Orders of the Day — Constitutional Reform Bill [Lords]

House of Commons, 17 January 2005.

Estelle Morris (Labour, Birmingham, Yardley)

I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Michael Martin (Speaker, Glasgow Springburn)

I inform the House that I have selected the amendment in the name of the Leader of the Opposition.

Chris Leslie (Labour, Shipley)

I beg to move, That the Bill be now read a Second time.

I am pleased that, after much debate and discussion in the other place, the Bill has at long last come to the House of Commons. I shall address the details of the Bill in due course, but we must not neglect the fundamental principles driving the reform, namely, the need to modernise our constitution so that our institutions can serve the public in a clearer, more transparent and more effective manner; so that our courts and justice system can be administered by a full-time Minister clearly accountable to Parliament; and so that the relationship between the three arms of the state—Parliament, the judiciary and the Executive—is settled, clarified and easier to understand, in turn making each better fitted to carry out its vital roles in a modern democracy.

The Bill therefore proposes the reform of the office of Lord Chancellor, removing the blurred lines between political and judicial functions, so that the post holder, as a full-time Cabinet Minister, can concentrate on the administration of the justice system, no longer sitting as a judge, and we hope no longer tied to the Woolsack in the other place as its presiding officer. The Bill sets up a new judicial appointments commission, an independent body responsible for selecting our judges in the future, and it creates a new supreme court, putting beyond any doubt the independence from politics and the legislature of the highest appellate court in the United Kingdom. There will be a clearer separation of the powers of Parliament, the judiciary and the Executive, and greater confidence in the shape and nature of each branch of our constitution.

Patrick Cormack (Conservative, South Staffordshire)

It would be appropriate if the hon. Gentleman could tell us at this stage what these changes will cost.

Chris Leslie (Labour, Shipley)

The hon. Gentleman must wait for that section of my speech, when I shall be happy to elaborate on that particular matter—I know that he will wait patiently.

There has been wide consultation on the reforms. Many academics and observers of our constitution have long called for a properly independent judicial appointments process and a separate supreme court for the UK. The Lord Chief Justice and members of the senior judiciary support the Government, and a Select Committee of the House of Lords has meticulously scrutinised the Bill.

Dominic Grieve (Conservative, Beaconsfield)

I am startled to hear that the Lord Chief Justice supports the Government. I recall the Lord Chief Justice saying that, given the constitutional crisis that the Government precipitated by announcing their back-of-the-envelope changes in summer 2003 without any consultation, certain aspects of the Government's proposals—in particular, the concordat, on which the Lord Chief Justice insisted—make the best of a bad job.

Chris Leslie (Labour, Shipley)

That is not a correct representation of the Lord Chief Justice's views. A lot of time has passed since the Bill was introduced—as I have said, it was debated at length in the other place—and the robust package of measures has wide support, including from members of the senior judiciary. We have responded to the long debate in the other place and have accepted a number of changes.

Graham Allen (Labour, Nottingham North)

Will my hon. Friend have no truck whatever with the argument that this is a Johnny-come-lately policy? It is more than 12 years since the party of which we are members agreed the basic points in the package. Some of us think that the process has taken far too long to come to fruition, rather than its having been done on the back of an envelope in the past 18 months.

Chris Leslie (Labour, Shipley)

My hon. Friend makes the reasonable point that the measures are fundamental and overdue. They are important, in so far as they help to clarify the relationship between the different branches of our constitution.

John Gummer (Conservative, Suffolk Coastal)

Would it not have been easier to maintain the position described by the hon. Member for Nottingham, North (Mr. Allen) if the announcement had not been made before any consultation had occurred and had not been seen as a fudge? If we were starting afresh, one might believe in the process, but not after the Prime Minister made such a faux pas in the first place.

Chris Leslie (Labour, Shipley)

All good ideas have to start somewhere. This one started with the announcement by the Prime Minister, which subsequently resulted in numerous consultation papers and a lengthy consultation process. The process in the other place was even longer and involved accepting a number of changes to the Bill.

Vera Baird (Labour, Redcar)

This point relates to the argument advanced by the hon. Member for Beaconsfield (Mr. Grieve): on Second Reading, the Lord Chief Justice referred to the Bill as

"a piece of great reforming legislation",

and said that

"it will rank in importance with the great constitutional instruments of the past."—[Official Report, House of Lords, 7 December 2004; Vol. 655, c. 759.]

Chris Leslie (Labour, Shipley)

My hon. and learned Friend always has the facts at her fingertips, and I am grateful for that quote.

We have reflected on the consideration of the Bill in the other place and have accepted a number of changes. The Government accept the decision of the House of Lords on the retention of the title and formal office of Lord Chancellor. Whether the post holder is called "Secretary of State for Constitutional Affairs" or "Lord Chancellor", or whether he has both titles, is not a matter of great significance. What matters most is the substance of the post, the nature of the job and whether the position is reformed so that the post holder's duties are no longer contradictory.

If the role of the head of the judiciary can pass to the Lord Chief Justice, and with it many of the judicial functions incompatible with the role of a political Cabinet Minister, then the office of Lord Chancellor can continue, but in that substantially reformed way. The Bill continues the office of the Lord Chancellor, but in a significantly altered and more appropriate form.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

Does the Minister recall that the Constitutional Affairs Committee indicated that the important point is that the office of Lord Chancellor, which it felt should continue at least for the time being, should be in position firmly to assert and protect judicial independence, particularly when senior Ministers might appear to impair and threaten it, and that the post holder must therefore be someone of considerable seniority who is not looking for further promotion?

Chris Leslie (Labour, Shipley)

I shall comment later on the other protections that we have added, with particular reference to the office of Lord Chancellor and the holder of that ministerial office. We have managed to strike the right balance in having flexibility for the Prime Minister in making appointments while enshrining the independence of the judiciary in its relationship with that post.

Dominic Grieve (Conservative, Beaconsfield)

I, too, commend the parts of the Lord Chief Justice's speech on Second Reading that the hon. and learned Member for Redcar (Vera Baird) commented on, which dealt with the concordat and the manner in which the Government had carried out their proposals. Can the Minister provide reassurance that the Government will preserve the substance of the amendments on the Lord Chancellor that were drafted in another place to ensure that we retain not only the Lord Chancellor's name in carrying out the functions of the Secretary of State for Constitutional Affairs, but the added protections of his sitting in the House of Lords and being a lawyer?

Chris Leslie (Labour, Shipley)

I may be giving way a little too often, because I was about to come to that. Perhaps that is something that I can learn for the future.

Before dealing with the hon. Gentleman's question, I want to restate why these reforms are necessary. Under the current system, the Lord Chancellor holds potentially conflicting judicial and political roles, and sole responsibility for the whole judicial appointments process. In our view, it is no longer appropriate for a Government Minister to have such unfettered discretion in the appointment of judges. The Lord Chancellor also holds a number of outdated, inappropriate and anachronistic functions. Reform of the office will enable that Minister to focus on his and the Government's main priority—the delivery of essential public services.

The Bill gives all Ministers—particularly the Lord Chancellor—and those responsible for matters relating to the judiciary and the administration of justice a statutory duty to uphold the independence of the judiciary. It ends the Lord Chancellor's judicial functions and ensures that his responsibilities for the judiciary are exercised under new transparent statutory arrangements with the Lord Chief Justice.

Edward Garnier (Conservative, Harborough)

Will the Minister give way?

Chris Leslie (Labour, Shipley)

I wanted to turn to the detail of the Bill, but I shall give way to the hon. and learned Gentleman before doing so.

Edward Garnier (Conservative, Harborough)

The Minister says that the Government want to modernise the operation of the judicial appointments system and make it transparent. Why then did the Lord Chancellor for the transitional period, as he likes to call himself, appoint his pupil master as president of the family division?

Chris Leslie (Labour, Shipley)

We have to operate under the law as it stands, but we want to reform it. The hon. and learned Gentleman argues rather perversely that he does not like the existing system yet wants to retain it. I am not sure that he is striking the right chord.

Keith Vaz (Labour, Leicester East)

I congratulate the Minister and the Lord Chancellor on listening to many people's concerns about the initial package that was put before both Houses last year and on adopting several of the changes. How can he ensure that the Government's commitment to equal opportunities—the Lord Chancellor is of course very committed to equal opportunities—will be transferred to the new judicial appointments commission, since the commission is under no obligation to accept what the Lord Chancellor has said?

Chris Leslie (Labour, Shipley)

As a broader, wider and more diverse body, a judicial appointments commission for England and Wales will have a positive and beneficial impact on the diversity of the appointments that it makes and the range of persons from whom it can select, notwithstanding that all appointments are obviously made solely on the basis of merit. I shall come to some specific points on diversity later.

Vera Baird (Labour, Redcar)

Will my hon. Friend give way?

Chris Leslie (Labour, Shipley)

I want to make a little progress first.

Part 1 concerns the rule of law and was added in the other place. The provisions ensure that nothing in the Bill adversely affects the constitutional principle of the rule of law. In making these changes, it is important that we do not lose the principles that have served us well in the past. The rule of law is one such area, and the new provisions improve and enhance the Bill.

Part 2 relates to reform of the office of Lord Chancellor. Throughout the Bill's passage in the other place, peers felt extremely strongly about the retention of the title of Lord Chancellor. Amendments were therefore made to facilitate that. As I said, although we believe that our original intention to abolish the office was well founded, we accept that many attach a symbolic value to the title. The Government do not feel that retaining the office and title of Lord Chancellor significantly affects the substance of our reform objectives, so we can accept that change.

Let me deal with the question about the insistence of the other place that the person who holds the office of Lord Chancellor must be a Member of the House of Lords and must have either held high judicial office or been a practising lawyer for at least 12 years. Given the substantially reformed nature of the post, we firmly believe that there is no longer any fixed requirement for the Lord Chancellor always to be a peer and a lawyer.

A Prime Minister should be able to appoint the best person for the job, whether they sit in the House of Lords or the House of Commons, rather than having a restricted choice. It would be perverse deliberately to prevent a person from holding a purely ministerial post simply because they were an elected representative. There will no longer be a need for the office holder to be a peer. Given that the Lord Chancellor is responsible for nearly £3 billion of public expenditure, it is surely reasonable that in future a Prime Minister can appoint a candidate who is capable of being held accountable to either House of Parliament, not just one House.

Chris Bryant (Labour, Rhondda)

Historically, one of the requirements for the Lord Chancellor is that he is not a member of the Roman Catholic Church. Will that requirement remain or change? Why is the Lord Chancellor's oath, unlike the oath in this House, given in only a theistic way? Perhaps a future office holder might not have a religious faith.

Chris Leslie (Labour, Shipley)

On the detailed second point, I understand that the Oaths Acts allow for affirmation and so on. Although the Bill does not deal with that, other legislation does. On the first point, the Bill does not make the change about which my hon. Friend asked, but perhaps he can raise the matter at a later stage of its passage.

Patrick Cormack (Conservative, South Staffordshire)

If the Government insist on removing the amendment that the House of Lords has inserted, how can they guarantee getting the measure through before the election?

Chris Leslie (Labour, Shipley)

As the hon. Gentleman's party knows, there are no guarantees in politics. If the House of Commons decides to overturn the amendment, it would not be wise for the House of Lords to insist on it, but that is a natural part of the to-ing and fro-ing of the legislative process.

On whether there should be a condition such as being a peer or a senior lawyer, the Lord Chief Justice, speaking for the judiciary as a whole, has made it clear that a Minister from either House could perform the functions of the new Lord Chancellor post. The Lord Chancellor will not be a judge and no more needs to be a lawyer than the Secretary of State for Health needs to be a doctor or the Chancellor of the Exchequer needs to be a qualified accountant.

Legal qualifications are not an essential requirement for a ministerial post that will in future act on recommendations from an independent judicial appointments commission, whose job will be to weigh up candidates' precise legal abilities. The Government will also have the Attorney-General to call upon for any advice on legal questions.

Dominic Grieve (Conservative, Beaconsfield)

I accept that there will be a judicial appointments commission. Indeed, it is the one aspect of the Bill that I am broadly happy to welcome. If the Bill had been confined to that, I would welcome it even more. However, the Under-Secretary will acknowledge that it retains important powers for the new Minister both in making a final selection and in maintaining links with the judiciary to initiate work by the judicial appointments commission in selecting new judges. In those circumstances, is not the other place correct to insist that the Lord Chancellor should be a unique Minister and not simply any Minister?

Chris Leslie (Labour, Shipley)

The Lord Chancellor will be a unique Minister and will have several protections, as set out in the Bill. However, I am not convinced that that extends to the absolute requirement that the Lord Chancellor must be a senior lawyer and a peer. There are no especially strong arguments given the new nature of the ministerial post. The Government will therefore seek to remove the requirements so that the Prime Minister's choice of office holder will not be so restricted.

The time has come for a more appropriate senior structure for our judiciary. The Bill establishes the Lord Chief Justice rather than the Lord Chancellor as the head of the judiciary in England and Wales. We will introduce amendments to provide similar provisions for the Lord Chief Justice in Northern Ireland.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

I hesitate to get involved in this, because I must be one of the few non-lawyers in this place—[Hon. Members: "No!"] Oh, I am glad that some other peasants have got in by accident. Is my hon. Friend the Minister using the theory behind private finance initiatives, which works on the assumption that because someone knows nothing about a particular profession, they should automatically be put in charge of it? Or am I misinterpreting what he is doing?

Chris Leslie (Labour, Shipley)

I am not a lawyer either, but I think that having a fresh perspective on a particular responsibility is sometimes a benefit, rather than a disadvantage. There are pros and cons on both sides of this argument, but we do not feel that the post-holder should be tied to one particular qualification. That would not be justified by the nature of the new ministerial post.

The Bill also makes new arrangements for many of the statutory functions of the Lord Chancellor that relate to the judiciary. These will either be transferred to the Lord Chief Justice completely, or be exercised jointly with the Lord Chief Justice, with requirements for consultation or concurrence between them and their counterparts in Scotland and Northern Ireland as appropriate. This division of responsibilities was agreed between the Lord Chancellor and the Lord Chief Justice and is known as the concordat. Reflecting on this historic agreement, the Lord Chief Justice has commented that:

"The judiciary considers that the parts of the Bill that reflect the concordat are a highly desirable package of measures designed to ensure the continued independence of the judiciary."

