amendment No. 79 deletes and replaces most of Clause 8(2), which introduces Part 2 of Schedule 4. This technical amendment is necessary, in the light of other amendments to part 2 of Schedule 4, to ensure that the clause correctly describes the contents of that part.

§ The amendments to Part 2 of Schedule 4, which I will outline in a moment, will introduce into that part appointments by the Lord Chief Justice. Such appointments are not reflected in the current wording of Clause 8(2), which describes Part 2 of Schedule 4 as containing only appointments by the Minister, and related modifications. The amendment will correct this.

§ By way of completeness I would note that Amendment No. 79 also has the effect of removing a reference to the Secretary of State from Clause 8(2), thereby bringing the clause into line with the House's decision on 13 July. This has implications for Amendment No. 80, tabled by the noble Viscount, Lord Bledisloe, the noble Lord, Lord Windlesham and the noble and learned Lord, Lord Ackner, which I will speak to once it has been introduced by their Lordships.

§ Amendments Nos. 81, 82 and 83 in this group all refer to the Secretary of State for Constitutional Affairs rather than the Lord Chancellor. As noble Lords are aware, we will be bringing forward amendments on Report, as my noble and learned friend has said, to bring the Bill into line with the views of the House expressed earlier in this Committee. I would therefore ask that these amendments be accepted as they are, with the necessary changes to be made on Report.

§ Amendment No. 81 is necessary as it makes provision for a change in the appointment of deputy circuit judges. These are currently appointed by the Lord Chancellor, but since those appointed are all retiring circuit judges who are willing and able to continue sitting part-time, the appointment is more in the nature of an authorisation to continue to sit, up to a maximum possible age of 75. We have agreed therefore that in future it would be more appropriate for these appointments to be made by the Lord Chief Justice, with the agreement of the Minister, as this is really an issue of deployment rather than one of appointment, and it would therefore not be appropriate to involve the Judicial Appointments Commission.

§ The amendment also deals with the Lord Chancellor's functions relating to the appointment of assistant recorders. In future assistant recorders will be selected by the Judicial Appointments Commission and appointed by the Minister.

§ Amendment No. 82 deals with certain of the Lord Chancellor's functions contained in model rules set out in paragraph 6 of the schedule to the Deregulation (Model Appeal Provisions) Order 1996. These are generic rules made under the Deregulation and Contracting Out Act 1994, and are intended to be available for incorporation (with or without modification) into legislation that provides for appeals against certain kinds of regulatory enforcement action. The object is to make the procedures in such appeals less burdensome. The effect of the amendment is that the model rules (unless modified by the legislation that adopts them) will in future require any appointment to the panel of chairmen for England and Wales (through which appeal tribunal members may be selected) to be made by the Minister. The basis of selection of the appeal tribunal members would fall to be determined by the legislation that incorporates the rules.

§ Amendment No. 83 deals with the Lord Chancellor's functions: first, under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, for appointing the president, panel members and regional chairmen of the employment tribunals; and under the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001 for appointing adjudicators. These appointments will be made by the Minister on the basis of selection by the Judicial Appointments Commission. I beg to move.

§ The Chairman of Committees (Lord Brabazon of Tara)
I should point out that if this amendment is agreed to, I will not be able to call Amendment No. 80.

Lord Renton
While the noble Baroness, Lady Ashton, has moved this amendment, perhaps I may ask the Lord Chancellor—as he is with us—why the clauses of this Bill occupy only 42 pages and the amendments and schedules occupy 190 pages. Many of those amendments deal with matters of substance, important among which are the powers of the Lord Chancellor. Would it not have been much better if the important changes had all been contained in clauses, rather than in the schedules?

§ Lord Falconer of Thoroton
I am unsure whether the question is directed to the number of amendments or 17 the length of the schedules. If it was put as a question in relation to amendments, although I am certainly responsible for the government amendments, I think it a little unfair to hold me responsible for everybody else's amendments. The number of pages of amendments seems to me a joint responsibility both of the Government and the amenders. I do not think it a fair point to attack the Government for the number of pages of amendments.
If in fact the question was based on there being too much in the schedules and too little in the Bill, I disagree with that. I think the Bill enunciates a number of important constitutional principles. The consequence oft hose constitutional principles is that quite a number of other Bills have to be amended or changed. For example, in relation to the matters that my noble friend Lady Ashton dealt with in the amendments to which she spoke, I think it much more sensible that basic constitutional changes should be identified in the heart of the Bill and that the consequences, which are important details but details none the less, should be dealt with in the schedule. So while I understand the point, I think there is a logic and a sense behind the way that it has been done.

§ Lord Windlesham
Unusually, bearing in mind the care taken by officials, a printing error in the heading to Amendment No. 80 in the revised third Marshalled List of amendments prints my name not once but twice. I would like to assure the Committee that this does not mean I intend to make two speeches with somebody else intervening.
Amendment No. 80 proposes changes in the appointments procedure outlined in the Bill for certain offices in the future. The Bill provides for Her Majesty the Queen, rather than the Lord Chancellor as at present, to make the appointments. The draftsman was presumably working on the assumption that the office of Lord Chancellor would be abolished, as indeed was the Government's intention. But now that the Committee has decided otherwise, the provision needs to be revised. One solution would be to leave out Clause 8(2) and part 2 of Schedule 4, but it seems to be convenient to have a schedule, amended as appropriate, to serve as a complete guide to who makes the appointments to which offices.
To start the ball rolling, the amendment merely deletes the superfluous conditions in Clause 8(2) that reflect the erroneous assumption that the office of Lord Chancellor would be abolished.

§ 3.30 p.m.

§ Lord Campbell of Alloway
I would like to say a few words in support of Amendment No. 80.I speak only to that amendment. We have reached a rather curious position, and I am not quite sure where we stand. The revised third Marshalled List heralds the intention to widen the crack in the mould of the Bill implemented by Amendment No. 1. Under that amendment, the office of Lord Chancellor was retained, at all events for the purposes of Clause 1. But to what extent did it retain it for other purposes? I am uncertain about that.
18 At the moment, I assume that certain other purposes such as the constitutional role of the Lord Chancellor—I would go to the stake for that, although not for certain other matters—are not included within the concept of the retention for the purposes of Clause 1. I include the Speakership—although I would not go to the stake on that—control of the judiciary and other functions. Sooner or later, of course, we shall know where we stand. However, my noble friend Lord Kingsland said in moving Amendment No. 1—it was a brilliant speech—that it was within the structure of the Bill and not intended to be legally enforceable. The functions for the Lord Chancellor were new; they were not a copy of old, extant functions. I am grateful to him; that is what I understood.
My noble friend Lord Kingsland also said—I shall not go into detail—that the Lord Chancellor was a much better qualified person to deal with a matter under Clause 1 than a Minister of State, who would not be qualified. That argument runs 100 per cent in support of Amendment No. 80. Part 2 of Schedule 4—I have pottered through it twice—appears to deal with quasi-judicial appointments. What my noble friend Lord Kingsland said about Clause 1 applies equally, if not more so, to this provision, which is also—to use his words—within the structure of the Bill. The provisions are proposed to be transferred by Clause 8.
With that, one comes to the rightly difficult question again, because Clause 8 is wholly consequential on the abolition of the office of the Lord Chancellor under Part 1—on stripping him naked of all his powers and functions, on making him become what the noble Lord, Lord Richard, so elegantly and amusingly called a name, but a name and an empty shell. How could anyone with a name and an empty shell discharge any functions at all? That is to turn the whole argument on its head, however. As matters stand, Clause 8 is consequential on that concept, which has already started to disintegrate due to Amendment No. 1. It will further disintegrate as the debate continues, as can be seen from looking at the Marshalled List.
No reasoned justification has been advanced for the transfer. No one has suggested a want of due administration by the Lord Chancellor. It is merely consequential on a concept to which the Committee has already objected. Until debate on other amendments to Part 1 has been concluded, we really cannot know the extant functions to be retained, which new functions are to be conferred by amendments, or where we stand in particular in relation to what concerns me, which is the constitutional role of the Lord Chancellor.
Amendment No. 80 raises none of those problems. It is clear, wholly effective and complements the new function introduced under Clause 1. What I have said applies to Clause 9. I gave early notice of my intention to oppose the Question that Clause 9 stand part of the Bill and, with leave, shall not presume to speak to that or to the amendment again.

§ The Earl of Onslow
I have one very small point. The Committee voted for the Lord Chancellor to be retained in all his glory because he had a power in Cabinet devoid of ambition to be Prime Minister, so he 19 could say things without the Prime Minister feeling that he was being stabbed in the back. What if we take away his status and influence, put him to the bottom of the Cabinet list and cut his salary? That has happened to the noble and learned Lord the Lord Chancellor. I wish that he had the salary of his predecessor, not because he needs it, but because it shows the status that he should hold in the Cabinet and the influence that he should have.
That is the important thing about maintaining the Lord Chancellor, and he therefore has to have proper things to do. In the immortal words of the present First Lord of the Treasury, he cannot just be a man in a wig and tights.

Lord Renton
I realise that I have spoken already on a separate point on the group, but I feel that Amendment No. 80 is of great importance. In the fundamental provisions of Clause 8, Part 2 of Schedule 4 applies not merely to the Lord Chancellor, who will have the responsibilities, but to a person called simply "the Minister". We have about a score of Ministers. We are not told which one this is. Clause 10(6) states, So far as may be necessary in consequence of any of those functions becoming exercisable by Commissioners of the Great Seal, an enactment or instrument has effect as if references to the Minister to which there has been earlier reference, but of which there is no definition, were references to the Commissioners". That is a confusing situation and constitutionally unacceptable because, as I have said, we have so many Ministers and we do not know which one this is.

§ Lord Falconer of Thoroton
This amendment has raised a number of issues of principle which I should deal with. The rightly twice named noble Lord, Lord Windlesham, draws attention to one example where instead of the Lord Chancellor being referred to in the Bill, it is "the Minister", to which the noble Lord, Lord Renton, has referred.
As I hope I made clear in my opening remarks, in the light of the decision made by the House on 13 July, it is necessary to change all the references to "Minister" to "Lord Chancellor" because that is what the House wished. No doubt the noble Lord, Lord Windlesham, spotted that Amendment No. 79 would obviate the need to do it in that particular case because there has been a change in the approach. But the principle that he enunciates is right: where "the Minister" is referred to, the effect of the decision of the House is now that it should be "the Lord Chancellor" because that is what the House wants. It wants the person who does the job not just to be called "the Lord Chancellor", but to hold that office. As the noble Earl, Lord Onslow, has said, it has to be someone of particular status, which the office of Lord Chancellor carries. I am not saying that I necessarily agree, but that is unquestionably what the House decided.
The noble Lord, Lord Campbell of Alloway, asked, in an entirely appropriately bewildered tone, about the changes to the office which have occurred. It is 20 absolutely plain that the House wanted the Lord Chancellor to be the person who defended the independence of the judiciary and the rule of law, as his office has done for many centuries. I fully accept that. But I am proceeding as well on the basis that the House wished the office of Lord Chancellor to be reformed in four particular respects. First, he should no longer sit as a judge; secondly, he should no longer be the head of the judiciary; thirdly, his relationship with the judiciary should be governed in accordance broadly with the terms of the concordat and, fourthly, that appointments should be made by the Judicial Appointments Commission.
There could be issues about the detail of my third and fourth points, but I am proceeding on the basis that while the office is to be retained, those four changes are to be made to the office. That is the approach I am taking as regards giving instructions to the Bill team in the preparation of the amendments for Report. That does not answer every question that the noble Lord, Lord Campbell of Alloway, legitimately raised, but it sets out the approach. I believe that it makes it possible for the House to understand the basis on which I am proceeding.
There is a disagreement between myself and the noble Lord, Lord Kingsland, whether the effect of the office being maintained, which I accept is the basis of the debate here, requires that office holder to be a Peer and a lawyer. I submit that it does not. But that is not concerned with what the officer holder has to do. I fully accept that the office holder has to protect the rule of law and the independence of the judiciary. Indeed, I accept that the office holder has to do that whatever he is called and whatever his office. So the dispute between us is not about whether he does that or whether he is required to be a lawyer and a Peer. I believe that the real issue we should be addressing is whether that is the best way to protect those particular values that we all wish to see protected.

§ Lord Campbell of Alloway
I am very much obliged. Would the noble and learned Lord allow me—

§ 3.45 p.m.

Lord Renton
Will the noble and learned Lord answer the point I made about the vague reference to "the Minister"? Which Minister? Or is another kind of Minister to be given this responsibility?

§ Lord Falconer of Thoroton
The provisions of the Act make it clear that the responsibilities given by the Act cannot be transferred to any other Minister other than the Secretary of State for Constitutional Affairs. I am trying to find the relevant provision. My noble friend says that Clause 104 applies. I am grateful to my noble friend Lady Ashton. It shows how quickly she has picked up her brief! Clause 104 states that, 'the Minister' means the Secretary of State for Constitutional Affairs". I believe that that answers the question from the noble Lord, Lord Renton. Clause 103 makes it clear that the functions bestowed by this Act on "the Minister" cannot be transferred to anybody else. So we have an 21 unusual situation where the effect is that this Act gives the Minister the powers, but unlike any other Secretary of State, they cannot then be juggled around between Secretaries of State.

§ Lord Campbell of Alloway
I am grateful to the noble and learned Lord. I rise to clarify the position. I accept the four points made by the noble and learned Lord. It is not my contention that those functions should be treated as extant functions. I hope that I made it clear that I was concerned with the constitutional role that the Minister incurred.

§ Lord Peyton of Yeovil
If the intention is what the noble and learned Lord has said, why do not the Government make it clear instead of using "Ministers", which is very vague? Not everyone is in love with a quantity of Ministers swarming over every problem. If only one Minister is involved, why does not the Bill make it clear beyond peradventure?

§ Lord Falconer of Thoroton
That is what the draftsmen of the Bill have sought to do.

§ Lord Lloyd of Berwick
I have got into a bit of a muddle because of the reference to Clause 104 and the definition of "Minister" there. How does that now tie in with the definition in Clause 1(4), which I thought, as a result of the vote last term, meant that we substituted "the Lord Chancellor" for "the Minister"?

§ Lord Falconer of Thoroton
I accept that that substitution will occur. I am sorry for the confusion, but I was answering the question of the noble Lord, Lord Renton, which was specifically posited on the basis of the Bill as it currently stands. I quite understand the noble and learned Lord's confusion. I do not seek in any way to detract from my undertaking. As the noble Lord, Lord Renton, asked me twice, quite legitimately, where the definition of Minister appeared, I believed that I had to answer him. I am not trying to muddy the waters in any way.

§ On Question, amendment agreed to.

§ Clause 8, as amended, agreed to.

§ Schedule 4 [Appointment functions]:

§ Baroness Ashton of Upholland moved Amendments Nos. 81 to 83: Page 149, line 32, leave out paragraph 25 and insert— The Courts Act 1971 is amended as follows. In sections 16(1) and 21(2) (Circuit judges, Recorders) for "Lord Chancellor" in each place substitute "Secretary of State for Constitutional Affairs". ( ) Section 24 (deputy Circuit judges and assistant Recorders) is amended as follows. ( ) In subsection (1)—

(a) for "the Lord Chancellor" substitute "him";
(b) omit ", he may"
(c) in paragraph (a), before "appoint" insert "the Lord Chief Justice may, with the concurrence of the Secretary of State for Constitutional Affairs,", and omit the word "or" in the last place where it occurs;
(d) in paragraph (b), before "appoint" insert "the Secretary of State for Constitutional Affairs may".

22 ( ) After subsection (5) insert—

§ "(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92(4) of the Constitutional Reform Act 2004) to exercise his functions under subsection (1)(a).""

§ Page 154, line 24, at end insert—

§ "Deregulation (Model Appeal Provisions) Order 1996 (S.I. 1996/1678)

§ In the Schedule (model rules for appeals) to the Deregulation (Model Appeal Provisions) Order 1996, in paragraphs 6(2)(a) and 6(9)(a) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".

§ Page 155, line 38, at end insert—

§ "Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001(S.I. 2001/1171)

§ (1) The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 are amended as follows.

§ (2) In regulation 3 (President of Employment Tribunals), in paragraph (1) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".

§ (3) In regulation 5 (panels of members of tribunals), in paragraph (1)(a) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".

§ (4) In regulation 8 (Regional Chairmen) in paragraph (1) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".

§ Road User Charging (Enforcement and Adjudication) (London)

Regulations 2001(S.I. 2001/2313)

§ In the Road User Charging (Enforcement and Adjudication)(London) Regulations 2001, in regulation 3 (appointment of adjudicators) in paragraphs (1) and (3) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs"."

§ On Question, amendments agreed to.

§ Schedule 4, as amended, agreed to.

§ Clause 9 [Other functions of the Lord Chancellor]:

§ On Question, Whether Clause 9 shall stand part of the Bill?

§ Lord Kingsland
This Question formed part of the series of amendments and clauses stand part grouped with Amendment No. 1 on 13 July. The noble and learned Lord the Lord Chancellor has very graciously accepted that this clause should not stand part of the Bill.

§ Clause 9 negatived.

§ Schedule 5 [Other functions of the Lord Chancellor]:

§ On Question, Whether Schedule 5 shall be agreed to.

§ Lord Kingsland
Schedule 5 was also part of Clause 1. I see the noble and learned Lord nodding in assent that it should also not stand part.

§ Schedule 5 negatived.

§ Clause 10 [The Great Seal]:

§ On Question, Whether Clause 10 shall stand part of the Bill?

