Orders of the Day — Constitutional Reform Bill [Lords] — [2nd Allotted Day]

House of Commons, 1 February 2005.

[Sir Alan Haselhurst in the Chair.]

Clause 20 — The Supreme Court

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 350, page 9, line 15, at end insert

'situated in the Palace of Westminster'.

Dominic Grieve (Conservative, Beaconsfield)

This is a long list of amendments. They have been grouped correctly, although they deal with two separate issues. Amendment No. 350 deals with the issue of where, if there is to be supreme court, it will sit. Other amendments represent an attempt by the official Opposition to rewrite part of the Bill to retain the Law Lords while, at the same time, ensuring that there is an adequate independent commission for their appointment, as provided for in the legislation.

Amendment No. 350 would insert in clause 20, page 9, line 15 a requirement to situate the supreme court in the Palace of Westminster. Prior to the Bill's introduction, there was a great deal of discussion about the fact that a supreme court was needed, allegedly in part because the facilities in the other place were insufficient for the Law Lords. However, during the course of that debate, a strange situation arose. The Law Lords who are keenest to establish a supreme court, because they believe that there should be a separation from the House of Lords, are least enamoured of the Government's proposals to rehouse them in another location. The Government have a problem, as a sunrise clause in the Bill expressly provides that the supreme court will not come into being until suitable premises have been identified to house it. On Second Reading, the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie), said with apparent certainty, although without making an official announcement, that the Government intended to house the new supreme court, which essentially takes over the role of the Law Lords with only a small amendment to their powers, on the other side of Parliament square in Middlesex guildhall, which is currently used as a Crown court. That building has been described by Lord Bingham, the senior Law Lord, as wholly unsuitable for the use of the new supreme court.

That should come as no surprise. When we consider the way in which the Law Lords operate, it is clear that theirs is a highly informal, Committee-based system of legal reasoning, which prides itself on the simplicity of the manner in which business is conducted. Complex rules of procedure are not necessary, nor is hierarchy. The Law Lords discharge their responsibilities as a corporate body. They can decide who will sit on an individual panel to deal with cases, and they do it in a Committee Room atmosphere, to which the public have access. Moreover, they can shift Committee Rooms in the other place if there is a need to accommodate more of the public to listen to the arguments. As was also pointed out in the course of debate in the other place, the nature of the argument that takes place in front of the Law Lords tends to be of quite an academic, if not esoteric, description, and is unlikely most of the time to have huge appeal to members of the general public. It is not the sort place where one will watch people being cross-examined on evidence.

In those circumstances, it is unbelievable that it has, apparently, been pre-ordained that the Law Lords are to be moved into an old civic institution, a building that I know very well because I have practised there as a barrister on many occasions. The building is suitable as a county hall for local government administration, albeit of a rather old-fashioned kind, and suitable as a Crown court setting, but I find it astonishing that the Government should conclude that the building is suitable to house the Law Lords in the discharge of their new responsibilities, if they are to be set up as a supreme court.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am glad to join debate with the hon. Gentleman again. I, too, have practised in Middlesex guildhall in my previous life and I have formed an entirely different view. The building is entirely adaptable. There are several courts and other rooms, it is over the road from Parliament and, most important, it is a distinct building—a distinct institution—so making the point that I thought the hon. Gentleman supported: that there should be a clear separation between Parliament and the legislature, and the courts. That is the obvious way to achieve it.

Dominic Grieve (Conservative, Beaconsfield)

I shall not be drawn into a discussion at this stage about the separation of powers, in which, as I indicated previously, I do not believe. I accept that we have a serious disagreement about the need to set up a supreme court at all. However, I want to make it clear—which is why I tried to split this argument from the argument on amendment No. 328 and amendments consequential upon it—that my arguments on amendment No. 350 are based on the premise that we are setting up a supreme court. I disagree with the hon. Gentleman. I do not believe that Middlesex guildhall, without major adaptation, is a suitable environment.

David Wilshire (Conservative, Spelthorne)

Before my hon. Friend completely destroys the image of Middlesex guildhall, will he keep in mind that it acts as a symbol of something very important—historic Middlesex? Although its county council was abolished and the guildhall is therefore no longer required, Middlesex still exists. Middlesex guildhall is important and needs to keep that name, to keep the history alive.

