Sitting of 14 December 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chester.

Exchange Rate
Lord Barnett Lord Barnett asked Her Majesty's Government:
What is their policy on the value of the pound sterling exchange rate as against the dollar and the euro.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the Government do not comment on day-to-day movements in the exchange rate as this may have undesirable effects on the stability of sterling. The Government's objective is a stable and competitive exchange rate in the medium term. The best contribution the Government can make to this is to maintain sound public finances and low inflation.
Lord Barnett: My Lords, I thank my noble friend for that reply. I assume it means that the Chancellor of the Exchequer does not have any plans. Has my noble friend seen what the Governor of the Bank of England, Mervyn King, said to the Select Committee on Economic Affairs of your Lordships' House a few months ago? He said that he was concerned and that if the dollar continued to fall he would be bound to see what further action he should take. As the dollar has continued to fall, does his reply mean that the Chancellor has offered no advice to the Governor on what action he might take?
Lord McIntosh of Haringey: My Lords, there is a distinction between the Governor of the Bank of England and the Chancellor. The Governor of the Bank of England and the Monetary Policy Committee are responsible for short-term interest rates. They do this on the direction of the Chancellor, a situation that has been unchanged since 1997. I do not expect it to change in the near future.
Lord Taverne: My Lords, the Government must be aware of the serious dangers posed to international financial markets by the policy of benign neglect of exchange rates. Indeed, in not dissimilar circumstances, in the 1980s an agreement was reached by leading governments—including a Republican administration—which resulted in the Plaza agreement and the Louvre accord. Should it not be a primary objective of the Chancellor's chairmanship of the G8 group to try to achieve the kind of co-ordination of international policy that was achieved in the 1980s?
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Taverne, clearly has a longer experience of these matters than I do. I congratulate him on it. But the phrase "benign neglect" seems to assume that if an alternative policy of intervention were to be pursued it could have a significant effect on exchange rates. In fact, as the noble Lord knows, movements in international currency markets are many times larger than the resources of governments to carry out effective intervention.
Baroness Noakes: My Lords, the Minister might not want to comment on current exchange rates but the Government must have made assumptions about them, otherwise they could not have produced the figures in the recent Pre-Budget Report. Will the Minister say what those are?
Lord McIntosh of Haringey: My Lords, we shall have an opportunity to debate the Pre-Budget Report at length on Thursday, when I shall be happy to respond to the question of the noble Baroness, Lady Noakes. It is not appropriate to do so in the rarified atmosphere of Starred Questions.
Lord Tomlinson: My Lords, do my noble friend or Her Majesty's Government have any view about the Commission's attitude towards enforcing the stability and growth pact, especially as this rather slack monetary policy impacts directly on both euro-sterling exchange rates and euro-dollar exchange rates?
Lord McIntosh of Haringey: My Lords, I congratulate the noble Lord, Lord Tomlinson, on his ability to bring the issue of Europe and the stability and growth pact into a Question about exchange rates. It almost equals that of the noble Lord, Lord Pearson of Rannoch. I do not accept the assumption behind the noble Lord's question.
Lord Roberts of Conwy: My Lords, does the Minister agree that whatever the Government's policy in this area—declared or undeclared—the effect is that it is good for financial services, good for government borrowing but very poor for manufacturing?
Lord McIntosh of Haringey: My Lords, I thought I had made it clear in my first Answer that what is good for exporters, whether of services or of goods, is to have a stable and competitive exchange rate in the medium term and to maintain sound public finances and low inflation. Stability rather than any single particular rate is the key. I speak as one who was an exporter for many years.
Lord Sheldon: My Lords—
Lord Dykes: My Lords, as the euro has become one of the most—
Noble Lords: Order!
The Lord President of the Council (Baroness Amos): My Lords, I suggest that we hear from these Benches and then from the Liberal Democrat Benches.
Lord Sheldon: My Lords, is not the serious problem the balance of payments that we see with a very high exchange rate? It is not just a question of the imports or the exports because we see here that exports can be made very difficult to achieve—that is the normal criticism made of this very high exchange rate—and that as imports come in cheaper they affect our manufacturing industry greatly. The problems for our manufacturing industry caused by imports at low prices are always underestimated. Whereas our exports are of course affected by the exchange rate, our industry suffers even more from imports than from the failure to achieve the exports that we would normally expect to see.
Lord McIntosh of Haringey: My Lords, I am grateful for that analysis, but I question whether the relationship between our balance of payments and exchange rates is as clear-cut and as simple as the noble Lord, Lord Sheldon, is suggesting. Export growth is influenced by economic growth, as well as by exchange rates. Indeed, economic growth is a more important factor than exchange rates. On the whole, when exporters are considering their policies and there are fluctuations in exchange rates, they tend to accept, at least in the short term, that they have to export in the currency of the country to which they are exporting. If they are wise, they hedge against any losses that may be involved.
Lord Dykes: My Lords, as the euro has become one of the most successful currencies in the world in recent times, will the Government explain very carefully again, so that we all understand, why they did not join the euro in the winter of 1997?
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Dykes, has a very limited view of what is a successful currency. There are those on the Official Opposition Benches who think that a high exchange rate is not necessarily of economic benefit. Indeed, there are circumstances when that is the case.
Lord Peston: My Lords, is my noble friend as puzzled as I am about the behaviour of the Chinese economy? It is, I believe, a communist country, but surely Chairman Mao would be turning in his grave if he realised that the only thing propping up the dollar and, for that matter, saving the whole of world capitalism is Chinese investment abroad. Are the British Government not in the least concerned that the Chinese regime may one day give up its conservatism and become extreme left-wing socialist?
Lord McIntosh of Haringey: My Lords, I would love to answer that question, but the Question on the Order Paper is about the value of the pound sterling exchange rate against the dollar and the euro. I would enjoy as much as anyone speculating about why the Chinese economy insists on building up assets in dollars, but I think that it is beyond the scope of the Question.

Shooting
2.42 p.m.
Lord Hogg of Cumbernauld Lord Hogg of Cumbernauld asked Her Majesty's Government:
Whether they have any proposals for the regulation of shooting and shooting estates.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, as the Labour Party manifesto has made clear, we have no intention whatever of placing restrictions on the sport of shooting. We work closely with the organisations that represent shooting and encourage their efforts at self-regulation. We support the development of voluntary codes of conduct, such as the code of good shooting practice.
Lord Hogg of Cumbernauld: My Lords, I thank my noble friend for that reply. Would he agree that shooting and shooting estates form an important part of the rural economy in many parts of the country and that it is important that the Government should reiterate their opposition to any restriction on shooting and, for that matter, fishing in the forthcoming general election? Will he join me in condemning organisations that wish to ban shooting and fishing, to the detriment of work people in the countryside?
Lord Whitty: My Lords, on the first part of my noble friend's question, I must say that the Government recognise the importance of shooting. I think I said much the same thing at some point last week. We should support shooting-based enterprises and estates because they bring income, jobs and prosperity to relatively remote parts of the country. As to the next Labour Party manifesto, I see no reason why our long-standing position on shooting, which I enunciated yet again today and have set out many times in recent debates, should not stand, but I am no longer in charge of writing the manifesto.
Earl Peel: My Lords, is the Minister aware that the Labour Animal Welfare Society is now switching its efforts to shooting? Its website states:
"Hunting down—shooting to go".
Will the Minister give an assurance that he will robustly defend shooting against such organisations? To that effect, may I suggest that he discusses the matter with the vice-chair of the Labour Animal Welfare Society, who is no less a person than the noble Baroness, Lady Gale?
Lord Whitty: My Lords, every organisation and individual, whether a Member of this House or not, or a member of my party or the noble Earl's party, has a right to an opinion. I hope that we do not take away from that. I have made the Government's position on this clear on numerous occasions, and I do so again today.
Earl Ferrers: My Lords, does the Minister realise what pleasure his Answer has given and will give? I speak as one who has been involved with the countryside, but the particular pleasure is that, for once, the Government have avoided the temptation of getting involved in regulating something else. Would the Minister not agree that, if the Government go on as they have gone on, before long we will have to get a licence to blow our nose?
Lord Whitty: My Lords, I briefly thought that this was a positive and supportive statement from the noble Earl and was about to respond accordingly. I shall ignore the second part of his question and accept his commendation of the Government's position in the first part.
Lord Phillips of Sudbury: My Lords, can the Minister tell the House the essential difference in terms of cruelty and liberty between hunting on the one hand and shooting and fishing on the other?
Lord Whitty: My Lords, hunting has been a matter of political debate for many decades. The issue needed to be resolved, and it has now been resolved. There has never been a significant move to ban fishing, certainly not in the Labour Party. The same applies to shooting.
We have had the arguments about cruelty. The relative cruelty of hunting with hounds and shooting foxes has been debated in the Chamber for more hours than I care to remember, and I do not think that I can add anything to the wisdom already expressed on that matter.
Lord Palmer: My Lords, can the Minister give the House some assurance that the Home Office has no plans to tighten up the already very strict laws on obtaining a shotgun licence or, indeed, renewing a licence?
Lord Whitty: My Lords, the noble Lord will know that the Home Office is consulting on gun law. However, that relates to guns that may be used for criminal or other nefarious purposes, not for the sport of shooting.
Baroness Miller of Chilthorne Domer: My Lords, does the Minister agree that one of the differences between shooting and hunting is that many farmers make a far larger income from keeping much of their land for shooting, which also provides many conservation benefits?
Lord Whitty: Yes, my Lords, that is one of the significant social differences. Whatever views farmers hold on hunting with hounds, they do not receive much income from it.
Baroness Byford: My Lords, the Minister said that the Government had no plans to introduce any restrictions on shooting. What confidence does he have that his Back-Benchers in another place can be controlled should they want to go down that road?
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Secondly, will the Government give a steer when the animal welfare legislation comes into being? Some fear that that will be yet another opportunity for the issue to be raised.
Lord Whitty: My Lords, I have no doubt that it will be raised again. Many issues are raised again, but they are not government policy. The Government have stated the position on shooting in their manifesto, and Labour MPs are bound by that manifesto.
Lord Mackie of Benshie: My Lords, is the Minister sure of that?
Lord Whitty: My Lords, Labour MPs are elected on the basis of that manifesto. Labour Party discipline which, as the noble Lord knows, is pretty profound on such matters, will be maintained. Our clear manifesto commitment was to allow a free vote on fox hunting, and that was carried out to the letter.

Elections: All-postal Pilots
2.51 p.m.
Lord Goodhart Lord Goodhart asked Her Majesty's Government:
Why they propose to consider applications for all-postal pilots at the local elections in May 2005.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, my right honourable friend the Deputy Prime Minister is obliged by Section 10 of the Representation of the People Act 2000 to consider any application from a local authority to run an electoral pilot, including applications for all-postal pilots, at local government elections in May 2005. He will not proactively seek applications from local authorities to run such pilots in 2005.
Lord Goodhart: My Lords, does the Minister accept that, while increasing turnout is important, maintaining trust in the fairness of elections is essential? Does he also accept that all-postal ballots give much greater scope for personation and for pressure on voters to vote in a particular way?
Lord Rooker: Yes, my Lords, there are concerns, but we have very little evidence of these incidents. Following this year's election—I have just checked this information, so it is as up to date as possible—five petitions making complaints are still outstanding, only two of which were in the pilot areas, Calderdale and Hull. There are three other petitions relating to this issue in Aston and Bordesley Green, Birmingham, and in Flintshire. There are two prosecutions pending in Halton and Oldham. That is the scale of the evidence. We get lots of complaints, leaders, thoughts and worries, but the actual evidence is a bit thin.
Lord Elton: My Lords, is not the essential difference that in an all-postal ballot, there is no means of ensuring that every vote cast is secret? Where there is the option of going to the ballot box, there is always the option of a secret vote which is not subject to pressure which can be validated by someone knowing how you voted.
Lord Rooker: My Lords, I entirely accept that that is a serious issue. But as I said in relation to the Question, we have no plans to invite any applications from local authorities to run such pilots in 2005. Just in case anybody thinks of raising this point, you cannot run the general election on an all-postal ballot. It is not legally possible.
Lord Inglewood: My Lords, in response to an earlier question, the Minister referred to evidence of electoral malpractice. While there may not be much hard evidence and it is not necessarily the same as the general hearsay and circumstantial evidence of widespread electoral malpractice in certain localities in those areas—and I speak with experience of recent events in the north-west of England—does it mean that he does not take the circumstantial evidence seriously?
Lord Rooker: No, my Lords, it does not. But it is not as though we or the Electoral Commission sit back and wait. I know that the Electoral Commission was proactive after the elections this year in carrying out checks on people who had applied for postal ballots. It was looking for evidence that everything was okay regarding the correct person and the ballot paper. But as I said, the evidence is in short supply.
I entirely accept the concerns that have been expressed in the last few questions. These risks are inherent in choosing postal ballots or any other form of ballot that takes us away from the ballot box. That is why these checks are built in. However, there are no current plans for any pilot schemes in any of the 30-odd elections—the English county council elections and the eight mayoral elections—to be held next year. Those are the only elections, contrary to the erroneous report in the Times on Friday which referred to 166 local authority elections. Nothing like that is planned for next year.
Baroness Seccombe: My Lords, does the Minister accept that the House of Lords was right in its opposition to the pilots Bill? With the Electoral Commission—the Government's own body—the House of Lords and much of the electorate against the scheme, is it not time to call a halt to this experimentation with our electoral system?
Lord Rooker: My Lords, the history is slightly different. As I understand it, the Electoral Commission was very much in favour of all-postal voting to start with, and then changed its view. However, the commission's own evidence shows that a large majority of people—59 per cent to 29 per cent—found all-postal voting acceptable. Participation rates
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increased from 37 per cent to 42 per cent, which is worth more than a million more votes in local elections. There is a large minority who find all-postal voting acceptable.
Baroness Carnegy of Lour: My Lords, will the noble Lord remind the House why the Electoral Commission, which was set up to advise the Government on these matters, said that there should be no more all-postal ballots?
Lord Rooker: My Lords, I think that there were several reasons for that. The Electoral Commission is coming back with another plan to widen the scope. It is accepted that there should not be only one means of voting; that is to say, turning up at a polling station, some of which are still inaccessible to people with access difficulties. We understand that, on demand, you can get a postal vote. But other ways of voting, even electronic voting, are being considered. The commission intends to report by next year on a new foundation model of voting. I hope that we will discuss that at some time in the future.
Baroness Falkner of Margravine: My Lords, given the ambiguous response of voters towards all-postal ballots as opposed to the unrestricted right to apply for a postal ballot, does the Minister not agree that this move towards all-postal ballots seems designed more for the convenience of bureaucrats than the voting public, who like to have contact, in the democratic process, through the ballot box?
Lord Rooker: My Lords, they might like to, but the fact is that more of them use postal voting when it is available than would otherwise be the case. We know that because the turnout increases. The regional referendum was not quite the same, because personalities were not involved. However, in the earlier pilots that have been running for the past two or three years, turnout for local government elections was close to 47 and 48 per cent. That is remarkably different from the normal turnout in local government elections, so I would not say that there is any ambivalence.
Lord Campbell-Savours: My Lords, why should problems in one or two areas nationally destroy the opportunity for millions of people all over this country to enjoy a new system, which is popular with the electorate and very convenient? It suits the job position of many people in so far as it is difficult for them to vote at other times. Why should we hold up this movement forward in voting practices because of problems in one or two areas?
Lord Rooker: My Lords, the short answer is that we should not. As I said, there is very little evidence of any incidents and we have to go on evidence and not rumours. However, where irregularities are discovered they must be stamped on very firmly. At the moment there are two prosecutions pending—only two—and five petitions relating to last May's elections still to be heard by the Electoral Court.
Baroness Knight of Collingtree: My Lords, has the Minister been made aware of the extreme concern about this matter in the Birmingham area and the excellent reasons for that concern?
Lord Rooker: Yes, my Lords, because I still carry the baggage of the experience in Birmingham.
The Earl of Northesk: My Lords, despite not inviting any applications for pilots, how might the Government react in the event of such an application being made?
Lord Rooker: My Lords, if an application is made it is at the risk of the authority concerned in terms of funding and other matters. We are talking about county councils and there have been no county council pilot elections because the legislation for pilots was not available four years ago. Any one can work it out. Any city treasurer and chief executive or county council chief executive can look at the cost of setting up such a pilot—we will not be funding it, because we are not inviting it—and then look at the possible risks of what could happen in 2005. However, complications could put all their plans into the dustbin at the cost of the council tax payer. We will not expect any applications from county councils. Under the law they could make an application, but we do not expect to receive any.

Agriculture (Northern Ireland) Order 2004
3.1 p.m.
Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 24 November be approved.—(Baroness Amos.)
Lord Marlesford: My Lords, I apologise for raising a small point, but I have read through this order and would like to ask the Leader of the House what additional staff and what additional public spending will he required as a result of this order.
Baroness Amos: My Lords, I understand that it is not anticipated that there will be additional staff because what is being required in Northern Ireland is a rationalisation. There will be some initial additional funding, but in the longer term the running costs will decrease, so we are not anticipating substantial additional funding as a result of this order.
On Question, Motion agreed to.

Financial Provisions (Northern Ireland) Order 2004
Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 25 November be approved.—(Baroness Amos.)
On Question, Motion agreed to.

Constitutional Reform Bill [H.L.]
3.2 p.m.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Falconer of Thoroton.)
Lord Kingsland: My Lords, before we respond to this question I rise to express on behalf of the Opposition our dismay at the timing of the Written Statement issued by the noble and learned Lord the Lord Chancellor. The Statement concerned the anticipated capital and running costs of any future Supreme Court. I understand that it was released only at 9·30 p.m. last night.
As noble Lords will be aware, the question of the future cost of a Supreme Court will have a crucial bearing on the attitudes that your Lordships take to Part 2 of the Bill. In those circumstances, I should like to ask the noble and learned Lord the Lord Chancellor how he envisages that the House can have a properly informed debate about Part 2 before your Lordships have had an opportunity to absorb the contents of the statement.
Lord Falconer of Thoroton: My Lords, I indicated in Committee that before the Bill left this House I would set out the running costs and capital costs. I laid the Statement this morning, in fact not last night—although I am glad to hear that my noble friend Lord Kingsland got it before last night—so that it could inform today's debate, which is the last day of Report. Third Reading is on Monday. It facilitates rather than prevents the debate today.
On Question, Motion agreed to.
Lord Lloyd of Berwick Lord Lloyd of Berwick moved Amendment No. 35A:
Before Clause 14, insert the following new clause—
"House of Lords as Supreme Court
The House of Lords, when exercising its appellate jurisdiction, is the Supreme Court of the United Kingdom and the Lords of Appeal in Ordinary shall be appointed in accordance with the provisions of sections 16 to 22."
The noble and learned Lord said: My Lords, in the debate on 11 October this year, the question of whether Clause 14 should stand part of the Bill was linked with so many other amendments that we were in danger of losing sight of the wood for the trees. On that occasion, the noble Lord, Lord Brennan, described the situation as being "legislatively indigestible". He was right. This time we have riot made the same mistake. The amendment now before your Lordships is intended to give us a chance to discuss the pros and cons of a Supreme Court and whether or not we want to remove the Law Lords.
The amendment states boldly that:
"The House of Lords, when exercising its appellate jurisdiction, is",
already,
"the Supreme Court of the United Kingdom".
That is historically and factually correct.
As the noble and learned Lord, Lord Hope, states in a lecture that he has either just delivered or is about to deliver, the House of Lords has exercised the delegated judicial authority of the Crown since Parliament first came into existence in the 13th century. Of course, it was not then called the Supreme Court, but it was the highest court in the land. It was the High Court of Parliament.
In those days, judicial business was the main function of the House of Lords. It heard petitions to the King in Parliament. The legislative business of the House of Lords came only later, at about the time of the Statute of Westminster in 1305. Professor Griffiths in his evidence to the Select Committee was quite right when he said that the House of Lords has exercised what he called "judicial process" for centuries and it still does unless this Bill becomes law.
In calling the Appellate Committee of the House of Lords the Supreme Court I do not overlook the fact that we already have a Supreme Court, which consists of the Court of Appeal, the High Court and the Crown Court governed by the Supreme Court Act 1981. That name would have to change anyway if a Supreme Court came into existence and I understand that the name to be given to what was the Supreme Court is the Senior Courts of England and Wales. That may be found somewhere in the Bill, but I am not sure where. Therefore, there is no difficulty in the House of Lords continuing as a Supreme Court as it has always been, subject to the convention—a convention which has all the force of law—that the Appellate Committee exercises that judicial function.
The other feature of the amendment is the reference to the Law Lords being appointed in accordance with Clauses 16 to 22. That is important; it is there because those of us in favour of retaining the Law Lords, as I am, are also in favour of the Judicial Appointments Commission. There is no conflict there at all. We have never had any quarrel with the concordat made between the Lord Chief Justice and the Lord Chancellor. So we are in favour of the Law Lords being selected in future in the manner which is proposed for the judges of the Supreme Court.
Until last week I had thought that, provided that the concordat remained intact, the Lord Chief Justice and the Judges' Council wished to express no view in favour or against the coming into existence of a Supreme Court. That changed last week—I do not know why, but I think that I can guess. Last week the Lord Chief Justice put forward three reasons why the Judges' Council now supports a Supreme Court, which it had not done heretofore. I shall come to those three reasons later. I shall make only one comment at this stage.
The view of the Judges' Council that it would like to see a Lord Chancellor in the traditional role, as a lawyer and a Member of this House, was both very relevant and important from the council's point of view. It was relevant because everyone accepts that the office of Lord Chancellor is part of the machinery for protecting the independence of the judges. So the council was fully entitled to express a view in that regard. However, the same surely does not apply to the Supreme Court. The independence of the judges is not affected in any way by whether or not we create a Supreme Court. So I was quite surprised to find the Judges' Council expressing a view on that point at this very late stage. The council is not, it seems to me, directly concerned with whether there should be a Supreme Court.
There is another point, which perhaps undermines the views expressed by the Judges' Council about the Supreme Court. With the exception of the Lord Chief Justice and the Master of the Rolls, the members of the Judges' Council can have little idea of what the work of the Law Lords actually involves. They do not know how very different the work of a Law Lord is from the work of a Lord Justice of Appeal, and from that of High Court judges or all the other judges in the land. They cannot assess the extent to which the Law Lords gain judicially by being Members of this House—a point put very persuasively, as some of your Lordships may remember, by the noble and learned Lord, Lord Nicholls, at an earlier stage. They cannot, obviously, assess the extent to which the Law Lords contribute to the work of this House. So I suggest that the views of the Judges' Council are not entitled to the same weight on this question as they undoubtedly were in relation to the future of the Lord Chancellor.
Turning back to the amendment, I hope that we shall have a very full debate this afternoon and evening, but I do not see how we can reach a decision today on whether the Supreme Court should come into existence. Let me explain why that is.
The Lord Chancellor has told us that since June 2003 he has been searching for a site for the new Supreme Court. At first there were 50 sites under consideration, which were reduced to six and then to two—Somerset House and the Guildhall. The rumour now is that Somerset House has been ruled out on the grounds that the Government cannot afford the asked rent. That is only a rumour, and I do not know whether it is true. But we have only rumours to go on. That leaves the Guildhall.
In April this year, the Law Lords visited the Middlesex Guildhall. Their view, as a result of that visit, was that the site of the Guildhall is superb, as it clearly is, but that the building on the site simply would not do. I remind the House that the building was completed in 1913, in a style which the noble Lord, Lord Howie of Troon, described as "Victorian mock-Gothic". Well, he was right so to describe it—that is exactly what it is—but he was not so right when he went on to say that that made it very suitable for the Law Lords.
3.15 p.m.
The Guildhall building comprises a council chamber built for the MCC—which stands here not for the Marylebone Cricket Club but for the Middlesex County Council—and two other criminal courts. Another five other criminal courts have been added since 1913. The interior of the building would have to be very substantially modified, because the existing courts would be of no use to the Supreme Court. Three courts would be required, two for the work currently done by the House of Lords and one for the work currently done by the Privy Council. One of those courts must be large enough to enable nine Law Lords to sit together.
In a memorandum dated 30 April, subsequent to the Law Lords' visit, they said of the Guildhall that they had,
"grave doubts whether, even if radically transformed"—
as it would have to be—
"these spaces"—
that is, the three courts—
"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 … With Parliament Square and the Palace of Westminster to the east, and with Westminster Abbey to the south, the Guildhall site in our view deserves a building very much more distinguished than the Guildhall is or can ever be".
That was the unanimous view of the Law Lords, expressed in that written memorandum of 30 April. So far as I know that remains their view.
There remains the question of cost. Again, I remind your Lordships of the story so far. The original estimate in the Explanatory Notes attached to the Bill was that the capital costs would be between £6 million and £32 million—which is perhaps rather a large margin for error. Then, in the Select Committee, after much pressure from members of that committee, we were told that the Guildhall site would cost £32·5 million, which is £500,000 more than the original estimate. Exactly the same figure of £32·5 million was given for the Cost of the alterations to Somerset House, if that had been the choice. Why the figure should have been exactly the same, I know not.
As to the proposed figure of £32·5 million, we were told—and I suggest to your Lordships that it is important:
"It is not possible to provide definitive figures until the Government has taken final decisions upon the location of the new Court, the method by which the necessary investment will be financed and the detailed design of the internal building changes that will be required (the figures below are based on minimising interior intervention, and, should greater internal reconstruction be required, then costs could increase)".
Those are ominous words indeed. They are followed by these even more important words:
"The figures also exclude any costs for decanting existing occupants and operations".
"Decanting" is not, I think, the word that I would have chosen. Decanting wine is something that we all enjoy but decanting judges is by no means so easy. We would have to find seven new courts somewhere for the seven existing active courts in the Guildhall. Where will they
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go? Again, one has to rely on rumour because we have been told so little. The rumour was—I do not know whether it is still the case—that all seven courts would be accommodated in a new building in Croydon. Then it was said that four courts only would move to Croydon. Where the other three courts were going to go I do not know.
What will it cost? I refer to the cost of rebuilding and refurbishing, including—this is essential—the costs relating to the seven new courts that have to be built somewhere. The cost of rebuilding or refurbishing, if that is the right phrase, the courts in Edinburgh—I am not talking about the Parliament Building in Edinburgh but the courts—has already exceeded £93 million. Yet this morning for the first time we were given a figure for finding seven new courts of £15 million, which sounds suspiciously, even absurdly, low.
However, before I come back to that figure I hope that I may say a word about timing because it is important.
In June this year in answer to a Starred Question from the noble Lord, Lord Peyton, we were told:
"We shall continue to investigate the relative qualitative and financial merits of those two buildings in consultation with the Law Lords before announcing a final decision in the autumn".—[Official Report, 9/6/04; col. 260.]
Autumn came and autumn went but we had no figures to go on. Then on 11 October the noble and learned Lord the Lord Chancellor was pressed hard by the noble Lord, Lord Crickhowell, who I am glad to see is present, that we must be given believable figures. In reply the noble and learned Lord the Lord Chancellor said:
"I agree with the noble Lord, Lord Crickhowell, that proper information needs to be provided before this Chamber reaches a conclusion … Two buildings are in 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".—[Official Report, 11/10/04; col. 74.]
Then what happens? He provides us with some figures which are, with one exception, exactly the same figures as we have had all along, on the very day on which he now says we must make a final decision on the existence or otherwise of a Supreme Court. When I say "the very day", I have in my hands a letter from the Lord Chancellor dated 8 December 2004, but which I received only as I was going home last night at about six o'clock, in which he says:
"I … think it essential that the House's view is tested at Report Stage on the issue of whether there should be a Supreme Court, separate from the legislature. The Bill has been the subject of very extensive scrutiny in the Lords (over a period of more than 12 months), and the issues at stake are clear. It is right that the House decides on the Supreme Court on Tuesday 14th. Deciding an issue of this significance at 3rd Reading would not be a satisfactory way to proceed, and would be fundamentally in conflict with the procedures of the House".
I have two comments to make on that. The statement that we received this morning is not, in my submission, a proper compliance with the undertaking which the Lord Chancellor gave us on 11 October. Furthermore,

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to provide the information which he has done at the very last moment, and then to require us to reach a decision on the same day as the information is provided, is not, in my submission, a proper way to treat this House. Why could we not have had those figures last week? Why could I not have been told about those figures when I rang the noble Baroness's office yesterday to inquire whether any figures were available, and was told nothing whatever about them?
The decision that we are asked to take is one of the highest constitutional importance. It involves weighing the alleged merits of creating a Supreme Court and removing the Law Lords against the cost of doing so. How can we make a responsible decision about that without having had a better chance to study all the figures? That is why I say we simply cannot reach such a decision today. I say it with great regret but we cannot do this matter justice except to say that this decision will have to be taken at Third Reading rather than today.
The Lord Chancellor says that it is quite unsatisfactory to proceed in that way, and that it,
"would be fundamentally in conflict with the procedures of the House".
If that be so, all I can say by way of answer is that it is his doing for not having provided the figures at an earlier stage.
Finally, I must speak briefly to the merits of the proposal, as I said that I would. In Committee I tried to deal with the many arguments that had been put forward from time to time by the Lord Chancellor. I think that there were 10 in all. It sometimes seems to me that multiplicity of arguments often points to the fact that very few, if any, of them are of any great weight.
Today I shall deal only with the three arguments that the Lord Chief Justice put forward last week on behalf of the Judges' Council. The first argument concerns the separation of powers. Secondly, it was said that the role of the Law Lords needs to be better understood. Thirdly, it was said that a new building would provide better access for the public. I shall try to deal with each of those arguments in turn.
As regards the separation of powers, about which we have heard so much during these debates, and about which, it seems to me, there is so little understanding, I can understand that the Lord Chancellor as a member of the Executive should not sit as a judge. I could see why, if we were to reach consensus on the future role of the Lord Chancellor, we had to accept that he should no longer sit as a judge—a decision which I regret as we have had Lord Chancellors who have been very great judges. But, as I say, I understand that and I accept it, but I simply do not understand the argument when applied to the Law Lords, who are not members of the Executive. The separation of powers is not a rule; it is a theory. You have only to look at the position of the Prime Minister in the House of Commons to see that the separation of powers as a theory has no place in our constitution; for there is the Prime Minister, the head of the Executive,
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sitting at the heart of, and, indeed, in control of, the legislature. That is utterly different from the position in the United States.
In that respect if no other we are not like modern democracies, so why should modern democracies be given as an example to us when answering the question whether the Law Lords should or should not be Members of the House of Lords? The Government argue that there must be separation in order to comply with Article 6 of the European Convention on Human Rights. That is the article that guarantees a fair trial. That argument was supported by Professor Woodhouse, but despite her support, it is simply wrong. As the noble and learned Lord, Lord Hope, made clear in a recent judgment given in this House, there is no requirement that a judge or a part-time judge should not sit in the House of Commons or in the House of Lords. It all depends on the facts of a particular case whether the judge is disqualified by something that he has said in the House of Lords. That point is echoed—
3.30 p.m.
Lord Lester of Herne Hill: My Lords, does the noble and learned Lord agree that the point that he raises has never been decided by the European Court of Human Rights and that it is an open question in the light of the McGonnell decision? There are many in this House and beyond who would not agree with what he is saying about the convention.
Lord Lloyd of Berwick: My Lords, I hesitate to differ from the noble Lord, but it has been decided in the case of Pabla Ky v Finland, which is the very case on which the noble and learned Lord, Lord Hope, relied when he gave his recent judgment.
In the report of the Joint Committee on Human Rights, exactly the same point is made:
"It is clear that Article 6 does not require the UK to abolish the Appellate Committee of the House of Lords and establish a new Supreme Court which is entirely separate from Parliament".
I think that is a committee to which the noble Lord, Lord Lester, is a party. It is true that it goes on to say in paragraph 170 that to have a separate Supreme Court would reduce the risk of violations of Article 6—but what is that risk? We have had the European Convention on Human Rights since 1950, and there has never yet been a single case where that risk has materialised. Far greater is the risk that a Law Lord would say something in a lecture that was inconsistent with a case that he might subsequently be called on to decide. Indeed, that actually happened just a week or so ago, when the noble and learned Lord, Lord Steyn, said something in a lecture and because of that he said that he could not sit on a particular case—and the sky did not fall in. If that applies to lectures, why on earth could it not apply equally to things said by a Law Lord in this House?
I have spoken, as always, for much too long, but I should just add at the very end in answer to this question on separation of powers something that was said in evidence by Lord Wilberforce, probably one of our greatest judges, and certainly one who was very

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familiar with the ways of the House. In his evidence to the Wakeham Commission, which was accepted by it, he said:
"I beg the commission not to be confused or led astray by references to the separation of powers. I am sure that they appreciate that the separation of powers is not a legal norm, nor a constitutional principle, which governs the way in which we should conduct our affairs. No instance can be cited where a judge's participation in a piece of legislation can be said to have affected his judgment. In the event of litigation upon it to go further and the more remote likelihood of this occurring, the judge in question would clearly recuse himself. The case to the contrary is indeed not really argued. The most that can be said is that this is a matter of perception".
I wish that the Judges' Council had had that evidence in mind when it expressed the view that it did. I beg to move.
Lord Crickhowell: My Lords, I rise at this stage because my remarks on an earlier occasion have been quoted, and the issue of cost has been raised. I start with the comments of the noble and learned Lord, Lord Lloyd of Berwick, about the way in which the information has been provided. He had the advantage of me. He received the information, as I understand it, this morning. As fate would have it, I had to drive for three and a quarter hours this morning to a family funeral, and three and a quarter hours back. I got back to the House only about three quarters of an hour ago. The first that I heard of the Statement was when my noble friend Lord Kingsland mentioned it. I have had to digest it in rather quick time. That follows a pattern, because it was in exactly the same way that information was provided to the Select Committee—right at the end. It is not a good way to treat the House and its committees.
We are told that the decision must, apparently, be made today, certainly on Report and not at Third Reading. On 11 October, the noble and learned Lord the Lord Chancellor said:
"The search for suitable premises must not distract us from the principles behind these reforms".—[Official Report, 11/10/04; col. 74.]
I think that he will repeat that phrase in a similar form many times before the end of this debate, because he is determined to try to get a decision, whether or not we have the necessary information.
The noble and learned Lord, Lord Lloyd of Berwick, has taken us right back to the principles involved with his amendment, which leaves the Lords as the Supreme Court. He rightly précised the argument that he advanced on previous occasions that, whatever the principles involved, the cost and suitability of the buildings should be taken into account when we make our decision.
We are to have an amendment later, as part of this group, tabled by my noble and learned friend Lord Howe of Aberavon, which proposes one possible alternative solution. Right at the end of proceedings on Report, we are to consider a sunrise clause proposed by the noble and learned Lord the Lord Chancellor. In the light of what has been said on earlier occasions by the noble and learned Lord—I will come to that in a moment—that sunrise clause will not be
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adequate in its present form. One of the difficulties in dealing with a group of this kind—I must again complain about the way in which the grouping has been arranged—is that an awkward mix of amendments are grouped. Some will come up much later.
I shall concentrate on cost and suitability. On I 1 October, the noble and learned Lord the Lord Chancellor said:
"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".—[Official Report, 11/10/04; col. 74.]
That immediately prompts the question, "accountable to whom?". Surely, there can only be one answer to that, it must be, "to Parliament". The noble and learned Lord the Lord Chancellor then helpfully made it clear that in his judgment it was not accountability to be exercised after the event, when the accounts of the building costs would be presented to Parliament, but that it should be put before Parliament before it reached its judgment on the principles. The noble and learned Lord could not have made things clearer or given a more absolute pledge than he did on that occasion. He said:
"I agree with the noble Lord, Lord Crickhowell, that proper information needs to be provided before this Chamber reaches a conclusion".
A few moments later, he said it again:
"I agree entirely with the noble Lord, Lord Crickhowell, that before this House takes a final decision, it should have the information before it".—[Official Report, 11/10/04; col. 74.]
As if that was not enough, in his closing sentence seeking agreement to the principle of a Supreme Court, he said:
"I believe that the important points about accommodation need to be addressed".—[Official Report, 11/10/04; col.76.]
The Written Ministerial Statement that I have just had the opportunity to read cannot be taken as an adequate and complete statement of the information that Parliament should have before reaching a verdict.
On 11 November, I referred to the quite brilliant report of my noble and learned friend Lord Fraser of Carmyllie on what happened to the Scottish Parliament and the construction of Holyrood House. I suggested then that some of the principles that he raised should be the ones that guided us in this matter. It was the comments on his principles that preceded the undertakings and pledges given by the noble and learned Lord the Lord Chancellor. As he is a man of absolute integrity, I am certain that he will wish to provide full and comprehensive information before a conclusion is reached. That means that we cannot possibly take a decision today. Indeed, when we come to the sunrise clause, I will argue that it will have to be amended so that the verdict comes back to both Houses of Parliament; my noble friend Lord Kingsland has already tabled an amendment. The decision should not just be taken by the Executive and the Lord Chancellor after consultation with the Law Lords, which is what is proposed.