§ Lord Kingsland
This was not part of Amendment No. 1. However, the Great Seal should remain with the Lord Chancellor since the Lord Chancellor is now the substitute for the Secretary of State for Constitutional 23 Affairs. But I think that I am rather in advance of myself, and I am certainly in advance of the noble Baroness.

§ Lord Campbell of Alloway
I oppose that Clause 10 stand part. I am a little confused as to what the position is. I thought I heard that it was accepted that the Great Seal should remain with the Lord Chancellor. If so, I have nothing more to say. But I should like confirmation that the Lord Chancellor will retain both its custody and functions.

§ Baroness Ashton of Upholland
I shall seek to put at rest the minds of the noble Lords, Lord Campbell of Alloway and Lord Kingsland. I hope I shall achieve what I set out to do.
As I think the noble Lord, Lord Kingsland, was alluding to, Clause 10, Schedule 6 and Clause 16 were designed to put the custody of the Great Seal of the Realm with the new Minister envisaged by the Bill in place of the traditional office of Lord Chancellor.
Clearly subsections (1) and (2) of Clause 10 are no longer required as there is no longer any need for custody of the Great Seal, or the functions associated with it, to be transferred away from the Lord Chancellor.
Other provisions in Clause 10 give effect to reforms to the role of the Commissioners of the Great Seal, intended more completely to separate out the roles of the executive and the judiciary, as reflected in the concordat. Following the decision of your Lordships' House to retain the office of Lord Chancellor, we would like the opportunity to consider how far these provisions are still required. Therefore, on Report we will bring forward a number of amendments to bring the Bill, including these clauses and the schedule, into conformity with the decisions made in July.
So, while I can readily agree with noble Lords opposite that provisions placing the Great Seal in the custody of the retained office of Lord Chancellor are no longer necessary, I want to consider further the detailed implications of that change in relation to the nature and functions of the Commissioners of the Great Seal.
For those reasons I would hope that noble Lords will feel able not to press their opposition to this clause in the knowledge that I am committed to bringing this back on Report, when they will have the opportunity to consider it further.

§ Lord Campbell of Alloway
I ask for one point of clarification. Does it come to this: there will be no need to table, which I was going to do, a specific amendment to retain the custody and functions of the Great Seal?

§ Baroness Ashton of Upholland
Indeed, the issue I wish to look at further is the role of the commissioners in the context of the concordat, as I explained.

§ Lord Mackay of Clashfern
I should like to take this opportunity to say that much importance is associated with the keepership of the Great Seal. In a parenthetical 24 way it was proposed to dispose of the office of the keeper of the Great Seal. I was slightly surprised because the noble and learned Lord the Lord Chancellor had answered a question of mine about precedence, which I would just like to mention.
In one of the papers issued fairly early on in this matter the Lord Chancellor described himself as a "senior Secretary of State". He asked whether it was appropriate that a senior Secretary of State should continue to have certain functions that the Lord Chancellor previously had. I had the temerity to write and ask him on what basis he considered himself a senior Secretary of State when according to the list of the Cabinet published in Hansard he was the most junior of all the Ministers in the Cabinet, including all the other Secretaries of State as well as, I think, the Chancellor of the Duchy of Lancaster. So it was not a particularly good basis from which to lay claim to what—

§ Lord Falconer of Thoroton
The noble and learned Lord broadly describes my lowly status accurately. But I think I was senior at that point to the Chancellor of the Duchy of Lancaster.

§ Lord Mackay of Clashfern
I do not think so. If the noble and learned Lord looks at the list he will find that he was right at the very bottom immediately after he was appointed.

§ Lord Falconer of Thoroton
The Chancellor of the Duchy of Lancaster was held by the equable Mr Douglas Alexander, who was out of the Cabinet.

§ Lord Mackay of Clashfern
All right. I am happy to be corrected on that point. I thought that the Chancellor of the Duchy was in front of the Lord Chancellor in the list that I saw. Anyway, the point is that in order to justify the claim to be a senior Secretary of State the Lord Chancellor explained to me that there were two bases on which this rested—unfortunately, not yet recognised in the Hansard list of the Cabinet: first, his functions in relation to the judiciary; and, secondly, his responsibilities in relation to the Great Seal.
If the Lord Chancellor's influence and position in the Cabinet is to depend to any extent on keepership of the Great Seal, it seems a little unfortunate to dispose of the title, and certainly unfortunate to do anything to damage the Lord Chancellor's responsibility for that keepership, which I think is the central position in relation to way that the executive acts on the most important functions that it can perform.

§ Lord Kingsland
I am most grateful to the noble Baroness for reassuring the Committee about subsections (1) and (2). She said that she was going to 25 return on Report with some proposals about the remaining subsections. We can simply wait and see what occurs.

§ The Chairman of Committees
The Question is whether Clause 10 shall stand part of the Bill. As many of that opinion will say "Content". To the contrary, "Not Content". The Contents have it.

§ Lord Kingsland
I question whether Clause 10 does in these circumstances stand part of the Bill.

§ Lord Falconer of Thoroton
The reason Clause 10 is standing part is that we undertake to make sure that the Great Seal stays with the Lord Chancellor. The points being made were that the Commissioners of the Great Seal end up, by historical accident, even though they tend to be the Lord Chief Justice and such people, performing ministerial functions. It is that that needs to be looked at. But there is absolutely no doubt that the Great Seal stays with the Lord Chancellor on the basis of the view of the House. The undertaking we give is that we will bring forward amendments to deal with that.
The reason that we want Clause 10 not to stand part is to make it clear that the commissioners' issue needs to be looked at.

§ Lord Kingsland
I thank the noble and learned Lord for that clarification. In those circumstances, I am completely content.

§ Clause 10 agreed to.

§ Schedule 6 agreed to.

§ Clause 11 [Speakership of the House of Lords]:

§ On Question, Whether Clause 11 shall stand part of the Bill?

§ Lord Campbell of Alloway
I oppose this clause. Clause 11 is the Speakership clause. I do not want to take time. I spoke to this issue, not at great length, on Amendment No. 18. I do not propose to repeat what I said about it. I ought to say that Amendment No. 18 will not be retabled. Specific amendments, if necessary—and I have been told that one will not be necessary—will be tabled. One of them will concern the Speakership.

§ 4 p.m.

§ The Speakership is related to retention of the Great Seal and the authority of the Lord Chancellor. If he retains his authority as Keeper of the Great Seal as well as his extant constitutional role—as I hope he will—as a Minister in Cabinet, there is no reason why he should not retain Speakership of the House and his parliamentary functions, some of which are currently being discharged by the Lord Chancellor.

§ Therefore on those grounds I am not content that Clause 11 should stand part without the undertaking that appeared to be acceptable to my noble friend Lord Kingsland on a previous amendment. For example, if I can have an undertaking that there is no need for me 26 to table an amendment to retain the extant office of Speakership of your Lordships' House, well and good—but I do not anticipate the giving of such an undertaking.

§ In principle I oppose the clause. It is for the House to decide whether it wants to retain the Lord Chancellor as Speaker. It has not yet had a proper opportunity to consider the matter. I am opposing the abolition of the Speakership.

Lord Renton
I support my noble friend Lord Campbell of Alloway. Clause 11 says nothing: it merely refers us to Schedule 7, where we are invited to consider various amendments to previous legislation dealing with the Speakership of the House of Lords. None of those amendments tells us what is going to happen to that Speakership in the House of Lords, so we are left with a vague position.
Between now and Report stage, instead of referring to the amendments to previous Acts relating to the Speakership, the Government should set out in Clause 11 what is happening. We do not know.

§ Lord Goodhart
We strongly support the retention of Clause 11. There is no formal objection to Schedule 7 in the Marshalled List, but I assume that that is consequential on Clause 11. It is not appropriate for the Lord Chancellor to remain as Speaker even if the office is retained. If, as we argue, the holder of the continuing office of Lord Chancellor should not necessarily be a member of your Lordships' House it is obvious that he or she cannot be the Speaker.
Technically the Lord Chancellor does not have to be a Member of your Lordships' House because the Woolsack is regarded as being outside the confines of the Chamber. On one or two occasions a newly appointed Lord Chancellor has taken his seat on the Woolsack before receiving a peerage and becoming a member of your Lordships' House. That is clearly an out-of-date technicality and it would be inappropriate for a Lord Chancellor who was not a Member of your Lordships' House to remain as Speaker for any significant time.
Even if the Lord Chancellor has to be a Member of your Lordships' House, it is unnecessary that he or she should also be required to be Speaker. I can see no constitutional link between the Speakership and the keeping of the Great Seal, in spite of what the noble Lord, Lord Campbell of Alloway, said.

§ Lord Campbell of Alloway
The noble Lord misunderstood me. I said not that there was a constitutional relationship but that the Lord Chancellor's status and authority, proximity to the Monarch and so forth—which I mentioned previously—qualifies him for the office of Speakership. I did not pretend that there was a constitutional relationship in the sense of the constitutional role in Cabinet.

§ Lord Goodhart
I apologise to the noble Lord for misunderstanding him. I can see that there is an obvious constitutional link between the office of Lord Chancellor and the holding of the Great Seal, but I do 27 not see any constitutional link—I think the noble Lord accepts this—between the holding of the Great Seal and the office of Speaker of your Lordships' House.
If the Speaker had significant powers in your Lordships' House, it would be wrong on constitutional grounds for the Speaker to be a government Minister in the same way that it is inappropriate for the Speaker in the House of Commons to be a government Minister.
As all Members of the Committee will be aware, the Speaker of your Lordships' House does not have significant powers. The logical consequence is that holding the office of Speaker is a waste of the Lord Chancellor's time. The Lord Chancellor holds an important office of state. He or she will have a substantial department to run. The Lord Chancellor is a member of the Cabinet and is normally a member of several Cabinet Committees.
It is a complete waste of time to turn up for 30 or 40 minutes of Question Time to sit on the Woolsack in fancy dress—although not quite so fancy as it was before the noble and learned Lord, Lord Irvine of Lairg, refused to turn up in knee-britches and tights—and then turn up again for Divisions. The office of Speaker of your Lordships' House should be held by someone who does not have substantial outside responsibilities.
It is ultimately a matter for your Lordships' House to decide whether a Member of your Lordships' House who holds the office of Lord Chancellor should be Speaker, but that is not the effect of Clause 11 or Schedule 7. All that they do is remove certain statutory problems that will arise if your Lordships' House takes that decision. In view of the considerable likelihood that your Lordships will decide in due course to elect their own Speaker, this is an appropriate opportunity to make the necessary statutory amendments rather than waiting until they are necessitated by a decision of your Lordships' House to have—as I believe we should—an independent Speaker nominated by ourselves.

§ The Lord Bishop of Salisbury
I find myself uncharacteristically in disagreement with the noble Lord, Lord Goodhart, and wanting to press the questions raised by the noble Lord, Lord Campbell of Alloway. The question of the Speakership of the House rests with the bundle of questions as to who in your Lordships' House should be seen as independent, impartial and capable of holding a number of different offices at the same moment.
Consideration of this separation of powers tends to put into the public domain our view that we do not trust individuals to hold different offices at the same time; that we do not trust people to act with integrity whether as a government Minister or as a great office holder of state. For those reasons I believe that we should press this point.
I suggest to the Committee that there is a matter here worth preserving: a simple belief that a noble Lord can be trusted not to be swayed by influence and prejudice and not to be corrupted or to have his judgment 28 clouded. The fact that the Lord Chancellor sits and presides over the House, without necessarily having much to do, is something that we should consider seriously before rushing into the seductive line offered by the noble Lord. Lord Goodhart.

§ The Earl of Onslow
We have just heard a perfect example of what used to be the case of the Tory Party at prayer. I could not agree more with what the right reverend Prelate has said.
The situation, which certainly existed in the 19th century, of the Lord Chancellor always having to sit on the Woolsack whenever the House sat, was a bad one and has been solved by appointing Deputy Speakers. That is a particularly British way of solving the problem. One keeps the outward and visible form—one does not muck about with it—but one changes the substance so that the system works.
This Government have a terrible habit of charging bull-headed at constitutional change, not understanding what they are doing and not understanding the core, the substance and the history of matters. On this issue, the noble and learned Lord should continue to sit on the Woolsack. Ministers come to Parliament and what is Parliament for except to make Ministers listen? The noble Lord, Lord Goodhart, is a descendant of Liberal radicals who wanted to tear things up by the roots. I want to prune things, succour them and ensure that the roots stay for the benefit of all. That is why I so thoroughly approve of the renascent Tory Party at prayer.

§ Lord Kingsland
The right reverend Prelate and my noble friend Lord Onslow have made my speech very simple and very short. I entirely agree with what they have said and totally share the reasoning behind their speeches. At the moment we still have a Lord Chancellor. Who should be the Speaker of your Lordships' House is wholly a matter for your Lordships' House. In my submission, it is not appropriate for such a matter to be dealt with in legislation. I hope that the Lord Chancellor will tell the Committee that he will withdraw the clause.

§ Lord Falconer of Thoroton
I agree with the point made by the noble Lord, Lord Kingsland, that this is not a matter to be determined by this Bill. Plainly, it is in play as an issue; it is not a matter for Parliament—for both Chambers—to decide; it is a matter for this House to decide. As the matter is in play, all that Clause 11 and the accompanying schedule say, in effect, is that wherever the office is referred to in other statutes it involves the Speaker of the House of Lords, thereby allowing the House, if it wishes, to keep the Lord Chancellor as Speaker.
I agree entirely with the points made by the noble Lord, Lord Goodhart, in relation to the reason why the Lord Chancellor, or whatever the office holder may be called, should not continue as speaker because of the point made by the noble Earl, Lord Onslow, that, as generally agreed, we should change the substance of what he does. I do not believe in those circumstances that it is appropriate for him or her to sit on the Woolsack for 40 minutes. I do not think that 29 that is necessary. The House is well able to choose a Speaker who meets the wishes of the House. However, I believe that that is for another day.
Clause 11 does not make the decision for the House; it is for the House to make that decision, in part, assisted by the report prepared by the Select Committee chaired by the noble and learned Lord, Lord Lloyd, on the issue, in which he made a number of proposals. As a House we still need to return to that report and reach a conclusion on it. That may be the moment when we reach a decision, but not today. Clause 11 does not purport to do that. I respectfully submit to the Committee that it should remain in the Bill to facilitate a decision by the House on another day.

§ 4.15 p.m.

§ Lord Mackay of Clashfern
It is fair to point out that Schedule 7 alters the order as between the Speaker of the House of Commons and the Speaker of the House of Lords. It does more than just provide for the House to elect its Speaker.

§ Lord Falconer of Thoroton
I stand corrected in relation to that. I am not seeking to determine whether the House should have the Lord Chancellor as its speaker. The clause simply seeks to facilitate a decision that allows the House to come to any conclusion. Plainly, if the House took the view that the Lord Chancellor should remain as speaker, the precedence issue would remain as it is now on the basis that if the Lord Chancellor's office is retained, the Lord Chancellor will retain his precedence.

§ Lord Campbell of Alloway
I am trying to follow the argument. If this clause is not necessary to facilitate a decision and if it appears to be common ground throughout the Committee that it is a matter for the House and not a matter for this Bill, why on earth does the noble and learned Lord not withdraw the wretched clause?

§ Lord Falconer of Thoroton
Because this is the obvious Bill in which to make the necessary amendments to other Bills if the Lord Chancellor does not remain as Speaker.

§ Clause 11 agreed to.

§ Schedule 7 agreed to.

§ Clause 12 [Abolition of office of Lord Chancellor]:

§ On Question, Whether Clause 12 shall stand part of the Bill?

§ Lord Kingsland
Clause 12 is one of those clauses that was included in Amendment No. 1 and was voted upon on 13 July. I see the noble and learned Lord the Lord Chancellor nodding. In those circumstances, I believe that the Government will accept that it should not stand part of the Bill.

§ Lord Goodhart
In July your Lordships' House decided that the office of Lord Chancellor should be retained. I believe that that was agreed on all sides of 30 the House; it is not yet time to reopen that argument. For the purposes of today's debate, 1 do not seek to press for Clause 12 to stand part.
Clause 13, however, is framed to make alterations to the salary and pension of the head of department consequential on the abolition of the office of Lord Chancellor. It is apparent, for today's purposes, that that too must fall. Even if the office is retained—this matter may need to be debated further later—we need to reconsider the issue of the Lord Chancellor's salary and pension.
The Lord Chancellor receives a salary that is roughly double that of the Prime Minister and far higher than that of any other Cabinet member. That is because it has become accepted that the Lord Chancellor's salary should be linked to judicial salaries. Therefore, as head of the judiciary, it is agreed that the Lord Chancellor must receive a salary of, I believe, £10,000 more than the Lord Chief Justice.
In the previous Session of this Parliament, I introduced into your Lordships' House a Private Member's Bill to bring the salary of the Lord Chancellor into line with that of a Secretary of State. In that Bill I did not propose the abolition of the office of Lord Chancellor, so there is no necessary link between the two. That Bill had a Second Reading, but I took it no further.
I believe that the principle that the Lord Chancellor's salary should be linked to that of a Secretary of State and not to that of the Lord Chief Justice is correct. To a large extent, it is common ground that the Lord Chancellor should cease to be the head of the judiciary, so there therefore remains no real justification that I can see for linking the Lord Chancellor's salary to that of the Lord Chief Justice. Instead, the salary should be linked to that of other Secretaries of State as heads of government departments. The noble and learned Lord the Lord Chancellor has rightly decided not to take more of his salary than that. But his decision in no way binds future holders of the office, who as matters stand would have a statutory right to receive a salary far in excess of that of the Prime Minister.
Again, the amount of the pension should be linked to that of the Secretary of State, not the judiciary. There is another special feature of the Lord Chancellor's pension, shared with that of the Speaker of the House of Commons: it is payable in full whatever the length of service, therefore a single day is enough. There is an argument that the role of the Lord Chancellor as protector of the rule of law and the independence of the judiciary means that there could be occasions when he or she must stand up against a Cabinet decision, on the grounds of interference with the rule of law and the independence of the judiciary, and if that decision is not revoked the Lord Chancellor would have to resign. Obviously, in those circumstances, the outgoing Lord Chancellor could not remain on full pay. It could be said that the need to minimise the Lord Chancellor's financial loss from resignation is desirable and therefore a Lord Chancellor who resigns should be entitled to a full 31 pension, irrespective of the length of service. I am not persuaded by that argument but I accept that there is some force in it. It is a matter appropriate for debate.
If necessary, we will return on Report with amendments to enable the issues of salary and pension to be debated separately from the question of the retention of the office of Lord Chancellor. I would be interested to know whether the noble and learned Lord the Lord Chancellor has any views on whether, if the Government should decide not to attempt to revoke the change in the title of the office, they would wish to proceed with the change in the salary and pensions along the lines that I have suggested.

