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Lord Hope of Craighead: My Lords, I should like to support the amendment and to make two particular points perhaps to assist your Lordships to understand the arguments which are being put forward. The first is that to express the proposition as widening the pool has to be understood in the context of how wide that widening will be. As I understand it, there are two requirements for qualification to be a member of the Judicial Committee in this context. One is that the jurisdiction from which the Commonwealth judge comes is a jurisdiction which sends its appeals to the Privy Council. The second is that the jurisdiction in question recognises Her Majesty the Queen as head of state.
The practical consequence of that under our arrangements today is that Australia, for example, is excluded because Australian appeals no longer come to the Judicial Committee of the Privy Council. Trinidad and Tobago, for example, which has a very distinguished Chief Justice, is also excluded because it is a republic. Hong Kong, of course, is now excluded because it is no longer part of the Commonwealth. Canada, although it too has distinguished judges, is excluded because it too does not send appeals to the judicial committee.
Therefore, in practice, the number of jurisdictions from which these appointments are likely to be made are very few and probably restricted at any given time to one or possibly two people from the Caribbean in those countries which recognise Her Majesty as head of state, and New Zealand. It is particularly the contribution from New Zealand which I should like to stress. For the reasons explained by my noble and learned friend Lord Cooke of Thorndon, New Zealand judges are given the opportunity to contribute on a worldwide basis. In their own jurisdiction, they have experience of the sort of problems with which we shall have to deal.
In the short time that I have spent as a member of the Judicial Committee, I have had the privilege of serving with New Zealand judges and I can speak at first hand of the very significant contribution they make to our discussions.
Lord Clyde: My Lords, no one who has the privilege of serving with the noble and learned Lord, Lord Cooke of Thorndon, in the Privy Council would fail to appreciate the very real contribution that he and, indeed, the few others like him have made, and can make, to the workings of that body.
I strongly support the proposed amendment. However, I am conscious that almost everything that can be said in favour of it has already been said. I would add only one further consideration: one cannot foresee with confidence how much work will be imposed on the Privy Council under this legislation. But I suspect--and I think that I am not alone in suspecting--that at least early on there may be a considerable quantity. Why, then, should there be any hesitation in enlarging to such a small extent as may be possible the potential membership of that body and certainly adding immeasurably to its skill and expertise?
Lord Mackay of Drumadoon: My Lords, I support the amendment moved by the noble Lord, Lord Lester of Herne Hill. We may well be talking about a small number of individuals. However, it is obvious from what has been said by the noble and learned Lords, Lord Hope of Craighead and Lord Clyde, that we are talking about the potential of adding a great deal of informed and experienced expertise to the work of the Judicial Committee in the first few years of its work on devolution issues.
If particular individuals are qualified to serve on the Judicial Committee in London dealing with other business, it seems difficult to articulate a good reason why they should not do so in London or, indeed, in any other part of the United Kingdom, when the Judicial Committee is addressing devolution issues.
From time to time in the debates on this Bill I have posed the question: What harm would there be in allowing or agreeing the amendment? That question seems to arise very succinctly in relation to this amendment. Far from there being any harm, there is potential to add a great deal of valuable experience. I warmly support the amendment.
Lord Hardie: My Lords, I regret that the Government cannot accept the amendment. Noble and learned Lords and noble Lords have explained their reasons for supporting it, but perhaps I may begin by saying that both I and the Government also recognise the significant contribution of the noble and learned Lord, Lord Cooke, to the deliberations of the Judicial Committee over the years.
This Bill, like the Government of Wales Act, which is already on the statute book, and the Northern Ireland Bill, also before this House, currently provides that those who hold or have held the office of Lord of Appeal in Ordinary or high judicial office in the United Kingdom can sit on the Judicial Committee for cases involving devolution issues. "High judicial office" includes a judge of the Court of Session in Scotland and a judge of the High Court or Court of Appeal in England, Wales and Northern Ireland. The amendment would extend this so that judges, albeit a very small number, from Commonwealth countries could be selected.
