Constitutional Reform Bill [H.L.]

HL Deb 11 October 2004 vol 665 cc89-110

8.40 p.m.

House again in Committee (on Recommitment).

[Amendment No. 88ZB not moved.]

Clause 19 [Qualification for appointment]:

[Amendment No. 88ZC not moved.]

The Duke of Montrose moved Amendment No. 88ZD: Page 7, line 11, after second "in" insert "either

The noble Duke said: In moving the amendment I shall speak also to Amendment No. 88ZE, which is consequential. In Clause 19 we are dealing with qualifications for appointment. The Lord Chancellor has shown the Committee this afternoon what a great supporter he is of the principle of the best man for the job. The amendment seeks to ensure that the pool of candidates with a Scottish law background from whom the choice can be made is reasonably comprehensive.

The amendment ensures that solicitors in Scotland who have rights of audience in either the High Court of Justiciary or the Court of Session will be qualified to be appointed a judge of the Supreme Court. The present wording means that a solicitor who obtained permission to take a couple of criminal cases 20 years ago and then spent a lifetime in the Court of Session on civil cases would have his case considered before someone who was eminently more talented but was permitted only to appear in the High Court of Justiciary.

Under Section 24 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which inserted Section 25A into the Solicitors (Scotland) Act 1980, solicitors in Scotland are entitled to apply for extended rights of audience. Those rights can be applied for use in either the Court of Session or the High Court of Justiciary or both.

Many solicitors have obtained such rights of audience. The Law Society of Scotland tells me that there are 69 with rights of audience in the Court of Session, and 103 with rights in the High Court of Justiciary. However, only three have rights of audience in both.

It is possible for advocates who are given automatic qualification for appointment to the Supreme Court under Clause 19(2)(b) to have careers centred on only civil or criminal work. It is therefore inappropriate to demand that solicitors should have such a qualification. Amendment No. 88ZE seeks to insert "or", after "either" which is inserted by Amendment No. 88ZD. I beg to move.

Baroness Ashton of Upholland

I am grateful to the noble Duke, the Duke of Montrose, for his amendments. He is right that my noble and learned friend is certain that we need to ensure that we obtain the best possible candidates for the positions on the Supreme Court. That means candidates with the highest and most appropriate experience befitting the court on which they intend to serve.

That has also been the aim for appointments of Lords of Appeal in Ordinary, and the qualification requirements in Clause 19—as I am sure the noble Duke is aware—mirror those of long standing for appointment as a Lord of Appeal in Ordinary. I can see that he is looking to suggest to us that we are missing candidates by not enlarging the pool, but this extension means that we would move away from the most appropriate experience. It is important that the breadth of experience is taken into account. Although the noble Duke, the Duke of Montrose, talked about advocates in the Scottish system who may specialise, they have the right to appear in both courts. Indeed, one presumes that in discussing their candidature for the Supreme Court, just as one would do for Lords of Appeal in Ordinary, the issue of the breadth of their experience would be part and parcel of what would be discussed.

We do not agree with the noble Duke, the Duke of Montrose, that this is the way forward. I checked and there appears to be no evidence that Scottish Law Lords who have served with such distinction have lacked for expertise in Scottish criminal law, nor is there any evidence to suggest that the pool is restricted so that outstanding candidates are being passed over those less suited. Breadth of experience is important when looking for the right candidates with a long and distinguished record in the Scottish system. I hope that the noble Duke will feel able to withdraw his amendment.

8.45 p.m.

Baroness Carnegy of Lour

Quite frankly, that is a very unsatisfactory answer. Has the noble Baroness consulted the Advocate General, whose job it is to look at United Kingdom legislation relating to Scotland at Westminster, to ensure that it is all right to limit the possibility of all those solicitors being appointed to the Supreme Court? It seems to me to be quite wrong and completely unfair.

I understand—the noble Baroness may be able to confirm this—that solicitors in Northern Ireland are able to appear in any court and, therefore, are eligible. Having been accepted as solicitor advocates, solicitors in Scotland should have the same ability to be appointed to the Supreme Court as advocates. It is a matter of principle and the answer of the noble Baroness did not quite add up. I hope that she will consult the Advocate General, if she has not done so already, and the Scottish Executive, to ensure that they really want to prejudice the interests of Scottish solicitor advocates in this way.

Baroness Ashton of Upholland

I believe that we have consulted. If that is not the case I shall inform the noble Baroness. As the noble Baroness knows well, the Scottish system is different. Those who have the right to appear in the High Court of Justiciary will, by definition, have no experience of civil cases. Of course, there is no appeal from the High Court of Justiciary to the Supreme Court. I believe we are describing different systems.

My principal point is that the reason the system exists as it does now and works well is that one is looking for breadth. The noble Baroness makes a slightly different point which is about the way in which the legal system is designed in Scotland. Of course, I shall ensure that that dialogue has taken place, as the noble Baroness rightly suggests, and write to her if that is the case.

Baroness Carnegy of Lour

I thank the noble Baroness for that answer. She says that the system in Scotland is different and, therefore, people appearing in the High Court—solicitor advocates—would not have a right to appear at the Supreme Court. Devolution issues usually come from the High Court of Justiciary, so her argument does not really hold up. It holds up in relation only to criminal cases. I understand that usually devolution cases come from the High Court of Justiciary.

Baroness Ashton of Upholland

There is no evidence to suggest that the system does not work well now. As I have already indicated, I shall check to ensure that the consultation has taken place and I shall write to the noble Baroness on that.

The Duke of Montrose

I was interested to hear the Minister's reply on this matter. Her answer appeared to concentrate mainly on the breadth of experience of advocates and the fact that they would ensure they had the right breadth of experience, which may mean that those who had experience only in one court may be less qualified than those with experience in both. Our amendment concerns the question of solicitors who are allowed to speak in the Scottish courts under the new legislation. In the mean time, we would like to consider this matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 88ZE not moved.]

Clause 19 agreed to.