Dominic Grieve (Conservative, Beaconsfield)

I entirely agree with my hon. Friend, who represents a seat which historically formed part of Middlesex and still does. If one goes into the building, one notices that it is redolent with civic pride relating to the county of Middlesex. There are coats of arms associated with the county and a host of carving that highlights the traditions of the county, all of which have been easily adapted to the environment of a Crown court. Historically, many Crown courts have sat in shire halls in the same way as takes place in Middlesex guildhall. It is a perfect environment for a Crown court, but we are setting up the supreme court of the United Kingdom. Either we must take out the stained glass, remove the carving and alter the interiors so that they correspond to the idea that the new members of the supreme court who are enthusiastic about it have about their functions, or we are putting them into a building that is the very opposite of what they wanted.

It is a matter of slight speculation, but one can draw some inferences from what Lord Bingham said as to what those Law Lords who are in favour of turning themselves into a supreme court want. My impression is that they want a building that is distinguished in appearance, probably modern if it could be found—[Interruption.] Well, a number of buildings have been floated as proposals ranging from Somerset house to Middlesex guildhall, and in each case, I have detected objections, both from public utterances and from what I have picked up in other circumstances, to the effect that none of them quite reflects the image of the court that they want to put forward. I have some sympathy with that. It is clear that they want the Committee Room-appearance of the courtroom, with the judges not on the dais but down at the same level as the practitioners, to be preserved. In an ideal world, they would want some facilities for the public so that the place is user-friendly to those coming in and to suggest something accessible, informal and modern, and even some sort of interpretation centre—I do not mean that in any way pejoratively—to give people an impression of what the new court will do. I have great difficulty imagining all those things in the context of the setting of Middlesex guildhall, and so does Lord Bingham.

Paul Tyler (Liberal Democrat, North Cornwall)

Unlike my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes), I have no legal background, but I have some architectural background, and my ancestor, Sir William Chambers, designed Somerset house, which I have been all over. I can give the hon. Gentleman an absolute guarantee that English Heritage would never permit the sort of changes that he is suggesting. If he is saying, as he was a few moments ago, that members of the supreme court might seek a modern environment, is he really suggesting that the other end of this place provides that?

Dominic Grieve (Conservative, Beaconsfield)

I shall come on to that in a moment. One thing on which I agree with the hon. Gentleman is the problems relating to any changes to Somerset house. I am perfectly aware of that, and am familiar with Somerset house, which is a magnificent piece of architecture. As I understand it, Somerset house was unsuitable for that reason. The Minister will correct me if I have it wrong, and he may take the opportunity of this debate to enlarge on the Government's approach, as Parliament is entitled to know a little about their background reasoning and the options rather than just hearing it at third hand through the press.

Any changes to Middlesex guildhall will also pose problems with English Heritage. We may have the opportunity to hear more from the Minister as we discuss the matter in Committee, but my understanding is that any alteration poses considerable difficulties, and from my knowledge of the building, I have no problem in understanding why. It would need substantial adaptation, including the moving of the woodwork and many internal fittings, which remain an integral part of its structure and have adapted well to its role both as a Crown court, and in the past, as a shire hall. The Government have not addressed those genuine problems.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I smile at the idea that the Conservative party is resisting a change of use to Middlesex guildhall when I seem to remember that it was responsible for a change of use to County hall over the river into something far further removed from civic pride than is being suggested for the guildhall. There may be good reasons for suggesting the guildhall. If the hon. Gentleman does not want it to be the guildhall, but if we are to have a supreme court outside the Palace, will he tell us where he suggests that it should go?

Dominic Grieve (Conservative, Beaconsfield)

That raises some interesting questions—[Interruption.] Well, my simple answer to the hon. Gentleman is that I have not the slightest idea. While I can see that if the Government were prepared to fork out £250 million a suitable site could be found on which to erect a building that would correspond to the idea held by those Law Lords who wish to move, the Government have not suggested that they will fork out that sum, although I have a funny suspicion that by the time this process is finished we will be moving rapidly in that direction.

