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Lord Clyde: My Lords, I add my warmest congratulations to my noble and learned friend Lord Hutton on his maiden speech. What impressed me in particular was the solid contribution which he made with reference to his own experience and the reality of this kind of problem.

I share the attraction, in theory, of the idea of a constitutional court, but I also strongly share the anxiety as to whether the introduction of such an institution is appropriate simply in the context of this Bill and the Scottish problems.

I suggest that one should put the attractive theory into the background and consider immediately the real problems that come from the reality of experience. It

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was said that the Judicial Committee of the Privy Council has a large and amorphous membership. That may be right. But what is the practice? In practice, from my experience I know that the composition is usually five of the Law Lords. As your Lordships are well aware, there are 12 Law Lords and we sit in two committees of five for four days a week. Five of us are in the Privy Council and five of us in the Appellate Committee of your Lordships' House. There are on occasions--relatively frequent occasions--one other or more rarely two others who help out in the Privy Council. But basically it is the membership from the Law Lords which comprises the present Privy Council.

I say that not with any complaint about the workload which that involves. As your Lordships with a quick understanding of arithmetic will appreciate, two committees of five out of a membership of 12 does not leave much room for manoeuvre, particularly as one of our members is presently engaged elsewhere on an inquiry. But the system works and I should like to think it works well.

What will be essential for the resolution of disputes under this Bill is a speedy and efficient system which can produce solutions and resolve disputes at short notice. If one has an elaborate institution which requires nominations to be made, which requires selections to be made, there will immediately be a practical problem in simply collecting the parties together. Can one be confident at this stage that there will be so much work as to secure that there will be a permanent body sitting week after week on these problems.

There is a second problem and it is as follows. One advantage of the work of the Judicial Committee and the Appellate Committee is that the five members know each other fairly well; get on reasonably well together; and can work together as a group effectively and I hope efficiently. If one is looking to gather individuals who may not be significantly identical for different cases, then one will not get that consistency, that common spirit which is important for the effective working of such a court.

Thirdly, if one is going to start afresh with a new body, we will have to create a secretariat, find premises, find the whole machinery which is required as a back-up. That can be done. It will cost money and it will take time. Fourthly--a point that has already been made--the existing members of the Judicial Committee of the Privy Council have been enabled to acquire some expertise in constitutional matters from cases coming from outside these shores. That is a starting point, at least a base, from which a jurisprudence in the problems that we are now to face can grow.

The noble Lord, Lord Lester, complained of the large and amorphous membership. I should like to counter that with an understanding of the reality of practice. He raised the problem of the separation of the powers. Again, one can see the force of that, but it relates principally to the practical problem of selecting the specific individuals who are to sit on the determining tribunal. That was his second point. How does one choose the individuals? That is perhaps at the heart of the whole problem and it is a problem of course which

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lies already within the proposed amendment. While the nominating body nominates seven individuals and the quorum is five, who is to identify and choose the five who are to sit. Therefore problems will arise even on this proposal.

In practice one would hope that the system at the moment works reasonably well. It is flexible, as my noble and learned friend Lord Hope of Craighead said, and can cater for last minute emergencies. If it is unacceptable to have one individual making nominations, perhaps the solution would be to provide for some small advisory body which would be available to help out, if that would give a better public image to the critical matter of selection. I suggest that it is in the selection that the heart of the problem may lie.

I am attracted by the idea of a constitutional court, but I believe it is too early.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord, Lord Clyde, for giving way. I wonder whether he appreciates that we are seeking what he is advocating, though perhaps in an over-elaborate way. If one could have an assurance that Law Lords would sit as they do at present in the Judicial Committee of the Privy Council and that the large, amorphous group of retired and existing members of the English Court of Appeal, for example, would not sit and therefore one would have the seniority and authority which comes from the House of Lords and the Judicial Committee in their present composition, that would go a long way to meeting the point. I am not sure whether the noble and learned Lord appreciates that that is what we are seeking to achieve rather than some radical reconstruction.

Lord Clyde: My Lords, I certainly understood that the creation of a new court was a bold step forward and, as I said, it is a step I would have some sympathy in supporting in principle. But not yet and not here. In relation to the specific problem of appointment, there is very little in dispute. However, I wonder whether that is best done by one of the instant overnight conventions which are appearing in this new world, rather than by an express legislative provision.

The Lord Chancellor: My Lords, it was a pleasure to listen to the maiden speech of the noble and learned Lord, Lord Hutton, a highly distinguished former Lord Chief Justice of Northern Ireland, during your Lordships' debate on these amendments. We look forward to many contributions from the noble and learned Lord and I am sure that they will be of the same high quality and just as much to the point as his contribution this evening. He has no cause for diffidence, except when making a maiden speech.