He added that he

"would consider it an unsatisfactory situation if the present position were left in place."

The concordat was presented to Parliament on 26 January last year, and amendments to the Bill were tabled by the Government in the other place to reflect that agreement.

Richard Shepherd (Conservative, Aldridge-Brownhills)

The Minister referred to the "continued independence of the judiciary" being maintained. It is independent now. What is the point of this Bill, if we already have confidence in the existing arrangement?

Chris Leslie (Labour, Shipley)

We need to strengthen that independence further, and we are doing that by taking away the judicial role of the legislature and taking away the legislating role of the judiciary. I hope that that explains the measures to the hon. Gentleman in a nutshell.

Dominic Grieve (Conservative, Beaconsfield)

Will the Minister now take the opportunity to accept that the original proposals did not envisage a concordat, and that the concordat was required because of the alarm of the judiciary, which was reflected in the comments of the Lord Chief Justice that, without it, this measure would constitute a serious transfer of power to the Executive that would affect the independence of the judiciary? That is why the concordat was necessary. This colours the entire nature of this debate and, particularly, the Government's bad faith in respect of it.

Chris Leslie (Labour, Shipley)

I am delighted that the hon. Gentleman thinks that the concordat is necessary. We do, too, and it is now on the table and part of the package that we are offering. I restate the quote from the Lord Chief Justice that he

"would consider it an unsatisfactory situation if the present position were left in place."—[Official Report, House of Lords, 8 March 2004, Vol. 658, c. 1004.]

We have taken great care to do nothing to diminish the independence of the judiciary. On the contrary, clause 4 of the Bill provides a new statutory 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.

Vera Baird (Labour, Redcar)

Coming back to what the hon. Member for Beaconsfield (Mr. Grieve) said a moment ago, I should like to point out that Lord Woolf said on Third Reading that

"even in its original form, the judiciary was supportive of the Bill . . . as a package of reforms that would significantly improve the protection provided for their independence."—[Official Report, House of Lords, 20 December 2004; Vol. 667, c. 1555–56.]

Chris Leslie (Labour, Shipley)

Yet again, my hon. and learned Friend helps to give breadth and depth to the debate. That was most useful.

Edward Garnier (Conservative, Harborough)

I would not like the Minister to ruin a great legal and political career by giving too much praise to the hon. and learned Lady. Will he tell us which parts of the concordat are to form parts of the legislation, and which parts we are simply to rely on by placing our trust in the Government?

Chris Leslie (Labour, Shipley)

Some parts are in the Bill and some are not. That is by agreement, and we shall no doubt go through those matters at great length in Committee, much of which, hon. Members will be delighted to know, will be held on the Floor of the House. The hon. Gentleman will have plenty of opportunities to go into that issue in detail later.

The Bill also places an additional duty on the Lord Chancellor to have regard to defending the continued independence of the judiciary. That 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. Clause 5 amends the Justice (Northern Ireland) Act 2002 to ensure that the provisions made by that Act in relation to the guarantee of judicial independence are consistent with the provision made by clause 4.

Our judiciary will have strengthened independence, but will still have a dialogue with the Government and Parliament. In recognition of the important contribution of the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland, clause 6 provides that they may table written representations to Parliament on matters relating to the judiciary or the justice system. In addition, the Bill recognises the important role of the Lord Chief Justice in respect of the judiciary. It sets out his responsibilities, including representing the views of the judiciary to the Government, and the training, guidance, welfare and deployment of the judiciary of England and Wales.

The role of the Lord Chancellor in delivering the concordat will be fundamental. It has been agreed between the Lord Chief Justice and the Lord Chancellor that functions of the Lord Chancellor that relate to the judiciary and the court system should not, in future, be transferable away from that Minister without primary legislation. That is set out in clause 17. It is another protection that the Chairman of the Committee has mentioned.

I turn now to the question of who will act as the presiding officer of the other place. The Government continue to believe that, for a busy Minister of the Crown, sitting also as a Speaker or presiding officer over a House of Parliament is a heavy burden indeed. We therefore take the view that the House of Lords should have the benefit of a presiding officer who can devote his or her time solely to its service.

Ultimately, of course, decisions on who should be the presiding officer of the other place are a matter for their lordships themselves as part of the Standing Orders of the House of Lords, which currently stipulate that the duties form part of the role of the Lord Chancellor. But it is undoubtedly odd that any House of Parliament should automatically accept the appointee of the Prime Minister as its Speaker or presiding officer, a state of affairs not conducive to the supremacy of Parliament in our constitution. The Bill therefore helps to facilitate the process now in train in the other place about who might take on that aspect of the Lord Chancellor's current functions. The House of Lords has not yet formed its view, nor decided the title of that presiding officer.

Part 2 of the Bill therefore allows the statutory functions of the Lord Chancellor, in his capacity as Speaker of the other place, to be exercised by anyone who fills that role in future.

Paul Tyler (Liberal Democrat, North Cornwall)

I hope that Members on both sides of the House will accept what the Minister says. I would put the case even more strongly, because it is surely wrong that a member of the Executive should preside in either House of Parliament. It is important to try to keep apart the roles of the Executive and the legislature, and that proposition should have the support of every right hon. and hon. Member.

Chris Leslie (Labour, Shipley)

I tend to agree with the hon. Gentleman on that point, although he will understand that it is for the other place to decide on the arrangements for its presiding officer.

Patrick Cormack (Conservative, South Staffordshire)

Should not we put it on record that the so-called presiding officer in the other place fulfils a function wholly different from that performed by Mr. Speaker in this place? The other place is self-regulating and wishes to remain so. Whoever sits on the Woolsack does not exercise the power and responsibility of Mr. Speaker, and the title of that person should not be confused with that of Mr. Speaker.

Chris Leslie (Labour, Shipley)

I understand that there are differences between the two presiding officer functions, but that is not to say that there are not public expectations about the role of the individual who sits on the Woolsack or that he or she will not undertake presiding officer duties in the course of business in the House of Lords. It is not for us to dictate to the House of Lords, at this stage, the arrangements that it should make for its presiding officer.

Edward Garnier (Conservative, Harborough)

If the House of Lords decides that it wishes its presiding officer—whatever he will be called—to be the present Lord Chancellor, but the Prime Minister decides that the Lord Chancellor's office should be held by a Member of the House of Commons, how will the Government square that circle? [Interruption.]

Chris Leslie (Labour, Shipley)

As voices off remind us, it would be very difficult to do so. However, it would be a matter for the other place to find an appropriate person to be its presiding officer.

Part 3, another fundamental part of the Bill, would create a new supreme court for the United Kingdom, separate from Parliament but with the current appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. Two principles underpin the Government's proposals for a United Kingdom supreme court: first, the functional separation of the judiciary from the legislature, and secondly, the need for greater constitutional clarity and visible independence for the United Kingdom's highest court.

The ultimate court of appeal is doing something different from the legislature; it should be doing it separately, and should be clearly seen to be doing it separately. Functional separation of the judiciary at all levels from the legislature and the Executive is a cardinal feature of any modern, liberal and democratic state governed by the rule of law.

Furthermore, the Law Lords are judges, not legislators. They are specifically appointed to act as the UK's supreme court

"for the purpose of aiding the House of Lords in the hearing and determination of appeals",

in the words of the Appellate Jurisdiction Act 1876. They are there as judges and it is no longer tenable to see those judges act in the legislative role.

I emphasise that the proposals imply no criticism of the performance of the Law Lords. I know that they are admired around the world and have always acted with the utmost integrity, independence and objectivity. However, that is not reason enough to maintain the current position. The very fact that in recent years the Law Lords have had to exercise a self-denying ordinance neither to speak nor vote in the House of Lords on matters that might come before them in a judicial capacity indicates that there is something fundamentally flawed in the current arrangements, however well they may seem to work.

John Gummer (Conservative, Suffolk Coastal)

The hon. Gentleman was at great pains to say that nothing had gone wrong so far, yet he then said that as people do not understand that nothing has gone wrong so far, we have to change things. I do not understand what has happened to our society if we are unable to understand something that we had been perfectly able to understand, and people had been perfectly well able to run, for so many years, and which is, to quote the Minister, well known and honoured throughout the world. Why can we not go on as we have done?

Chris Leslie (Labour, Shipley)

Having the Appellate Committee as the highest court in the legislature has not sat comfortably for more than a century. The Appellate Jurisdiction Act, although it was not commenced, sought to establish a separate UK supreme court. For various reasons, that did not happen at the time. The initiative is not exactly new but it is long, long overdue.

Clive Soley (Labour, Ealing, Acton and Shepherd's Bush)

It is important to remember that most of us have been dissatisfied with the situation because the Lord Chancellor, who was appointing judges, was an active party politician. Ever since I saw Lord Hailsham on the beach in his bathing costume ringing the bell for the Tory party and then claiming that he was completely independent, I have viewed the system with some suspicion.

Chris Leslie (Labour, Shipley)

Matters of family honour may need defending on that point, but I hear what my hon. Friend says.

Half the Law Lords are reported to be uncomfortable with the present arrangements. If we do not move to reform, how long will it be before a majority are unhappy? The time has come for our highest court to be a separate institution—not only separate, but seen to be separate. By establishing a supreme court, we shall create a visible apex of an independent United Kingdom judicial system, and we shall increase public comprehension of the judicial system, both in this country and abroad.

Patrick Cormack (Conservative, South Staffordshire)

The Minister is exemplary in giving way, but I must correct one point made by his hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley). When Lord Hailsham rang his bell he was chairman of the Conservative party, not Lord Chancellor. As Lord Chancellor, he exercised his functions with great distinction and complete impartiality.

Chris Leslie (Labour, Shipley)

Politicians should stick to politics and the judiciary should stick to judging. That is the clear direction in which we are travelling and there is not a massive amount of controversy about that issue.

Annabelle Ewing (Scottish National Party, Perth)

The Minister referred a moment ago to the fact the new supreme court would be an independent UK judicial system—I think that that was the phrase that he used—but given that the funding arrangements for the new supreme court will still be part of the Department for Constitutional Affairs' overall budget, the chief executive of the new supreme court will be appointed by the DCA Minister, and the DCA Minister will retain functions that relate to the judiciary in England and Wales, how can it be argued therefore that all aspects of the new supreme court will be entirely distinct and separate from the legal system south of the border? Surely it therefore falls foul of the 1707 treaty of Union.

Chris Leslie (Labour, Shipley)

The hon. Lady is wrong. First, the Department for Constitutional Affairs is a United Kingdom Department, not specifically relating to England and Wales. Secondly, the post of chief executive of the new supreme court will not be simply a ministerial appointment in the way that she describes. Thirdly, although there must be some accountability to Parliament for the taxpayers' money expended in the running and operations of the United Kingdom supreme court—ministerial accountability is therefore the way to provide that—we will provide protections separate from the normal run-of-the-mill votes and estimates that departmental budgets come under, and those resources will be ring-fenced. That will provide adequate protection for the new supreme court, so that it is seen to be independent, and is given the measure of independence set out in the Bill.

Understandable concern has been expressed about where the supreme court will be located and the cost of such a building. I am sure that Opposition Members are keen to consider that. The building for the supreme court should be a reflection of the court's importance and its place at the heart of the justice system and the constitution, yet simultaneously not excessive or lavish.

The current accommodation for the Law Lords in the Palace of Westminster leaves a lot to be desired. Their offices are cramped and inconveniently located, and constraints on the space available limit the number of support staff. Quite separately from the constitutional principles, there is a strong case for improved facilities. We have therefore considered many different building options over the past year, and after detailed evaluation and close consultation with the Law Lords, our preferred option is Middlesex Guildhall, which is on the opposite side of Parliament square from Parliament, and currently a Crown court building. We believe that it can be adapted to meet the operational requirements of a modern supreme court and provide a building of sufficiently prestigious design and location—all, of course, subject to the normal planning controls.

Dominic Grieve (Conservative, Beaconsfield)

I certainly agree with the Minister that the Law Lords may have divided views, but before history is rewritten, the Minister must have read the speech of Lord Nicholls in respect of the supreme court and his comments, as a Law Lord, about the adequacy of the accommodation currently available in the House of Lords. Would he like to confirm whether he has done so? In fact, in that speech, the indication from one Law Lord was that he considered that the accommodation provided in the House of Lords was entirely adequate.

Chris Leslie (Labour, Shipley)

We could bandy about various quotes from different Law Lords. Certainly, some Law Lords hold that view; others hold a different view. For example, Lord Bingham said:

"I doubt if any supreme court anywhere in the developed world is as cramped as our own."

He then said that there was an

"acute shortage of space . . . I cannot see why the fourth richest economy in the world cannot"

have its own building.

Lord Steyn—another Law Lord—said that

"the accommodation available for the final court of appeal"

was

"not adequate".

Different Law Lords have different views, but I do not think that by any stretch of the imagination, the hon. Gentleman is unable to envisage improvements that could be made to the accommodation for our highest court of appeal in the land—something that he will hold as a respected institution that deserves to be supported in the best way possible, to help to preserve the judiciary's independence.

The cost of establishing the supreme court at Middlesex Guildhall will be approximately £30 million, but we will also need to ensure that the criminal justice system is not adversely affected by the selection of that building. We will therefore provide additional courtrooms to handle the Crown court work currently undertaken at the Guildhall, at an estimated further cost of £15 million.

The Government are committed to implementing the new supreme court properly and to achieving value for money. That is why clause 120 contains provisions to ensure that the supreme court can not be implemented until an appropriate building is ready to receive it. Those provisions demonstrate our pledge that we will not implement the supreme court arrangements prematurely.

Dominic Grieve (Conservative, Beaconsfield)

The Minister said that Middlesex Guildhall was the preferred option and then went on to say in some detail that, in fact, it was the Government's choice. However, Lord Bingham, who wants a supreme court, has expressed extremely unfavourable views about the Guildhall.