§ Lord Campbell of Alloway
The noble Lord, Lord Goodhart, speaks for his party; I have the disadvantage of speaking only for myself. None the less, I understand that at this stage of the Bill the noble and learned Lord agrees that the office of Lord Chancellor should not be abolished and that this clause abolishes it. In those circumstances, what purpose would this clause serve? In response to Amendment No. 80 the noble Baroness was able to give an undertaking that, because the provision was clear and specific, there was no need to table a specific amendment, but that cannot very well apply here. In this case, there is a very wide range of extant functions that will have to be specified in order to retain them. If the position is as I understand it, I would be grateful for confirmation. If it is the position, I shall table the appropriate amendments on Report.

§ The Earl of Onslow
There was a slightly sad but very charming little incident in your Lordships' Chamber about 10 minutes ago: the noble and learned Lord the Lord Chancellor arguing about whether he was bottom or second-from-bottom of the Cabinet list. I would like to see the noble and learned Lord arguing about whether he is number two or number three on the Cabinet list. That is the importance that I attach to the role of the Lord Chancellor—he is not just the charming chappie who chugs along at the back of the convoy. We who have been arguing for the retention of the Lord Chancellor and his office want him to be a big man, following former Lord Chancellors such as Lord Hailsham, Lord Thurlow, Lord Gardiner and the noble and learned Lord, Lord Irvine of Lairg. We may not have agreed with the noble and learned Lord, Lord Irvine of Lairg, but one knew that he was a big man—I do not refer solely to his Garrick lunches. I am afraid that salary and pensions go with that office; that is what we want. Those of the Tory Party at prayer variety want the Lord Chancellor to be a big man in all senses of the word.

§ Lord Kingsland
I understand that we are still debating Clause 12, which the noble and learned Lord the Lord Chancellor has already agreed should not stand part; however, the noble Lord, Lord Goodhart, elided into Clause 13. To save time, perhaps I could now say something about that clause, exceedingly 32 telegraphically—indeed, something that the noble and learned Lord the Lord Chancellor cannot say about Clause 13.
I disagree with the analysis, made by the noble Lord, Lord Goodhart, of the noble and learned Lord's salary and pension provisions. It may well be that in future the level of salary should not follow religiously the level of the Lord Chief Justice's salary and that issue needs careful attention. But I am in no doubt that the current pension provisions should remain the same. The current pension provisions are a crucial ingredient in guaranteeing the political independence of the Lord Chancellor. His knowledge that, if he goes immediately as a result of standing up for a point of principle, he will be reasonably well looked after, will be a vital ingredient in helping him to resist tyrannous suggestions by his Cabinet colleagues. In those circumstances, I am convinced that the pension provisions should remain as they have always been.

§ Lord Falconer of Thoroton
Throughout the debate there has been no real dispute in the House's deliberations that the office-holder, whatever he is called or whatever office he holds, is big enough to resist any attack on the rule of law and the independence of the judiciary. Ultimately, whether one does or does not depends upon the personality of the office-holder. There are certain things that one can do to help that, but ultimately it depends on the personality of the holder and not so much on the status issues.
I accept the views of the House expressed on 13 July that Clauses 12, 13 and 14 must fall because they are entirely dependent upon the abolition of the office and the House has indicated that it does not want the office to be abolished.
It is plain that we all need to look at the salary and pensions of the office-holder, whether or not it be the Lord Chancellor. There appears to be a view around the House that special arrangements are needed. It also appears to be the position that it is hard to justify the continuing arrangements where, for example, the Lord Chancellor is no longer the head of the judiciary. What those arrangements should be is a matter for debate and discussion. None of us disagrees with the need for this office-holder to have particular clout.
In those circumstances, we will not resist the argument that Clauses 12, 13 and 14 should not stand part, subject to the caveat that I gave at the outset.

§ Clause 12 negatived.

§ Clause 13 negatived.

§ Schedule 8 negatived.

§ Clause 14 negatived.

§ 4.30 p.m.

§ Lord Kingsland moved Amendment No. 85: Before Clause 15, insert the following new clause—

§ "LORD CHANCELLOR NOT TO HAVE JURISDICTION AS A JUDGE

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

§ The noble Lord said: The clause would expressly prohibit the Lord Chancellor having jurisdiction as a judge. In my remarks on Amendment No. 1 on 13 July, I said that the Opposition accepted the architecture of the Bill. A central pillar of that architecture is that the Lord Chancellor should no longer sit as a judge. The amendment simply reflects that part of the new structure. I beg to move.

§ Lord Ackner
I support what the noble Lord, Lord Kingsland, said. It was made abundantly clear that it was undesirable for the Lord Chancellor to be a judge, to sit as a judge or to be looked upon in any way as head of the judiciary. I accordingly take the view that that is the general view of the Committee to date.

§ The Earl of Onslow
Let us assume peradventure—I accept that it is a major assumption—that my noble friend Lord Kingsland is Lord Chancellor after the next election. The noble and learned Lord, Lord Falconer, would then be at a loose end. He will no longer he the Lord Chancellor whom we have rescued from oblivion and have come to know and love. Would there be any reason why he should not be appointed as a judge after he ceases to be Lord Chancellor?

§ Lord Kingsland
Even if those circumstances described by my noble friend were to come about, the Bill may not yet have been enacted, or if enacted, not yet implemented. It may be, therefore, that after the election the new Lord Chancellor, whoever he or she may be, would be in a position to make a judicial appointment in the old way. Alternatively, if the noble and learned Lord the Lord Chancellor wished to become a judge after the election, should he find himself at a loose end, no doubt the new Lord Chancellor would write a warm reference to the judicial appointments committee to support his application.

§ Lord Campbell of Alloway
I support the amendment for the reasons that I gave when supporting two of the points raised by the noble and learned Lord on a previous amendment.

§ Baroness Ashton of Upholland
I am grateful to Members of the Committee who have spoken and see that there is wide acceptance that the Lord Chancellor should not sit in a judicial capacity and that it is not acceptable for him to be head of the judiciary.
It is clear that one of the fundamental aspects of the Lord Chancellor's traditional role is no longer appropriate. I have no problem with the intention underpinning the amendment, but it is unnecessary to spell out that the Lord Chancellor should not sit as a judge.
Among other things, the effect of Schedule 1, which is rather long, is to remove the statutory basis of the Lord Chancellor's current authority to sit as a judge. Additionally, current legislation would allow the Lord Chancellor to sit as a judge by virtue of holding ex officio high judicial office. The Bill currently fails to exclude that. For that reason, we have tabled 34 amendments to Clauses 32, 33 and 51 so that the office of Lord Chancellor will no longer qualify for the post attracting the status of high judicial office. As a result, the combination of the relevant provisions of Schedule 1 and the amendments on the definition of high judicial office will ensure that future holders of this ministerial office will be prevented from sitting in a judicial capacity. The effect of the amendment is therefore already achieved.
I am sure that my noble and learned friend will be in high office for many years to come. He could sit as a judge, but not by virtue of being a former Lord Chancellor. That is the difference that is being made, which clarifies the question that was asked.
On the basis that we have achieved what the amendment would do, I hope that the noble Lord, Lord Kingsland, will withdraw it.

§ Lord Kingsland
I accept, entirely, that the effect of other clauses in the Bill would prohibit the noble and learned Lord the Lord Chancellor sitting as a judge. However, I am surprised that the Government do not accept—indeed, welcome—the amendment. The driving principle behind the legislation is founded on the separation of powers. Surely the Bill would benefit from a clear statement that the Lord Chancellor will not sit as a judge and will he a purely political figure. Perhaps the noble Baroness will reflect on that between Committee and Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Kingsland moved Amendment No. 86:

§ Before Clause 15, insert the following new clause—

§ "QUALIFICATION FOR APPOINTMENT AS LORD CHANCELLOR

§ A person is not qualified to be appointed Lord Chancellor unless he has (at any time)—

(a) held high judicial office (as defined in section 51); or
(b) been and practised as a qualifying practitioner (as defined in section 19) for a period of at least 15 years."

§ The noble Lord said: The responsibility for moving the amendment has come as something of a shock: but I shall do my best to do justice to what the noble Viscount, Lord Bledisloe, would have said had he been here today.

§ I think that I heard the noble and learned Lord the Lord Chancellor say that the effect of the vote on Amendment No. 1 was to retain not only the title but the office of Lord Chancellor. The office is defined by long-standing constitutional convention, which stipulates that the Lord Chancellor shall be not only a highly qualified and senior lawyer, but a Member of your Lordships' House.

§ This amendment would enshrine in statute what already exists in convention. Moreover, there are additional reasons why it is desirable that the Lord Chancellor's qualifications as a lawyer should be in the Bill. It enshrines the concordat, which is a complex set of inter-relationships between the Lord Chief Justice and the Lord Chancellor. Those relationships involving the disciplining of judges and other functions require a 35 sophisticated understanding of the law, how the legal profession functions, and its leading personalities. This requires much experience in the past career of the Lord Chancellor in dealing with the issues to which that new role gives rise. The amendment is a vital constitutional guarantee that will underpin the new architecture of the Bill. The Lord Chancellor must be a senior and well qualified lawyer. I beg to move.

§ Lord Goodhart
The noble Lord, Lord Kingsland, has moved this amendment—even if unexpectedly to him—with his usual brevity and effectiveness. The only effect of the amendment passed on 13 July is to retain the name of Lord Chancellor for the office. While noble Lords who have spoken may have indicated a wish to retain the need for a legal qualification for the holder of that office to be a Member of your Lordships' House, the amendment of 13 July did not in terms or by necessary implication say so. Of course, the question of what would have been decided had there been a vote on that issue is open to speculation, particularly given the narrow majority by which the amendment was passed.
Undoubtedly, the amendment raises some difficult issues. We on our Benches have been unable to reach an agreement on whether to support the amendment. We will therefore have a free vote. I now speak only for myself. I can see arguments, and arguments of some substance, in favour of requiring a legal qualification. The duty to uphold the rule of law is no doubt helped by a knowledge acquired through education, training and perhaps practise of what the rule of law really means. As Parliament makes the laws there are advantages in having a Minister who is familiar with legal principles. I recognise that the situation is different from, for example, the question of whether the Secretary of State for Health needs to have medical qualifications.
Other things being equal, I certainly would expect the Prime Minister to appoint someone who has legal qualifications to hold that office. But, of course, other things may not be equal and it is important that the Prime Minister should be able to appoint the best person to do the job. If the Prime Minister wants someone who will not make waves, he or she is unlikely to have great difficulty in finding someone who fulfils those requirements, whether or not that person holds legal qualifications.
But there can be circumstances in which no one—especially no lawyer—in either House is obviously suitable for the appointment, particularly as there are now far fewer qualified lawyers in the House of Commons than there used to be. That is shown by the fact that since the present Government came into office at least one of the law officers has always been in your Lordships' House. Those who go into the House of Commons tend to lose contact with their profession: they are unable to maintain their practices—at least in part and in many cases wholly—because of the demand of other parliamentary duties.
36 In such circumstances, it would be better to appoint a non-lawyer rather than to make an unsuitable appointment or to bring in a politically inexperienced lawyer by appointment to your Lordships' House. In any event, I object to paragraph (a) of the amendment. Anyone who has accepted high judicial office should give up political ambitions and should therefore not be eligible for appointment as Lord Chancellor.
I believe that the last sitting judge to be appointed as Lord Chancellor was Viscount Simonds in Winston Churchill's 1951 Cabinet. That appointment, I believe, was not a great success. But whether or not it was a success, the principle is clear. A full-time sitting judge should not hold political ambitions and should not therefore be eligible to leave the Bench in order to sit in the Cabinet.

§ 4.45 p.m.

§ Lord Falconer of Thoroton
A full-time sitting judge who was appointed as Lord Chancellor is sitting approximately five yards from the noble Lord, Lord Goodhart. He is too modest to draw attention to the error that the noble Lord has made.

§ Lord Goodhart
That is absolutely correct. I apologise to the noble and learned Lord, Lord Mackay of Clashfern. But the principle is still correct. However, the noble and learned Lord is held not only by me but also by the whole of the legal profession in the highest regard and, indeed, was a great success in that office.
But that does not alter the principle that, given that the Lord Chancellor will become increasingly a political office and in no sense a judicial office, from now on, if this Bill becomes law, it will be inappropriate for a full-time sitting judge to accept appointment to a Cabinet office. I should say that high judicial office does not include a part-time appointment as recorder, which means that I do not seek to exclude my noble friends Lord Thomas of Gresford or Lord Carlile of Berriew.

§ Lord Ackner
I am in the unfortunate position of disagreeing with the noble Lord, Lord Goodhart. As I understand it, the main, very burdensome occupation of the Lord Chancellor as we envisaged is the administration of the courts. That takes up an enormous amount of time. To appoint a non-lawyer to deal with the administration of the courts is possible but it is asking for trouble. The noble and learned Lord, Lord Mackay, was at pains in his evidence to point out the great advantage of visiting the administration around the circuit system and talking to those concerned with the administration of the courts. For that to be done by a non-lawyer would carry no conviction and probably no good sense either.
The other matters with which the Lord Chancellor has to deal clearly call largely for a lawyer. He is concerned, although not concerned entirely as I would wish, with matters of discipline. As a non-lawyer, how is he to function in that regard? He is concerned—this 37 is vital—with the rule of law. It is for him to say to the Cabinet, "Look, you are about to embark on something so contrary to the rule of law that you will provoke a constitutional crisis like in the ouster clauses". How will he do that with conviction and strength, and with the independence and forcefulness that we would wish, if he is not a lawyer?
As regards the Prime Minister being available and entitled to appoint a non-lawyer, I would suggest that that would be very hazardous. If, as I hope will be the case, the Lord Chancellor has a right to his pension immediately he is appointed, the Prime Minister will be faced with quite a difficulty if he fires a Lord Chancellor without good justification. If he appoints in his place a man of substance and independence, he will have another vast amount to pay by way of lost pension. There will come a time, no doubt, when the Treasury intervenes and says to the Prime Minister, "You can't go on wasting money like this. You're causing indignation among your own supporters". These are only random thoughts thrown out, but it would be disastrous to give consideration to the suggestion that the new Lord Chancellor, about whom we voted, should be capable of being a layman.

§ Lord Donaldson of Lymington
Perhaps I may make an entirely non-authoritative contribution in response to my noble and learned friend Lord Ackner. I have always understood, although I have never seen it in writing nor bothered to look, that there was a limit to the number of ex-Lord Chancellors who could draw a pension. I thought that Lord Dilhorne faced that problem when he ceased to be Lord Chancellor. It was one of the reasons, apart from his excellence, why he became a Lord of Appeal in Ordinary, but I may be quite wrong. Perhaps somebody should check it.

§ The Earl of Onslow
The amendment goes to the heart of the problem of the authority of the Lord Chancellor. The great advantage of allowing people to be appointed to this Chamber is that one can find the noble and learned Lord, Lord Irvine, or Lord Gardiner—I chose them because they were not of my political persuasion. They were found outside and placed on the Woolsack, as was the noble and learned Lord, Lord Falconer.
The arguments still hinge on the Lord Chancellor's authority. Therefore, he must be a lawyer. I understood what the noble Lord, Lord Goodhart, said about his needing to be a judge, but the amendment states "or". I also think that it is not a good idea to stipulate that he should be a judge. He has to be a lawyer of substance, for all the reasons that the noble and learned Lord, Lord Ackner, gave. It is a job that he must perform in Cabinet. He has to sit there—not in another place—and he must have authority. We have to keep checks and balances in the system. We are too dangerously close to losing too many of them. That is why I hope to fight as hard as I can on this issue.

§ Lord Cooke of Thorndon
In considering Amendment No. 86 and other amendments that may result from the retention of the office of Lord Chancellor and, I hope, the role of the Law Lords, 38 which we shall discuss later, there is a dimension that your Lordships may care to bear in mind. That is the impact on international perception of the United Kingdom's constitutional arrangements. From an international point of view, the office of the Lord Chancellor and the role of the Law Lords are different aspects of the same question.
What is the greatest legal office in the world? Before the Bill was conceived, there could have been little doubt that it was that of the Lord Chancellor. In a non-Gilbertian sense, he embodied the law of England. His—and it could be her—high status has been an enduring symbol of the commitment of the United Kingdom to the rule of law and the independence of the judiciary. That was not primarily because he sometimes sat as a judge—a practice which was falling into desuetude and is now being abandoned. That was incidental. It was because he was a senior Member of the House of Lords and of Cabinet—an illustrious and universally respected lawyer who was able to speak with authority for all that the law represents. He was a kind of guarantor or watchdog of legality at the heart of the constitution.
Often, too, the Lord Chancellor has been the architect of social or constitutional reform of a nonparty political character. Jowitt, Gardiner, Hailsham, Elwyn-Jones and Mackay were, and in some cases still are, household names wherever the English language is spoken.
This great office is a distinctive product of the United Kingdom's evolution. It carries a prestige which is irreplaceable. In international eyes, it will certainly not be replaced by legislative references to a Minister or a Secretary of State. "President" is another term to be found here and there in the Bill. I was president for ten years of an appeal court and found that few people outside the legal profession understood my role and it was common to be unsure of its correct designation. The world is full of presidents of sundry organisations—vast or tiny, democratic or despotic, grand or petty. The term conveys no clear picture.
The advantages of the office of Lord Chancellor are partly psychological, yet they are real and internationally resonant. Some administrative adjustments may now be advisable, but rather than throw away this special legacy, Parliament should surely take pride in it and build on it as essentially one of the highest lawyer's offices in the land, with powers of true significance.

