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Lord Strathclyde: My Lords, perhaps the noble and learned Lord is making a clever legal point, but I saidand I have checked the recordthat we do not oppose the thought of reform, but is up to him to say why the present arrangements should be so utterly changed. Could he explain that?
The noble Lord, Lord Strathclyde, asked why we were transferring devolution matters from the Privy Council to the Appellate Committee. He will recall that the reason that the matter went to the judicial committee of the Privy Council was that it was thought that it was wrong, when the issue was between the United Kingdom and the Scottish Parliament or the National Assembly for Wales, that the UK Parliament should be sitting in decision on such issues. If one creates a supreme court separate from Parliament, that issue goes.
The noble Lord's next question was about the place of the Law Lords. It is essential, if one has a supreme court, that the Law Lords, who are currently the highest court of appeal in this country, should not sit in this place so that one properly reflects the separation of powers. That is at the heart of the proposal for a supreme court. Will they come into this place as legislators afterwards? It is hard to imagine a more distinguished group who would not deserve to come in afterwards.
The noble Lord, Lord Strathclyde, asked who would defend the judges. That will be done by the Secretary of State for Constitutional Affairs. Regarding their independence, we specifically raised the question in the consultation paper whether or not that obligation to defend the independence of the judiciary should be reflected in statute. The noble Lord said that political correctness should not determine who becomes a judge. Correct. It should be quality and I see no distinction between, on the one hand, quality, and on the other a diverse Bench.
The noble Lord then asked what criteria were to be set for the appointment of judges. The basic criteria should be set by the Ministerthat is made clear in the paper. The selection of individuals is a matter for the independent appointments commission.
The noble Lord's next question was about the body that will appoint the members of the appointments commission. They shall consist of a senior judgea High Court judge or abovea senior civil servant in the Department for Constitutional Affairs, an independent person entirely separate from the executive and the judiciary, and an independent assessor to see that the system works.
Lord Renton: My Lords, bearing in mind that our judicial system has for generations been admired throughout the Commonwealth and indeed most of the world, will the Government in making the changes remember that, where change is not necessary, it is necessary not to change? In particular, will they bear in mind that having experienced judgesthe Law Lordsable to contribute to the quality of our legislation is very important? If we lose the benefit of their advice on legislation, it may deteriorate.
The Lord Chancellor: My Lords, I again make it clear that we all hold the judges in the highest possible regard. I also believe that the time to make such change is when the system is strong and not under pressure from outside. It is because our judicial system is held in such high repute that we can now make changes from a position of strength, rather than, as has happened in other countries, being forced into change at the wrong time. I believe that a supreme court and an independent appointments commission for England and Wales is the right way forward.
So far as the second point is concerned, the House is filled with distinguished lawyers and distinguished retired judges. They can provide the contribution that this House needs, while keeping those who constitute the final court of appeal separate from the making of law, rather than their deciding what the law means.
Lord Lloyd of Berwick: My Lords, I have two short questions for the noble and learned Lord the Lord Chancellor, both on the new supreme court. I do not intend to address the other issues raised this afternoon.
The first question is simply this: did the Government consult the Law Lords, formally or even informally, before announcing on 12th June that they would cease to be an appellate committee of this House and become instead a new supreme court in some other building? If not, why were they not consulted? Who said, as has been said this afternoon, that they need new offices? Who said that they need new facilities? We have, however, always been well aware that there are those in this House who cast envious eyes on the officesthey are not very largethat we occupy.
Who said that we need a new supreme court, no longer called the Law Lords, in order that we can hold up our heads among other supreme courts throughout the world? The noble and learned Lord referred to the views of the noble and learned Lord, Lord Bingham. Those views were expressed in the course of an academic lecture. Perhaps the noble and learned Lord the Lord Chancellor will remind us whether the noble and learned Lord, Lord Bingham, purported to express the views of the other Law Lords. I suspect that
Lord Lloyd of Berwick: My Lords, my second question is even longer. Is the noble and learned Lord aware that the royal commission that sat under the noble Lord, Lord Wakeham, and reported in January 2000 received what it described as an "impressive range of evidence", including the evidence of my noble and learned friend Lord Slynn and my noble and learned friend Lord Nicholls? Is he aware that the royal commission concluded that the Law Lords should continue in their present role as full Members of this House, despite the theoretical objections based on the separation of powers that he has now advanced? What has happened since 2000 to suggest that the royal commission was in any way in error? If nothing, is there any point in having royal commissions making specific recommendations, as it did, which are simply given the go-by?
The Lord Chancellor: My Lords, I shall deal first with the first question. As my right honourable friend the Prime Minister made clear to the Liaison Committee, there was no consultation immediately before the announcement or in the build-up to the announcement on 12th June.
The noble and learned Lord answered the second part of his first question. Who says that there should be a supreme court and different premises? The noble and learned Lord, Lord Bingham, for one, and the noble and learned Lord, Lord Steyn, for another. The noble and learned Lord, Lord Lloyd of Berwick, is absolutely right: they do not speaknor could they purport to speakon behalf of all the Law Lords in relation to that, and I do not know the views of all the Law Lords.
As the noble and learned Lord will know, however, there is very strong support, including among the senior judiciaryI name the noble and learned Lord, Lord Bingham, who has made it clear publiclythat there should be a supreme court. Why? In my view, there should be one because it is clear that having the final court of appeal in the second Chamber of Parliament does not give effect clearly to the separation of powers. We are talking about a court deciding on the law, not making the law. If we talk the language of separation of powers, we should separate the powers. A member of the Commonwealth Secretariat said that we should be careful not to insist that developing countries adopt our system, because it does not adequately reflect the separation of powers.
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