Clause 20 [Selection of members of the Court]:

[Amendments Nos. 88ZF to 88ZJ not moved.]

Clause 20 agreed to.

[Amendment No. 88A not moved.]

Schedule 9 [Supreme Court selection commissions]:

[Amendments Nos. 88B to 88AW not moved.]

Schedule 9 agreed to.

Clause 21 [Selection process]:

[Amendments Nos. 88AX and 88AY not moved.]

Clause 21 agreed to.

Clause 22 [Report]:

The Duke of Montrose moved Amendment No. 88BA:

Page 8, line 31, leave out "in Scotland" and insert "of the Scottish Executive"

The noble Duke said: We would regard this as a drafting amendment, which deals with a point brought up by the Law Society of Scotland. The amendment seeks to ensure that the First Minister is given his proper title. The reason is that Section 44 of the Scotland Act 1998 states: (1) There shall be a Scottish Executive whose Members shall be - (a) the First Minister". It is therefore appropriate that Clause 21 reflects this statutory position. I beg to move.

Baroness Ashton of Upholland

I confess I am puzzled by this amendment. The noble Duke's, description of his amendment is that of an innocuous clarification, but I submit to him that there is nothing to clarify. Nowhere in the Scotland Act 1998—and I have done some checking, I have the Act with me—is the title "First Minister of the Scottish Executive" used. We believe that the way parliamentary counsel have determined the wording of the Bill is entirely consistent with previous legislation.

The noble Duke's amendment would have the effect of introducing an inconsistency, as Clauses 21(6)(c) and 22(5)(b) both require the First Minister to be consulted, but the amendment would only change Clause 22. This would have the opposite effect to that which the noble Duke is trying to ensure—it would not be clear. On the basis of that lack of clarity, and also because, having checked previous legislation, the formulation is that which has always been used, I hope the noble Duke will feel able to withdraw his amendment.

The Duke of Montrose

This is becoming quite an interesting question. Perhaps there is precedent in other legislation. It might be a little far-fetched to say that the clergy in the Church of Scotland are known as ministers and that there might be a first minister, although I think that anyone who might be regarded as a first minister is known as the moderator. To say "the First Minister of the Scottish Executive" would make the wording absolutely clear. Perhaps we should take this away and look at any more inconsistencies. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 agreed to.

Clause 24 [Exercise of powers to reject or require reconsideration]:

[Amendment No. 88BB not moved.]

Clause 24 agreed to.

Clauses 25 and 26 agreed to.

Clause 27 [Tenure]:

Baroness Carnegy of Lour moved Amendment No. 88BC: Page 10, leave out lines 34 and 35 and insert— (1) A judge of the Supreme Court may be removed from office only by Her Majesty and any such recommendation to Her Majesty shall be made by the Minister. (2) The Minister shall make such a recommendation if (and only if) the recommendation has been approved by both Houses of Parliament. (3) Provision shall be made for a tribunal constituted by the Minister to investigate and report on whether a judge of the Supreme Court is unfit for office by reason of inability, neglect of duty, or misbehaviour and for the report to be laid before Parliament.

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

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

The noble Baroness said: I beg to move the Amendment No. 88BC, which stands also in the names of my noble friends the Duke of Montrose and Lord Norton of Louth.

This is one of two important amendments. Clause 27 states simply: A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament".

It will be noted that there is no definition of what good behaviour is. The Government's Explanatory Notes state that holding office during good behaviour reflects the present position for Lords of Appeal in Ordinary, and that removal only by resolution of both Houses of Parliament is consistent with the position of all senior judicial office holders. I understand that well.

My noble friends and I strongly agree with the view of the Law Society of Scotland that this is simply not adequate for modern times and in the context of this Bill. The previous discussion of plans for the Supreme Court centred several times on the different situation when a Minister who is much more political than the Lord Chancellor is in charge and the intrusion of politics is much more probable.

It is therefore necessary to provide better means of investigation into a judge's behaviour. It would be quite possible for a Minister to have it in for a judge, as it were, for political or other reasons or to be prejudiced against him. It is important to know exactly what bad behaviour and good behaviour are.

The amendment follows closely Section 95 of the Scotland Act 1998 on such issues. It provides for a process of investigation by a tribunal which the Minister will appoint, and for guidance on what constitutes unacceptable behaviour. This may or may not meet the wishes of distinguished noble Lords who want to do away with the clause altogether, but it is an attempt, based on recent legislation north of the Border, to improve protection of judges of the Supreme Court in modern times. The Government should not brush this off; it could happen should the Bill remain as it is. I await with interest the comments of Members of the Committee and the Government. I beg to move.

Lord Goodhart

I have considerable sympathy with the amendment. For more than 300 years, it has been a rule that senior judges from the High Court upwards in England and Wales are removable only by an address in both Houses of Parliament. It was once done in respect of an Irish judge in the early 19th century, when Parliament had jurisdiction over Ireland, but it has never been done in relation to a judge in England and Wales. The nature of the powers is uncertain, and the procedure that has to be gone through before an address can be made is unclear.

We are talking about the Supreme Court, which is at the centre of the legal system for the entire United Kingdom. To leave it in the basic wording of Clause 27 is inadequate, as it is very unclear what, if any, procedure is appropriate to obtain the necessary address of both Houses of Parliament. Something along the lines of the amendment moved by the noble Baroness, Lady Carnegy, which is based on the draft by the Law Society of Scotland, is worth careful consideration. It may be that the wording is not ideal and could be improved, but it is much better to spell out in some detail the circumstances in which a justice of the Supreme Court can be removed rather than leaving it in the general and vague terms of the existing Clause 27.

The Duke of Montrose

I might add to the comments of my noble friend Lady Carnegy. She talked in reasonable terms about what the pitfalls might be, but we are supposed to envisage a time in the distant future when people may not be as reasonable as we all tend to be at present. It has happened in other countries that do not have our traditions. If a judge decides a case in a way that the Government do not like, does that constitute good or bad behaviour?

9 p.m.