Chris Leslie (Labour, Shipley)

Again, I do not think that is a fair categorisation. No building is absolutely perfect. I have long preferred Middlesex Guildhall, and I know that others hon. Members have reached that conclusion. It is seems an obvious conclusion to draw. The building is already there, we can see it and we know what it looks like. It looks right, it feels right and it is in the right location. It is my preferred option—but of course, it remains subject to the normal planning constraints that we have to go through. It remains a preferred option at this stage while we make sure that all those processes are undertaken properly.

Annabelle Ewing (Scottish National Party, Perth)

The Minister is most generous in giving way again. Paragraph 330 of the explanatory notes—I recognise that they are only advisory—states that

"it will be necessary to provide additional courtrooms to take on Middlesex Guildhall's Crown Court work."

Will he clarify whether these additional courtrooms will be located in the Middlesex Guildhall or in an entirely different building somewhere else in London?

Chris Leslie (Labour, Shipley)

The latter. The courtrooms would have to be located somewhere else, but they will be in London.

I want to mention briefly other aspects of this part of the Bill. Clauses 22 to 28 set out the arrangements for the selection of members of the supreme court. Clauses 45 to 50 also make provision for the governance of the court to be as independent as possible—I answered that point earlier in response to a question from the hon. Lady—so that it is compatible with its position as a body in receipt of public funds. As a logical consequence of the separation between the judiciary and the legislature, clause 109 restricts the rights of Members of the House of Lords to sit and vote, for as long as they hold full-time judicial office.

Edward Garnier (Conservative, Harborough)

Will the Minister give way?

Chris Leslie (Labour, Shipley)

Oh, go on. I will give way again.

Edward Garnier (Conservative, Harborough)

I know that it is boring for the Minister to have to explain himself, but that is what he is here to do. I want to ask about clause 65, entitled "Exercise of powers to reject or require reconsideration". The judicial appointments commission will be able to put up a name to the Minister and he will be able to reject it. However, clause 65(2) says:

"The power of the Minister . . . to require the selection panel to reconsider . . . is exercisable only on the grounds that, in the Minister's opinion—

(a) there is not enough evidence that the person is suitable for the office concerned, or

(b) there is evidence that the person is not the best candidate on merit."

Those are rather interesting expressions. What sort of evidence is the Minister is likely to have that the commission will not have had or considered? What is it about the merits of the candidate that may not attract the Minister but may have attracted the commission?

Chris Leslie (Labour, Shipley)

I happen to think that the drafting of clause 65(2) is pretty good, in that it does not go unnecessarily into the definition of that evidence, and keeps it fairly broad, but is challengeable also. For example, evidence could be that knowledge of a criminal conviction has emerged that was not available to the judicial appointments commission. That is the sort of issue, but we will go through some of the particulars in Committee.

Part 4 creates a judicial appointments commission and a judicial appointments and conduct ombudsman for England and Wales. Selection must be solely on merit, but this part of the Bill also sets out the process to be followed in appointing judicial office holders and in providing for complaints to be made to the ombudsman. It also makes provision for a new disciplinary process in relation to the judiciary. The Government believe that creating a judicial appointments commission for England and Wales will itself send a powerful message that judicial appointments are to be open, transparent, accessible, and removed from the control of a single Minister. It will also help to promote equality and diversity among those appointed to our judiciary.

Although the quality of our judges is not in doubt, the means by which they are appointed is out of step with public expectations regarding the way in which government should work. Our current arrangements have produced a judiciary that, although excellent in many ways, is startlingly homogenous. There are hardly any solicitors, few women lawyers and only one ethnic minority lawyer in senior judicial posts. I cannot believe that that is representative of the pool of legal ability or talent available for appointment. I am confident that the new judicial appointments commission will provide an appointments system based on merit alone. Crucially, however, as I said earlier, a broader appointments process will help to recognise merit from the wider pool of talent available, thus drawing on the full diverse range of those qualified for judicial appointment, regardless of their gender, or social or ethnic background.

Dominic Grieve (Conservative, Beaconsfield)

As I indicated earlier, although this part of the Bill will require close scrutiny, we support the broad thrust of it. Given that it is one of the main pillars of an important constitutional Bill, will the Minister explain why virtually none of it will be debated on the Floor of the House?

Chris Leslie (Labour, Shipley)

The aspects of the Bill to be considered in Committee on the Floor of the House and Upstairs in a Committee Room will ultimately be voted on by the House. The House will make its judgment, but I believe that we are following convention.

Richard Shepherd (Conservative, Aldridge-Brownhills)

The Minister says that merit is the primary consideration, so I am puzzled why there is conflict between that concept and the range of other matters that the Minister particularised, such as diversity. Such conflict does not seem to exist. If the measure is about merit, why is he introducing a wider system because surely that undermines that concept?

Chris Leslie (Labour, Shipley)

I think that I understand the hon. Gentleman's argument, but I hope to persuade him that he is wrong. If one makes a choice from a narrow shortlist, one can make an appointment on merit. However, if the pool of those encouraged to apply were broader and a wider range of applications were encouraged—I think that the judicial appointments commission could help to devise new ways of achieving that—appointments on merit could still be made, while helping to expand the diversity of, and equality of opportunity for, those who put themselves forward for appointment. I do not think that the two concepts are inconsistent. At the heart of the reforms is our drive to build further on people's confidence in key institutions such as the judiciary.

Oliver Heald (Conservative, North East Hertfordshire)

On a point of order, Mr. Speaker. Of course, it will not be possible for the House to debate the programme motion to which the Minister referred, because of the changes that have been made to our rules. Have you received a request from the Leader of the House to come here to explain why, with his programme motion, he is breaking a constitutional convention that has been in place since 1945 and has applied to every constitutional measure of first-class importance under this Government? This is the first time that the Government have tried to break that important precedent, and they will not even explain themselves.

Michael Martin (Speaker, Glasgow Springburn)

That is not a matter for the Chair.

Patrick Cormack (Conservative, South Staffordshire)

rose—

Chris Leslie (Labour, Shipley)

I hear what you say, Mr. Speaker, and now give way to the hon. Member for South Staffordshire (Sir Patrick Cormack).

Patrick Cormack (Conservative, South Staffordshire)

You have made it clear, Mr. Speaker, that this is a matter for the Minister, so why have the Government broken the convention? It is slightly disingenuous for the amiable Minister to suggest that the House will decide, because the Government have tabled a motion—which means that they have effectively made their decision. What is the defence for such an extraordinary unconstitutional move?

Chris Leslie (Labour, Shipley)

I am afraid that the decision to accept the programme motion will be taken not by the Government but by the House. The House of Commons will decide how to scrutinise its business.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

rose—

Richard Shepherd (Conservative, Aldridge-Brownhills)

rose—

Chris Leslie (Labour, Shipley)

I shall make a little progress.

We are fortunate that our judiciary has an exceptional reputation for intellectual ability, integrity and independence. Judges play a key role in the justice system and it is vital that the public should have confidence in them. To achieve that, we need to ensure that there is complete confidence in the way in which the judiciary are selected and appointed. Of course we need a system that selects the best people on merit, but it must do that in a modern and efficient way.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I take the hon. Gentleman back to the question asked by my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack)? The hon. Gentleman could at least explain why the Government's proposal is inconsistent with past precedent.

Chris Leslie (Labour, Shipley)

I do not accept that our proposal conflicts with past precedent. There will be ample debate on the Bill in the Committee of the whole House and in Standing Committee. If the right hon. and learned Gentleman does not like the programme motion, he is perfectly free to vote against it.

Richard Shepherd (Conservative, Aldridge-Brownhills)

The Minister made a serious assertion in his last comment to my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). It is unusual for a Minister and a Government to put a guillotine motion on the Order Paper, no less. On a constitutional Bill, there is no opportunity for the House to express any opinion in advance of the vote, which will be whipped, as to the reasonableness of the timetable according to which the Bill is being forced through.

Chris Leslie (Labour, Shipley)

The hon. Gentleman has long-held, strong views on programme motions, and I do not want to rehearse those again. He has his opinion; other Members have theirs. I remain of the opinion that the balance of consideration in Committee of the whole House and in Standing Committee is right, because, as in the other place, the Bill's most important constitutional aspects will be given an ample airing on the Floor of the House.

Patrick Cormack (Conservative, South Staffordshire)

On a point of order, Mr. Speaker. In view both of your ruling, which we completely understand, and of what the Minister has said, will you make it plain that it will be permissible to refer fairly extensively to the programme motion during the Second Reading debate?

Michael Martin (Speaker, Glasgow Springburn)

I would say yes, within reason.

Chris Leslie (Labour, Shipley)

What a strange turn of affairs if the main point of contention from Opposition Members is the time allocated to the debate rather than the substance of the Bill. Indeed, we have probably spent more time on the interventions about whether the programme motion has the correct division of time between the Floor of the House and the Standing Committee than we have on the Bill. Conservative Members need to get a little perspective on the issue.

Oliver Heald (Conservative, North East Hertfordshire)

Almost everything that the Minister has mentioned, from whether the Lord Chancellor should be a lord, and whether he should be a lawyer, to the transfer of functions—all the points of detail that he has prayed in aid as being of interest to the House—will not be discussed in Committee of the whole House. How can he justify that?

Chris Leslie (Labour, Shipley)

I believe that the Bill's most fundamental constitutional aspects will be debated in Committee of the whole House; the other aspects, which are more appropriate for the Standing Committee, will be debated at length and in great detail by that perfectly capable body.

John Gummer (Conservative, Suffolk Coastal)

I thank the Minister, whose courtesy is renowned, for giving way. He has told us that the Bill's purpose is primarily to address the fact that people outside do not understand the complications and what appear to be the contradictions in our present system. Does he not understand that the same is true of what he has just said? People outside will not understand why there is no procedure whereby we will be able to discuss, on the Floor of the House, a major constitutional change. He is arguing one thing in the case of the whole Bill, and exactly the opposite in this case. That is why we have spent so much time on the point.

Chris Leslie (Labour, Shipley)

We will have to agree to disagree on the matter. It is not true that we will have no opportunity to debate the judicial appointments commission on the Floor of the House, because as the Bill progresses through its parliamentary consideration there will, of course, be Report stage, when we will be able to look in detail at many of those matters.

I want briefly to mention the operation of the judicial appointments commission, which will select judges for appointment in England and Wales. It will be composed of 15 members: six lay members, five judges, one solicitor, one barrister, one tribunal member and one magistrate. The chair will be a layperson, emphasising independence both from the judiciary and from the Executive. The commission will recommend to the Lord Chancellor one candidate for each vacancy selected, solely on merit. No one will be appointed who has not been selected by the commission.

The Lord Chancellor will have a very restricted role: he or she will be able to reject a candidate once and to ask the commission to reconsider a selection once, as I said in answer to an intervention by the hon. and learned Member for Harborough (Mr. Garnier). The arrangements will ensure that the role of the Lord Chancellor is transparent, but that there is necessary ministerial oversight and involvement to ensure proper accountability to Parliament, which is of course sovereign.

At present, the Lord Chancellor has statutory powers to remove judicial office holders below the High Court on grounds of incapacity or misbehaviour. Those powers will be reformed so that they can be exercised only with the agreement of the Lord Chief Justice. The Bill places all matters of judicial discipline and removal on a transparent statutory footing and provides a structure that reflects a proper balance between the independence of the judiciary and democratic accountability for the judicial system. The current role of Lord Chancellor will be shared with the Lord Chief Justice. No removal or other disciplinary action can be taken by one of them without the agreement of the other. None of those powers will displace the existing role of Parliament in the removal of the most senior members of the judiciary, in those exceptional circumstances.

The Bill will also permit those who are dissatisfied with the administration of the complaints procedure established by the judicial appointments commission to seek review of the operation of the process by a judicial appointments and conduct ombudsman.

Part 5 of the Bill takes account of the reform of the office of the Lord Chancellor in Northern Ireland, building on the provisions already made for that jurisdiction. Part 5 makes provision for the removal of judges in Northern Ireland in the period prior to devolution of justice to the Northern Ireland Assembly.

In Committee, we shall no doubt debate these provisions in much greater detail, but fundamentally, the principles and rationale for the legislation are clear and simple—

John Bercow (Conservative, Buckingham)

rose—

Chris Leslie (Labour, Shipley)

Speaking of which, I give way to the hon. Gentleman.

John Bercow (Conservative, Buckingham)

The Minister has sought to deal with the Bill sequentially, but will he press the rewind button for a moment? I would like to take up the issue of the provision in clause 16 for the transfer, modification or abolition of the functions of the Lord Chancellor by order. I am in a difficulty from which I hope the hon. Gentleman will be able to extricate me. Given that the Lord Chancellor has a visitatorial function—a responsibility for interpreting and acting as arbiter in a number of disputes, notably, for example, in universities and hospitals—can the hon. Gentleman tell me how that role relates to and/or differs from comparable responsibilities of the President of the Council, the Leader of the House? What is the nature of the reform that the Government envisage?

Chris Leslie (Labour, Shipley)

Many of the visitatorial functions of the old office of Lord Chancellor are not appropriate to the new ministerial office. Many of those will revert either to universities or to the other appropriate office holder—the Secretary of State responsible for those particular policy areas. That is one of those matters of detail that I again suggest would be better aired in Committee.

John Bercow (Conservative, Buckingham)

rose—

Chris Leslie (Labour, Shipley)

Just for fun, I will give way again.

John Bercow (Conservative, Buckingham)

I admit that this is a matter of detail. The hon. Gentleman and others may think that I am being pedantic, but I happen to think that the matter is important, and I do not disagree with what he has just said. In saying what he has about the rather anachronistic character of some of the responsibilities, does he accept that it would be a bit of an anachronism for the Leader of the House, notwithstanding his multifaceted talents, to have responsibility for arbitrating on disputes in universities? Surely the right hon. Gentleman's time would be better devoted to other responsibilities.

Chris Leslie (Labour, Shipley)

The hon. Gentleman may well have suggested a worthwhile debate. I agree that my right hon. Friend has multifaceted talents, and I am glad that the hon. Gentleman has recognised that.

To return to the principles of the Bill, its rationale is clear and simple: a modern footing for the relationship between the Government, the judiciary and Parliament; an end to the potential conflicts of interest between the political and the judicial realm; a restatement and strengthening of judicial independence; better courts administration, with a full-time Cabinet Minister overseeing £3 billion of public expenditure; and clearer responsibilities for the vital functions of a modern democracy.