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We ought to take a brief look at what happened in Scotland, because it gives some interesting lessons. A White Paper published in July 1997 put the estimated capital costs for the Parliament between £10 million and £40 million. As the noble and learned Lord, Lord Lloyd of Berwick, reminded us, the Select Committee on the Bill was told by the noble and learned Lord the Lord Chancellor that set-up costs of the Supreme Court had been calculated at between £6 million and £32·5 million, with the likely figure at the top end of that range. There is an uncomfortable similarity between the starting costs for both projects.
By January 1998, Donald Dewar was considering a conventional building at Holyrood costing about £50 million to £55 million, plus VAT and fees of £19 million. We are already seeing the escalation. Independent quantity surveyors tabled significantly higher estimates. There was absolutely no clear understanding whether the original £40 million was a total cost including professional fees and VAT, or only the base construction costs. That therefore takes us to the first questions that the noble and learned Lord the Lord Chancellor will have to answer about the estimates that he has provided and any others that he will give us. Have they been confirmed by independent quantity surveyors of repute? We are entitled to know that.
I shall pose some other questions. My noble and learned friend Lord Fraser of Carmyllie drew attention to the Treasury guidance on project briefs, which define the client's needs and aspirations. We are told in the document published today that a statement of requirements has been agreed with the Law Lords. We should know a little more about that, because there were some vague ideas of what the Scottish Parliament would require. There was a form of statement on that occasion, but it proved totally inadequate, giving no accurate account of what would be required. We therefore need to know whether there is a properly agreed project brief that fully meets the Treasury guidance.
The Scots used a construction management contract, in which design, tendering and construction overlap, with a fee-earning construction manager providing supervision. It is a form of contract that has some advantages but leaves the risks almost entirely with the client. It was the decision to proceed with such a contract with,
"virtually none of the key questions",
asked, to quote my noble and learned friend, and without Ministers being involved that took them to,
"the point when the wheels began to fall off the wagon".
That was my noble and learned friend's typically pungent and effective comment on what happened. My third and fourth questions are: what form of contract is to be used, and what exactly is to be the role of Ministers in managing the project?
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3.45 p.m.
By May 1999, our Scottish friends were working on a total project cost of £117 million, but then they were looking at VAT, fees, contingencies, IT fit-out, furniture and so on. It is by no means clear from the Statement today, although there is a reference to a splendid library and to IT, whether the costs of providing that library, IT and so on are included in the numbers presented to us. I suppose that what most people in normal business circumstances describe as contingencies are covered by that wonderful new phrase, "optimism clause"; I had not heard it before. Is that the case?
My next question is what the total estimated cost will be, including all those items and another mentioned by the noble and learned Lord, Lord Lloyd of Berwick; namely, the cost of moving the existing courts and the people who serve them into their new premises. He cast doubt on the estimate of £15 million, including the optimism figure, presented in the paper today. Like him, I am a bit sceptical. We need to know whether it is a comprehensive figure—whether the considerable costs of moving a whole raft of people from one part of the capital to another are covered.
My noble and learned friend said among the key conclusions of his report on Scotland that the feasibility studies were no more than an indication. Do we have more than an indication now? He said that inadequate attention had been given to the brief. Has this brief been properly prepared? On this occasion, Parliament will need to be satisfied that the brief is adequate and has been fully considered, that the feasibility studies are more than an indication, that we are dealing with a properly costed project, and that all the key questions have been asked with adequate answers provided.
I do not suggest that we should finish with a total cost of around £430 million, which is what happened in Scotland, as I hope that we are dealing with a conversion. However, we cannot be certain of that, as the document just put before us includes a statement that, at the moment, is only the favoured option. The Government still have to get planning permission and deal with the points raised by English Heritage. It is by no means clear that we will finally finish with the building at all. It is not impossible that the noble and learned Lord the Lord Chancellor will have to go away and construct a new building.
With that possibility in mind, I say again—it is a simple point—that the decision cannot be taken by the noble and learned Lord the Lord Chancellor after consulting the judges. We must finish the Bill with clauses in it that make it clear that we shall not go ahead unless the full costs and information have been provided to both Houses of Parliament before we are fully and finally committed.
Lord Maclennan of Rogart: My Lords, before the noble Lord sits down, would he make clear that no part of the excellent report of his noble and learned friend Lord Fraser of Carmyllie suggested or even implied that the matter of high constitutional

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import—namely, the setting up of the Scottish Parliament—should attend upon the kind of assurances which he seeks prior to the passage of this Bill of high constitutional import; and that that report largely exculpated Parliament and Ministers of blame for the escalation of costs?
Lord Crickhowell: My Lords, I thought that I had sat down and I do not intend to take the House through my noble and learned friend's extensive report in detail. But I agree that this is a matter of high constitutional importance. I fear that we will reach a situation where people will say, "We need this new building urgently, because it has taken so long, so far, and it must be a very grand building". Indeed, we heard evidence in the Select Committee from a senior Law Lord that we needed a pretty grand building of the kind that had been constructed elsewhere in the Commonwealth. I am not saying that we should not end up with a very grand building, although we have a pretty grand and suitable building here already, so I do not believe that that is necessary.
Noble Lords: Hear, hear!
Lord Crickhowell: My Lords, if we are to construct a grand building—and I hope that my noble and learned friend Lord Howe of Aberavon will persuade the House that we should not—then the facts and figures about it must be decided by Parliament and not the executive.
Lord Richard: My Lords, perhaps I may persuade the noble Lord not to sit down just yet. I listened, as I always do, to the noble Lord with great attention. As I understand it, he is saying that the House should not be asked to take a decision today. The noble and learned Lord, Lord Lloyd, said the same. May I ask the noble Lord, Lord Crickhowell, if the amendment tabled by the noble and learned Lord, Lord Lloyd, is passed, would he consider that to be a decision? If the amendments tabled by the noble and learned Lord, Lord Howe, are passed, would he consider those to he decisions for the purposes of the passage of the Bill? If they would be decisions—and, on the face of it, they look as if they would be—they could not be brought back to this House during the course of the Bill.
Lord Crickhowell: My Lords, although I cannot speak for my noble friends, my decision is that, due to the situation in which we find ourselves, these crucial decisions should probably be postponed. It is wrong to rush this matter and it may be that, depending upon what the Lord Chancellor says, my noble friends may not press their proposals to a Division today, but will want to see what is said at Third Reading. If Third Reading were to take place early in the new year, surely by then the Lord Chancellor would be in a position to give us the full information which, so far, he has failed to provide?
Viscount Bledisloe: My Lords, before we go any further, could we have some guidance from the Lord
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Chancellor and the noble and learned Lord, Lord Lloyd, on what on earth we are doing today? The noble and learned Lord, Lord Lloyd, started by saying that he wanted a very full debate, but he then said that we should not take a decision today, because we do not have all the information. I confess that it would be somewhat optimistic for him to think that he will obtain much more information before next Monday.
There are many potential speakers and, I suspect, a great many more potential auditors who, if this matter is delayed until Monday, might well wish to reserve their fire today, and, speaking from the audience's point of view, might well wish to go away and stop listening to a matter that is apparently purely hypothetical and would be debated again when everyone has studied the figures more closely and, hopefully, has more information.
On the other hand, the Lord Chancellor has apparently written to the noble and learned Lord, Lord Lloyd, to say that we must have a vote today and that it would be improper to put it off until Monday. Could we possibly be told which is going to happen?
Lord Elton: My Lords, will the Lord Chancellor say why this matter has to be decided now and not at Third Reading? Everyone seems to have accepted that as a given—the Lord Chancellor said that we must decide today, so this is the day to do it. Surely, we have the right to postpone this until Third Reading. Indeed, in extremis, if the figures still cannot be produced, the Bill could be recommitted to Committee at any stage between now and Third Reading. The procedures are in place, so I cannot understand why this important decision should be taken in great haste without the full information being available.
Earl Ferrers: My Lords, I would not wish to enter that particular—
Viscount Bledisloe: My Lords, could we have an answer from the Lord Chancellor?
Lord Falconer of Thoroton: My Lords, first, I am very much in the hands of noble Lords who are moving amendments. I must wait and see what is said in relation to them. I am very struck by the speech made by the noble Lord, Lord Crickhowell, as I always am. He was my tormentor in relation to the Dome and, once again, he has showed his accountancy prowess in relation to the questions that he has asked. I have no desire to bounce anyone into a decision today. There is a fundamental difference between myself and the noble Lord, Lord Crickhowell, in this respect. I will certainly endeavour to answer all of his questions in my reply to this debate.
I do not believe that the noble Lord, Lord Crickhowell, is saying, "You've got to produce, as it were, a contract and all of the costings available", because we will not reach that point before the Bill has completed its course through Parliament. I think that the noble Lord is saying that we need to have an order of magnitude and some confidence that the order of magnitude is accurate to reach the balance that is

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required in determining whether we go ahead with the Supreme Court. With respect to the noble Lord, that would seem sensible to me. I believe that I have done that in relation to the statement that I have made, but in my speech I shall certainly endeavour to answer the noble Lord's questions.
As the noble Lord, Lord Elton, said, there is nothing to stop us resolving the issue next Monday, although it is not normal to resolve issues of that magnitude on Third Reading. Indeed, according to the Companion, Third Reading is for delivering undertakings by the Government, drafting issues and clarification of issues of difficulty. So it would be very unusual to resolve this issue on Third Reading. I believe that I have broadly complied with what I said I would do. As the noble and learned Lord, Lord Lloyd, rightly pointed out, the order of magnitude of costs has broadly remained the same throughout. That seems to be the critical issue that this House must focus on in making the decision.
But I have no desire to force noble Lords to make a decision earlier than they would wish to. So, if the noble and learned Lords, Lord Lloyd and Lord Howe, are not going to press their amendments, I shall do nothing to precipitate a vote in relation to them. I am sorry that that would mean that the noble Viscount, Lord Bledisloe, would leave and not listen to the debate, which I am sure will be edifying in every respect.
The only point that I wish to make in conclusion is that I do not think that noble Lords should expect a great tome of material, setting out who I intend to contract with in relation to Middlesex Guildhall, because I am nowhere near contracting with anyone. All that I can do is to provide an order of magnitude in relation to the figures and that would be the right basis upon which the House could make its decision, rather than acting as if it were a planning committee.
4.00 p.m.
Lord Howe of Aberavon: My Lords, it may help the House if I intervene at this point to speak to the amendments in my name which are grouped with the amendment that has been moved by the noble and learned Lord, Lord Lloyd. On the particular point, as I understand the position, because of the proposed existence of a sunrise clause, any final decision about the adequacy of financial supervision of the premises, and so on, in detail, will be postponed until the sunrise clause begins to operate—whenever that may be.
The underlying principle of whether we support the concept of establishing the Supreme Court away from these premises is also something that we have to decide. If I read the Lord Chancellor's intervention correctly, he would not wish to press the House to a decision on that matter, covered as it is by the amendments moved by my noble and learned friend Lord Lloyd and the amendments tabled in my name.
Perhaps I should apologise to the House for my tardiness in developing the alternatives that I propose, because I had discussed the matter in the Select Committee before we completed our work, as
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colleagues will remember. As my colleagues may also know, since that time I have not been operating on all four cylinders until quite recently, and so I take this opportunity to put my ideas before the House today.
Those ideas are based upon two propositions. The first concerns the lack of convincing credibility of the financial and technical aspects of the plan under consideration by the noble and learned Lord the Lord Chancellor, as already adumbrated by my noble friend Lord Crickhowell and, indeed, by the noble and learned Lord, Lord Lloyd. Are the figures and the analysis sufficient to enable us to go down that route?
I do not believe that the case has been made for the total physical and institutional separation of the Supreme Court from this House, which has, heretofore, been the Supreme Court. I can understand the changes that are proposed in the Bill in relation to the constitution of the Supreme Court, but I suggest to your Lordships that there may well be a middle way which would allow us to avoid the upheaval involved in the transplantation of the institution from this place.
Perhaps I may say a word about the amendments standing in my name. Amendment No. 35B provides that the Supreme Court shall be,
"situated within the House of Lords, but not entitled to use the chamber of the House of Lords for the hearing of appeals or the giving of judgments".
Amendment No.135A, which is grouped with it, concerns the situation of the Supreme Court. It states:
"The Supreme Court will be situated within the House of Lords",
and,
"Any plans drawn up by the Minister under section 107(3A) shall concern solely accommodation within the Palace of Westminster and its dependent buildings and be subject to approval by affirmative resolution of [this] House".
Therefore, the first of the two ideas that I commend is that the Supreme Court should continue to function on these premises.
The second idea, which is covered by Amendment No. 37A, is that:
"Nothing in this section shall preclude judges of the Supreme Court from continuing to use the style of Lord of Appeal in Ordinary";
in other words, they need not be summarily expelled from this House if a Supreme Court continues along that line.
One implication of this approach, to which I shall return later, is that the financial arrangements for the funding and management of the Supreme Court, if addressed in that way, would remain as they have done until now under the control of this House and of Parliament. Any alternative, involving the intervention of the executive through a Minister, would not be necessary if one continued along the path that I have in mind.
My central reason for arguing against the upheaval involved in the provision put forward by the noble and learned Lord the Lord Chancellor is covered by one paragraph in the report of the Joint Committee.

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Paragraph 130, which is described as part of the common ground, contains a very important proposition. It states that,
"the overwhelming view—which the Government accepted from the outset—is that the Appellate Committee of the House of Lords has a high reputation at home and abroad for excellence of its judgments, its efficiency and the probity of its judges. It is accepted that as a matter of fact the Law Lords are independent of pressure of any kind … from either Parliament or the Government".
One other sentence in the report states that even people who are in favour of reform identify the risks involved in change. That is why one has to approach this decision with a great deal of caution.
I turn to the grounds already referred to by the noble and learned Lord, Lord Lloyd, for the reasons given for change. One that he did not touch on directly is the suggestion that the existing accommodation provided for the Law Lords is cramped, crowded and inconvenient. I have never had the privilege of serving in those premises, nor even of glancing at them. But that is not a view unanimously maintained by the Law Lords.
One feature should be taken into account. If the Lord Chancellor's office and role are redefined as already proposed in the Bill, the amount of accommodation required for the Lord Chancellor's Department, which is in close proximity to the office where I lurk in the building, would be significantly less than it was a year or so ago. As regards the matter of additional accommodation, the Law Lords themselves are by no means united in expressing dismay at the size of their present premises or enthusiasm for moving somewhere else.
The second matter raised—I know that the senior Law Lord, the noble and learned Lord, Lord Bingham, attaches importance to this—is that there is insufficient quality in the public access to Committee Room 1 in which the Law Lords currently sit. That is a matter with which we can deal. Clearly it would be possible to transform what is now rather modestly described as the Black Rod's Garden entrance—with great respect to Black Rod, it sounds like access to the garden shed—into the Supreme Court entrance. It is possible to present it, as other entrances are identified, as the place to which people come in order to attend the hearings of the Supreme Court of the country in its present location.
The present location is, indeed, one feature to which the Law Lords attach considerable importance. They have made it very clear that they do not want their new location to be a grand, court-like building, with them sitting on high and the poor folk sitting down below. They want to simulate and, indeed, maintain the informality that exists at present between them and the counsel and litigants who appear before them. So, if we were to follow the lines proposed in the amendments tabled in my name, an advantage would also be gained in that respect.
It is that informality which is an ideal and which those in support of change wish to combine with supreme grandeur in the external appearance of the premises. I think that the noble and learned Lord, Lord Bingham, referred to the tourist traveling
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around Singapore, pointing to a huge building and saying, "Is that not grand? That is our Supreme Court". If he wished to, he could do the same in Hong Kong—one of the achievements of the continuing relationship with the Chinese. But if one went to this grand building and found oneself in a modest little lounge, as it were, that would be a curious contrast. I believe that there is a great deal to be said for the continuity involved in maintaining that modesty, which has earned respect around the world.
One other feature is the perceived subordination of the Law Lords to this parliamentary assembly. One might ask: "Is not the Judicial Committee just a lot of people appointed by you parliamentarians, rather like the corresponding body of the National People's Congress in the People's Republic of China?". One had some difficulty in discussing the difference between a committee which is a subordinate of the NPC and our Appellate Committee, which is a "subordinate of this House". But, of course, it is in no sense subordinate.
It would be even less subordinate if the appointments followed the pattern now set out in the Bill. I am proposing that that should he made clear by making it manifest that judgments will no longer be given in this place. Judgments will be given as the arguments are heard in the informality of the Committee Room in which the Law Lords have conducted their work so far.
I listened with interest to the points made by the noble and learned Lord about the separation of powers. I can add very little to what he said on that matter. It is well known that the executive and the legislature are joined irretrievably in both Houses of Parliament. But no one has ever suggested that impropriety or negative consequences ensue from the presence of Law Lords in this House, and no suggestion has ever been made that that undermines the independence of the Law Lords. On the contrary, the Law Lords themselves say that it is of value to them to be able to listen to the proceedings in this House, to sit in this House and to be part of the law-making establishment.
I know that the noble and learned Lord the Lord Chancellor has sought to make a distinction between judges and lawmakers, but there is such a thing as judge-made law. The Law Lords have told us that, when they consider the statutes that they have to apply, they find it valuable to have been in proximity to those who have argued about them in this House. In so far as they remain able to take part in proceedings here, they can contribute in the opposite direction.
From a constitutional point of view, I see no difficulty in the absence of separation of powers. Indeed, to see some of the consequences of following those arrangements too slavishly, one need only look at countries such as Ukraine, where there is undue separation of powers. Ukraine has attempted to emulate the American model by having strictly separated powers between judges, the executive and the legislature, and they have not learnt, as the Americans have after some 200 years, how to manage

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gridlock in that situation. Perhaps the Americans had the advantage of a rather different factor: for 100 years their Supreme Court was in the same building as the legislature. None of those physical points should be regarded as decisively important.
My last point is that covered by the second part of my amendment, that the Law Lords should retain the style and title of Lords of Appeal in Ordinary. I do not thereby mean that there should be no change in the present arrangements; indeed, that is probably shorthand for what I mean. I believe that they should remain, not just sitting hearing cases and adjudicating in these premises, but that they should also be part of your Lordships' House. It is perfectly possible within that arrangement to provide, by convention or by other means —by rules of the House, if necessary—that they do not vote. As far as I am aware, they scarcely ever, if at all, vote at present.
It is also perfectly possible to provide that they do not speak. I do not regard that as an ideal conclusion because, clearly, the contribution of those Law Lords who preside over Select Committees of this House, when working in that role, is important. Of course, it is perfectly possible to provide that, while sitting as judges, they do not sit, speak or vote in the House, but when they come to retire, they will automatically be part of the House.
It should be possible, along those lines, to find a conclusion that will be more consistent with our constitutional history. I am not someone who stands in flat opposition to reform or change. When I was younger I sometimes had a rather disreputable reputation for being a dangerous radical. However, I am perfectly prepared to contemplate the kind of changes involved in Part 3 of the Bill and I am perfectly prepared to contemplate some of the other changes.
The case has to be made out more firmly than it has been so far for the transplantation of the institutions that work so well in joint harness in this House. I believe that adequate arrangements can be made for their continuity along the lines that I have suggested. I suggest that those arguments should be kept in mind when the time comes—whenever that may be—to decide the answer to the points raised in the amendments moved by the noble and learned Lord, Lord Lloyd.
Lord Grabiner: My Lords, unfortunately, I cannot be here on Monday, so I hope that I shall be forgiven for putting in my pennyworth on this occasion, even if the amendment is not put to a vote.
Like many lawyers, I am quite conservative when it comes to root and branch reform of our constitution. On the whole, I favour the view that if it works, let it be. As a result, I agree with the retention of the office of the Lord Chancellor. I am quite relieved that the holder of the office will, it seems, be a lawyer of distinction. I am not a slavish adherent to the strict doctrine of the separation of powers, which has never been our way.
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That said, I believe that we should have a Supreme Court which will be, and will be seen to be, independent of the legislature and of the legislative process. We are promised a building away from the Palace of Westminster which will be suitable for its purpose. Mechanics are in place in the Bill so that the commencement of the Act will be deferred until the building is ready.
My noble and learned friend the Lord Chancellor is right. We should have a truly independent and properly financed Supreme Court away from your Lordships' House. That will produce greater clarity in the public understanding of the role of our final court of appeal. The Supreme Court will discharge its functions away from the politics of this place. The working conditions of our most senior judges will be improved as will public access to the highest court in the land. Those are important and often underestimated considerations.
In truth, the amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick, are wrecking amendments. The practical effect of his proposals would be to undermine the purity and common sense of the new Supreme Court. In my view, that would not be a wise step for the House to take. Noble Lords should take this opportunity to strike a progressive note. The concept in the Bill is the right one. In my view, blowing hot and cold about it would be a mistake.
4.15 p.m.
Lord Waddington: My Lords, I rise with some diffidence because I did not serve on the Select Committee, but I spoke to some of these matters at Second Reading. It is right at this stage to revert to the basic arguments in favour of and against a Supreme Court.
I am prepared to take the amendments at face value and state bluntly why I am against the proposal. We now know that the Bill, including this proposal, saw the light of day as a result of the decision of a cabal, without any consultation with the Lord Chancellor of the day, the Lord Chief Justice or anyone else, and clearly, in my belief, without careful weighing of the advantages and the disadvantages of the establishment of a Supreme Court. We should certainly carry out that careful weighing operation now, before any decision is reached.
The other day the noble and learned Lord, Lord Woolf, the Lord Chief Justice, told us that, so far as he was concerned, the reasons for setting up a Supreme Court were that it would be,
"more accessible to the public; it would be more in accord with the separation of powers; and its role would be more understandable to the public".—[Official Report, 7/12/04; col. 758.]
However, at no time did the Lord Chief Justice suggest that it was necessary to carry out that step or we would be in contravention of the law. Of course, it hardly needs saying, but when that step has been taken, we certainly shall not have a constitution that, for one moment, begins to comply with any doctrine of separation of powers, as the Prime Minister and members of the Cabinet are all members of the legislature.

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At no time was it suggested by the noble and learned Lord that the Supreme Court would work better; it has never been suggested at any time that the court will dispense better judgment; and it certainly was not and is not suggested that better judges will man the court, for the simple reason that they will be precisely the same judges as serve as Lords of Appeal now. Like the present Lords of Appeal, they will, in the words of the consultation paper, be people of outstanding integrity and independence, wisely and rightly admired both nationally and internationally. Nothing will have changed.
It is painfully easy to spell out what will be lost if the change is made. For a start, this House will lose the experience and wisdom of the Law Lords, who add lustre to this place and give wise counsel on criminal justice and legal matters. It should not be forgotten that they make a distinguished contribution to our work in committee. Judges will lose a forum in which they can defend judicial independence and fight measures inimical to the proper administration of justice; and taxpayers will lose the very substantial sums of money that the new Supreme Court will cost.
It is argued that it is essential that if there is to be a Supreme Court it must occupy a distinguished—the noble and learned Lord the Lord Chief Justice said "prestigious"—building. That is a very costly operation. I see no reason why such a Supreme Court should not operate within this building, as suggested in the amendment tabled by my noble and learned friend Lord Howe of Aberavon.
However, it cannot be denied for one moment that if we are to embark on this course and have a special building from which the Supreme Court can operate, it will cost money and people will ask why we are embarking on this form of expenditure at this particular time.
My noble friend Lord Crickhowell was right to remind us of what has happened in Scotland with its Parliament building. The preposterous goings on regarding that building should be a lesson to us all. They certainly have done nothing for the reputation of the Scottish Parliament. I fear that the public, who know that the Law Lords' work is carried on with great distinction within this building, will not leap with joy at the news that a new building is to be acquired and adapted at considerable expense to enable precisely the same judges to carry on precisely the same work.
As I pointed out at Second Reading, it by no means follows that as the work proceeds under the expert supervision of the Lord Chancellor and costs spiral out of control Dome-like, the only people who will be criticised will be the politicians. My fear is that some of the mud will stick elsewhere and people will begin to question why on earth the Lords were foolish enough to go along with the plan. So I think that it is time for us all to pause, to weigh in the balance the advantages and the disadvantages and to ask—if I may change the metaphor—whether the game is worth the candle. I do
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not think that it is. I support the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick.
Lord Ackner: My Lords, I should like to add a few words on a matter which has not yet been touched on. The noble and learned Lord, Lord Falconer, told us that today we were really concerned with the order of magnitude of the costs. That was what he thought we should concentrate on. One matter has not been mentioned on the order of magnitude, so perhaps I may deal with it.
Your Lordships will recall previous considerable discussion on how the costs of administering justice have escalated by the Government's policy decision to recover from litigants the full costs of administering justice. The phrase which may come back to your Lordships is the reference to the fact that even the cost of the cream for the office cat has now to be paid by the litigants. Your Lordships will recall how the salaries of judges, the costs of maintaining the building, the capital costs and the like, now feature as part of the costs. That has led to considerable resistance by the judges, who have had to agree under threat that if they did not the vote which the Lord Chancellor's Department depended upon for financing everything in the administration of justice would be prejudiced.
I understand that the cost of the new Supreme Court is likely to be 10 times the cost entailed in running the House of Lords. That is 10 times the cost of what is paid by litigants for the benefit of being able to take a case to the Lords. The Lord Chief Justice stressed the point that not a penny of new money will be provided by the Government for the new Supreme Court. I understand that instead of loading the 10-times figure on the litigants in the House of Lords or in the Supreme Court, the costs will be spread about the whole of the civil administration of justice. Therefore, litigants will be expected to contribute to the costs of litigation in the House of Lords, despite the fact that the House of Lords in its judicial capacity is essentially making decisions on questions of policy. That is what differs it so much from the High Court and the Court of Appeal. Leave to appeal is granted largely on the basis that an important policy issue is involved.
So we shall have the absurdity of a litigant in the High Court in a personal injury matter—so no policy is involved and the question is purely one of quantum—having to contribute to the costs of deciding some abstruse point which may be largely conditioned by the European approach in matters of natural justice and the like.
However, the matter does not end there, because the litigant will have to contribute not only to that, but also to the costs—which are considerable—of moving out those who currently occupy the premises which the new Supreme Court is to occupy. Those are part of the costs of the new Supreme Court. So in addition to the costs which have been referred to are the very significant costs which the Government should themselves be defraying. I ask the noble and learned Lord, Lord Falconer, to tell us whether any other major Commonwealth country looks to the public

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largely to defray the costs of administering justice, or whether the situation is—as it was in this country not very long ago—that the administration of justice is part of the obligation of any democratic country to defray, leaving minor court costs to be paid by the litigants. It is for that reason that I urge that added to the high costs that have been referred to should be those additional costs, which have been overlooked.
4.30 p.m.
Lord Richard: My Lords, I share the view expressed by the noble Viscount, Lord Bledisloe, at the outset of the debate. I am not exactly certain what we are debating this afternoon. We have heard various speakers, all of whom have complained that we are not in a position to take a decision today. We have also heard speeches in favour of taking a firm decision today, notably that of the noble and learned Lord, Lord Lloyd. If his amendment were passed, it would be a clear decision against the establishment of a Supreme Court. We have also heard of a halfway decision from the noble and learned Lord, Lord Howe.
When the noble and learned Lord, Lord Lloyd, was speaking, I took down a note of one of his sentences. He said: "We are not like modern democracies". Precisely so. I must say that that seems to me to prove the case on our side of the argument, not on his. I want us to be a modern democracy. I think that most people in this country would want us to be a modern democracy. We should therefore ask ourselves what being a modern democracy entails.
In a parliamentary system of government, it entails one thing for certain: governments are formed from the party that has a majority in the legislature. I find no offence in the proposition that the Executive should sit in the House of Commons, in Parliament. That is the essence of the system. If it were otherwise, it would be an entirely different system of government. But I find it somewhat offensive that judges should be legislators and sit in a House of the legislature.
It is interesting how the argument has developed over the months. Every time that those of us on this side of the argument have made that point, the answer has come back, "Well, of course they need not sit". Very well, then why are they here? Or it is argued that they need not speak. Again, why are they here? Or it is argued that they should not be allowed to vote. Again, why are they here? I know not.
I was fortified in that position when the noble and learned Lord, Lord Ackner, mentioned other common law jurisdictions. As far as I know, neither Canada, Australia, New Zealand nor South Africa has found it necessary for their Supreme Court judges to sit in the legislature in order to absorb this miasma or atmosphere—I am not quite sure what it is—that somehow seeps from the House of Lords and infects the judiciary so that they can be better judges than they would otherwise. I do not believe that for a moment.
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I happen to be a slightly old-style separationist when it comes to powers, and I think that the presence of judges in the legislature is offensive, arcane and way out of date, and it is time that something was done about it. The question is what.
Lord Carlisle of Bucklow: My Lords, I thought that the noble Lord had finished his speech.
Lord Richard: No, my Lords, I am afraid not. The noble Lord will have to restrain himself a little longer. If he gets up too often, he might even encourage me.
I now want to deal with the proposition advanced by the noble and learned Lord, Lord Howe. In our previous debate, the noble and learned Lord, Lord Lloyd of Berwick, used the phrase: "If it looks like a duck and quacks like a duck, the chances are that it is a duck". As I see it, if the proposition made by the noble and learned Lord, Lord Howe of Aberavon, is accepted, we will have someone who looks like a Law Lord. He will be a Member of this House—a Lord—and will give judgment in this building, as Law Lords do. In those circumstances, it is a bit difficult to see precisely how he will differ from the existing Law Lords who sit in your Lordships' House, except perhaps in name.
If I could see a way to do it, I would perhaps be prepared to come halfway to meet the noble and learned Lord, Lord Howe, but I do not. If he is proposing that the Supreme Court, which is separate from the legislature, should be housed in part of this building, one would want to consider that proposition. But if the proposition is that they should continue to be housed in this building; that, as I understand it, they should have a separate entrance; but that nevertheless they should still be Members of this House and be entitled to participate in debates of this House, that is not a compromise at all. If anything, it is a proposition that is designed to confuse rather than to elucidate. So I am not in favour of that.
For the benefit of the noble Lord, Lord Carlisle, I am just coming to the end of what I want to say. I hope that if we take a decision today, it will be taken firmly on the basis that something must be put right when we have judges sitting in the legislature of a parliamentary system of government—which is, as far as I know, not followed in any other parliamentary legislatures that have a common law jurisdiction. I hope that the time has come when it will cease to be followed here.
Lord Carlisle of Bucklow: My Lords, I hesitated to intervene in this debate because, I confess, the train on which I travelled down was two hours late arriving and I therefore missed part of the opening speech by the noble and learned Lord, Lord Lloyd. I decided that I was entitled to do so despite that, if for no other reason than that it gives me a chance, as a member of the Select Committee, to add my congratulations to those of other members of the committee to the noble Lord, Lord Richard, on the way that he handled that committee.

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I shall be brief. The argument for having a Supreme Court is obviously in effect, as the noble Lord, Lord Grabiner, said, one of principle. The principle is based on the separation of powers and yet it has been conclusively shown by many speakers in this debate and the evidence given to the Select Committee that the separation of powers does not really apply as a principle in this country. So we are not considering a major change of principle but a change in perception between the House of Lords, the Judicial Committee and the Supreme Court.
What is there to put against that perception? There is the fact that the practicalities of change will be very few. We will have the same number of the same judges, who will be required to have the same qualifications—all those matters were agreed in Committee—doing the same work as they do at the moment. More importantly—I will not repeat what my noble and learned friend Lord Howe said—it is accepted that they have a high reputation at home and abroad for the excellence of their judgments. The Government accepted that their probity and ability was beyond question. So we are being asked to spend a substantial amount of money to find a new building outside this one for what I suggest are no practical advantages at all.
In the Select Committee, we also heard of the advantages to this House of having the Law Lords as Members: the advantages from the point of view of the House, in that the Law Lords take part as chairmen of committees and such things; and the advantages, according to the Law Lords, that they get from the atmosphere that they absorb. Therefore, not only will there be little change in practice, we will lose that which we have. The noble and learned Lord the Lord Chancellor says that we could deal with that by making them Law Lords or Lords Peers as members of the Supreme Court. If one did that, one would have to make all Members members of the Supreme Court and that would have to be done when they were appointed rather than later.
As my noble friend Lord Crickhowell said, the expense becomes very central and relevant to the argument. I have just seen the Lord Chancellor's Written Ministerial Statement, which, apparently, is based on the fact that he has come to the conclusion that the Middlesex Guildhall is the preferred option. He has made it clear throughout that this was a conclusion that he wished to reach in consultation with the Law Lords. It states:
"The Law Lords have continuing reservations as to the suitability of this building to house the Supreme Court of the United Kingdom".
That seems a rather watered down statement. I understood at the time of the evidence that the Law Lords were totally opposed to the use of the Middlesex Guildhall because it is unsuitable both externally and internally.
Therefore, I suggest that the cost, which will be at the very least £38 million and probably more, is not justified by anything that we will achieve from this
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move. That is why I will support the amendment tabled in the name of the noble and learned Lord, Lord Lloyd, if it is put to the vote today.
Lord Tordoff: My Lords, we have had no one speak from our Back Benches. Perhaps a non-lawyer may be allowed to speak in this debate. I presume that we have not changed the rules quite so much today as to go that far. We have obviously changed the rules for proceedings at Report stage: we are now told that we will have amendments at Third Reading which are fundamental to the Bill. I deplore that. Taking between six and nine clauses from a Bill at Third Reading is a complete negation of the procedures of your Lordships' House. We should do that with great caution.
I have listened with great interest. I have a strong sense of déjà vu. When people start number crunching on important issues of principle such as this, I am reminded of the days when there were great arguments about the setting up of coeducational comprehensive schools. The argument used to revolve not around the benefit to the children of having coeducation but the cost of the changes that were necessary to the lavatories. So many building plans were delayed because of that really important position. I fear that we might be getting into the same thing here. But that is not really what I stood up to say.
I want to point out that it is now quarter to five. We have been dealing with the first amendment for one and a half hours. There are 30 groups of amendments. Do the Government have any idea whether we intend to go home tonight, whether we intend to get through Report stage today and, if not, what will happen to the rest of the Bill?
Earl Ferrers: My Lords, rather like the noble Lord, Lord Tordoff, as a non-legal person perhaps I may join the debate. One of the fascinations of any debate on anything to do with the law is that we get a number of noble Lords and noble and learned Lords taking part and going over everything with a fine toothcomb. I would not venture to enter into the intellectual heat that is generated by noble and learned Lords or noble Lords who are knowledgeable of the law.
I shall look at the matter from a slightly different position. We have heard much about the independence of the judiciary and the protection of the law. On 7 December, the noble and learned Lord the Lord Chief Justice said:
"I urge your Lordships to recognise that, if we value an independent judiciary and its task in protecting our personal freedoms, we should ensure that this Bill reaches the statute book".—[Official Report, 7/12/04; col. 759.]
On the same date, the noble and learned Lord the Lord Chancellor said:
"As to the third function—namely, ensuring the independence of the judiciary and the rule of law, which is vital—it is impossible to ignore the speech of the noble and learned Lord, Lord Woolf. He has made it clear that the new arrangements which he specifically put to the House … provide better protection for the independence of the judiciary than the current arrangements".—[Official Report, 7/12/04; col. 775.]

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I am bound to say that I find that argument hard to follow. If the future is going to be better than the past, the inference is that the past was poor, unstraight or somehow inadequate. I do not find that at all an attractive proposition. I have always thought—I think that every noble Lord has always said—that the British system of justice is the best in the world.
4.45 p.m.
People come from other countries to see what we do and how we do it. They marvel at it. Yet we dismantle it on some pretext of improving it. Of course, anything can be improved, but does one really have to get hold of the Law Lords, unseat them like forking cabbages out of a garden, knock all the soil off and then plant them in a different place of residence? That is not necessary.
If we do that, will the people of the country exclaim with excitement, "Ah, now we have a Supreme Court just like all the other emerging countries in the world. Now our law will be safer, less corrupt, more transparent"—whatever that may mean, but one has to use it on every occasion nowadays— "and it will give better judgments"? With the greatest of respect to your Lordships, if one believes that, one will believe anything.
In my modest view, the people of this country, in so far as they take any interest at all in these things, will say that it is a complete waste of money, it is an increase in bureaucracy and that we will have lost that which we have always respected; namely, the judgment of the House of Lords.
The new body will have to earn its respect. We should not be under the misapprehension that the respect in which the Appellate Committee of your Lordships' House is held will automatically transfer to the new body that government speak might love to call "a seamless legal transfer"
Apart from my overall dislike of the prospect, I have two fundamental concerns. My first concern is the further disfigurement of the membership of your Lordships' House. It was only a few years ago that the great rage was to get rid of hereditary Peers. That occupied your Lordships' and everyone else's minds perpetually ad nauseam. It was decided to get rid of all of the hereditary Peers. Then the Government decided that the House of Lords could not do without them so they had 100 of them back. I am bound to just mention in passing that we are the only Members of this House who are elected.
Not satisfied with that, the Government turned around and said, "Now we want to get rid of the Lord Chancellor". It was only due to the amendment of the noble and learned Lord, Lord Lloyd of Berwick, last week that that was put on the back burner temporarily. Now the Government say, "We want to get rid of the Law Lords; get rid of them altogether".
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What will be left? Just before answering that question, I should warn the right reverend Prelates—at least there is one here. I remember a quotation from the book with which he is familiar. It is something that he will probably remember better than I:
"Don't sleep—keep awake because a thief comes in the middle of the night".
The right reverend Prelates will be the next to go. The Government, given half an opportunity, will change their numbers from 26 to 15.
Who will be left? It will be only—with the greatest of respect I say "only"—our dear friends the life Peers. And they will be the next to go. Make no mistake about it. There will be alterations and that will happen.
I want to know why the Government are doing that to your Lordships' House. Why are they ruining the second Chamber of Parliament? Why are they denuding Parliament from the benefits and wisdom of the Law Lords? Why do they continue like vultures to pick at the carcass of your Lordships' House in order to try to consume anything that they can? Everyone knows—it is constantly repeated—that there is no other Chamber in the world with such knowledge and wealth of experience as your Lordships' House. Much of that comes from the noble and learned Lords, the Law Lords, as well as others. I find it extraordinary that this House should be denied that expertise and rendered bereft of it.
People talk about the separation of powers, but no one has ever suggested that Law Lords, in the operation of their work, have used their seats in this House in making their judgments, or that their experience here is such that, when they do make contributions, they do so with the knowledge they have gained over the years in dealing with the law, with criminals, and doing what they do.
My second concern is what the court will cost. On 8 March last, the noble and learned Lord, Lord Lloyd of Berwick, said:
"The current gross cost of running the House of Lords as a judicial body in this House is given [in a report from the Select Committee] as £623,000. The net cost—that is, net of fees—is £168,000. I would expect your Lordships to be astonished by those figures".
One noble Lord was "staggered" by them. The noble and learned Lord went on to say of the new court:
"The capital cost is given as between £6 million and £32 million. which seems a wide bracket. The annual running costs, excluding Law Lords' salaries so as to make it comparable with the other figures I have given, will amount to £8·7 million".—[Official Report, 8/3/04; col. 995.]
I gave the noble and learned Lord the Lord Chancellor notice that I would ask this question: how do the Government justify increasing the cost of servicing the Law Lords from £168,000 to £8·7 million? Those might be called Mickey Mouse figures. I do not understand how they can contemplate that kind of expenditure when, in another breath, they want to get rid of the band of the Coldstream Guards because they cannot afford it. I should declare an

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interest since I did march to the happy tune of the band of the Coldstream Guards, and that made me a better person than I would otherwise have been.
Sometimes I think that we really have gone mad. What will we get for all this extra expenditure? My noble friend Lord Waddington asked whether we will get better judgments, better lawyers, or different lawyers? Will we get quicker processing of waiting lists?
I had not realised, when I wrote to the noble and learned Lord the Lord Chancellor asking him to explain this, that his explanation would be made this morning in a Written Ministerial Statement. I felt a momentary excitement because I thought that I had made an impression on the Government because they put out a Statement before I had even asked the question. But of course such inflated arrogance soon went back to its normal position when I realised that the noble and learned Lord gave those figures as a result of the amendment put down by the noble and learned Lord, Lord Lloyd.
I fear that we are going to get more bureaucracy and a lessening of the huge respect presently enjoyed by the Law Lords as they are gradually merged into the pompous anonymity of a Supreme Court.
Baroness Carnegy of Lour: My Lords, in the midst of so many distinguished speakers, my natural diffidence has made it difficult for me to follow up the words of my noble friend Lord Crickhowell rather earlier in the debate. I turn to the question of the broad cost set out in the Statement of the noble and learned Lord. Indeed, he was kind enough to send it to me a day in advance. It details the capital costs of setting up the Supreme Court, should it be at Middlesex Guildhall.
My noble friend referred to what happened to the Parliament building in Scotland. I want to ask the noble and learned Lord whether he has taken into account the fact that it is much more difficult to estimate the cost of altering an old building than of constructing a new one. Anyone who has been involved in large expenditures within government, local government or even in commerce will know that. Moreover, it is particularly important to ensure that the right sort of contract has been agreed.
The noble and learned Lord quoted £30 million as the broad estimate of what the renovation will cost. Even the most enthusiastic supporters of the notion of a separate Supreme Court will not disagree that the broad cost must be understood before any decision is taken. On behalf of the taxpayers of this country, that is only right.
The noble and learned Lord has explained that the figure was calculated by looking at what the base costs might be —the construction costs, statutory fees, professional fees and VAT—and then adding half as much again to cover risks, unforeseen issues and changing project specifications. I know from
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experience that when making alterations to an old building, the risks and unforeseen issues are enormous. We need to know how confident the noble and learned Lord is that he is in the broad area of expenditure or, as happened in the case of the Scots Parliament, might the costs multiply by 10?
I see that my noble and learned friend Lord Fraser of Carmyllie is in his place. In his report he criticised the process used in the building of the Scots Parliament. Can the noble and learned Lord confirm, first, that he is confident that the £30 million estimate is roughly the right figure, or, like the Scots Parliament, could it swell to 10 times as much? Secondly, can he assure us that the contract is properly suited to making alterations to an old building—controlling costs before the project starts and not as it goes along, which is what happened in Scotland?
I hope that the noble and learned Lord can respond to those two questions because, however cautious or enthusiastic one is about the proposal for a Supreme Court, they are part of the bigger decision we are discussing.
4.45 p.m.
Lord Goodhart: My Lords, we have heard comments today from the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, and from a number of others, about whether we should have a separation of powers between the judiciary and the legislature. Most of them said that it was unnecessary. However, I do not believe that the question here is whether we should have a separation of those powers, but whether we should recognise the separation which has already happened. These powers are already separate.
The lay Members of your Lordships' House do not sit as Members of the Appellate Committee, and have not done so since it was first set up; nor do lay Members of your Lordships' House vote when the Law Lords are sitting in the Chamber in order to vote on their decisions. Serving Law Lords rarely speak and hardly ever vote in this House. The senior Law Lord, the noble and learned Lord, Lord Bingham of Cornhill, has expressed the view that they should not do so.
In fact, two serving Law Lords did vote on the Hunting Bill. I do not think that that was a breach of any formal rule, but some of us—including those, like me, who voted the same way as the two Law Lords—believe that it was unwise of them to take part in a contentious legislative decision. It was inconsistent with the developing convention that serving Law Lords do not speak or vote.
The only official role of serving Law Lords in the business of your Lordships' House as a legislative body is that two Law Lords serve as members of the Committee for Privileges, which hardly ever meets, and one is the chairman of Sub-Committee E of the Select Committee on the European Union. To be chairman of one of the seven sub-committees of one of the several Select Committees of your Lordships'

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House is a tenuous link between judicial and legislative duties and one that, I believe, could be replaced with little difficulty.
As the noble and learned Lord, Lord Bingham, has said, the Law Lords are judges, not legislators. Conversely, in this Bill we are recognising that the Lord Chancellor is a legislator and therefore cannot be a judge.
It is true that some Law Lords wish to remain here. Your Lordships' House is indeed a very pleasant and beguiling place and, no doubt, many Law Lords enjoy being here. But it is hard to see that membership of your Lordships' House adds any benefit to Law Lords in their judicial role.
5 p.m.
Holding a peerage is a distinction, but I believe that it will be a much greater distinction to be one of 12 Justices of the Supreme Court than to be one of 700 Members of your Lordships' House. The respect in which we hold the great Law Lords of fairly recent times—such as Lord Radcliffe, Lord Reid, Lord Wilberforce and Lord Scarman, who, sadly, died only last week—would have been no whit diminished if they had been members of the Supreme Court and not of your Lordships' House.
Powers are indeed separated in constitutional practice, and the amendment moved by the noble and learned Lord, Lloyd of Berwick, would preserve what is now only the appearance and no longer the reality; it would preserve the shadow and not the substance. The description of your Lordships' House as the highest court in the land is confusing to ordinary citizens of the United Kingdom and even more so for foreigners. Nor does it add anything to the regard in which the courts of the United Kingdom are rightly held and will continue to be held if the Law Lords move to a Supreme Court.
It is wrong that the judges of the highest court in the land should have to hear cases perching in two of the Committee Rooms of your Lordships' House and not in their own court building. It is wrong that they should have pokey rooms in the Law Lords Corridor rather than proper offices of their own. It is wrong that public access to the sittings of the Appellate Committee is so difficult—particularly now with the heightened security—and that accommodation for the public in those rooms is so bad.
The Statement published today by the noble and learned Lord the Lord Chancellor makes it clear that great advantages to the judges, to the litigators and to the public will result from moving to the Middlesex Guildhall. I see no reason why a vote on that principle should not take place, at least on Monday. The sunrise clause will prevent the Law Lords being moved until the Minister has approved plans for the building that he is satisfied will be appropriate after consultation with the Law Lords. I assume—no doubt the noble and learned Lord will confirm this—that those plans cannot be approved until obstacles such as the objections of English Heritage have been overcome
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and planning permission has been obtained, at least in outline. The sunrise clause does not require the consent of the Law Lords, but the decision of the Minister that the plans are appropriate will be judicially reviewable and can be overturned if they are unreasonable.
The final decision about an appropriate home for the Law Lords cannot be taken until the Act is in force. I accept that the Statement of the noble and learned Lord the Lord Chancellor would better have been made considerably earlier, but there is nothing in it that has not been foreshadowed by the evidence to the Select Committee or which requires any delay to Third Reading. The suggestion made by the noble Lord. Lord Crickhowell, that your Lordships' House should become the arbiter of whether the plans are good value for money is unworkable.
We all know that justice must not only be done but must be seen to be done. A similar principle applies here. Powers must not only be separate—as in substance they are—but must be seen to be separate. I can see no merit in preserving the fiction that the upper House of Parliament and the highest court in the United Kingdom are a combined and indivisible whole. That may have been true in the distant past, but the falsity of that fiction is becoming more obvious every year.
I wish to speak briefly to the amendment tabled by the noble and learned Lord, Lord Howe. Amendment No.35B is an attempt to create a middle way. The amendment recognises that the Appellate Committee is to become the Supreme Court and should be called that. It then states that the Supreme Court must, by law, sit in the Palace of Westminster and that its judges must, by law, receive peerages and Writs of Summons, although it is suggested that they should not vote, and perhaps not even speak, when they get here. Why on earth should that be? Once we create a Supreme Court, surely it must not be fettered in that way.
>No such middle way exists. Either we recognise the reality of the separation of powers or we preserve the fiction of union; we cannot have a bit of reality and a bit of fiction. I believe that the reaction to the proposals of observers from outside your Lordships' House will be one of incredulity. If we accept the principle of the Supreme Court, as the amendments do, it is irrational to say that it must not be a proper Supreme Court with its own building but must continue to be an appendage of the House of Lords. I hope that the noble Lords who have supported the amendments will think again.
Lord Kingsland: My Lords, when the noble Earl, Lord Ferrers, sat down at the end of his speech, I conducted a whispered exchange with my noble friend Lord Henley. We concluded that only Earls could make speeches such as the one made by my noble friend Lord Ferrers and that mere barons, whether hereditary or life, simply could not aspire to such heights of oratory.
The Government have consistently used the doctrine of separation of powers as the basis for their radical changes to our constitution and, in particular,