Baroness Ashton of Upholland

I am grateful for the clarity of the points that have been made by Members of the Committee. As the noble Lord, Lord Goodhart, said, the clause is drawn from the provisions that govern the possibility of removal from office of Lords of Appeal in Ordinary and other senior judges. It might not have been done for more than a century. I am interested to know that it may be substantially longer than that, as the noble Lord, Lord Goodhart, suggested. Appointed by the sovereign and removed from office only by the sovereign, and of course only on address to the sovereign by both Houses of Parliament. That is a powerful brake on executive pressure on a senior judiciary, and ensures that the possibility of removing a senior judge from office is reserved for very serious cases and is extremely rare. It is so rare that it has never been done in respect of a Lord of Appeal in Ordinary.

There is quite a lot of protection against the kind of pressure that concerns the noble Baroness, Lady Carnegy. The Government are not particularly keen to see such a prescriptive way of setting out these matters in the Bill. We are concerned about inconsistency because it is not done for other senior judges. I take the point that the amendment is based in part on Section 95 of the Scotland Act 1998. Members of the Committee will know that it does not have the detail of that section, which of itself could lead to lack of clarity.

Having said that, we feel that it is better to be guided by the views of the Law Lords. We are currently involved in detailed discussions with the Law Lords on the development of a complaints and discipline protocol. I suggest that we include in those discussions the comments that have been made. An announcement will be made in due course, and I pledge that those who have expressed particular interest will be notified as soon as possible. On that basis, I hope that the amendment will be withdrawn.

Lord Maclennan of Rogart

Will the Minister address the question of the potential incapacity of a member of the Supreme Court and add that to the list of matters to be discussed with the Law Lords?

Baroness Carnegy of Lour

That will be covered in a future amendment.

Baroness Ashton of Upholland

The noble Baroness is right: there are amendments that deal specifically with that later.

Baroness Carnegy of Lour

I thank the Minister for her encouraging reply. I give my grateful thanks to the noble Lord, Lord Goodhart, who, with all his knowledge and experience, gave his support and, indeed, my noble friend. The Minister said that it has never been done, but we are in a very different situation. Today, we have heard about how the present Lord Chancellor in his position might be replaced by an ambitious Member of the House of Commons with political aspirations. He may meet problems with the Law Lords when they find fault with his legislation and so on, which he may be able to pin down to certain members of the Supreme Court. When we have a very much more satisfactory arrangement at the moment, it is difficult to envisage that we are opening up new possibilities.

With the greatest respect to the Law Lords who, of course, have experience second to none of how to keep the integrity of the Supreme Court and keep it separate from government and the legislature, we are in a moving scene. Quite a lot of people like myself who are not even lawyers can see possibilities that worry them. So I hope that the noble Baroness will pursue this matter in her discussions. If we do not get a satisfactory answer before the next stage or at least the stage after that, we may come back with this amendment. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clauses 28 and 29 agreed to.

Clause 30 [Medical retirement]:

Baroness Carnegy of Lour moved Amendment No. 88BD:

Page 11, line 19, leave out "a"

The noble Baroness said: This is the amendment to which I have just referred. In speaking to Amendment No. 88BD, I shall speak also to Amendments Nos. 88BE, 88BG, 88BH and 88BJ. All these amendments relate to Clause 30, which deals with the retirement of Supreme Court judges on medical grounds where a judge is incapable of resigning him or herself.

The Explanatory Notes state that the clause's provision is analogous to that for other senior judicial office holders at present. As it stands, Clause 30 allows medical retirement on ministerial order if the Minister obtains one medical certificate that a judge of the Supreme Court is disabled by permanent infirmity and is for the time being incapacitated from resigning.

But, as with the tenure provisions, surely greater protection is necessary now than there has been to date, given the increased possibility of political intrusion under the Bill—the Minister concerned, being a Secretary of State, and the clauses, one has to remember, covering the president and the vice-president of the court as well as the other judges.

Amendments Nos. 88BD and 88BE together provide that reports should come from at least two medical practitioners. Where there is mental disorder, one must have specialised knowledge of mental disability law. The Law Society of Scotland points out that in Section 57 of the Adults with Incapacity (Scotland) Act 2000—very recent legislation—there is an example of how Clause 30 might work. Amendments Nos. 88BG and BE are consequential.

Amendment No. 88BJ clarifies—importantly in my view—the circumstances in which Clause 30(1) applies. The Law Society of Scotland believes that "for the time being", where it occurs, is unduly vague and that incapability of resigning is a clearer concept, particularly given the need for two medical certificates.

It may be that legislation on mental capacity now going through Parliament will affect the clause—no doubt the Government are paying attention to it—as will recent Scots legislation on this matter. I do not know. However, Supreme Court judges need the best possible protection from possible future political manipulations. It is important that the Government look as carefully at this matter as they did at that raised in the previous amendment. I beg to move.

Lord Goodhart

Once again, there is a great deal of substance in these amendments. Amendments Nos. 88BG to 88BJ are minor drafting amendments and I am not sure that they improve the drafting of the Bill, but Amendment No. 88BD and particularly Amendment No. 88BE are of considerable importance.

Once again, we are discussing judges of the highest court of the United Kingdom. It would be highly unsatisfactory if it were possible, as Clause 30 would make it, for a Minister to declare the office of a judge to be vacated on the basis of one medical certificate. I agree that Clause 30(4), which requires the agreement of the president and deputy president of the court, provides a substantial protection, but in a case of this importance, it would be plainly desirable and of no great practical difficulty to require a second certificate—in effect, a second opinion. A Minister who had two conflicting opinions would be in great trouble if he then disregarded the one that he did not like and sought a third opinion so that the two favourable opinions were put forward.

It is plainly desirable that two certificates should be obtained from two different medical practitioners. It is desirable that they should be from practitioners who are familiar with both mental disorders and mental disability law. Therefore, Amendment No. 88BD, which is a paving amendment, and Amendment No. 88BE, which is a substantive amendment, should be carefully considered by the Government because the Law Society of Scotland has again pointed out a lacuna in the law here which requires further investigation.