I want to compare Middlesex guildhall, which is the offer on the table—not the other ideas, which might be costly but have some validity—with what is available down the Corridor. It is a fairly remarkable set-up. It is within the Palace at the other end, and has succeeded over the past hundred and something years in accommodating the Law Lords. First, it has provided them with their own rooms, which most of them find agreeable, as they have said, and private rooms in which to work. Secondly, it has provided them with a Committee Room, which I have been in and sat in for work purposes as well as seen in the context of being a Member of the House. That Room is entirely suitable, pleasant and at the same time quite an informal environment. Thirdly, it has succeeded in various offices in providing all the necessary support services for the Law Lords. There is a fantastic library of national quality and standard, which also provides the House of Lords with its Library, sensibly avoiding a duplication of resources. There is an amazing office at the bottom of the Victoria Tower, where judgments can be produced and distributed, and which, once one knows where it is, is a hive of activity and industry. There appear to be motivated staff who are happy to work in the building.

Overall, those facilities are provided for the princely sum, on which the Minister will correct me if it is wrong, of £168,000, leaving out the judicial salaries—[Interruption.] Indeed, there are no overheads because of the duplication of the function that the building must already perform as a House of Parliament. That seems to me a jolly sensible use of public money. The Minister will have to persuade me, before I return to my constituents in Beaconsfield, that there really is some purpose in spending between £30 million and £50 million, with running costs of between £5 million and £8 million—it is not quite clear—to set up a separate structure to deliver exactly the same service.

Paul Tyler (Liberal Democrat, North Cornwall)

I do not know whether the hon. Gentleman has had similar experience to my own when I held accommodation responsibilities—that there is considerable pressure from the existing membership of the House of Lords for offices and other accommodation at the other end of the building. Were the change to take place, which Liberal Democrat Members support, it would release some of the pressure at that end, and might make it more possible for more parts of that House and its support staff to be within this building, which would clearly be to the advantage of Parliament. Has he taken that into account?

Dominic Grieve (Conservative, Beaconsfield)

Yes, I have. The hon. Gentleman makes a perfectly valid point: if the Law Lords were to leave the House of Lords and move into a supreme court, some accommodation would be freed up. I have to say that it is minimal in comparison with the costs of setting up the new supreme court elsewhere. I suppose that the key issue, on which I am sure that he will agree, would be whether it would enable Millbank to be given up, or something of that sort. I have a question mark over that, because I need only compare what is available at Millbank with the amount of space that the Law Lords take up to make me think that that is improbable. The Minister may be able to help us in the course of today's debate. I see him smiling, and I think that the answer is that it is improbable. I wait with interest to hear how Millbank can be squeezed into the pint pot that is available down at the other end of this building.

Another fact to consider is that this building has a long and historic association with the dispensing of justice, which has nothing to do with the Law Lords being Members of the House of Lords. There have been courts in this building or on this site for almost 1,000 years. Justice was dispensed at Westminster under the Saxon kings—certainly by the time that William Rufus had built Westminster Hall in the 1090s—and that practice continued until the 1860s. There really is a long association, and it is sensible to preserve that if possible.

I suspect that the real reason for getting the Law Lords out of the building is to assert the separation of powers. I do not believe in the separation of powers—I believe in judicial independence—but, if I concede to the Minister for the purposes of this debate that we should have a supreme court, I am puzzled as to why it cannot be in the same building as that in which Parliament sits, while maintaining its separateness. The United States Supreme Court managed to sit in the Congress building, almost directly underneath one of the meeting chambers—one can still go there—for a very long time without anybody asserting that it interfered with the separation of powers. When the facilities proved insufficient, it moved to a large, very fine building opposite. If we wanted to put up such a grand building to give sufficient authority to a supreme court, the thick end of £1 billion would probably just about cover it.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

But we have available a much cheaper option—a building owned on behalf of the public that could provide the benefits of a court that was somewhere else but nearby, and independent and perceived to be independent, but without the costs, other than those of internal refurbishment.