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to the Appellate Committee of your Lordships' House. I hope that the speech made by my noble and learned friend Lord Howe will have effectively dispelled any final illusions that your Lordships may have about the relevance of that doctrine to the reality of our constitution. As my noble and learned friend said, paragraph 130 of the Select Committee report gives the lie to any evidence at all of any collusion at any time between the judges of your Lordships' House and either the executive or the legislature. The noble and learned Lord the Lord Chancellor repeatedly, both to the Select Committee and in public thereafter, confirmed that that is so.
By contrast, the doctrine of the separation of powers does not seem to work at all between the executive and the legislature. Indeed, the story of most of the 20th century—particularly its last three years—and the first four years of the 21st century has been an ever-increasing dominance of the executive over the legislature. How much more useful it would have been for the Government to have proposed changes in the relationship between the executive and the legislature as a justification for using the separation of powers as a constitutional principle; instead of which they have ignored that great defect in our constitution and focused on another relationship which, in practical terms, is working extremely well.
I was struck by the irony of the idea of removing the Lords of Appeal in Ordinary from your Lordships' House. This House is one of the two component parts of Parliament; and Parliament is the "High Court of Parliament". It was originally, and still is, described as a judicial and not a legislative body. Perhaps the Law Lords should be asking themselves whether they want to throw us, the legislators, out rather than the other way around.
The Government's proposed changes have three elements to them. The first is to change the name of the Appellate Committee of your Lordships' House to the name "Supreme Court"; the second element is to change the building and the location of the final court from Parliament to, it appears, somewhere quite near Parliament in Parliament Square; and the third element is the removal of the Lords of Appeal in Ordinary from your Lordships' House.
The change of name concerns us least. It was said, very effectively, by the noble Lord, Lord Rees-Mogg, to the Select Committee that there was a danger in calling the final court of appeal the Supreme Court in this country, because it will give the illusion to the electorate that the Supreme Court has the last word about the validity of the law. That, of course, is not true because the Supreme Court will inherit exactly the same powers as those exercised by the Appellate Committee. So there is a sense in which one misleading name, the House of Lords, is to be exchanged for another.
I ought to add that the noble Lord, Lord Rees-Mogg, also made out a strong case by speculating that, although the Supreme Court will inherit only the powers of the final court of appeal, it might, rather like the Supreme Court in the United States, acquire a
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great deal more power as it moves from judgment to judgment. As noble Lords are well aware, the United States constitution never gave the Supreme Court power to have the last word over legislation made by Congress. It was only in the great case of Marbury v Madison in 1803 that the Supreme Court gave itself the power to strike down congressional legislation. So the Government may be taking a risk with its prized constitutional principle of parliamentary sovereignty by establishing this new institution.
The second change that is proposed is to move the location of the court from Parliament to a new building in Parliament Square. I was very struck by a speech made by the noble and learned Lord, Lord Hope of Craighead, last Saturday, 10 December 2004, to the Faculty of Law at the University of Strathclyde in which, about the proposed building, he said:
"Looked at from outside however the building has a rather modest appearance. Compared with the purpose-built buildings that house the supreme courts in other countries such as Canada, the United States and Australia, for example, it makes no statement to proclaim its existence. It cannot be said, to use the Lord Chancellor's own adjective, to be a 'prestigious' building. In comparison with its surroundings, there is nothing about it that suggests that anything of any very great importance happens there. That is to be expected of a building in Parliament Square that was designed for use by one of London's many local authorities".
If we are to have a Supreme Court in a separate building, I suggest to the noble and learned Lord the Lord Chancellor that it must be a building that reflects the status of the institution that will inhabit it. I respectfully share the conclusion of the noble and learned Lord, Lord Hope of Craighead, that the Lord Chancellor's preferred building is simply not up to the image that he rightly wishes to convey. He wants a Supreme Court for this country that is worthy of its name. In my submission, the building that he prefers is simply not up to that.
Finally, there is the question of whether the Lords of Appeal in Ordinary should cease to be Members of your Lordships' House when the Supreme Court is established. I far prefer the proposal made by the noble and learned Lord, Lord Howe. Indeed, his amendment is one to which I have put my name. That is, why not designate a specific and easily identifiable part of the Palace of Westminster for the Supreme Court of the future. There need be no confusion between the legislature and the judiciary if it has a separate entrance. This building is of unequalled prestige in the country and that prestige would be shared by the Supreme Court.
Of course, if they inhabited the same building, it would be necessary for the members of the Supreme Court to be Peers, not necessarily Lords of Appeal in Ordinary, but life Peers. It would be inappropriate for their decisions to be given in your Lordships' Chamber but they could be given, like decisions of the Privy Council, in the committee room designated for the Supreme Court at the Lord Chancellor's end of the Palace. There would be no reason why members of the Supreme Court should not continue to serve on committees but, of course, it would be inappropriate for them to vote in your Lordships' House. As to

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whether they should speak in your Lordships' House, I suggest that should be a matter of further consideration by your Lordships. I do not think that my noble and learned friend Lord Howe has reached a final conclusion about that, as he indicated to your Lordships' House this afternoon, and I see him nodding now.
Those three components of change need to be looked at individually on their merits, as well as being part of a whole. When your Lordships do so, I hope that noble Lords will conclude that there is a great deal of merit in the proposal made by the noble and learned Lord, Lord Howe. I hope that between now and Third Reading, your Lordships will give it your most earnest consideration.
5.15 p.m.
Lord Falconer of Thoroton: My Lords, the Supreme Court is an integral and vital part of the Bill. If there is no Supreme Court, then the Bill loses one of its vital parts. The Lord Chief Justice, who is in his place today, described the Bill as a great reforming constitutional Bill because it contains so much of value: the concordat; the Judicial Appointments Commission; the new relationship with the judges; and the Supreme Court. I invite your Lordships to pass the Supreme Court in principle so that the whole Bill can pass and the future can be clear. As I made clear in my intervention in response to the question asked by the noble Viscount, Lord Bledisloe, I shall not precipitate a vote today, so that there can be further consideration next Monday, on Third Reading. But I invite your Lordships to look at this issue in a straightforward way, which is the way that we always deal with business in this House.
The Supreme Court is a proposal on which the Government published a consultation paper in July 2003. The Bill was introduced into this House in February 2004 and has been before the House for almost 10 months. The Bill has been considered in a special Select Committee, and the report of that Committee devoted 37 paragraphs to the question of whether to create a new Supreme Court. On 11 October, we discussed the issue in Committee. There have been numerous discussions since then, and the Government have continued to listen to the points that have been made and have tabled several amendments to give effect to considerable concessions that have been made.
The essence of the proposal put by the Government is a new final court of appeal that is clearly and functionally separate from the House of Lords. There has never been any doubt about the Government's proposal. There have been those who have opposed it, but there has never been any doubt about it. The case for the Supreme Court has been made time and time again. As the noble and learned Lord, Lord Bingham, has said on many occasions, it is the mark of a modern democracy that it has a final court of appeal separate from the legislature. One committee of this House should not be deciding the meaning of statutes passed by this place and another place. All noble Lords who
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have spoken in this debate have accepted that the public should be able to identify when the courts decide something and when Parliament decides something. The Supreme Court should be somewhere that the public can identify it as being different from Parliament. It should be somewhere where the public can, in a meaningful way, visit.
The noble and learned Lord, Lord Howe, who described himself as once having been a "dangerous radical", now puts forward, as I understand it, the following proposal: there should be a Supreme Court, but it should sit in this place; the members of the Supreme Court should be Members of the House of Lords; and they should be able to call themselves Lords of Appeal in Ordinary. On the face of it, that does not look like a clear functional or operational separation between the House of Lords and the final court of appeal.
The noble and learned Lord said that there should be a separate entrance—he referred to Black Rod's Garden—and that there should be substantial refurbishment of the part of the Palace where my current offices are. I have no objection to my part of the Palace being taken away for a good cause, but I simply raise the question of how much the noble and learned Lord, Lord Howe of Aberavon, thinks would be the cost of providing, in effect, a separate Supreme Court in this building. It would be an enormous amount. I thoroughly and wholly agree with the noble Baroness, Lady Carnegy of Lour, that the cost of refurbishing existing buildings is always considerably more than building new buildings to achieve the same result. Although I hold the noble and learned Lord, Lord Howe, in the greatest and most genuine respect, I submit that his proposal is not realistic. It is not realistic either as a means of delivering the separation that he seeks or in terms of the cost of such a proposal.
Lord Howe of Aberavon: My Lords, I respond courteously to the observations that the noble and learned Lord makes about me. I was not proposing a vast construction project. One of the things that the Law Lords regard as important is a continuation of the present atmosphere of the committee room in which they sit. Arrangements should be made so that it is quite clear that there is a separate entrance to a separate institution, and so on. Of course there will be some cost, but we do not need a magnificent reconstruction from the ground upwards.
Lord Falconer of Thoroton: Then, my Lords, I do not see how that would lead to the benefit that the noble and learned Lord described, such as the public having proper access. He will remember the evidence given by the noble and learned Lord, Lord Bingham, to our Select Committee regarding the total absence of members of the public attending his deliberations when he was sitting as chairman of the Judicial Committee of the House of Lords.
As has been made clear, the Government's preferred site for the new Supreme Court will be Middlesex Guildhall but, as the Written Statement said, there is much work to do. I believe that the Supreme Court

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should not start work until there is an appropriate building for it. Only with a clear and separate building does the functional and operational separation, so vital to the proposal, occur. That is why I agree with those who wish to see a sunrise clause in the Bill, which would prevent the Supreme Court coming into force until it has a suitable home. A sunrise clause, which has been much discussed around the House and has been agreed with a senior Law Lord, will, if your Lordships agree, be included in the Bill.
This means that until the new Supreme Court comes into being, the Judicial Committee of the House of Lords will continue as before. While the Judicial Committee of the House of Lords continues to sit here before the Supreme Court comes into existence, all its members will be Members of this House, with all existing rights. When the Supreme Court comes into existence there will for a transitional period be some who are and some who are not Members of the House of Lords. But then the Supreme Court will be outside the Lords, and the issues of a differential tier within the Supreme Court will not apply.
The cost of the new Supreme Court, in capital terms, will be £30 million for the renovation of Middlesex Guildhall and £15 million for the cost of additional courts and the decanting costs of the work currently taking place in Middlesex Guildhall.
Running costs are also dealt with in today's Written Ministerial Statement. Current running costs for the Law Lords are £3·2 million, which include judicial salaries. The running costs of the new Supreme Court, including judicial salaries, will be £8·4 million. So in terms of order of magnitude, £45 million will have to be spent on the refurbishment of Middlesex Guildhall and the decanting costs of the criminal court work currently carried out there. The additional running costs per year will be approximately £5 million. That is the scale of cost that will be incurred in setting up a Supreme Court. I believe that the House should have that information available before making its decision.
I should like to go through in detail the questions raised by the noble Lord, Lord Crickhowell, to assist noble Lords in coming to a conclusion. He asked about the statement of requirements. The statement of requirements was agreed between myself and my department and judicial Members of the House of Lords. It sets out the rooms required by the Supreme Court and their sizes. It specifies, for example, that there should be three hearing rooms larger than the current Appellate Committee rooms, 14 justices' chambers, and a library of 250 square metres. The noble Lord, Lord Crickhowell, will see that the Written Statement broadly sets out the main provisions of the statement of requirements.
The noble Lord asked about the total estimate. The £30 million estimate for the refurbishment of Middlesex Guildhall represents all building works, professional fees, statutory fees, VAT and the cost of fitting out and furnishing the building to a very high standard. It does not include ongoing running costs, as I think I have made clear. Dependent upon the procurement approach, which can be done in a
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number of ways, the £30 million does not necessarily represent a single capital sum. Part or all of those costs could be rentalised.
Lord Crickhowell: My Lords, on that point, does the estimate include the cost of the very smart library referred to and the cost of IT?
Lord Falconer of Thoroton: Yes, my Lords, it does.
The £15 million estimate for the reprovisioning of Crown Court rooms is based on the figures provided by external professional advisers. As with the refurbishment costs, it contains an element of optimism bias to take account of risks and unforeseen problems.
The noble Baroness, Lady Carnegy, asked how confident we were about meeting this figure. The department which has done the work has a good track record in building procurement, as the Treasury recognises, particularly in large-scale refurbishments such as this. From time to time, those running a court estate refurbish old buildings to make them into appropriate court buildings. This is such a project, and it has been estimated by a team with a good track record.
The noble Lord, Lord Crickhowell, asked whether quantity surveyors have been engaged. The costs in the Written Statement were prepared by a team of professional advisers, including reputable quantity surveyors.
If they care to look, noble Lords can see in the Treasury Green Book the detailed explanation of the factors taken into account in an optimism bias. I earnestly ask the noble Lord, Lord Crickhowell, to read it if he has a couple of days spare. Overall, the optimism bias aims to cover all the predictable risks and any changes which need to be made to a project specification as well as an uplift for wholly unforeseen issues. That is why an uplift over professionally assessed costs is as high as 50 per cent.
Risk factors taken into account in the Middlesex works include hidden building defects and supposed extensive hidden asbestos, although I do not believe that to be the case. So our optimism bias needs to take account of matters which we do not know to he true but which present a risk.
The noble Lord also asked about the form of contract. The noble Baroness is absolutely right about the care we should take on the sort of contract entered into. The noble and learned Lord, Lord Fraser of Carmyllie, referred to that in his report in relation to the Scottish Parliament building. We cannot and will not decide the precise form of the contract until rather later in the procurement process to ensure the most effective project management. That is vital if we want to learn the lessons that the noble and learned Lord, Lord Fraser of Carmyllie, asks us to learn about the Scottish Parliament.
The form of the contract will be decided on the basis of legal advice and professional advice from quantity surveyors and project management. The Department for Constitutional Affairs does not sign building

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contracts which result in the taxpayer taking the greatest share of the risk, which everybody is urging us to avoid. We would normally retain a single, professionally qualified project manager to oversee the entire contract, with a single departmental official acting as project sponsor representing the customer. This provides accountability for cost, quality and time. Ministers, quite rightly, are not involved in the operational process of supervising such a contract as this, which your Lordships may think is a good thing, although of course they are accountable to Parliament for it.
Lord Crickhowell: My Lords, the point made by my noble and learned friend Lord Fraser was that when the decision was taken to enter into a particular form of contract, Ministers were not informed. What the noble and learned Lord says is rather different—he is not responsible. I seek an assurance that Ministers will be fully informed of each important decision at every stage.
Lord Falconer of Thoroton: My Lords, I accept that. I was not trying to discharge my responsibility but to reassure the House that I would not be on site making decisions about the colours of the taps. The noble Lord is absolutely right that Ministers should be kept informed about what is going on.
I hope that I have answered every single question asked by the noble Lord, Lord Crickhowell. I believe that I have been as full and frank as I could possibly be in relation to the costs and now the House is in a position to decide. The noble Earl is bursting to intervene.
5.30 p.m.
Earl Ferrers: My Lords, before the noble and learned Lord sits down, he has answered many questions but he has not answered one of which I gave him prior notice. He has been kind enough to say what the figures and costs are, but he has not justified how the costs can be increased from £167,000 to £8 million for what is apparently the same service. What are we getting for that other than an esoteric view that we have a new kind of court?
Lord Falconer of Thoroton: My Lords, as I hope my Written Ministerial Statement makes clear. I do not accept that the comparison is between £167,000 and £8 million. If the noble Earl has a moment, I ask him to look at the Statement. I submit that the correct comparison is between £3·2 million and £8·4 million. That is £5 million extra. What we get for that extra £5 million per year, in addition to the capital cost, is a Supreme Court that is separate from Parliament and which I believe will be the envy of the world. We get a functional and operational separation that every single modern democracy in the world has. I believe that it is money well spent. I say with the greatest respect that that is the decision that the House must take.
That is the position on the costs. I will not rehearse again the arguments about why there should be a Supreme Court.
Lord Ackner: My Lords, does that £5 million include extra staff for the judges so that like their counterparts in the Commonwealth they have research assistants and other such assistance in performing their work?
Lord Falconer of Thoroton: My Lords, the figure includes additional staff. Precisely how those staff are to be deployed is a matter for the chief executive, who will, under the Government's arrangements, report to the Law Lords themselves. It is for the Supreme Court Justices in conjunction with their chief executives to decide how the staff will be deployed.
Lord Ackner: My Lords, is the major proportion of that £5 million to be devoted to extra staff?
Lord Falconer of Thoroton: No, my Lords, the major proportion goes to the maintenance of the building. The final court of appeal appears so cheap because there is next to no building cost involved. We are on the back, as the noble and learned Lord, Lord Howe, said, of Parliament. The choice and the facts are pretty clear. I strongly invite your Lordships to agree to the idea that we need a Supreme Court. Once this country has one people will wonder why it took so long.
Lord Lloyd of Berwick: My Lords, in a minute or so I shall be seeking the leave of the House to withdraw the amendment in my name. I am glad that the Lord Chancellor has said that he will not insist on a decision being taken today. That would have been quite wrong and I am grateful to him for taking the view that he has. We have had a good debate about whether or not we should have a Supreme Court and whether to remove the Law Lords from this place. We shall of course return to that debate on Third Reading, whether on Monday or, as I think better still, in the new year.
Lord Tordoff: My Lords, when the noble and learned Lord says that we will return to this debate on Third Reading, surely that is not what we should be doing. We have had a whole series of Second Reading speeches today. I hope that we will not also have Second Reading speeches at Third Reading.
Lord Lloyd of Berwick: My Lords, I understand that if I withdraw my amendment it will be open for my amendment or the amendment tabled by the noble and learned Lord, Lord Howe, to be argued at Third Reading. That is the information that we have from the Table.
Lord Brooke of Alverthorpe: My Lords, could the noble and learned Lord explain why we have to argue the matter again?
Lord Lloyd of Berwick: My Lords, we do not need to argue the matter again. It is simply that we cannot take the decision today because we have been given the figures only today. That is basically why we cannot make the decision today. Happily, by the time we return to this matter at Third Reading we will have

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some better figures. The figures that we have been given which appeared this morning contain absolutely nothing new except that the annual building costs have now gone up from £2.5 million to £3.8 million and the cost of reconstructing the Guildhall have gone down from £32.5 million to £30 million.
I remind your Lordships that the figure of £32.5 million was estimated on the basis of minimum alterations required for that building. We need to know whether that figure is genuine and believable having regard to the alterations that have been required since the figure of £32.5 million was given by the Law Lords themselves. The only other new figure is that of £15 million for the decanting of the seven existing courts in the Guildhall. The figure of £15 million for that is frankly unbelievable. There are not seven empty courts waiting somewhere in London for those courts to move to: they have to be created or found somewhere. We have no information at all about where those seven courts will sit from the moment they are relocated or decanted, nor how the figure of £15 million has been arrived at.
Lord Renton: My Lords, surely, we also need to be told what offices and other facilities there will be for judges and other staff.
Lord Lloyd of Berwick: My Lords, indeed. I am grateful to the noble Lord. We have been given a figure of £15 million and told that that is the basis on which we must make a decision about whether we will get value for money by removing the Law Lords from this place and creating a Supreme Court. That is why we cannot make the decision today and that is why it would be much better to make the decision in the new year.
Lord Falconer of Thoroton: My Lords, the arrangement is that Third Reading will take place on Monday.
Lord Lloyd of Berwick: My Lords, indeed, I understand that. I am suggesting to the noble and learned Lord the Lord Chancellor that it would be better to provide proper figures in the new year rather than return to the matter again on Monday with these inadequate figures. In any event, we will not make a decision today and I am grateful to the noble and learned Lord for not insisting on one.
Lord Howie of Troon: My Lords, the noble and learned Lord should consult the Companion. He will find there that the purpose of amendments at Third Reading is to tidy up the Bill, not to raise matters of this consequence.
Lord Lloyd of Berwick: My Lords, I entirely agree with that. However, the reason why we cannot make that decision, as I tried to explain in my speech today, is that I have been given these figures only today. If we had been given them a week or so ago, we would have been able to make the decision today—but we were
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not. That is why we must return to the matter on Third Reading rather than decide it today. On that basis, I beg leave to withdraw the amendment.
The Deputy Speaker (Viscount Ullswater): My Lords, is it your Lordships' pleasure that the amendment be withdrawn?
Lord Richard: No.
The Deputy Speaker: My Lords, the Question is that the amendment be agreed to.
Lord Kingsland: My Lords, my understanding is that the noble and learned Lord, Lord Lloyd, begged leave to withdraw the amendment. The noble and learned Lord the Lord Chancellor made it absolutely clear on behalf of his side of the House that he would not oppose that. That is my understanding—therefore, I do not hear voices to the contrary from his side of the House.
Lord Lloyd of Berwick: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 [The Supreme Court]:
[Amendments Nos. 35B and 36 not moved.]
Clause 15 [First members of the Court]:
[Amendments Nos. 37 and 37A not moved.]
Lord Lloyd of Berwick Lord Lloyd of Berwick moved Amendment No.38:
Before Clause 16, insert the following new clause—
"AMENDMENT OF THE APPELLATE JURISDICTION ACT 1876 (c. 59)
(1) The Appellate Jurisdiction Act 1876 is amended as follows.
(2) Section 5(1) is omitted.
(3) After section 5 there is inserted—
"5A LORD CHANCELLOR
(1) The Lord Chancellor is not a Lord of Appeal.
(2) A person who holds the office of Lord Chancellor is disqualified for appointment as a Lord of Appeal in Ordinary while he is Lord Chancellor."
(4) Section 6 is amended as follows.
(5) Leave out from first "been" to second "Every" and insert "recommended to be so appointed under the provisions of Part 2 of the Constitutional Reform Act 2005".
(6) After section 6 there is inserted—
"6A SENIOR AND SECOND SENIOR LORD OF APPEAL IN ORDINARY
Her Majesty may, by Commission, name two Lords of Appeal in Ordinary as senior and second senior Lord of Appeal in Ordinary to preside over the judicial business of the House of Lords."
(7) In section 25, leave out "of Lord Chancellor of Great Britain or"."
The noble and learned Lord said: My Lords, happily, this is a relatively simple amendment that is intended to be consequential on the decision that the House took last week that the Lord Chancellor should remain as a Member of this House and a lawyer but on the terms that he would no longer sit as a judge in the appellate court. The amendment would therefore

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amend the Appellate Jurisdiction Act 1876 to exclude the Lord Chancellor from sitting as a Lord of Appeal in Ordinary. It is a straightforward amendment and, on that basis, I beg to move.
Lord Renton: My Lords, may I say, with deep respect, that I am very surprised by this amendment? On this side of the House, we have taken the view not only that the Lord Chancellor should remain a high dignitary of the House—perhaps even the Leader of it—but that he should continue to have some judicial responsibilities. The amendment would remove those responsibilities altogether.
Lord Falconer of Thoroton: My Lords, the amendment would do two things. First, in effect it applies the appointments procedure to Lords of Appeal in Ordinary. We disagree with that because we believe that there should be a Supreme Court, with the same sort of appointments process. The amendment is posited on the basis that the Supreme Court does not come into existence and, for that reason, we oppose it. Secondly, it says that the Lord Chancellor should not sit as a Lord of Appeal in Ordinary. We agree with that and believe that the Bill already achieves that.
Lord Lloyd of Berwick: My Lords, of course, like the noble Lord, Lord Renton, and as I said earlier, I greatly regret that the Lord Chancellor should no longer be able to sit as a judge. However, it seemed to us that because of the Lord Chancellor's position as a member of the executive, the argument about separation of powers applied rather more strongly in the case of the Lord Chancellor than it did in the case of the Supreme Court. For that reason, we were prepared to accept that he should no longer sit as a judge or be head of the judiciary. That is part of the concordat between the noble and learned Lords the Lord Chancellor and the Lord Chief Justice and, on that basis, I do not feel in a position to disagree with it. Though I regret it, therefore, the amendment must stand.
The Deputy Speaker: My Lords, the Question is that the amendment be agreed to.
Noble Lords: Withdraw!
Lord Lloyd of Berwick: My Lords, I am getting confused. Amendment No.38 is not withdrawn. It is an amendment to which the noble and learned Lord the Lord Chancellor has already agreed. It simply deals with whether the Lord Chancellor should—
Lord Falconer of Thoroton: My Lords, the noble and learned Lord may have changed his position from approximately four minutes ago, but I believed that he was saying that we should not determine the issue of whether there should be a Supreme Court or a continuation of the current arrangements. The amendments that we are discussing here relate to whether the Lords of Appeal in Ordinary should be
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appointed by the appointments process that applies to the Supreme Court. That is consistent with the noble and learned Lord's approach that there should not be a Supreme Court. It is consequential on a principle issue that has not yet been resolved.
Lord Lloyd of Berwick: My Lords, the amendment is both. It is consequential on something that has been resolved, which is that the Lord Chancellor is not a Lord of Appeal—a question on which there is agreement on all sides. However, I accept that the amendment also covers the position of the senior and second senior Lord of Appeal. Perhaps, on that basis, the amendment should have been split into two parts. The best thing to do is to withdraw it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 [Qualification for appointment]:
[Amendment No.39 not moved.]
Clause 17 [Selection of members of the Court]:
[Amendments Nos. 40 to 43 not moved.]
The Deputy Speaker: My Lords, before calling Amendments Nos.44 and 45, I remind your Lordships that they have been pre-empted by Amendment No.22, agreed to on the first day of the Report stage.
[Amendments Nos. 44 and 45 not moved.]
Schedule 7 [Supreme Court selection commissions]:
[Amendments Nos. 46 to 94 not moved.]
5.45 p.m.
Lord Kingsland Lord Kingsland moved Amendment No. 95:
Before Clause 18, 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: My Lords, I do not believe that the contents of the amendment are controversial. It is merely a question of whether they ought to appear in the Bill. Naturally, I should be interested to hear the views of the Government on this matter. I beg to move.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I believe that I explained in Committee that we supported the tenor of the amendment. The proposal that the Lord Chancellor should no longer be a judge is one of the main planks of our reform. However, I would argue that, in the light of the other provisions of the Bill, the noble Lord's amendment is simply unnecessary. Among other things, as noble Lords will know, Schedule 4 removes the statutory basis for the Lord Chancellor's current authority to sit as a judge. Additionally, in Committee, we tabled amendments to Clause 48, providing that the office of the Lord Chancellor no longer qualified, as opposed to attracting the status of high judicial office.

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The combined effect of those two changes is that future office holders and the current Lord Chancellor would no longer sit in a judicial capacity. The effect is therefore achieved, and, as the noble Lord, Lord Kingsland, will know, when the effect is achieved it is appropriate to leave it there and not to add another effect of the same kind. Nothing further is required—it is done—and I hope that the noble Lord will withdraw his amendment on that basis.
Lord Renton: My Lords, before my noble friend replies, could I point out that whether the amendment shall ever apply or not depends on the decisions taken finally—at Third Reading—about the fundamental position of the Law Lords, including the Lord Chancellor?
Lord Kingsland: My Lords, in my experience, it is unusual for the Government to want less rather than more. However, if the Minister is satisfied that there is enough in other parts of the Bill to meet the objective of my amendment, who am I to quarrel with her? In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 [Selection process]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 95A:
Page 8, line 8, at end insert—
"(1A) As part of the selection process the commission must consult each of the following—

(a) such of the senior judges as are not members of the commission and are not willing to be considered for selection;

(b) the Minister;

(c) the First Minister in Scotland;

(d) the Assembly First Secretary in Wales;

(e) the Secretary of State for Northern Ireland.

(1B) If for any part of the United Kingdom no judge of the courts of that part is to be consulted under subsection (1A)(a), the commission must consult as part of the selection process the most senior judge of the courts of that part who is not a member of the commission and is not willing to be considered for selection.
(1C) Subsections (2) to (8) apply to any selection under this section or section 22."
The noble Baroness said: My Lords, this group of amendments does two separate things although structurally our attempts to improve their accuracy and comprehensibility are best considered together. I expect, however, that the House will welcome both elements as they address concerns expressed in your Lordships' House at earlier stages.
The first element addresses concerns about the possibility that there might be no senior judicial input from a part of the United Kingdom into the selection process for a Supreme Court judge in certain circumstances. Clauses 18 and 19 require the selection commission and the Minister respectively to consult "the senior judges", as defined in a list in Clause 48
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(which is the subject of an amendment to which I shall speak later). As the clauses stand at present, there is a possibility that, for a given vacancy, all of the "senior judges" from one or other part of the United Kingdom may be ruled out of consultation because they are members of the selection commission or are candidates to fill the vacancy. For example, it might be that the Lord Chief Justice of Northern Ireland, who is in the list of "senior judges" representing Northern Ireland, is a prime candidate, and cannot be consulted.
The provision in Amendment No. 95A, therefore, amends the duty to consult the senior judges, to the effect that if there is no senior judge from a specific part of the United Kingdom who is able to be consulted, the selection commission must consult the available next most senior judge of the courts of that part of the UK who is not ruled out for consultation purposes; that is, the most senior judge who is not a member of the commission and does not wish to be considered for selection.
There is a consequential amendment also to Clause 19. The Minister is required to consult the judges who are consulted by the commission. The amendment ensures that the Minister will consult any judges required under this fallback provision. Thus it is guaranteed that at least one serving senior judge within a jurisdiction will be consulted. That is a matter which noble Lords considered we should address.
The second element of these amendments addresses the concern expressed in the Select Committee and again in Committee of the whole House that the selection commission and the Minister would be required to consult the National Assembly for Wales rather than its First Secretary, the First Minister. The objection was the obvious possibility that it would be difficult to ensure confidentiality if the consultation requirement was taken to include the whole Assembly.
It was always envisaged that, as is customary for functions of this type, the Assembly would delegate to the First Secretary in Wales and not opt for some kind of consultation in plenary session. However, I appreciate the benefit of certainty, and so the amendments, which have the approval of the Assembly, replace the references in Clauses 18 and 19 to the National Assembly for Wales with reference to the Assembly First Secretary in Wales. I trust that this offers the necessary reassurance and allays any fears about breaches of confidentiality. I beg to move.
Baroness Carnegy of Lour: My Lords, I am sure the House will be grateful to the Minister for including these consultations. It is very important that consultation should take place on this point throughout the United Kingdom because it is a United Kingdom court. This is one of a number of amendments that the Government have tabled in view of the need for this widespread consultation. I am sure that we are grateful for that.
On Question, amendment agreed to.
[Amendments Nos.96 and 97 not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 97A:
Page 8, line 15, leave out subsection (6).
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 97B and 97C:
Page 8, line 25, leave out "under this section or section 22"
Page 8, line 26, leave out "under this section or section 22"
On Question, amendments agreed to.
Clause 19 [Report]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 97D to 97F:
Page 8, line 32, leave out "18(6)(a)" and insert "18(IA)(a) and any judge consulted under section 18(1B)"
Page 8, line 38, leave out "18(6)(a)" and insert "18(1A)(a);
(aa) any judge consulted under section 18(1B)"
Page 8, line 40, leave out "National Assembly for" and insert "Assembly First Secretary in"
On Question, amendments agreed to.
Clause 21 [Exercise of powers to reject or require reconsideration]:
[Amendment No. 98 not moved.]
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 99:
After Clause 22, insert the following new clause—
"SELECTION COMMISSION MEMBER: CONFIDENTIALITY
A person who is a member of the selection commission, or a member of its staff or an agent of the commission and who is consulted by or on behalf of the Commission or is otherwise involved in the process of selection must not disclose confidential information except with lawful authority and the provisions of section 85 of this Act shall apply to all such persons."
The noble Viscount said: My Lords, we now come to the question of confidentiality, to which the noble Baroness, Lady Ashton, referred a moment ago in passing. With this amendment I wish to speak also to Amendment No. 168, which is the more important of the two amendments.
Amendment No. 168, to which I spoke in Committee, seeks to extend the duty of confidentiality not merely to members of the Appointments Commission alone but also to all the people whom they consult. I pointed out that those persons were dangerously likely to leak information unless it was impressed upon them that it was very important that they should not disclose the identity of persons who were being considered for appointment because of the vast damage it might do to their career and to their position in their firms if it was known that they had applied but been rejected.
Amendment No. 99 merely applies that to the commission for the appointment of members of the Supreme Court, who otherwise by a curious omission would not be covered at all. These are essential provisions and, indeed, in Committee the Government
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accepted that they should be included. I do not know whether they are happy with my drafting or whether parliamentary counsel, as always, think that they can do better by saying the same thing less elegantly. However, I hope to hear at least that the substance of the amendments, if not the exact wording, will be accepted, although I urge the Government merely to accept them as they stand at this stage.
Lord Renton: My Lords, will the noble Viscount explain what is meant by the words "except with lawful authority", which appear at the end of Amendment No. 168? Whose authority would that be?
Viscount Bledisloe: My Lords, I do not mean anything by that. The Bill already contains the provision that members of the commission are not to disclose confidential information without lawful authority. I have merely repeated the words of the Bill when seeking to extend that duty. I imagine that the Government have in mind that people such as the ombudsman may want to know how the process is conducted and so on, or someone may complain that he has not been selected, and obviously his complaint cannot be investigated without confidential information being revealed. However, I may have given an inadequate response in which case I know that the noble Baroness, Lady Ashton, will tidy up the matter for me. I beg to move.
Baroness Ashton of Upholland: My Lords, I hesitate to suggest that the noble Viscount has not given a perfectly adequate response. As I indicated, I have great sympathy with these amendments. In Committee we said that we would table amendments to provide proper arrangements for confidentiality in relation to the Supreme Court, appointments made on the advice of the Judicial Appointments Commission and in relation to judicial disciplinary matters. I must apologise that the amendments are not yet ready but I am told that they will be ready for Monday. We agree with the noble Viscount that they are of great importance. We shall indeed ensure that they are available as quickly as possible so that we can lay them and deal with them.
Noble Lords will have noted in the previous group of amendments to which I spoke what we have already done regarding the National Assembly for Wales and the Assembly First Minister in Wales. It is not that we are being tardy; there is simply a lot to do. The amendments will be ready for Monday and they will address the noble Viscount's point. I hesitate to say whether parliamentary counsel consider that the noble Viscount's drafting is inappropriate, but let us say that in order to fit in with other things parliamentary counsel need to draft these matters alongside other measures. I hope that on the basis of the assurance I have given the noble Viscount will feel able to withdraw the amendment.
Viscount Bledisloe: My Lords, as always it is a pleasure to have one's proposals responded to by the noble Baroness, Lady Ashton, as one gets so much

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more joy out of her than out of the noble and learned Lord the Lord Chancellor. On the basis of her delightful assurances I am very happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Oath of allegiance and judicial oath]:
[Amendment No. 100 not moved.]
6 p.m.
Clause 24 [Tenure]:
The Duke of Montrose The Duke of Montrose moved Amendment No.101:
Page II, line 2, leave out lines 2 and 3 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 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—

(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

(b) he has consulted with the Prime Minister."

The noble Duke said: My Lords, this amendment deletes Clause 24 and inserts a new provision for the removal of a judge of the Supreme Court. The Bill currently provides that 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. There is no provision for investigation into the judge's behaviour, and no definition of good behaviour in the Bill.
This amendment, which closely follows Section 95 of the Scotland Act 1998, as mentioned in Committee, makes provision both for a process of investigation and for guidance on what constitutes unacceptable behaviour. Such behaviour is that which renders the judge unfit for office by reason of inability, neglect of duty or misbehaviour. These provisions clarify the provisions currently in the Bill and bring the process for removal of judges of the Supreme Court into line with recently approved legislation on the removal of judges.
Perhaps it is the unfortunate recent experience of the Scottish justice system in having had to remove a sheriff, and I believe possibly also one other officer, that has concentrated the minds of those north of the border of the need to be rather clearer in the headings that might trigger a move to remove a judge. They are included in Section 95 of the Scotland Act. This is particularly important in these days of the investigative press, who might try to undermine the reputation of a judge on criteria that they themselves have selected.
At present, according to the noble Baroness, Lady Ashton, in her reply on 11 October, the Government are building their hopes on a,
"draft complaints and discipline protocol".—[Official Report, 11/10/04; col. 95.]
The noble Baroness has kindly put me in touch with officials in her department on this matter, and they tell me that the draft procedures have been prepared and that the Secretary of State is currently consulting the noble and learned Lord, Lord Bingham, on his views. This, at present, would appear to have the form of an extra-statutory provision, which is not subject to parliamentary scrutiny, and neither will any future variations that are contained for it be available for scrutiny. It is really not a satisfactory way to proceed when we are dealing with matters of such fundamental constitutional importance.
We should ask the noble Baroness to lay the draft complaints and discipline protocol before the House, so that we can all consider its effect within this new development in our constitution. It surely is not something that needs to be treated as a secret. Then we can form a decision as to whether certain criteria, such as those contained in this amendment, should be in the Bill. I ask the Minister if we could have sight of this protocol. I beg to move.
Baroness Carnegy of Lour: My Lords, I support my noble friend in putting his amendment down again. When we discussed this last time, we had a positive response from the noble Baroness, but it has not really come to very much. We would like to know rather more strongly what the Government are going to do about this.
The main point of the amendment is the new situation in which we find ourselves. In future, a political Minister in charge might well take against a particular judge, and he might well be supported by the Home Secretary, who might want to put pressure on that judge. The Minister made the point in Comrnittee that there was strong protection for the judge and the public—that of Parliament and the Queen, who would have to agree. However, we all know just how compliant the House of Commons can be with a big majority. Her Majesty would have great difficulty in agreeing to something that Parliament disagreed with.
The existing criteria for good behaviour have, I understand, never been tested in the context of the highest court in the land; that is a significant fact. The wording in the Scottish legislation, as my noble friend said, was included because of the problems that arose when a sheriff was unsatisfactory and had to be removed. It was found that the legislation was really too loose. The Government are being a little sanguine about this. They might be very wise either to accept the amendment, or to make a similar provision.
I notice that the noble Lord, Lord Goodhart, is not in his place. Perhaps he does not wish to support me on this occasion, and I am sorry, because his advice was most helpful.
Lord Renton Lord Renton: My Lords—
Lord Ackner: My Lords, I had the impression that there was provision made for dealing with a judge who has become ill and is unable, as a result of his illness, to carry out his duties. I recollect that there was a procedure under which you had to get the certification of two consultants to confirm the position—
Baroness Carnegy of Lour: My Lords, with the leave of the House, I think that the noble and learned Lord is speaking to the next amendment.
Lord Ackner: My Lords, I am speaking to Amendment No. 101.
Baroness Ashton of Upholland: My Lords, there is a change in the groupings, which may have affected what the noble and learned Lord, Lord Ackner, is looking at, in that this group now concerns itself with exactly what the noble Baroness and the noble Duke have indicated. There is shortly a group on the medical question.
Lord Ackner: My Lords, would you like me to leave that for the moment, then? Certainly.
Baroness Ashton of Upholland: My Lords, I presume that the noble and learned Lord, Lord Lloyd of Berwick, is not moving his Amendment No.102.
Lord Lloyd of Berwick Lord Lloyd of Berwick: My Lords, no.
Baroness Ashton of Upholland: My Lords, in that case I will not address it.
I am grateful to the noble Baroness and the noble Duke. They have indicated that they have raised this, I have corresponded with them, and I have put the noble Duke in touch with officials. The critical point is that we are in detailed discussions with the Law Lords, as the noble Duke indicated. I am told that these are now at a very advanced stage, which is good news, and that an announcement will be made shortly. The critical thing, as the noble Duke particularly indicated, but the noble Baroness was also concerned about, is what will happen with that document. I understand that the agreed protocol will be a public document and will be made available—
The Duke of Montrose: My Lords, I am most grateful to the Minister for giving way. It interests me that it appears that the Government wish to present this document as a complete fait accompli that is all tidied up and about which there is no further question. We would appreciate seeing it in the draft stage; especially given the timing of this Bill's progression, even if it was not completely agreed and tidied up, we would still appreciate seeing it.
Baroness Ashton of Upholland: My Lords, we very much wish to be guided by the Law Lords on what the protocol ought to say. I understand the concern of the noble Duke, but it is appropriate to be guided in this
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context by the Law Lords. Certainly, when I have something to give the noble Duke, I shall be very happy to do so at the earliest opportunity. I am sure that he will appreciate that we want to have it in the form agreed with the Law Lords in order to present it. I shall happily undertake to do so.
The Duke of Montrose: My Lords, I am grateful to the Minister for her reply, although we are looking for slightly more than she can give us at present. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 102 not moved.]
Clause 25 [Salaries and allowances]:
[Amendment No. 103 not moved.]
Clause 26 [Resignation and retirement]:
[Amendment No. 104 not moved.]
Clause 27 [Medical retirement]:
The Duke of Montrose The Duke of Montrose moved Amendment No.105:
Page 11, line 26, leave out "a"
The noble Duke said: My Lords, I shall speak also to Amendment No. 106, for which Amendment No.105 is merely a paving amendment. Amendment No. 106 is designed to require at least two medical certificates of incapability before a Supreme Court judge can be medically retired. Clause 27 currently allows medical retirement on ministerial order if a Minister obtains one medical certificate stating that,
"a judge of the Supreme Court … is disabled by permanent infirmity from the performance of the duties of his office, and … is for the time being incapacitated from resigning".
The Law Society of Scotland believes that those provisions are inadequate to guard against political interference, and that further safeguards are necessary. The reports should come from two medical practitioners who have adequate experience in assessing capacity. Section 57 of the Adults with Incapacity (Scotland) Act 2000 is the most recent Scottish legislation in the area and provides an example of how the provision may operate. It is not a question of a Minister asking the Chief Medical Officer for an opinion, because he is a civil servant. One issue that comes up is that people can lose their capacity very quickly, but it is a Minister who has the job of signing them off. I beg to move.
Baroness Carnegy of Lour: My Lords, I would again like to support my noble friend's amendment. I had hoped that the noble Lord, Lord Goodhart, would be able to support us. He did last time and seemed to feel quite strongly about the matter, but is not able to be here.
Having reflected on the Minister's reply last time, I notice that she strongly defended the status quo. She argued that we could trust a doctor, and that if a second opinion were needed he would get one. She said that that was,
"common and correct medical practice".