Lord Renton
When considering our constitution, there is an old saying—I cannot remember its origin, but it was well established generations ago—which states that if change is not necessary, it is necessary not to change. That principle applies more to the proposal to do away with the office of Lord Chancellor than to any other. It is not necessary for us to get rid of it and it is necessary that it should be kept.

§ 5 p.m.

§ Lord Falconer of Thoroton
This is an important issue. Before I start, I pay tribute to the noble and learned Lord, Lord Cooke of Thorndon, for his incredibly powerful speech which all of us will have admired, whatever we may think of its content. It was most impressive.
I shall deal with the matter in two stages. First, I shall address whether the office of Lord Chancellor should stand. We proceed here on the basis that it should stand. There is an historical issue, although I shall not spend too long on it: is there a convention which remains binding that if the office of Lord Chancellor remains, the office-holder must be a lawyer? My research suggests that the last officeholder not to be a lawyer was Anthony Ashley Cooper, Lord Shaftesbury, who was Lord Chancellor between 1672 and 1673. So there is a long history of the officeholder being a lawyer. Before Lord Shaftesbury, two Lord Chancellors who were not lawyers were the Earl of Clarendon between 1660 and 1667, and Sir Christopher Hatton between 1587 and 1591 who, according to my reading, was known for his ignorance of the law. However, I do not rely on that to indicate that a non-lawyer can hold the post.
Since Lord Shaftesbury, every single Lord Chancellor has been a lawyer. That is not surprising, given that both before Anthony Ashley Cooper and after, the House of Lords sat as a court presided over by the Lord Chancellor. Thus it was necessary for a lawyer to be the Lord Chancellor because historically he was the chief judge, an active judge, and the head of the judiciary.
The effect of the modifications to the role which the House in its vote on 13 July accepted is that the officeholder should no longer be a judge and no longer head of the judiciary. Moreover, there is an active desire, in my view correctly, that he should not hold such an office and he should not be a judge. Thus his role, whatever he is called, has fundamentally changed.
In the light of that fundamental change, should the office-holder have to be a lawyer? Does the convention change as the role changes? One has to look at those questions in the light of an analysis of what it is envisaged the office-holder should do. First, he will be responsible for a range of significant policy areas across the justice system and constitutional sphere. As the noble and learned Lord, Lord Ackner, pointed out, he will be responsible for running the courts, for legal aid and for issues such as human rights and devolution. In this regard, the qualifications for running the Department for Constitutional Affairs are no different from those required of other Ministers running important sectors of government and public affairs. I would say with respect to the noble and learned Lord, Lord Ackner, that in relation to the administrative functions of the Lord Chancellor—including that of running the courts—the need to have a lawyer is most certainly not demonstrated. Indeed, from my own experience it is clear that sometimes lawyers make good administrators, but sometimes they are quite bad.
40 The other aspect of the role of being a Minister is that the office-holder will be responsible for between £2 billion and £3 billion-worth of expenditure. Although it is not required that a person responsible for that level of expenditure should be in the House of Commons, it would be a pointer towards them being in that House.
The second role of the office-holder will be to undertake those functions assigned to him under the concordat. The nature of the functions envisaged in the concordat for the office-holder is clearly ministerial. There is no requirement that he should be a lawyer, and I do not see it as a necessary requirement; nor was it one envisaged by those who negotiated the concordat. Indeed, the concordat was negotiated with the Lord Chief Justice explicitly on the basis that the ministerial role requires no such qualification. I quote from his evidence to the Constitutional Reform Bill Select Committee: My firm support for the concordat reflects the fact that I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or particular title to enable him or her to exercise those functions". While the noble and learned Lord, Lord Woolf, could see some benefits in the Minister being a lawyer, he could also see that non-lawyers might very well, bring other virtues to the table". So the second function, that of performing the ministerial role in relation to the concordat, does not require a lawyer to fulfil it.

§ Thirdly, the office-holder will be the appointer of judges, acting on the recommendations of the Judicial Appointments Commission. Again, the concordat embraced the Minister's role in relation to the appointment of judges and I do not see that a legal qualification is an essential requirement. The Bill already ensures proper legal and judicial input, alongside the lay involvement, in the selection of judges and I do not see that the ministerial role requires a legally qualified Minister. The role of the Minister—or the Lord Chancellor, whichever the office is to be called—is to exercise a limited discretion in the public interest and to ensure accountability for the decisions taken. The Judicial Appointments Commission will be responsible for weighing up the precise legal abilities of the candidates. One would not want the Minister or Lord Chancellor, in relation to this function, seeking to second-guess the Judicial Appointments Commission.

§ It is in the fourth function of the Lord Chancellor where, in my view, the only real arguments on him being a lawyer can be advanced; that is, in the Lord Chancellor's role regarding judicial independence and the rule of law. Regarding the other three functions, it should be for the Prime Minister to decide whether he can appoint the best man or woman from the Commons or the Lords. However, does the last role covering the independence of the judiciary and the rule of law require that the office-holder must be a lawyer?

§ The key qualities essential to successfully fulfilling this crucial aspect of the job must be courage, strength and clout. Clearly, those qualities in relation to this element of the role are vital.

§ The Earl of Onslow
Of course he must have courage, strength and clout. But if he were to say, "Prime Minister, you are going against the law. This is wrong in law and you cannot do it", the Prime Minister will say, "But you don't know what you are talking about". He must be able to know what he is talking about. If he does not know, he will be of no use.

§ Lord Falconer of Thoroton
Two functions are required in relation to legality. If a government are about to do something against the current law, they need first to seek advice on what the law is. The prime adviser to government on matters of law is not the Lord Chancellor, it is the Attorney-General. The Attorney-General gives advice on whether a particular course of action is against the law. The role of the Lord Chancellor goes beyond simply determining whether a government are acting in accordance with the law, rather it is precisely on the issues to which noble Lords have already referred. Something may not be against the law, but it might undermine the independence of the judiciary, or it is constitutionally unwise to do it. It is something beyond the law. Moreover, it is something, as the noble and learned Lord, Lord Ackner, said—although I do not agree that the judicial ouster is in the category—that is of constitutional significance.
This is not about fine points of law, rather it is about big issues where the Lord Chancellor or the Minister holding the office says, "No. Whatever are my politics, this is the wrong thing to do because either it offends the concept of a country that complies with the rule of law or undermines the independence of the judiciary". I ask this: is the noble Baroness, Lady Williams of Crosby, a big enough person to do that job? Was Lord Whitelaw a big enough person? Do lawyers have a particular ability that gives them the characteristics of courage, clout and standing to be able to stop such things happening? Very often they do. Sitting in this Chamber are two lawyers who did have that clout, ability and courage. However, with the greatest respect to lawyers, they are not the only people with courage and clout. Others have those qualities and there may be occasions when the Prime Minister would be much wiser to appoint someone who is not a lawyer, but who has real standing if what we seek to ensure is the protection of the rule of law and the independence of the judiciary. In relation to this provision, it is to overstate the qualities of the lawyer to say that the Lord Chancellor, who is the protector of the rule of law and the independence of the judiciary, has to be a lawyer. Rather, the right course is to say that the person with the right qualities for the job should be appointed. To restrict the Prime Minister's choice might well on occasion deprive the nation of the person who is right for the job.

§ Lord Donaldson of Lymington
I accept that courage is not the sole prerogative of lawyers, but would the 42 noble and learned Lord not agree that the chances of a lawyer recognising a breach of the rule of law are greater than those of a non-lawyer doing so? I instance the ouster provision. Would a non-lawyer have realised what an outrage that was? I wonder.

§ Lord Falconer of Thoroton
I emphatically disagree with what the noble and learned Lord says. The idea that the ouster clause was spotted only by lawyers is completely wrong. The kinds of issue were characterised by the noble and learned Lord, Lord Ackner, as being issues provoking constitutional crises. With the greatest respect, constitutional crises are not provoked by issues where only a lawyer spots the significance. In relation to this issue, look at the four matters that the Lord Chancellor—

§ Lord Ackner
I think that the ouster clause is one of the most revealing events in the history of the independence of the judiciary and the rule of law. It was supported by the Government. The Government had the advantage of the advice of the noble and learned Lord the Attorney-General and the then, albeit reluctant, noble and learned Lord the Lord Chancellor. What stopped them? Merely—and it is merely—the threat by an already sacked Lord Chancellor to put his name down to speak against the ouster clause. The Government then ran for cover. Is that not the best example of the lack of independence of the Prime Minister, the Attorney-General and even the Lord Chancellor? Yet the mere threat to speak against the clause by someone whose power had been taken away was sufficient.

§ 5.15 p.m.

§ Lord Falconer of Thoroton
I disagree completely with the account given. This is not a moment to get into judicial argument, save to say that the issue in relation to the ouster clause was whether or not it had to be High Court judges, as opposed to some sort of appeal tribunal, who considered appeals from the Home Office. That was the great constitutional issue that arose. The fact that the Government, having heard a wide range of views in relation to it, changed their mind, does not for one moment show that one needs the Lord Chancellor to be a lawyer. That is the issue that we are debating today.
I respectfully submit to the Committee that the correct issue is whether or not the person has the clout and the ability to do the job. Sometimes the person will be a lawyer and sometimes he will not. I do not think that only a lawyer could spot the issues that arise for him to deal with. I think it is much more likely that that requires an amalgam of qualities. In those circumstances, I respectfully ask the Committee to reject the amendment. I know that it is unlikely that the amendment will be put to the test today.
I shall deal very briefly with the specifics of the amendment. I am a little surprised by the terms of proposed subparagraph (a), which are that to be eligible for appointment a person must not only have been qualified as a lawyer for at least 15 years but must also have practised for at least 15 years. Would this 43 mean that somebody who had served at the Bar or practised as a solicitor for, say, 10, or even 14, years and was then elected to Parliament and served as a law officer would not be eligible to be Lord Chancellor? I note that no such requirement exists for the Scottish Minister of Justice. In his evidence to the Select Committee, Roy Martin, Vice-Dean of the Faculty of Advocates, noted that his assessment was that the distinction between the two holders of that office, one of whom was a lawyer and one of whom was not, made no particular difference. Indeed, very few countries would impose such a requirement on their justice Ministers.
The alternative qualifying requirement proposed by the amendment is that, prior to appointment, a Lord Chancellor must have served as a judge; indeed, he must have held high judicial office. Such a requirement would go further than even the current convention regarding appointment to the office. Several of my distinguished predecessors would not have met this requirement. Given the acceptance that the Lord Chancellor should no longer exercise judicial functions, it seems strange that "having held judicial office" should be specified in statute as one of the qualifications for the post.
I come back to my essential point. Look at the agreed definition of what the office does. The choice of the individual must be a matter for the Prime Minister to determine. It is neither necessary nor sensible to set out a qualification requirement in statute. I shall therefore ask the noble Lord to withdraw the amendment.
Before I do, I shall deal with the powerful speech of the noble and learned Lord, Lord Cooke of Thorndon. He is absolutely right that the office of Lord Chancellor has huge international prestige because the Lord Chancellor is the embodiment of the law and he is the head of the judiciary in England and Wales—with the greatest respect to every other nation, probably the leading common law country in the world. That will change by agreement because he will no longer be a judge or the head of the judiciary. He will perform other functions. I have gone through what the functions are. While nothing we do should seek to reduce the prestige of the office, I do not think that it follows that a non-lawyer holding it, whatever it is called—if it is the Lord Chancellor, then the Lord Chancellor—would necessarily be lacking in prestige.

§ Lord Kingsland
The noble and learned Lord the Lord Chancellor rightly recognised the intellectual and emotional force of the speech by the noble and learned Lord, Lord Cooke. The Lord Chancellor, although he has occasionally sat as a judge in the past 30 or 40 years, retains his international jurisprudential prestige not because of his role as a judge but because of his wider constitutional role in the United Kingdom. I hope that the noble and learned Lord the Lord Chancellor will reflect on what the noble and learned Lord, Lord Cooke, said.
44 It is the general prestige of the office in all its ramifications that carries the international weight to which the noble and learned Lord, Lord Cooke, referred. I do not think that it is sufficient for the noble and learned Lord the Lord Chancellor simply to say that, now the Lord Chancellor will no longer sit as a judge, that removes the basis for the convention that he should always be a lawyer.
I am not going to elaborate on the excellent debate that we have had on this issue. I share the views expressed about this matter by all noble Lords, except the noble Lord, Lord Goodhart, and the noble and learned Lord the Lord Chancellor. On the issue of the ouster clause, I recall the noble and learned Lord, Lord Woolf, saying, in his speech at the Squire Library, that his concerns about the proposed new position of Secretary of State for Constitutional Affairs were exacerbated by the fact that, in the battle in Cabinet between the Home Secretary and the Secretary of State for Constitutional Affairs, the Home Secretary had clearly won.
I know that the noble and learned Lord the Lord Chancellor was, in a sense, doubling up two roles there, but at that time the noble and learned Lord primarily regarded himself as Secretary of State for Constitutional Affairs. The noble and learned Lord, Lord Woolf, clearly felt that the absence of the Lord Chancellor, or someone who regarded himself as having the status of the Lord Chancellor in the Cabinet, was determinant of the ouster clause battle. It may be that the noble and learned Lord the Lord Chancellor wants to put a different interpretation on those events; but, nevertheless, that was the interpretation that the noble and learned Lord, Lord Woolf, put on them.
I strongly disagree with the views of the noble and learned Lord the Lord Chancellor about the importance of the Lord Chancellor's qualifications as a lawyer in respect of his duties under the concordat. These are sophisticated responsibilities dealing with complex legal matters that require someone of equal qualifications to the Lord Chief Justice to carry them out properly. I share entirely the views of the noble and learned Lord, Lord Ackner, about the importance of having a lawyer to run the court system.
As for representing the rule of law in Cabinet, it is not just the ouster clause that convinces me that we need a senior and well qualified lawyer to represent the rule of law in Cabinet discussions. I can think of an issue that arose a year earlier connected to the admission of propensity evidence in criminal trial—something which I suspect the human rights convention, because of the different ways our continental friends conduct criminal trials, does not prohibit, but something which has been at the root of our common law for hundreds of years: the rule that the prosecution cannot lead in a criminal trial with propensity evidence. As a result of the Criminal Justice Act 2003, that rule no longer holds, to the great detriment of our society.
I know that the noble and learned Lord the Lord Chancellor takes a different view from me on the admission of propensity evidence. Nevertheless, I do 45 not see how the common law traditions of that principle could possibly have been represented successfully in the Cabinet unless they were represented by a lawyer.
For all those reasons, I propose to pursue this amendment on Report. Meanwhile, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Lord Windlesham moved Amendment No. 87:

§ Before Clause 15, insert the following new clause—

§ "OATH TO BE TAKEN BY LORD CHANCELLOR

§ The Lord Chancellor shall not be required to take the oath set out in section 4 of the Promissory Oaths Act 1868 (c. 72) (form of judicial oath) but shall take the Lord Chancellor's Oath set out in Schedule (Lord chancellor Oath)."

§ The noble Lord said: This amendment raises another profoundly important issue in public life, if not quite on the same scale as the debate to which we have just listened. It raises the significance of an oath as a form of public undertaking. At present, I believe, subject to correction, that the Lord Chancellor is required to take a judicial oath—that is, the same oath that is taken by other judges; which is expected of them, and which they take. The same applies when a Lord Chancellor is appointed.

§ Assuming, as Amendment No. 85 does, that the Lord Chancellor is no longer to have jurisdiction as a judge—and we heard what the noble and learned Lord, Lord Falconer, had to say on that issue earlier this afternoon—the question arises whether or not he should take an additional and special oath. The necessity to take an oath can be, in some instances, a formal prerequisite of holding a public office. A considerable number of Privy Counsellors have been present in the Chamber this afternoon, and they will recall, as I do, the occasion of taking a Privy Counsellor's oath and greatly valuing it.

§ So what is the oath? What does the symbolism stand for? I would suggest that it is a form of promise. It is a solemn undertaking, often expressed, although not always, in a sworn statement. It is rightfully regarded as a formal necessity for any person exercising the judicial functions that will, for example, fall to a new-style Lord Chancellor, or whatever title he may have. For such purposes, an oath can be in either Christian or non-Christian form, as requested by the person to be appointed.

§ It is therefore an open question—one on which the views of the Committee would be of value, and I hope of value to the Government—whether or not taking an oath or making a formal undertaking should be a prerequisite of holding judicial office, whether as a Lord Chancellor with or without judicial duties as such, or as a Secretary of State. I beg to move.