Our constitutional history is among the longest and most illustrious anywhere in the world. It has evolved gradually but constantly over the centuries. Change and reform is therefore a core feature of our system of governance, not alien to it. These changes, too, will further enhance and improve our constitution so that it is fit for the 21st century. I commend the Bill to the House.

Patrick Cormack (Conservative, South Staffordshire)

On a point of order, Mr. Speaker. I apologise for raising this matter, but I wonder whether there is anything that you can do to protect the interests of the House. We have just heard that this is a major constitutional Bill of enormous and far-reaching importance—an historic Bill, whatever one's view of it—yet despite the Minister's assurance, the House will have only three hours on the Floor of the House to debate the most fundamental aspects of the measure. Can you do anything to make representations to those who have brought the Bill before us to ensure that the House—your House, over which you preside—has a proper opportunity to discuss those important matters?

Michael Martin (Speaker, Glasgow Springburn)

The hon. Gentleman asks me to do something in which the usual channels should be involved. The Whips are obliged to listen to Back Benchers, especially senior ones. I know that the Government have a majority, but we are in danger of pre-empting the decision on the programme motion, which is not for me to do.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move,

That this House declines to give the Constitutional Reform Bill a second reading because it creates a costly and unnecessary Supreme Court exercising the same functions as the current Law Lords; is based on the false premise that the separation of powers between the judiciary and legislature requires the physical removal of the Law Lords from Parliament; fails to demonstrate how the proposed Supreme Court would exercise its functions with any greater degree of impartiality, independence and integrity than the Appellate Committee of the House of Lords; will deny Parliament the experience and expertise that the Law Lords bring to debates and legislation; and notwithstanding the benefits of a Judicial Appointments Commission, offers no convincing justification for replacing a system that works well.

I move the reasoned amendment with considerable regret, because I am by no means averse to the idea of evolutionary constitutional reform, and certainly not in respect of the judiciary and its appointments system, or of the operation of the House of Lords and the role of the Lord Chancellor. Far from it. As the hon. Member for Nottingham, North (Mr. Allen) said, it has always been a subject of legitimate public debate. Constitutions will survive the test of time only if they adapt. I have no difficulty with those arguments, but we cannot get away from the fact that the manner in which constitutional reform of a major kind was introduced was disastrous—disastrous for the reputation of the Government, disastrous in terms of undermining the independence of the judiciary, which it involved at its outset and disastrous in the whole manner of its announcement.

In early 2003, we were assured by the previous Lord Chancellor that the Government on whose behalf he was speaking had no intention of changing the current systems in respect of the Lord Chancellor and the Supreme Court. In summer 2003, an announcement was made on the back of a Cabinet reshuffle—an announcement of which, it has become apparent, the Lord Chief Justice was informed only a few minutes before it was made. It was obvious that the Cabinet Secretary, who is supposed to steer Ministers, in particular the Prime Minister, away from serious pitfalls, had not been consulted. The announcement envisaged the immediate axing of the office of Lord Chancellor. It was a back-of-the-envelope job and within 24 hours we had the bizarre scene of the person who had announced that, whatever he was, he was not the Lord Chancellor, having to go the royal courts of justice to take the Oath of Allegiance to fulfil precisely that role. Not only was the spectacle unedifying as a piece of history, but it colours my approach to the Government's handling of the matter and the degree of trust that I place in the Government's delivery of their promises on it.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will my hon. Friend also point out that the affair showed extraordinary ignorance on the part of those advising the Prime Minister, because there were hundreds of references in many statutes to the role of the Lord Chancellor, which had to be dealt with before the office could be abolished?

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely. There were, I believe, more than 500 such statutory references that could not be expunged by the executive fiat of the Prime Minister, but whether the right hon. Gentleman was badly advised, I do not know. I have a funny feeling that he was not advised at all. I think that he concocted the change in cahoots with the present Lord Chancellor on the back of an envelope—or certainly over a glass of good claret. I cannot imagine what else what else was going on.

Edward Garnier (Conservative, Harborough)

I am grateful for my hon. Friend's opening remarks. Does he accept that the logic of his amendment and what he has just said is that the next Conservative Government would repeal the Bill if it is on the statute book when we return to office?

Dominic Grieve (Conservative, Beaconsfield)

The position is clear. We are committed to the preservation of the office of Lord Chancellor in a form in which he is both a lawyer and a Member of the Lords. That is fundamental, and I believe and trust that we would take action to restore the office. As for the supreme court, we must see what the position is when a Conservative Government come to office. [Interruption.] I must tell the Minister that our position, too, is straightforward. If the supreme court has not been set up, I assure my hon. and learned Friend that we do not intend to set it up. It is unnecessary, for reasons that I shall explain.

John Gummer (Conservative, Suffolk Coastal)

Will my hon. Friend return to his point about the proposal being made on the back of an envelope? Is it not likely that it was introduced in that peculiar way, given that the creation of both the Office of the Deputy Prime Minister and the Department for Environment, Food and Rural Affairs was worked out on the back of an envelope to satisfy individuals, rather than for the better governance of the nation?

Dominic Grieve (Conservative, Beaconsfield)

I agree. A number of people were satisfied with the reform of the office of Lord Chancellor. The present Lord Chancellor seemed to be pleased with his promotion. Notoriously, the previous Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), was filmed at the entrance to the Home Office embracing the present Lord Chancellor, who was about to carry out his new duties. The right hon. Member for Sheffield, Brightside was overheard to say sotto voce, "Now at last we will get the judges we want." Another reason why I find it hard to trust the Government on this issue is that, in the initial stages of reform in the period immediately after the announcement of the back-of-the-envelope proposals and the ensuing fiasco and back-tracking, the judiciary, who certainly did not wish to be dragged into the argument—none the less, they were—were under the impression that the proposals as they stood were the most serious threat to judicial independence in their lifetime. That was apparent from their response.

I accept that, since then, the Government have taken steps to satisfy many of the judiciary's anxieties, but it is extraordinary that a Government committed to human rights and the rule of law should, in the summer of 2003, have introduced a series of proposals that threatened to undermine both. However, I have ceased to be surprised at the way in which they operate, because although they are loud in their rhetoric about trying to improve and modernise, the reality is a constant accretion of centralising control to Ministers—that has been their absolute and consistent hallmark.

Clive Soley (Labour, Ealing, Acton and Shepherd's Bush)

Before we leave the question of what a future Conservative Government, if there is one, would do, will the hon. Gentleman explain something? I am not a lawyer but, as I understand it, if we do not have a supreme court and a clearer separation of powers, it is only a matter of time before someone goes to the European Court of Human Rights and argues that case. Is it the intention of a future Conservative Government to take us out of human rights legislation?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman has made a perfectly reasonable point, but the problem that he identified is a fiction. Many of the Law Lords who considered that problem decided that it was most unlikely to arise and I believe that, if such a challenge was mounted in Strasbourg, the margin of appreciation allowed for a country's individual judicial system would enable our arrangements to stand the test without difficulty. The only issue that might have presented problems was the Lord Chancellor sitting as a judge, which is why, as the Minister knows, we have always been consistent in the view that that was a practice that could be ended as part of the evolutionary change. I disagree with the analysis of the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) of what would have happened, or what would happen—after all, we have not brought these changes about—if we left the Law Lords as they are at present.

The Minister said that it is wrong that judges should have to exercise forbearance in what they say, but the reality is that judges have to do so at almost every moment, including in private conversations and at dinner parties. I do not think that that made any difference and they succeeded in managing membership of the House of Lords and active participation in it without difficulty. I shall return to that point.

Vera Baird (Labour, Redcar)

The hon. Gentleman will appreciate that there is a real academic conflict in respect of what he has said and that there might be something in the assertion of my hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley). There is a respected school of thought that says that having judges in the legislature at all is capable of breaking the convention.

Dominic Grieve (Conservative, Beaconsfield)

I accept that the hon. and learned Lady makes an arguable point. We continue to have judges in this legislature. We have recorders who sit in the Crown court. That is a point to be borne in mind. Indeed, we have deputy district judges sitting in the House, quite apart from the other place. I do not believe that that presented a problem. I was sufficiently happy, as I shall explain, with the existing system, not to have wished to see it tinkered with.

Edward Garnier (Conservative, Harborough)

I intervene as a Member, not as a recorder who happens to be a Member.

Before my hon. Friend allows himself to be too far seduced by the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) and his arguments, he will remind himself of the European Court of Human Rights case dealing with the Bailiff of Guernsey. He will remember that, while the case led to the change in the arrangements in this country over assistant recorders and so forth, that Court did not criticise the British system of having a Lord Chancellor who happened to be a member of the political class.

It strikes me that we are getting into this groove because we are different and because it is thought that we should conform with everybody else's constitution. I hope that the Conservative party, above all, will ensure that it sticks up for what is good in this country and not allow the Labour party to wash all over us the slack intellectual guff that it seems to be seduced by.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with my hon. and learned Friend. I want to reassure him. I am proud of our constitution and of the fact that it has stood the test of time, worked well and evolved pragmatically.

I say to the Minister that I could not give a fig about the separation of powers. It is an 18th-century concept that was put together by a French philosopher who came over to this country and misunderstood the way in which the system worked. Particularly, he was amazed that members of the judiciary, even then, exercised their powers independently and concluded that they were separate. What is of concern to me and to others is that the independence of the judiciary should be preserved. The separation of powers has nothing to do with it. Indeed, it is a concept that, on the whole, we have ignored and I think that we have been right to do so.

Patrick Cormack (Conservative, South Staffordshire)

My hon. Friend is making a robust and intellectually impeccable case. Is not the natural conclusion of everything that he says that the next Conservative Government would be exceptionally unwise to proceed to a second House that was 80 per cent. elected, which would, in effect, abolish the House of Lords?

Dominic Grieve (Conservative, Beaconsfield)

I agree that any step by any Government in respect of the constitution of the House of Lords that erodes its independence, its independence of thought and independence of action would be massively undesirable.

I return to the slightly more restricted area of the judiciary and specifically to the office of Lord Chancellor. The Government proposed its entire abolition. They were then willing to listen to the representations made in the other place on the preservation of the name as the title of the Minister who fulfils the functions, but that is to all intents and purposes a valueless concession. I am interested not in symbols, but in practical reality. The practical reality is that, by a mixture of accident of history and the development of convention, we have succeeded—or had succeeded, until summer 2003—in creating an exceptional institution and one that ensured that, at the very heart of Government and of the operation of the Executive, there was a permanent champion of the independence of the judiciary capable of standing up for its independence and its rights, and it worked.

It did not matter whether Lord Hailsham rang his bell on the beach—I think it was actually on the podium—when he was a party chairman. It did not matter that Lord Gardiner had been an active member of the Labour party prior to his appointment. When somebody was appointed Lord Chancellor, went to the royal courts of justice and took the judicial oath, he was effectively transformed and became in his attitude and outlook quite different, commanding respect to such an extent that every time one asks the question, which the Minister answered earlier, whether actions by previous Lord Chancellors over the past 25 to 30 years in the appointment of the judiciary or their dealings with them have been faulted, the answer comes back entirely in the negative. To take that institution and smash it to pieces, which is what the Government proposed to do at the outset, without providing for an adequate replacement—as I shall explain in a moment, the replacement is in many of its aspects seriously flawed—strikes me as extraordinary.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend has been referring to the office of Lord Chancellor. He made some very kind remarks about my right hon. Friend, my father. Does he accept that one of the reasons why the Lord Chancellors were always effective in the role that they performed was, first, because being in the House of Lords, they could not look to preferment in this place and therefore were not the subject of patronage in that sense, and secondly, because as a general rule they had come to the end of their political or their legal career and did not give two hoots?

Dominic Grieve (Conservative, Beaconsfield)

My right hon. and learned Friend is right. Having taken the judges' oath, Lord Chancellors had nowhere else to go. There was no further appointment in Government that they could fulfil that would be of an active political kind, or, short of sitting as a Member of the Committee in the House of Lords, any other function in their profession as lawyer to which they could return. I am convinced that it was a powerful and effective tool in promoting their independent viewpoint. Of course it was always possible that they could be sacked by the Prime Minister and replaced, but their replacement underwent exactly the same metamorphosis when he went down the road to the royal courts of justice to take the judicial oath. This is not just an abstract matter. It worked in practice, as the Minister acknowledged.

When we consider the office of Lord Chancellor and whether it is worth preserving, I point out to the Minister, first, that if it worked well but there were flaws in it—the particular flaw identified by the Minister and some others is that the Lord Chancellor sat actively as a judge, as opposed to just appointing judges—that is a matter that can be remedied. Secondly, as I made clear to the Minister at the outset, if the needs of transparency merit a judicial appointments commission, there was no reason why the Government could not go ahead and create that commission while preserving the office of Lord Chancellor, sitting in the House of Lords, taking an oath of office, not sitting as a judge and remaining legally qualified.

John Bercow (Conservative, Buckingham)

Whether my hon. Friend noticed it or not, the Under-Secretary of State for Constitutional Affairs, the hon. the Member for Shipley (Mr. Leslie) looked genuinely quizzical and even disbelieving at the idea that someone who had once been a party politician and became Lord Chancellor could change in attitude and outlook according to the new post he occupied. Does my hon. Friend agree that it is curious that the Minister should be so disbelieving, for there is an obvious precedent much closer to home? I refer to the fact that in our parliamentary process someone who has long been a party politician subsequently becomes Speaker of the House.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with my hon. Friend.

It is a curious feature of this Government that they distrust and dislike convention. Convention is a system by which people behave in particular ways or do particular things, not because any rule is laid down that they should do it, but because they know that it is expected of them and believe that they would face massive public disapproval, and, quite apart from anything else, a lowering of their self-esteem, if they did not. I happen to believe that that is one of the really remarkable things that we have in this country. It is one of the things that make me proud of being British. I compare that with the situation in other countries, including one with which I am closely linked, where I do not think that such a system prevails. Therefore, it is something to be nurtured, enhanced and celebrated, yet the Government have shown themselves consistently incapable of doing that. We have an example of that today, because it is the convention that a Bill of this importance should be taken on the Floor of the House, but the Government, in so far as they are concerned with convention, could not care less, so we will not do that.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

This is an important point. Will the hon. Gentleman therefore tell me why the Conservative party accepted the fact that a major constitutional Bill of this kind, which is very important, should be dealt with in the way that has been proposed by Her Majesty's Government? They must have had talks with the Ministers concerned.