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She also questioned whether the amendment was fair for the person concerned, and suggested that it might add to the stress on the judge and his or her family.
I see the issue the other way round; it is rather important. In the new situation, in which a political Minister may be tempted to use deterioration in a judge's health as a means of getting rid of him or her because he or she has been awkward, he can do that simply by declaration on the basis of one doctor's certificate. That seems extraordinary. Surely the judge concerned and his or her family would actually want a second opinion and should be entitled to have it in law.
We are talking about the highest court in the land, and the career and contribution of a top-quality, highly distinguished lawyer. The Minister said last time that we,
"must always take into account that the future may be different from the past".—[Official Report, 11/10/04; col. 98.]
That is the point. The future will indeed be different. In suggesting this change to the Bill, the Law Society of Scotland is right—there should be two medical certificates. Simply because we are apparently in a hurry, we should not disregard the future of judges who may, perhaps very temporarily, become incapacitated and can so easily be removed from the court.
6.15 p.m.
Lord Ackner: My Lords, I support the amendment. I recall that a provision in the past provided for medical certificates by two consultants. Its weakness was that it did not cover the very senior judiciary, particularly the Lord Chief Justice. That gave rise to problems.
I certainly remember appearing before one judge who was a Lord of Appeal in Ordinary. He made up the majority against me and, by common agreement, was beyond his capacity to follow the argument any longer. I remember one case in which I had a consultant present to assist me on the medical issue of a case, and he was so fascinated by the mental condition of the judge trying the case that when I asked him for assistance, he said, "One moment. I find the judge a most interesting personality. You can virtually hear the needle coming on and off the record during the course of his discussion".
The provision has improved the situation very much by providing what should occur where the president of the court is concerned. However, retirement should be on the basis of two medical practitioners, with preferably one at least of consultant status. As it stands, the amendment is certainly an improvement.
Lord Crickhowell: My Lords, I am neither a lawyer nor a doctor, and I have listened to the debate simply on the basis of sensible principle. One's experience of dealing with the medical profession indicates that there is a good deal of wisdom in it. When we are talking about possibly disqualifying or removing a judge, we have to get that right. If the future will be different from the past, we should surely take every possible precaution to make sure that we make it different in the right way. I have not yet heard an
1232
argument to suggest that the amendment could be wrong. In principle, we ought to make sure that we get the matter absolutely right. The amendment gives us the opportunity to do so, so I support it.
Baroness Ashton of Upholland: My Lords, I join the noble Lord, Lord Crickhowell, in not being a lawyer or doctor; it is a positive advantage on occasions. It is also very important to take from the past what is relevant to the future. We start from the principle that, in Section 12 of the Administration of Justice Act 1973, we have provisions that have worked well until now and have never been criticised in the past. The clause also mirrors the provisions that cover such matters with respect to the senior judiciary of England and Wales and of Northern Ireland.
The noble Baroness and the noble Duke have been concerned that the purpose of a second medical certificate is to ensure that we do not have political interference. Retirement of a judge of the Supreme Court is simply not possible without the concurrence of the two most senior judges available, usually the president and deputy president of the court. My contention is, as in Committee, that that provides a far stronger safeguard against political interference than simply a second medical certificate.
I also contended in Committee that one should be mindful of distress caused to people, and I am still mindful of that. I pick up the point of the noble and learned Lord, Lord Ackner, about relevant status in saying that, where a medical certificate is sought, it is right to find an appropriate person able to deal with the issue. If a doctor felt unable to give a certificate, the "patient" would be referred on. In terms of the specific desire of the noble Duke and the noble Baroness to ensure that political interference could not happen, my contention remains the same—that having those two very senior members of the judiciary involved in the resignation or retirement is a much better safeguard.
I looked at the Scottish provisions. They are different, because in Scotland it is necessary to seek a guardianship order under the Adults with Incapacity (Scotland) Act 2000 in respect of a judge. Therefore, requiring two medical certificates in those circumstances is an understandable precaution. But the background and the legal framework are very different. Indeed, as the noble Duke and the noble Baroness will know, the amendment departs from the Scottish model in its use of language and what it describes.
I could go into more detail, but I am mindful that my contention is that what the noble Duke and noble Baroness, supported by the noble and learned Lord, Lord Ackner, wish for is achieved through my comments about the senior judiciary and a medical certificate being appropriate, causing the least possible distress but the right level of medical intervention. On that basis I hope that the amendment will be withdrawn.
The Duke of Montrose: My Lords, I listened with some interest to what the Minister said and I am grateful to the noble and learned Lord, Lord Ackner, the noble Lord, Lord Crickhowell, and the noble Baroness, Lady Carnegy, for their support.

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A question still hangs in one's mind and, if nothing else, there is still a slight question as to how the single doctor feels about having to give this one opinion. We must look at these matters again and I know that the Minister is worried about the wording. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 106 and 107 not moved.]
Clause 28 [Pensions]:
[Amendment No. 108 not moved.]
Clause 29 [Acting judges]:
[Amendments Nos. 108A and 109 not moved.]
Clause 30 [Supplementary panel]:
[Amendment No. 110 not moved.]
Clause 31 [Jurisdiction]:
[Amendment No. 111 not moved.]
Schedule 8 [Amendments relating to jurisdiction of the Supreme Court]:
[Amendment No. 112 not moved.]
Clause 32 [Composition]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.112A:
Page 15, line 2, leave out paragraph (c) and insert—
"(c) more than half of those judges are permanent judges."
The noble and learned Lord said: My Lords, the amendment relates to the composition for proceedings in relation to the Supreme Court. The Government's amendments, which have been drafted in consultation with the noble and learned Lord, Lord Bingham, are designed to address concerns expressed in Committee and outside Parliament that the clauses as they stand both over-restrict the court's operational flexibility compared to that enjoyed by the Appellate Committee of the House of Lords, and inappropriately allow for appeals to be heard by a panel in which non-permanent judges predominate.
Flexibility is achieved because the clauses, by virtue of the third government amendment in this group, will work on the basis that the court is "constituted" for proceedings when the judges to hear those proceedings are "designated", rather than when the hearing commences. An uneven number of judges equal to or greater than three must still be designated. Given that an uneven number must be designated, permanent judges have to be in the majority to ensure that the composition is never "wholly or predominantly" of non-permanent judges; and the first amendment in this group, in which the noble Lords, Lord Goodhart and Lord Maclennan, may discern a resemblance to an amendment tabled by them in Committee, ensures that
1234
that is the case. This does not mean that the actual hearing cannot commence before an even number of judges, as "designation" by definition precedes the beginning of the hearing proper.
The final government amendment in the group introduces a new Clause 33 in place of the existing clause. New Clause 33(l) provides for the clause to apply if the court ceases to he duly constituted,
"because one or more members of the Court are unable to continue",
but because the approach now turns around "designation", rather than "commencement of proceedings", the court is enabled, for example, to start the hearing with four judges if five were designated, but one drops out, as long as at least two of the four are permanent judges.
The provision in subsection (1) of new Clause 33 that the section applies to a court constituted in accordance with a direction "under this section" is to allow for the possibility of two judges falling out of a panel which started with at least five. What might happen, for example, is that a panel of five is designated and, before the hearing commences, one judge is unable to continue and the presiding judge directs—the parties being in agreement and there still being four judges of whom at least two are permanent—that the court is still duly constituted. Then another judge is unable to continue, leaving three, of whom two are permanent and the parties are still in agreement that the proceedings should continue. Then there would be a court which ceased to be duly constituted "in accordance with section 32", but the presiding judge may direct that it is still duly constituted.
These amendments will produce flexibility similar to that enjoyed by the Appellate Committee, but with the added benefit, for those who will use the court, of clarity, certainty and transparency. I beg to move.
Lord Goodhart: My Lords, these amendments are responses to concerns which we raised in connection with amendments that we tabled in Committee. They were particularly concerned with the possibility of a situation where a majority of the judges were temporary, non-permanent judges. That concern has now been dealt with and we feel that the concerns that we raised are met by these amendments and we are happy to support them.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos.112B and 112C:
Page 15, line 10, leave out "and section 33"
Page 15, line 15, at end insert—
"() This section and section 33 apply to the constitution of the Court in any proceedings from the time judges are designated to hear the proceedings."
On Question, amendments agreed to.
[Amendment No. 113 not moved.]
Clause 33 [Changes in composition]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 113A:
Leave out Clause 33 and insert the following new Clause—
"CHANGES IN COMPOSITION
(1) This section applies if in any proceedings the Court ceases to be duly constituted in accordance with section 32, or in accordance with a direction under this section, because one or more members of the Court are unable to continue.
(2) The presiding judge may direct that the Court is still duly constituted in the proceedings.
(3) The presiding judge may give a direction under this section only if—

(a) the parties agree;

(b) the Court still consists of at least three judges (whether the number of judges is even or uneven);

(c) at least half of those judges are permanent judges.

(4) Subsections (2) and (3) are subject to directions given by the President of the Court.
(5) If in any proceedings the Court is duly constituted under this section with an even number of judges, and those judges are evenly divided, the case is to be re-argued in a Court which is constituted in accordance with section 32.
(6) In this section—

(a) "presiding judge" means the judge who is to preside, or is presiding, over proceedings;

(b) references to permanent judges have the same meaning as in section 32."

On Question, amendment agreed to.
[Amendment No. 114 not moved.]
Clause 34 [Specially qualified advisers]:
[Amendment No. 115 not moved.]
Clause 35 [Making of rules]:
[Amendment No. 116 not moved.]
Clause 36 [Procedure after rules made]:
[Amendment No. 117 not moved.]
Clause 37 [Photography etc]:
[Amendment No. 118 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.118A:
After Clause 37, insert the following new clause—
"CHIEF EXECUTIVE
(1) The Supreme Court is to have a chief executive.
(2) The Minister must appoint the chief executive, after consulting the President of the Court.
(3) The President of the Court may delegate to the chief executive any of these functions—

(a) functions of the President under section (Officers and staff)(1);

(b) non-judicial functions of the Court.

(4) The chief executive must carry out his functions (under subsection (3) or otherwise) in accordance with any directions given by the President of the Court."
The noble and learned Lord said: My Lords, these are important amendments about governance arrangements over which perhaps I may take a little time. The government amendments to these clauses are a package, which considerably revises the governance model to increase significantly the
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independence of the court. As your Lordships are well aware, I promised in the Select Committee to bring forward amendments to the existing clauses, which had been criticised on the grounds that they provided insufficient guarantee of corporate independence and, in particular, did not guarantee that the court would be,
"institutionally free of administrative pressures".
While I remain convinced that the existing provisions provided a robust system which would ring-fence the court's budget and circumscribe ministerial discretion, I have listened to the criticisms and have negotiated a revised model in consultation with the senior Law Lord. I believe that this model meets many of the previous criticisms. I hope, therefore, that noble Lords who have tabled amendments to the clauses dealing with resources and governance will feel able to withdraw them, as I believe that the government amendments will meet their concerns for a Supreme Court with real institutional independence.
Moreover, the package of government amendments, in technical terms would pre-empt not only the amendments tabled by the noble Viscount, Lord Bledisloe, the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy, dealt with in a separate group, but those tabled by the noble Lords, Lord Goodhart and Lord Maclennan, by removing the clauses which they would amend and replacing them with new clauses. Only those amendments tabled by the noble Lords, Lord Goodhart and Lord Maclennan, offer an alternative governance model but, as I will explain to your Lordships, that would be a model that is neither viable nor advantageous to the Supreme Court.
The model now proposed by the Government is to establish the Supreme Court as an independent statutory body with its own estimate within the overall Department for Constitutional Affairs departmental expenditure limit and, as a result of a separate estimate, independent financing from the Consolidated Fund through the normal supply process. The chief executive of the Supreme Court will be a separate accounting officer in right of the court itself and not a sub-accounting officer under the DCA Permanent Secretary.
6.30 p.m.
Treasury accounting regulations make it unnecessary to spell out in full detail in the Bill how the revised model will work. However, I am sure that the House will appreciate my placing on the record how the model is to operate. The Supreme Court will be an independent statutory body responsible for appointing the staff for its own administrative service. That service will be headed by a chief executive—a civil servant appointed by a process involving an ad hoc commission and designed to exclude political interference.
The staff of the court will also be civil servants, accountable to the chief executive and not to the Minister. The chief executive himself will be

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principally answerable to, and operate under the day-to-day guidance of, the President of the Supreme Court and will be accountable directly as accounting officer for the court rather than under the DCA Permanent Secretary.
The President of the Supreme Court and the chief executive will determine the bid for resources for the court in line with governmental spending review timescales, and they will pass it to the Minister, who will include it as a separate line in the overall DCA bid submitted to the Treasury. The Treasury will scrutinise the overall DCA bid and approve the overall financial expenditure before putting the bid before the House of Commons as part of the overall Estimates. The House of Commons will approve the overall Estimates and transfer resources accordingly. Because the Supreme Court will have its own estimate, the funds approved will be transferred to the court direct from the Consolidated Fund and not via the DCA. That assures the Supreme Court a high level of independence in securing and expending resources and in the day-to-day administration of the court.
In this revised model, the Minister will simply be a conduit for the Supreme Court bid and will not be able to alter it before passing it on to the Treasury. Once the Treasury has scrutinised the bid and it has been voted on by Parliament, the funds will go directly to the Supreme Court from the Consolidated Fund rather than via the DCA. That ring-fences the Supreme Court budget and ensures that it cannot be touched by Ministers. The chief executive will be able to allocate resources as he considers appropriate to ensure an effective and efficient system to support the court in carrying out its business. In other words, the chief executive will be solely responsible for the administration of the court, in accordance with directions from the president, and will be free from ministerial control.
Your Lordships will note, however, that this model retains some ministerial involvement. That remains absolutely necessary as it is a key constitutional principle that a Minister must remain ultimately responsible for securing funding from the Treasury and be answerable to Parliament for its overall operation. Therefore, the amendments proposed by the noble Lords, Lord Goodhart and Lord Maclennan, in the next group are unacceptable as they leave no role for any Minister.
Moreover, under the amendments tabled by the noble Lords, Lord Goodhart and Lord Maclennan, the President of the Supreme Court, rather than the Minister, would become responsible for negotiating directly with Her Majesty's Treasury for funding and for the provision of accommodation, staff and services. The Supreme Court would effectively become a department without a Minister but with a judge at its head. It would be required to account for its use of the money voted to it by Parliament rather than a board, a commission or executive office holder. The latter clearly stands in opposition to the principle of functional separation for the judiciary from the legislature, which underlies these proposals.
While the Minister will remain ultimately accountable for the court, his role will be reduced to the inescapable aspects of accountability—presenting and negotiating the court's budget with the Treasury as part of the overall departmental expenditure limit for the DCA and responding to parliamentary Questions about, and otherwise answering to Parliament for, the court's administration. Thus, ministerial involvement will be circumscribed so far as possible and, in all other aspects, the court will be independent.
In Committee, the noble Lord, Lord Kingsland, referred to the conclusions of the Lords Select Committee that the Supreme Court should be a non-ministerial department, suggesting that that would mean that a Minister would not be involved in the funding. That is not an accurate statement of the non-ministerial departmental model but the noble Lord, Lord Kingsland, can hardly be blamed, having regard to the rather misleading nomenclature. Only bodies which are an emanation of Parliament itself are truly self-administering. And clearly, as one of the major principles behind these proposals is functional separation from the legislature, any arrangement whereby the Supreme Court was, for example, funded through the House of Lords—as the noble and learned Lord, Lord Howe, suggested in the Select Committee—would, I believe, be inappropriate.
There is therefore no acceptable way of excluding entirely the involvement of a Minister from the process for determining and allocating the court budget. But I believe that this is the best and most effective way to exclude the Minister as much as possible. No Minister would ever be able to starve the Supreme Court of funds because his role is to pass on the bid as a conduit.
A further reality is that a process requiring the Supreme Court to bid directly for funds would not benefit the court. Without ministerial involvement, the court would not have sufficient clout to negotiate a strong settlement. I say that, of course, without in any way intending to demean the status of the President of the Supreme Court; nor is there any intention to demean that status when I say that, from a practical point of view, it is clearly not reasonable to expect the President of the Supreme Court to find and equip a suitable building for the court, but that would be the effect of the amendments tabled by the noble Lords, Lord Goodhart and Lord Kingsland.
Conversely, the arrangement to which the government amendments give effect would bring additional benefits. Should the court overspend, it would be possible for the DCA Minister to allocate part of his overall budget to the Supreme Court. Moreover, the court, should it wish, would be able to use the DCA's support services, such as human resources and IT, and to benefit from the attendant economies, rather than having to set up its own arrangements.
I very much hope that your Lordships feel reassured by the model that I am now proposing. As I have noted, due to government accounting regulations, it is unnecessary for the new clauses to set out the

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governance model in the detail that I have outlined. Nevertheless, the clauses themselves provide the Supreme Court with a great deal of protection.
The new clauses establish the post of chief executive of the Supreme Court within a clear statutory framework which places clear and complementary duties on the chief executive and the Minister. The chief executive will be responsible for the non-judicial functions of the court and any functions of the president in relation to the appointment of staff which the president delegates to him—in effect, allowing the chief executive to be responsible for appointing staff to the court.
The chief executive will be answerable to the president, in accordance with whose directions he will be required to act in carrying out his functions. The chief executive will be responsible for ensuring that the court's resources are used to provide an efficient and effective system to support the court in carrying out its business. The Minister has the corresponding duty to provide accommodation for the court and to provide other resources to allow the chief executive to carry out his responsibilities. Clearly the Minister would not be complying with his duty if sufficient funds were not provided to the chief executive to allow him to perform his functions.
I know that there has been some concern among your Lordships that the Government are not sufficiently committed to finding a suitable building for the Supreme Court. As noble Lords will now be aware, the government amendments include a new clause which places a firm duty on the Minister to find such accommodation as he thinks appropriate for the court to carry on its business.
Alongside the sunrise clause that I am tabling, which will no doubt be fully debated later, I hope that my explanation reassures your Lordships that there is no possibility of the Government housing the Supreme Court in inappropriate accommodation. I hope that it also reassures, in particular, the noble Viscount, Lord Bledisloe, the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy. They have all tabled, in another group, amendments to the existing provisions which, in different ways, seek to strengthen the duty on the Minister to provide appropriate accommodation and staffing for the Supreme Court. I hope that, in the light of the overlong explanation that I have given, noble Lords will feel able not to move their amendments.
I do not intend to dwell any further on the building issue as I gave a full explanation of the Government's position during the debate on Clause 14. In summary, these amendments will guarantee the Supreme Court real institutional independence and circumscribe ministerial involvement so far as possible. I beg to move.
Lord Maclennan of Rogart: My Lords, I begin by thanking the noble and learned Lord the Lord Chancellor for what he described as an "overlong" exposition but one that I think was entirely necessary in view of the importance of the issues that he
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addressed and the authority which a statement of that kind will carry in explanation of the purposes and the mode of operation of the Bill in so far as they are not spelt out in detail in the language of the Bill.
I believe that the Government have moved in a most helpful way to ensure the high level of independence in securing and expending resources which it was the wish of a number of members of the Select Committee to secure and which certainly lay behind the amendments tabled by my noble friend Lord Goodhart and myself.
One or two issues were raised in a very helpful letter from the noble Baroness, Lady Ashton, to my noble friend, to myself and to other Members of the House, to which the Minister may feel it is worth responding. One is whether the staff of the court will be civil servants in the full sense of the term, or whether they will be employed as public servants with equivalent terms and services.
A second question that occurs to me is whether the chief executive, as an independent accounting officer, will be subject to the scrutiny of the National Audit Office, and through that, of the Public Accounts Committee. I imagine that nothing of that kind will be done by any direction, but for the avoidance of doubt, it would be helpful to know what is intended.
The measure announced by the Government in this complex but important package seems to me to go a very long way to meet the desirable goal of ensuring independent management of the court's affairs and the exclusion of the Executive from that. I am bound to say that I am persuaded by what the Minister has said about the importance of not leaving the president of the Supreme Court to argue his corner with the Cabinet for his putative budget. I believe that that ministerial responsibility is an acceptable constitutional propriety which does not provide the wedge that would enable executive interference in the conduct of the court.
These detailed provisions, which will ensure that the budget of the Supreme Court cannot be touched by Ministers, will go far to fortify the underlying objectives of the Bill to secure, as far as is reasonably possible, the separation of the authorities, while retaining the ultimate accountability of the Lord Chancellor. In the light of the government amendments, which have clearly covered other points that we wished to bring to the attention of the Government, my noble friend and I will not wish to press our amendments.
Lord Howe of Aberavon: My Lords, I apologise for pursuing this point once again, but I still wonder where the Treasury fits into the picture. The Lord Chancellor has quite rightly explained that the estimates that have been put forward for the court are not something with which the Minister will interfere; he will simply act as a conduit for them to go forward. But the conduit to where, except the Treasury? The Treasury has a habit of seeking to impose cash limits on such things.
I shall repeat the anecdote that I believe I told the Select Committee. When I was Chancellor I sought to impose cash limits on the House of Commons

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expenditure and was met by the noble Lord, Lord Barnett, who was then serving on the House of Commons Commission. He snapped his fingers at me and said that the Commons was not subject to any cash limits whatever. When I became Leader of the House of Commons at a later stage, I was delighted when the then Chancellor sought to do the same thing to me. In turn, I snapped my fingers at him.
The report of the Select Committee describes the existing arrangements. It says,
"While the salaries of the Lords of Appeal in Ordinary are paid direct from the Consolidation Fund, the administrative costs of the Judicial Office (and of course of accommodation) are borne on the House of Lords vote, or request for resources, and accounted for by the Clerk of the Parliaments. The estimates are laid by the Treasury, in like manner as far as a non-departmental public body, though they are not cash limited".
I have never been directly concerned with the accounts of the House of Lords, but I have been looking at the annual report for 2003–04 and I perceive accounts that are presented in a most unusually relaxed fashion. All that they set out in appendix F is the outturn of expenditure for each year from 2000–01 to 2003–04, escalating steadily and substantially from £45·67 million in the first year to £61·117 million in the last year. For the year ahead, 2004–05, it simply states the cash requirement, rather as, when a child, one submitted one's bid to one's parents for pocket money. I have the impression that the one benefit of retaining control of the funding of the Supreme Court in one or other of the parliamentary institutions—obviously this one—is that the Treasury will be as powerless as it was in relation to me and the House of Commons.
6.45 p.m.
The Lord Chancellor talks about the Executive not being able to interfere. I appreciate that that means that the Minister has foresworn his ability to intervene, but what about the Treasury? Will not the Supreme Court, in the end, find itself negotiating directly with the Treasury? I seem to recollect one of the Scottish Law Lords who gave evidence to the committee saying that he was uncomfortable about finding himself in that position and appreciated the ability, in his case, to invoke the help of the Secretary of State. It is as though he found himself rather lonely and unprotected by the legislature and was obliged to turn to the Secretary of State for help.
I wonder whether the Lord Chancellor is putting the court in the wrong position. I am not sure what one should do about it, but it seems that the court would be more comfortably protected if it were under the umbrella of unrestricted cash limits, which the two Houses of Parliament appear to enjoy. I may have misunderstood the position, but it seems to me that the most advantageous way of doing it is to bring it under the wing of this House. I am sure that with the utmost benevolence the Lord Chancellor may be depriving the Supreme Court of the liberty that it would have enjoyed under the wing of this House.
Lord Crickhowell: My Lords, I thank the noble and learned Lord the Lord Chancellor for going a very
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long way to meet the concerns expressed by the Select Committee. Having been a thorn in his side on financial matters, I acknowledge that he has made a considerable step forward on this matter.
Having had to argue public expenditure requirements for eight years as a Minister, when I hear a former Chancellor of the Exchequer make the kind of contribution that he has just made, I have some anxieties. Of course, the reality is that all such matters come back to the Treasury and, as a Minister and later as chairman of a major quango, I sometimes found that the Treasury was extremely difficult and bloody-minded about what seemed to me to be absolutely essential expenditure.
I shall be interested to hear what the Lord Chancellor says in response to my noble and learned friend. I am particularly struck by the fact that earlier this afternoon in answer to a question I put to him about the world-class law library that his Written Ministerial Statement told me we were to have, he said that the costs of establishing that library were included in the capital cost estimates that had been put before us. So far so good—up to a point.
I have done a little research into the matter and have spoken to someone who probably has more wisdom and authority on the matter than almost anyone else. I am assured that the cost of maintaining the law Library in this House is very high. It is a major item of expenditure. Currently, it is absorbed in those items referred to by my noble and learned friend Lord Howe of Aberavon; it is conveniently covered in the expenses of Parliament and therefore is not challengeable by the Treasury.
However, I fear that the ongoing maintenance cost of that library—the provision year after year of a mass of books and learned tomes for the Law Lords—will come under that heading. Therefore, my anxiety about my noble and learned friend's intervention has been magnified by the information that I have discovered in the past hour about the costs of the Library. Perhaps the noble and learned Lord the Lord Chancellor can reassure me on the matter.
But the fact is that the Treasury will be extremely difficult, as it is on all these matters—as any noble Lord who has dealt with it will know—about the very large expense of the Library. Is there not some way in which we can provide for this expense under the kind of arrangements we have at present, which free the final court of appeal from that kind of limitation? Although this is a step forward, is it the best that we can have?
The Duke of Montrose: My Lords, the noble and learned Lord the Lord Chancellor has drawn the House's attention to the fact that this amendment, and the others connected with it, will have a considerable effect on the amendments tabled in my name and that of my noble friend Lady Carnegy of Lour as well as those of other noble Lords. It is probably my own fault that I am at the receiving end of a very inefficient postal system, but I was rather late in finding notice of this new policy introduced by the noble and learned Lord.

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Last night I sat in on a debate on the marine environment. The big complaint was that you cannot always see what is going on beneath the surface of the water. Trying to cope with the new concepts being introduced here leaves me in a slightly similar fog.
Through the later amendments in the group, the Government propose to remove Clauses 38 to 43. A lot of the issues which our amendments address and which the House considered in Committee relate to those clauses. I am very grateful to the Minister. He promised us that they would table amendments at this stage, but the amendments make it look as though in Committee they had some idea that they would bring forward this massive new proposal, with which I was suddenly faced yesterday.
However, some of the issues remain and, as far as I can see, they are not all addressed in the new scheme. Certainly, Amendment No.118A allows that:
"The Minister must appoint the chief executive",
but in Amendment No. 118B we are back to:
"The President of the Supreme Court may appoint officers and staff".
It is reassuring to see that on accommodation the Minister must ensure that courts' offices and accommodation are provided. Can the Minister explain why the appointment of staff only requires "may"? These provisions replace the clauses in which Amendments Nos. 124 and 134, which I was due to move, had effect. So I raise my queries at this point.
In Clause 40, which Amendment No. 130 would delete, we were considering the question of consultation on staff provision by third parties. The amendments offered by the Government in the group make no provision for staff provision by third parties. Is that because it is reckoned that the Civil Service is large enough to ensure that there will never be need for outside contractors; or that outside contracts will not be made on the basis of hiring staff?
The amendment still does not address the issue at the heart of the desire for wide consultation, which was addressed by Amendments Nos. 128 and 129, tabled in my name and that of my noble friend Lady Carnegy of Lour. What happens if the decisions of the chief executive upset the working arrangements of other courts or the staff of other legal bodies? Can the noble and learned Lord tell me what approach the Government propose in those matters?
Viscount Bledisloe: My Lords, Amendment No. 120 sought to insist that the Government should have an absolute obligation to provide appropriate premises for the Supreme Court. In Committee, the Government told us that that was not necessary. However, fortunately, they have seen the light.
By Amendment No. 140A they impose an absolute duty on the Minister to ensure that the Supreme Court is provided with appropriate buildings and accommodation. I am grateful to the noble and learned Lord for this change of heart. I cannot, however, refrain from pointing out that whereas my
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amendment would have achieved this result in two words, it has taken the parliamentary draftsmen 23 lines to achieve precisely the same result.
Baroness Carnegy of Lour: My Lords, my noble friend the Duke of Montrose wanted to establish various facts on the Government's new scheme in order to decide what should happen to his amendments, to which I have put my name. The salient point about third parties is whether, when the chief executive appoints officers and staff as a function delegated by the president, he will be able to recruit via third parties. If so, what are the implications of that for the statement that the staff will all be civil servants. Will the chief executive see the need, as does the Law Society of Scotland, to consult the lawyers' bodies and senior judges about the levels of staffing that he establishes?
I welcome the Government's proposal to set up the court in this new way. If we are to have this court, it seems a very big improvement on the original proposals. But if that happens, the Law Society's point does not fall. Lawyers have a great interest in the staffing levels of this court. Will they be consulted? I should be interested to know whether the Minster has considered that point.
Lord Kingsland: My Lords, I hope that the noble and learned Lord the Lord Chancellor will concede that, wax lyrical though he has done at this and earlier stages of the Bill about the enhanced independence that the judges of the Supreme Court will enjoy in the proposed institution, in the financial area at least, the situation is reversed. As a result of the noble and learned Lord the Lord Chancellor's proposals, the Supreme Court will enjoy less financial independence than the Lords of Appeal in Ordinary do in the Appellate Committee. I see the noble and learned Lord shaking his head, but I do not see how any other conclusion can be reached.
I was rather disappointed to hear the noble Lord, Lord Maclennan, say that he would not press his amendment. As he stood up I was looking forward to saying at the end of his speech that I thoroughly concurred with everything that he said and that. I would support him in the subsequent vote. Imagine my disappointment when the noble Lord said that he was almost entirely satisfied with the noble and learned Lord's proposals and, in those circumstances, would not be pressing his amendment.
I confess that I entirely share the apposite views expressed by my noble and learned friend Lord Howe. Although I accept that, under the circumstances, the noble and learned Lord the Lord Chancellor had to retreat one step by accepting that the Chancellor of the Exchequer would now inevitably impose cash limits on the Supreme Court, I did not expect him to retreat two steps and re-interpose a Minister between the Supreme Court and the Chancellor of the Exchequer, which he has done.

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For example, I cite the first two subsections of Amendment No. 118B. In subsection (1), we read:
"The President of the Supreme Court may appoint officers and staff of the court",
to which I say, hooray. But then, in subsection (2), we read:
"It is for the chief executive of the Supreme Court to determine these matters with the agreement of the Minister".
So the power of the President of the Supreme Court under subsection (1) seems hollow indeed. Although I accept that the President of the Supreme Court may lose his battle with the Chancellor of the Exchequer because of general cash limits imposed on all spenders, departmental or non-departmental, I simply do not understand how subsection (2) fits in with all the statements of the noble and learned Lord about the independence of the Supreme Court. It is quite plain that the power of the president under subsection (1) is wholly meaningless. It would be better were the provision not there at all because I submit that it misleads.
I should have liked to have supported the noble Lords, Lord Maclennan of Rogart and Lord Goodhart, on their Amendment No. 126, which would replace "Minister" by "President of the Supreme Court"—Amendment No. 131 would also replace "Minister" by "President of the Supreme Court"—but I am now unable to do so.
7 p.m.
Lord Falconer of Thoroton: My Lords, I am grateful for the welcome that the measures have received, apart from the noble Lord, Lord Kingsland, who made several points, and the noble and learned Lord, Lord Howe. I shall deal first with the points made by the noble Lord, Lord Maclennan. Will the staff be civil servants? Yes, they will. Will the chief executive be subject to the National Audit Office? Yes, he will, as will the whole operation.
The noble and learned Lord, Lord Howe, makes the point that because the expenses of the Law Lords are currently in the House of Lords Estimates, the Treasury does not really scrutinise them. That is absolutely true. As the noble and learned Lord knows, the expenditure is made up of £2·1 million on judicial salaries, which would not be scrutinised by the Treasury anyway; £600,000 on staff salaries attributable to the Law Lords; £400,000 on administration; and £100,000 on utilities and rates. The three figures of £600,000, £400,000 and £100,000 are largely notional estimates of what is spent by this building and its staff on the Law Lords. Hitherto, the Law Lords have avoided Treasury scrutiny because there is no separate expenditure for a Supreme Court or a final court of appeal.
Let us assume, if the noble and learned Lord will, that there was a separate Supreme Court, which is the assumption on which the provision is made. Clearly, a
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separate amount would have to be considered for the funding of that operation. It would be a matter for the Chancellor of the Exchequer of the day.
I was interested to hear that when the noble and learned Lord was Chancellor of the Exchequer and the Commons told him to go away when he wanted to apply cash limits, he went away. I can understand why: because he knew that the Commons would not vote for the Estimates if he sought to apply cash limits. What would his attitude have been if they had been £5 million a year for the Supreme Court? Would the Lords and the Commons have said, "We do not apply cash limits to the Supreme Court"? That is a rhetorical question, so I do not invite the noble and learned Lord to rise; I regret asking the question anyway.
However, with the greatest of respect to the noble and learned Lord, one must be realistic. If one is setting up a Supreme Court, there will be a separate figure that will be considered by the Chancellor of the Exchequer. One cannot imagine that the figure would not be looked at, but the reality is that, in the context of public expenditure, which is about £500 billion a year, it is not that great a figure. It is extraordinarily unlikely that it would create significant issues.
Lord Howe of Aberavon: My Lords, allow me to interrupt the noble and learned Lord, because he is not asking rhetorical questions. Surely, the figure of £76·7 million to be spent by this House in the year ahead is not something in respect of which the Chancellor can come pounding along to impose a cash limit. The very fact that Parliament together votes itself the total figure is the one area in which the separation of the Supreme Court from the omnipotent spending power of Parliament itself jeopardises the financial independence of the Supreme Court.
Lord Falconer of Thoroton: My Lords, it cannot. Before he answered my rhetorical question, the noble and learned Lord nodded enthusiastically when I said that the reason that the Chancellor cannot impose cash limits on Parliament is that the Commons would never vote for the Estimates if he started to do so. The position would inevitably be different if there was a separate and identifiable sum, as we would have to have for a Supreme Court. So, with the greatest of respect to the noble and learned Lord, the idea that, because no separate amount of money is in practice attributable to the Law Lords, it follows that the same approach would be taken when there was approximately £8 million of expenditure for the Supreme Court may not necessarily be reflected in practice.
Secondly, and separately, in any event, there should be a separation between Parliament and the Supreme Court. Thirdly, the Supreme Court would have the benefit of being, as part of the ministry, being able to look to that ministry first before it had to go back to the Treasury.
The noble Duke, the Duke of Montrose, referred to the amendments about consultation, to which the noble Baroness, Lady Carnegy, also referred. They refer to third-party schemes which, by removing

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Clause 40, we remove altogether. We shall return later to the issue of consultation on matters such as fees, which is an issue also raised by the noble Duke and the noble Baroness. As for the noble Duke's question about why the clause states that the chief executive "may", not "must", appoint, that is because it is intended that the chief executive should have the power to decide how the money is disposed of. We do not want to place any obligations on him; that is entirely a matter for him.
As for the points made by the noble Lord, Lord Kingsland, I have made clear in all that I have said that the intention is that the money, once granted by the Commons in its Estimates, is passed not from the DCA but directly from the Consolidated Fund to the chief executive who, working to the direction of the president and the other members of the Supreme Court, decides how it should be spent. It is hard to imagine more financial independence than that.
The arrangements that we have followed here are similar to that of the High Court of Australia, where a Minister of the Attorney-General intervenes, but the Supreme Court Justices in the High Court of Australia, which is the Supreme Court of Australia, are very satisfied with the model.
Baroness Carnegy of Lour: My Lords, before the noble and learned Lord sits down, is he saying that all the employees of the Supreme Court will be civil servants and that there will be no third-party arrangements? Will the cleaners be civil servants?
Lord Falconer of Thoroton: My Lords, they will be civil servants. Obviously, that does not rule out the chief executive entering into contract cleaning arrangements with cleaning companies but, in those circumstances, the cleaners would be employed by the cleaning company.
Lord Kingsland: My Lords, before the noble and learned Lord sits down, I should like to turn again to the terms of Amendment No. 118B. I accept the point about Treasury cash limits, and I accept that the Treasury will pass the money directly to the Supreme Court without the interposition of the Minister, but I am still puzzled by the need for the Minister to play a role in the appointment of staff.
If the President of the Supreme Court knows exactly how much money he will get over any given period from the Treasury, why can he not appoint his own staff within that cash limit? Why does the Minister have to play a role—indeed, it seems to be an exclusive role—in deciding who the President of the Supreme Court will employ; despite the fact that the Minister already has the reassurance that the president would be acting under cash limits?
Lord Falconer of Thoroton: My Lords, the president is the appointer, which means the formal person who employs. The chief executive determines these matters. He has to get the agreement of the Minister, but he is
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the accounting officer. So in operational terms it is the chief executive not the Minister who is ultimately responsible for ensuring those arrangements.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 118B:
After Clause 37, insert the following new clause—
"OFFICERS AND STAFF
(1) The President of the Supreme Court may appoint officers and staff of the Court.
(2) It is for the chief executive of the Supreme Court to determine these matters with the agreement of the Minister—

(a) the number of officers and staff of the Court;

(b) subject to subsection (3), the terms on which officers and staff are to be appointed.

(3) The civil service pension arrangements for the time being in force apply (with any necessary adaptations) to the chief executive of the Court, and to persons appointed under subsection (1), as they apply to other persons employed in the civil service of the State.
(4) In subsection (3) "the civil service pension arrangements" means—

(a) the principal civil service pension scheme (within the meaning of section 2 of the Superannuation Act 1972 (c.11), and

(b) any other superannuation benefits for which provision is made under or by virtue of section 1 of that Act for or in respect of persons in employment in the civil service of the State."

On Question, amendment agreed to.
Clause 38 [Minister's duty]:
[Amendments Nos. 119 to 121 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 122:
Leave out Clause 38.
On Question, amendment agreed to.
Clause 39 [Officers and staff: appointment by Minister]:
[Amendments Nos. 123 and 124 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.125:
Leave out Clause 39.
On Question, amendment agreed to.
Clause 40 [Staff: provision by third parties]:
The Deputy Speaker (Lord Carter): My Lords, I should tell the House that if Amendment No. 126 is agreed to I cannot call Amendments Nos. 128 and 129 on the grounds of pre-emption.
[Amendments Nos. 126 to 129 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 130:
Leave out Clause 40.
On Question, amendment agreed to.
Clause 41 [Services: provision by third parties]:
[Amendment No. 131 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.132:
Leave out Clause 41.
On Question, amendment agreed to.
Clause 42 [Accommodation]:
[Amendments Nos. 133 to 135 not moved.]
The Deputy Speaker: My Lords, I should inform the House that if Amendment No. 135A is agreed to, I cannot call Amendment No. 136 on the grounds of pre-emption.
[Amendment No. 135A not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 136:
Leave out Clause 42.
On Question, amendment agreed to.
Clause 43 [Annual report]:
[Amendments Nos. 137 and 138 not moved.]
The Duke of Montrose The Duke of Montrose moved Amendment No. 139:
Page 18, line 30, at end insert—
"(3) The Minister must also send a copy of any annual report to—

(a) the Scottish Parliament;

(b) the Northern Ireland Assembly; and

(c) the National Assembly for Wales."

The noble Duke said: My Lords, the amendment is designed to ensure that the report is circulated to the various United Kingdom Parliaments and bodies. I notice that along with the Government's intention of wiping out Clause 43 through Amendment No. 140, to which this amendment was to be added, they have now tabled Amendment No. 145A, which gives an altogether more detailed treatment to the question of who should receive the official report, to which I would be inclined to lend my support. I beg to move.
Baroness Ashton of Upholland: My Lords, as the noble Duke will realise, we have no objections in principle to his amendment. We have tabled Amendment No. 145A, which we think gives the right level of detail, as the noble Duke indicated.
The Duke of Montrose: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.140:
Leave out Clause 43.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 140A and 140B:
After Clause 43, insert the following new clause—
"ACCOMMODATION AND OTHER RESOURCES
(1) The Minister must ensure that the Supreme Court is provided with the following—

(a) such court-houses, offices and other accommodation as the Minister thinks are appropriate for the Court to carry on its business;

(b) such other resources as the Minister thinks are appropriate for the Court to carry on its business.

(2) The Minister may discharge the duty under subsection (1) by—

(a) providing accommodation or other resources, or

(b) entering into arrangements with any other person for the provision of accommodation or other resources.

(3) The powers to acquire land for the public service conferred by—

(a) section 2 of the Commissioners of Works Act 1852 (c. 28) (acquisition by agreement), and

(b) section 228(1) of the Town and Country Planning Act 1990 (c. 8) (compulsory acquisition),

are to be treated as including power to acquire land for the purpose of its provision under arrangements under subsection (2)(b).
(4) The Scottish Ministers may make payments by way of contribution to the costs incurred by the Minister in providing the Court with resources in accordance with subsection (1)(b).
(5) In this section "court-house" means any place where the Court sits, including the precincts of any building in which it sits."
After Clause 43, insert the following new clause—
"SYSTEM TO SUPPORT COURT IN CARRYING ON BUSINESS
(1) The chief executive of the Supreme Court must ensure that the Court's resources are used to provide an efficient and effective system to support the Court in carrying on its business.
(2) In particular—

(a) appropriate services must be provided for the Court;

(b) the accommodation provided under section (Accommodation and other resources) must be appropriately equipped, maintained and managed."

On Question, amendments agreed to.
Clause 44 [Fees]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 140C:
Page 18, line 33, after "may" insert ", with the agreement of the Treasury,"
The noble and learned Lord said: My Lords, the amendment deals with the issue of fees. The government amendment to Clause 44 simply provides that the Minister may by order, with the agreement of the Treasury, prescribe fees payable in respect of anything dealt with by the Supreme Court. The current provision meant that the Minister did not need the consent of the Treasury to make such an order.
I have tabled the amendment as it is deemed desirable to bring the making of the Supreme Court fee orders into line with the making of court fee orders for other courts whereby Treasury consent is necessary; for example, Section 92 of the Courts Act 2003 and various other Acts, including Section 116 of the Judicature (Northern Ireland) Act 1978 and Section 2

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of the Courts of Law Fees (Scotland) Act 1895. This is therefore a standard provision for courts fees throughout the United Kingdom. I beg to move.
On Question, amendment agreed to.
7.15 p.m.
Lord Kingsland Lord Kingsland moved Amendment No.141:
Page 19, line 2, at end insert—
"and must ensure that the levels of fees are such that the average cost of bringing appeals to the Supreme Court do not in total exceed, in real terms, the cost of bringing such appeals to the House of Lords in February 2004"
The noble Lord said: My Lords, this issue has been pursued on previous occasions in the Select Committee and in your Lordships' House. I shall not speak at length to it. Indeed, my task has been made considerably easier by the intervention of the noble and learned Lord, Lord Ackner, earlier in the debate, on the amendment moved at the beginning of today's proceedings by the noble and learned Lord, Lord Lloyd of Berwick.
I simply wish to draw your Lordships' attention again to the evidence given at the Select Committee by the Bar Council and the Law Society, particularly the observations made by Mr Richard Drabble QC, which are to be found in Volume 2—the evidence volume—of the Select Committee report on the Constitutional Reform Bill.
Mr Drabble gives evidence on behalf of the Bar Council as follows:
"Can I say a word about the fees issue, which is a matter on which we do feel strongly. Our consultation responses to date have indicated we support the Supreme Court only on the condition that the additional cost of its creation is borne by the Government. I would strongly advocate the view that the sort of litigation … which finds its way at the moment to the Appellant Committee, and will find its way to the Supreme Court—is there because it is in the public interest for it to he heard".
The noble and learned Lord should take the evidence of Mr Drabble extremely seriously. It has been reinforced today by the intervention of the noble and learned Lord, Lord Ackner. It is supported entirely from these Benches. I beg to move.
Lord Goodhart: My Lords, I support what has been said about the principle of the matter by the noble Lord, Lord Kingsland. I agree that there are serious issues about fees. There is undoubtedly a threat that increasing fees can lead to the denial of access to justice to a number of people who cannot afford to litigate if they are compelled to pay excessive fees.
I differ from the noble Lord, Lord Kingsland, in that I think that his formula is somewhat too rigid. His amendment states that the Minister,
"must ensure that the levels of fees are such that the average cost of bringing appeals to the Supreme Court do not in total exceed, in real terms, the cost of bringing such appeals to the House of Lords in February 2004".
I suspect that the average costs of court fees at all levels are going to rise faster than the rate of inflation because they tend to be fairly labour-intensive. "Real terms" is not a wholly adequate test, and the proposal is rigid and inflexible.
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We have attacked this in a somewhat different way. Amendment No.175—I originally suggested that it should be taken with this group of amendments; that was not done, but I think it is appropriate to speak briefly to it—provides that the setting of fees under Clause 44 should require some further parliamentary input. The fees proposed should require the affirmative resolution in both Houses.
There are precedents for that. A substantial issue arose over the fixing of lees in a Bill in recent years which ended with the Government accepting that there should be a parliamentary process for approving them. The appropriate method of keeping the balance right and ensuring that fees are not put up excessively is to require parliamentary input as set out in our amendment.
Lord Ackner: My Lords, I support the amendment for the reasons that I gave earlier in the debate. I should also like to point out that the stimulus of access to justice is prejudiced by this sort of situation, one in which fees rise way beyond their previous levels purely because the costs involved are looked upon as something to which the Government have no obligation to contribute; rather, only an obligation to indemnify themselves against those costs. Accordingly, I support the proposal.
Viscount Bledisloe: My Lords, the need for the amendment is amply demonstrated by the figures for costs supplied earlier today by the noble and learned Lord. They demonstrate that the estimated annual costs of the Supreme Court will be 250 per cent of the present costs—in fact, somewhat over that. I doubt very much whether, at the moment, the fees of the Supreme Court even cover the £3.2 million quoted in the Statement as the current running costs of the Appellate Committee. Many of those costs are absorbed by the House of Lords and not allocated to the committee itself. Any attempt to achieve full fee recovery would mean that fees would have to rise to more than three times their present level.
I accept that the Government do not intend to load all that on to the Supreme Court fees, but to recover the rest by spreading them over litigation generally. But even if they get back only a small proportion by raising the Supreme Court fees, fees will still rise enormously. That is wholly wrong. Personally, I agree with my noble and learned friend Lord Ackner that the concept of full fee recovery from taxpayers who are paying taxes to provide courts is wrong in any case, but that is a wider topic for another day.
In the Supreme Court, an individual litigant will be seeking to clear up a point of law of general importance for the benefit of the administration of justice. Frequently—this is a point very much ignored by the Government—he will need to do that merely because governments have drafted their Bills lousily. That may not be the case for the Government in power at the moment; it may have been the previous administration. But an enormous quantity of litigation in the House of Lords arises because Bills are not drafted clearly enough.