§ Lord Mackay of Clashfern
The oath that the Lord Chancellor takes, and is required to take, is one that requires him to carry out his functions in a particular way in the office of Lord Chancellor. The present holder of that office has taken that oath. Therefore, I assume that it is possible to perform the functions 46 required by the oath without actually sitting judicially, since he has not done that. I do not imagine for a moment that he thinks that he has not properly carried out the duties that he undertook in the oath that he took at the Royal Courts of Justice a few days after his appointment. So it applies to the office of Lord Chancellor. It is certainly possible to do right to all manner of people according to the laws and usages of this realm in the office of Lord Chancellor without actually sitting as a judge.

§ Lord Falconer of Thoroton
This is a tricky issue. We are all keen that the Lord Chancellor should no longer be a judge. There is an element of confusion, therefore, if we make him swear either a judicial oath or something akin to it. He would in any event have to swear the oath required by the Promissory Oaths Act 1868, which requires the Secretary of State to take both the oath of allegiance and the official oath, which go as follows: I,[blank], do swear that I will be faithful and bear true allegiance to Her Majesty Queen [Elizabeth II], her heirs and successors, according to law", and then, I, [blank], do swear that I will well and truly serve Her Majesty Queen [Elizabeth II] in the office of [blank]. So help me God". That does not quite reach the points that the noble Lord, Lord Windlesham, understandably wants to reach, which is that the office-holder who we are talking about should also swear to uphold the independence of the judiciary and the rule of law. So is there a solution in the middle whereby the officeholder takes the Secretary of State's oath but also refers specifically in what he says to his particular special duties as Lord Chancellor or Secretary of State for Constitutional Affairs, whichever it may be, that does not lead to confusion with the judicial oath? That seems the right approach to the issues that the noble Lord, Lord Windlesham, has raised.
Perhaps I may take these issues away and think about them. The Select Committee was keen that the office holder should not take the judicial oath, but was divided—at paragraphs 61 and 62—about whether he or she should take an alternative form of oath. The noble Lord, Lord Windlesham, has been helpful in bringing that issue to the surface. Perhaps I can think about it and return to it on Report. He may think that I have had enough time to think about it, but it has been useful to have the views of the Committee.

§ Lord Windlesham
I should welcome that; I think it a most generous response and an entirely appropriate one. It may well be that the judicial oath is not entirely appropriate in the circumstances. On the other hand, some form of formal undertaking would strengthen the position of the new office holder. With those few remarks, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ 5.30 p.m.

§ Lord Lloyd of Berwick moved Amendment No. 88: Before Clause 15, insert the following new clause—

§ "FURTHER PROVISIONS RELATING TO OFFICE OF

LORD CHANCELLOR

§ A person is not qualified to be Lord Chancellor unless he is a member of the House of Lords."

§ The noble and learned Lord said: The amendment follows on from the amendment of the noble Lord, Lord Kingsland, Amendment No. 86. I did not take part in the debate on that amendment but I was very interested to hear the reference of the noble and learned Lord the Lord Chancellor to Sir Christopher Hatton. Contrary to what the noble and learned Lord said, he was a lawyer—although not a very good one—and he was chosen as a Lord Chancellor by Queen Elizabeth I because of his handsome person and his skill in dancing. I am sure we all think that the present Lord Chancellor would qualify under the first head, but I do not think that we can express an opinion as to his skill in dancing.

§ I can be brief in moving the amendment because all I need to do is to quote a short paragraph from the Lord Chancellor's speech in reply to the debate on 13 July. He said: Others argue that additional restrictions are required: that the office holder should be a lawyer or a judge, or take a special oath or be a Member of this House. We shall come to those amendments later. I can certainly see that on occasion it would be an attraction to a Prime Minister to have a senior lawyer in the post. I can see the attraction of the holder of this office being in this House. But the question is"—

§ I emphasise these words— should the Prime Minister be constrained to have a senior lawyer in the House of Lords?".—[Official Report, 13/7/04; col. 1189.]

§ Noble Lords all said "Yes", and within a few minutes the Committee voted, by a majority of 240 to 208, to answer the question by saying yes, the Prime Minister should be constrained to have a senior lawyer in this House.

§ I may have misheard the noble Lord, Lord Goodhart, describe that as a narrow majority. A majority of 32 in a vote of 240 to 208 does not seem to me to be a narrow majority. But, anyway, that was the view of the Committee.

§ The purpose of the amendment is to give effect to the vote which the Committee then took. It voted to retain the office of Lord Chancellor as it has been traditionally understood—that is, held by a senior lawyer in this House. In my respectful submission, it follows that the amendment should not now be opposed by the Government. The quotation from the Lord Chancellor's reply to the debate on the last occasion means to me that the Government should not have opposed the amendment then either. I beg to move.

§ Lord Goodhart
There is obviously an overlap between this amendment and Amendment No. 86. In replying to Amendment No. 86, the noble and learned Lord the Lord Chancellor was, to some extent, also expressing views that apply to Amendment No. 88. Nevertheless, there are significant differences.
48 I cannot agree with the noble and learned Lord, Lord Lloyd of Berwick, that this issue was decided by the vote on 13 July. No doubt a number of noble Lords did say "Yes" in response to the rhetorical question of the noble and learned Lord the Lord Chancellor, but that is not how decisions are taken in your Lordships' House. It would have taken only 16 or 17 noble Lords who voted in favour of that amendment to vote against this amendment for it to have been defeated had it been put to the vote on that day. Amendments decide what is on the face of the paper they affect, not on matters which may or may not be consequential.
There are significant differences between Amendments Nos. 86 and 88. As I said in my speech on Amendment No. 86, I can see and accept that there are arguments of considerable substance for requiring the Lord Chancellor to have legal qualifications. My party in your Lordships' House is divided on that issue; however, we take a firm view on the question of this amendment. As is apparent, from time to time one or two mavericks among my noble friends do not always take the party line, but we have firmly decided that we are opposed to the amendment.
Undoubtedly it may frequently be the case that the Lord Chancellor will be in your Lordships' House because the most suitable person to hold that office is a Member of this House. As I said earlier, since the general election of 1997 we have continuously had one of the law officers in this House, which is not something that has happened, as far as I am aware, for many years previously, if at all. However, I do not believe that the Lord Chancellor should be required to be a Member of your Lordships' House.
The only positive argument that has been put forward—apart from the suggestion that membership of your Lordships' House adds to the prestige of the office—is that a Lord Chancellor is likely to be more independent, and therefore more effective in protecting judicial independence and the rule of law, if he or she was an elder statesman or stateswoman with no further ambitions for promotion to the office of Prime Minister or any other office which may be regarded as requiring membership of the House of Commons.
But making it a statutory requirement that the Lord Chancellor should be a Member of your Lordships' House will not in any way ensure that the Lord Chancellor stands up for the rule of law. A Prime Minister who wants to find an inactive and compliant Lord Chancellor will find one—there are plenty of those, frankly, in the legal profession—and someone could certainly be found who would be given a seat in your Lordships' House.
But if a Prime Minister really wants to appoint someone with force and independence of character, the statutory requirement excluding all Members of the House of Commons could well rule out the best candidate. That is much more clearly the case than the requirement that the Lord Chancellor should hold a legal qualification. Membership of your Lordships' House in no way adds to the skill or capacity of an individual to serve in the office of Lord Chancellor.
49 On the contrary, I believe that a Lord Chancellor in the House of Commons may carry more weight in the Cabinet than a Lord Chancellor in your Lordships' House. Certainly it would carry more weight in the battle with the Treasury for the necessary funds to run the Department of Constitutional Affairs.
In many circumstances the amendment would rule out the ability of a Prime Minister to appoint the best person for the job. If the job is to be done at all, one must assume that the Prime Minister is willing to accept the best person to do the job. The effect of the amendment would be to rule out rising stars and encourage extinct volcanoes. In saying that, I do not wish to suggest for a moment that the present Lord Chancellor is either extinct, or indeed a volcano. But I do believe there is a very serious risk here: that requiring a Lord Chancellor to be a member of the House of Lords would rule out the person who could most effectively do the job.

§ Lord Kingsland
I rise briefly to support the amendment by the noble and learned Lord, Lord Lloyd of Berwick. As the noble and learned Lord says, the amendment is intimately linked with Amendment No. 86, which seeks to insert into the Bill the requirement that the Lord Chancellor is a lawyer.
It is difficult to conceive, in modern politics, that somebody who met the requirements of Amendment No. 86 could be a member of another place, given the demands of modern practice at the Bar and, equally, the demands of modern constituency politics. So, in practice, it is likely that, if the Lord Chancellor is required to be a senior lawyer of 15 years' standing, then even the most careful forensic search of members of another place would not discover such a candidate. Indeed, in my submission the one almost certainly follows from the other—but not quite. Therefore I think it desirable that we have this extra guarantee on the face of the Bill.
Now if your Lordships were to decide, in the context of making rules for your Lordships' own House, that the Lord Chancellor ought, in some form or other, to continue to sit on the Woolsack, perhaps in some modified role, then, although technically it does not require the Lord Chancellor to be a Peer, in practice it would mean that he or she would have to be.
It may be, therefore, that an alternative way of achieving the objective that we and the noble and learned Lord, Lord Lloyd of Berwick, would like to achieve could be through the rules of your Lordships' House. That is a matter on which your Lordships can reflect between now and Report.

§ Lord Ackner
The reference to an extinct volcano was very relevant to this question of the future Lord Chancellor being a Member of the House of Lords, because I understood that he should be a person with all political passion spent: that he was no longer likely to be ambitious in regard to himself. I find that a strange concept in relation to a Member of the other place. Nowadays in the other place, as I understand it, it is the sole occupation of their Members to be 50 Members, and their anxiety for promotion needs no form of emphasis by me. So it is difficult to envisage who this person might be in the Commons.
In the Lords there is no problem at all. I do not want it thought that the Lords is in any way an elephants' graveyard, but it is a place where you have distinguished people who are no longer vying with each other for promotion. I therefore would think that the obligation that the person who is a candidate should be from this House is overwhelming.

5.45 pm

§ Lord Mackay of Clashfern
I should put the point that the noble Lord, Lord Goodhart, has said it would be a disadvantage in argument with the Chancellor of the Exchequer if a person was a Member of this House rather than the House of Commons. I do not know how the noble Lord, Lord Goodhart, comes by that information but I would be very interested to hear the noble and learned Lord, the Lord Chancellor, deal with that point in his reply.

§ Lord Falconer of Thoroton
To pick up the point of the noble and learned Lord, Lord Ackner, one does wish that some of the volcanoes were a bit more extinct than they are in this particular House. Perhaps I may deal with three points. The noble and learned Lord, Lord Lloyd of Berwick, in support of his amendment, made the point that on July 13 the House had voted in effect to make sure that the Lord Chancellor should be a Peer. I disagree with that and agree with the arguments made by the noble Lord. Lord Goodhart. One has to look at the office in the context of the new role that the House agrees the Lord Chancellor should perform.
The Lord Chancellor has been in the Lords because, first, all Ministers used to be in the Lords. Secondly, he stayed in the Lords because that was where the judiciary was based, of which he was head. I accept that historically, since 1766 all Lord Chancellors have been Lords. There have been brief periods when they have not been Lords, as with Lord Havers and Lord Birkenhead, but that was because they were on the way to being Lords. I am happy to see the noble Lord, Lord Henley, in his place since the last one who was not a Lord was Sir Robert Henley who was only made Lord Keeper. Unfortunately they were very keen that he should preside over the trial of his kinsman Lord Ferrers, so he was made a Peer at that point, which shows how amenable some Peers could be in those days.
The one prior to him who was not made a Peer was Sir Nathan Wright; according to Campbell's book on Lord Chancellors, he was never a Member of Parliament. It was considered making him a Peer at one stage to enable him to speak on an issue of controversy in the House of Lords, but to quote from Campbell's book, from his deficiency in speaking, and his want of constitutional learning and general information, his colleagues thought it more prudent to keep him silent". 51 Prior to that, the previous Lord Chancellor who did not become a peer was Charles Yorke. He was made Lord Chancellor and before he could take up the office—knowing what was going to happen—he committed suicide. I draw no conclusions from that. The noble and learned Lord, Lord Lloyd of Berwick, is indeed right that Sir Christopher Hatton had a very limited legal background. It was said that he was a bad lawyer: a handsome but bad lawyer. Before that, Sir Nicholas Bacon was not a Lord.

§ Apart from those exceptions, the Lord Chancellor always has been a Lord. I say he has always been a Lord since if you are going to be a lawyer and the chief judge, you have to be in the place where the judges sit. That has now, in effect, gone by agreement. We therefore need to look at the issue as a matter of principle.

§ I set out the four functions of the new office holder: the Minister, the concordat, the appointer of judges and the defender of the rule of law. In relation to each of those functions, one could see advantages in sometimes having someone from the Commons. For example, if you have three billion pounds' worth of expenditure, then it is wise to have somebody who is in the Commons; but where you are dealing with the rule of law, it may be sensible to have a lawyer from outside who could only get into Parliament by being appointed as a Lord in the House of Lords.

§ But the idea that the Prime Minister should be constrained in having the office holder in the Lords, in the context of the new role, in my respectful submission leads to the conclusion that the Prime Minister may not necessarily be getting the best person for the job. The best person for the job is somebody who can perform all of those four functions.

§ I went through the history of some previous Lord Chancellors as a matter of historical record and we all laughed at some lack of qualities in them, but it is an indication of how easy it is, or was then, to get somebody to fulfil this role who would not necessarily have the qualities that we are looking for.

§ Inevitably, the job and the qualities attached to the person who does the job depend on the Prime Minister appointing the right person. We make a great mistake to say that the best person for the new role is bound to come from the Lords. Is it not conceivable that the bravest and most courageous defender of the constitution would be in the Commons, and not some lawyer appointed in the Lords? It would depend on the circumstances prevailing at any particular moment.

§ Just as Attorneys-General have come from this House over the past seven or eight years and those appointments looked obviously appropriate, even though no Attorney-General had come from this House for hundreds of years, so if the Prime Minister appointed the right person as Lord Chancellor or office holder from the Commons, I suspect that that would look the right thing to have done at the time. We would make a great mistake—it would be an odd thing to do when the role is of such constitutional 52 importance—if we restricted the holder of the office to the weaker of the two Chambers; we all agree that primacy lies in the House of Commons.

§ I earnestly ask Members of the Committee to consider what I have said, and what was said by the noble Lord, Lord Goodhart. They must ask whether it would be in the interests of the constitution to put in place such a restriction.

§ Lord Lloyd of Berwick
In moving my amendment, I did not advance any arguments in favour of having the Lord Chancellor be a Member of this House, because, due to the way in which the question was put previously—is the Prime Minister constrained to have a senior lawyer in the House?—and the answer given by the House a few minutes later, I thought that the question had been foreclosed.
The noble Lord, Lord Goodhart, says that the effect of the amendment might be to rule out a rising star. That is not only the amendment's effect, but its whole purpose. We do not want as Lord Chancellor a young politician on the make. We want a senior lawyer who has come to the end of his career, and the proper place for him—an argument that I shall develop at the next stage of our proceedings—is this House, where he is needed. I entirely agree with everything said by the noble and learned Lord, Lord Ackner. Meanwhile, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Clauses 15 and 16 agreed to.

§ Clause 17 [The Supreme Court]:

§ The Duke of Montrose moved Amendment No. 88ZA: Page 6, line 17, after "has" insert ", after consultation with the senior judges and such other persons as the Minister shall consider appropriate,

§ The noble Duke said: Perhaps it is in the nature of Committee proceedings that I feel slightly astonished to find myself moving the first amendment to this most momentous part of the Bill, which is to do with the Supreme Court. The group is about various aspects of consultation that could be required in the implementation of the role of the Supreme Court, a subject raised with us by the Law Society of Scotland.

§ I turn first to Amendment No. 88ZA. In the clause, the fundamental framework of the Supreme Court is laid out, particularly the appropriate number of judges. That has been a matter of considerable discussion already in the Select Committee, from the record of its proceedings. For a layman such as me, that is a useful illustration of the types of argument likely to arise if anyone begins to talk about varying the number of judges. The amendment requires consultation with the senior judges—they are defined in Clause 51—and other appropriate persons before the order increasing the maximum number of judges is laid in Parliament. The number of judges in the Supreme Court is an important issue that impacts on the capacity of the court to perform its functions. As it is such an important matter, any proposal must be widely consulted on. The amendment seeks to provide for such consultation.

§ Amendment No. 88BP deals with the Bill's consideration of the making of rules. We are very glad to he able to thank the Government for addressing the question by coming up with Amendment No. 88BPA, which would be a great improvement. We are grateful that the point has been taken on board, as it will improve the Bill.

§ The third amendment in the group is Amendment No. 91A. The consultation question comes up again under the powers of a Minister to make rules. The amendment ensures that the Minister must consult before making orders or regulations under the Bill. The creation of the Supreme Court is an important constitutional event and requires an inclusive approach to its provisions. The amendment ensures that consultation is required to take place before the making of orders or regulations under the Bill. I beg to move.

§ Baroness Carnegy of Lour
I support my noble friend in moving the amendment. The Government have done well in accepting the gist of Amendment No. 88BP, as has the Law Society of Scotland in getting them to accept it. I am not quite sure how the Bill got through the examination that it is supposed to have had from the Advocate General and the Scottish Executive, to both of whom the Law Society of Scotland sent the amendments, but they seem quite happy with them. The Law Society of Scotland has encouraged us to table several groups of amendments. Some of them relate precisely to Scotland. Others do not; they are on general points. This group deals with general ones. We are very grateful for the acceptance of the point of Amendment No. 88BP.
The consultation on the number of judges and the making of orders seems important. The Government should look at it. The Law Society of Scotland points out that consultation on the Bill was extremely short; it had only 12 weeks to respond. The Supreme Court that we are now discussing is of huge importance to Scotland. Criminal cases from Scotland will not come before it, but civil and devolution cases will. It is extremely important that we look at it from the point of view of Scotland, as well as from that of the rest of the UK. I am very glad that the Law Society of Scotland is alert to that. I hope that the Government will look at those points and perhaps come back on Report with a solution.