Dominic Grieve (Conservative, Beaconsfield)

I can reassure the hon. Lady that we have not. We shall vote against the programme motion and if in the course of this afternoon I can persuade the Government by my arguments to revise their proposals, I assure her that I shall be delighted. The entire Bill should be taken on the Floor of the House. It would need about four days, no more. It could be done simply and straightforwardly, and that would allow for the maximum participation by right hon. and hon. Members .

John Gummer (Conservative, Suffolk Coastal)

The hon. Member for Crewe and Nantwich (Mrs. Dunwoody) is herself an example of the importance of convention. The attempt to remove her as Chairman of a Select Committee was clearly unacceptable. The Government behaved perfectly legally, but in a way that all convention spoke against. Is it not true that convention is a civilised way of running a Government and a Parliament, and do we not get rid of it at our cost?

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with my right hon. Friend. I commend to the Minister the words of a distinguished Labour Minister, Herbert Morrison, who said:

"You cannot play about with the British Constitution in a Committee Upstairs, to put it colloquially."

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

On a point of order, Mr. Deputy Speaker. I apologise for interrupting, but earlier Mr. Speaker said that the programming of the Bill was a matter for arrangement between the two Front-Bench teams. Am I to take it that that negotiation has not taken place?

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

That is not a point of order for the Chair. I have no knowledge of what has gone on between the usual channels.

Dominic Grieve (Conservative, Beaconsfield)

I can tell the hon. Lady that the negotiations failed, because our proposal that the matter should be taken on the Floor of the House in the ordinary way was rejected by the Government, who have tabled a motion, on which we shall vote after Second Reading, insisting that large chunks of the Bill should be taken Upstairs. It is of more than abstract significance. It is extraordinary. The Minister spoke earlier about the importance of the new judicial appointments mechanisms in terms of the point at which the Secretary of State for Constitutional Affairs/Lord Chancellor would have a choice to accept or reject a nomination. The hon. Lady may agree that that is an important point. It is in clauses 64 and 71, but those clauses will not be considered on the Floor but Upstairs. Even now, the Minister has time to change his mind and ensure that those clauses are considered on the Floor.

David Heath (Liberal Democrat, Somerton and Frome)

I will advise my hon. Friends to vote against the programme motion this evening and was not consulted on whether any or all of the Bill should be taken Upstairs.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry to hear that the hon. Gentleman was not consulted, because he should have been. I understand that a discussion took place with Government representatives and that no meeting of minds occurred. The sensible course of action is for the entirety of the Bill to be considered on the Floor.

Edward Garnier (Conservative, Harborough)

The Government's attitude to the question is exposed by motion 3 on the Order Paper, which states:

"CONSTITUTIONAL REFORM BILL [LORDS] (PROGRAMME) [No debate]".

"No debate" is in heavy type. The Government do not like debate and being held to account. They want to force us to take on everything that they push forward, irrespective of what the public and the House of Commons think.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my hon. and learned Friend. It is regrettable that we cannot debate the programme motion and, although the situation is still unsatisfactory, that is why we are seeking to touch on the matter here on Second Reading.

Moving on from the question of the Lord Chancellor, if the Minister is prepared to accept the amendments, which were tabled and voted on in the other place, to the effect that the Lord Chancellor should remain in the House of Lords and be a lawyer, a meeting of minds will occur between Conservative Members and the Government on that part of the Bill. The Minister may have great difficulty getting the Bill through Parliament unless that concession is made. The Bill started in the House of Lords, which is a good reason why the House of Lords should have some say on how it is finished.

I hope that we can persuade the Minister to make a small but significant change in Committee to ensure that the Lord Chancellor/Secretary of State for Constitutional Affairs is not a politician on the make and not subject to the inevitable political pressures in respect of the judiciary. Such political pressures are generated, often understandably, in this House and they are thoroughly undesirable if they influence the decisions of individual judges. That change would ensure that the independence of the judiciary is maintained. The Minister may argue that the concordat is sufficient, but the concordat is valueless unless good will exists. The best way in which to generate good will is to have the highest standards, which would come from the preservation of a large part of the substance of the office of Lord Chancellor as well as the name.

Vera Baird (Labour, Redcar)

Is the hon. Gentleman aware that the qualification in clause 3 that the Lord Chancellor must be a lawyer, which is likely to be met most of the time, also requires that person to be a High Court advocate under the Courts and Legal Services Act 1990? I may be wrong, but that seems to be the requirement. That would exclude, for instance, a senior solicitor who has not bothered to obtain that qualification because they are not engaged in that kind of practice. Is that not an undue restriction on the available pool of post holders?

Dominic Grieve (Conservative, Beaconsfield)

I am broadly content with the legal qualification in clause 3. If it concerns the hon. and learned Lady, it is precisely the sort of area that can and should be examined in Committee, but it is not the main issue.

In a moment, I shall discuss how the judicial appointments commission will function, but the person who fulfils the ministerial office—I shall be interested to hear the Minister's view in Committee—must take a close interest in the judiciary and its career structures, who is doing well, how the judiciary operates on a day-to-day basis and any problems that the judiciary may have. As the Minister will confirm, one of the key roles of the Lord Chancellor that remains in the Bill is that of initiating the process by which the judicial appointments commission becomes operational, as well as having an ultimate power of veto over certain appointments.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Does my hon. Friend agree that one of the chief functions of our Lord Chancellor is to constitute a source of advice and influence that can be set against the Home Secretary? As that is usually to do with constitutional or criminal law, is it not rather important that the Lord Chancellor should have some professional expertise in that field?

Dominic Grieve (Conservative, Beaconsfield)

My right hon. and learned Friend pre-empts my next words. He is of course right.

As I said at the outset, having a judge representing the judiciary in the heart of Government is among the principal important functions that the Lord Chancellor has fulfilled. After the events of summer 2003, the judiciary expressed great anxiety about the political pressures on it that were building up. The downgrading, in effect, of the office of Lord Chancellor into that of a minor Minister was beginning to have an impact on the judiciary's sense of independence. We saw that when the then Home Secretary told the House that magistrates should go to public meetings to be told how to perform their functions, and when, in extraordinary fashion, he started to usurp the power relating to how the Crown Prosecution Service should operate. As my right hon. and learned Friend may remember, that was the subject of a statement or urgent question in this House. The actions of the Home Office gave rise to great concern about whether judicial independence could and would be maintained. These are not just abstract problems.

The Lord Chancellor is not symbolic and his role should be reinforced. I am convinced that if the Government see sense on this, they will have no cause to regret it. I cannot see any problem for them in keeping the Lord Chancellor in a status that means that further preferment will not be open to him. That is advantageous—but substituting a Minister on the make is an enormous mistake.

Chris Leslie (Labour, Shipley)

The hon. Gentleman disparages all Ministers who are neither lawyers of large significance nor peers as "Ministers on the make." Can he justify having this legal qualification for the new ministerial post by explaining why he, for instance, would be superior to, say, his colleague the right hon. Member for Haltemprice and Howden (David Davis), who does not have such a qualification?

Dominic Grieve (Conservative, Beaconsfield)

The Minister completely misunderstands my point. There are two separate issues. First, the office holder should be in the House of Lords and should take an oath that disqualifies him from further participation in Government thereafter—that is valuable and has nothing to do with his legal qualifications. Secondly, he should be legally qualified because his role is intimately involved in the selection of the judiciary and the knowledge of how the judicial system works. Thirdly, as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said, he should provide a lawyer's input into the issues of judicial independence that he is there to maintain. For all those reasons, I would keep the office of Lord Chancellor as provided for by the Bill as amended in the other place.

I told the Minister at the outset that we support the principle that a judicial appointments commission should be set up, so many of the comments that I wish to make can be reserved for Committee. However, it is worth bearing in mind one or two key points. If the commission is to work, it must have sufficient flexibility to be able to respond rapidly to any given situation. For example, it is well known that at the end of the Pinochet case, the then Lord Chancellor realised that the House of Lords faced difficulties. He therefore carried out a musical chairs reshuffle, which worked superbly. He appointed a new senior Law Lord and a new Master of the Rolls and the consequences were widely appreciated. I have a concern—which I hope the Under-Secretary will note, even if he does not respond to it later in the debate—that the commission should have sufficient flexibility to act, if necessary, with similar finesse. That is important, because when one examines the bureaucratic structures that are being set up there must an anxiety that, however worthy the aims of the judicial appointments commission, it will not have the ability and flexibility to move in that fashion.

Earlier, my hon. and learned Friend the Member for Harborough (Mr. Garnier) mentioned the appointment of the new president of the family division. I make no criticism of the appointment, which appears to be unusual and, we hope, creative. However, I am bound to say that it was possible because, for better or worse, of the ability to make decisions in a highly flexible manner. I therefore need reassurance that appointments by a judicial appointments commission can have similar flexibility. I hope that the Under-Secretary will accept that as a seriously made and well-intentioned point. There is no point in our ending up with a rather ponderous organisation that fails to deliver the necessary flexibility to ensure that the higher echelons of the judiciary can be so moved around that people are happy in their jobs, that it functions well and that there is public confidence in it.

Edward Garnier (Conservative, Harborough)

I am grateful to my hon. Friend for giving way because he allows me to clarify a point that I made in an intervention. I believe that Lord Justice Potter will make an extremely good president of the family division and I have no criticism of his judicial qualities. However, I am worried about the illogic of the Government's position. On the one hand, they advocate modernisation of the judicial appointments system, yet on the other they appoint a judge—as it happens, an excellent judge—by old-fashioned means. I heard the Under-Secretary's comments, but it is deeply unconvincing of him to try to advance one argument after the Bill is enacted, yet rely on the much-criticised system that pertains before enactment.

Dominic Grieve (Conservative, Beaconsfield)

My hon. and learned Friend is right that there are strange standards in the Under-Secretary's approach. However, in fairness to him we are considering one argument that shows the merit of a judicial appointments commission and why I support it. However, we need to consider flexibility carefully.

There is another concern. The Under-Secretary said that any appointment would be made on merit. Indeed, it must be on merit. I am not worried about the desire to expand the pool of talent—many people hide their light under a bushel and such talented individuals should be brought forward and considered. However, there is a narrow dividing line between that and engaging in a form of engineering that rapidly leads the public to conclude that appointment on merit is not happening. We need to consider that carefully because although I am as keen as the Under-Secretary to ensure that those with merit who are qualified are appointed from all sections of society, merit must nevertheless be central and any attempt to dilute it must be examined with great caution.

Vera Baird (Labour, Redcar)

I was pleased to hear the hon. Gentleman set out the importance of merit and his appreciation, which I am sure was implicit, that the wider the pool, the better the calibre of candidate. Is he ready to confirm that the current system is not the best because, historically, positive discrimination has taken place in favour of white men from Oxbridge colleges and public schools? That is unfair and does not constitute promotion on merit alone.

Dominic Grieve (Conservative, Beaconsfield)

I hesitate to join the hon. and learned Lady in that criticism. I simply point out that the Under-Secretary appears to take the view that every effort has been made in the current system to ensure appointment on merit from the widest possible pool of those qualified. I have not heard him say that that is not happening. Indeed, it would be surprising if it were not, because that would constitute a criticism of either this Lord Chancellor or his predecessor. Indeed, going back to the Conservative Lord Chancellor before them, I seem to recollect some extremely creative appointments being made, and his not being criticised for that.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

Does the hon. Gentleman recognise that it is a merit not only to have the highest levels of judicial ability but to add to the bench greater representativeness than it had before?

Dominic Grieve (Conservative, Beaconsfield)

I certainly agree with the right hon. Gentleman that we should not be doing our job properly if those who were capable of serving were being denied access to the higher ranks of the judiciary, for whatever reason. To that extent, I entirely agree with him that if the system can be improved so that there are fewer occasions on which anyone makes a complaint, that would be a good thing. Appointment on merit is the key criterion that must be observed, because ultimately judges are there to decide issues not because of their background, their race or their faith. The wonderful thing about this country is that that is exactly what has been happening for many years and we must ensure that it is preserved.

If we are to encourage people to go on to the higher benches of the judiciary, we must face the fact that, at the moment, many of them have to be asked to do so. The Minister will acknowledge that the current composition of the Court of Appeal simply would not be as it is if people had not been prodded—at the moment by the Lord Chancellor and sometimes the Lord Chief Justice—into accepting appointments that often involve a substantial diminution in their earnings. That is something that we shall need to consider carefully, because if the appointment system is simply going to involve filling in a form and answering an advertisement, I have a nasty feeling that many people who have the requisite talent and merit will be excluded from applying, either through diffidence or some other reason. This is another area of the existing flexibility that we must not lose through the mechanism of setting up a judicial appointments commission. We can look at that in detail in Committee.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will my hon. Friend note that a number of hon. Members, myself included, have considerable concerns about the procedure whereby complaints can be made to the ombudsman regarding the methods of selection used by the appointments board? This matter must be carefully scrutinised in Committee.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my right hon. and learned Friend. Indeed, I apologise for not having touched on that matter. I was conscious of the passage of time and wished to allow adequate time for Back-Bench contributions. He is right—that is another area of detail that we need to examine.

The principle of the judicial appointments commission appeals to me and I am sure that it will lead to improvements, but the detail is important, and the fact that we support the principle should not, and will not, mean that we ignore the detailed problems associated with it. I have read the Bill and looked at the debates in the other place, and it has become apparent that there are complexities involved. Unless we get them right, we could end up with an appointments system that does no better than the present one. Indeed, it could contain flaws that the present one does not.

The Minister tells us that the supreme court will cost £30 million to set up. I suspect that that is a highly conservative figure. If we have understood him correctly, the court is heading straight into the Middlesex Guildhall, which is the one place that the Law Lords who support the idea of a supreme court do not want to go, because it would send out all the wrong signals about what they are and how they operate—[Interruption.] I give way to the Minister.