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Why the individual litigant should pay enormous extra sums to clear up the mistakes of governments is something which neither I nor, I venture, anyone else could understand or justify, so I strongly support the amendment. The noble Lord, Lord Goodhart, may be marginally correct to point out that tying the fees to "real terms" would mean that they would not rise quite as fast as other fees, but that is a minor point which might make a difference of around I per cent. Therefore I support the amendment tabled by the noble Lord, Lord Kingsland, which I hope he will press.
Lord Lester of Herne Hill: My Lords, I am broadly sympathetic to the aim of the amendment but not to the means that have been employed. Perhaps I may raise a matter which, when the noble and learned Lord the Lord Chancellor deals with it, may help in his response to the debate.
Clause 44(3) provides:
"When including any provision in an order under this section, the Minister must have regard to the principle that access to the courts must not be denied".
The word "denied" is strong and absolute. However, the point that I wish to make is that surely the provision will have to be read and given effect compatibly with Article 6 of the European Convention on Human Rights. That article guarantees the right of access to courts and case law shows that there must not be any disproportionate hindrance. It goes beyond denial and refers to hindrance, whether that arises in the setting of fees or in the form of any other barrier.
I am worried about the word "denied" being read on its own. However, I hope that the noble and learned Lord the Lord Chancellor will be able to reassure the House that when this provision refers to "denied", it must be read subject to the right of access to courts with no disproportionate interference to that right of access. That would limit the Minister's powers because he would have to act compatibly with Section 3 of the Human Rights Act 1998 and the Article 6 right. That would go a long way towards reassuring me because it would be an overriding safeguard.
I should like to raise one other point in the light of what was said by the noble Viscount, Lord Bledisloe. Of course, it is not only fees that can create a barrier, but also any liability for the costs of the other side. One of the major barriers to going to the Supreme Court will be if the litigant in, let us say, a public interest case involving a constitutional matter, is faced with the liability to pay the Government's legal costs if he fails. I think that that could be dealt with by something like a protected costs order fashioned by the Supreme Court, which would mean that the House would not have to deal with it. But again, Article 6 of the ECHR, when read with Section 3 of the Human Rights Act, will provide a safeguard. I should like the Minister's reassurance that I am right about that.
The Duke of Montrose: My Lords, we seem to be discussing fees in great detail. They are a matter of interest to the whole legal profession and not simply to
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senior judges. The noble Viscount, Lord Bledisloe, referred to the much higher fees that may have to be charged as we begin to look at the costs now being proposed compared with those set out in the explanatory memorandum from the Law Society of Scotland to the Bill. It stated that the costs were likely to be between 0·8 and 0·1 per cent per civil case in each jurisdiction, but we are now talking about figures that presumably will be much larger than that. At that point we were told that,
"the total sum recovered by way of fees payable to the judicial office was just under £500,000, which certainly leaves quite a shortfall".
At the Committee stage we considered the implications for Scottish litigants. It turned out that this would all be filtered through the Scottish Parliament and might amount to 80 per cent of the cost of cases emanating in Scotland. The noble and learned Lord the Lord Chancellor was reluctant to be pinned down on this subject in Committee. Can he say whether the Government envisaged in their discussions with the Scottish Executive that they will have power to recoup some proportion of the costs of litigation emanating in Scotland, and whether this will be by fees payable through the Scottish courts if they decide to do so?
7.30 p.m.
Lord Brennan: My Lords, I raised some practical questions about fees at the Second Reading of the Bill. At the moment, a legally-aided petitioner to the House of Lords is unlikely to have to pay a fee. I assume that there are special arrangements for conditional fee agreements. When I last looked at this issue three or four years ago the fee for a private litigant to pursue a petition was quite substantial; it cost many thousands of pounds.
My question seeks information. I have looked at the list of appeals currently pending before the House, and more than half of them are judicial review claims involving asylum and government action. Will the fee structure make provision for the fact that with such a number of government departments involved they should have some obligation, win or lose, to make a contribution themselves—especially if the successful litigant achieves a point of public importance and of consequential economic benefit? That is my first point.
Secondly, in the distribution of moneys which are collected in this way, will any attempt be made to be selective? In the same list, there were about six tax appeals—almost entirely brought by extremely wealthy people or companies—which, in terms of the Law Lords' time and effort, will probably be expensive to hear. It would be extremely unrealistic, if not unjust, that such a litigant, expecting to recoup perhaps many millions of pounds, should pay the same fee as a litigant with a private matter which affects only him or her.
So my two questions are, first, what happens to government departments which are involved with the Law Lords; and, secondly, is some kind of selectivity

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envisaged so that the most expensive appeals—certainly in regard to recovery of tax and so on—should have a selected band?
Lord Falconer of Thoroton: My Lords, the amendment of the noble Lord, Lord Kingsland, would have the effect of freezing fees in the House of Lords—and, when it is transposed, in the Supreme Court—at exactly their current levels, subject to inflation. So the assumption is that they are at a perfect level at the moment and that they should remain so for the next 30,40 or 50 years. This is despite the point made by the noble Lord, Lord Brennan, that some litigants in the House of Lords, and subsequently the Supreme Court, may get considerable benefit from the litigation in which they are involved.
There was a period during the past 20 or 30 years when commercial litigation was most prominent in the House of Lords. It would not be right rigidly to say that fees must stay at their current level. The amendment proposed is inapposite.
Viscount Bledisloe: My Lords, surely that point is wrong. The amendment refers to the "average cost" of bringing appeals. It would therefore be open to double the cost of bringing tax appeals and to halve the cost of bringing matrimonial appeals. It allows you to discriminate against, or in favour of, a particular case. The amendment refers to the overall level of fees, not to each category of fee.
Lord Falconer of Thoroton: My Lords, that question should be put to the noble Lord, Lord Kingsland, rather than to myself.
But let us assume that that analysis of the amendment of the noble Lord, Lord Kingsland, is correct. Even so, it still falls foul of the objection that the amount currently taken in fees is exactly right. I do not accept that it is right. As the noble Lord, Lord Goodhart, said, the amendment would bring an inappropriate degree of rigidity.
The Government have always said that for civil work in the Supreme Court—not for devolution cases and not for criminal cases—we are committed to two principles: access to justice and full cost recovery. The latter principle was recently accepted by Parliament during the debate on the Courts Act on 12 November 2003.
Being mindful of the need to provide access to justice, I confirm the point made by the noble Lord, Lord Lester, that Clause 44(3) of the Bill would be read subject to Article 6. So he need have no fear about the use of the word "denied" because the principles that he outlined would apply.
Being mindful of the need to provide access to justice, rather than raise fee levels directly in the Supreme Court, the Government intend that the cost of civil work should be shared between the generality of all civil litigants appearing before the courts below the Supreme Court. In effect, this would mean placing a very small premium on all civil fees. But, again, we should not be restricted forever to the current level of
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fees in the Supreme Court. In the light of that explanation, the fears raised by noble Lords in relation to Supreme Court fees are misplaced.
A point was raised about whether there should be a process whereby there needs to be an affirmative resolution of both Houses before the fees are raised. This issue is covered in a later group of amendments but it will be useful to deal with it now. Noble Lords will note that considerable consultation is required before any fees are raised; they will note that it will be subject to Clause 44(3), a point raised by the noble Lord, Lord Lester; and they will note also that where for an individual litigant the fees are prohibitive, they will be waived or legal aid will contribute or pay the whole of them.
It would be wrong in principle—it would be unprecedented—for a fees order to be made subject to an affirmative resolution of the House of Lords. In those circumstances, both the amendment of the noble Lord, Lord Kingsland, and the proposal of the noble Lord, Lord Goodhart, that there should be an affirmative resolution of both Houses, are wrong. We provide sufficient protection.
The noble Lord, Lord Brennan, is right—a significant number of cases involve government departments, whether as appellants or respondents. There are no special provisions in relation to government departments funding particularly the House of Lords. I suspect that government departments are the most common litigants in many courts. Government departments have to pay their fees like anyone else. They make a greater contribution through paying more fees.
Unfortunately I have forgotten the noble Lord's second question.
Lord Brennan: My Lords, I asked about tax appeals and appeals which have large financial benefits.
Lord Falconer of Thoroton: My Lords, I leave open the possibility of looking again at the civil fees structure to see whether there is something in the noble Lord's point.
The noble Duke, the Duke of Montrose, asked about Scotland. The Scottish civil appeals contribution—which will be fairly small—to the Supreme Court will be made through a payment from the Scottish Executive, not by a premium being charged on Scottish civil litigants.
In the light of those remarks, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Kingsland: My Lords, I am very tempted not to do so because I believe my amendment is entirely appropriate for the various situations outlined by other noble Lords who have intervened in the debate. However, I will only win a vote if the party to my right—I hope its members do not object to being described as such—are with me.
I do not know whether or not they are with me—that will depend upon inter-party conversations which I have not yet had the opportunity to conduct—and I

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shall therefore beg leave to withdraw the amendment. However, I put the noble and learned Lord the Lord Chancellor on notice that I may return to this matter at Third Reading with either the same amendment or an appropriately composite amendment flowing from the negotiations which will take place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guiting: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8·40 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Consolidated Fund Bill
7.40 p.m.
Brought from the Commons endorsed with the certificate of the Speaker that the Bill is a money Bill, and read a first time.

Criminal Justice Act 2003 (Categories of Offences) Order 2004
The Minister of State, Home Office (Baroness Scotland of Asthal)The Minister of State, Home Office (Baroness Scotland of Asthal) rose to move, That the draft order laid before the House on 15 November be approved [First Report from the Joint Committee; 23rd and 24th Reports from the Merits Committee, Session 2003–04; 2nd Report from the Joint Committee on Human Rights].
The noble Baroness said: My Lords, this is the first order to be made under the power to prescribe categories of offences conferred on the Secretary of State by Section 103(4)(b) of the Criminal Justice Act 2003. This order supports the major changes contained in that Act, which will let juries hear a wider range of relevant evidence so enabling them to reach a just verdict.
Where a previous conviction is in the same category as the offence with which a defendant is charged, this will create a strong presumption that the previous conviction should be admitted, but this presumption will be rebuttable. The defence will still be able to oppose the admission of such evidence on the grounds of unfairness, and the court retains its discretion to refuse to admit such evidence where it would have an adverse effect on the fairness of the proceedings. So the general exclusionary power in Section 78 of the Police and Criminal Evidence Act 1984 will still be available.
It may be for the convenience of the House if I begin by summarising the evidence that has informed the Government's approach to the creation of the two categories of offences that are the subject of this order. As regards the theft category, the Government have noted that of the nearly 20,000 persons convicted of an offence within this category in the first quarter of the
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year 2000, some 14,500 persons were reconvicted within two years. I am sorry to say that nearly two-thirds of those persons were reconvicted of an offence falling within the same category of theft, as defined by the order.
In the case of the category of sex offences against young persons, the Government have been influenced not just by reconviction rates, but also by the evidence that sexual attraction to children can have a compulsive and life-long character. I make reference to further information in support of that contention in a letter that I wrote on 7 December to the chairman of the Joint Committee on Human Rights, a copy of which I have placed in the Library, and to which I shall refer further later on.
The purpose of creating categories of such offences is to assist the judge in determining whether to admit evidence of bad character. The Government's position is simple: the jury ought to be told about previous offending within these categories, where that is relevant to the defendant's propensity to commit such an offence.
I turn now to the report on this order that has been produced by the Joint Committee on Human Rights. For the avoidance of doubt about the Government's position on that matter, as I have already said, I placed a copy of a letter in the Library of your Lordships' House.
I am happy to reassure the House that the Government's view is that the order is compatible with the right to a fair trial in Article 6(1) of the European Convention on Human Rights. Our position, put simply, is that the order can and must be used in a way that is compatible with human rights. I use the auxiliary "must" advisedly because by Section 6 of the Human Rights Act 1998 the judge in any trial is under a clear statutory duty to act compatibly with the convention rights. Those rights include, of course, the right to a fair trial. The judge must, therefore, apply the order so as to achieve that end.
We note the Joint Committee's suggestion that the order is theoretically capable of leading to an unfair trial, but we would make two points about that suggestion. First, the Joint Committee is not saying that the order is incapable of leading to a fair trial; merely that it might not do so. In the Government's view, that analysis overlooks Section 6 of the Human Rights Act.
My second point is that we do not accept that the order will in any case mean an unfair trial. The categories contained in the order are simply for guidance to the court. The fact that an offence falls within one of the categories does not mean that evidence of bad character is automatically to be admitted on that account, or at all. That is because the judge retains the discretion to exclude such evidence under Sections 101(3), 103(3), and 112(3)(c) of the Act, as well as under the general exclusionary power in Section 78 of the Police and Criminal Evidence Act, which I have already mentioned. At the risk of labouring the point, the judge will be bound by the Human Rights Act to exercise his or her discretion in a way that is compatible with the convention rights.
The Joint Committee also raised the issue of judicial training. Again, my letter of 7 December sets out the position in some detail. Suffice it to say for the purposes of this debate that it is clear that the Judicial Studies Board is playing a very active role in ensuring that consistent training and messages are being delivered to judges and magistrates. Finally, so far as the committee's letter is concerned, I can confirm that rules of court have been made, and that they provide safeguards for defendants, both in terms of procedure and in the design of the forms.
I now turn back to the content of the order itself. Chapter 1 of Part 11 of the Act sets out the new provisions regarding the admissibility of evidence of previous misconduct, otherwise referred to as "bad character", in criminal proceedings and abolishes the old common law rules. The structure of these new provisions is as follows: evidence of a defendant's bad character will be admissible so long as it falls under one of the gateways set out in Section 101 of the Act. One of the gateways by which bad character evidence may be admissible is where such evidence is,
"relevant to an important matter in issue between the defendant and the prosecution".
That is set out in Section 101(1)(d) of the Act. A matter in issue includes the question of whether the defendant has a propensity to commit offences of the kind with which he is charged.
In order to guide the courts, we have made statutory provision so that this propensity may be established by evidence that the defendant has been convicted of an offence of the same category as the one charged. Section 103(4)(b) then confers on the Secretary of State power to create categories of offences by way of affirmative order. Such categories, however, must consist of offences of the same type. That is set out in Section 103(5) of the Act.
The two categories proposed in the order today are, therefore, for the guidance of the courts in determining whether evidence of the defendant's bad character is relevant to an important matter in issue between the defendant and the prosecution, namely whether the defendant has a propensity to commit offences that are of the same type. The categories shown in the schedule cover theft offences and sexual offences against children and young persons under the age of 16. These are the two areas of offending that cause the public particular concern, and where there is a strong risk of repeat offending. I beg to move.
Moved, That the draft order laid before the House on 15 November be approved [First report from the Joint Committee; 23rd and 24th reports from the Merits Committee, Session 2003–04; 2nd report from the Joint Committee on Human Rights].—(Baroness Scotland of Asthal.)
Lord Thomas of Gresford Lord Thomas of Gresford rose to move, as an amendment to the above Motion, at end to insert "but that this House calls on Her Majesty's Government to reconsider the policy furthered by the Order which undermines the presumption of innocence, will lead to wrongful convictions, and will thereby destroy public confidence in the criminal justice system".
The noble Lord said: My Lords, a man once described his regime as,
"fearsome towards the wicked, but favourable towards the good".
It was not Mr Blunkett who said that, although he very well might have, as it is the sort of thing that he says from day to day. It was said by Robespierre, head of the Committee of Public Safety in France, when, on 17 September 1793, he brought into force the Law of Suspects, which granted extensive powers to the police and denied suspects almost any rights at all.
In June 1794, the Committee of Public Safety passed a law which effectively reduced the trial process to a simple appearance before a judge, without any right to speak, and with very prompt sentencing and execution. The Public Prosecutor, Fouquier-Tinville, said with some satisfaction, "Heads are falling like roof tiles". Indeed, 17,000 heads fell within a very short period, in the Great Terror.
Mr Blunkett should beware, because within two months, Robespierre alienated his fellow revolutionaries and himself lost his head. He went too far. He insulted those with whom he was working and suggested that they, too, might meet the fate that he met. So his virtuous intentions in introducing these laws did not save him.
My amendment seeks to call into question the policy under which these regulations are laid. We debated the principles when the Bill was going through this House, but now that we are approaching the first implementation of its provisions, it is right for us to state our firm and principled objections. It remains, as we said at the time, bad law, even though the Bill was forced through by its Commons majority—that Monty Python foot that squashes down from time to time. It comes within the category that was very well described recently by the noble Lord, Lord Butler of Brockwell:
"The executive is much too free to bring in a huge number of extremely bad bills, a huge amount of regulation and to do whatever it likes—and whatever it likes is what will get the best headlines tomorrow. All that is part of what is bad government in this country".
However much the Government's poodle apologists have tried to laugh off the views of the noble Lord, Lord Butler, that is the truth of the matter. In this instance, the Government have ignored every informed body that they have consulted—the Law Commission, the judges through the Lord Chief Justice, the professions, the non-partisan organisations such as Justice and Liberty, and their own research.
To put the issue of acquittals in perspective, according to the Home Office publication Crime in England and Wales 2003/2004, there has been a fall in crime generally in this country, although violent crime and sex crimes are up. Even so, something over 5 million crimes, excluding traffic offences, were recorded by the police in that year. Of those crimes, 18·8 per cent only were detected. "Detected" means somebody being charged or summoned or cautioned, having an offence taken into consideration or receiving a fixed penalty notice. That means that 82 out of every 100 offenders who had committed an

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offence were not detected. Detection rates are at their lowest ever in crimes of violence and sexual offences, and of theft and burglary.
Of the detected crime, a very low percentage of recorded crime—about 8 per cent—ends up in the Crown Court. That is roughly 100,000 cases in a year, and of those, 65,000 plead guilty. Of those people who plead not guilty, well over half are found guilty anyway. But it is not always the jury which acquits. In a third of acquittals, the judge dismisses the case, either because the Crown offers no evidence or because he finds that there is insufficient evidence anyway. So acquittals by a jury amount to less than a quarter of contested cases, perhaps 8,000 to 9,000 cases in a year.
In magistrates' courts, where 94 per cent of detected crime is dealt with, the 1999 statistics, which were the most recent that I could put my hands on, state that 98·4 per cent of cases ended either in pleas of guilty or in convictions. Only 1·6 per cent ended in acquittal.
My point is that some might think that the court end of the criminal justice system works rather well and that the problem is not what goes on in the criminal justice system in the courts but the detection rate—the 82 people out of 100 who commit an offence and are never detected.
It cannot be assumed that every person acquitted is actually guilty. Some of the statements one hears from the Prime Minister and the Home Secretary seem to suggest that everybody who is acquitted has got off even though he is guilty. The CPS guidelines are to prosecute if there is more than a 50/50; chance of conviction—on a balance of probabilities, there will be a conviction. That is very short of establishing, to anyone's satisfaction, that a defendant has committed the crime with which he is charged. The problem of crime is not the acquittals of people who ought to have been convicted; it is in the detection rates.
What lies behind these regulations? We say it is a determination to increase conviction rates in cases which are brought to court, not by better investigation, preparation or presentation, but by deliberately prejudicing the mind of the magistrate or the individual juror against the defendant. I say "deliberate" because the Government's own research, commissioned by the Lord Chancellor's Department in 2000, found that magistrates' ratings of likely guilt were significantly affected by information about the defendant's previous record, particularly of a similar recent conviction. Dr Sally Lloyd-Bostock, who carried out the research, drew attention to an earlier study with simulated jurors, where the like effect was observed. She also found with jurors that there was a powerful negative effect for a previous conviction for indecently assaulting a child, even when that offence had nothing to do with the charge that the defendant was facing.
In its report of October 2001, the Law Commission referred to a Dutch study which indicated that 100 per cent of judges who heard the defendant's convictions in advance went on to convict him, while only 27 per cent of those who had no prior knowledge convicted.
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The rest of the evidence was identical. So to suggest that the production of a person's previous record will have no effect is contrary to the evidence which the Government's own research has produced.
We can compare that research with Mr Blunkett's statement on 25 October, when these regulations were introduced. He said:
"Trials should be a search for the truth and juries should be trusted with all the relevant evidence available to help them reach proper and fair decisions".
He says "proper and fair decisions", yet according to the Government's research, juries are being deliberately prejudiced.
The Law Commission set out a scheme with a number of key principles, in particular, that leave to adduce evidence of bad character would always be required from the court. That scheme—its approach and its safeguards—was ignored by the Government. The Government's proposals were attacked by Justice, by Liberty, by the Bar Council and by the Law Society. Only the Association of Chief Police Officers could be found to support them.
As for these regulations, the Merits of Statutory Instruments Committee raised queries about them, and the Joint Committee on Human Rights, in its report on 8 December, concluded that their provisions are not compatible with a fair trial.
I have had the benefit of reading the Minister's letter, and it does not answer the points made by the Joint Committee on Human Rights. In particular, it does not answer the Joint Committee's specific problem when it said that the exercise of the judge's discretion was not sufficient to make these provisions compatible with a fair trial. If there is no fair trial, there can be no safe conviction.
8 p.m.
Our criminal justice system depends on the trust and consent of the people. We believe in a fair and public trial. We believe in magistrates with firm roots in their communities, acting independently of political influence and control—a matter to which I will return. We believe in juries chosen by lot from the general population who will determine the truth in serious cases. To assist justice, the common law developed systems of checks and balances: importantly, the law of this country has always sought to ensure that a person accused of a crime is convicted not on prejudice, not by reason simply of evidence of propensity to commit crime, but on evidence of facts.
Witnesses, trusting in the fairness of the system, sometimes with considerable courage, come forward to give that evidence. The damage done by wrongful convictions to the public's trust in the system and the willingness of the people of this country to play their part—to come forward as witnesses, to be jurors and serve as magistrates—is considerable. There may not be a huge number of cases, but there are sufficient to cause disquiet. What is certain and what all those who know anything about this subject are agreed on—all

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those bodies to which I referred—is that the risk of wrongful convictions is significantly increased by these regulations and the Act on which they depend.
Why are these regulations being rushed forward now? They come into force tomorrow. There has been no training of judges. I met a recorder of considerable seniority this morning who said to me, "What on earth is this all about? What are we supposed to do?" The general consensus of opinion in the legal profession is that we have to wait for the Court of Appeal to sort out this Act. We must wait for determinations as to whether there has been a breach of the convention Article 61. We may even have to wait for pronouncements in the House of Lords and the European Court of Human Rights, so why are they being rushed forward in such haste? Why does the Home Office say in its release of 25 October that,
"the strong presumption should be that the conviction should be revealed to the jury"?
The Minister says, "The judge has a discretion which we are sure he will exercise", and "He will be governed by Article 61 so he is bound to ensure that there is a fair trial", so why is her office coming forward with the statement above? She did not say that at any stage while the Bill was going through this House. That is exactly the sort of message that is being conveyed to our judges. When they come to exercise their discretion, they will be thinking to themselves, "Well, the Home Office is saying that we have to have a strong presumption that this conviction will be revealed". Never mind about a fair trial. This is the important thing and that is what the prosecution will rely on.
Why has there been no training? Why are the regulations coming into effect tomorrow? These regulations are simply vote-grabbing headlines. "Headlines" is the word that the noble Lord, Lord Butler, used in his statement the other day. That is for the Government, but for the person who is wrongfully convicted as a result of having convictions that have little relevance—that he was convicted of theft 20 years earlier when he is facing a charge of burglary or robbery—it is the loss of reputation, the loss of employment and the loss of liberty with only paltry compensation, if he is lucky, at the conclusion. That is all justified on the populist premise that too many guilty people are getting away with it. I wearied your Lordships with the statistics of acquittals in this country to demonstrate that we are not dealing with a problem of acquittals and that the criminal justice system in the courts works well.
Judges will have a discretion to refuse to permit this sort of evidence to go before the jury. Let us hope that, contrary to the Home Office direction, they use that discretion. I am here hoping that a judge who considers an application at a later stage will realise that there is large parliamentary opposition to any attempt by the Government to impose a fetter on his discretion in terms of that Home Office statement of only a couple of weeks ago. Let us hope that judges will use their discretion in accordance with the traditions of the law of this country as it has existed for centuries and not in accordance with some populist policy of the
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moment to grab headlines for the purpose of an election. Only in that way will we achieve justice. I beg to move.
Moved, as an amendment to the Motion, at end to insert "but that this House calls on Her Majesty's Government to reconsider the policy furthered by the Order which undermines the presumption of innocence, will lead to wrongful convictions, and will thereby destroy public confidence in the criminal justice system".—(Lord Thomas of Gresford.)
Baroness Anelay of St Johns: My Lords, as a result of the words of the Minister and the noble Lord, Lord Thomas of Gresford, we have two matters before us that we need to debate tonight. First, the content of the statutory instrument itself—we should consider whether the drafting of that appropriately reflects the intention of this House when we debated the propensity during the Criminal Justice Act 2003. We also need to consider whether the provisions are logical and proportionate.
Secondly, after the Motion moved by the noble Lord, Lord Thomas of Gresford, we need to examine whether it is right to reopen the whole matter of the Government's policy of providing for a presumption in favour of admissibility rather than the current presumption against it.
I will first refer somewhat briefly to the Motion moved by the noble Lord, Lord Thomas of Gresford. I cannot follow his historical allegory or accuracy, but my memory goes back to the 2003 Act at least. At that stage, we on these Benches confirmed that we accepted with considerable caution that change to the original rules on evidence of bad character was required. On that basis, I do not resile from that position today. The question was how the provisions could be framed in such a way that we could avoid the chance of irrelevant material that was merely prejudicial and could not be probative going before a jury. The Government acknowledged then that merely to legislate for a free-for-all, whereby everyone's previous convictions automatically went in, would be wrong.
A judicial safeguard therefore does remain, and remains even in spite of this order. However, the noble Lord, Lord Thomas of Gresford, has raised the relevant point of the directions issued recently by the Home Office with regard to a strong presumption being required. I certainly look forward to an explanation of that from the Minister. Given our undertakings made at the time of the passage of the Criminal Justice Act 2003 and the existence of the judicial safeguard, I have to say that if the noble Lord, Lord Thomas of Gresford, were minded to divide the House tonight on his Motion, we would not be able to support him.
On the content of the statutory instrument itself, I make a procedural point that will not surprise the Minister. It goes to the heart of the concerns that I have had about the way in which this Government tend to introduce skeleton Bills with loads of orders in them. The Criminal Justice Bill was certainly not a skeleton; it was mammoth, but it did have a lot of orders in it.

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When the Government lay before us an order, they then tend to give us a little bit of a curate's egg; I beg the pardon of the right reverend Prelates for using that phrase. Part of the order tends to be apparently unobjectionable, or at least arguable, and the other part something that we find that we cannot accept. When an order is laid in that way, we find ourselves faced with the difficult constitutional and party political problem that if we throw out the baby with the bath water, that may well not be understood by the public. That is what has happened today. The Government are aware that in this House, we are reluctant to take the nuclear option. Since we are not allowed to amend a statutory instrument, if we do not like part of it, we would have to throw the whole thing out. There are certainly objectionable drafting provisions in today's order that have been piggy-backed on to provisions that we find properly acceptable.
During our debates, the issue of propensity became the key factor in determining admissibility. We understood at the time of the passage of the Criminal Justice Act 2003 that, of course, the Government would not only seek to introduce orders to describe categories of offence but that, in doing that, they would not necessarily simply compare one offence with another. It was obvious that they would seek to widen the scope and push the boundaries as far as they could. Indeed, we accepted that that would not necessarily be an objectionable use of the order-making power. The problem today is that the Government have drafted the first part of the order on theft in an illogical and potentially inequitable manner.
In the theft category, I am mystified by the Government's logic—as were my honourable friends in another place last week. Theft is a dishonesty offence; it is about taking someone else's property. If the common link is dishonesty, the thing that one immediately notices is that there is a large number of offences in the list that the Government have not included in the category. For instance, they have not included obtaining property by deception. Fraud offences are not included in the category—which is, again, rather odd. So on what basis did the Government decide that those offences do not go as to propensity for theft but that burglary does?
As the Joint Committee on Human Rights highlighted, it is possible to commit burglary without taking anyone's property—without committing a theft. I also note the letter from the Joint Committee on Statutory Instruments in another place to Mr Clayton at the Home Office. Paragraph (1)(a) asks:
"Does the Department agree that an offence of burglary or aggravated burglary does not involve stealing where the defendant's sole purpose in entering the building was, or is alleged to have been, to inflict grievous bodily harm, to rape or to do unlawful damage and he neither steals, nor attempts to steal, anything?"
It seems strange that burglary is in the list. We therefore believe that the first category of offence may be flawed, and that we may end up with the courts at a later stage pulling that part of the order to pieces.
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The second category of sexual offences is very wide, but at least there appears to be an inherent logic behind it, because it relates to sexual offences against persons under the age of 16. We acknowledge that it may follow logically that, if someone has a propensity to commit an offence of a sexual nature against somebody under 16, that may establish a commonsense link between the various offences. However, I must observe in passing that people who serve on a jury may find it odd that they will he made aware of an offence of rape against a person who is one day under the age of 16 but not of a string of offences of rape by that same person against persons who are one day over the age of 16. That shows the artificiality of the Government's determination to enforce the presumption of admissibility.
It will require the expertise and experience of the judiciary, on which the Minister has relied and I certainly rely, to determine how the provisions will be applied. That takes me to my last point, to which the noble Lord, Lord Thomas, has very properly referred—the training of the judges themselves. That is a matter which very much concerns me. I note that the 23rd report of the Merits of Statutory Instruments Committee of this House makes the point at paragraph 13, that,
"The House may wish to inquire further into the timing and nature of the training to be provided for judges and others in the criminal justice system".
The letter from the noble Baroness, Lady Scotland, to which reference was made earlier today, lists the training that it is anticipated will take place. It is a list that is long in referring to the people who are to be trained but short on any timetable, and signally lacking in any commitment that the Government expect training of all the judiciary to have taken place before the provisions take effect—and as the noble Lord, Lord Thomas of Gresford, said, that is tomorrow. I find that very disturbing indeed.
When my honourable friends in another place pressed this matter, the Minister, Mr Paul Goggins, did not seem very able to assist them in clarifying the situation. As the noble Baroness who wrote the letter is present, perhaps all will now become clear. As I was somewhat disappointed by the Minister's response in another place I took the liberty yesterday of approaching the Judicial Studies Board direct. I asked it to confirm when the training of the judiciary regarding the matters contained in this order would be completed. It confirmed by e-mail that the seminars will not be completed until 23 March next year. My question therefore has to be: why did the Government decide to press ahead with this order today instead of following what must surely be good practice and waiting until they could be assured that the training of the judiciary was in place? This is not an auspicious start to what I am sure will be a flood of further orders.
8.15 p.m.
Lord Ackner: My Lords, in my submission the Home Office press release of 25 October is grossly improper. The Home Office obviously accepted that it would be bound to put in a provision that gave the

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judges discretion in order to make sure that justice was done. Accordingly, it was provided by Section 101(3) as follows:
"The court must not admit evidence under subsection (1)(d)or(g)if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
That was providing the judiciary with a clear discretion that they must see that justice was done. It is accordingly in my view grossly improper to indicate by a press release that,
"the strong presumption should be that the conviction should be revealed to the jury".
The Executive are not entitled, in giving a press release or any other release, to make a comment which has no statutory support purporting to reduce the discretion upon the courts to do justice, which not only exists without statutory support but where there is specifically statutory support for that.
The same press release gives the game away by saying that the order will,
"enable juries to have much greater access to information about a defendant's previous convictions and other misconduct where such information is relevant and likely to throw new light on a case"—
I emphasise the following words—
"without unduly prejudicing the fairness of the trial".
What an extraordinary phrase to use. According to this, there is no harm in prejudicing the fairness of the trial provided you do not do it "unduly". What on earth does "unduly" mean? I suppose it means provided that you do not ignore what we, the Executive, tell you is the strong presumption that you should reveal the conviction to the jury.
With regard to the question of training, I adopt all that has been said on the issue of timing. Your Lordships may remember that the Lord Chief Justice and the judges of the Court of Appeal Criminal Division discussed this among themselves on Report on 4 November 2003. In that debate, I quoted from the memorandum that was provided by the Lord Chief Justice. According to the statement that was supported by the Lord Chief Justice and the judges of the Court of Appeal Criminal Division,
"The provisions as a whole are extremely confusing and will prove very difficult to interpret. They will result in lengthy arguments in court, more appeals, and more scope for technical errors on the part of the trial judge that could give rise to convictions being overturned. Evidence that would previously have been considered neither admissible nor relevant will apparently be treated as both admissible and relevant".—[Official Report, 4/11/03; col. 730.]
This is a manifestation of an excessively authoritarian department—the Home Office—supported, sadly, by the Prime Minister. It purports to deal with the enforcement of its own clauses, which are designed, as has been pointed out, to increase the rate of convictions. In my respectful submission, this is the type of legislation that was so strongly criticised by the
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noble Lord, Lord Butler, in the recent interview reported in the last issue of the Spectator. Accordingly, I support the Motion moved by the noble Lord.
The Lord Bishop of Worcester: My Lords, I confess that I feel a propensity coming on, and some anxiety that the Minister may notice it. My propensity is not to feel reassured by the immensely erudite and sincere reassurance that she has offered about these provisions. I have three reasons for not feeling reassured.
First, and I have mentioned this before, her words contrast quite strongly with the rhetoric that is used to publicise measures of this kind. What we are told is a benign power is presented to the public as a further act that will be tough on crime and will do something about it. It is because of the rhetoric that is used to commend this to the general public that I fear that her reassurance may not count for as much as we would like.
My second reason for not finding her reassurance reassuring this evening is that we have already had launched upon the political and legislative process a further Criminal Justice Bill. Therefore, it is hard not to see the order as one in a series of measures that has no end, because the stakes will always be raised. I have to say to the noble Baroness, Lady Anelay, that accepting the single steps cautiously or with hesitation is less than what is required in the face of that tendency.
My third reason for finding the Minister's reassurance unreassuring is the curious way in which she used her statistics. Research shows, she told us, that those who are convicted of theft or attacks on children are very likely to reoffend. That seems a strange example of what I think that I was taught as the undistributed middle—we are trying a burglary; burglars very often reoffend; this person has committed burglary; therefore he is likely to have committed this one. Even as a logical argument, that does not work.
I am reminded of some words of the noble Lord, Lord Thomas of Gresford, that he did not repeat this evening but that I found very telling in an earlier debate. He asked the noble and learned Lord the Lord Chancellor for guidance on the specific question of how much weight was to be attached by a jury to the fact of previous convictions, but answer came there none. That raised for me the question of whether this kind of legislation attacks the very heart of the Christian understanding of what it is to be a person that lies at the heart of our legal system; namely, the belief that human beings cannot be dealt with as systems of statistical correlations or inductively assessable processes. Every person who ceases to be a burglar—who reforms—has a point at which he or she has committed his or her last burglary. Every burglar who has committed no previous offences presumably commits a first offence. People's lives are not to be decided by reference to what they once did.
Of course I am not a lawyer but, as I understand it, where aspects of the crime being considered bear the footprint—metaphorically as much as literally—of a

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particular person's activities, that can already be made known because it actually is evidence. However, I find it extremely disturbing that we should, little by little, move into becoming a society where rhetoric founded on an undistributed middle is used as the basis to justify taking courses of action that will undoubtedly have a very serious effect on those many inadequate and inarticulate people who come to stand trial. I support the amendment.
Lord Dholakia: My Lords, I thank the noble Baroness for the explanation that she gave about the order. I intend to be very brief. I support the case made by my noble friend Lord Thomas of Gresford, and do not wish to repeat the arguments that he and the noble Baroness, Lady Anelay, advanced.
My noble friend has been consistent in the arguments in support of his amendment. They are not soft on crime or criminals, but are about the protection of the individuals facing criminal prosecutions. In the debate on 4 November 2003, as can be found at col. 729 of Hansard, he set out clearly the need to ensure that the onus must be placed on the prosecution to apply to a judge to declare previous convictions if those are relevant to put before the jury. It is for the judge to rule upon it. Why, therefore, is it necessary to place the onus on the defendant to raise the issue of his convictions before the jury?
Let me take up two issues that have not been addressed in your Lordships' House. I am concentrating on this point due to my concern about people tried in Crown Courts, even if in some cases magistrates' courts are more appropriate. There is ample evidence that a section of young people in our community have an adversarial relationship with the criminal justice system.
8.30 p.m.
A number of previous researches found that black people were more likely to opt for a trial before the judge and jury, rather than being tried by a panel of magistrates in court. It hinges on two factors. They are more likely to trust 12 jurors than three magistrates. Also, the legal advice that they receive is likely to point to higher courts because the defendant is more likely to be acquitted. One simply has to look at the Home Office research to confirm that. The order alters that balance, and that destroys the confidence placed in our courts.
There is another concern that I need to mention. Is there any mention of a cut-off period for information to be given to a jury? There are such things as spent convictions. Will they be referred to, or is there a time after which such information is not relevant? It is wrong to leave that discretion to judges. Parliament must be clear on that point, so that there is a uniform application of the practice throughout all our courts.
I believe that being obliged to reveal their past misdemeanours is more likely to disadvantage people before a jury. It would be a tragedy if the confidence in our jury system was lost, thus further creating a rift
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between the criminal justice system and the ethnic minority community. The system survives because of the trust that it commands. A change is likely to be counterproductive in the long run.
Lord Phillips of Sudbury: My Lords, this is an important order in respect of an extremely important piece of legislation, and I shall speak in favour of the Motion moved by my noble friend Lord Thomas of Gresford, which all other speakers so far have strongly supported, except the noble Baroness, Lady Anelay. Even the noble Baroness was ambivalent in her point—indeed, she made some strong points in favour of the Motion.
I also wish to make it clear that no one promoting the amendment is soft on crime, and I hope that no political capital will be made out of the fact that the Liberal Democrat Benches once again appear to be coming to the aid of those who are accused of crime. In fact, we are coming to the aid of the fair trial process, and we do that on a particular and fundamental basis: it has been the long-standing tradition of our criminal law system that the balance between prosecution and defence should clearly come down in favour of avoiding false convictions. That is not out of softness but out of the realisation that a criminal system that habitually convicts innocent men and women will not withstand time and will come swiftly into public disrepute. Did we not have some striking examples of that in some of the Irish bombing cases, which did huge damage to our system?
I also pay tribute to the noble and learned Lord, Lord Ackner, who is indefatigable and indomitable in his support of that principle. It puts me and people half his age to shame that he has done his homework with such assiduity and produced tonight that scandalous press release which, I am sure, the noble Baroness, Lady Scotland, will not attempt to defend. That is a telling warning of what rides on this matter.
In the matter of public disquiet about crime, which has recently been raised by certain burglary cases and the right to shoot burglars, the Attorney-General, the noble and learned Lord, Lord Goldsmith, struck the right note in that debate, in contradistinction to the Prime Minister. All that is germane to the fact that the provisions will have huge tabloid support because they appear to make life more difficult for those presumed to be guilty. Of course, the presumption of guilt is the very thing that we are trying to avoid in the fair trial process.
I was a little concerned at the way in which the noble Baroness led the debate. She referred to the cases that had been studied in order to ascertain the recidivism rates. I thought that my noble friend Lord Thomas made some telling responses to that. The fact is that the Home Office reply to the report of the Joint Committee on Human Rights did not deal with the question raised. The committee asked for research to be carried out to show whether the commission of one type of offence in the burglary schedule would or would not relate to other types of offence in the burglary schedule. The letter that the noble Baroness wrote on 7 December to Jean Corston in the other

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place simply gave bare statistics of offences in the theft category without attempting to show whether there was any relevance between one type of offence in the schedule and another.
Because it is not yet on the record but should be, I want quickly to read the conclusion of the Joint Committee on Human Rights, published on 8 December. The committee said:
"We are concerned that the draft Order may be incompatible with the right to a fair trial in Article 6(1) [of the European Convention on Human Rights] because it appears to make admissible in criminal proceedings evidence which is both irrelevant to any issues in the case and highly prejudicial to the defendant. We are therefore concerned that the draft Order may be unlawful".
That should go on the record because we on these Benches agree with it.
Perhaps I may now mention one of the reassurances referred to by the right reverend Prelate and advanced by the noble Baroness, Lady Scotland. The noble Baroness said that, under Section 101(3) of the 2003 Act, the court must not—quite fairly, she emphasised the words "must not"—admit evidence under subsection (1)(d) or (g). I shall read on:
"if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would"—
not "might"—
"have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
In my view, that is a very tough test. Again, I suspect that we on these Benches are not at all happy—for the same reasons that the Joint Committee was not happy—to leave the matter to the discretion of the judges.
Finally, I remind the House that, in this case, judges means lay magistrates, for whom I have the greatest respect. They do a fantastic and wonderful job. One is not merely talking here of justices' clerks; one is talking of legal advisers operating under justices' clerks, who may not have legal qualifications. How will legal advisers get their head around this extraordinarily complex legislation, bearing in mind that ultimately they can only render advice and cannot direct their justices and bearing in mind, too, that the submissions on admissibility will, I think I am right in saying, be heard with the justices present—that is, in the presence of those who will have to exclude from their minds the previous convictions, if the clerk advises them so to exclude or if they themselves decide to exclude? I say that, again, while emphasising my respect for them.
The measures and schedules that we have debated tonight —particularly the theft schedule—will make life impossibly difficult and sadly will lead to injustices that will rebound on the measure.
Baroness Scotland of Asthal: My Lords, I say straight away that, in opening the debate on the order, I tried to be absolutely clear about the issues with which the court would have to deal. I hope that noble Lords will accept that the statements made by me at
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the Dispatch Box have been accurate statements of the way in which the law is drafted and will now take effect.
Of course, I acknowledge the irresistible temptation, particularly because of the passion that the noble Lord, Lord Thomas of Gresford, and others have for this issue, to rerun the long, lengthy, complex debates that we had during the passage of the Bill. With the greatest respect, we have had those debates and the decision of Parliament was that the Bill should become an Act, and it is the Act which now governs our deliberations.
I was intrigued by the humorous allusion of the noble Lord, Lord Thomas of Gresford, to my right honourable friend the Home Secretary and Robespierre, but they bear no relation to each other and any such reference would be wholly inaccurate and without foundation.
I shall put the issues raised into context and reassure the House that these provisions have not been brought about to increase conviction rates by deliberately prejudicing the minds of jurors or those who adjudicate upon the matter as magistrates. I also remind the House that magistrates now have to make such decisions from time to time to exclude evidence as being irrelevant and then determine the matter. I remind your Lordships that nothing very much in that regard has changed.
The importance of the provisions is that the court will now be in a position to admit relevant evidence. Much of the value of that evidence is probative and is not outweighed by its prejudicial effect. I say to the noble and learned Lord, all probative evidence is, by its very nature, prejudicial to the defendant because it tends to indicate guilt rather than innocence. I am sure that those who drafted "unduly prejudicial" were referring to any improper or undue prejudicial influence that should not be included. Of course, prejudice flows from probative evidence that demonstrates an individual's guilt. To that extent; that is what we are speaking about.
I hear what the noble Baroness, Lady Anelay, says about this being a curate's egg. I do not necessarily agree with her on that, but it is a point that she has made and that we shall consider when looking at orders in the future, whether or not they are best served by separating out the issues. There is cogent evidence in relation to theft provisions to demonstrate why we have included them. I am sure that the noble Baroness will notice that the Joint Committee raised the issue of burglary, particularly because there are various types of burglary. In bringing forward this order, we have confined ourselves to burglaries that involve theft as opposed to other acts. I hope that the noble Baroness and your Lordships will feel that that is a proper restraint on our part.
On the issues of logicality, we say that they are logical. Training was raised by a number of noble Lords. The material that the judges will have to assist them in making an assessment has been produced by the Judicial Studies Board. We all applaud the work carried out by the Judicial Studies Board because

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invariably it is of a high quality, it assists judges in their determination, and it provides a pro forma which assists them in its application, so consistency is thereby maintained. It is right that the training will take some time and that 23 March is a speedy disposal of the matter. The trainers who will be responsible for training those judges have all now been trained.
I gently remind noble Lords—and I know that the noble and learned Lord, Lord Ackner, remembers it well—that there was a time when our judges could be relied on, even without specific training from the Judicial Studies Board, to apply the law with accuracy and with skill and to exercise their own erudite judgment in so doing. I know that a number of other noble and learned Lords present may have had similar experiences and recollections. Indeed, there was a time when judges felt their omnificence was such that no one could possibly trespass on training them.
Of course those days are gone, but by the same token I say without any fear of contradiction that our judges can be relied upon to read the training material and to apply it consistently, notwithstanding the fact that all the training may not be immediately available. Lay justices will have the benefit of training. I remind the noble Lords, Lord Phillips and Lord Dholakia, that justices' clerks will also have proper training and be able to discharge those matters.
I hear what the right relevant Prelate says in relation to rhetoric. But rhetoric, thankfully, does not prevail in our courts—the law and its application does. My other experience of our judges is that they are fairly resistant to rhetoric which is not founded on the law. So I think that we can be reassured by that.
The right reverend Prelate says that it is a series of measures that has no end. It does. The reforms we have put in place are practical. We have created a new framework and the tools and we ask people to apply them. I say to the noble Lord, Lord Thomas of Gresford, that if one looks at the changes that have been made, we have a reduction in ineffective trials; we are introducing charging; and we are introducing victim and witness units across the 42 areas. Those improvements are real and go toward improving justice and justice delivery; and they complement the other measures contained here.
I know that the noble Lord, Lord Dholakia, is concerned about the disproportionality that might appear. That matter has caused us a great deal of anxiety and care and we intend to be assiduous in making sure that the system applies equally and fairly to all.
The provisions of the Human Rights Act must not be forgotten. Article 6 is an important sanction, as is PACE. We believe that those two together will ensure that, in the proper exercise of discretion, evidence which is probative and relevant is admitted and that evidence which is not probative but is overall prejudicial in its effect will be excluded. Our law, therefore, remains intact as far as that is concerned.
Lord Thomas of Gresford: My Lords, I think that the right reverend Prelate the Bishop of Worcester put his
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finger on it—the assurances given by the Minister are not matched by the rhetoric with which these particular provisions come forward. We on these Benches are happy to stand alone on the principle of fair trials and justice and we take comfort from the support of the right reverend Prelate and noble Lords on Cross Benches and elsewhere in the House when we take that stand.
We have worked very constructively with the noble Baroness, Lady Anelay, on this Bill and on many others and I know we will do so in the future. But—if she may take a message back to others—there is no room on the authoritarian Right of this Government and there is no point in going along with this Government in the hope of outflanking them on the Right. You will not do that. So, on that basis I am proud on behalf of these Benches to divide the House on this issue.
8.50 p.m.
On Question, Whether the said amendment to the Motion shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 90.