§ Baroness Ashton of Upholland
I am grateful to the noble Duke and the noble Baroness. I have had copies of the Law Society of Scotland's amendments, and am grateful to it for the points that it seeks to clarify with them. My argument will be founded primarily on the basis that what we should do in terms of consultation is best covered by convention, and not necessarily appropriate for prescription. That is my difficulty with the amendments.
Amendment No. 88ZA obliges the Minister to consult, the senior judges and such other persons", 54 before a draft Order in Council can be made. It is our contention that the impetus for increasing the number of judges to the Supreme Court is likely to come from the court itself, which we believe is best placed to assess the size of its workload and the appropriate complement of permanent judges.

§ Resolution of each House will also take place. In your Lordships' House and in another place, all interested parties will wish to know who has been consulted and on what basis, and that they have had the opportunity to express their views. It is not easy to see what is gained by having an additional level of consultation in every instance, which could second guess the court's view that the number of judges should he increased.

§ I was grateful for the welcome given to Amendment No. 88BPA. Amendment No. 88BP would require that such persons considered appropriate should be consulted before making Supreme Court rules. As we said as regards Amendment No. 88BPA, that package of amendments will supersede the amendment before us.

§ I turn to Amendment No. 91A in Clause 106. As the noble Baroness has said, the purpose of the amendment is that appropriate consultation should take place with those persons likely to be affected. From what the noble Duke, the Duke of Montrose, and the noble Baroness said, it was primarily about making sure that the Supreme Court would not be established without the right kind of consultation. But the amendment goes much further. One of the points at issue is that any order under the Act, including minor commencement orders, would require this kind of consultation. A blanket requirement on every order under an Act would be unprecedented and more likely to be inappropriate.

§ I am also not sure whether it would be of great value. The principal delegated powers in the Bill are already subject to the requirements of consultation, concurrence or parliamentary procedure tailored to the substance of the power in question. In a sense, this is an additional catch-all and superfluous. It is also difficult to see who would be required to be consulted and what constituted appropriate consultation and so forth.

§ In essence, we believe that it is much better to be governed by the way the matter has been dealt with before rather than being prescribed. On that basis I hope that the amendment can be withdrawn.

Lord Renton
I apologise to the Committee for not being present when this group of amendments was first discussed. I hope that I am not overlapping too much in saying that it would be a very great pity if this House loses the Lords of Appeal including those who have retired from that position. They play a most valuable part—

§ Lord Falconer of Thoroton
The noble Lord is making a very important point. I wonder whether it would be more appropriate to deal with it In the next block of amendments when discussing the principle of the Supreme Court.

§ The Duke of Montrose
I was grateful to hear what the Minister said. I am interested that she spoke about 55 consultation by convention. I shall have to bone up on what that means, particularly as we are talking about a completely new court. No doubt someone can tell me a little more about what is required in that regard.
In Amendment No. 91A we were merely talking about orders and regulations and not about the construction of the court as a whole. I would like to take these amendments away and return with them at a later stage.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 17 shall stand part of the Bill?

§ 6 p.m.

§ Lord Lloyd of Berwick
I begin by saying that whoever put this group of amendments together before us deserves a prize of some kind. I have never seen a group of amendments remotely like it before. For that reason it seemed to me that it might help if at the start of the debate I said something about what the noble Lord, Lord Kingsland, said on an earlier occasion. In a fine flight of fancy he referred to the architecture of Part 1, which is a phrase he repeated again this afternoon. I believe he may be quite pleased with that phrase.
Perhaps I should say something about the architecture of Part 2; in other words, explain to the Committee what we are opposing and what we are not. When I say "We", I am speaking on behalf of the noble Viscount, Lord Bledisloe, who unfortunately cannot be here. An unconfirmed rumour suggests that he may have gone fishing. I may be speaking also on behalf of the noble Lord, Lord Kingsland, and the noble Lord, Lord Norton. In due course he will say whether I am or not. Unhappily, the noble Lord, Lord Norton, is not with us.
We oppose the creation of the Supreme Court and we oppose Clause 17 standing part of the Bill, but we do not oppose the Judicial Appointments Commission in Part 3 of the Bill; indeed, we strongly support it. We also support the idea of a selection committee, which is spelt out in Schedule 9. If we are successful in opposing Clause 17 standing part of the Bill, we want to keep Schedule 9, but apply it to the appointment of future Law Lords. That explains why we need to amend Schedule 9.
As regards the amendments to Clauses 19 and 20, they are also intended to bring about the application of the selection process to the Law Lords if Clause 17 is defeated. Similarly, Clauses 26 to 50 and Schedules 10 and 11 are only necessary if the Supreme Court is created. If we are successful in opposing Clause 17 they will simply disappear from the Bill. They are quite unnecessary if the Law Lords are retained except only for Clause 30. The noble Viscount, Lord Bledisloe, feels strongly that medical retirement should be applied to the Law Lords if they continue to exist. I am not quite sure why he takes that view so strongly, but he does.
I hope that that is all reasonably straightforward. We need to amend Clause 51, again on the assumption that the Law Lords are retained. We shall need a new 56 Clause 19, which follows on Amendment No. 85 which we discussed earlier. If we are to abolish the right of the Lord Chancellor to sit as a judge, we shall need to amend the Appellate Jurisdiction Act 1876. While doing so, we believe that it is sensible to make statutory reference to the position of the senior Law Lord and the deputy senior Law Lord. I believe that is fairly straightforward.
However, there is one complication. On the one hand, one could be in favour of keeping the Law Lords and yet want to restrict the extent to which they can take part in the proceedings of this House. On the other hand, one could be in favour of the Supreme Court yet want members of that court to take some part in the proceedings of this House; for example, one might want the President of the Supreme Court, the Lord Chief Justice or the Master of the Rolls to be able to take part in the proceedings in this House. There are those alternatives. Unfortunately, we do not come to those until we reach Part 4 of the Bill at page 40.
As currently drafted, the Bill excludes judges altogether from the proceedings of this House, whether they be Law Lords or members of the new Supreme Court. Our Amendment No. 88CQ would allow the Law Lords to sit and speak, as they do now, but not to vote. That again is contingent on the Law Lords being retained; in other words, on our defeating Clause 17. I hope that that has not made the architecture even more complicated.
I come to the main point. Why do the Government want to create a Supreme Court and get rid of the Law Lords? It is a question which we have discussed many times since 12 June 2003 and we all know the arguments. It may help if I summarise the arguments which have been put forward from time to time by the Lord Chancellor and on each occasion simply add a one-line answer to those arguments. If I have left anything out then the Lord Chancellor will correct me when he comes to reply.
I have not forgotten that we are in Committee. I can see Ministers on the Government Front Bench looking doubtful. I shall try not to make a Second Reading speech. The fact is that this is a matter of very great importance and these amendments cannot really be discussed without bearing in mind what the arguments are. I shall be as brief as I possibly can.
Argument number one is that it is said that we need a Supreme Court to protect and enhance the independence of the highest court in the land. The answer is that everyone accepts that the Law Lords are completely independent. How do we add to their independence by requiring the same people doing the same job to move to another location? That is the first argument and the others will be as short as that.
Argument number two is that it is said that Law Lords, so long as they are Members of the House of Lords, are not perceived to be independent. The public are said to believe that their decisions are biased and politically motivated. The answer is that the Government have not produced a shred of evidence to support that argument. Anybody who reads a newspaper must surely be aware of the Law Lords and must surely be aware that 57 they are judges and not politicians. The public do not regard the Lord Chief Justice or other judges as being politically motivated; why should they regard the Law Lords as being politically motivated?
Argument number three is that the public are confused by the fact that the Law Lords carry out their functions in the House of Lords. The answer is that they will be much more confused if we create a Supreme Court. Immediately they will think of the Supreme Court of the United States, and our Supreme Court, if we have one, could not be less like the Supreme Court of the United States.
Argument number four is that the Law Lords are appointed as judges not as legislators. That appears to be the main argument; it was certainly the first argument put forward in the Government's written memorandum to the Select Committee. The answer is that the same is true of many of the Cross-Benchers. It is true of the doctors, diplomats, Cabinet secretaries, service chiefs, men of science and the Bishops. They are all appointed because they have reached the top of their professions. They are not appointed as legislators; nevertheless they make very useful contributions to this House. Why therefore should the Law Lords be the only profession excluded?
Argument number five is that the judges are different because the judiciary is a separate branch of government. The theory of separation of powers requires that they be kept separate. The answer is that the separation of powers is not part of our constitution. In the Select Committee the Lord Chancellor agreed that if the separation of powers were the only argument it would not suffice to call for the creation of a Supreme Court.
Argument number six is that judges may have to decide questions on which they may already have spoken in the House. The answer is that is always a danger. The noble and learned Lord, Lord Steyn, as your Lordships may have seen, recently had to recuse himself from sitting on the Bellmarsh appeal because he had already expressed views in a lecture. Unless we are going to muzzle the Law Lords altogether we must trust them to "act with integrity"—a phrase used earlier—and not to sit on an appeal when their views are known.
Argument number seven is that allowing the Law Lords to sit in the legislature is contrary to Article 6 of the European Convention. The answer to that is that it is just plain wrong. The point has already been decided by the European Convention on Human Rights in a case called Pabla Ky v. Finland. I quote with permission from the speech of the noble and learned Lord, Lord Hope, in a very recent decision of the House of Lords. Applied to our own constitutional arrangements, Pabla Ky v Finland teaches us that there is no fundamental objection to members of either House of Parliament serving, while still members of the House, as members of a court. Arguments based on the theory of the separation of powers alone will not suffice. It all depends on what they say and do in Parliament and how that relates to the issue which they have to decide as members of that tribunal". 58 6.15 p.m.
Lastly, I turn to argument number eight. It is that the Law Lords are cramped for space. The answer to that is that we all have our own rooms and our own law reports. They are good rooms, although not so big as those we had when we were in the Law Courts. They look out on the east front of Westminster Abbey—and who would not want that if they could have it?
On the question of staff, I do not know whether the Department for Constitutional Affairs has consulted them for their views on their accommodation. Of course they are cramped—who in this House is not cramped?—but, on a straw poll taken today, they are all happy to stay where they are.
Those are the eight answers to the eight arguments which have so far been advanced, and they are amply supported by the evidence we heard in the Select Committee. Of course there was evidence the other way, notably the evidence of the noble and learned Lord, Lord Bingham. But any fair reader of the evidence taken in the Select Committee would conclude that the great weight of the evidence, including that of the noble and learned Lords, Lord Nicholls and Lord Nolan, was in favour of retaining the Law Lords. Certainly that is true of the Scots Law Lords. Indeed, the entire Scottish judiciary has said that it is in favour of retaining the Law Lords. And of course it was the unanimous view of the Wakeham commission, since when nothing has changed that I am aware of.
That really ends the Second Reading speech. So far I have said nothing on the question of cost. That seems to me to be a vital consideration. It is not only the cost of setting up the new courts, wherever they are going to be set up, but also the continuing cost of having a separate body sitting in a separate building; the costs of the staff, the doormen, the library and so on.
At this point the argument almost loses touch with reality. For it is becoming increasingly clear that, whatever we decide on Clause 17, the Supreme Court is not going to happen in practice. And why not? Because the Lord Chancellor simply cannot find a suitable building at a cost which he can afford. He has been looking, as we know, for 15 months. The search has already cost hundreds of thousands of pounds. I hope that we will be given an updated figure. He started looking at 40 sites. It was then reduced to two—the Middlesex Guildhall and Somerset House. I start with Middlesex Guildhall.
As some of' your Lordships know, but most of you probably do not, there are two courts on the ground floor of the building which have been used as criminal courts since 1912. There is a council chamber on the first floor. All those courts or rooms are completely unsuitable for the hearing of appeals, as appeals are currently heard in committee rooms 1 and 2 upstairs.
The Law Lords pointed that out in their memorandum of 30 April, which your Lordships will find at page 114 of the second volume of the evidence. The Lord Chancellor has agreed with them in that respect. In the Select Committee he said at question 69: We fully accept that if what the Law Lords want is a seminar approach rather than a raked approach"— 59 which those rooms have— then that will happen". If we are going to use the Middlesex Guildhall it follows that there will have to be extensive rebuilding inside. The building is listed. I do not know how far the Lord Chancellor has gone in negotiations with English Heritage. Maybe he has been successful. The three spaces I mentioned are referred to as the "historic places" of that building. The question is whether English Heritage will agree to their being altered as they must be.
Even if English Heritage agrees, the building will never look right as a Supreme Court. I quote from page 115 of the Law Lords' memorandum: we have grave doubts whether, even if radically transformed, these spaces can ever provide a suitable setting. The impression will always remain that the Supreme Court has been crudely thrust into a building designed and built for quite another purpose". And what will it cost? We are told that it would cost £32 million. But that excludes the cost of decanting the existing courts—there are seven in all—which will have to go somewhere. Where will they go to? Rumour says that they may have to build new courts in Croydon, but we do not know because we have not been told.
The Guildhall looks hopeless simply in terms of value for money. In any event, it is estimated that it could not be ready until 2007 or 2008 at the earliest. That is the date in the Law Lords' memorandum. It has not been contradicted.
Attention then moved from the Guildhall to Somerset House. The one thing in favour of the Guildhall is that it is in the right place. That is not true of Somerset House. It is not the part of Somerset House that faces on to the Strand, which we all know, but the part that faces on to Waterloo Bridge. It is a busy road with poor access to the main entrance. We were shown a plan in the Select Committee for what was called at that stage refurbishment.
There is a parking space for four cars only. When they are parked, there is literally no access at all. We were shown the plan. When I went to look at Somerset House it immediately became obvious that it would not do. When the Law Lords went to look at it they agreed. They went so far as to say that it was worse than the Middlesex Guildhall.
Another plan was prepared, which I have not seen. It would involve rebuilding the entire inside of Somerset House. I am talking about the new west wing. Heaven knows what that would cost: one assumes that the cost would be prohibitive. In addition there would be the cost of decanting Inland Revenue staff to wherever they would go.
All that is up in the air. We have no figures to go on. In April we were promised a decision by June. On 9 June we were promised a decision by the autumn. It is now the autumn. If a decision has been taken, I hope that we will be told. I hope we will also be told what it will cost. We cannot make a sensible decision without knowing the cost.
60 The Lord Chancellor has said by way of reassurance that if we pass Part 2 a suitable building will be found. But can we be sure of that? If a suitable building cannot be found the Supreme Court will have to stay here, so we will have the same judges doing the same job in the same building. Some of them will be Members of the House of Lords, but increasingly members of that court will not be members of the House of Lords. All we will have done is to change the name of the existing Law Lords.
I suggest that all that makes the debate unrealistic. It is time that we called a halt to the process by voting that Clause 17 does not stand part.

§ Lord Ackner
I will not repeat anything said by my noble and learned friend, but I want to make one point clear. The Government have emphasised frequently that access to justice is a vital concept and it must be stimulated. My noble and learned friend has not emphasised as I would wish that it has been confirmed that not a penny of new money is to be provided for the scheme. That has been commented on by the Lord Chief Justice, who has said in terms that that means the scheme cannot work.
My noble and learned friend did not refer to what it will mean in practice. It has been estimated that the costs of going to the Supreme Court will be about 10 times the cost of going to the House of Lords as it stands. That is to be paid for by the litigant. It is the old "cream for the office cat" argument that has been applied to all the courts so that the legislature does not incur any costs. That is an absurdity because the cost of the provision of the machinery of justice must to some extent be a state service and contributed to by the state.
Furthermore, the priorities are all wrong. If money is to be found, what cries out for it is the modernisation of the commercial court. My noble and learned friend Lord Hoffmann, in addressing your Lordships about three months ago, explained that the state of the commercial court—which is responsible for bringing in a great deal of money from overseas—is a disgrace and that if money is to be found it should be applied to that court.
As my noble and learned friend Lord Lloyd has made clear, although the accommodation is cramped, it is not anything like as bad as when I came. Then we had two libraries in the hall for nine judges. There were only nine judges because the Treasury, unlike any other public organisation, reckoned that we could divide nine by two and produce two committees of five every day. That was achieved by the simple process of importing a retired judge from Scotland until the penny dropped and they realised that by the time his expenses had been paid that would be a much more expensive way of proceeding, so we had a tenth judge.
Anyhow, we now have books in our rooms purely because three of us who were appointed together took our books from the law courts with us. We were threatened with all kinds of punishment, but we said, "Very well, if you demand the books back we shall write to the Times about it". That ensured that we had libraries in our rooms.
61 In my time, we had two secretaries for 10 judges—one secretary for five of their Lordships. I believe that the figure is now one secretary for two judges, so that is an improvement. Our accommodation was so restricted that in order to house one new Law Lord, a ladies' washroom—to use the American expression—had to be converted. I teased the Law Lord by saying, "Tell them that you don't want the 'Ladies' notice on the door rubbed out, but you just want the word `please' added". That has been changed. We now have a decent room for conferences and for a library. We are short of space and staff but it is workable. But what is proposed is a really stupid waste of money.

§ 6.30 p.m.