Chris Leslie (Labour, Shipley)

I was expressing slight surprise that the hon. Gentleman thinks that it is the wrong place in which to have a supreme court. Parliament square represents pretty much the apex of our constitution, so perhaps he could elaborate on why it is the wrong preferred choice.

Dominic Grieve (Conservative, Beaconsfield)

The valid points that were made were that the building is an old guild hall. A number of its rooms have limitations in the way in which they can be adapted. They are not suitable for the sitting of a supreme court because the judges want to maintain the informal atmosphere that they currently enjoy in a Committee Room in the House of Lords. Most of the other accommodation is similarly unsuitable. Those points were made with some force not by me, but by Lord Bingham and it seems that the Government intend to ignore them. I find it a little surprising that as the new supreme court is supposed to send out a powerful signal of novelty—I mean that in the best sense of a new beginning—it is proposed to house it in a building that is not exactly a symbol of the supremacy of law.

The irony, as Lord Nicholls of Birkenhead made clear in his speech, is that many Law Lords find the setting in which they currently do their work extremely congenial because of both the accommodation and the signal that it sends out of how they conduct their business. It may be a bit cramped, but it is astonishingly cheap with £168,000 a year of overheads, compared with the Government's estimate of £8.8 million a year on overheads for the new supreme court. I shall need a lot of convincing from the Minister that the new idea has any merit.

David Heathcoat-Amory (Conservative, Wells)

Has my hon. Friend attempted to understand the notes on clauses about costs? If he has tried to read them, does he understand, as I do, that the extra capital and running costs will be reflected in higher court fees charged to litigants by the judicial system? Does that not contradict the Government's expressed wish to increase access to the justice system through lower costs?

Dominic Grieve (Conservative, Beaconsfield)

My right hon. Friend is right. Not only is that contradictory, but it seriously undermines a central activity of government. The original compact between the state and the citizen—the principle by which we become citizens of a state—is that we have access to justice. It is an extraordinary state of affairs. I do not want to widen the debate too much this afternoon, but at present access to justice is becoming harder and harder for more and more people because of increasing restrictions on legal aid. Court costs are another mechanism by which access to justice may be seriously hindered and it worries me that the Government are approaching the matter in what can only be described as a commercial way. Access to justice is not a commercial matter.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

On the point about rising court fees, they have been raised substantially at county court level and in the High Court, and are a considerable disincentive to litigation.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. and learned Friend is correct. It is a matter of anxiety and has been worrying me because, during the past month, I have received letters from solicitors and litigants indicating their level of concern. An extraordinary part of the Government's scheme is their attitude to the privatisation of justice. One inevitable consequence is that more and more matters will be resolved in other forums by arbitration and so on and, inevitably in such settings, it is the weakest and those with most need of access to justice who will be denied the justice that is an essential part of the coronation oath that underpins one of the reasons why this country and state exist.

Chris Leslie (Labour, Shipley)

It is rich of the hon. Gentleman to lecture the House about access to justice on the very day that his colleague the shadow Chancellor proposed axing hundreds of millions of pounds from the legal aid budget. How on earth can the hon. Gentleman square his comments with that sort of removal of access to justice?

Dominic Grieve (Conservative, Beaconsfield)

The Minister is completely mistaken. The proposals are about the number of people in the bloated office that the Lord Chancellor is running; they have nothing whatever to do with cuts in legal aid. The Minister's comment is typical of the misrepresentation that comes from the Government.

Chris Leslie (Labour, Shipley)

I think I very much understand the shadow Chancellor's proposals, which are to start closing down law centres, withdrawing support for citizens advice bureaux and scrapping the community legal service partnerships. How on earth can the hon. Gentleman get away with lecturing the House about how his party is, supposedly, the defender of access to justice?

Dominic Grieve (Conservative, Beaconsfield)

The Minister has clearly not read the paper. If he had done so he would have seen that the changes we seek concern particularly what we regard as the waste of money by the Lord Chancellor's Department and the Secretary of State for Constitutional Affairs, in spending money that ought to be spent on legal aid on a series of social projects up and down the country that are an ersatz replacement for the lack of availability of legal aid to individuals.

Edward Garnier (Conservative, Harborough)

My hon. Friend may recall the Access to Justice Bill that went through the House between 1998 and 1999, although he was not a member of its Standing Committee. It was a cruelly named Bill—it should have been the denial of access to justice Bill. The Government ripped up legal aid in any accepted and understandable form, denying huge numbers of the sick, the elderly and the poor access to justice. The Government said that they would rely on charities, citizens advice bureaux and law centres, but of course they cut funding to all those institutions. Not only did they deny public legal aid, but they denied any other route that was available to the poor, the sick and the elderly. The Minister then has the cheek to criticise my hon. Friend for advancing the Conservative policies that he has just been pronouncing.

Dominic Grieve (Conservative, Beaconsfield)

I remember the Bill very well and I agree with my hon. and learned Friend that the Government's comments ring particularly hollow. When they came into office in 1997, 60 per cent. of the population were eligible for legal aid; the figure is now 5 per cent. That is the measure of the change that the Government have presided over. The substitutes they have offered are, in many cases, not adequate.

Chris Leslie (Labour, Shipley)

I want to be clear about what the hon. Gentleman is saying. Is he giving a commitment that a Conservative Government would not scrap any aspect of the community legal services partnership or support for citizens advice bureaux, legal aid work or law centre work? Is he giving that commitment?

Dominic Grieve (Conservative, Beaconsfield)

rose—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. We are starting to stray away from Second Reading. The hon. Gentleman may respond to that comment, but we ought to concentrate our minds on Second Reading.

Dominic Grieve (Conservative, Beaconsfield)

I assure the Minister that under an incoming Conservative Government access to justice, including legal aid for those who require it, will be better, better managed and more extensive than this Government provide at present.

David Kidney (Labour, Stafford)

Will the hon. Gentleman give way?

Dominic Grieve (Conservative, Beaconsfield)

No, I really must make some progress.

The Government's argument is that a supreme court must be set up because the position of the Law Lords is so anomalous at present, yet in fact it has unique characteristics that are beneficial to the way in which we do governmental business in this country. It allows the Law Lords to participate in debate in the other place and they have shown themselves—as I said to the Minister and he acknowledged at the outset—perfectly capable of choosing their words with sufficient care and choosing the debates in which they intervene sufficiently carefully to ensure that no criticism attaches to them. That is what the Minister wants to get rid of, but it has real value as a constant reminder in the legislature of the view of the judiciary. The oddity is that, as far as I am aware, instead of the Law Lords being able to express themselves in the House of Lords, the replacement position will be that the Lord Chief Justice will have to do it all for them—and not only there, but in the forum of press releases, for the fulfilment of which role he has already been allocated a press officer. I find that rather odd. We are shutting down what is a very controlled and ultimately beneficial way to ventilate issues of public concern, yet the Government acknowledge that, far from cloistering away the judiciary, they must make alternative arrangements.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Does my hon. Friend agree with the proposition that, probably, in neither this Chamber nor the other place is there any person who has a wider knowledge of current legal practice than the existing Law Lords because they have legal expertise right across the spectrum of current legal problems?

Dominic Grieve (Conservative, Beaconsfield)

Yes, indeed. Of course, the Law Lords are helped in their work by the fact that they are present in the House of Lords, so they are intimately aware of current trends in the country—[Interruption.] Oh yes, and they have an opportunity to discuss matters informally with others. That is valuable, and I regret that the Government want to get rid of it for such a costly white elephant that, otherwise, will deliver exactly the same service. The Minister is asking us to vote for a Bill that will vastly increase the cost of an institution that will otherwise operate in exactly the same way, save for the removal of the Law Lords' rights to speak and vote, even though they have never been criticised for the way that they exercise them.

Vera Baird (Labour, Redcar)

The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) was incorrect to suggest that the Law Lords have a broad sweep of legal experience. There has not been a criminal lawyer in the House of Lords for quite a long time, as I am sure the hon. Gentleman is aware. Is not what he is saying inconsistent with the fact that half of the current Law Lords first, announced themselves, through Lord Bingham, to be uncomfortable with their current role in the Lords, and secondly, declined to speak at all, going beyond even the self-denying ordinance of 2000 because they simply think it inappropriate to mix their two roles?

Dominic Grieve (Conservative, Beaconsfield)

The final point reflects well on the Law Lords. The Minister wants to depoliticise the judiciary, but I am afraid that the debate conducted since the summer of 2003 has had the effect of pulling those in the judiciary—much against their will, I suspect—into an arena where they have had to express their views, and they have succeeded in doing so moderately and sensibly. I fully acknowledge that there are differences of view among the Law Lords about the best way to continue, although it is remarkable, given the Government's enthusiasm for this project, that about 50 per cent. of the Law Lords would very much like the Government to drop it. Clearly, there are mixed views and, ultimately, it is for Parliament to decide, but I cannot go back, face my constituents and tell them that the Government are setting up a very expensive institution that will deliver virtually the same service but with some considerable downsides.

Edward Garnier (Conservative, Harborough)

Is not the point that the hon. and learned Lady made a moment ago not overtaken by the fact that most, if not all, of the peers that the Prime Minister has appointed to the House of Lords who take the Labour Whip do not appear, speak or vote there? Surely, as they were appointed to do a political job, it is worrying that they simply fail to do it.

Dominic Grieve (Conservative, Beaconsfield)

My hon. and learned Friend is correct—and he reminds me of the first part of the hon. and learned Lady's question, which I did not answer. Of course, the lack of a suitable criminal judge among the Law Lords is perfectly curable under the existing system, especially as we would be willing to have a new system for the appointment of Law Lords if the Government so wished. That would tie in precisely with our views on the judicial appointments commission generally, although I accept that a separate body would operate. We have no difficulty with that.

We have indicated by our reasoned amendment that we consider that this Bill is not worthy of support in its present form. I heard the Minister's comments about the Lord Chancellor and what the Minister intends to do with the Lords amendments in Committee, and that reinforces my view that the sensible thing to do is to vote for the reasoned amendment.

When the Bill comes to Committee, we will do our best to improve it. I again ask the Government to reconsider, even at this stage, their position on which parts of the Bill are taken on the Floor of the House. If the Government want and are prepared to listen, they could, notwithstanding our reservations, still end up with a Bill that will command widespread approval and stand the test of time. However, the way that the Minister and the Government are going at the moment does not give me confidence that that will happen. The truth is that the Government will have difficulty in the other place when the Bill returns there, and they deserve that. It is a pretty fitting epitaph on the way that they have handled this matter.

Ross Cranston (Labour, Dudley North)

I declare my interest as a lawyer and part-time judge. I see one other Member in the Chamber who sits as a recorder.

I want to start with the important principles that are set out in clauses 1 and 4, which deal with the rule of law and judicial independence. It is vital that we focus on principle so as to build a system in accordance with principle. Other important values include equality before the law and access to justice, which has already been mentioned in the debate. There is an issue about whether the clauses would be justiciable, but the fact that they are in the Bill and will therefore be part of the Act is not just symbolic; the clauses are cardinal in our system.

How do we define the principles of rule of law and judicial independence? We can do so negatively. We can look, for example, at Zimbabwe. The Bar Council and other Bars around the world recently published a report demonstrating how there is no longer the rule of law in Zimbabwe. Mugabe has said:

"The courts can do whatever they want, but no judicial decision will stand in our way".

The report sets out how the independence of the judiciary and the rule of law have been corrupted. Judges who have handed down decisions adverse to the ruling party have been arrested, and up to 10 judges have left and hacks have been appointed in their place.

More positively, we have clear definitions in our law. On the rule of law, as lawyers we tend to go back to what Dicey said—that the rule of law means that no person is punishable except for a breach of the law established in the ordinary manner before the ordinary courts of the land. That contrasts with Zimbabwe, where there is arbitrary power and wide discretionary authority. Secondly, no person is above the law—the principle of equality before the law. Thirdly, the general principles of the constitution are the result of judicial decisions determining the rights of private persons.

In modern language, the rule of law means that the system has to accord with certain formal criteria. The law has to be promulgated to the public; it has to be prospective and not retrospective; it has to be possible to comply with its provisions; it has to be clear, coherent and stable; and the persons who make and administer it should be accountable for the way in which they administer it. One aspect of the rule of law these days is also said to be judicial independence.

As the criteria tend to be formal, some have said that we must also take account of substantive principles. Modern accounts of the rule of law thus include not only formal criteria, but the content of the rules themselves and the nature of the system. When the World Bank recommends new judicial systems to countries, it talks about the rule of law and tells them that they need democratic, open and transparent systems in which several political parties can contest elections. Additionally, public officials must be aware of the limits of their powers and act accordingly.

Judicial independence is mentioned in clause 4. At a basic level, that simply means in some countries that one should be able to buy goods and services, but not judges. The hon. Member for Beaconsfield (Mr. Grieve) mentioned the separation of powers, and I agree with him that Montesquieu got it wrong. It was interesting that he was concerned about the separation of powers because he did not want Executive and judicial power to be coupled to oppress citizens. Even in the United States, the separation of powers does not exist in a pure form because, for example, the Chief Justice of the Supreme Court would have presided over an impeachment trial of President Clinton. Bagehot was right—we have a fusion of powers. The fact that I sit as a recorder and a Member of Parliament shows that this country does not have a strict separation of powers.

None the less, the notion of judicial independence has force. That independence has individual and institutional aspects. The individual aspect is mentioned in clause 4(5), which provides that the Government should not seek to influence the specific decisions of judges. That is absolutely right because courts must be protected from actual or apparent interference by the Executive—there should be no back-door influence. Lord Mackay, a former Lord Chancellor, was right to say that the independence of the judiciary denotes not only independence from the Executive, but the independence of one judge from other judges. Clause 4(5) reflects the international consensus on the meaning of the independence of the judiciary that is set out in international instruments such as those promulgated by the International Bar Association and the United Nations.

There is a question about whether independence includes the concept of impartiality. Article 6 of the European convention on human rights uses the words "independent" and "impartial". Although some people have suggested that they are separate principles, I prefer to regard impartiality as an aspect of independence. Impartiality means of course not only that judges must not have personal biases or prejudices, but that they must exclude considerations that are not relevant.