Baroness Ashton of Upholland

I am again grateful to noble Lords for raising important issues. As a Minister with some responsibilities around the Mental Capacity Bill which, as the noble Baroness rightly indicated, received a Second Reading today in another place, I am mindful of those issues and I understand the connection with Section 57 of the Adults with Incapacity (Scotland) Act 2000.

I have given the matter a lot of thought, partly because of my ministerial responsibilities, and I perhaps take a different view. The Committee offers me a good opportunity to rehearse it, in order that we may continue this discussion both inside and outside your Lordships' House.

9.15 p.m.

As the noble Lord, Lord Goodhart, pointed out, the retirement of a judge of the Supreme Court would require the concurrence of the two most senior judges available, usually the president and deputy president of the court. I would submit that that is a far stronger safeguard against political interference than a second medical certificate. Requiring the concurrence of two judges is extremely important.

We know also that if, in practical terms, a doctor was unable to make a diagnosis, then the judge in question would automatically be referred to another specialist. In any event, that would be the case under medical practice. If a doctor felt the need to seek another opinion, or felt that the judge should do so, that would happen not as a result of this legislation, but as a result of common and correct medical practice. I also question how fair it would be on a judge who had to be retired on medical grounds. I am not entirely convinced that having to consult two doctors would not add to the potential distress of the judge in question and the family involved without necessarily adding anything to the point behind the amendment, which concerns safeguarding against interference by the executive. Weighing it up, securing a medical opinion with all the safeguards attending that and the need to seek the concurrence of both the president and the deputy president strikes the right balance.

I take also the point made by the noble Lord, Lord Goodhart, about the minor amendment requiring a judge to be "permanently disabled" rather than "disabled by permanent infirmity". We could go around that point at length, but I am not sure whether in practice the change in wording would have anything to add to the way in which this would work, as would the point that the judge should be "incapable of" resigning his office rather than "for the time being incapacitated".

As far as possible our approach in the Bill has been to build on what has been working successfully. I understand that this clause mirrors the language and the effect of the provisions for medical retirement set out in Section 12 of the Administration of Justice Act 1973, which has never been criticised and appears to have worked well. I take entirely the point made by the noble Baroness, Lady Carnegy, on earlier amendments that that does not mean that we should not take the opportunity to consider whether further safeguards are necessary, and that one must always take into account that the future may be different from the past. However, the combination set out in this clause strikes the right balance between those who have to be consulted about retirement and the role of the medical profession within that.

I hope that, on the basis of my remarks, the noble Baroness will feel able to withdraw her amendment.

Baroness Carnegy of Lour

I thank the noble Lord, Lord Goodhart, for his support, and the noble Baroness for her thoughtful reply. However, I think that a law passed 32 years ago in the political atmosphere of the day would suggest that—while I am no historian—the possibilities we are thinking of today were not in anyone's mind at the time. It does seem that better protection is needed. If one wanted to get a judge out, how easy it would be to do so by saying that he is incapacitated "for the time being", and therefore unable to resign. The fact that in a month or so he might be better able to resign does not come into it. The amendment suggests that the judge must be "incapable" of resigning, which is sharper and, I would have thought, more meaningful.

I am not a lawyer or advocate and perhaps I am not good at putting forward the case, but I have a feeling that the Government are being a little too sanguine about the possibilities for the future here. In their discussions, they should sharpen the wording, as they should the matter considered in the previous amendment. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 88BE to 88BK not moved.]

Clause 30 agreed to.

Clause 31 agreed to.

Clause 32 [Acting judges]:

Baroness Ashton of Upholland moved Amendment No. 88BKA:

Page 12, line 10, leave out subsection (1) and insert—

"( ) At the request of the President of the Supreme Court any of the following may act as a judge of the Court—

1. (a) a person who holds office as a senior territorial judge;
2. (b) a member of the supplementary panel under section 33."

The noble Baroness said: It is important to ensure that only the most senior judges in the UK can act as judges in the Supreme Court so that the authority of the judgments of the court is maintained. It is also important to narrow to a manageable size the pool of those who may be called as acting judges to the Supreme Court.

Currently Clause 32 provides for any holder of high judicial office, as defined in Clause 51, to be eligible to act as a judge of the Supreme Court, if called on by the president of the court to do so. This would include judges of the High Court in England and Wales and Northern Ireland, producing a very large pool, which we have been persuaded would not be appropriate for the highest court in the UK.

Therefore, the amendments I am tabling to Clause 32 will ensure that only judges of the Court of Appeal or the equivalent and those sitting on the supplementary panel as provided for in Clause 33 will be eligible to act as a judge of the Supreme Court. The amendments to Clause 33 will ensure that future membership of the supplementary panel will be limited to those who have previously held office at that higher level, or as judges of the Supreme Court itself. This is achieved through the use of the term office as a senior territorial judge defined in Clause 33(2) as amended, as opposed to "high judicial office" as defined in Clause 51.

The amendments to Clause 33 also bar any Lord Chancellor who was appointed on or after 12 June 2003 from becoming a member of the panel. This will work in conjunction with the amended Clause 51 which states that any person appointed Lord Chancellor after 12 June 2003 is to be regarded as holding high judicial office only if he ceases to be Lord Chancellor by virtue of appointment to one of the offices listed in Clause 51 or if he already held one of these offices on appointment to the office of Lord Chancellor. On the basis of the vote on 13 July, we accept that the view of the House is that the office of Lord Chancellor should be retained, albeit within a new architecture. These amendments are a necessary element in ensuring that the Bill reflects that view.

The amendments to Clause 33 also make provision for the membership of the supplementary panel on commencement of the Supreme Court. The panel will consist of peers under the age of 75 who ceased to hold high judicial office, as defined in Clause 51, less than five years before the commencement of the Supreme Court, or who are, or ceased less than five years before commencement to be, members of the Judicial Committee of the Privy Council. In effect, this equates to those persons presently within the definition of Lords of Appeal in the Appellate Jurisdiction Act 1876 who are able in consequence to sit in the Appellate Committee, with the exclusion of those holding high judicial office at the date of commencement.

