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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.
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 be 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.
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:
"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 travelling
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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 be 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.
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