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Lord Strathclyde: My Lords, the noble and learned Lord has just raised a very important issue which is crucial to the issue that will be put to the House later this evening. Can he confirm, therefore, that there is no reason why this Bill should not be a candidate for the procedures brought in by the Labour Government—namely, carry over—and that this Bill could be carried over into the next Session of Parliament for the House of Commons to examine it in the normal way?

Lord Falconer of Thoroton: My Lords, it would be a unique proposal put forward in relation to it. We are saying that the right course, this being a Bill in the Queen's Speech, is to deal with it within this Session. We thoroughly underline the need for proper scrutiny of the Bill, which a Committee of the whole of this House would be able to give it.

This Bill has two main strands, the first of which is abolition of the Lord Chancellor and the creation of a Judicial Appointments Commission. To have a system where all judges are appointed by a judge who is a Cabinet Minister who can deploy and discipline those

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judges and who is also the presiding judge in the final Court of Appeal is not a basis for long-term independence of the judiciary. It has worked well in recent years, but one failure would gravely undermine the system. We should change when we are strong. We should recognise that we can improve the system. The new arrangements must embed and preserve the independence of the judiciary. They must also allow the Minister to concentrate on his important ministerial functions and on running his department, which has responsibility for issues such as the courts and legal aid.

We have consulted in detail on these measures with the Lord Chief Justice, on behalf of the judiciary, on how to ensure the independence of the judiciary. We have reached agreement. That agreement, now called the concordat, is reflected in the Bill.

The second strand is the creation of a Supreme Court. We believe, along with the senior Law Lord, that the time has come to reflect the reality of our constitutional arrangements. The Law Lords are appointed to the final Court of Appeal, not the legislature. They are judges. We believe that the final Court of Appeal is currently a beacon of legal excellence and will remain so in the new arrangements. We also believe in the supremacy of Parliament. Ultimately, laws must be made by Parliament. The judges, in accordance with law, must construe and interpret those laws. However, unlike systems such as that in the United States of America, we do not want policy issues such as capital punishment, abortion or racial discrimination to be decided by judges. They must be decided by Parliament. That most certainly does not make our system any worse or better than that in the United States of America; it is simply different. It has not made the Judicial Committee of the House of Lords a second-rate final court of appeal. It will not make our new Supreme Court in any sense second rate.

I turn to the detail of the Bill. Right at the outset, we embed the independence of our judiciary. Clause 1 therefore provides a guarantee of continued judicial independence. It creates a duty on all Ministers of the Crown and all others with responsibility for the administration of justice to uphold the continued independence of the judiciary. It also places an additional duty on the Secretary of State for Constitutional Affairs to have regard to defending the continued independence of the judiciary. This duty will also apply, for example, in his handling of the recommendations from the new Judicial Appointments Commission and in funding and running the administration of the courts.

In recognition of the important role of the Lord Chief Justice in the judiciary, Clause 2 makes him the President of the courts of England and Wales, including the magistrates' courts, and sets out his responsibilities, including representing the views of the judiciary to government, and the training, guidance, welfare and deployment of the judiciary of England and Wales. The role of the Secretary of State for Constitutional Affairs is also important. It has been agreed between the Lord Chief Justice and myself that the functions of the Lord Chancellor that relate to the

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judiciary and the court system should not in future be transferable between Ministers without primary legislation.

The Bill at present does not include provisions for the future handling of the Lord Chancellor's functions in relation to the judiciary in Northern Ireland. I will bring forward relevant amendments in Committee and, if necessary, on Report and in the other place.

Part 1 of the Bill also allows the statutory functions of the Lord Chancellor in his capacity as Speaker of this House to be exercised by whoever fills that role. I expect to introduce later amendments to provide for any other necessary provisions once this House has further considered its response to the report of the committee of the noble and learned Lord, Lord Lloyd.

Part 2 provides for the establishment of a new Supreme Court for the United Kingdom, separate from Parliament, and for the transfer to that court of the appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council.

The Bill seeks to make our constitution more transparent and logical by creating at the apex of the judicial systems a Supreme Court which is visibly independent of the legislature. I say "judicial systems" in the plural, for there is no single United Kingdom judicial system, and it is no part of the Government's plan to attempt to create one. The new Supreme Court of the United Kingdom will maintain continuity through the current Lords of Appeal in Ordinary becoming the first Justices of the new court, with the senior Law Lord as its first president.

The doctrine of stare decisis will operate as it does in appeals to the House of Lords at present: any decision in an appeal will be binding only on courts in the jurisdiction from which the appeal came and merely persuasive in other jurisdictions. Scots, English and Northern Ireland law will continue to develop independently but in parallel. Neither this Government nor the Scottish Executive have any plans to give the United Kingdom Supreme Court jurisdiction to hear criminal appeals from Scotland since this jurisdiction is one which has never been exercised by the Appellate Committee of the House of Lords.

Members of the Supreme Court will be appointed by Her Majesty, but the process will be much more transparent. I appreciate the scope for differing views as to the precise nature of the process; that was debated by your Lordships in some detail on 12 February, has been discussed by commentators and will no doubt be further considered today. I am considering very carefully the views expressed and assessing whether the balance of factors to which I referred might need to be adjusted further to improve the procedure. In particular, I am looking again at ways in which account can be taken of the views of a devolved administration. I do not therefore rule out bringing forward amendments during the passage of the Bill on this and on the detail of different aspects of the procedure for appointing the President, Deputy President and Justices of the court.