This transitional measure is necessary to ensure that there is a supplementary panel to call on from the outset, so that the court is not deprived of a valuable pool of judicial expertise in the early days of its operation. I beg to move.

Lord Goodhart

I very much welcome this group of amendments. There has been considerable concern about the extent of the supplementary panel. Indeed, I know that my noble friend Lord Lester of Herne Hill took the view that it was inappropriate to have a supplementary panel, or to allow acting judges at all, and that all judges who sat on a panel of the Supreme Court should be full members of the Supreme Court. I would not go as far as my noble friend does, but it is my view that, as the Bill was originally drafted, the number of people who could sit as acting judges and the number of people who could serve as members of the supplementary panel were plainly larger than desirable. Eligibility should be confined to those who are or have been members of the highest courts, below the Supreme Court, of the three constituent parts of the United Kingdom. That is what these amendments do and for that reason, I warmly welcome them.

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendment No. 88BKB: Page 12, line 35, at end insert—

"( ) In this section "office as a senior territorial judge" means office as any of the following—

1. (a) a judge of the Court of Appeal in England and Wales;
2. (b) a judge of the Court of Session, but only if the holder of the office is a member of the First or Second Division of the Inner House of that Court;
3. (c) a judge of the Court of Appeal in Northern Ireland, unless the holder holds the office only by virtue of being a puisne judge of the High Court."

On Question, amendment agreed to.

Clause 32, as amended, agreed to.

Clause 33 [Supplementary panel]:

Baroness Ashton of Upholland moved Amendments Nos. 88BKC to 88BKH:

Page 12, line 36, at end insert—

"(A 1) There is to be a panel of persons known as the supplementary panel.

(B1) On the commencement of this section any member of the House of Lords who—

1. (a) meets one of the conditions in subsection (C1),
2. (b) does not hold high judicial office,
3. (c) has not attained the age of 75, and
4. (d) is not a person who was appointed to the office of Lord Chancellor on or after 12 June 2003,

becomes a member of the panel.

(C1) The conditions are—

1. (a) that he ceased to hold high judicial office less than 5 years before the commencement of this section;
2. (b) that he was a member of the Judicial Committee of the Privy Council immediately before that commencement;
3. (c) that he ceased to be a member of that Committee less than 5 years before that commencement."

Page 12, line 38, leave out "high judicial office" and insert "office as a judge of the Supreme Court or as a senior territorial judge"

Page 13, line 1, leave out "high judicial office" and insert "office as a judge of the Supreme Court"

Page 13, line 9, at end insert—

"( ) A person does not become a member of the supplementary panel under subsection (1) or (3) if—

1. (a) on ceasing to hold office as a judge of the Supreme Court he takes office as a senior territorial judge, or
2. (b) on ceasing to hold office as a senior territorial judge he takes office as a judge of the Supreme Court."

Page 13, line 15, leave out "high judicial" and insert "his qualifying"

Page 13, line 17, at end insert—

"( ) In this section—

1. (a) "office as a senior territorial judge" has the same meaning as in section 32;
2. (b) a person's "qualifying office" is the office (that is, high judicial office, membership of the Judicial Committee of the Privy Council, office as a judge of the Supreme Court or office as a senior territorial judge) that he held before becoming a member of the supplementary panel."

On Question, amendments agreed to.

Clause 33, as amended, agreed to.

Clause 34 [Jurisdiction]:

Baroness Carnegy of Lour moved Amendment No. 88BL:

Page 13, line 20, at end insert "in respect of any cases arising under the jurisdiction referred to in subsection (2) below"

The noble Baroness said: In a sense, this is a technical amendment, correcting what the Law Society of Scotland suggests may be a mistake in the drafting of the Bill. The amendment makes plain that the superior court of record is recognised in respect of cases arising in England and Wales only, not in Scotland. The Law Society has sent the amendment to the Scottish Executive and to the Advocate General, but I understand they have not commented. So perhaps this is not correct. However, that is the Law Society's perception, and it seems to me to make sense.

The status of a court as a "superior court of record" does not apply in Scotland. Some existing United Kingdom legislation desires courts which operate in Scotland in this way. For example, the Employment Appeal Tribunal, established by the Employment Protection Act 1975, and whose constitution is laid down in the Employment Tribunals Act 1996, is a superior court of record. However, in that capacity, although it is a UK court, that status has no applicability in Scotland.

It is therefore important that the Supreme Court's status as a superior court of record is limited to the court's role in respect of cases arising in England and Wales only. That is the effect of the amendment. I shall be very interested to hear what the Government have to say about it. I beg to move.

Baroness Ashton of Upholland

I can say immediately to the noble Baroness, Lady Carnegy of Lour, that there is no mistake in the drafting. I will try to deal with this as best I can. The noble Baroness and I have one thing in common, which is that we do not have a legal background. I noticed that the noble Baroness described herself as not being an advocate. I think that she is one in the sense that I understand the word, and she does an extremely good job in that role.

As I understand it, the Law Society argues that "superior court of record" does not have any meaning in Scots law. It therefore follows that it must be expressly disapplied in the context of appeals originating from Scotland. In fact, the opposite is true. The general and, I understand, well established legislative drafting practice is not to disapply for one system of law provisions which clearly relate only to another. To do so might be taken to suggest the provisions do have a particular meaning in the former system. Hence, while there are various superior courts of record which hear Scottish cases, the status of superior court of record is not disapplied for any of them when hearing such cases.