To amend this Bill as suggested would provide a different potential membership for devolution cases under the Scotland Bill, as opposed to cases emerging under the Welsh and Northern Irish legislation. This in turn would, for no intrinsically good reason, lead to inconsistency as to who could consider cases relating to the various parts of the UK. I do not believe that that would be a sensible step. We should surely be seeking to maximise the degree to which experience gained in handling devolution cases under this Act can be drawn upon in cases concerning another.
Moreover, noble Lords will recall the interesting, detailed and indeed lengthy debate of last week about the constitutional court which was provoked by an amendment tabled by the noble Lord, Lord Lester of Herne Hill. In that debate, my noble and learned friend the Lord Chancellor said that the Liberal Democrat amendments were a marker for the longer term. I have to say that I find today's amendments rather at odds with ambitions for a constitutional court. These amendments surely would make the transition to a constitutional court more difficult by building into the consideration of certain devolution issues in the short term Commonwealth judges who might well, if the hopes of noble Lords opposite are fulfilled, have no longer-term involvement with this type of litigation. I was sorry that the noble Lord opposite did not acknowledge the implications of this wider context in introducing these amendments.
Therefore, the Government think that the current provision in the Bill is the appropriate one. It will allow the senior Lord of Appeal to select from a pool of judges with relevant experience and, conversely, for the experience of those judges over time to be pooled for their mutual benefit. This amendment, coming as it does after the passage of the Government of Wales Act, would instead tend to make sharing and developing that expertise less easy.
Lord Lester of Herne Hill: My Lords, I am extremely grateful to all noble Lords from all sides of the House who have spoken; and, indeed, I am especially grateful to all noble and learned Lords for their support. The arguments in favour which have been put forward by other speakers have not been replied to by the noble and learned Lord the Lord Advocate. He introduced two arguments. The first is that--and I put it in the vernacular--the pass has already been sold in relation to the Government of Wales Act and, therefore, rigid adherence to the Welsh template demands an identical pool of membership of the Judicial Committee in dealing with Scottish and Northern Irish cases.
Quite apart from the fact that it would, I suppose, be open to the Government to introduce a one-clause Bill amending the Government of Wales Act in that respect if they wished to do so in the next Session, that does not seem to me to a very compelling argument, for the following reason. The membership of the Judicial Committee of the Privy Council is not to be fixed; indeed, it is to be drawn from a very large pool. Therefore, it is not as though there will be a fixed membership of the same judges as there would be in a final constitutional court dealing with Welsh, Scottish and, indeed, Northern Irish cases. If the senior Law Lord chooses, he will make that choice from differing judges, some of whom may, for example, be retired members of the English Court of Appeal or the Scottish Court of Session. The membership will vary. There will also be difference when the House of Lords comes to decide cases which may to some extent overlap with devolution cases. Therefore, with respect, the argument based on the Welsh legislation does not seem to be at all compelling. Indeed, it does not deal with any of the points raised.
Secondly, the noble and learned Lord said that, were we to pass the amendment, it would somehow impede the desirable objective of producing a final constitutional court of the kind that exists in other jurisdictions. It is probably a failure on my part, but I simply do not understand that argument. The fact that in the interim we would be drawing upon wide and senior judicial expertise to reinforce the strength of the Judicial Committee surely would not impede some long-term broader reform when a different view might be taken.
The spirit of the late Lord Chancellor, Lord Gardiner, must be unhappy listening to this debate. I say that because it was he more than anyone who dreamt of a Commonwealth court that would transcend national frontiers and be able to deal with such cases. Of course, he was far too late in the 1960s for that great idea to come to fruition.
I am very sorry that the Government have not been able to accept my amendment. If this debate were taking place earlier in the day and not at 9 o'clock in the evening in a situation where the Government have a giant strength, I would have tested the opinion of the House on the matter. There is no point in doing so. I just believe that, with the benefit of hindsight, the Government will come to regret the fact that they have made an error of judgment and deprived us of the great benefit of the noble and learned Lord, Lord Cooke, and others like him. Nevertheless, I beg leave to withdraw the amendment.