The Government cannot accept Amendments Nos. 206 and 202 and the consequential amendments--Amendments Nos. 123 to 202--which would create a constitutional court to carry out the role which the Bill provides for the Judicial Committee of the Privy Council in determining questions concerning the legislative competence of the Scottish parliament and executive.

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The Government came down for the time being, as a matter of policy against a constitutional court in paragraph 2.4 of the White Paper, Rights Brought Home. That was the White Paper which preceded the Human Rights Bill. That Bill is to return to your Lordships' House tomorrow for its closing stages. No amendment to provide for a constitutional court was moved to the Human Rights Bill in the other place or this House.

An amendment for a quite differently appointed and composed constitutional court was sought to be made to the Scotland Bill in another place, but was comprehensively rejected by 388 votes to eight. Amendments of a different nature have now been tabled in this House, not having been tabled in the other place.

Next, the Welsh devolution legislation has already been enacted without any provision for a constitutional court. No amendment was moved to provide for such a court in either House. Under the Government of Wales Act, Schedule 8 paragraph 10, devolution issues go to the Judicial Committee. It is outside the scope of the Scotland Bill to replace those provisions in the Government of Wales Act with provisions for a constitutional court.

The backdrop to this issue is this: the Government are incrementally carrying into effect a major programme of constitutional reform--devolution to Scotland and Wales; the Human Rights Bill; in due course, a freedom of information Bill; the Northern Ireland Bill; and the legislation providing for an elected mayor and assembly for London. It may be that, after all that legislation beds down, longer-term thought should be given to the appropriateness of a specialist constitutional court. So I can be encouraging to that limited extent. But this Bill is not a natural vehicle for that, since policy has been settled for so long and the Welsh ship has left the harbour. If those proposing this amendment will forgive me--although I believe they have already conceded it--what they are really doing is putting down a marker for another day.

The one part of these amendments which the noble Lord, Lord Lester, did not dwell on in detail was how they propose the membership of this new constitutional court is to be determined. Your Lordships should consider the proposal and then consider how well thought out it is.

The amendments propose a nominating committee, consisting of seven senior judges, plus two persons appointed by the Speaker of the House of Commons, at least one of whom is to be resident in Wales; one person appointed by the presiding officer in the Scottish parliament; and one person appointed by the presiding officer of the Northern Ireland Assembly. So seven senior judges are to share with four lay people, I assume, the responsibility for nominating. Presumably, it is envisaged that these four will be drawn from the world of politics, and perhaps from the House of Commons, the Scottish parliament and the Northern Ireland Assembly. So seven senior judges are to share with four politicians--probably party politicians--the responsibility for appointing a nine person constitutional court, consisting of a president and eight other members, who shall be Lords of Appeal in Ordinary or hold other high judicial office.

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This raises for consideration whether four party politicians should share equally with seven of the most senior judges in the United Kingdom responsibility for appointing the new constitutional court. That prompts the question: why should four politicians participate in this function with the higher judiciary? What is the purpose of their involvement? My present view, which I believe the noble and learned Lord, Lord Hutton, expressed, is that this proposal carries with it a great danger.

It would appear that an important consideration in making recommendations for appointments to this new court would be the political attitude or outlook of those to be nominated. I am not persuaded by anything that I have heard in the debate today that it would be appropriate to involve politicians with the higher judiciary in a process for the recommendation to Her Majesty of those to appoint to the proposed constitutional court. It would fuel a perception that those appointed might not decide these cases strictly according to law because each had to pass some test of suitability on political grounds. This perception would be the stronger because only Lords of Appeal in Ordinary or those holding high judicial office can qualify under the amendments. So on what basis are party politicians to assess who among them are suitable for this role? What role could politicians rationally have in choosing among very senior judges unless to exercise some politically-based judgment on their comparative merits?

7.30 p.m.

Lord Lester of Herne Hill: My Lords, I am grateful to the Lord Chancellor for giving way. I wonder whether he is aware that, first, the amendment does not require politicians but only persons who are nominated. They do not need to be politicians. For example, they could be the Chairman of the Bar Council at the time. Secondly, is the noble and learned Lord also aware that these arrangements involve a much smaller political element than any of the arrangements of Commonwealth constitutional courts in countries like South Africa or Canada or the great constitutional courts of Europe, such as the German, French and Italian courts? Is he aware that they are much more modest, with a very small input of people appointed by politicians, in order to do the appointing?


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