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The Bill places a specific statutory duty on the Minister to secure sufficient resources to enable the effective and efficient carrying on of the business of the Supreme Court. However, the Supreme Court will not in any sense be part of the Court Service of England and Wales. It will instead form a separate entity administered for the benefit of all constituent parts of the United Kingdom.

As a logical consequence of the separation between judiciary and legislature, the Bill restricts the right of Members of the House of Lords to sit and vote for so long as they hold full-time judicial office. In addition to the Justices of the Supreme Court, this will also apply to the Lord Chief Justice, the Master of the Rolls and the Lord President of the Court of Session.

Finally, Part 2 of the Bill makes consequential and transitional provisions to allow the transfer of functions to the court. Included in this will be the renaming of the existing Supreme Court, both in England and Wales and in Northern Ireland, in respect of which I will bring forward amendments at Committee and Report stages in this House.

I now move to Part 3 of the Bill, which creates a Judicial Appointments Commission and a Judicial Appointments and Conduct Ombudsman and makes provision for a new disciplinary process in relation to the judiciary. The selection for appointment of judicial officeholders in England and Wales is primarily the responsibility of the Lord Chancellor supported by officials from the Department for Constitutional Affairs. These arrangements have served us well in the past and given us a judiciary considered by many to be the best in the world.

But it can no longer be appropriate for a Minister to have this degree of control over appointments. The Bill therefore creates a new independent Judicial Appointments Commission, which will select judges for appointment in England and Wales. The commission will recommend to the Secretary of State for Constitutional Affairs one candidate for each vacancy selected solely on merit. No one may be appointed who has not been selected by the commission. The Secretary of State for Constitutional Affairs will have a very restricted role. He will be able to reject a candidate once and to ask the commission to reconsider a selection once. These arrangements will ensure that the role of the Secretary of State for Constitutional Affairs is transparent, but that there is the necessary ministerial oversight and involvement to ensure proper accountability to Parliament.

Schedule 10 sets out the members of the Judicial Appointments Commission and its powers and responsibilities, which will reflect its status as an executive non-departmental public body. I am pleased to be able to confirm that the panel for appointing members of the commission will be chaired by Dame Rennie Fritchie. There will be 15 commissioners with a lay chairman supported by a chief executive and staff.

At present the Lord Chancellor has statutory powers to remove judicial officeholders below the High Court on grounds of incapacity or misbehaviour.

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These powers will be transferred by Schedule 1 to the Bill to the Secretary of State for Constitutional Affairs to be exercised only if the Lord Chief Justice agrees. The Lord Chancellor also currently exercises a more general role in relation to disciplinary matters concerning judicial officeholders.

The Bill places all matters of judicial discipline and removal on a transparent statutory footing and provides a structure which reflects a proper balance between an independent judiciary and democratic accountability for the judicial system. The current role of the Lord Chancellor will be divided between the Lord Chief Justice and the Secretary of State for Constitutional Affairs. No removal or other disciplinary action will be taken by one of them without the agreement of the other. None of these powers will displace the existing role of Parliament in the removal of senior members of the judiciary.

Chapter 3 will also permit parties who are dissatisfied with the administration of the complaints procedure to seek review of the operation of the process by the Judicial Appointments and Conduct Ombudsman.

There are four substantive amendments to this part of the Bill which I wish to table during Committee stage in this House. They will ensure that the Bill delivers the detail of the Written Statement I placed in the House Libraries on 26 January, the concordat. The first concerns the criteria that the commission will use to assess applicants for appointments to judicial posts. I will ensure that the definition of merit should be for the commission itself and not for Ministers. The second amendment will provide that the Lord Chief Justice be consulted about any guidance issued to the commission and that guidance shall be set out in a statutory instrument subject to affirmative resolution by both Houses. Such guidance will set out the expectation that the commission should seek to encourage a more diverse pool of potential appointees and should take account of the need for expert judicial knowledge. The third will set out on the face of the Bill the circumstances in which the Secretary of State for Constitutional Affairs may ask the commission to reconsider or reject a candidate. The fourth amendment will clarify the arrangements for appointing members of the Judicial Appointments Commission, in particular by ensuring that nominations for the appointment of the three most senior judges are made by the Judges' Council rather than by the appointments panel.

This Bill contains vitally important constitutional changes, which will strengthen our democracy and the rule of law. They are changes which will ensure our constitution protects and preserves the independence and quality of the judiciary as the pressures on them inevitably increase. We cannot afford to get them wrong. I commend this Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)

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3.24 p.m.

Lord Kingsland: My Lords, this Bill has confirmed our worst suspicions about the Government's constitutional intentions. I will touch on only three of our more serious concerns because I want to say something as well about the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick.

First, Clause 51 deals with the issue of merit. I am pleased to say that Clause 51(3) states:


    "Selection must be on merit".

So far so good. But Clause 51(4) states:


    "After consulting the Lord Chief Justice, the Minister may by order specify considerations that are to be taken into account in assessing merit for the purposes of the section".

Merit is the cornerstone of the system of judicial selection.


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