The House of Lords is a superior court of record, as is the Judicial Committee of the Privy Council. So is the Employment Appeal Tribunal, by virtue of Section 20 of the Employment Tribunals Act 1996, even when sitting in Scotland, in Scottish cases and with a Scottish president. It has never been suggested that the House of Lords should cease to be a superior court of record when hearing appeals from the Court of Session, or the Judicial Committee of the Privy Council when hearing devolution proceedings originating in a Scottish court, or the Employment Appeal Tribunal when sitting in its Scottish Division. It is simply not necessary. We believe that to take a different approach for the Supreme Court would be to introduce unnecessary and potentially damaging inconsistency.

Further, Clause 34(1) was specifically endorsed by the noble and learned Lord, Lord Hope of Craighead, in his evidence before the Select Committee on the Bill.

It is also worth mentioning that the amendment is technically defective. It would have the effect that the Supreme Court would be a superior court of record only in appeals from the Court of Appeal in England and Wales in civil proceedings and not in criminal appeals from England and Wales; or in "leapfrog" appeals, as I understand they are known, from the High Court in England and Wales under the Administration of Justice Act 1969; or in any appeals from Northern Ireland, where the concept of the "court of record" applies as it does in England and Wales; or in devolution proceedings of any kind.

I shall be very happy to pursue further conversations with the noble Baroness if there is any lack of clarity in what I have said. It is my belief that the position that we have outlined in the Bill is correct, consistent and legally appropriate. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.

9.30 p.m.

Baroness Carnegy of Lour

I thank the noble Baroness for that reply. I think she is a non-lawyer, too. She did extremely well.

The best thing would be for the Law Society of Scotland to read carefully what the noble Baroness has said. I noticed that she said that the noble and learned Lord, Lord Hope of Craighead, endorsed Clause 34(1). That in itself is interesting.

I have been tutored by the Law Society of Scotland that "record" in this context is a verb and not a noun. I was told that it was the Superior Court of "Re-cord". The noble Baroness said it was the Superior Court of Record, which is what I said before I was tutored. But perhaps the difference is in the way in which we pronounce it north and south of the Border.

I thank the Minister for her reply. I shall read with interest what she said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 agreed to.

Schedule 10 [Amendments relating to jurisdiction of the Supreme Court]:

Baroness Ashton of Upholland moved Amendment No. 88BLA: Page 172, line 38, at end insert—

"Backing of Warrants (Republic of Ireland) Act 1965 (c. 45)

In section 2A of the Backing of Warrants (Republic of Ireland) Act 1965 (statement of case by court) for "House of Lords" in each place substitute "Supreme Court"."

The noble Baroness said: This group of amendments seeks to make changes consequential on the establishment of the Supreme Court, correcting references to the House of Lords, to high judicial office as previously defined and to Lords of Appeal. They are all extremely minor and of a technical nature and have been agreed with those responsible for the legislation in which the consequential changes are required, including the Church authorities in the case of amendments to Measures.

I could go through them all. I hope that the Committee will prefer that I do not do so and will feel able to accept the amendments with the reassurances I have given that they have been agreed. I beg to move.

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendments Nos. 88BLB to 88BLJ: Page 174, line 27, at end insert—

"( ) Part 2 is renamed "Appeal from High Court to Supreme Court"."

Page 175, line 17, leave out "(2)" and insert "(2C)"

Page 179, line 18, at end insert—

"Legal Aid, Advice and Assistance (Northern Ireland) Order 1981

(S.I. 1981/228 (N.I.8)

In the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, in paragraph 1(a) of Part I of Schedule 1 (proceedings for which legal aid may be given) for "House of Lords" substitute "Supreme Court"."

Page 182, line 41, leave out paragraph 50 and insert—

"Extradition Act 1989 (c. 33)

In section 10 of the Extradition Act 1989 (statement of case by court) for "House of Lords" in each place substitute "Supreme Court"."

Page 183, line 23, leave out paragraph 56.

Page 184, line 11, at end insert—

"Proceeds of Crime (Northern Ireland) Order 1996

(S.I. 1996/1299 (N.I.9)

In the Proceeds of Crime (Northern Ireland) Order 1996, in paragraph (6)(b) of Article 13 (application of procedure for enforcing fines) for "House of Lords" substitute "Supreme Court"."

Page 187, line 29, at end insert— ( ) section 61 (costs where discharge ordered);

Page 188, line 1, leave out from "supplementary)" to "to" in line 2 and insert "—

1. (a) in subsection (4) for "House of Lords" substitute "Supreme Court";
2. (b) in subsection (5) for the words from "allowed by""

On Question, amendments agreed to.

Schedule 10, as amended, agreed to.

Clause 35 [Composition]:

Lord Goodhart moved Amendment No. 88BM:

Page 14, line 2, leave out paragraph (c) and insert— (c) a majority of those judges are permanent judges

The noble Lord said: For the first time today we come to an amendment moved from these Benches. It stands in the names of myself and my noble friend Lord Maclennan of Rogart. It is an amendment of some—not great—modest constitutional importance. It seeks to identify the persons who can sit as judges of the Supreme Court.

The position at the moment is that for decisions of the House of Lords we have the 12 Law Lords who have been appointed as Lords of Appeal in Ordinary. From time to time it is impossible to produce two panels of five, which is necessary if two cases are being heard at the same time. That may, for example, be because of illness or other activities. Indeed we have had an unfortunate situation where one of the Lords of Appeal in Ordinary; namely, the noble and learned Lord, Lord Saville of Newdigate, has in fact been absent virtually the entire time since he was appointed as a Lord of Appeal by taking part, no doubt not greatly at his pleasure, in that endless enquiry into Bloody Sunday.

Being the House of Lords, of course, the only people qualified or fit to hear appeals to the House are Members of the House of Lords. They must also be Members who have held high judicial office. In practice, that means that when an extra judge is needed it is almost always a Law Lord who has retired but is under the age of 75, beyond which they are never invited to sit. What is happening is that now that the jurisdiction is being transferred to the Supreme Court, it is necessary to look again at who will be eligible to sit as judges.