A judge must mediate in disputes between citizen and citizen, and the citizen and the state.The institutional aspect of independence is recognised in clause 4(6). It says that a Minister or the Lord Chancellor

"must have regard to . . . the need for the judiciary to have the support necessary to enable them to exercise their functions."

Such support is absent in Zimbabwe because some of its judges have no facilities—several reports suggest that they sit in rooms without electric lights. Governments have an obligation to provide the administrative and financial support that is necessary for the judiciary to do its work.

An independent judiciary does not mean that judges come in with a blank sheet of paper, which is especially important when we consider widening the pool and increasing diversity in the judiciary. We want judges to have varied experience and a range of expertise. They must, of course, act in accordance with law and, according to the judicial oath, without fear, favour, affection or ill will, but that does not mean that they come without any views at all. In fact, it could be argued that the wider the range of experience that judges have when they come to the job, the better.

Judicial independence does not mean that judges are not accountable. The most important way in which they are accountable is that they have to give reasoned decisions, which are available to the parties and the general public. Judgments can be criticised, which is an important aspect of accountability. These days, judges have to be aware of the importance of acting efficiently; time is an important resource. Returning to the principle of access to justice, which I mentioned earlier, the fact that disproportionate resources are given to a few cases means that many outside the system do not get access to justice. Judges also have to be accountable if they are rude to litigants or counsel.

Independence does not mean that judges can decide what they want. They have to act in accordance with the law. Lord Scarman, one of the most prominent Law Lords of the 20th century, who recently died, said that it is not just a matter of deciding what is right; judges have to act in accordance with statute and the common law. If neither statute nor common law gives a clear answer, it is possible to reason by analogy. One cannot simply decide issues without any guidance from law whatsoever.

Edward Garnier (Conservative, Harborough)

The hon. and learned Gentleman is giving a very interesting talk. I wonder how far what he is describing of the current state of the judiciary and its independence will be changed, positively or adversely, by the Bill.

Ross Cranston (Labour, Dudley North)

It seems to me that the Bill will provide a firm underpinning, especially in the principles set out at its very beginning, for the standing of our judiciary. I will come on to that in a moment, and I will acknowledge that the standing of our judges is unrivalled, both in their merit and in the quality of their decision making.

I have said in earlier debates that there has to be mutual respect between institutions. Judicial independence does not mean that judges can completely neglect what Parliament, for example, says. Parliament, of course, has to respect judges' decisions, and we have rules about what we can say about judicial decisions and how we can criticise judges. Judges have to respect legislation, and there is no criticism of the position at present. In 2003, Mr. Rusbridger of The Guardian brought a case under the Treason Felony Act 1848, arguing that if he advocated republicanism he might be in breach of the Act. The House of Lords said that it was not for it to say that the Act was no longer extant.

There is also an obligation on judges to make decisions in accordance with law, even controversial law, and to respect institutional expertise. The recent case law on the Human Rights Act 1998 is very interesting. Judges have developed a notion of judicial deference in relation to some decision making by the Executive, especially when moving away from article 6 on purely judicial functions to some of the other articles, saying that they have to respect the Executive and Parliament. In the recent Belmarsh case, Lord Bingham said in relation to the notion of whether there was a public emergency to satisfy article 15 that great weight had to be given to the judgment of the Home Secretary, his colleagues and Parliament, because they were called on to exercise a pre-eminently political judgment.

Other aspects of the independence of the judiciary came up in debate in the other place. Should judges be appointed to inquiries, for example? I do not take any strong view on that. Recently, the Lord Chief Justice came to an agreement with the Lord Chancellor on how judges should be appointed to inquiries, so as to ensure that the standing of the judiciary is not undermined.

Once we have the principles right, we can move on to discuss in a more informed way some of the Bill's specific provisions. Let me come first to the supreme court. I confess that, initially, I had some misgivings about its creation. As I have said, the House of Lords is highly respected in its judicial capacity. No one could suggest that it has not been independent, even though those of their lordships acting in a judicial capacity have been Members of the House of Lords as a legislative body. If there were concerns, they could have been dealt with by, for example, the Lord Chancellor not presiding over the Judicial Committee or by the Law Lords not participating in debates in the House in its legislative capacity.

Having listened to the debates and having heard evidence given to the Constitutional Affairs Committee, I have been persuaded by what the Lord Chancellor has said, as I have by the comments of Lord Bingham and Lord Woolf. The creation of a supreme court, as Lord Steyn put it in a lecture a couple of years ago, is a "badge of judicial independence". The institutional separation that the supreme court represents minimises the risk of any public perception that judicial independence is compromised. Like the hon. Member for Beaconsfield, I do not give great credence to the article 6 argument. Although that argument might ultimately have been lost, I do not think that we should have regarded it as especially persuasive. However, in terms of the basic principles inherent in our common law system—the rule of law and the independence of the judiciary—a supreme court is an eminently sensible idea.

Of course, even if we get that far, that is only the start of the debate. What sort of body are we talking about? We are not talking about a constitutional court. We are not talking about something like the Bundesverfassungsgericht, the German federal constitutional court. The history and institutional arrangements there are quite different; there is a written constitution and a federal system. Similarly, in the United States, there is a mainly constitutional court. With more devolution and human rights cases coming up, the House of Lords or the new supreme court will deal with more constitutional issues. None the less we are not establishing a purely constitutional court, which would be concerned only with constitutional issues. Our tradition has been that constitutional issues are decided by the ordinary courts, which also decide matters of common law and statutory interpretation. It is absolutely right that that continue to be so.

There is an issue about whether we have a UK court. We now have a clear statement that we indeed have a United Kingdom court. As I understand it, the decisions of the court on cases from England, for example, will not be binding in the other jurisdictions—in Scotland or Northern Ireland. Of course, their persuasive force will be great—I need only remind the lawyers present of the important Scottish case of Donoghue v. Stevenson, which was accepted as binding in all jurisdictions.

Resources have been raised as an issue. We members of the Constitutional Affairs Committee were impressed by the system that governs the High Court of Australia—not only the resources available to the court, but the control that the court itself has over the allocation of resources. The supreme court must have a building appropriate to its status. Although it would be an inconvenience for the hon. and learned Member for Harborough (Mr. Garnier) and for me to be unable to sit there as recorders, it seems to me that, when refurbished, a building on Parliament square would be most appropriate to a supreme court.

Hon. Members have spoken about fees. I am not especially concerned about fees in a supreme court. The legal costs in most of the cases that go to such a court are so great that—unless someone has taken the case pro bono—the fees are infinitesimal. None the less, there is an issue about the principle of full cost recovery, which has not been debated by the House since it was introduced in the early 90s, and it would be appropriate to return to the subject at some stage.

The supreme court will not sit en banc. That is partly because judges, in the past, also had to sit in the Privy Council, and partly because there was a separate panel to hear leave applications. I have no difficulty with that continuing.

It is no secret that I have not been completely happy with the approach to appointments. Although it is not enshrined in the Bill, it is accepted that there has to be geographical representation: just as in Canada there are always three judges from Quebec, it is acknowledged that there will have to be representation on our supreme court from Scotland and Northern Ireland. My concern centres on the fact that the appointments commission is to put only one name forward. I have argued in the Constitutional Affairs Committee—I divided the Committee, and it accepted the view—that a number of names should be put forward. That is because the judges who are appointed to the supreme court will make extremely important decisions on tax, civil liability and contract as well as on constitutional issues. In my view, greater democratic input is needed. I agree with Professor Robert Hazell, who gave evidence to the Lords Select Committee. He said:

"I strongly believe that ministers should continue to be involved in judicial appointments and have a bigger say than is now proposed and so should Parliament in its classic scrutiny role. On the executive having a choice, it is very important for the executive to retain a role in senior judicial appointments primarily so that the Government itself should retain trust and confidence in the judges."

An additional argument is that such an approach offers additional protection for judges: if they are appointed by politicians, politicians might be inhibited from criticising them too much, whereas if, in effect, judges are appointed by the commission—the Minister will have only a veto—they might be subject to greater criticism.

Before I discuss the judicial appointments commission, I should declare the interest that I was a member of the Commercial Bar Association group that made a detailed submission on the subject last year. I was pleased to hear that the hon. Member for Beaconsfield is generally happy with that part of the Bill. I was not surprised to hear that, because we have reached the present position through evolution. The Law Society called for reform in the early 90s. Lord Mackay as Lord Chancellor opened up judicial appointment by advertising for circuit court judges. Lord Irvine appointed a Commissioner for Judicial Appointments, and Sir Colin Campbell has reported on a number of occasions. The system has been brought generally into line with modern principles of appointment, with equal opportunities and feedback for those who are disappointed. Lord Irvine also instituted the annual publication of a report on appointments. In a way, the proposals in the Bill build on the principles of openness and transparency that already operate. Scotland has a judicial appointments body and Canada has commissions that recommend appointment in some of the provinces and at federal level.

There are issues surrounding composition. The Constitutional Affairs Committee took the view that the commission ought to be chaired by a lawyer, but the concordat between the Lord Chief Justice and the Lord Chancellor concedes that a lay member should chair the body, so we have to accept that. There has been some discussion about the extent to which the Lord Chancellor can issue guidance, and the Joint Committee on Human Rights states, at paragraphs 1.54 and 1.55 of its report, that guidance by the Lord Chancellor would breach the independence of the judiciary. I reject that view. There can be no human rights-based objections to the Lord Chancellor giving guidance to the judicial appointments commission.

Merit is the cardinal principle. We cannot have a representative judiciary. Just as I want the best person to do brain surgery on me, I want the best judges. None the less, diversity is not inconsistent with merit. The excellent 2004 consultation paper "Increasing Diversity in the Judiciary" demonstrates the increase in the number of women and ethnic minority lawyers appointed to the judiciary—for example, Mrs. Justice Linda Dobbs was the first black female appointee to the High Court. I commend my right hon. and noble Friend the Lord Chancellor for quickening the pace of increasing diversity.

I take the point made by the hon. Member for Beaconsfield, but I would put it more colloquially: we have to beat the bushes—we have to encourage people to apply. Some people might, for some reason, be dissuaded from applying. My concern about the judicial appointments commission as proposed is that only one name will be put forward. My argument is the same as I advanced in relation to appointments to the supreme court: it seems to me that democratic accountability would be better served by more than one name going forward to the Minister or the Lord Chancellor.

Both in terms of the principles that I outlined at the outset of my speech and in terms of the bulk of its details, I think that the Bill is an appropriate measure to put to the House. I shall certainly support it tonight.

David Heath (Liberal Democrat, Somerton and Frome)

It is important for Members who are not lawyers to contribute to the debate; otherwise, there is a danger that it will become a dialogue between hon. and learned Members, and the measure is far too important for that to happen.

At the outset, I should say that the Liberal Democrats support the Bill—but, my goodness, the Government have made it difficult for us to do so during its genesis. I do not accept the enormity of the problems portrayed by the Conservatives, and I do not believe that the supposed furore extends far beyond people with a particular and special interest in the proposals. Indeed, although excellent points were made in the debates in another place and by the Committees that considered the Bill, there was a great deal of trade unionism—people protecting their own interests rather than looking at the wider aspirations of the proposals.

The Bill is an important measure in anyone's book. The Lord Chief Justice, Lord Woolf, has been cited a couple of times already, but it is worth underlining what he said on 7 December in the House of Lords:

"the Bill marks a gigantic step forward in our constitutional arrangements. Above all, it means that the future independence of the judiciary will be safer than it has ever been."

We support that important aspiration. Lord Woolf went on to say:

"if we value an independent judiciary and its task in protecting our personal freedoms, we should ensure that this Bill reaches the statute book."—[Official Report, House of Lords, 7 December 2004: Vol. 667, c. 759.]

That does not display the doubts which, it was intimated earlier, the Lord Chief Justice entertained. Of course he had doubts in the initial stages, but they have been resolved by patient consideration of the Bill in another place.

Dominic Grieve (Conservative, Beaconsfield)

Does the hon. Gentleman agree that the Lord Chief Justice was concerned that there was a serious risk that there would be no end to the legislation? A hiatus was created when the Prime Minister tried to strike off or delete the post of Lord Chancellor in summer 2003. That was, and is, one of the major concerns of the Lord Chief Justice, and it may be one reason why he wanted to bring the matter to a conclusion.

David Heath (Liberal Democrat, Somerton and Frome)

I do not think it is for the hon. Gentleman or me to ascribe any further motivation to the Lord Chief Justice, and it would be unwise to do so. I am quite sure, however, that he shared the widespread concern about the way in which the proposal was introduced. The hon. Member for Nottingham, North (Mr. Allen) said in an intervention on the Minister that the Government had been urged to introduce the proposal for a long time—it had been subject to undue delay, but it was not a back of the envelope job. The sad news, however, is that it was both. Yes, the proposal was long overdue, but equally, it was produced on the back of an envelope, because the Prime Minister chose to make fundamental changes to the structure of government on the basis of poor or non-existent advice.

In my capacity as Liberal Democrat spokesman on constitutional affairs, I often ask people two questions. First, what is the link between the highest levels of the judiciary and my constituency? The answer is that the statue of justice on top of the Old Bailey was made in Frome. Secondly, who was Lord Chancellor in 1075? I am relying on various websites for the answer, as I cannot find any historical details about the brief occupancy of the Lord Chancellorship in 1075 by Baldrick. Everything about the introduction of the proposals smacks of the character of Baldrick in "Blackadder". As hon. Members will remember, he always had a cunning plan. This was the Prime Minister's cunning little plan, but it was rather a bad one, as it involved announcing the abolition of the post of Lord Chancellor without, apparently, a single thought about what would happen next. Indeed, the announcement was made on 12 June 2003, but it was not until 14 July 2003 that we finally had a White Paper that gave substance to the Prime Minister's spurious suggestions.

John Gummer (Conservative, Suffolk Coastal)

Has the hon. Gentleman not underestimated the difficulty? When Baldrick had a cunning plan, he usually gave some evidence of thinking it out. The problem with this cunning plan is that when it was announced, there was no evidence that anyone had given it any thought at all.

David Heath (Liberal Democrat, Somerton and Frome)

I agree with the right hon. Gentleman, but I fear that I will become lost in a metaphorical wilderness if I pursue the Baldrick theme too far, so I hope that he will excuse me.