Division No. 1

CONTENTS

Ackner, L.

Linklater of Butterstone, B.

Alliance, L.

Livsey of Talgarth, L.

Ampthill, L.

Mackay of Clashfern, L.

Barker, B.

Maclennan of Rogart, L.

Carlile of Berriew, L.

McNally, L.

Carlisle of Bucklow, L.

Maddock, B.

Chester, Bp.

Mar and Kellie, E.

Craig of Radley, L.

Miller of Chilthorne Domer, B.

Dholakia, L.[Teller]

Northover, B.

Ezra, L.

Phillips of Sudbury, L.

Falkland, V.

Shutt of Greetland, L.

Falkner of Margravine, B.

Smith of Clifton, L.

Garden, L.

Thomas of Gresford, L. [Teller]

Goodhart, L.

Thomas of Walliswood, B.

Hamwee, B.

Tordoff, L.

Harris of Richmond, B.

Wallace of Saltaire, L.

Hooson, L.

Walmsley, B.

Howe of Aberavon, L.

Walpole, L.

Howe of Idlicote, B.

Watson of Richmond, L.

Lawson of Blaby, L.

Williams of Crosby, B.

Lester of Herne Hill, L.

Worcester, Bp.

NOT-CONTENTS

Amos, B.(Lord President of the Council)

Clarke of Hampstead, L.

Corbett of Castle Vale, L.

Andrews, B.

Crawley, B.

Archer of Sandwell, L.

David, B.

Ashton of Upholland, B.

Dean of Thornton-le-Fylde, B.

Bassam of Brighton, L.

Dixon, L.

Bernstein of Craigweil, L.

Donoughue, L.

Blackstone, B.

Dubs, L.

Borrie, L.

Elder, L.

Brett, L.

Evans of Parkside, L.

Brooke of Alverthorpe, L.

Evans of Temple Guiting, L.

Brookman, L.

Falconer of Thoroton, L. (Lord Chancellor)

Burlison, L.

Campbell-Savours, L.

Farrington of Ribbleton, B. [Teller]

Carter, L.

Carter of Coles, L.

Filkin, L.

Clark of Windermere, L.

Gale, B.

1275

Gilbert, L.

Massey of Darwen, B.

Golding, B.

Maxton, L.

Goldsmith, L.

Morgan of Drefelin, B.

Gordon of Strathblane, L.

Parekh, L.

Gould of Potternewton, B.

Pendry, L.

Grocott, L. [Teller]

Pitkeathley, B.

Harris of Haringey, L.

Ramsay of Cartvale, B.

Hart of Chilton, L.

Rea, L.

Haworth, L.

Rendell of Babergh, B.

Hilton of Eggardon, B.

Rooker, L.

Hollis of Heigham, B.

Rosser, L.

Howie of Troon, L.

Rowlands, L.

Hughes of Woodside, L.

Royall of Blaisdon, B.

Hunt of Chesterton, L.

Sainsbury of Turville, L.

Hunt of Kings Heath, L.

Sawyer, L.

Irvine of Lairg, L.

Scotland of Asthal, B.

Janner of Braunstone, L.

Simon, V.

Jones, L.

Smith of Leigh, L.

Layard, L.

Symons of Vernham Dean, B.

Lea of Crondall, L.

Taylor of Blackburn, L.

Leitch, L.

Tomlinson, L.

Lockwood, B.

Triesman, L.

Lofthouse of Pontefract, L.

Truscott, L.

McIntosh of Haringey, L.

Tunnicliffe, L.

McIntosh of Hudnall, B.

Varley, L.

MacKenzie of Culkein, L.

Wall of New Barnet, B.

McKenzie of Luton, L.

Warner, L.

Masham of Ilton, B.

Whitaker, B.

Mason of Barnsley, L.

Wilkins, B.

Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.

Constitutional Reform Bill
9 p.m.
Further consideration of amendments on Report resumed on Clause 44.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No.141A:
Page 19, line 3, leave out subsection (4) and insert—
"(4A) Before making an order under this section, the Minister must consult all of the following—

(a) the persons listed in subsection (4B);

(b) the bodies listed in subsection (4C).

(4B) The persons referred to in subsection (4A)(a) are—

(a) the President of the Supreme Court;

(b) the Lord Chief Justice of England and Wales;

(c) the Master of the Rolls;

(d) the Lord President of the Court of Session;

(e) the Lord Chief Justice of Northern Ireland;

(f) the Lord Justice Clerk;

(g) the President of the Queen's Bench Division;

(h) the President of the Family Division;

(i) the Chancellor of the High Court.

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

(a) the General Council of the Bar of England and Wales;

(b) the Law Society of England and Wales;

(c) the Faculty of Advocates of Scotland;

(d) the Law Society of Scotland;

(e) the General Council of the Bar of Northern Ireland;

(f) the Law Society of Northern Ireland."

The noble Baroness said: My Lords, in moving Amendment No.141A, 1 shall speak also to the other amendments in the group standing in the names of the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour, and government Amendment No.150A.
The amendments tabled by the noble Duke add to the list of those required to be consulted in relation to the exercise of certain powers affecting the operation of the Supreme Court. After considering the arguments on Amendments Nos. 142 and 143 in Committee, the Government have concluded that there is merit in them—so much so that we have tabled government amendments to very similar effect.
Amendment No. 141A has been drafted to ensure that it achieves the same end as Amendments Nos. 142 and 143, tabled by the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour—the addition of the Lord Justice Clerk and the legal professional bodies to the list of those who must be consulted.
The opportunity has been taken, however, to separate out the judges to be consulted from the bodies to be consulted, with a consequent shortening of the rather long single list which would otherwise result. I hope that noble Lords will agree that this makes for an improvement in the structure of the clause. I therefore hope that the noble Duke and the noble Baroness will feel able to withdraw their amendments.
Amendment No. 150A adds the Lord Justice Clerk to the list of senior judges in Clause 48, the significance of which is that the "senior judges" must be consulted about the selection of suitable candidates for appointment to any vacancy in the Supreme Court, subject to their not being candidates themselves or members of the selection commission.
The amendment was, in a very slightly different form, originally tabled by the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour, in Committee and has been brought forward on Report in the same format. There was considerable support for this proposal in your Lordships' House and, on reflection, the Government agree with the arguments of the noble Duke and the noble Baroness and have now tabled an amendment to give effect to that agreement. On that basis, I hope that the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour, will agree to withdraw their amendments. I beg to move.
The Deputy Speaker (Lord Ampthill): My Lords, I should remind the House that if this amendment is agreed to I cannot call Amendments Nos.142 and 143.
The Duke of Montrose: My Lords, I thank the Minister for her words. This was always going to be a sensitive subject. I am glad that, through the amendment, the Government are opening up the question of consultation to a fairly wide list of responsible bodies. This includes those to whom I and my noble friend Lady Carnegy of Lour referred in our amendment in Committee. I welcome the changes in the amendment.

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The Minister has accepted the contents of Amendment No. 150, but in Amendment No. 141A the Government have placed the Lord Justice Clerk one rung further down the ladder from the position that I suggested. Perhaps the Minister can explain the system used to determine those matters and whether I should accept the difference.
Baroness Ashton of Upholland: My Lords, if I could answer the noble Duke's question, he can be assured that I would. I shall endeavour to find out, but I suspect that it has nothing to do with anything other than the appropriate way in which these lists are drawn up.
On Question, amendment agreed to.
[Amendments Nos. 142 to 144 not moved.]
Clause 45 [Fees: supplementary]:
[Amendment No. 145 not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 145A:
After Clause 45, insert the following new clause—
"ANNUAL REPORT
(1) As soon as practicable after each financial year, the chief executive of the Supreme Court must prepare a report about the business of the Supreme Court during that year and give a copy of that report to the following persons—

(a) the Minister;

(b) the First Minister in Scotland;

(c) the First Minister and the deputy First Minister in Northern Ireland;

(d) the Assembly First Secretary in Wales.

(2) The Minister must lay a copy of any report of which a copy is given under subsection (1)(a) before each House of Parliament.
(3) Each of the following is a "financial year" for the purposes of this section—

(a) the period which begins with the date on which this section comes into force and ends with the following 31 March;

(b) each successive period of 12 months."

On Question, amendment agreed to.
Clause 46 [Records of the Supreme Court]:
[Amendment No. 146 not moved.]
Clause 47 [Proceedings under jurisdiction transferred to Supreme Court]:
[Amendment No. 147 not moved.]
Schedule 9 [Proceedings under jurisdiction transferred to Supreme Court]:
[Amendment No. 148 not moved.]
Clause 48 [Interpretation of Part 2]:
[Amendments Nos. 149 and 150 not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No.150A:
Page 19, line 40, at end insert—
"(ea) the Lord Justice Clerk;"
On Question, amendment agreed to.
[Amendments Nos. 151 to 155 not moved.]
Schedule 10 [The Judicial Appointments Commission]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 155A:
Page 205, line 24, at end insert "of a county court, a District Judge (Magistrates' Courts) or a person appointed to an office under section 89 of the Supreme Court Act 1981"
The noble Baroness said: My Lords, these amendments to Schedule 10 are technical and drafting amendments to clarify and define what is meant by certain judicial offices. They also tidy up some of the drafting in the Bill.
Amendment No. 155A further clarifies and defines what is meant by the office of district judge in the context of judicial membership of the Judicial Appointments Commission. The district judge member of the commission will include the offices of district judge of the county court, a district judge in magistrates' courts or a person appointed to an office under Section 89 of the Supreme Court Act 1981. Those offices are: Senior Master of the Queen's Bench Division; Chief Chancery Master; Chief Taxing Master; Chief Bankruptcy Registrar; Senior District Judge of the Family Division; Master, Queen's Bench Division; Queen's Coroner and Attorney and Master of the Crown Office and Registrar of Criminal Appeals; Admiralty Registrar; Master, Chancery Division; Registrar in Bankruptcy of the High Court; Taxing Master of the Supreme Court; District Judge of the Principal Registry of the Family Division; and Master of the Court of Protection.
Amendments Nos. 156A and 156G are consequential drafting amendments applying the improved definition to Schedule 10 to the Bill, so a full definition is no longer required in paragraph 6(1), and linking it to the reference to district judge in paragraph 11 of Schedule 10, which sets out the seniority of the judicial members of the commission.
Amendment No. 155C is a technical amendment to ensure that the lay justice member of the Judicial Appointments Commission should be just that. It provides that holders of offices listed in Part 3 of Schedule 12 who may also have been appointed justices of the peace are not eligible for membership of this category. The effect is to exclude anyone from being a lay justice member who is a justice of the peace who holds any other office listed in the Bill. The only exception is the office of general commissioner of income tax. That role has a number of similarities to the role of justice, for example. The members of that tribunal are not legally qualified, and sit in benches to consider cases, so it would clearly not be right for dual membership to disqualify them for commission membership.
Amendment No. 156K is a drafting improvement. We believe that the existing wording might give rise to some uncertainties, for example, it might be contended that the commission climes into existence when the commissioners are appointed, not when the commencement order comes into force. The amendment removes the ambiguity. I beg to move.
On Question, amendment agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 155B:
Page 205, line 32, leave out from "is" to "employed" in line 35.
The noble Lord said: My Lords, in moving Amendment No. 155B, I shall speak also to the other amendments that have been grouped with it. Section 49 of the Bill provides for the Judicial Appointments Commission. Schedule 10 is about the commission. The commission consists of a chairman and 14 other commissioners, appointed by Her Majesty at the recommendation of the Minister. Paragraph 3 of Schedule 10 provides that a person must not be appointed as a commissioner if he is a member of this House. The purpose of my amendment is to remove that sweepingly broad disqualification so that Cross-Benchers who are not tainted, as, for example, I am, by being political Peers are eligible to become members of the commission. I fully recognise why Members of the other House are disqualified and I also recognise why those who are still political would not be appropriate to be members of the commission.
I shall briefly explain what each amendment does. Amendment No.155B amends paragraph 3 of Schedule 10 to delete the prohibition on appointing Members of the House as commissioners.
Amendment No. 156B would amend paragraph 8(9)(e) of Schedule 10, which provides that the first member of the panel selecting commissioners may not be a Member of either House of Parliament and substitutes a prohibition on Members of the House of Commons.
Amendment No. 156C would amend paragraph 8(10) of Schedule 10, which provides that a person may not be the third member of the panel selecting the commissioners if he is a Member of either House of Parliament. It substitutes a prohibition on Members of the House of Commons.
Amendment No. 156D tidies up paragraph 8(11) of Schedule 10 and clarifies that the sub-paragraphs of paragraph 11 are the questions which the Minister and the Lord Chief Justice or Head of Division must consider.
Amendment No. 156E would insert a new sub-paragraph (c) into paragraph 8(11) of Schedule 10, requiring the Minister and the Lord Chief Justice, in selecting the first member of the panel that will choose commissioners, to consider whether the extent of a person's party political activity or affiliation makes them unsuitable for appointment as a member of the panel. That is designed to ensure that, even following the removal of the prohibition on Peers as members of the panel, Peers who are associated with a political party will not be selected. The provision also applies to non-Peers being considered for the post. So someone who was a Member of neither House of Parliament but was a prominent political activist outside Parliament should not be selected as a first member of the panel.
The amendment would also insert a new paragraph, 8(12), which would ensure that the question set out in paragraph 8(11), including new sub-paragraph (c),
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would also be considered by the first member before nominating a person to be appointed as the third member of the panel.
Finally, Amendment No. 156F would insert a new sub-paragraph (c) into paragraph 10(3) of Schedule 10, requiring the panel, in selecting members of the commission, to consider whether the extent of a person's party political activity or affiliation makes them unsuitable for appointment as a commissioner. It is designed to ensure that even following the removal of the prohibition on Peers as members of the panel, Peers who are associated with a political party will not be selected. It also applies to non-Peers, as I have said, being considered for the posts, so someone who was a Member of neither House of Parliament but was a prominent political activist outside Parliament would not be selected as a commissioner. I beg to move.
Baroness Ashton of Upholland: My Lords, I thank the noble Lord, Lord Lester of Herne Hill, for the amendments. We have been concerned, and are still concerned, to prevent the new Judicial Appointments Commission being subject to party political domination or influence. The Bill therefore prevented Members of either House of Parliament being appointed as members of the commission or being members of the appointing panel that will choose the commissioners.
On reflection, we agree that many distinguished figures in public life, with the experience and qualities that might well suit them to the work of the commission, are Cross-Bench Peers. There is no good reason why those of your Lordships' House without clear party political affiliations should be barred from membership of the commission. As the noble Lord, Lord Lester, has indicated, the amendments would remove the restriction on Peers and put in place instead a test of whether someone, whether or not they are a Peer, has past or present party political activities or associations that make them unsuitable for appointment.
In addition, we intend that the terms and conditions of commissioners and their code of conduct will make it clear that they are barred from party political activities. Any commissioner who wished to pursue a party political career would have to resign.
I should take the opportunity to inform your Lordships, with regret, that Dame Rennie Fritchie, the Commissioner for Public Appointments, has decided that she will not, after all, be able to chair the panel selecting commissioners, as was previously announced. That is because her tenure has been extended until next July, when the process of selecting commissioners is likely to be under way, and it would not be appropriate for her to take part in a process about which she might have to consider complaints. Previously, Dame Rennie's term of office had been due to come to an end in February, so she would have been available to chair the panel.
The noble and learned Lords the Lord Chancellor and the Lord Chief Justice have yet to select a new first member of the panel, but the amendments tabled by

1281
the noble Lord, Lord Lester, would allow them to select a Cross-Bench Peer if they thought that appropriate.
I welcome the amendments. The Government are happy to accept them, and I hope that the House can, too.
9.15 p.m.
Lord Henley: My Lords, the amendment relates to Cross-Bench Peers, and we all accept that most Cross-Bench Peers have no party political affiliation. However, I understand that a number of Cross-Bench Peers have been members of other political parties or sit as Cross-Bench Peers but are actually still, despite that, card-carrying members of one or other party. Would they be excluded from sitting?
Baroness Ashton of Upholland: My Lords, the amendment says that the test covers someone whose past or present political activities make them unsuitable for appointment. Cases would be examined on an individual basis. If that made people inappropriate for appointment, so be it. However, the essence of the amendment is that when it is clear that somebody has a neutral position, if I can describe it that way, they should be eligible for appointment.
Lord Henley: My Lords, the point is that merely being a Cross-Bencher does not make that person neutral.
Baroness Ashton of Upholland: My Lords, indeed. The amendment removes the restriction on Peers and replaces it with a test of whether someone—whether or not they are a Peer—has past or present political activities or associations making them unsuitable for appointment. It is that change, which the noble Lord, Lord Henley, is getting at, that will make the difference. It applies to Cross-Bench Peers and also to those outside your Lordships' House.
Lord Lester of Herne Hill: My Lords, I thank the Minister very much and must say how happy I am. I always think that Bateman should do a cartoon for such occasions of "The Minister who accepts the Back-Bencher's amendment". It is such a rare experience, and I am very glad indeed. I hope that the first chair of the panel might be someone from the Cross Benches in this House because such a person with sufficient authority would know exactly how to conduct themselves with independence, integrity and authority. However, that is for another day.
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No.155C:
Page 206, line 3, leave out sub-paragraph (4) and insert—
"(4) A lay justice member is a justice of the peace who—

(a) holds no other listed judicial office, or no other except that of General Commissioner,

(b) is not a practising barrister in England and Wales, and

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(c) is not a practising solicitor of the Supreme Court of England and Wales."

On Question, amendment agreed to.
Lord Borrie Lord Borrie moved Amendment No.156:
Page 206, line 23, at end insert "and the chairman of the Commission"
The noble Lord said: My Lords, during the debates this afternoon and earlier, my noble and learned friend the Lord Chancellor said how important it was that the Judicial Appointments Commission had the role of recommending people for appointment to the judiciary. It is clear not only that it is a key feature of the Bill but that the Government must think it of sufficient importance to have set out in very clear and precise terms in Schedule 10 precisely the sort of people who are to be on the commission—the exact balance between members of the judiciary, members of the profession, lay members and magistrates. It lays down clearly and exactly how the membership of 14 plus the lay chairman should be made up. The precise way in which the commission is to be composed should not be too easily altered.
In proposing the amendment, I have received advice from the present Commission for Judicial Appointments. Although the existing commission does not recommend or make judicial appointments, it has a great deal of experience of them because it investigates complaints about those who may not have been given a fair opportunity to be appointed and it conducts audits of the High Court appointment process.
Schedule 10 sets out the composition of the new Judicial Appointments Commission and the numbers in each of the categories of judicial, professional and lay members. It then provides in paragraph 5 that the Lord Chancellor, who is to appoint the commission may, by order, alter the numbers in each category of membership subject only to the agreement of the Lord Chief Justice. I am glad that the agreement of the Lord Chief Justice is there, but my amendment would add the need for agreement with the chair of the commission itself. The chair of the commission will have, to my mind, the closest understanding of the workings of the commission on a day-to-day basis in a way in which my noble and learned friend the Lord Chief Justice will not. He will have a closer connection than that of the Lord Chief Justice. It seems appropriate that the chair should have a veto on altering the membership numbers in any category of members on the commission.
What could be done by ministerial order is very significant. It could alter the relationship or balance between lay and judicial members, for example. If noble Lords believe that the balance set out in Schedule 10 is appropriate and apt, your Lordships may be concerned that that balance could be altered by ministerial announcement—subject, admittedly, to the approval of both Houses of Parliament, but otherwise subject only to the approval of the Lord Chief Justice.
In Committee, when I proposed a similar amendment, the noble Lords, Lord Goodhart and Lord Maclennan of Rogart, attached their names to it and supported it in debate. I hope that they will continue to do so. My noble friend Lady Ashton, said in Committee on 18 October that she was happy to give a commitment at any rate that before making any such order as envisaged by paragraph 5 of Schedule 10, consultation would be made with the chair of the commission. To that extent, she seemed to support the spirit of my amendment. But I have to note that after saying that she went on to say,
"it is a much bigger step to make that amount to a veto on making such changes whatever the circumstances. There are possible circumstances when one would wish to make a change perhaps when the commission did not sufficiently recognise that such change needed to be made".—[Official Report, 18/10/04; col. 621.]
I found that statement a little mysterious. Perhaps she can explain it a little more fully this evening so that your Lordships can understand fully what possible grounds there could be for a drastic change in the balance of the commission, which would justify an order from the Minister.
I suggest that it is illogical for the Lord Chief Justice but not the chair of the commission to have a veto on change. Perhaps there will be circumstances—if I can follow whatever sort of logic I can get from the Minister's statement —when it is desirable to make a change, when the Lord Chief Justice does not recognise such a change is needed. If a veto from the Lord Chief Justice, who is left directly involved with the commission, is acceptable, why not one from the chair of the commission? Logically, it should be neither or both. I beg to move.
Lord Renton: My Lords, I support this amendment, although it is moved by a Member supporting the present Government. It seems to me that if we rely entirely on the Lord Chief Justice for consent in this matter, it places a burden on him which he should not have to exercise alone. But if we include the chairman of the commission, we are being consistent.
Lord Goodhart: My Lords, although my noble friend and I did not put our names to the amendment on this occasion, we do in fact support it. We believe that in a sense the chairman of the commission can also be regarded as the protector of the concerns of the lay membership of the commission. While we entirely accept the concordat in this case, if left to our own devices we would probably have had a majority of lay members, as is the Scottish position.
It is perfectly foreseeable that at some time in future a Lord Chancellor, who will as matters now stand in statute be a distinguished lawyer and a High Court judge, might come to the conclusion that there were too many lay members on the commission, and use the powers to reduce that number, subject to parliamentary approval. We think that, in any event, where there is a reasonable case for variation of the numbers it should be possible to get the agreement of
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the chairman of the commission, and if not, it would be necessary for the Government—as this is a very important principle—to aim at primary legislation.
Baroness Howe of Idlicote: My Lords, I should like briefly to support this amendment. The Minister very kindly wrote a letter to me explaining the Government's position. I read it but I was not entirely convinced. I thought that the answer was to listen to the debate on the Floor of the House. I am convinced by what I have heard from the proposers of this amendment. I am particularly appreciative of the role of the current appointments commission. It seems to me that it has had a long period of watching what has happened in the past and making very good and well informed recommendations about how the situation should be conducted in the future.
If the noble Lord, Lord Borrie, presses the matter to a vote tonight, I would certainly support him. However, having said that, I rather hope that the Government will think again, that the noble Lord, Lord Borrie, will not press the matter and that perhaps we can come back to it at Third Reading.
Baroness Ashton of Upholland: My Lords, I had hoped that, as my noble friend Lord Borrie, suggested, I had won over the noble Lord, Lord Goodhart, and the noble Baroness, Lady Howe, but that is clearly not the case.
I say to my noble friend that there was nothing mysterious—I would like to be mysterious, but I fear that I am not—in what I was trying to say. I do not have very much to add. I believe that what I said in Committee was clear; namely, we believe it is right that the chairman is consulted. I gave that commitment and I happily repeat it now. However, we do not accept that that should amount to a veto being imposed by the chairman before an order can be laid. It would be a much larger step to give the chairman of the commission a veto on making changes in all circumstances with the result that—as the noble Lord, Lord Goodhart, said—the Government's only recourse, if they wanted to change the commission, would be further primary legislation. I do not believe that is the best approach to take.
I refer to a situation in which it was considered that the commission needed different expertise or a different balance of input from that provided by the Bill, and in which there was widespread concern, shared by the Minister and the Lord Chief Justice, regarding whether the commission was meeting the challenges that it faced. We believe that it would not be appropriate in those circumstances to allow the commission or its chairman to veto changes to its own composition designed to deal with perceived defects in its own performance or capacity. We believe it is possible—I am not suggesting anything with regard to the commission; I give this only as a theoretical example—that the problems might not be recognised by the commission itself—hence the need for those changes to be made. We believe that those matters should properly be left for the Lord Chancellor and the Lord Chief Justice.

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I outlined a scenario which I hope is not likely but it is possible. As I have indicated, we should be very reluctant to put ourselves in a position where the only remedy would be further primary legislation to change the composition of the commission. I am sorry to disagree with my noble friend for whom I have enormous respect, but I hope that he will feel able to withdraw his amendment.
Lord Borrie: My Lords, I am most grateful to those who have spoken in this debate, particularly to the noble Lord, Lord Renton, because his party's Front Bench preferred to say nothing at all. I was delighted to hear that the noble Lord, Lord Goodhart, supports the measure. The noble Baroness, Lady Howe of Idlicote, is also very welcome as a supporter. Irrespective of the Conservative Front Bench's rather desultory attitude on the matter, it is somewhat late in the evening for me to press the matter to a vote. Therefore, I will not do so. I am grateful to the Minister for putting her comments on the record, which I will examine closely, because I found some of her remarks curious. The word "expertise", which I had not heard previously, cropped up. I will look closely at what she said. I hope that I will not need to bring the matter back to the House. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.30 p.m.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.156A:
Page 206, leave out lines 25 to 29.
On Question, amendment agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendments Nos.156B to 156F:
Page 208, line 22, leave out "either House of Parliament" and insert "the House of Commons"
Page 208, line 23, leave out "either House of Parliament" and insert "the House of Commons"
Page 208, line 27, at end insert "these questions"
Page 208, line 33, at end insert—
"(c) whether the extent of any present or past party political activity or affiliations appears to him to make the person inappropriate for the appointment.
(12) The first member must consider the same questions before nominating a person to be appointed as the third member."
Page 209, line 8, at end insert—
"(c) whether the extent of any present or past party political activity or affiliations appears to the panel to make the person inappropriate for the appointment."
On Question, amendments agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.156G:
Page 209, line 18, leave out "district judge" and insert "the offices mentioned in paragraph 2(3)(e)"
On Question, amendment agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 156H:
Page 209, line 43, leave out sub-paragraph (3).
The noble Lord said: My Lords, in my wish to expedite the procedures of the House, I forgot to say anything about Amendments Nos. 156H and 156J. They tidy up paragraph 14 of Schedule 10, deleting subsection (3), which says that a commissioner ceases to be a commissioner on becoming a Member of the House of Lords or a civil servant, and inserting a new subsection at the end, which replaces the prohibition on commissioners becoming civil servants. This order is more logical than the existing order in the Bill, as the current subsection (4) relates to subsection (2) and not to subsection (3). I beg to move.
On Question, amendment agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No.156J:
Page 210, line 7, at end insert—
"(5) A Commissioner ceases to be a Commissioner if he becomes employed in the civil service of the State."
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.156K:
Page 216, line 12, leave out "the Commission is established" and insert "section 49 comes into force"
On Question, amendment agreed to.
Schedule 11 [The Judicial Appointments and Conduct Ombudsman]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 156L:
Page 216, line 37, leave out "a judicial office" and insert "an office listed in Schedule 12"
The noble Baroness said: My Lords, these are technical and drafting amendments to clarify and define what is meant by some of the posts set out in Schedule 12. In addition, Amendment No. 163B clarifies the power in Clause 68 to amend Schedule 12, and Amendments Nos. 164E to 164G delete references to some posts that are currently listed in Schedule 12 but which should not be selected by the Judicial Appointments Commission, for reasons which I will explain.
Amendments Nos. 156L and 156M amend the provisions on who is ineligible for appointment as the ombudsman. They improve the drafting, so that it refers specifically to the offices listed in Schedule 12. Amendment No. 156N removes a possible ambiguity about commencement. The existing wording might give rise to some uncertainties. For example, it might be contended that the ombudsman comes into existence when the ombudsman is appointed, not when the commencement order comes into force, as the amendment provides.
Amendment No. 163B amends the power in Clause 68 for the Minister by order to amend Schedule 12, by adding a power to amend the schedule to reflect changes in the enactments under which an

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appointment is made. Amendments Nos. 164B and 164C correct the references in Part 1 of Schedule 12 to the Senior District Judge (Chief Magistrate) and Deputy Senior District Judge (Chief Magistrate), to bring them into line with Section 10A of the Justices of the Peace Act 1997.
Amendment No. 164D completes the references to the office of justice of the peace in Schedule 12. The existing appointment power is already listed. This will be replaced by Section 10(1) of the Courts Act 2003, when it is commenced next year. The amendment now adds a reference to the new power. Amendment No. 164E removes the references to acting chairman and acting deputy chairman of the Copyright Tribunal from Schedule 12. As the titles indicate, these are not substantive appointments, but temporary stopgaps, and are on reflection better treated as deployment issues to be dealt with by the Lord Chief Justice.
Amendment No. 164F removes the references to the member of the panel of chairmen of Reserve Forces Appeal Tribunals and the member of the panel of ordinary members of Reserve Forces Appeal Tribunals from Schedule 12. Those posts will not come under the ambit of the Judicial Appointments Commission, initially at least. The current practice for making appointments to those tribunals, which are needed only intermittently, is to do so by deployment from existing ranks of judicial office holders and not by separate competitions. Those arrangements work well, and there are no plans to change them. If it proved necessary in future for there to be separate competitions, the posts could be added to the commission's remit by amending Schedule 12.
Amendment No. 164G removes the reference to the president of the Immigration Appeal Tribunal from Schedule 12. The reason is that the post is now always held by a High Court judge. It will be for the Lord Chief Justice to deploy one of his High Court judges to the post after consultation with the Lord Chancellor. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker: My Lords, would the noble Baroness care to move Amendments Nos. 156M, 156N, 156P and 156Q? The question is that those amendments be agreed to.
Baroness Ashton of Upholland: My Lords, I do not think that I spoke to Amendments Nos. 156P or 156Q. I am sorry if I confused the noble Lord. Should I speak to them now?
The Deputy Speaker: My Lords, I apologise to the noble Baroness. I repeat that the question is that Amendments Nos. 156M, 156N, 156P and 156Q be agreed to.
Baroness Ashton of Upholland: My Lords, I need to speak very briefly to Amendments Nos. 156P and 156Q, to which I have not already spoken. It might expedite matters if I do that.
The Deputy Speaker: I am sorry, my Lords; there are no speakers here and I could not hear exactly what the noble Baroness was saying. Amendments Nos. 156M and 156N must be dealt with first.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos.156M and 156N:
Page 216, leave out line 39.
Page 220, line 18, leave out "the Ombudsman is established" and insert "section 50 comes into force"
On Question, amendments agreed to.
Lord Renton: My Lords, I hope that the noble Lord on the Woolsack is not racing through amendments. I thought that Amendment No. 156P required some comment.
Noble Lords: Order!
Lord Renton: That is what we are on at the moment, my Lords.
Baroness Ashton of Upholland: My Lords, the noble Lord is right; I am about to comment on precisely that amendment.
Lord Renton: My Lords, may I conclude?
Lord Evans of Temple Guiting: My Lords, the amendment has not yet been spoken to by the Minister.
Clause 51 [Merit and good character]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 156P:
Page 21, line 9, at end insert—
"() Selection must be solely on merit."
The noble Baroness said: We have got there, my Lords. I indicated in Committee on 18 October that we would amend the Bill to indicate a clearer and stronger formulation of the merit principle when selecting candidates for judicial appointment. We have taken into account the informed discussion in the Select Committee, when it was suggested that the wording could be amended to provide that selection must be solely on merit. That would put the matter beyond doubt and remove any possible suggestion that the merit criterion was in some way qualified by other considerations.
The Government agree that the best person must be selected for the post, as does the noble and learned Lord the Lord Chief Justice. The amendment makes it clearer that no other considerations should he taken into account when making selections for judicial appointments. I beg to move.
Lord Renton: My Lords, in the context of the Bill, surely it is inappropriate and irrelevant to say that that selection must be solely on merit? Surely all selections of a judicial character within the terms of the Bill would automatically be considered on merit. For us to write it into the statute seems to be unnecessary and inappropriate.
Lord Mackay of Clashfern: My Lords, I would have thought that it was pretty important to have it solely on merit. I wonder what would happen if two equally meritorious candidates presented themselves, if the

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appointment had to be solely on merit. Surely, merit must be the leading consideration, otherwise our judiciary might well suffer in the longer term.
Baroness Ashton of Upholland: My Lords, the noble and learned Lord, Lord Mackay, has, in a sense, answered the question put by the noble Lord, Lord Renton, which is that, yes, it is very important; yes, it was felt in the discussions at the Select Committee, and, indeed, by members of your Lordships' House, that it should be explicit. We agree and we have placed it there. The noble Lord, Lord Renton, feels that it does not need to be there, but it is there. Fortunately, if there are two candidates of equal merit, it will not be my decision.
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 156Q:
Page 21, line 12, leave out subsection (3).
On Question, amendment agreed to.
Clause 52 [Guidance about procedures]:
[Amendments Nos. 156R to 156T not moved.]
Clause 53 [Guidance: supplementary]:
[Amendments Nos. 156U and 156V not moved.]
Clause 54 [Selection of Lord Chief Justice and Heads of Division]:
[Amendment No. 156W not moved.]
Clause 56 [Selection panel]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 156X:
Page 23, line 11, leave out from "or to end of line 17 and insert "four members.
() The first member is the most senior England and Wales Supreme Court judge who is not disqualified, or his nominee."
The noble Baroness said: My Lords, perhaps I may turn the pages quickly enough to ensure that I am moving the right amendment. These amendments are technical and relate to the provisions for both the panels selecting the Lord Chief Justice and the Heads of Division and the panel selecting Appeal Court judges to ensure that all readily foreseeable circumstances are provided for.
The most senior Supreme Court judge or his nominee sits on the former and the chairman of the Commission or his nominee sit on both. The amendments allow for the possibility of the senior Supreme Court judge being a candidate for appointment as Lord Chief Justice, or, indeed, as a Head of Division and for chairman of the commission being unavailable or the post being vacant. As well as it being inappropriate for someone, however eminent, to sit on a panel considering his own candidacy for appointment, it also seems inappropriate for him to be seen to be the person to designate someone to take his place on the panel.
We have provided that where the senior Supreme Court judge is a candidate for appointment as Lord Chief Justice or Head of Division, the next most senior
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judge would take his place in the selection process. We have also catered for the chairman of the commission not being available to sit on either panel or to nominate someone to sit on his behalf. That could be because, as I have indicated, the post is vacant or because he or she is unavailable. While the latter may be a remote and regrettable possibility, we felt that we should cater for a situation where the incumbent, perhaps through illness, is really not in a position to play a part in the process. I beg to move.
On Question, amendment agreed to
The Deputy Speaker: My Lords, has the noble Baroness spoken to the remainder of the alphabet? I suggest to the House that Amendments Nos. 156Y, 156Z, 156AA, 156 AB, 156AC and 156AD be moved by the noble Baroness en bloc.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment Nos. 156Y to 156AD:
Page 23, line 18, leave out "participating judge" and insert "second member"
Page 23, line 19, at end insert—
"(2A) Unless subsection (4B) applies, the third member is the chairman of the Commission or his nominee.
(2B) The fourth member is a lay member of the Commission designated by the third member."
Page 23, line 23, after "judge" insert "who is not disqualified"
Page 23, line 24, leave out "participating judge" and insert "second member.
(4A) Subsection (4B) applies if—

(a) there is no chairman of the Commission, or

(b) the chairman of the Commission is unavailable and has not nominated a person under subsection (2A).

(4B) In those cases the third member is a lay member of the Commission selected by the lay members of the Commission other than the chairman."
Page 23, line 26, leave out "(1)(a)" and insert "(1A)"
Page 23, line 37, leave out from first "The" to "is" and insert "first member"
On Question, amendments agreed to.
Clause 57 [Report]:
[Amendments Nos. 156AE to 156AG not moved.]
Clause 61 [Selection of Lords Justices of Appeal]:
[Amendment No. 156AH not moved.]
Clause 63 [Selection panel]:
The Deputy Speaker: My Lords, Amendment No. 156AJ was spoken to with Amendment No. 156X, as was Amendment No. 156AK.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 156AJ and 156AK:
Page 26, line 14, leave out from "of" to end of line 20 and insert "four members.
(1A) The first member is the Lord Chief Justice, or his nominee.
(1B) The second member is a Head of Division or Lord Justice of Appeal designated by the Lord Chief Justice.
(1C) Unless subsection (1F) applies, the third member is the chairman of the Commission or his nominee.
(1D) The fourth member is a lay member of the Commission designated by the third member.
(1E) Subsection (1F) applies if—

(a) there is no chairman of the Commission, or

(b) the chairman of the Commission is unavailable and has not nominated a person under subsection (1C).