What has been done here, despite the limitations imposed by the amendments which we have just dealt with, is very considerably to widen the number of judges who are eligible to sit. Thus we have not only those who are Members of the House of Lords, but those who are sitting or have sat as judges of the highest Courts of Appeal in the three existing jurisdictions within the United Kingdom. This means that, potentially, the number of those who are eligible to sit is greatly in excess of the 12 Law Lords. The number of members of the Court of Appeal in England and Wales, for example, is between two and three times that number.

It does seem to us to be a matter of considerable importance that, whenever possible, cases should be decided by the 12 people who have been appointed by what is quite an elaborate process to sit as Justices of the Supreme Court. Although, as I said earlier, I know that my noble friend Lord Lester of Herne Hill disagrees, I accept, and my party accepts, that it is reasonable to provide for people to be brought in to sit occasionally when there is some kind of emergency and it is impossible to raise the full panel of five without recourse either to an acting judge or to a judge drawn from the supplementary panel. What seems wholly unacceptable is that acting judges or judges drawn from the supplementary panel should ever be a majority of those hearing a case. But under the law as it is proposed under this Bill, that would indeed be possible. Clause 35(1) states: The Supreme Court is duly constituted in any proceedings only if all of the following conditions are met—

1. (a) the Court consists of an uneven number of judges;
2. (b) the Court consists of at least three judges;
3. (c) at least one of those judges is a permanent judge".

Now, the Appellate Committee sits at present as a panel of three only when it is hearing applications for leave to appeal, or other procedural applications. It never sits in a panel of less than five; normally it is a panel of five when it is hearing the substantive appeals. Under the Bill as drafted, it would be possible for a case to be heard by a panel consisting of only one permanent judge, the other four members of that panel being either acting judges or judges drawn from the supplementary panel. In our view, that is wholly inconsistent with the principle of the existence of the Supreme Court, which cannot delegate its powers in that way.

We therefore propose that Clause 35 be amended by requiring that a majority of the judges in any case heard by the court should consist of permanent judges. If there is a panel of five, at least three should be permanent judges. To allow more than two to be temporary judges is wrong.

Grouped with the amendment is Amendment No. 88BO to Clause 36, which deals with a judge dropping out of a case during the course of a hearing. That can happen; a judge can become ill and have to drop out. When in those circumstances there is, for instance, a panel of five consisting of three permanent judges and two temporary judges, we accept that it could be reduced to a panel of four with two temporary and two permanent judges. That is at the margins of acceptability but we agree that it is undesirable, where a properly constituted court has begun to hear a case, that it should have to start rehearing the case all over again because one judge has dropped out, even if the result is that the case is heard by a panel that would not be an authorised panel under Clause 35.

If two judges drop out of the panel and that leaves a majority of acting judges or judges from the temporary panel, however regrettable it may be—it will very rarely happen—it should be necessary to start all over again. It is a matter of some constitutional importance that any case should start with a majority of permanent judges, and should never be conducted by a majority of non-permanent judges. I beg to move.

Baroness Ashton of Upholland

I shall be extremely brief. The noble Lord has put the arguments very well. I shall table amendments for Report to give the president greater flexibility in composing panels. The revised scheme will include provision to ensure that panels cannot consist wholly or predominantly of non-permanent judges. I have nothing to add. I hope that the noble Lord will feel able to withdraw the amendment with that reassurance.

Lord Goodhart

I am pleasantly surprised by that, but delighted to hear it. That will very much achieve the aim of my amendments. In those circumstances, I look forward to seeing the new government amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Duke of Montrose moved Amendment No. 88BN:

Page 14, line 15, at end insert "; and (d) in cases where an appeal arises from the jurisdiction referred to in section 34(3) or (4)(b) where the devolution issue arises under the Scotland Act 1998 (c. 46) at least 2 of the judges are from Scotland

The noble Duke said: The amendment was brought to our attention by the Law Society of Scotland. In some ways, although perhaps not entirely, it is a probing amendment of interest to those of us who come from Scotland. It ensures that where cases before the court arise from the Scottish jurisdiction, at least two of the judges will be from Scotland. The reasons for this are that the new court will have considerable jurisdiction in issues which emanate from Scotland. It will need to be able to consider matters of civil law and matters of constitutional import relating to devolution issues.

Devolution issues arise under the Scotland Act 1998 and can be derived from civil or criminal matters as well the administrative decisions of the Scottish administration. It is important that the new court has access to the appropriate Scottish legal expertise when dealing with such matters which can go to the heart of the relationship between the citizen and the state and the constitutional relationship between the Scottish Parliament and the Scottish Executive and those affected by their actions.

It has been customary to have two Law Lords of Scottish origin at any one time. Other Scottish judges who are Peers have also occasionally helped in hearing appeals. There is, however, no rule that a Scottish Law Lord must be present to hear a Scottish appeal, still less that a majority of those sitting should be Scottish Law Lords. It is therefore possible that Scottish appeals can be heard by judges a majority, or all, of whom have had no training in or experience of Scots law.

However, the conventions which obtained in the House of Lords did not apply to the Privy Council. This Bill presents an opportunity to create a new framework to meet the new circumstances which the new court will present, and therefore consideration should be given to the best way to achieve proper Scottish representation in the Supreme Court. I beg to move.

9.45 p.m.

Lord Goodhart

I have some sympathy with this amendment. As I understand it, in devolution issues which are currently being heard by the Judicial Committee, it has normally been the practice of the court to include two Scottish judges. If only one is available who is a Lord of Appeal in Ordinary it is done by bringing in someone who is a senior judge and a judge of the Inner House of the Court of Session.

I certainly believe that it would be wholly appropriate to bring in a second Scottish judge. Even if both the Scottish judges are permanent members of the Supreme Court and only one is available, it should be possible to bring in a second judge from Scotland as an acting judge. I believe that on devolution decisions in particular there is a strong argument for saying that two of the judges should be from Scotland. That does not necessarily apply to all Scottish appeals. For instance, a Scottish appeal sometimes may be concerned with a tax statute where the tax applies throughout the United Kingdom. I see no reason there why there should be two Scottish judges. But I believe that in devolution cases there is a very strong special case. I support the amendment moved by the noble Duke.