Dominic Grieve (Conservative, Beaconsfield)

I entirely disagree. To begin with, there will be knock-on costs because the courts that currently sit in Middlesex guildhall will have to be found alternative accommodation. They are very busy Crown courts, and have been ever since they were set up. My fundamental point is that although Middlesex guildhall is a lovely building, there is no comparison, in terms of status, between it and this building. The only similarity lies in its Gothic revival historicity. That is not necessarily a bad thing. Nevertheless, it would be clear to anyone entering it that the Law Lords are occupying an old shire hall—albeit rather tastefully designed—of the late 19th and early 20th centuries. That is not adequate for a supreme court. I would much prefer to leave the Law Lords down at the other end of the Corridor. Anybody who sees the unusually informal way in which they operate there would be completely comfortable with the idea of their continuing to do so. We are going to waste money on something that will be unnecessary even if a supreme court is set up.

Amendment No. 328 and the long list of consequential amendments that flow from it would radically alter the Bill. They return to a lengthy debate in the other place about whether we need a supreme court at all and whether it would be possible to preserve the existing structure of the Law Lords. The Law Lords themselves appear to be fairly evenly divided. Given the pressure for this move that the Government have exercised in the public sphere, it is remarkable that they have not succeeded in securing more than 50 per cent. support for it from the Law Lords. The truth is that the Law Lords function very well, as the Government repeatedly acknowledge, and that the Government's desire to get rid of the Appellate Committee is a piece of theoretical mumbo-jumbo that is completely unnecessary in practical terms.

We are told that a separation of powers is required to send out this great signal that the judiciary is free of the Executive and Parliament. However, I worry much more about the signs of frequent interference in the independence of the judiciary by the previous Home Secretary than about where they sit and whether they are Members of the House of Lords. Judges have to exercise self-restraint in everything they do, to the extent of their private conversations at dinner parties, because in an age of mass publicity something that they have said, or has been said about them, could be seen to undermine the impartiality with which they discharge their office. They have succeeded in doing that, year in, year out—it has been impossible to find examples of where they have not. Where there has been any statement by a Law Lord or any other judge that might interfere with their ability to deal with a case, the general rule has been that they have not sat on it. The one exception is that of Lord Hoffman's involvement in the Pinochet case. However, the exception proves the rule, and that might equally well have applied had there been a supreme court. The fact that they are Law Lords makes no difference at all.

The Government seem to think that Law Lords are put into a peculiarly delicate position because they should not be able to listen to, participate in and vote on debates in the House of Lords. There is nothing wrong with that. Indeed, in terms of voting they are extremely circumspect, virtually to the point of self-denying ordinance. Convention absolutely underpins the quality of our administration in this country. One of the things that worries me most about this Government is their absolute hatred of convention. They showed long ago that they could not be trusted to respect any convention in the book whatsoever. We had enough difficulty in persuading them to observe the convention of taking this Bill on the Floor of the House.

The Government want to create a whole series of mechanistic structures that are designed to ensure the Law Lords' apparent independence but will not make a blind bit of difference to the way in which the public perceive their work. I believe that we will lose out in two ways. First, their participation in the legislature is rather a good thing. The opportunity for them to express, as they always do in a very careful and moderated way, any doubt or anxiety that they have about a piece of legislation that might, for instance, undermine the rule of law, sends a powerful signal to the Government that they should think very carefully about what they are doing. That is an intensely useful structure in a parliamentary democracy.

Secondly, the Law Lords have an opportunity to be receptive to what other people are saying. I do not want to suggest that judges are isolated, because they are not. The majority of the judiciary, outside of the Law Lords, operate in a world where they come into frequent contact with large numbers of people. For instance, the lives of those in the High Court are centred around the law courts in the Strand, which gives them a continuing connection with members of their own profession that they tend to find very useful. However, the Law Lords, by virtue of being here, have never had that contact in the same way. My impression, from conversations, is that they value working in a building with other people whose sole focus is not the law. They value the opportunities that that provides for gaining understanding from, for example, attending meetings about issues of public concern. That gives them an important focus, which helps them in their judicial work.

Yet all that will be blown away, first by getting rid of their status as Law Lords and secondly, by moving them out of the building. Some of the ethos could probably be preserved by creating the supreme court but leaving its members in the building to enjoy its facilities. Again, that would be cheap but we would lose something by removing their right to sit and debate. There is a way round that. I agree that we need an appointments mechanism for the supreme court. The majority of the amendments that the Opposition tabled try to preserve the structure while enabling the Law Lords to remain in the House of Lords.