(1F) In those cases the third member is a lay member of the Commission selected by the lay members of the Commission other than the chairman."
Page 26, line 29, leave out "Lord Chief Justice or his nominee" and insert "first member"
On Question, amendments agreed to.
9.45 p.m.
Lord Lloyd of Berwick Lord Lloyd of Berwick moved Amendment No.157:
After Clause 67, insert the following new clause—
"SELECTION OF PUISNE JUDGES
(1) This section applies to a recommendation for appointment as a puisne judge.
(2) A recommendation may be made only under section (The Minister's options).
(3) If there is a vacancy among the puisne judges the Minister must, unless the Lord Chief Justice agrees otherwise, make a recommendation to fill the vacancy.
(4) For the purposes of subsection (3) a vacancy arises only on a puisne judge vacating his office after the commencement of this section.
(5) A request for the selection of a person to be recommended must be made by the Minister to the Commission.
(6) Before making a request the Minister must consult the Lord Chief Justice.
(7) Sections (Selection process) to (Selection following rejection or requirement to reconsider) apply where the Minister makes a request under this section."
The noble and learned Lord said: My Lords, the purpose of the amendment is to bring the selection process for High Court judges into line with the selection process for judges of the Court of Appeal. The selection panel for members of the Court of Appeal is set out in Clause 63 and consists of the Lord Chief Justice, a head of division, the chairman of the commission and one other lay member. Therefore, there are two lawyers and two laymen, with the Lord Chief Justice as the chairman. That is all straightforward, simple and sensible.
My proposal is that the membership of the panel for selecting High Court judges should be similar but not identical. It is set out in Amendment No. 159. The panel would consist of the relevant head of division, a puisne judge, the chairman of the commission and one other lay member of the commission. Up until that point, it is similar to the process relating to Lords Justices, but I would add a representative of the General Council of the Bar and a representative of the Law Society, making two judges, two other legal members of the commission and two lay members of the commission.
As the Bill now stands, membership of the selection panel is entirely at the discretion of the chairman of the Judicial Appointments Commission. Thus, the panel might consist of nothing but lay members, who can have little idea of the job of a High Court judge and therefore little idea of the best candidates for that job. It is true that from time to time it has been suggested
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that, through an amendment to the Bill or some regulation under the Bill, a puisne judge should be included on the panel, but so far we have not seen that.
The High Court judge is the key appointment in the whole judicial process. In many ways, he is more important than, although of course not as senior as, members of the Court of Appeal. The High Court judge is important because, unlike circuit judges, he is irremovable, except following an address by both Houses of Parliament, and therefore it is essential that we should not make a mistake in his appointment. He is also important because he is in the front line in defending the liberty of the subject against the Government by the process of judicial review. Again, circuit judges are in an entirely different position because they have no jurisdiction in judicial review.
Therefore, I was very surprised to find that, instead of being given the kind of panel that Lords Justices are given, High Court judges were tucked away in Schedule 12 to the Bill between non-judicial members of the Restrictive Practices Court and Masters of the Queen's Bench Division. In my submission, that is quite wrong. High Court judges are worth much more than that.
What qualities will the panel look for in selecting a High Court judge? Judicial qualities apart, which are taken for granted, the main one must be that the High Court judge is to be chosen from among the very top rank of lawyers; otherwise, the quality of the High Court Bench will gradually be eroded. That is especially true of the specialist High Court judges, particularly commercial judges, of whom there are now 10, and the Patent Appeals Tribunal in the Chancery Division.
I am the strongest possible supporter of lay involvement in the judicial process. I am the strongest possible supporter of lay magistrates and of lay juries, but I wonder how a panel consisting largely, or perhaps entirely, of laymen could be the best panel to choose judges of the right calibre.
The only argument put forward in the Select Committee for distinguishing between High Court judges and judges of the Court of Appeal was that judges of the Court of Appeal were chosen by promotion, whereas it was said that judges of the High Court were not. That is no longer true, because increasingly High Court judges are chosen by promotion from the circuit Bench. In any event, promotion is an irrelevant consideration in this discussion. We need the best way of getting the best men in those important jobs, which include not only the Lords Justices but also the judges of the Court of Appeal. If promotion is irrelevant, it follows that no good reason has been given for distinguishing between the two.
This is a genuine attempt, as I have said, to improve the Bill and to eliminate what High Court judges could well consider a grievance. I accept that the amendments tabled by the noble and learned Lord the Lord Chancellor in this group go some way to correct what may be a sense of grievance, but they are purely cosmetic in their effect. What matters here is acquiring

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the best panel. I hope that the noble and learned Lord the Lord Chancellor will consider the matter again and not just say, "It is all in the concordat and that is that". We know that the concordat can be changed by agreement between him and the Lord Chief Justice. I hope that he will try to secure that agreement. I beg to move.
Lord Carlisle of Bucklow: My Lords, despite the hour, I support everything that the noble and learned Lord, Lord Lloyd, has said. I fully support the appointment of a Judicial Appointments Commission. I accept its membership, as recommended by the Government, thought out with great care, with a lay chairman and 14 other members, divided between judicial members and lay members. It will have a large job to do. It will be responsible for recommendations for appointments to the judiciary from the level of magistrate to the level of either the House of Lords or the Supreme Court, whichever we end up with after next week's debate.
As I understand it, the commission will, up to the level of Lord Justice, choose its own committee, which will interview and decide on the recommendations to the Lord Chancellor. Indeed, I was one of those who advocated in the Select Committee, unfortunately unsuccessfully, that its work was such that at the lower levels it should be an appointing rather than a recommending committee. That is dealt with in paragraph 294 of our report at that time, which said:
"Some members of the Committee recognise that there is some force in the argument that the Judicial Appointments Commission might be given responsibility for making appointments of itself—rather than … recommendations".
However, we said that, having heard that it was the desire of the magistrates among others that they should not be appointed directly but merely recommended, we withdrew our objection.
The job is very large. As I understand it, the Bill draws the line at the level of those who are to be members of the Court of Appeal. It says that the form of appointment for the judiciary should be the same from magistrate level to the High Court and that the break thereafter would be between the Lords Justices of Appeal, when in fact the Bill lays down a statutory form of commission that will be the responsible committee for those appointments.
Like the noble and learned Lord, Lord Lloyd, I think that that is too high. The break is not between the High Court and the Court of Appeal but between those below the High Court and the High Court. The figures for full-time judges in England and Wales are set out: justices of the High Court, puisne judges—107; circuit judges—610; and district judges—414. Surely the major break—to any of us who are involved in practising in the court—is between the High Court and the other court.
The recorder has responsibility in the area that he sits, probably with limited authority and with the necessity, for example, to have a ticket to try murder cases or cases of other kinds. The High Court judge sits throughout the country with unlimited criminal
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jurisdiction. I shall stick with crime, about which I know rather more than the noble and learned Lord, Lord Lloyd, who talked about the commercial side.
The argument that the break should be between the justices and the Lords Justices of Appeal and that it is at that level that you should have a special committee to look at it because they know that their work is promotion, falls down, as the noble and learned Lord, Lord Lloyd, said, when you look at the practicality. Most of those who become High Court judges today have either been recorders or deputy High Court judges. Their assessment of their work is just as valid as the assessment of those in the High Court moving to the Court of Appeal. High Court judges are different from those below them in that they can only be removed by a decision of both Houses of Parliament. As I said, they have jurisdiction that is countrywide and total.
I hope that the noble and learned Lord the Lord Chancellor will look seriously at the matter again. I repeat that I support the Judicial Appointments Commission proposals. I believe that it is right to have it, but I think that at the level of the High Court—the argument having been accepted that at Court of Appeal level you should have a special commission to appoint those people—those who are going to the High Court should have a specially appointed committee.
Whether the noble and learned Lord, Lord Lloyd, has got the matter right, I do not know, but it seems that the provision should be clear that the commission must involve at least two judicial members.
Lord Goodhart: My Lords, I spoke against this group of amendments fully in Committee. I daresay that what I would have said today will be the same as that which the noble and learned Lord the Lord Chancellor—if it is he who is to reply to this—will say anyway.
All I would say is this. I should have supported a more modest amendment from the noble and learned Lord, Lord Lloyd of Berwick—in particular, an amendment to paragraph 21(5) of Schedule 10 to permit the Judicial Appointments Commission to delegate the selection functions fora High Court judge only to a sub-committee of not less than five of its members, one or perhaps even two of whom should be chosen from the three senior judicial members of the commission. But this group of amendments, in its present form, is damaging to the Commission for Judicial Appointments; unravels the concordat; and preserves too many unsatisfactory features of the present appointments system.
Lord Mackay of Clashfern: My Lords, there is a good deal of substance in the amendments proposed by the noble and learned Lord, Lord Lloyd of Berwick. I am assuming that when he spoke of men, he spoke in the language of the Interpretation Act 1978, so as to include women as well. I am sure that he had that in mind.

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I can see that there may be room for some halfway house, such as the noble Lord, Lord Goodhart, suggests, but I think that there is much to be said for the view that the critically important distinction is between the judges of the High Court and those immediately below them. As the noble and learned Lord, Lord Lloyd, said, that is where judicial review is available for the first time. That has always been seen as an important function of a High Court judge and that requires to be taken into account in considering the relative arrangements for circuit judges, on the one hand, and High Court judges, on the other.
The concordat is of course to be taken into account, but I do not think that any one would claim that the concordat is the laws of the Medes and Persians; it has shown that it can be altered; and, if it can be improved, I am sure that the noble and learned Lord the Lord Chief Justice would be the first to agree to that. So I hope that it will be possible, at the level of the High Court, to make a distinction between the methods of appointment and exactly what they should be. Taking account of what the noble Lord, Lord Goodhart, said, I would not wish finally to commit myself to that, but I think that something along the lines of what the noble and learned Lord, Lord Lloyd, has proposed is certainly well worthy of consideration.
Lord Renton: My Lords, I totally support the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick. Indeed, it surprises me that the Bill, with its various intentions, has not already included amendments roughly on the same lines. As for what the amendments would do, they go far towards what is needed, but I accept what my noble and learned friend Lord Mackay of Clashfern has just said and I therefore hope that the Government will agree that, whether or not the amendments are agreed in their present form, the Government will allow the necessary clauses that have been proposed to become part of the Bill.
Lord Kingsland: My Lords, I agree with all of your Lordships who say that the High Court judge is the cornerstone of our judicial system, not only because of the kind of decisions that High Court judges have to take, but because they form the raw material for promotion to the Court of Appeal and the court that lies beyond that, described in the Bill as the Supreme Court.
I share your Lordships' bewilderment at the way in which the High Court judge is catalogued in Schedule 12, falling, as the noble and learned Lord, Lord Lloyd, said, between non-judicial members of the Restrictive Practices Court and Masters of the Queen's Bench Division. I suppose that one excuse for that might have been alphabetical, if P fell between N and M, but, even at this time of night, it does not do so in my alphabet.
Lord Goodhart: My Lords, has the noble Lord noticed that the order is the chronological order of the statute from which the power of appointment is derived?
Lord Kingsland: My Lords, given my view of the statute, that adds to my sense of incredulity. I sense that what lies behind this is the hand of recent Northern Ireland legislation—I see the noble and learned Lord, Lord Falconer, nodding—which has sought to treat High Court judges in something of the same fashion. Whatever else the noble and learned Lord does between now and Third Reading, I would like to think that he would reorder Schedule 12 so as to give High Court judges their rightful place in the hierarchy of posts that are mentioned there.
Many noble and noble and learned Lords have described the important role that High Court judges play in administrative law. For that reason, perhaps above all, it is crucial that the most professional attention is given to their selection. I am not necessarily wedded to the wording of the amendment tabled by the noble and learned Lord, Lord Lloyd. I was rather encouraged by the reaction of the noble Lord, Lord Goodhart, when he seemed to me to extract the essence of what the noble and learned Lord, Lord Lloyd, was trying to do and suggested a rather ingenious way of achieving the noble and learned Lord's objectives without accepting the full measure of his amendment.
I would like to think that between now and Third Reading some agreement might be reached between the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Goodhart, so that we might present to your Lordships' House at Third Reading an amendment that attracts the noble and learned Lord the Lord Chancellor.
The arguments about promotion in my submission are particularly weak. As a number of your Lordships have already said, it is increasingly the case that the High Court Bench is drawn from the circuit Bench. In any case, as a matter of practice, if not indeed of obligation, all High Court judicial appointments nowadays are drawn from the ranks of recorders.
Lord Falconer of Thoroton: My Lords, as indeed are circuit judges.
Lord Kingsland: My Lords, yes, as indeed are circuit judges. But that in my submission does not weaken the case of the noble and learned Lord, Lord Lloyd. As I understand it, it is argued against the noble and learned Lord, Lord Lloyd, that the fact that a High Court judge was not promoted from another appointment undermined his case. The fact that circuit judges were also appointed from the ranks of recorders does not in any way undermine the point made by the noble and learned Lord, Lord Lloyd, that High Court judges are also appointed on promotion from recorderships.
I see that the noble and learned Lord the Lord Chancellor is looking somewhat bewildered. This is a good moment therefore for him to get to his feet.
Lord Falconer of Thoroton: My Lords, first, noble Lords are right that the drafting of the Bill needs to recognise a special place for the High Court, which is an incredibly important part of the justice system. I

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have tabled amendments to remove them from Schedule 12 and to refer to them in the Bill, which deals with the quite legitimate point that has been made by noble Lords about the structure of the Bill.
I need to look again to determine whether I have captured, in terms of the drafting, before I come to the substance, proper recognition for the High Court. I also accept the importance of High Court appointments. However, I am strongly of the view that if we are setting up a Judicial Appointments Commission we must broadly leave it to determine how it makes those appointments, particularly in relation to appointments such as the High Court.
The distinction between, on the one hand, High Court judges and, on the other hand, heads of divisions and members of the Court of Appeal is that heads of divisions and members of the Court of Appeal are invariably appointed by promotion from having been full-time High Court judges or, alternatively, members of the Court of Appeal in relation to heads of division. On those appointments I recognise, as does the Bill, that the right course is to look to those who have worked most closely with them to determine who should be selected. I do not think there is any dispute about that.
The distinction between members of the Court of Appeal or heads of division on the one hand and High Court judges on the other is that High Court judges, for the most part, are selected from private practice. Some chosen for appointment have been circuit judges, but the numbers being appointed from that route are in a clear minority. As it happens, their number has not gone up over the past few years. Like circuit judges, those appointed to the High Court are almost invariably recorders. So the fact that they are selected from part-time judicial appointments does not seem in any way to distinguish them from the circuit Bench, although as I have made clear, I accept their importance to the judicial system.
There is widespread support throughout the House for a Judicial Appointments Commission. If we believe in such a commission and we cannot identify a reason to separate these from other judicial appointments, I think we should leave it to the Judicial Appointments Commission.
I was interested in what was said by the noble Lord, Lord Goodhart. Although I may have misheard him, I think he said that if sub-committees are to make such selections, he would be keen on seeing one judicial member included on such sub-committees when appointments of judges to the High Court are being considered. I invite the noble Lord to look at paragraph 21(5) of Schedule 10. It indicates that when a selection committee or sub-committee is set up, it will need to include a judicial member.
Lord Goodhart: My Lords, I had intended to go rather further than that. I said that one or possibly two judicial members should be not only that, which would include the lower judiciary, but should also be either a judge of the Court of Appeal or a judge of the High
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Court, and therefore in both cases would be a member of the commission.
Lord Falconer of Thoroton: My Lords, again, if a committee or sub-committee is set up, it must include a judicial member. However, if the appointment is for a High Court judge, I could not agree more that it would be inappropriate if the judicial member were not a judge of the High Court or above. I should have thought that was obvious. However, paragraph 21(5) of Schedule 10 does not prevent there being more than one judicial member. I hope that that satisfies the noble Lord.
I turn now to the concordat. From time to time the noble and learned Lord, Lord Lloyd of Berwick, has suggested that this is something the High Court itself is unhappy about. I have spoken to the Lord Chief Justice about it. He has assured me that that is not the case and I accept his view rather than that of the noble and learned Lord.
I have thought carefully about the proposal put forward by the noble and learned Lord, but ultimately, if we are setting up a Judicial Appointments Commission and there is no good reason—such as that in relation to the Court of Appeal and heads of division—we should trust the Judicial Appointments Commission. I think that it would he wrong to propose that there should be in effect six members of a selection committee, four of whom would be either judges or lawyers.
Lord Lloyd of Berwick: My Lords, the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Carlisle, both seemed to make it clear that this is a case where, for whatever reason—I do not know it—the line has simply been drawn in the wrong place. The noble Lord, Lord Kingsland, has made clear that there is nothing in the argument on the basis of a promotion being the ground of distinction between Lords Justice and High Court judges. Turning to the point that the Judicial Appointments Commission is to be set up and therefore we must trust it, of course we must, but the commission will have quite enough to do and will have to provide two people, a chairman and one other member, for the panel I am suggesting.
Having said that, and having heard the remarks of the noble Lord, Lord Goodhart, it may be that for once it will be possible for the noble Lord and myself to reach some kind of agreement on what might be the best way to achieve what I believe most Members of this House want. On that basis, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.158 to 163 not moved.]
10.15 p.m.
Clause 68 [Selection of puisne judges and other office holders]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos.163A and 163B:
Page 28, line 19, at end insert—
"(za) a recommendation for an appointment to the office of puisne judge of the High Court;"
Page 28, line 32, leave out paragraph (c) and insert—

"(c) an amendment consequential on the abolition or change of name of an office;

(d) an amendment consequential on the substitution of one or more enactments for an enactment under which appointments are made to an office."

On Question, amendments agreed to.
Schedule 12 [The Judicial Appointments Commission: Relevant Offices and Enactments]:
[Amendment No. 164 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos.164A to 164D:
Page 221, leave out lines 11 and 12.
Page 222, line 4, column 1, leave out "(Magistrates' Courts)" and insert "(Chief Magistrate)"
Page 222, line 7, column 1, leave out "(Magistrates' Courts)" and insert "(Chief Magistrate)"
Page 223, line 3, at end insert—
Justice of the peace who is not Section 10(1) of the Courts Act a District Judge (Magistrates' 2003 (c.39)" Courts)
On Question, amendments agreed to.
The Deputy Speaker (Lord Lyell): My Lords, I am advised that Amendment No. 165, in chronological order, should be in here. I therefore call Amendment No.165.
Lord Renton: My Lords, before the noble Lord moves his amendment, perhaps I may ask the noble and learned Lord the Lord Chancellor whether he would indicate how much later he intends that we should sit tonight, bearing in mind that we have already reached a fairly late hour and that we are dealing with fundamental issues in the Bill.
Lord Falconer of Thoroton: My Lords, the intent is that we go on until we finish.
Lord Maclennan of Rogart Lord Maclennan of Rogart moved Amendment No.165:
Page 223, line 3, at end insert—

"Justices' Clerk

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

The noble Lord said: My Lords, in retabling the amendment, neither my noble friend Lord Goodhart nor I intend to afford ourselves the opportunity of repeating in extenso arguments which were heard in earlier debates on the Bill. However, the justices' clerks remain dissatisfied, even given the considerable changes made since the original Bill was drafted.
The essence of their concern is that by being treated as civil servants their position may be seriously affected by civil servants in other departments who are concerned about the manner in which they are executing their jobs. They have cited a number of disturbing allegations of interference in their work.
I know that there has been a continuing dialogue in the Government about this, and I am anxious simply to know whether Ministers have had any further thoughts about these concerns. The possibility of
1300
appeal or of obtaining the consent of the Lord Chief Justice is simply not regarded as sufficient. Surreptitious manipulation of staff by senior departmental officials would militate strongly against their interests and the interests of the judicial system.
I am merely affording the Government the opportunity to indicate what thinking there has been about this matter since it was last before the House. I beg to move.
Lord Kingsland: My Lords, I agree entirely with the noble Lord, Lord Maclennan, and I have nothing to add.
Lord Falconer of Thoroton: My Lords, I accept that this is a very important issue. The amendment of the noble Lord, Lord Maclennan, seeks to treat justices' clerks like judges. I do not believe that that is a realistic suggestion. It is not what the Justices' Clerks' Society wants because, ultimately, the appointment or otherwise of justices' clerks would be in the hands of the Minister under the terms of the Bill, and he could accept or reject the recommendations made. I understand that that is not what the justices' clerks seek. Equally, it would not change the status of justices' clerks as civil servants, which comes from the Courts Act. In Committee, my noble friend Lady Ashton outlined at length the protections that were in existence. Since then, we have made changes in the revised Schedule 4, which the noble Lord accepted on that day, but I accept that it was made clear at the time that those amendments were accepted without prejudice to these amendments. Those are additional measures that ensure that justices' clerks can exercise those aspects of their responsibility that are or a judicial nature, and they can exercise them independently.
I should also state, as I think that it is important, that I have agreed in principle that the professional training of justices' clerks and legal advisers should be carried out by the Judicial Studies Board. The Justices' Clerks' Society, in particular, was concerned that this might be an area where the professional independence of justices' clerks might be threatened. I do not think that that would be the case. There are, however, clear links between the training of magistrates and their legal advisers that it must be beneficial to explore with the unified administration. I want the detail to be worked through, however, before giving a formal direction to the Judicial Studies Board. In particular, the JSB has emphasised that it could not take this on before 2007–08, due to the demands of it taking on a strengthened role in the training of magistrates. I hope that this indication is helpful, and demonstrates that I am serious about ensuring that there is confidence in the arrangements for justices' clerks in the unified administration.
The government amendments that the House has already accepted, and the other commitments that we have given, provide practical ways of ensuring that the justices' clerks can carry out independently those aspects of their responsibility that are of a judicial nature.

1301
I am also very conscious of the points that the noble Lord, Lord Maclennan of Rogart, made on behalf of the Justices' Clerks' Society in relation to particular concerns over what some people have perceived as examples of interference by the department in the independence of justices' clerks. However, the Government provided a response to the Select Committee, demonstrating that nothing untoward had taken place. These were examples of the department working and consulting with the Justices' Clerks' Society and others, such as the senior district judge and magistrates' courts.
Justices' clerks carry out an important role in administration and in giving legal advice to lay magistrates. However, the point has been made before, but I think it warrants making it again: they are not judges; they do not have judicial status; they do not conduct trials, sentence offenders, give judgments or decide substantive issues between parties; and they do not take the judicial oath. As well as being legal advisers, they have very important administrative responsibilities. My noble friend pointed out the administrative aspects of the justices' clerks' role in Committee. She also noted that the Judicial Appointments Commission will be set up to select judicial office holders, and will have the skills and experience needed to select those people.
In summary, although I am not sure that this is necessarily the point of the noble Lord's amendment, I do not think that it would be wise to accept his amendments in place of the appointments process that the House accepted on 7 December. On the contrary, I see distinct disadvantages in using the JAC mechanism for these particular posts, and I think that it is simply inappropriate to give the commission the task of selecting people for non-judicial appointments. I hope that the noble Lord is reassured, and I hope that he will withdraw his amendment.
Lord Maclennan of Rogart: My Lords, I wish I could say to the noble and learned Lord the Lord Chancellor that the justices' clerks' view is as he has described it. They are persuaded that their judicial functions—and that is how they describe them—are such that they merit a separate and different form of appointment and that their status, while originally changed by the 2003 Act and not in anticipation of the Bill, is something about which they are seriously concerned. I know that the noble and learned Lord the Lord Chancellor and, indeed, the noble Baroness, Lady Ashton, have given a lot of attention to this. I also have no doubt that they are aware that telephone calls making very strong representations about this are being received practically daily. They will no doubt have heard, as the House has, the arguments deployed by the noble and learned Lord the Lord Chancellor. I can only express the hope that they are satisfied by the answers that they are being given.
It is unquestionably a difficult issue. There is a hybridity about the role; the interferences are not of a kind that would naturally come to light very easily. There is an understandable concern about their status.
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However, we have reached the point at which the arguments have been deployed to the best of my ability. I have no new arguments; therefore, I will not weary the House, at this late hour, by further protraction of the debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos.164E to 164G:
Page 226, leave out lines 2 to 5.
Page 227, leave out lines 11 to 14.
Page 229. leave out lines 40 to 42.
On Question, amendments agreed to.
Clause 69 [Request]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 165A:
Page 29, line 1, after "vacancy" insert "in the office of puisne judge of the High Court or"
On Question, amendment agreed to.
Clause 71 [Report]:
[Amendment No.165B not moved.]
Clause 72 [The Minister's options]:
Lord Borrie Lord Borrie moved Amendment No. 166:
Page 30, line 10, after "must" insert "recommend or appoint the person selected or, in the case of a selection for appointment as a puisne judge of the High Court, must"
The noble Lord said: My Lords, the aim of the amendment is to provide that in relation to appointments to the judiciary below the level of a High Court judge, the Lord Chancellor should not have the option of rejecting the nominee of the Judicial Appointments Commission or, indeed, of requiring the commission to reconsider the selection. We should, if I may borrow a phrase from my noble and learned friend the Lord Chancellor, trust the Judicial Appointments Commission.
The amendment would require the Lord Chancellor to appoint or to recommend to the Queen all candidates selected by the Judicial Appointments Commission for appointments below the High Court level—that is, circuit judges, recorders and district judges.
The whole point of the new Judicial Appointments Commission is to reduce the role and influence of the Lord Chancellor and his officials in the Department for Constitutional Affairs in decisions on individual appointments to individual posts. Since a very large number of junior—if I may use that word loosely—judicial appointments are made each year, compared with the much more modest number of senior appointments that have to be made each year, if the Bill remains as it is, it seems that the Lord Chancellor and his Department for Constitutional Affairs will have to retain a parallel bureaucracy, with all the costs involved of files, consultations and inquiries on the merits and demerits, qualities or lack of qualities, of individual persons to be appointed to the relatively low levels on the judicial ladder of district judges,

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recorders, and so on. Either that is the case or ministerial involvement would be, as Sir Colin Campbell put it to the Select Committee,
"a rather hypocritical rubber stamp".
I beg to move.
Lord Carlisle of Bucklow: My Lords, in the Select Committee I argued that one should have sufficient confidence in the Judicial Appointments Commission to allow it to appoint those on the lower levels of the judiciary. Therefore, I agree with what the noble Lord, Lord Borrie, has said, in general terms.
10.30 p.m.
Lord Falconér of Thoroton: My Lords, the noble Lord, Lord Carlisle of Bucklow, is right: he did argue that, but he will also remember that he was a man pretty well alone on the Select Committee in that respect.
Appointing judges is a central function of the state. Parliamentary accountability for the appointments system must be retained through the Minister. A Minister who is accountable for appointments should have a real say in those appointments. We recognise that his say must be suitably tempered to protect the independence of the system, and we say that the Bill strikes a balance by the limited power that it gives to the Minister.
There are powerful constraints on the executive. They strike a proper and workable balance of independence and accountability. Sadly, the noble Lord gives no reasons why that balance of independence and accountability, which is OK in relation to the appointment of High Court judges and the Court of Appeal, is not suitable or appropriate in relation to appointments below the High Court, save that my officials might duplicate the work done by the Judicial Appointments Commission. The importance of the state being involved and the importance of having proper accountability make whatever duplication there is—it would not be that great—worthwhile to ensure that there is proper accountability.
This is the fundamental point. In effect, the noble Lord's argument is that the Minister should in future save his or her time for the appointments at the top of the tree. I disagree wholly. Under the current arrangements, the Minister should make sure that he can find the time to consider all appointments to the judiciary, of whatever kind, with the care that they deserve. I have every confidence that each Lord Chancellor in recent times has done the same. I believe that in the more limited role, so will Lord Chancellors in the future.
I stress that to accept the amendment would be to fly in the face of the important concordat agreed between the Government and the Lord Chief Justice and to alter wholly the basis on which the Judicial Appointments Commission would operate. It would also remove the valuable consistency that underpins the fundamental provisions on appointments, and it would weaken—indeed remove—provision for real
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ministerial responsibility and accountability in relation to the appointment of judges below the High Court. That would be fundamentally wrong. I hope that my noble friend will agree to withdraw his amendment.
Lord Borrie: My Lords, I am somewhat amazed by some of those comments, which sound rather artificial. As a matter of principle, of course, I can understand what my noble and learned friend has said, but the idea that the Lord Chancellor's ministerial accountability should extend to the dozens and dozens of appointments of district judges and recorders that are needed seems to be a stretching of the principle.
As to the practical matter to which I referred, if the bureaucracy is not duplicated, how on earth can the principle to which my noble and learned friend the Lord Chancellor has given voice be carried out in practice? That is what I am concerned about. I must accept what my noble and learned friend the Lord Chancellor has said. I will carefully read what has been said, but in the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 73 [Exercise of powers to reject or require reconsideration]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 166A:
Page 30, line 32, at end insert "or particular functions of that office"
The noble Baroness said: My Lords, these are drafting amendments that clarify the Minister's powers surrounding the requirement to reconsider or reject a candidate for appointment. I will address them in reverse order, since that is the way in which they are most likely to arise.
The changes reflect the fact that judicial office holders have many responsibilities, and a person may be unsuitable for some without being unsuitable for all. If a candidate is admirable in most respects but nevertheless flawed in some particular respect to which the Lord Chancellor attaches importance, Amendment No. 166B allows the Lord Chancellor to ask the commission to reconsider its recommendation of the candidate.
The Lord Chancellor may make such a decision either because in his opinion there is not enough evidence that the person concerned is suitable for the office concerned, or because there is evidence that the person is not the best candidate on merit. The amendment would add to the first of these limbs that there was not enough evidence that the person concerned was suitable for the office concerned or for particular functions of that office.
Secondly, the Bill makes it clear that the Minister may reject a candidate selected by the commission only if, in his opinion, the person selected is not suitable for the office concerned. Amendment No.166A would add,
"or particular functions of that office".

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The amendment makes it clear that he can do so without saying that the candidate was wholly unsuitable in every respect to be appointed to the post or level of post involved.
It may assist the House if I remind your Lordships that when addressing amendments to Clauses 68 and 69, dealing with the appointments to the High Court Bench, we noted that some further work was needed to ensure that the provisions dealt adequately with the full range of bulk competitions and reserve lists. The procedures covered in the amendments are obviously related and will form part of that consideration. That will of course take place with the help of the working party under the chairmanship of Lady Justice Arden. I beg to move.
On Question, amendment agreed to.
Lord Carlisle of Bucklow: My Lords, before we go any further, may I take up a point that the noble Lord, Lord Renton, has made? I understood that there was a convention in the House that we did not sit after ten o'clock. It is now 10·35 p.m., and we have a certain number of important amendments to come.
The amendment that I am considering particularly is the one for the sunrise clause. Is the Minister really expecting to pursue that amendment at this stage? If he is, can I have the assurance that on Third Reading we will be entitled, having had the chance to hear what he says, to put down amendments to the sunrise clause to strengthen it or otherwise? I accept that it is to some extent a matter of total agreement, but it is a matter of importance that was emphasised during the Select Committee sittings. I thought that it should have been discussed an hour earlier than this, and I simply wanted to say so.
Lord Evans of Temple Guiting: My Lords, an agreement was reached with the usual channels that we would finish the Report stage tonight, and that is what we plan to do. I give an undertaking that amendments can be tabled to the sunrise clause on Third Reading.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 166B:
Page 30, line 37, after "concerned" insert "or particular functions of that office"
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 166C:
After Clause 76, insert the following new clause—
"Assistance in connection with other appointments

ASSISTANCE IN CONNECTION WITH OTHER APPOINTMENTS
(1) The commission must provide any assistance requested by the Minister under this section.
(2) The Minister may request assistance for the making by him or by another Minister of the Crown of an appointment or recommendation for appointment, other than one to which section 17 or a provision of this Part applies.
(3) The Minister may only request assistance under this section if it appears to him appropriate because of the commission's other functions under this Part and the nature of the appointment concerned.
(4) Without limiting the assistance that may be requested, it may include—

(a) determining a selection process;

(b) applying a selection process;

(c) selecting a person;

(d) selecting a short list;

(e) advice on any of those matters.

(5) Before making a request the Minister must consult—

(a) the Lord Chief Justice, and

(b) the commission.

(6) In this section "appointment" includes the conferring of any public function.
(7) In this Part references to selection under this Part include references to selection by the commission pursuant to a request under this section (and references to a person selected under this Part are to be read accordingly)."
The noble Baroness said: My Lords, the amendment will provide a statutory basis for involving the Judicial Appointments Commission in the selection of candidates for appointment to judicial posts not otherwise catered for in the Bill. The Lord Chancellor's current role in judicial appointments in England and Wales means that he is often involved, to a greater or lesser extent, in advising on similar appointments elsewhere. For example, he advises the Secretary of State for Foreign and Commonwealth Affairs on whom Her Majesty's Government should recommend for appointment to the European Court of Justice or the European Court of Human Rights.
It is clear that the commission should not be responsible per se for appointments to international courts because those are not appointments in England and Wales, and in many cases the appointment does not formally lie within the gift of the UK Government. On the other hand, the commission will in due course be the country's expert in judicial appointments. The expertise in detailed selection processes currently held by the Lord Chancellor and his staff will diminish over time. So it should be open to the Secretary of State to use the commission's expertise on an ad hoc basis when he wishes to do so, including appointments to international courts. However, we do not believe that he should be obliged to involve the commission. That is because what he is asked to do in relation to any particular post varies very widely.
The amendments enable the Lord Chancellor, after consulting the Lord Chief Justice, either to require the commission to select someone to be appointed or nominated for posts not listed in the relevant schedule to the Bill or to advise him on the selection of such a person. The power is drafted widely in order to avoid questions about what does or does not constitute a judicial post. The final part of the amendment extends the ombudsman's remit to complaints about how the commission has conducted a selection under the provision. I beg to move.
On Question, amendment agreed to.
Clause 84 [Consultation on appointment of lay justices]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 167:
Page 34, line 21, leave out "Secretary of State for Constitutional Affairs" and insert "Lord Chancellor"
The noble and learned Lord said: I beg to move.
Lord Henley: My Lords, can the noble and learned Lord the Lord Chancellor tell us on which group we spoke to Amendment No. 167? I have it grouped separately.
Lord Falconer of Thoroton: My Lords, it was the group spoken to on the previous occasion. I do not know whether the noble Lord, Lord Henley, recalls that we went through all of the changes in one group—I think that it was group 15—in order to change references to the Secretary of State for Constitutional Affairs to Lord Chancellor. I am sorry that I cannot give the exact reference but the noble Lord, Lord Henley, did well in ensuring that I was awake.
Lord Henley: My Lords, I am very grateful to the noble and learned Lord the Lord Chancellor but it would help if he told us with which group he spoke to the relevant amendment when he next intervenes.
On Question, amendment agreed to.
Clause 85 [Confidentiality]:
[Amendment No. 168 not moved.]
Clause 87 [Disciplinary powers]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 168A:
Page 36, line 8, leave out "from office the holder of" and insert "a person from"
The noble Baroness said: My Lords, these amendments are mainly drafting and technical amendments designed to improve Clauses 87 to 90 of the Bill, which deal with judicial disciplinary matters. They follow discussion of the detail of these provisions with Lady Justice Arden and the other members of the judges working group on the Bill.
I should highlight to your Lordships that there remain some amendments relating to judicial discipline which the Government will seek to bring forward at a later stage. In particular we wish to clarify that, in relation to Scottish or Northern Irish members of UK-wide tribunals, disciplinary powers will continue to be exercised by the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland, as appropriate, with the agreement of the Lord Chancellor, rather than by the Lord Chief Justice of England and Wales.
Of the amendments moved today, I should like to draw attention in particular to Amendment No. 168U which permits the Lord Chancellor, with the agreement of the Lord Chief Justice, to designate offices whose holders will be subject to the disciplinary provisions of the Bill although they are not offices listed in Schedule 12 and not senior judges. The offices must be ones from which the Minister has the power
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to remove. The amendment is designed to allow office holders such as coroners to be brought fully within the disciplinary regime.
Most of the other amendments in this group—Amendments Nos. 168A to 168L, 168N and 168P—delete various references to "judicial office holder" in Clauses 87 and 88 and replace them with "person". Amendment No. 168R makes a consequential change to the definition of judicial office holder, which is turned into a definition of judicial office. It is still clear from the overall drafting of the provisions that the persons concerned are judicial office holders. However, this change allows for the fact that an office holder may hold more than one appointment, and I hat sanctions applied to him in relation to one office may not automatically apply to others.
Amendment No. 168N1 corrects a mistake, which was referred to in Committee, in the definition of criminal proceedings in Clause 88. This governs when the Lord Chief Justice may suspend a judge who is subject to criminal proceedings. As currently drafted, this includes only proceedings on indictment from committal until the conclusion of the case. This excludes offences in Scotland and offences tried summarily. The amendment will mean that a judicial office holder in England and Wales who is subject to any criminal proceedings throughout the United Kingdom, including summary offences, may be suspended by the Lord Chief Justice if he thinks it appropriate and if the Lord Chancellor agrees.
Amendment No. 168Q clarifies the definition of when a senior judge is subject to proceedings for an Address in Parliament. The existing clause would mean that a senior judge was no longer subject to an Address if it were amended in any way at all. The amendment clarifies that a senior judge will remain subject to an Address unless it is amended in a way which means that it is no longer an Address for the removal of that person from office; or unless it is withdrawn, lapses or is disagreed to.
Amendments Nos. 168S and 168T remove unnecessary references to the Lord Chancellor and the Lord Chief Justice in Clauses 89(1) and 90(2)(a). First, that avoids giving the misleading impression that the Lord Chancellor and Lord Chief Justice will personally investigate all disciplinary cases. It also makes it clear that regulations made under Clause 89 can allow for disciplinary responsibilities to have been delegated, and that certain decisions may be made by people other than the Lord Chancellor and the Lord Chief Justice. I beg to move.
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 168B to 168L
Page 36, line 10, at end insert "(as well as any other requirements to which the power is subject)"
Page 36, line 19, leave out "judicial office holder" and insert "person from a judicial office"
Page 36, line 21, leave out "office holder" and insert "person"
Page 36, line 22, leave out "office holder" and insert "person"
Page 36, line 23, leave out "office holder" and insert "person"
Page 36, line 26, leave out "judicial office holder" and insert "person from a judicial office"
Page 36, line 27, leave out "office holder" and insert "person"
Page 36, line 28, leave out "office holder" and insert "person"
Page 36, line 33, leave out from "a" to "is" and insert "person from office as a senior judge for any period during which the person"
Page 36, line 36, leave out "office holder" and insert "person"
On Question, amendments agreed to.
Clause 88 [Disciplinary powers: interpretation]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 168M to 168R:
Page 37, line 3, leave out subsection (2) and insert—
"(2) A person is subject to criminal proceedings if in any part of the United Kingdom proceedings against him for an offence have been begun and have not come to an end, and the times when proceedings are begun and come to an end for the purposes of this subsection are such as may be prescribed."
Page 37, line 7, leave out "senior judge" and insert "person"
Page 37, line 9, leave out "judge" and insert "person"
Page 37, line 11, leave out paragraphs (b) and (c) and insert—

"(b) either motion is amended so that it is no longer a motion for an address for removal of the person from office;

(c) either motion is withdrawn, lapses or is disagreed to;"

Page 37, line 15, leave out subsection (4) and insert—
"(4) "Judicial office" means—

(a) office as a senior judge, or

(b) an office listed in Schedule 12;

and "judicial office holder" means the holder of a judicial office."
On Question, amendments agreed to.
Clause 89 [Regulations about procedures]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 168S:
Page 37, line 33, leave out "by the Lord Chief Justice or the Minister"
On Question, amendment agreed to.
Clause 90 [Contents of regulations]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 168T and 168U:
Page 38, line 18, leave out "by the Lord Chief Justice or the Minister"
After Clause 91, insert the following new clause—
"EXTENSION OF DISCIPLINE PROVISIONS TO OTHER OFFICES
(1) This Chapter applies in relation to an office designated by the Minister under this section as it would apply if the office were listed in Schedule 12.
(2) The Minister may by order designate any office, not listed in Schedule 12, the holder of which he has power to remove from office.
(3) An order under this section may be made only with the agreement of the Lord Chief Justice."
On Question, amendments agreed to.
10.45 p.m.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 168V:
After Clause 97, insert the following new clause—
"PART 3A
JUDICIAL DISCIPLINE: NORTHERN IRELAND
"REMOVAL FROM MOST SENIOR JUDICIAL OFFICES
In the Judicature (Northern Ireland) Act 1978 (c. 23) before section 13 insert—
"12B TENURE OF OFFICE
(1) The Lord Chief Justice, Lords Justices of Appeal and judges of the High Court hold office during good behaviour (subject to section 26 of, and Schedule 7 to, the Judicial Pensions and Retirement Act 1993).
(2) Her Majesty may on an address presented to Her Majesty by both Houses of Parliament remove a person from office as Lord Chief Justice, a Lord Justice of Appeal or a judge of the High Court.
(3) A motion for the presentation of an address to Her Majesty for the removal of a person from any of those offices may be made—

(a) to the House of Commons only by the Prime Minister; and

(b) to the House of Lords only by the Lord Chancellor.