Baroness Ashton of Upholland

In effect the amendment would create a quota for Scottish judges for the Supreme Court when hearing certain cases. That would be unique as there would be no mirroring provision for Irish judges in Northern Ireland cases or indeed for English and Welsh judges in English and Welsh cases.

The amendment as it stands would allow no flexibility in continuing with proceedings under Clause 36 should one of the Scottish judges be unable to continue. The quota would also extend in some instances to cases which are not Scottish in the sense of turning upon questions specific to Scottish law since it would apply not only in appeals from the Court of Session, but also in all devolution proceedings under the Scotland Act regardless of whether the court in which those proceedings originated is a Scottish court.

The Government's policy in establishing the Supreme Court has been to carry through the approach of the Appellate Committee of the House where possible. That includes the convention under which at least two judges are from Scotland and usually one judge is from Northern Ireland.

A primary objective for the Supreme Court is that it should have the same flexibility in operation as the Appellate Committee. Provisions in the Bill for the president to draw on acting judges mean that where necessary the court will be able to draw on Scottish judges. It is anticipated that acting judges will be primarily used for Scottish civil appeals and devolution cases to ensure a Scottish majority on panels. Thus a flexible approach is taken to ensure that there is an appropriate level of Scottish expertise in Scottish cases.

Paradoxically, a strict quota of two Scottish judges in all Scottish cases might have the effect of restricting the overall number of Scottish judges in the Supreme Court or in particular proceedings. On that basis, I hope noble Lords will feel able to withdraw the amendment.

The Duke of Montrose

I am most grateful to the noble Lord, Lord Goodhart, for his generous support for the amendment and also for his knowledge and explanation of some of the issues that surround it. I find it quite delightful to hear the Government expressing the desire to continue with some of our processes that occur in this House. It seems to me that the Government have been happily thinking up new procedures for almost anything that one can think of.

I would like to read closely what the noble Baroness has said. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Clause 36 [Changes in composition]:

[Amendment No. 88BO not moved.]

Clause 36 agreed to.

Clause 37 agreed to.

Clause 38 [Making of rules]:

[Amendment No. 88BP not moved.]

Baroness Ashton of Upholland moved Amendment No. 88BPA:

Page 15, line 12, at end insert—

"(4) Before making Supreme Court Rules the President must consult all of the following—

1. (a) the Minister;
2. (b) the bodies listed in subsection (5);
3. (c) such other bodies that represent persons likely to be affected by the Rules as the President considers it appropriate to consult.

(5) The bodies referred to in subsection (4)(b) are—

The General Council of the Bar of England and Wales;

The Law Society of England and Wales;

The Faculty of Advocates of Scotland;

The Law Society of Scotland;

The General Council of the Bar of Northern Ireland;

The Law Society of Northern Ireland."

The noble Baroness said: I shall be brief. I propose the amendments to Clauses 38 and 39 to improve the process for making rules of court for the UK Supreme Court following comments made in the Select Committee and by the senior Law Lord.

Clause 38 provides for the President of the Supreme Court to make Supreme Court rules, analogous in their scope and flexibility to the way in which the House of Lords regulates its work through its Standing Orders and practice directions. The power to make rules includes the power to provide rules for different cases, including different proceedings such as civil and criminal proceedings and on devolution matters.

The president is obliged to exercise the rule-making power with a view to ensuring that the court is accessible, fair and efficient and that the rules are simple and simply expressed. I believe that the provisions outlined are uncontroversial. The first six implement the views of the House of Lords Select Committee that an additional responsibility should be given to the president to ensure that in drafting the rules account is taken of the views of those who will be affected by them.

It therefore places a requirement on the president when making rules to consult the Minister and the following bodies: the General Council of the Bar of England and Wales; the Law Society of England and Wales; the Faculty of Advocates of Scotland; the Law Society of Scotland; the Bar of Northern Ireland; and the Law Society of Northern Ireland.

That ensures that legal professional bodies in every part of the United Kingdom are able to contribute to the rule-making process. In addition, the president must consult other bodies representing persons likely to be affected by the rules as he considers appropriate; for example, organisations representing consumer interest.

The amendment to Clause 39 changes the procedure for making the Supreme Court rules in one important particular. We have, on consideration of the views of the senior Law Lord in particular, concluded that it is not necessary for the Minister to be able to allow or disallow rules made and submitted to him, and that it is sufficient that the Minister is required to be consulted before the rules are made. Subsection (2) of Clause 39 is therefore deleted and the reference in subsection (3) to rules which have been allowed is corrected in consequence.

The rules will still be submitted to the Minister and embodied in a statutory instrument subject to annulment by a resolution of either House of Parliament coming into force on such day as the Minister directs. This will maintain the benefits of accessibility and transparency. I beg to move.

Lord Goodhart

I welcome these amendments. The position is that, in respect of the courts in England and Wales, rules of court are made by rules of court committees, which are made up of substantial numbers of persons. In this case under Clause 38 the rules of the Supreme Court are on the face of the Bill to be made by the president alone. Obviously in practice the president will consult people, but it is desirable that there should be consultation in the Bill; that the Minister and the six professional bodies should be consulted; and that the president should consult bodies representing other persons.

It would be desirable to add the other members of the Supreme Court to that list, although no doubt in practice that will be done. Consultation with all current members of the Supreme Court is also desirable. Having said that, this is a considerable step forward. I particularly welcome the decision to amend Clause 39 by removing the Minister's power to disallow Supreme Court rules. Ministerial involvement at that level is undesirable.

Subject only to my query on whether it is desirable to write in the Bill consultation with all the other members of the Supreme Court, I am happy to welcome the amendments.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

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

Amendments Nos. 88BPB and 88BPC agreed to.

Clause 39, as amended, agreed to.

Clause 40 agreed to.

Lord Evans of Temple Guiting

I beg to move that the House do now resume.

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

House resumed.

House adjourned at two minutes before 10 o'clock.