Not only did the proposals lack any substance other than a relabelling, which was palpably inadequate to deal with substantial constitutional change but, even worse, people who should have been consulted were not aware that an announcement was about to be made. The Lord Chief Justice had clearly not been consulted, and neither had the senior judiciary. No one in Scotland was consulted at all, despite the fact that the proposals had implications for Scottish constitutional arrangements. That is a serious criticism both of the way in which the machinery of Government operated under the Prime Minister's edict and of the readiness to put into effect a fundamental change to our constitutional arrangements.

Consultation has now taken place, and it has been extraordinarily productive. We should give credit to everyone who has been involved in the discussions. In particular, the senior judiciary have been remarkably sensitive to the intentions of the Government, who have made a sensible response to those concerns. The concordat, which has been mentioned several times, is crucial, and it underlies our position on the Bill.

I do not wish to speak at inordinate length in a debate that has already taken up considerable time, but I shall look briefly at the proposals. The first does not concern the Bill itself, but the Department for Constitutional Affairs, which we christened "Decaff". People in the Department do not particularly like that abbreviation—which only encourages me to use it—but it is apt, because of its "justice lite" brand, as opposed to the full-bodied equivalent . We have argued for a long time that we need a proper Ministry for Justice, which would encompass the responsibilities of the Department for Constitutional Affairs but would also go much further, taking a large chunk out of that monolithic bailiwick, the Home Office. Responsibilities that are not appropriate for a Minister with executive responsibility for the police and investigative services would be removed to a protected area, where the proper concerns of justice and the relationship between the citizen and the Executive could be taken into account. Our principal criticism, therefore, is not about the establishment of a new Department but about the fact that it does not have the scope to do the job that we would like it to do.

Secondly, we are anxious about the constitutional position of the Lord Chancellor—a post that was abolished in a day, but is now to be restored and maintained in perpetuity. There has been a great deal of debate about the doctrine of the separation of powers and, as hon. Members on both sides of the House are aware, such a doctrine is not current in our political philosophy, although it is in other countries. Surely, however, we have a concept in our political affairs of the de facto separation of matters that are properly the province of the judiciary and those that are properly the province of the Executive and the legislature.

It was an anomaly of staggering proportions to have in one person a Cabinet Minister with executive power—a member of the Executive—as both the head of the judiciary and the Speaker of a House of the legislature. We only have to imagine for one moment arguing in a newly formed democracy that that was the right way for it to organise its affairs to realise what a constitutional anomaly it was. I am personally glad that the anomaly has at last, partially, been resolved. That is something that I have called for over many years, and I shed no tears for the judicial role of the Lord Chancellor, which I think was largely illusory in any case.

I part company with those who say that Lord Chancellors have never exercised their powers in a partisan way. The hon. Member for Beaconsfield (Mr. Grieve) was right to say that over the past 25 to 30 years we have had excellent Lord Chancellors who have not exercised their powers inappropriately. However, I am sure that he would agree that in the early part of the 20th century there were Lord Chancellors who were anything but entirely open and transparent in the way in which they exercised their powers.

Dominic Grieve (Conservative, Beaconsfield)

I entirely agree with the hon. Gentleman. Until after the second world war it was considered perfectly proper for a Lord Chancellor to exercise a degree of political patronage in judicial appointments. Times have moved on. That shows how evolution can take place within existing structures in our constitution by convention that subsequently become irreversible.

David Heath (Liberal Democrat, Somerton and Frome)

If it is irreversible, let us make that clear in our statutes. That is an argument for the measure, and I think that there was scope for abuse.

I have difficulties with the notion that the Lord Chancellor has to remain as the Secretary of State in charge of a major Department of State, in the House of Lords. I have problems with that on a number of fronts. I think that as a matter of principle, Secretaries of State should be answerable to this House. I am sorry that not everyone agrees with that, but I think that that should be the position. With all due respect to the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), who is sitting on the Government Front Bench, I do not think it is right that this major Department of State can answer to this House only through the person of a junior Minister. The Secretary of State should be available to us for questioning.

I find it difficult to countenance any Secretary of State being in the upper House. That is my personal view. I cannot understand the position of those who criticise the present Lord Chancellor by saying that he is one of the Prime Minister's cronies and used to be his flatmate, which played a part in his appointment. I think that the present holder of the position often does a very good job, but that is a common criticism. Why, then, would he want to institutionalise that arrangement, so that every future Lord Chancellor—every future Secretary of State for Constitutional Affairs—had to be a crony of the Prime Minister of the day, because only by that patronage does anyone appear in the other place?

That is an extraordinary anomaly. There is a further anomaly, and I have to say that the hon. Member for Beaconsfield rather ducked it when he was intervened on by one of his hon. Friends. If the Conservatives wish to see an upper Chamber that is 80 per cent. elected, why is it all right to have a Secretary of State—a Lord Chancellor—who is elected and sits in the upper House, but not all right to have a Secretary of State who is elected but sits in the lower House? Where is the constitutional logic of that position? I do not think that there is any logic.

Dominic Grieve (Conservative, Beaconsfield)

rose—

David Heath (Liberal Democrat, Somerton and Frome)

I give way to the hon. Gentleman. Perhaps he can persuade me.

Dominic Grieve (Conservative, Beaconsfield)

I leave to one side the composition of the upper House after any reform that a Conservative Government might carry out, but the hon. Gentleman is missing the point. By virtue of taking the oath, irrespective of whether the Lord Chancellor is elected or not, he will not be able to have a further career in politics thereafter. That is the central point: the Government do not wish to see that happen. It is a question about the career of the person who holds the office, and the sensible place for him to be is in the House of Lords.

David Heath (Liberal Democrat, Somerton and Frome)

I am much more content to ensure that the Lord Chief Justice is genuinely independent of the Executive, is genuinely independent of the legislature and carries out many of the functions that give rise to concern in the hon. Gentleman's scenario, rather than being Secretary of State for what I would wish to be a Ministry of Justice. Under the present arrangements it will be a Department for Constitutional Affairs.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I do not want to disparage the Lord Chief Justice or other holders of that office. I am sure that the hon. Gentleman will recognise that much of the debate is essentially of a political character, as between the holder of the office of Lord Chancellor and the Home Secretary. The problem is that the Home Secretary's office is extremely powerful. What we need to set against that office is the authority of somebody else who is in a position to bear down on the Home Secretary, and persuade his Cabinet colleagues to disagree with him. There are advantages, therefore, in adopting the suggestion of my hon. Friend the Member for Beaconsfield.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the right hon. and learned Gentleman for his comments. I listened to him with a great deal of respect. It is precisely for that reason that I do not want to see a Lord Chancellor without any great status within the pecking order of the Cabinet because of the relatively junior status that has been accorded to the Department for Constitutional Affairs—and without the merits of an electoral mandate, too—being bullied by a Home Secretary. I take exactly the point that the right hon. and learned Gentleman has made. I think that we would be better served by having a strong Cabinet Minister answerable to the elected House with a mandate of his or her own to counter the weight of the Home Secretary. We should also rearrange the functionality between the two Departments so that the Home Office is cut down to size and the Department of Justice—as I would have it—is a much more significant body. That is a genuine disagreement that we can hold. I think that we can both agree that there is a need for the person who heads the Department to have sufficient status and weight to be able to hold their own.

I shall now move on to the Supreme Court—

David Kidney (Labour, Stafford)

To be clear, before the hon. Gentleman moves on, given the Liberal Democrats' support for a full-blown Ministry of Justice, may I take it that he believes that the Lord Chancellor does not need to be a lawyer to hold that position.

David Heath (Liberal Democrat, Somerton and Frome)

That is my view. That is the view that I will express in Committee when we reach that stage. I do not want to mislead the hon. Gentleman, and I will make it plain that some of my noble Friends, many of whom have legal qualifications, take a different view. However, from this Bench in this place, I shall express the view that the legal qualification is not a necessary part of the equation.

I now move on to the proposals for the Supreme Court. This is a significant move but not a revolutionary one. It is absurd to suggest that it is. It is confusing and pointless that we have a Supreme Court already, with absurd names such as the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council acting in its constitutional role, and we choose to call the members of the Supreme Court the Lords of Appeal in Ordinary. Lords of Appeal in Ordinary is exactly what they are not, and nobody should suggest that they are.

We have a senior court which is not the House of Lords despite the fact that people think that it is. It is a separate body of judges that happens to sit, rather uncomfortably, within that edifice. It has an entirely different function, as has already been argued in this debate, and very often Law Lords do not exercise their role within the legislature, and nor should they because that puts them in an invidious position in dealing with their primary responsibilities.

We have fictions built on fictions built on fictions. Because I believe that we should be a modern democracy where things are as clear as possible—although nothing in the law can be entirely clear—it is helpful to the general public to understand that we already have a Supreme Court that is a separate entity and fulfils a particular function, and that the members of that Supreme Court are the senior judiciary of the land.

As regards judicial appointments, I wholly support the proposals, with one caveat. In Committee we need to do justice to the concerns expressed by Sir Colin Campbell and the Commission for Judicial Appointments about the structure and role of the proposed judicial appointments commission. We ought to be careful to assess the validity of those concerns.

In general terms, there is much to support in the proposals. I welcome the enhanced role of the Lord Chief Justice. As I said, I should like to explore whether the Attorney-General should have further express duties. The holder of that office sometimes plays a more significant constitutional role than we give credit for. It is a developing role, and transparency and clarity about what is expected of the Attorney-General, particularly in giving unequivocal advice, perhaps when that is not sought, on the appropriateness or legality of Government actions, might be an enhancement of the role.

Dominic Grieve (Conservative, Beaconsfield)

The role of the Attorney-General as the sole proper legal figure in Government has clearly been enhanced by the fact that the Lord Chancellor's role has been so dreadfully diminished. The two go together, which is one reason why the Lord Chancellor's office should be preserved.

David Heath (Liberal Democrat, Somerton and Frome)

Or the Attorney-General's office enhanced, as I said. There is more than one way of achieving the same objective.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will the hon. Gentleman give way?

David Heath (Liberal Democrat, Somerton and Frome)

I was trying to be brief, but I shall give way one last time.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I would not want to discourage the hon. Gentleman from being brief, but does he accept that there is in principle much to be said for the Attorney-General sitting in this House, and that whenever possible the Government should appoint as Attorney-General someone who is in this House?

David Heath (Liberal Democrat, Somerton and Frome)

It will not have escaped the notice of the right hon. and learned Gentleman that I believe that all Ministers should be appointed from this House. That is not my party's position, but it is my position. An upper House should be free from any patronage in the form of ministerial preferment, and ministerial appointments should be drawn from the elected House. Accountability is important, but that is not the situation at present. It could be argued that ministerial appointments solely from this House would limit the number of potential applicants for the role. This will not happen in my lifetime, but there could be a Parliament in which no legally qualified Members were returned by the electorate. That would cause the Government some difficulty—although it has not happened yet, and I doubt whether it will happen in the immediate future, judging by recent experience.

I have long advocated Middlesex Guildhall as the right place for the supreme court. I do not understand why anyone should consider it so self-evidently the wrong place. I understand that there are issues concerning the internal decorations of the place, difficulties with its listed building status, and the fact that the potential members of the supreme court will want a level of informality that is not entirely consistent with the rather austere and formal trappings of a court. Nevertheless, there is considerable symbolic importance to the fact that the court would be situated in Parliament square, in the centre of our democratic system, so that Parliament square would be flanked by at least four of the great estates of the realm—the House of Commons on one side, the Church in the form of Westminster abbey on another, the supreme court on another and, God help us, the Treasury on another.

Edward Garnier (Conservative, Harborough)

I intervene not because, like the hon. and learned Member for Dudley, North (Ross Cranston), I from time to time sit as a Crown Court recorder in the Guildhall, but to ask the hon. Gentleman whether his views about the suitability of the Guildhall have been informed by a visit to it. Has he been round it inside, as opposed to simply looking at it from the outside?

David Heath (Liberal Democrat, Somerton and Frome)

I do not deny that there are difficulties, but they can be overcome. That is the position that the Government have now adopted. The debate has been wonderfully amplified by having a recorder on each side of the Chamber, acting in stereo. I hope the hon. and learned Member for Harborough (Mr. Garnier) will have a chance to contribute to the debate formally.

Will the Minister confirm that under the Bill as it is formulated there will be two supreme courts—the supreme court of the United Kingdom and the Supreme Court of England and Wales? Will he confirm that he will remove one of those nomenclatures before the Bill reaches its final stages, as there is the potential for confusion with two "supremes" in one statute.

It is extremely important that we get the funding right. I will not tease the hon. Member for Beaconsfield about how he would achieve cuts in the Department. That was dealt with in an earlier intervention. We cannot allow the important process of justice to be curtailed by a lack of funding. The funding must be predictable, so that those who administer the court can do so with certainty.

Dominic Grieve (Conservative, Beaconsfield)

Will the hon. Gentleman give way?

David Heath (Liberal Democrat, Somerton and Frome)

I was trying to take less than an hour over my contribution, but I will give way.

Dominic Grieve (Conservative, Beaconsfield)

Clearly, savings will not be achieved by spending an extra £8.8 million a year funding a supreme court which, as I explained, is not necessary.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman has his view. He also has his calculation of the marginal costs after the establishment of the supreme court, as opposed to its predecessor bodies. I am not convinced that that is an accurate representation. The Conservatives may be putting together figures that are not realisable, in a desperate bid to find potential savings in order to present themselves as a tax-cutting party. There is a danger that the debate will become overly partisan, which is not my intention.

David Kidney (Labour, Stafford)

rose—

David Heath (Liberal Democrat, Somerton and Frome)

I shall give way for the very last time to the hon. Member for Stafford (Mr. Kidney).

David Kidney (Labour, Stafford)

I am grateful to the hon. Gentleman for making me the last person to whom he gives way. This is the intervention that the hon. Member for Beaconsfield (Mr. Grieve) would not take from me. Do not the Conservative costings deliberately exclude the staff and judicial salaries costs from the present system, but add them on to the costs of the new supreme court? They should, of course, be in both calculations.

The rest of the debate is in Hansard.