(4) Neither the Prime Minister nor the Lord Chancellor may make a motion for the presentation of such an address unless a tribunal convened under section (Tribunals for considering removal) of the Constitutional Reform Act 2005 has reported to the Lord Chancellor recommending that the person be removed from the office on the ground of misbehaviour.
(5) The Prime Minister shall lay a copy of the report before the House of Commons before making a motion for the presentation of an address in that House; and the Lord Chancellor shall lay a copy of it before the House of Lords before making such a motion in that House.
(6) If the Prime Minister and Lord Chancellor are considering the making of motions for the presentation of an address to Her Majesty in relation to the Lord Chief Justice, the Prime Minister may suspend him from office; and if they are considering the making of such motions in relation to a Lord Justice of Appeal or a judge of the High Court the Prime Minister may suspend him from office with the agreement of the Lord Chief Justice.
(7) If a person is suspended from an office under subsection (6), he may not perform any of the functions of the office (but his other rights as holder of the office are unaffected).""
The noble Baroness said: My Lords, I shall speak to Amendments Nos. 168V to 168Y and those grouped with these amendments. The amendments insert a new Part 3A in the Bill to provide for the removal of judges in Northern Ireland in the period prior to devolution of justice to the Northern Ireland Assembly.
Amendment No. 168V inserts new Section 12B into the Judicature (Northern Ireland) Act 1978 to provide for the removal of judges from the most senior judicial offices in Northern Ireland. The clause provides that, as at present, the Lord Chief Justice, Lords Justice of Appeal and High Court judges may be removed by the Queen on an Address by both Houses of Parliament. An Address may be made to the House of Commons by the Prime Minister and to the House of Lords by the Lord Chancellor. However, no such Motion may be

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made unless a tribunal with a strong judicial membership has been convened and has recommended removal in a report to the Lord Chancellor. The report is to be laid before both Houses before the Prime Minister and Lord Chancellor can make a Motion for removal. New Section 12B(6) provides for suspension of the judge in question while the making of this Motion is under consideration.
Amendment No. 168W gives the Lord Chancellor the power to remove from office a member of the judiciary below High Court judge level. Removal is possible only for reasons of misbehaviour or inability, and can take place only on the basis of a recommendation of a tribunal convened under the new clause installed at Amendment No. 168X and following consultation with the Lord Chief Justice. The clause also provides for the Lord Chancellor to suspend persons from such judicial office pending a decision on their removal if the tribunal recommends this and the Lord Chief Justice is consulted.
When speaking about Amendments Nos. 168V and 168W, I said that the removal of a judicial office holder is possible only on the recommendation of a removals tribunal. Amendment No. 168X provides a new clause detailing how such a tribunal is to be set up and providing for its membership. The membership and power to convene varies, depending on the level of judge whose removal is under consideration. Amendment No. 168Y defines for the purposes of new Part 3A the meaning of listed judicial office, the Lord Chief Justice, the Lord Justice of Appeal and protected judicial office.
Amendment No. 179A provides for consequential technical amendments to the Justice (Northern Ireland) Act 2002. They provide for the repeal of the provisions in this Bill, dealing with the removal of judges in Northern Ireland and devolution of justice functions to the Northern Ireland Assembly. As noble Lords are aware, the post-devolution arrangements for removal of judges in Northern Ireland are set out in the 2002 Act. I beg to move.
Lord Goodhart: My Lords, I am sorry to raise a wholly technical point, but some of the way in which this has been laid out is confusing. For instance, it appeared to me, until the noble Baroness explained it, that Amendment No. 168W inserted a new clause into this Bill and not the Judicature (Northern Ireland) Act 1978. I am not at all clear what the position is.
Baroness Ashton of Upholland: My Lords, as I began, the amendments do insert a new Part 3A in the Bill, but I also indicated that they insert a new Section 12B into the Judicature (Northern Ireland) Act 1978. I am perfectly happy to write to the noble Lord, Lord Goodhart, to ensure that he is happy with what I said and the way in which it is laid out, if that would be helpful.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 168W to 168Y:
After Clause 97, insert the following new clause—
"REMOVAL FROM LISTED JUDICIAL OFFICES
(1) A person holding a listed judicial office other than as a judge of the High Court may be removed from office (and suspended from office pending a decision whether to remove him) but only in accordance with this section.
(2) The power to remove or suspend him is exercisable by the Lord Chancellor.
(3) He may only be removed if a tribunal convened under section (Tribunals for considering removal) has reported to the Lord Chancellor recommending that he be removed on the ground of misbehaviour or inability to perform the functions of the office.
(4) He may only be suspended if the tribunal, at any time when it is considering whether to recommend his removal, has recommended to the Lord Chancellor that he be suspended.
(5) He may not be removed or suspended except after consultation with the Lord Chief Justice.
(6) If he is suspended he may not perform any of the functions of the office until the decision whether to remove him has been taken (but his other rights as holder of the office are unaffected)."
After Clause 97, insert the following new clause—
"TRIBUNALS FOR CONSIDERING REMOVAL
(1) A tribunal to consider the removal of the Lord Chief Justice may be convened by the Lord Chancellor.
(2) A tribunal to consider the removal of the holder of any other protected judicial office may be convened—

(a) by the Lord Chancellor, after consulting the Lord Chief Justice, or

(b) by the Lord Chief Justice, after consulting the Lord Chancellor.

(3) A tribunal to consider the removal of the Lord Chief Justice or a Lord Justice of Appeal may not be convened unless the Prime Minister has been consulted.
(4) A tribunal to consider the removal of the Lord Chief Justice, a Lord Justice of Appeal or a judge of the High Court is to consist of—

(a) a person who holds high judicial office within the meaning of Part 2 and does not hold (and has never held) the office of Lord Chief Justice, Lord Justice of Appeal or judge of the High Court,

(b) a person who is, or has been, a judge of the Court of Appeal of England and Wales or the Inner House of the Court of Session, and

(c) a person who does not hold (and has never held) a protected judicial office and is not (and has never been) a barrister or solicitor.

(5) A tribunal to consider the removal of the holder of any other protected judicial office is to consist of—

(a) a person who holds, or has held, the office of Lord Chief Justice or Lord Justice of Appeal,

(b) a person who holds the office of judge of the High Court, and

(c) a person who does not hold (and has never held) a protected judicial office and is not (and has never been) a barrister or solicitor.

(6) The chairman of a tribunal is the person mentioned in paragraph (a) of subsection (4) or (5).
(7) The selection of the persons to be the members of a tribunal under paragraphs (a) and (b) of subsection (4) is to be made by the Lord Chancellor, after consultation with—

(a) the Lord Chief Justice (unless the tribunal is to consider his removal from office),

(b) the President of the Supreme Court of the United Kingdom,

1313

(c) the Lord Chief Justice of England and Wales, and

(d) the Lord President of the Court of Session.

(8) The selection of the persons to be the members of a tribunal under paragraphs (a) and (b) of subsection (5) is to be made by the Lord Chief Justice.
(9) The selection of the person who is to be the member of a tribunal under paragraph (c) of subsection (4) or (5) is to be made by the Lord Chancellor.
(10) The procedure of a tribunal is to be determined by the Lord Chief Justice except where—

(a) the office of Lord Chief Justice is vacant,

(b) he is not available, or

(c) the tribunal is to consider his removal from office;

and in such a case its procedure is to be determined by its chairman.
(11) The Lord Chancellor may pay to a member of a tribunal any such allowances or fees as he may determine."
After Clause 97, insert the following new clause—
"INTERPRETATION OF PART 3A
In this Part—
"listed judicial office" means an office listed in Schedule I to the Justice (Northern Ireland) Act 2002 (c. 26);
"Lord Chief Justice", unless otherwise stated, means the Lord Chief Justice of Northern Ireland;
"Lord Justice of Appeal" means a person styled as such under section 3 of the Judicature (Northern Ireland) Act 1978 (c. 23);
"protected judicial office" means the office of Lord Chief Justice, the office of Lord Justice of Appeal or a listed judicial office."
On Question, amendments agreed to.
Clause 98 [Parliamentary disqualification]:
[Amendment No. 168Z not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 168AA:
Page 41, leave out lines 32 and 33.
The noble and learned Lord said: My Lords, this is about the supplementary panel. Issues arise about whether members of the supplementary panel of the Supreme Court should be able to sit and vote in your Lordships' House.
I have closely considered the views expressed on this issue by your Lordships, and I have concluded that membership of the panel is in reality a part-time judicial office, and it would not work against our principle of functional separation to allow members of the panel to participate in the business of the House as fully as may other holders of part-time judicial office. The proportion of time that they would spend sitting judicially would be limited, and the ability to ensure that they are not called on to sit in cases with which they have had any connection through business of this House is far greater than is possible with full-time, permanent judges. Amendment No. 168AA therefore deletes the reference to members of the Supreme Court's supplementary panel from Clause 98(1), with the effect that they will not come under the disqualification in subsection (2).
Some concern has been expressed by this House that it will suffer from the loss of judicial expertise in its committee work; I hope that the amendment will go some way towards alleviating that concern. The other amendments that I propose to Clause 98—Amendments Nos. 168AB, 168AC and 169C—are technical amendments to ensure that the rules governing disqualification from membership of the Northern Ireland Assembly are, as respects Supreme Court judges, aligned with those for the House of Commons and the Scottish Parliament, and to improve the structuring of the clause in consequence. I beg to move.
Viscount Bledisloe: My Lords, grouped with the amendment is my Amendment No. 169, which I tabled to give the noble and learned Lord the Lord Chancellor the opportunity to put on public record what he has said privately; namely, that Clause 98(2) will not alter the position of Lords of Appeal in Ordinary in relation to their participation in this House, until such time as the Supreme Court comes into being. As I understand it, Lords of Appeal in Ordinary are, not surprisingly, not dealt with in the House of Commons Disqualification Act 1975. I invite him to confirm that that is the position.
Lord Falconer of Thoroton: My Lords, I confirm it, not only privately but publicly. If the noble Viscount had been listening earlier—I can understand why he was not—I said it in my speech at the end of the first amendment. I repeat it now for noble Lords who were not there.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 168AB and 168AC
Page 41, line 33, at end insert—
"() In Part 1 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (c. 25) (judicial offices disqualifying for membership) at the beginning insert— "Judge of the Supreme Court.""
Page 41, line 34, leave out from "any" to "disqualified" in line 36 and insert "disqualifying judicial office,"
On Question, amendments agreed to.
[Amendments Nos. 169 to 169B not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 169C:
Page 41, line 39, at end insert—
"() In subsection (2) "disqualifying judicial office" means any of the judicial offices specified in—

(a) Part 1 of Schedule 1 to the House of Commons Disqualification Act 1975, or

(b) Part 1 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975."

On Question, amendment agreed to.
[Amendments Nos. 169D and 170 not moved.]
Schedule 13 [Judicial Committee of the Privy Council]:
[Amendments Nos. 171 and 172 not moved.]
Clause 101 [Interpretation]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 173
Page 42, line 15, leave out "Secretary of State for Constitutional Affairs" and insert "Lord Chancellor"
On Question, amendment agreed to.
Clause 103 [Orders and regulations]:
The Duke of Montrose The Duke of Montrose moved Amendment No. 174:
Page 43, line 7, at end insert—
"(2) Any power to make an order or regulations under this Act shall only be exercised after appropriate consultation has been undertaken with persons likely to be affected by it."
The noble Duke said: My Lords, 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 and regulations under the Bill, as well as their being subject to oversight by the House. I beg to move.
Baroness Ashton of Upholland: My Lords, I thank the noble Duke and the Law Society of Scotland, which has been involved with the amendment, for their work on the matter. We have considerable sympathy with the spirit of the amendment, but considerable difficulty with the letter of it.
I appreciate the concerns regarding the setting up of the Supreme Court. I agree with the noble Duke that an inclusive approach is required in making the orders and regulations. We accept and understand the need to consult the right people before framing the secondary legislation under the Bill, and value the responses that we have had to ensure that we get that right and make the right decisions.
The Bill sets out detailed arrangements for consultation where there is a clear individual or group of persons whose input is essential to make sure that the legislation will operate effectively. As I stated in response to Amendments Nos. 142 and 143 to Clause 44, tabled by the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour, the Government agree with the consultation requirement in relation to Supreme Court fees and I have tabled Amendment No. 141A to that effect.
In other cases, we expect to hold a proper consultation of those who can help in framing any provision, but we do not believe that those arrangements, of the kind which apply in many areas of government business, should in the case of this Bill be overlain with such a broad and unspecific requirement. I hope that on that basis the noble Duke will withdraw his amendment.
The Duke of Montrose: My Lords, I thank the noble Baroness for that explanation of the Government's view. It has certainly gone a long way toward allaying fears that there might not be enough consultation. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.175 not moved.]
Lord Henley Lord Henley moved Amendment No.175A:
Page 43, line 12, leave out paragraph (a).
The noble Lord said: My Lords, I referred to this matter in Committee when I received an assurance from the noble Baroness, Lady Ashton, that I had spotted a mistake in the Bill. I am asking for the removal of the reference to "section 51", because the subsection specifies that any orders made under paragraphs (a) and (b) would be made by affirmative resolution. If one then refers back to Clause 51 on page 21, one discovers that no orders are made under that clause. The Minister assured me that that would he corrected. That has not been done. I have, therefore, tabled the amendment for the noble Baroness, hoping that she will accept it. I beg to move.
Baroness Ashton of Upholland: My Lords, nothing would please me more than to be able to accept the amendment, but unfortunately, as drafted, it would leave Clause 103 saying:
"Those provision are … paragraph 5 of Schedule 10".
I am sure that the noble Lord would not want me to accept it on that basis. I completely accept the noble Lord's point. I absolutely assure him that the mistake will be corrected; I will indicate to him precisely when and ensure that it happens.
Lord Henley: My Lords, I did have that assurance from the noble Baroness at a previous stage. I appreciate that my drafting is not as felicitous as might have been managed by those who are in charge of such matters, but I hope that the noble Baroness can give me an assurance before I sit down that this will actually happen before the Bill leaves this House.
Baroness Ashton of Upholland: My Lords, indeed, I give the noble Lord that assurance. I am terribly sorry that it was not corrected before.
Lord Henley: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 14 [Minor and consequential amendments]:
Lord Falconer of Thornton Lord Falconer of Thornton moved Amendments Nos.176 to 178
Page 231, line 23, leave out paragraph 1.
Page 231, leave out line 28.
Page 232, line 7, leave out paragraph 6.
On Question, amendments agreed to.
[Amendment No.179 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.179A:
Page 236, line 22, at end insert—
"PART 3

NORTHERN IRELAND
Justice (Northern Ireland) Act 2002 (c. 26)
1 The Justice (Northern Ireland) Act 2002 is amended as follows.
2 In section 6, for the words from the beginning to "insert—" substitute "For section 12B of the Judicature (Northern Ireland) Act 1978 substitute—".
3 In Schedule 13 (repeals and revocations) insert in the appropriate place—

Constitutional Reform Act 2002

Sections (Removal from most senior judicial offices) to (Tribunals for considering removal).""

On Question, amendment agreed to.
Schedule 15 [Repeals and revocations]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No.180:
Page 237, leave out lines 29 and 30.
The noble Baroness said: My Lords, as a result of changes made by other amendments, both in Committee and on Report, Amendments Nos. 180 to 185 add additional references or delete defunct references to Schedule 15—the tables of provisions that are repealed or revoked by the Bill. The amendments have already been spoken to. I beg to move.
On Question, amendment agreed to.
11 p.m.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos.181 to 185:
Page 237, leave out line 35.
Page 239, leave out lines 6 to 12.
Page 239, line 12, at end insert—

"Courts and Legal Services Act 1990 (c. 41)"

Section 11(10).

Page 239, line 27, column 2, at beginning insert "In"
Page 240, leave out lines 1 to 36.
On Question, amendments agreed to.
[Amendments Nos. 186 to 188 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos.189 to 191:
Page 240, leave out line 40.
Page 241, leave out line 4.
Page 241. leave out line 17.
On Question, amendments agreed to.
[Amendment No. 192 not moved.]
Clause 106 [Extent]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.192A:
Page 43, line 31, at end insert—
"() Part 3A extends to Northern Ireland only."
On Question, amendment agreed to.
Clause 107 [Commencement]:
Viscount Bledisloe Viscount Bledisloe moved Amendment No.193:
Page 43, line 38, at end insert
"() No order shall be made to bring Part 2 into force unless the Lord Chancellor is satisfied that appropriate premises are available which are ready for use as the Supreme Court or will he so ready when that Part comes into effect.
() In this section—
"appropriate premises" means premises built to a design which the Lord Chancellor has, after consultation with the Lords of Appeal in Ordinary, approved as being appropriate for use as the Supreme Court;
"built" includes altered or renovated."
The noble Viscount said: My Lords, with great glee, your Lordships have now come finally to the sunrise clause. There are two versions of it. After some negotiation with the noble and learned Lord the Lord Chancellor, I am content to allow him to prefer his version. I think that both achieve the same result; namely, that there are two stages to the sunrise clause.
First, the Lord Chancellor—I thought that the noble and learned Lord was going to describe him as the "Lord Chancellor" and not as the "Minister" in his amendment—must decide whether to put forward plans which are, in his view, suitable for providing accommodation for the Supreme Court. He then has to consult the Lords of Appeal in Ordinary about those and, having done that, he may approve the plans. The plans are then implemented and, when the accommodation built in accordance with the plans is completed or nearly completed, he may then, and only then, bring the Supreme Court provision into effect. That seems to me to be a satisfactory form for the sunrise clause to take and, as I said, I am prepared to accept the noble and learned Lord's wording.
I do not know whether the noble Lord, Lord Kingsland, is intending to move Amendment No. 193B. If he is, I must point out to him that I am not sure whether he has the timing right because the matter would come before the House only when the premises were fully built and virtually ready. It would seem a little late at that stage for the House to say that it did not like them.
Surely if the matter is to be considered by the House, it should be considered at the stage when the plans are approved rather than when the building is completed, when the House could say, "Well, it doesn't seem to us, contrary to what the Lord Chancellor says, that it is ready", or, "It doesn't seem to have been built in accordance with the plans and is a totally different building". I do not think that that is a very useful function for the House, although it might well be useful for the House to consider the matter at the planning stage, when it would be able to see more realistically what the building would cost.
However, having formally moved Amendment No. 193, I shall withdraw it in due course in expectation of the noble and learned Lord the Lord Chancellor moving Amendment No. 193A. I beg to move.
Lord Maclennan of Rogart: My Lords, at this hour the words that spring to my mind are those of William Shakespeare in an early scene in Hamlet:
"But, look, the morn, in russet mantle clad, Walks o'er the dew of yon high eastward hill".
An appropriate conclusion to our deliberations today is to say a most profound "Thank you" to the noble and learned Lord the Lord Chancellor for the amendment that he is about to move and which has already been accepted by the mover of Amendment No. 193. It is a most welcome development, albeit to some extent a constitutional innovation, that the bricks and mortar should precede the creation of the new institution. Certainly that would not have gone down well in Scottish devolutionary terms.
Lord Kingsland: My Lords, I thought I would add my own Shakespearean contribution to your Lordships' deliberations, adapting the first lines of Hamlet's great soliloquy by saying, "To build or not to build, that is the question" that lies before your Lordships tonight. It is wholly relevant to the sunrise clause, which is before us in this group of amendments. I am perfectly content with the version proposed by the noble and learned Lord the Lord Chancellor and my contentment is reinforced by the support from the noble Viscount, Lord Bledisloe.
I am most grateful to the noble Viscount for his advice on our drafting. I shall certainly take it into account when the matter re-emerges a few days hence at Third Reading. The reason why Amendment No. 193B has been tabled is to cater for a set of circumstances in which the preferred option of the noble and learned Lord the Lord Chancellor does not transpire to be a runner; and that, after careful reflection, the noble and learned Lord, or one of his successors, decides to promote another building, or indeed to build a new building, whose costs are out of all proportion to those envisaged with the current preferred option. In those circumstances, I should have thought it wholly appropriate for Parliament to look again at the matter through a delegated legislative procedure, along the lines suggested by Amendment No. 193B.
I agree with the noble Viscount, Lord Bledisloe, that the earlier that Parliament has a chance to consider this matter the better. It may be that the planning stage, rather than the order stage, is the more appropriate moment at which to re-engage Parliament's responsibilities.
Lord Brooke of Sutton Mandeville: My Lords, I shall be extremely brief, particularly at this hour. Earlier today, a reference was made to the Scottish Parliament. I speak as a veteran of the building of the British Library. The noble Lord, Lord Barnett, negotiated with Mrs Shirley Williams, as she then was, in a manner that he later described in his book about
1320
his life at the Treasury. He said that the arrangements at the Treasury had been so tightly drawn that, were there to be any setback in the economy during the construction of the British Library, there was not the faintest possibility of it being built before the end of the century.
In 1994, I appeared before Mr Kaufman's committee, which was investigating the delays. Towards the end of my examination, he asked me a sharp question: "Minister, you must know that someone is responsible for all this". Knowing that it would greatly curtail the proceedings if I answered in a particular way, I said:
"Mr Chairman, you must know that of course under ministerial responsibility it is I who am responsible".
Since the British Library was finished in 1998, I can claim, in the phrase of the noble Lord, Lord Barnett, "some small credit for a miracle". But the fact that that took 20 years is a sombre warning to the Lord Chancellor about what he has embarked upon. It is a perfectly admirable development that this sunrise clause has been built in, so that final developments will not occur until the building is complete.
Lord Falconer of Thoroton: My Lords, what a refreshing intervention from the noble Lord, Lord Brooke. The noble Lord has not spoken in this particular debate and because we have been at it for about seven hours we are all delighted to hear a new voice and see a fresh face. Unfortunately, he turned out to be the ghost of the British Library past, but we take his warnings on board.
I pay a heartfelt tribute to the noble Viscount, Lord Bledisloe, for the work he has done on the sunrise clause. Although he was kind enough to call it my sunrise clause, in fact the inspiration for it and the major part of the drafting came from the noble Viscount. I am very grateful for that.
We all agree that we should have the sunrise clause. I oppose strongly Amendment No. 193B of the noble Lord, Lord Kingsland. The sunrise clause, as the noble Lord, Lord Brooke, said, is an important and sensible amendment. But the idea that Parliament should have a third look at this is not sensible. It would not be appropriate to have a Supreme Court built and for Parliament then not to give permission to go ahead. That is why we have to address the principle and look at the protections in place. On that basis, I invite the noble Viscount to withdraw his amendment and I will move mine.
Viscount Bledisloe: My Lords, accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No.193A:
Page 44, line 8, at end insert—
"(3A) An order by which section 14(1) comes into force at any time may not be made unless the Minister is satisfied that the Supreme Court will at that time be provided with accommodation in accordance with written plans that he has approved.
(3B) The Minister may approve plans only if, having consulted the Lords of Appeal in Ordinary holding office at the time of the approval, he is satisfied that accommodation in accordance with the plans will be appropriate for the purposes of the Court."
On Question, amendment agreed to.
[Amendment No. 193B not moved.]
In the Title:
[Amendment No. 194 not moved.]
House adjourned at twelve minutes past eleven o'clock.

  Ministry of Defence: Senior Responsible Owners
  Ministry of Defence: Senior Responsible Owners
  Ministry of Defence: Urgent Operational Requirements
  Ministry of Defence: Urgent Operational Requirements
  Lithuania: Deployment of British Forces
  Lithuania: Deployment of British Forces
  National Firearms Management System
  National Firearms Management System
  Cheque Books: Fraudulent Use
  Cheque Books: Fraudulent Use
  Vehicles: All-Wheel Braking
  Vehicles: All-Wheel Braking
  School Transport Bill
  School Transport Bill
  Children Trafficking: Safehouses
  Children Trafficking: Safehouses
  Gypsy and Irish Traveller Children: Education
  Gypsy and Irish Traveller Children: Education
  Zimbabwe: England Cricket Tour
  Zimbabwe: England Cricket Tour
  Employment Tribunals
  Employment Tribunals
  Croatia: International Criminal Tribunal
  Croatia: International Criminal Tribunal
  EU: Constitution
  EU: Constitution
  Kosovo: Roma People
  Kosovo: Roma People
  Côte d'Ivoire
  Côte d'Ivoire
  Somalia
  Somalia
  British Council: Russian Operations
  British Council: Russian Operations
  Russia: Human Rights
  Russia: Human Rights
  Russian Labour Code
  Russian Labour Code
  Turkey: Minefield Clearance
  Turkey: Minefield Clearance
  Healthcare Commission
  Healthcare Commission
  Defra: Advisers
  Defra: Advisers
  Rural Payments Agency
  Rural Payments Agency
  Prison and Probation Services
  Prison and Probation Services

  Supreme Court Building
  The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)
  The location and the setting for the UK Supreme Court should be a reflection of its importance and its place at the apex of the justice system, and the heart of the constitution. Providing the Supreme Court with its own building provides a physical demonstration of the separation between the judiciary and the legislature. Establishing the Supreme Court in the Palace of Westminster would be entirely inappropriate.

  Following an extensive search and evaluation of potential sites in central London, I am today announcing that Middlesex Guildhall is my preferred option for housing the Supreme Court.

  There are three key reasons for this decision:

  its location on Parliament Square will mean that the judiciary, the legislature, the executive and the Church are each represented on the four sides of the square enhancing its position at the heart of our capital;

  it is able to provide all the key design requirements of a modern Supreme Court and therefore represents a significant improvement on the Law Lords' current accommodation; and

  it will deliver this much improved accommodation at a reasonable cost, demonstrating good value for money.

  At this stage, I should stress that Middlesex Guildhall is my preferred option. As the detailed designs are developed. I will need to remain satisfied that they fully meet the operational requirements of a modern Supreme Court. This will, of course, require the normal planning approvals and my officials are consulting with English Heritage and Westminster City Council on the development of the designs. The Law Lords have continuing reservations as to the suitability of this building to house the Supreme Court of the United Kingdom. I will continue to consult with them closely on the issues.

  The design proposals

  The building for the new Supreme Court needs to meet the statement of requirements that was agreed with Lord Bingham of Cornhill in August 2003 and subsequently developed in discussion with the Law Lords' Supreme Court Sub-Committee, chaired by Lord Nicholls of Birkenhead. The headline requirement is for a building that measures at least 3,500 square metres, including sufficient space to enable co-location with the Judicial Committee of the Privy Council (currently based in Downing Street).
  WS 72
  My view is that Middlesex Guildhall meets the statement of requirements and would enable much better facilities to be provided than the current arrangements. The proposals for this self-contained and dedicated building include:

  three large hearing rooms, measuring between 143 and 190 square metres. This compares with 94 square metres for House of Lords Committee Room One;

  greatly improved public access: we will ensure that both UK citizens and visitors from overseas have the opportunity to see the Supreme Court of the United Kingdom at work. The hearing rooms will provide approximately twice the number of public seats currently available in the Appellate Committee;

  an education suite enabling information to be disseminated on the Supreme Court and providing the possibility of a live feed from the hearing rooms;

  improved infrastructure, including better IT;

  accommodation for the staff of the Supreme Court and the Judicial Committee of the Privy Council. This includes space for additional research assistants and secretarial staff. This will enable greater support to be provided to the Supreme Court justices and improve case management;

  14 large en-suite judicial chambers; and

  a world-class law library with an area of approximately 250 square metres. Considerable additional space for library records and less used materials will be available in the basement;

  We are developing these plans for the building in close consultation with the Law Lords, English Heritage and Westminster City Council. We would of course need to apply for planning permission in the usual way. The city council is not in a position to accept the principle or the detail of the building scheme at this stage.

  Delivering the Proposals

  Providing the right building for the Supreme Court has financial implications. The cost of establishing the Supreme Court at Middlesex Guildhall will be approximately £30 million in current terms. This £30 million estimate contains two elements: base costs and "optimism bias". The base costs are construction costs and statutory fees of £15 million; £2 million professional fees; and £3 million VAT. Those figures are then inflated by 50 per cent "optimism bias" in accordance with H M Treasury guidance on financial appraisal and evaluation ("The Green Book"). The optimism bias is applied to building projects as a contingency to cover risks, unforeseen issues and changing project specifications.

  But I also need to ensure that the criminal justice system is not adversely affected by the selection of Middlesex Guildhall. I have therefore considered a number of options for providing additional courtrooms and I am confident that the Middlesex work can be decanted while sustaining criminal justice

  WS 73
  performance. I will be discussing these decant plans in detail with the judiciary and criminal justice partners over the next few months. Provision of the additional courtrooms will cost a further £15 million in current terms (including "optimism bias").

  The approximate annual cash running costs following establishment of the Supreme Court would be £8.8 million (£8.4 million relating to the Supreme Court; the remainder being the ongoing costs from courtroom reprovision). This figure includes £2.1 million judicial remuneration; £1.1 million staff salaries; £1.0 million administrative costs; £0.4 million utilities and rates; and £3.8 million building costs (including capital charge/lease costs and building maintenance costs).

  It is not entirely straightforward to separate the administrative costs of the Appellate Committee from the generality of expenditure in the House of Lords, but the approximate annual cost to the public purse of the current arrangements are just over £3.2 million per annum. This figure includes judicial and staff remuneration, and general administrative costs. The table below compares the current and estimated running costs.

  Costs (£ million)

  Appellate Committee Costs 2002–03

  Supreme Court Estimated Costs

  Judicial Salaries

  2.1

  2.1

  Staff Salaries

  0.6

  1.1

  Admin

  0.4

  1.0

  Utilities and Rates

  0.1

  0.4

  Building costs

  3.8

  TOTAL

  3.2

  8.4

  This is a complex project which will require delivery in two key stages: the provision of additional courtrooms needs to be completed before refurbishment work can begin on Middlesex Guildhall itself. While I need to be satisfied that both stages are completed to a high standard, my aim is to establish the Supreme Court as soon as practicable. I would therefore hope that the court's first sitting would be in 2008.

  The Supreme Court would not be established until the building was ready for operation.

  The Search and Evaluation Process

  The search for the Supreme Court has involved:

  reviewing the DCA estate in London;

  considering any suitable properties on the Greater London Magistrates' Court Authority estate;

  advice from the Office of Government Commerce on availability of property on the wide government estate in London;

  contacting 17 Whitehall departments to determine whether any of their buildings would be suitable; and

  commissioning professional agents to search commercially available property.

  WS 74
  The search generated a long list of 48 properties, live of which merited further consideration after closer scrutiny against a number of criteria (size, operational efficiency, adaptability, suitability). After a full Treasury Green Book appraisal of these five options, two properties—Middlesex Guildhall and the New Wing of Somerset House—remained under active consideration.

  In order to finalise the evaluation of the two options, more work was undertaken to identify how the current layouts could be adapted in order to meet the specific requirements of the Supreme Court (including engagement with the Law Lords, English Heritage and Westminster City Council).

  Of these two strong options, my decision that Middlesex Guildhall should be the preferred option was based on the three key reasons set out above: its location on Parliament Square; its fit with the Supreme Court requirements; and its value for money.

  Oversight Commissioner's Report
  The Lord President of the Council (Baroness Amos)
  My honourable friend the Parliamentary Under-Secretary of State for Northern Ireland has made the following Ministerial Statement.

  I have today laid before this House a copy of the Oversight Commissioner's third statutory report for the year 2004 which is being published today, in accordance with Section 68(4)(a) of the Police (Northern Ireland) Act 2000.

  This is the third report compiled by A1 Hutchinson as Oversight Commissioner and the 12th in the series of oversight reports published since 2001.

  Exploitation of Tax Rules
  The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey)
  My right honourable friend the Paymaster General has made the following Written Ministerial Statement.

  Legislation to prevent companies bringing forward tax relief for losses prior to transition to international accounting standards is to be included in the Finance Bill 2005. The legislation applies to losses arising on transactions that are designed to accelerate relief that would otherwise be deferred. The changes will have effect from today.

  A copy of today's Inland Revenue news release giving the relevant background to this measure has been deposited in the Libraries of both Houses and is accessible on the Inland Revenue's web site at http//www.inlandrevenue.gov.uk.

  Government Funding for Sport
  Lord McIntosh of Haringey
  My right honourable friend the Secretary of State for Culture, Media and Sport (Tessa Jowell) has made the following Written Ministerial Statement.

  Today, I am pleased to announce the allocation of government funding for sport through my department for the next three financial years.

  In 2005–06 funding for sport from the Exchequer will be £126.208 million, in 2006–07 it will be £149,708 million, and I am also making an indicative allocation of £155.163 in 2007–08.

  The total breaks down over the three-year cycle as follows:

  2005–06: £126.208 million

  2006–07: £149.708 million

  2007–08: £155.163 million

  In that time Sport England will receive:

  2005–06: £88.916 million

  2006–07: £88.916 million

  2007–08—£88.916 million

  UK Sport will receive:

  2005–06: £29.566 million

  2006–07: £29.566 million

  2007–08: £29.566 million

  The Football Licensing Authority will receive:

  2005–06: £1.264 million

  2006–07–£1.264 million

  2007–08–£1.264 million

  An allocation has been made within the settlement for other sport initiatives, including a possible National Sports Foundation. Exactly how this funding is to be divided has yet to be determined but it in general terms it will be used to support development in terms of volunteering, participation, facilities and the identification and nurture of talented athletes.

  Lord Carter is to publish his report in February. This settlement represents a good result for sport. Overall, it will release over £431 million for sport between 2005–06 and 2007–08 from the Exchequer, and will see annual funding rise 31 per cent from some £118 million in 2004–05 to over £155 million in 2007–08. This will enable us to both strengthen the grass roots of sport, with a renewed emphasis on school and community sport, while also enabling us to identify and nurture a new generation of sporting champions as we build up to the Beijing Olympics in 2008 and the possibility of a London Olympics in 2012.

  I believe that this extra support will enable us to continue to progress towards our shared goal of creating an active and successful sporting nation.

  My friend the Parliamentary Under-Secretary of State for Education and Skills (Mr Stephen Twigg) has also made a Statement today, on behalf of the Prime Minister and me, announcing another great boost for school sport.
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  Of the £431 million announced for sport in this statement, approximately £133.5 million will be used to support the aims and objectives set out in the Statement made by the Parliamentary Under-Secretary of State for Education and Skills.

  Mutual Defence Agreement Amendment
  The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean)
  My honourable friend the Minister for Europe (Dr Denis MacShane) has made the following Ministerial Statement.

  The amendment to the 1958 agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America for Co-operation on the Uses of Atomic Energy for Mutual Defence Purposes (Cm6261), which was laid before the House on 21 June 2004, entered into force on 9 December 2004. The amendment extends the application of Article III (bis) of the agreement for a further 10 years, until 2014.

  Department of Health: Autumn Performance Report
  The Parliamentary Under-Secretary of State, Department of Health (Lord Warner)
  My right honourable friend the Secretary of State for Health has made the following Written Ministerial Statement today.

  Today I announce the publication of the Department of Health's 2004 Autumn Performance Report (Cm 6417). Copies have been placed in the Library. It shows the progress my department has made towards achieving its public service agreement targets.

  The autumn performance report shows that there have been significant further improvements in access to services. The number of National Health Service patients waiting longer than 13 weeks for an out-patient appointment has fallen from 160,745 to 77,503 over the past year. In addition, the number of people waiting more than six months for an in-patient appointment fell from 163,230 to 69,638. During October 2004, 96.4 per cent of all accident and emergency attenders were admitted, transferred or discharged within four hours of arrival. It is now possible to offer over 99 per cent of patients a general practitioner's appointment within two working days or a primary care professional appointment within one working day.

  Patient satisfaction is increasing; the 2003–04 patient survey results showed that 98 per cent of patients rated the care they received from ambulance trusts as excellent, very good or good, and the number of adult in-patients rating their care as excellent has increased by four percentage points since 2001–02.
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  Premature death rates from heart disease among people under 75 have fallen by 27.1 per cent since the baseline of 1995–97; premature deaths from cancer have fallen by 12.2 per cent over the same period. Suicide rates in England are now at their lowest level on record.

  These are just some of the recent achievements of the NHS. These improvements have been made in a demanding year through the hard work, skills and passion of hundreds of thousands of staff in the NHS and its partner organisations, and the increased funding the Government are investing in the NHS.

  School Sport
  The Parliamentary Under-Secretary of State, Department for Education and Skills (Lord Filkin)
  My honourable friend the Parliamentary Under-Secretary of State for Education and Skills (Mr Stephen Twigg) has made the following Written Ministerial Statement.

  The Prime Minister, the Secretary of State for Culture, Media and Sport (my right honourable friend Tessa Jowell) and I are today announcing another boost for school sport.

  In 2002 the Government launched the first ever comprehensive national physical education (PE), school sport and club links strategy with an investment of £459 million for delivery between 2003 and 2006. The aim—a Public Service Agreement (PSA) target shared by the Departments for Education and Skills and for Culture, Media and Sport—is to enhance the take up of sporting opportunities by 5 to 16 year-olds by increasing the percentage of school children who spend a minimum of two hours each week on high quality PE and school sport, within and beyond the curriculum, from 25 per cent in 2002 to 75 per cent by 2006 and to 85 per cent by 2008, and to at least 75 per cent in each School Sport Partnership by 2008.

  Spearheading action is the creation of a national network of at least 400 specialist sports colleges and School Sport Partnerships. There are now 291 colleges—including four academies with a sports focus—and 54 per cent of schools in England are within one of the 313 School Sport Partnerships, benefiting 3.5 million pupils in over 12,000 schools. All schools will be within a School Sport Partnership by 2006.

  We are well on the way to delivering the PSA target. The 2003–04 survey of School Sport Partnerships found that 62 per cent of pupils were spending two hours in a typical week on high quality PE and school sport. It also showed a 16 percentage point difference in take up of the two hour entitlement between pupils in the longest established partnerships and those newer to the programme. The results of the survey were published on 29 April and copies of the report—The Impact of School Sport Partnerships—are available in the House libraries and at http://www.teachemet.gov.uk/pe.
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  This is good progress, but we want to do more. By 2010 our ambition is for all children to be offered at least four hours of sport every week, comprising at least two hours high-quality PE and sport at school and the opportunity for at least a further two to three hours beyond the school day (delivered by a range of school, community and club providers). A further £519 million has been allocated—combined funding from the Departments for Education and Skills and for Culture, Media and Sport—to continue work on the national strategy from 2006–07 to 2007–08 to take us towards this ambition. That means in the five years up to 2008, including £686 million of dedicated lottery funding, government investment in PE and school sport will have totalled over £1.5 billion.

  Many of our 2012 Olympic and Paralympic medal winners are at school today. We are determined to make the pathway from playground to podium a reality for these young people. As part of the additional investment, new competition managers will be put in place to work with School Sport Partnerships. These managers will strengthen the ladder of sporting opportunity by creating a competition structure across all ages, ranging from school-based festivals to national competitions. This will give all children the chance to play competitive sport whatever their age or ability. Our ultimate aim is to have one in each of our school sport partnerships by 2010.

  My right honourable friend the Secretary of State for Culture, Media and Sport (Ms Jowell) is today announcing the allocation of government funding for sport over the next three financial years. This money, together with the measures we have announced today, represents the best ever deal for sport in schools and will help us to achieve our goal of becoming a nation of sporting excellence.

  Age Discrimination: Retirement Age
  The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville)
  My right honourable friend the Secretary of State for Trade and Industry (Ms Hewitt) has made the following Written Ministerial Statement.

  Today my right honourable friend the Secretary of State for Work and Pensions and I are announcing how we will be implementing the age discrimination strand of the European employment directive (Council Directive 2000/78/EC) in relation to retirement age.

  The Government have made it clear that we are strongly committed to tackling unjustified age discrimination in employment and vocational training. We believe that employees, and potential employees, must be judged on the talents and skills they bring to the workplace, and not on assumptions or stereotyped views based on their age, or apparent age. During the last few years, we have turned the tide on a trend that was seeing people drop out of the labour market before state pension age, and we have also seen increasing numbers working beyond this age. These are welcome developments that must continue.
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  This country cannot afford to squander the skills and experience workers of any age have to offer, and demographic changes mean that employers who cut themselves off from a proportion of the skills pool on the basis of prejudice will lose out. We want to give individuals more choices about how long they work and when they retire. We have made these points in the pensions Green Paper, Simplicity, Security and Choice: Working and Saving for Retirement (December 2002) and in the "Age Matters" consultation document on implementing the age discrimination strand of the directive (published in 2003), and elsewhere. Our "Age Positive" campaign has been working towards this since 1997, and increasingly employers themselves are realising the benefits of an age diverse workforce.

  Arrangements are already in place, or will soon be in place, that facilitate more flexible approaches to retirement. With the abolition of the earnings rule in October 1989, the link between retirement and entitlement to the state pension was removed, and so people can continue working beyond state pension age and still receive their state pension. Individuals can also choose to continue working and defer their state pension, and the recent Pensions Act contains more generous options for deferral, to be introduced by 2005, including, for the first time, the option of taking a lump sum. In April 2006, tax rules preventing people drawing their occupational pension whilst continuing to work for the same employer will be abolished.

  The age discrimination strand of the employment directive is due to be implemented by autumn 2006 and is an important part of this process. It will protect individuals against unfair discrimination when looking for work or in employment terms such as promotion arrangements, just because they are considered too young or too old.

  The treatment of retirement age is an important aspect of the implementation of this legislation. We have consulted widely on this issue, both formally and informally, and have listened to a range of strongly held views. We have carefully balanced the arguments on all sides, and have decided that the legislation, which will come into force in autumn 2006, will provide for a national default retirement age of 65 and a right for employees to request working beyond the set retirement age. The decision to have a national default retirement age will be reviewed after five years.

  In setting the default age, we have taken careful note of a number of representations we received in the course of consultations which made it clear that significant numbers of employers use a set retirement age as a necessary part of their workforce planning. While an increasing number of employers are able to organise their business around the best practice of having no set retirement age for all or particular groups of their workforce, some nevertheless still rely on it heavily.
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  Furthermore, our consultations have demonstrated that if all employers only had the option of individually justified retirement ages at the time the legislation was introduced, this could risk adverse consequences for occupational pension schemes and other work-related benefits. Some employers would instead simply reduce or remove benefits they offer to employees to offset the increase in costs.

  Until now, companies have been able to set the age at which their employees retire without any need to justify their choice. So employees may have had to retire at age 60 or even younger, whether or not they wished to continue working. Currently only 30 per cent of people are in employment by the age of 65 and a major part of the response to the ageing society will be for more people to choose to work to that age.

  Following the implementation of this decision, employers will only be able to set their own retirement age for all or some of their workforce below 65 where they can objectively justify this. They would be subject to challenge and would have to show that it was appropriate and necessary to do so.

  The default age is not a compulsory retirement age. Employees will be able to work beyond that age wherever they and their employers agree. Indeed, the Government welcome such agreement, and through the right to request are actively encouraging it.

  This decision on retirement age has no direct implications for occupational or state pension arrangements. The Government have emphasised that they have no plans to change the state pension age once they have been equalised for men and women at 65, and we shall continue to provide for pension schemes to set normal retirement ages if they need to.

  The default age will be accompanied by a right for employees who want to continue to work beyond the default age or their employer's own justified retirement age to have their request considered seriously by their employer. This right will follow the model of the right to request flexible working for parents with young children, where it has been successful in changing the culture towards more family friendly working. This policy will ensure that employers listen to employees who want to keep working and think about whether they can agree. In doing so, it will help promote a culture change including on workforce planning and the design of employee benefits, and move towards a position where fixed retirement ages are relied on only where they can be objectively justified by the employer.

  We will monitor the impact of the default age from the outset. Five years from implementation we will subject to formal review the question of whether this remains appropriate. The review will be firmly grounded in evidence, and amongst other things it will look at relevant data on trends in life expectancy; the number of individuals working beyond 65; and the impact of the regulations on business, including

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  the evolution of business practice with respect to the degree of reliance on retirement ages for workforce planning. If at the point of the review the evidence suggested that we no longer needed the default retirement age at 65, we would abolish it.

  In reaching this decision, we have taken into account the responses to Age Matters consultation. An analysis of those responses is available on the DTI website at www.dti.gov.uk/er/equality/age. We have also undertaken extensive consultation with key stakeholders.

  We shall consult in summer 2005 on draft regulations covering the full rights against discrimination on grounds of age in employment and vocational training. This will include details of the provisions on retirement age as well as how we propose to tackle the whole range of issues around age discrimination in recruitment, employment and vocational training. Subject to that consultation and the approval of Parliament, we will bring the legislation into force on 1 October 2006.

  Regional Development Agencies
  Lord Sainsbury of Turville
  My right honourable friend Minister for Industry and the Regions (Jacqui Smith) has made the following Written Ministerial Statement.

  I have published the reported mid-year tier three outputs for April to September 2004 for England's regional development agencies (RDAs). The RDAs have advised that they are broadly on track to achieve the annual targets set for 2004–05 in their corporate plans.

  The figures cover the creation and safeguarding of jobs, the amount of brownfield land brought back into use, the number of businesses added to the regional economies, the number of learning opportunities created and the amount of private sector investment attracted benefiting deprived areas, all as a result of RDA activity.

  Copies of the mid-year output results have been placed in the Libraries of the House and the results have also been placed on the DTI website at http://www.dti.gov.uk/rda/info.