Lord Renton
The noble and learned Lord, Lord Lloyd of Berwick, supported by the noble and learned Lord, Lord Ackner, has put forward a case for retaining the Law Lords in this House. For centuries, certainly for generations, they have played a most valuable part in the development of our law. I confess that I was called to the Bar no less than 70 years ago. I have been a Queen's Counsel for 50 years and I have been in Parliament for nearly 60 years. In all that time I have never heard any broad criticism of any importance of the part played by the Law Lords in our legal system. I go further than that. I remind your Lordships that legislation is not easy, especially legislation dealing with legal matters. Time and again the Law Lords help us to get it right and without them our legislation would undoubtedly deteriorate.
It seems to me that the noble and learned Lords—I happen to know that they would be supported by the other noble and learned Lords—have made a formidable and indeed an unanswerable case for retaining their position in your Lordships' House. If they were to go, as the noble and learned Lord, Lord Ackner, pointed out, it would cost money to replace them with a Supreme Court. Not only would the litigants have to bear the cost, but we taxpayers would also have to bear some. It would cost quite a lot of money just to establish that Supreme Court.
One could go on about this all night, but I wish to point out to the noble and learned Lord who is still the Lord Chancellor that in this unfortunate, controversial, mainly unacceptable Bill, perhaps the most disastrous feature is pushing the noble and learned Lords out of this House where they perform such a vital part of our constitution.

§ The Lord Bishop of Salisbury
Perhaps I may offer a comment on the history of the institution of the Law Lords and on their place in our common life. Behind what I understand to be the current fashion for the separation of powers, to which the noble and learned Lord, Lord Lloyd of Berwick, referred, the Government sense that the institution is mistrusted in some way. I believe that to pursue the separation is to capitulate to that sense of mistrust and to capitulate to the sense of social disintegration that is around us rather than to affirm the real purpose of our institutions.
62 I take it that here we are not interested so much in the separation of powers as in the drawing together of good minds exercised in the public interest. The way in which that interacts with the legislative tasks of this House seems to me to be very important. Of course, we can and do disperse functions to specialists in many ways, but should we do that by hiving off institutions so that the whole is no longer seen to be greater than the sum of the parts? My fear is that we shall have many dispersed parts and not a sense of a whole working together and that that would undermine many important things about our common life in the country.
The common life that we share has at its heart the pursuit of what is best for the people of this country as a whole. We do our best to act in this House by consensus, bearing in mind our history and our obligations to the future. On the whole we do not feel ourselves to be bound by current political fashions but we try to do our best to step beyond them.
If I understand the situation correctly, appeals used to be heard in this House as a complete House. Due to the complexities of legislation in the 19th century, the institution of the Law Lords developed so that appeals could be heard by those who had the judicial competence to hear them. However, never for one moment did we think that that was somehow a different function of our responsibilities; it was merely a devolved and in-gathering one. I believe that it is very important that we stick with that. It is the jury system of this House for hearing these appeals. It is through the Members of our House hearing appeals and being able to help us in the process of the reform of the legal basis of our common life that I believe that we stand the best chance of holding such matters together. We could go by way of dispersion into many dismembered fragments, but I believe that that would undermine much of what our fragile and still largely unwritten constitution tries to do in holding our common life together.

§ Lord Crickhowell
I had not intended to speak, but I shall do so briefly. One very good reason why I had not intended to speak is that I arrived at Heathrow from Egypt only this afternoon. I had the thought that the Lord Chancellor appears to share at least one thing with the Pharaohs, an ambition for great building projects. I have no intention of referring to his previous essay into this area. The Lord Chancellor is so popular among Members that any form of harsh criticism is felt to be entirely unreasonable. I know that when we debated his previous responsibilities for a well known building, it was felt that perhaps I had been too critical of him.
It is absolutely essential that before the House takes a final decision—probably not this evening—on this important issue covered by Clause 17—the setting up of the Supreme Court—we have some reliable information about the costs.
The noble and learned Lord, Lord Lloyd of Berwick, referred to the cost of £32 million. As I say, I have been abroad, and my memory may fail me, but I thought the last estimate we had in the later stages of the Committee was considerably higher. We have 63 heard from the noble and learned Lord that the plan seemed to change almost daily. My only comment is to ask that all noble Lords, before they take a decision on this matter, read the simply brilliant report of my noble and learned friend Lord Fraser of Carmyllie on what happened with the Scottish Parliament at Holyrood, although I have not had an opportunity to dig out that report and bring it in to the Chamber. The noble and learned Lord identified, with wonderful clarity and humour, and very effectively, exactly what went wrong with that great project. In the way the scheme for creating a Supreme Court is moving, one sees some of the foundations being laid for a similar disaster.
I do not want to say more now. It may well be that we will have to return to this issue later on Report. I will simply say that before a final decision is taken on the establishment of a Supreme Court, we must have an estimate of costs and a plan and a programme that are believable according to the kind of criteria so clearly established by my noble and learned friend Lord Fraser of Carmyllie in his report. Indeed, if we took that report as setting out the principles that should be at the heart of decision-making on this matter, we would do well. I, for one, will have that report in front of me at every stage of the proceedings when we come to discuss the costs, which I am sure the noble and learned Lord the Lord Chancellor will put before us in due course.
I will not press the noble and learned Lord to give a comprehensive answer this evening, although it would be helpful if the House could have some indication of the way things have moved since he last reported to the Committee, or whether some of the suggestions made by the noble and learned Lord, Lord Lloyd of Berwick, about changes since then are correct. All I am doing this afternoon, prompted by my admiration of those ruins that have survived the millennium, is to ensure that if the noble and learned Lord the Lord Chancellor seeks again to imitate the Pharaohs, his buildings will not be quite as expensive as theirs, but will last as long.

§ Baroness Carnegy of Lour
Could the noble and learned Lord the Lord Chancellor provide the Committee with one detail? Precisely how will the costs, of which the noble and learned Lord spoke, be allocated? Paragraph 302 on page 58 of the Explanatory Notes states that, of the running costs, Approximately 80% … will be recovered through fee income". Paragraph 303 then states: The costs of the United Kingdom Supreme Court attributable to civil business will be recovered through fee recovery". In later amendments, which my noble friend the Duke of Montrose and I will ask the House to consider, we express a view that has been given to us by the Law Society of Scotland: these fees are going to be recovered by an addition to the cost to litigants in all the courts of the United Kingdom on civil cases.
Paragraph 305 of the Explanatory Notes states that, criminal appeals and devolution cases", 64 will be funded by general taxation—that is, by the taxpayer—coming from the Vote of the Department for Constitutional Affairs. The civil cases, we understand, are to be funded by additional charges in all the courts of the United Kingdom. Is that correct? If that could be confirmed, it would help my noble friend and me with our amendments later on.

§ 6.45 p.m.

§ The Earl of Onslow
I know that mentioning the Dome in this context is rather like Basil Fawlty saying, "Who won the war?", so I will refrain. I will, however, refer your Lordships to the building of the Palace of Westminster, which, I believe, was originally budgeted at £500,000, but came in at £2 million. There is nothing new in governments of all political persuasions, be they Whig, Liberal or Ozymandias, bogging up big public building costs.
I simply ask the noble and learned Lord this: first, is there anything wrong with the quality of the law being provided by the present arrangement? If so, what is it?
Secondly, I suggest it is valuable that when a serving Law Lord has a point to make—and, in my experience, they have done so with great restraint in this House—it is much more effective for him to do so here, to a Minister who has to answer the question being posed, than to give a lecture in a building somewhere else.
Thirdly, this institution is known as "the High Court of Parliament". It evolved to give justice and law. Surely, right at the top, there is nothing wrong with continuing that process. Just because Montesquieu misunderstood Locke in the English constitution—which was then mistranslated by the Americans for their own constitution—there is no need for us to copy the Liberal Democrats with that particular form of intellectual laziness.
This system has worked well. As far as I can gather, there is no criticism of the quality of the Law Lords or of the justice they provide. They seem to be able to ask government the right questions with restraint and sensibility. If that is the case, we should under no circumstances muck about with a system that works very well.

§ Lord Goodhart
This group of amendments raises what I believe to be the most critical question in the whole of this Bill. The creation of the judicial appointments commission, though perhaps more important, is much less controversial than the abolition of the office of Lord Chancellor, which, though equally controversial, is less important. Indeed, I believe that the creation of a Supreme Court is central to the whole of this Bill, and I regard this group as comprising, in effect, wrecking amendments.
The noble and learned Lord, Lord Lloyd of Berwick, in his introduction to this amendment, put up what he regarded as the eight arguments put forward in favour of setting up a Supreme Court, and then proceeded to attempt to knock them down. On some of those arguments, I agree with the noble and learned Lord. For example, I agree that the Law Lords are independent of political pressure of any kind, as a result of their 65 membership of this House. It is not necessary to set up a Supreme Court to protect their independence. I also agree that the present situation is, although not beyond argument, probably not incompatible with Article 6 of the European Convention on Human Rights.
However, there are undoubtedly serious problems of cost. I am not sure the history of the Palace of Westminster is a particularly good example. Although it may have come in well over budget, what we have as a result is one of the great buildings of the world, which I am not sure it would have been if it had been built for the £500,000 originally proposed.
The noble Lord, Lord Crickhowell, spoke with a good deal of sense. I do not propose to discuss the question of cost, because that is a matter for the noble and learned Lord the Lord Chancellor.
It is an inexcusable anomaly that in the 2Ist century the highest court in the land is not a freestanding supreme court but one of the Houses of the legislature. Generally the work is done in the Appellate Committee of the House, but when taking decisions Law Lords sit as your Lordships' House and not as a committee of the House; they make speeches rather than give judgments, and, when they disagree, a vote is taken in the House. In theory, other Members of your Lordships' House could vote on that decision. The last time that it was tried—I think it was in the 1820s—the attempted vote of the lay Members present was simply ignored, but that is a matter of convention rather than law. There was some concern at the time of the final decision in the Pinochet case that some lay Members of your Lordships' House who disagreed very strongly with the decision might try to vote. In the end they did not, but it seems appropriate that the power to do that kind of thing should be ruled out beyond argument by setting up an independent Supreme Court.
The Law Lords have tiny, poky offices on an attic floor of the Palace of Westminster. That is a matter for them, and if the noble and learned Lord, Lord Ackner, is happy with the accommodation, so be it. But hearings are held in unsuitable committee rooms and occasionally in the Chamber itself. Having appeared as counsel at the Bar of your Lordships' House in a case that was heard in this Chamber, I can say that it is by some distance the most inconvenient court in which I have ever appeared. Whether the court sits in the Chamber or, as happens much more frequently, in a committee room, there are serious difficulties of public access, because of security matters, which go beyond the problems that would in any event be attached to a supreme court. The legislature is plainly a far more likely target of terrorist activity than a court.
It is a genuine cause of confusion, certainly abroad and among ordinary citizens at home. For instance, a few days ago I was watching a BBC news programme in which it was reported that the House of Lords was about to start hearings on the appeals by the Belmarsh detainees. The newsreader had to explain that the appeal was being heard by the Law Lords and not the whole House. If that had not been explained, clearly there would have been confusion.
66 As to the views of the current Law Lords, they are divided very much down the middle. Those who argue for staying here put forward no positive argument for remaining, except that they find meetings with other Members of your Lordships' House of value to them when performing their duties. I suggest that they have been beguiled by the delights of membership of your Lordships' House, which is a very beguiling place. But I doubt whether the contact—and it is generally rather limited contact—that the Law Lords have with other Members of the House is of much value to them. Anyway, it is not clear to me that contact with a distinguished and interesting but plainly unrepresentative group of people is likely to he of special value. Indeed, it strongly suggests that those who hold that view have an old-fashioned belief in the virtue of the Establishment, with a capital "E".
I much prefer the views of the senior Law Lord, the noble and learned Lord, Lord Bingham of Cornhill, the noble and learned Lord, Lord Steyn, and the noble and learned Baroness, Lady Hale, that this is the wrong place for the Supreme Court. I agree entirely with them that the Law Lords are judges and not legislators. I very much doubt whether there is much real support for the retention of the judicial functions of your Lordships' House outside this House itself. The presence of Law Lords is seen by some noble Lords as enhancing the prestige of your Lordships' House and as an obstacle to the alarming prospect of its democratic reform. Those are not justifications for retention. The combination of the legislative and judicial functions of your Lordships' House is—and, I believe, is seen to be outside the House—a constitutional nonsense.
It may be appropriate for the judiciary to be represented in your Lordships' House in future by, for example, present or former holders of the offices of Lord Chief Justice, Lord President of the Court of Session or the President of the Supreme Court, but it is neither necessary nor appropriate to have representation of the judiciary in your Lordships' House by all 12 serving Law Lords or by retired Law Lords. They do not represent the judiciary as such; they speak for themselves. Law Lords should not in this House speak for themselves, and certainly should not vote, as one of them did during the debate at Second Reading of the Bill last February.
The legislative role of your Lordships' House has a vital part to play in the constitution of the United Kingdom but its judicial role should be consigned to the scrapheap of constitutional history.

§ Lord Cooke of Thorndon
As the noble Lord, Lord Goodhart, has implied, Clause 17, together with other provisions, notably Clause 34, is intended to deprive your Lordships' House of one of its primary functions. It would be wrong to think of the House as primarily a legislative body. As the noble Lord, Lord Renton, and the right reverend Prelate the Bishop of Salisbury have pointed out, for centuries the House has also exercised judicial functions, derived historically from the curia regis, and they have been performed in modern times by the Law Lords.
67 Being no longer one of them, I can safely say that the Law Lords of today have a unique international prestige, certainly unsurpassed for impartiality and quality by any other court in the world. That is not questioned, not even by those who on claimed grounds of principle or for love of change support a new Supreme Court. The tenor of the speech of the noble Lord, Lord Goodhart, confirms as much about the attitude of those who support a new Supreme Court. Why throw away this precious asset by needlessly creating a new Supreme Court which would not be truly supreme and whose role could well be misunderstood?
People with any familiarity with the present system, or any real interest in it, are not confused by it; rather they rejoice in it. When the public are told by the media that the highest court in the land, comprising no fewer than nine Law Lords, is hearing a case against the Government on asylum seekers, there is no suggestion of a lack of independence. Nor has the European Court of Human Rights ruled that mere membership of a body that also has legislative functions disqualifies a judge. A Law Lord who took an active part or voted in the passage of legislation might well be disqualified from sitting on a case concerning that legislation. But that is by an ordinary principle of natural justice, not by a doctrine peculiar to the United Kingdom constitutional arrangements. Indeed the same principle would disqualify a judge who in some other way had become a protagonist in an issue that subsequently came before the Law Lords for adjudication.
The separation of powers is said to lie behind the Bill—a doctrine that is foreign to the British constitution and is in any case undermined by the Bill itself. The genesis of the Bill and such drive as has impelled it has come from the executive. It is an executive measure, as the skilful arguments of the noble and learned Lord the Lord Chancellor have demonstrated. It is an executive-controlled measure, rather than a legislative one springing from a legislative institution. The message to the rest of the world is that a sufficiently determined executive—a government controlling part of a legislature—could, through that control, restructure a constitution as they thought fit. The implications would not be lost wherever they could be exploited.

§ 7 p.m.

§ Lord Hope of Craighead
I had not intended to speak in the debate for obvious reasons as a serving Law Lord. But I want to add just a footnote on one practical matter that has been touched on in a number of speeches about the question of accommodation. I think that the noble and learned Lord the Lord Chancellor would agree that an essential requirement of the move is that the building is suitable to accommodate a Supreme Court. That requires a building to which sufficient numbers of the public have access, to allow those who wish to attend to do so. As 68 the highest court in the land, in which appeals will be heard, the building must have an aura indicating that it is the Supreme Court.
I am concerned about some of the possible places to which we might move. So far, there seem to be two major problems. The first concerns access for members of the public, which was touched on by the noble Lord, Lord Goodhart. The two buildings that have been mentioned do not provide the kind of access that the noble Lord may have in mind. The rooms in Somerset House are not likely to provide space for very large audiences after the accommodation requirements of the justices themselves.
Even more important is finding a room of the quality required. The Committee Rooms, with their height, size and other features, provide the kind of majesty and the impression that one expects from a Supreme Court. If we compare that with the low ceilings in Somerset House and the layout in the Guildhall, we move from an atmosphere that is appropriate for such a court to something that is certainly not.
The Scottish Parliament was mentioned. I have visited the new Chamber, and while we may have something to say about its cost, we cannot argue with the imagination of the architect who designed it. It is an extraordinary success of bringing the audience and the legislators together in one place.
I am not suggesting that that sort of design is suitable for a Supreme Court, but it suggests one feature that should be built into the plans that the noble and learned Lord may have. He should employ an architect with some imagination who will examine the buildings that have been mentioned, or any others that come to mind, to see whether they can provide the kind of environment that is appropriate for a Supreme Court. Some costs may be involved, but it would be money well spent.
There is a kind of squeeze. Either the House of Lords and its judicial arm will be moved into a building that costs as little as possible, with all the deficits flowing from that, such as lack of space and presence in the hearing chamber, or money will be spent on creating an atmosphere and the space that is required. That will run into the kind of objections that have been touched on that far too much money has been spent on a move that need never have taken place.

§ Lord Brennan
The brevity of my intervention should not be regarded as a measure of my enthusiasm for a Supreme Court.
My first point is a practical one. On Second Reading we had little opportunity fully to debate each of the three major components that the measure embraces: the judicial appointments process; the role of the Lord Chancellor; and the creation of a Supreme Court. If there is a vote on the question of the Supreme Court on Report, it should be managed appropriately. The grouping of amendments for this part of the Committee stage, as the noble and learned Lord, Lord Lloyd of Berwick, said, is legislatively indigestible. That is putting it mildly.
69 There is one principal issue at the heart of the matter: should there be a Supreme Court? If the answer is yes, we can then debate the technicalities of it. If the answer is no, the issue falls away. Therefore, on Report, there should be a specific debate on whether Clause 17 should stand part of the Bill. There should be a clear vote, if there is to be one, on whether there should be a Supreme Court. Matters thereafter would be more manageable.
That is a different approach to how we normally consider Committee and Report debates. But the circumstances of the Bill justify that approach, all the more so because, as was pointed out, we are concerned here with constitutional architecture—clumsy as that phrase might seem. The role of the Supreme Court constitutionally under the Bill will relate to the role of Parliament, the role of the executive and the relationship between the three. It may well be necessary for us to consider whether the constitution as we knew it and might wish it to be is the constitution of today and the way we think that it ought to be. That question will occupy the world outside; yesterday may well enthral those in here. I therefore modestly suggest to the House that when we vote on the Supreme Court we take a clear decision that embraces the full ramifications of this major constitutional change.
In doing so, there are two very important subsidiary points on which we on these Benches will want reassurance from my noble and learned friend the Lord Chancellor. First, where and when are we to have a Supreme Court if there is to be one? I do not want chapter and verse as to month and last million of cost, but some plan. It is particularly important that it should be housed and managed in a way that will attract the public to the centre of what should he the Supreme Court and the national identity for justice.
In the United States—whether there is a different system does not matter—the civic pride with which its citizens enter the Supreme Court is highly to be respected. We should have the same civic sentiment in entering the Supreme Court of our country, which is why we want reassurance that the plan for what it will be will match the constitutional importance of what we propose.
The second subsidiary point is very important for us on these Benches. Making litigants the revenue source of paying for a Supreme Court takes a lot of swallowing. The court exists only to try points of general public importance which need resolution for the public good. There will be some costs—yes—but having it run by the litigants of the nation is not really appropriate. Some other way should be devised.
I entered the debate to reassure my noble and learned friend the Lord Chancellor that when the time comes those on these Benches will be resolutely in favour of the Supreme Court. It is a necessary and welcome constitutional change.

§ The Earl of Onslow
Does the noble Lord agree that these complicated issues, with which I am in complete agreement—whether the Supreme Court's powers as proposed are adequate; whether it should have the right to strike down legislation; in other words, 70 whether it should be a proper Supreme Court—are much too complicated to debate on Report alone? There is an argument for exactly what the noble Lord proposes. But, as I understand it, the Government are not proposing that. They are proposing just to remove the present powers outside this House. But to do what the noble Lord requires is a different but very important constitutional route, which should not just be tucked on Report, when one can speak only once.

§ Lord Brennan
If I gave the impression of suggesting a Supreme Court different from what we have now, I did not intend that. I meant Members of the Committee to consider that if we create a Supreme Court which is separate from this institution, its constitutional position needs to be assessed even though it performs the same function. It will have a public identity. Its role must be explained. The constitutional balance must be clear, even if it remains as it presently is. We may claim to understand it: the citizens of our country certainly do not.

§ 7.15 p.m.

§ Lord Kingsland
I have already given several speeches on the subject of the Supreme Court. I have no intention whatever of repeating them. I should just like to pick up on one or two points that have emerged in the debate.
Perhaps I may begin with the last point that was made by the noble Lord, Lord Brennan. Interestingly, in evidence to the Constitution Select Committee the noble Lord, Lord Rees-Mogg, made a similar point. He said that his worry about the establishment of an independent Supreme Court was not its existing powers, it was the powers that it would acquire as a result of being seen as an independent Supreme Court.
I do not know what the noble Lord, Lord Brennan, wants from the future Supreme Court; for example, whether he believes, like the noble and learned Lord the Lord Chancellor, that it ought to do exactly the same thing in a different place, or whether he would like to see it develop its jurisprudence along the lines that my noble friend Lord Onslow suggested. But if we have a Supreme Court in a separate building that is regarded as a distinct constitutional entity, the factor that was dwelt on so interestingly by the noble Lord, Lord Rees-Mogg, in the House of Lords Constitution Select Committee, is one that your Lordships will have to take into account on Report.
The observations of the noble and learned Lord, Lord Hope of Craighead, are also very important. As the noble and learned Lord, Lord Cooke, said in another outstanding speech today, the prestige of the Law Lords in your Lordships' House is immense. In fact, it is incomparable. If that prestige is to be retained and if the Government are to get their way over the Supreme Court, it is absolutely crucial that the building it inhabits is of equivalent status to the Palace of Westminster. That does not mean to say that it has to be as big: of course, it does not need to be as big. But it needs to be seen, architecturally, as representing an institution of equivalent value.
71 If the Government really want to achieve their objective of creating a Supreme Court that has real constitutional weight—they seem to suggest more constitutional weight than the existing one—they have to accept the architectural consequences of that. It would be an enormous shame if the Government got their way on the issue of principle, but put the Law Lords—now to become the Supreme Court judges—into a building that does not reflect the constitutional weight that the Government say that they want to give them.

§ Lord Falconer of Thoroton
This is a very important group of amendments, which provide the opportunity to debate in full the principles behind the Government's Supreme Court proposals. I rather agree with my noble friend Lord Brennan that the grouping is indigestible—there are too many in one group. But I think we understand why that is the position; it gives us an opportunity to consider a very important principle.
Our proposal to create a UK Supreme Court has received widespread support from scrutinising bodies. The Commons Select Committee supports it; the Scottish Parliament and its Justice 2 Committee support it. Many Members in the Chamber today were members of the Select Committee set up by this House to look at the Bill where we worked on this particular provision but did not reach agreement on whether there should be a Supreme Court.
The Select Committee was essential to the process that we had in relation to the Supreme Court because we were able to hear evidence from the senior Law Lord who, for reasons of principle, will not speak in the debates here. He gave evidence with the deputy senior Law Lord. They had differing views about whether there should be a Supreme Court. If Members of the Committee have a moment to read their debate, it identifies very clearly the debates of principle on whether there should be a Supreme Court. The deputy senior Law Lord, the noble and learned Lord, Lord Nicholls of Birkenhead, said, "Don't change it because it works". The senior Law Lord, the noble and learned Lord, Lord Bingham, in what I regard as extraordinarily impressive evidence—a view shared by the majority of the committee—took the view strongly that the time had come for a Supreme Court. He made it clear that he had heard no argument of principle contrary to that view, but I strongly recommend that noble Lords and noble and learned Lords read that evidence to see the clearest possible exposition of the points of principle.
The noble and learned Lord, Lord Lloyd, atomised the arguments into eight, some of which have been adopted by the Government and some of which have not; some of which I would adopt and some of which I have not. I shall put the argument in my own way and leave the noble and learned Lord, Lord Lloyd, to deal with it as he sees fit.
Two principles underpin the Government's proposals for a United Kingdom Supreme Court. The first is the functional separation of the judiciary from 72 the legislature. The second is the important need for greater constitutional clarity and visible independence for the United Kingdom's highest court. I have made it clear all along that I do not doubt for one moment the independence of the current Law Lords or any other Law Lords who sat in the past, but the issue is vital. I entirely agree with the view of the noble Lord, Lord Goodhart, that this is a critical part of the Bill.
Whether there should be a Supreme Court was keenly debated also by the Select Committee. It was dealing with fine legal arguments when the noble Lord, Lord Maclennan, who was a member of the Select Committee, caught us up short and made it clear that whether there should be a Supreme Court was a point of principle. I entirely agree with him about that.
The final court of appeal in any system should be a separate branch of the state from the executive and the legislature. The court must be demonstrably independent of Parliament and Parliament's Upper Chamber. Indeed, the noble and learned Lord, Lord Bingham, has said that a Supreme Court is an "imperative feature of a modern democratic state" and that he has, yet to hear any principled argument to the contrary". That is not just for reasons of constitutional nicety. The noble Earl, Lord Onslow, is of course right that our constitution is not separate and that the executive springs out of the legislature. He has made that point effectively on a number of occasions. However, we should make no mistake that the final court of appeal is doing something fundamentally different from the legislature and that it should be doing it separately. It should be clear that it is so doing.
Functional separation of the judiciary at all levels from the legislature and executive is a cardinal feature of a modern, liberal and democratic state governed by the rule of law. Whatever view one takes of the constitution, nobody, for one moment, would argue that it would be sensible to have a final court of appeal that was made up in part of the executive. Nobody would suggest that the legislators should also be members of the final court of appeal.

Lord Renton
I thank the noble and learned Lord for giving way. He spoke of the need for the final court of appeal to be separate from your Lordships' House. Does he not realise that the Law Lords have always maintained an independence of political pressure?

§ Lord Falconer of Thoroton
I fully accept that. I fully accept their independence of mind; I fully accept that they are not politically motivated in any way; I fully accept that they approach every issue on which they decide as judges in an independent way. However, they are part of the legislature. Everybody says that. The noble and learned Lord, Lord Cooke of Thorndon, made it clear that this Chamber is both legislative and judicial. He specifically described the history that has led to that conclusion. I submit, with the greatest possible respect, that the time has come to separate the two.
The Law Lords are judges and not legislators. The proposals for a UK Supreme Court would make the separation between the two roles explicit. Indeed, 73 some of the amendments tabled by the noble Lord, Lord Kingsland, the noble and learned Lord, Lord Lloyd, and the noble Viscount, Lord Bledisloe, acknowledge that by admitting that that separation is to some extent required. I do not suggest that they lack independence, but it is neither desirable nor sustainable to rely on the Law Lords' self-denying ordinance not to speak in the Chamber on issues that might later come before them for decision.
The time has come for our highest court to be a separate institution. The current arrangements simply do not meet the expectations of a modern, 21st-century democracy.
The UK's highest court should not only be separate; it should also be seen to be separate. A clear separation is important for the public both nationally and internationally. Our current constitutional arrangements are more opaque and confusing than they need to be. By establishing a Supreme Court, we will create a visible apex of an independent, United Kingdom judicial system. And we will increase public comprehension of the judicial system. I could not agree more that the Law Lords have the kind of international prestige to which the noble and learned Lord, Lord Cooke of Thorndon, referred. I have absolutely no doubt that a Supreme Court, consisting, as it will, of people of the same distinction, will very quickly gain the same prestige. What is more, it will be visibly separate.
I take the example of an appeal to which the noble Lord, Lord Goodhart, referred in the course of his remarks. An important appeal is being heard by nine Law Lords which will have ramifications for the United Kingdom. I make no comment on what the result will be. It may also be looked at by a world wider than the United Kingdom. It is in the interests of this country that there is clarity about precisely which part of the constitution is deciding that issue. That is important not just here, but throughout the whole world.
The Government believe strongly that our highest court should be one which others can look at as a beacon of excellence and independence and, as the noble and learned Lord, Lord Steyn, put it, a badge of independence and neutrality [and] a potent symbol of the allegiance of our country to the rule of law". The quality of the current and previous Law Lords is undisputed, but if our highest court is to be a real example to all, its independence must be plain for everyone to see—for members of the judiciary, for our legal professions, for users of the court system and for all members of the public.
The words of the noble and learned Baroness, Lady Hale of Richmond, after her first three months as a Law Lord, are of interest. Referring to this great place, she said: This is an intensely political place. This may have become more apparent since the party political balance became closer and the House of Lords has felt much freer to engage in serious challenge to the House of Commons. This is none of our business as judges, yet if we take an interest we risk compromising our neutrality and if we do not we are seen as remote and stand-offish". 74 The noble and learned Baroness, Lady Hale, was describing the atmosphere of this place as she, a Law Lord, saw it. She was not saying that it compromised her independence, but it is wrong as a matter of principle that the place where one puts the final court of appeal is described by one of the current Law Lords as "an intensely political place". One wants one's final court to decide issues free from the ebbs and flows of politics, independent of the legislature which may have passed the laws that it is construing.
In principle, the time has come for a Supreme Court for this country. Moreover, it would do our institutions a huge amount of good both nationally and internationally. As I have said, I have absolutely no doubt that a Supreme Court that is set up in this country would very quickly become the beacon of quality for the common law world.
I turn to practicalities. The Supreme Court must have appropriate premises. The Government have agreed a set of requirements with the Law Lords and our commitment to meeting them is clear. The executive must be held accountable for that. The search for suitable premises must not distract us from the principles behind these reforms. It is no reason to delay legislation. However, I agree with the noble Lord, Lord Crickhowell, that proper information needs to be provided before this Chamber reaches a conclusion.

§ 7.30 p.m.

§ I have learnt many things as a result of my involvement in the Dome, one of which is not to keep talking about what is going on. It is better to wait until you have your final position and then say what it is. I am sure that the noble Lord, Lord Crickhowell, who was himself a proponent of great buildings throughout the length and breadth of the principality of Wales, would take the same view. It is better not to give a running commentary of what is going on, but to wait until you have the final position before saying what it is. I think that is the right approach to take in relation to the site of the Supreme Court. Two buildings are on the shortlist and it is the easiest thing in the world to identify problems related to each of them. We need to reach the end of the process and then talk about the position. However, I agree entirely with the noble Lord, Lord Crickhowell, that before this House takes a final decision, it should have the information before it.

§ It would be invidious of me to comment on the current accommodation. Again, I draw the attention of noble Lords to the evidence given to the Select Committee, where the noble and learned Lord, Lord Bingham, referred to the views of the much-missed Lord Hobhouse about the accommodation in the Lords. That was the view held by Lord Hobhouse before there was any question of whether there should be a Supreme Court. I earnestly direct the attention of noble Lords to that point.

§ I turn to the points made by my noble friend Lord Brennan. The House does need to know exactly where the Supreme Court is going to be and what it is going to cost and, as I have said to the noble Lord, Lord Crickhowell, I hope that we will be in a position to know that before we reach the end of the process.

§ As the noble Baroness, Lady Carnegy of Lour, pointed out, the costs in criminal and devolution issues will not be financed by fees. The England and Wales justice system would finance a substantial part of the cost of the House of Lords civil justice work not through fees charged exclusively by the House of Lords, but by fees charged throughout the whole of the civil justice system. That will work in the way it operates at the moment. As my predecessor my noble and learned friend Lord Irvine made clear, the civil justice system operates on the basis that it should cover its costs; that is, those who go to justice should pay for it.

§ Fees are charged, for example, for issuing a writ even though in many cases it may never reach a trial, let alone go to the Court of Appeal. However, those fees are intended to finance the civil justice system. The litigants who use it should pay for it, including a Court of Appeal and, I would submit, including a final Court of Appeal. The cost of a final Court of Appeal, in terms of the individual addition to fees, would be minuscule in relation to those fees overall. But I think that that is the right principle given that legal aid ensures that those who otherwise could not afford it but otherwise have merit in their appeal can have the costs of those fees met by legal aid. Let us remember, however, that although there are poor litigants, there are also rich litigants who should make a contribution to the cost of the system. So I do not think that it is wrong in principle for the costs to be met out of the fees paid into the civil justice system.

§ So far as concerns Scotland, in which the noble Baroness, Lady Carnegy, is particularly interested, that is a matter to be discussed by the Scottish Executive.

§ Baroness Carnegy of Lour
I probably should understand the point, but I do not. Do I take it from what the Lord Chancellor has said that there may be increases in fees in all the courts of the land to meet the costs of civil litigation in the Supreme Court?

§ Lord Falconer of Thoroton
Not necessarily in all the courts of the land. Fees charged to civil litigants in England and Wales need to cover the costs of the Supreme Court. How Scotland deals with the issue is a matter for discussion between the London Government and the Scottish Executive. So it will not necessarily lead to any increase in fees there.

§ Lord Mackay of Clashfern
Does that mean that Scottish people are to pay some part of the cost of the new Supreme Court once the Government procedures have been gone through?

§ Lord Falconer of Thoroton
It is a matter for discussion between the Scottish Executive and London. It is to 76 cover in effect the costs of Scottish civil appeals to the Supreme Court, which apart from devolution appeals are the only ones to come from Scotland. I do not think that there will be many of them.

§ Lord Mackay of Clashfern
I agree that there would not be many, but is the noble and learned Lord the Lord Chancellor saying that it has now been decided that some part of the cost of the new Supreme Court should be met by civil fees or otherwise in Scotland; that is, by Scotland whether by civil fees or in some other way?

§ Lord Falconer of Thoroton
I am avoiding a clear answer to that question by saying that discussions are going on. That is why I am not answering the question directly.
I think that I have dealt with all the points that have been made. It is our respectful submission that the time has come for a Supreme Court. I believe that the important points about accommodation need to be addressed, but the grist of the issue we are now considering is that of the principle.

§ Lord Lloyd of Berwick
I am grateful to all noble Lords who have taken part in the debate. I do not think that the noble and learned Lord the Lord Chancellor has advanced any arguments that we have not heard before. He has relied in particular on what he calls the functional separation of the judiciary from the legislature and the greater visible independence of the Supreme Court, but he has said very little about the question of cost. I leave it simply as I think the noble and learned Lord intends to leave it, although I emphasise strongly the point made by the noble Lord, Lord Crickhowell, that before we can consider sensibly the question of the Supreme Court on Report, we must have a firm decision on where it is going to be accommodated and what it is going to cost.
I want also to echo the point made by the noble Lord, Lord Brennan. On the next occasion, let us have the amendments grouped in such a way that we can have a clear vote on whether there should be a Supreme Court. Many of the subsequent amendments would then either fall away or be otherwise dealt with.
Having said that, and in the earnest hope that we shall have some real plans and figures to go on before Report, I shall not press the Question that Clause 17 should stand part of the Bill.

§ Clause 17 agreed to.

§ Clause 18 agreed to.

§ Lord Evans of Temple Guiting
I beg to move that the House do now resume. In moving the Motion, I suggest that we do not return to the Committee (on Recommitment) before twenty minutes to nine.

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

§ House resumed.