The second issue that we need to consider is the position in respect of Law Lords being made life peers. New clause 7 is a probing amendment on that. At what stage would that happen? Would they be made life peers when they cease to sit as members of the supreme court? Could they be made life peers while they are sitting? Could the president, but not the other members, be made a life peer? We need some clarification from the Government about those matters.

As I understand it, it is not intended that the Lord Chief Justice should cease to be a peer but perhaps the Government intend that to happen. That must follow if we are moving towards a total separation of powers. I hope that we can engage with that in debate. [Interruption.] I hear the Under-Secretary saying, "suspended". That highlights the Government's approach: one can be a life peer but one cannot sit while serving as a judge. That is bizarre. What if someone who has been a life peer is appointed as a judge? That person will have engaged in public debate, yet is viewed as suitable to act as a judge. That underlines why the Government's attempt to produce clarity creates nothing but a silly mess.

I wish that the Government would reconsider their obsession with the separation of powers, which, as I have often said, derives from poor old Montesquieu's failure to understand how the English judiciary worked in the 18th century. The discovery that the judiciary was not an arm of the Executive amazed him with delight when he came to England. However, he built that up into the separation of powers, which is different from judicial independence.

I have outlined the reasons for the amendments and I hope that we will have an opportunity to consider the two issues carefully. I want to emphasise again that they are distinct. The issue of where the court should sit would apply if there were a supreme court. One could continue with the Law Lords and move them into another building—there is no reason why one could not do that. Amendment No. 350 therefore concentrates on location. I am anxious about the possibility that we may wait a long time before the sunrise clause comes into operation, unless the Government have made a clear decision about the Middlesex guildhall. The Under-Secretary will help us with that.

The wider issue is the Government's monumental waste of public money, in which they specialise. The first example of that is the dome. It is interesting to note that the Lord Chancellor was associated with that, although he treated it as a rather difficult client for whom he had no personal responsibility. The second example is the Scottish Parliament building, which was started before the powers had been transferred to Edinburgh. I suspect that we are moving towards more major Government expenditure to achieve a result that could be obtained by continuing to spend overheads of £168,000 per annum. I do not understand where good government lies in that and I look forward to the Under-Secretary's response.

Ross Cranston (Labour, Dudley North)

The hon. Member for Beaconsfield (Mr. Grieve) began with the location of the court. He rightly said that the Judicial Committee of the House of Lords currently operates in a seminar style. I have appeared before the House on several occasions and my experience is of academic, to quote the hon. Gentleman, discussion. It is the sort of discussion that needs close interaction and a dialogue between counsel and the members of the Judicial Committee. There is nothing inconsistent between that style of judicial decision making and a new location.

To broaden the perspective, if one considers the operation of comparable courts such as the supreme courts of Canada or Australia, one see that style in a separate supreme court building or its equivalent. The Law Lords who support the change and the Government's proposals do not believe that the current style of decision making is inconsistent with having a different location.

The hon. Gentleman mentioned Westminster guildhall. I have sat there several times as a recorder and there is no doubt that structural changes must occur if the seminar style is to continue. That will require substantial expenditure. However, that is a consequence of the principle. That court has built up good relations with other parts of the criminal justice system in central London and I should like assurances from my hon. Friend the Under-Secretary that everything will be done to facilitate transition for the judges and staff of that court and for the continuation of the good relations. I therefore have no problem with a move to a separate building or with Westminster guildhall. Situated on Parliament square, it is an appropriate place for a supreme court.

The more substantial point is the creation of the supreme court. As I said on Second Reading, I was initially sceptical about the proposal. There is no doubt that the House of Lords is an outstanding body. The judges are of the highest integrity and standing not only in common law but more generally in the international legal world. When one hears from judges such as Lord Nicholls, who opposes the change, that gives one pause for thought. We heard evidence before the Constitutional Affairs Committee from Lord Hope, the former Lord President of the Court of Session in Scotland and now a member of the Judicial Committee, who said that he appreciated the opportunity to sit in the House of Lords in its legislative capacity, listen to debates and hear the issues of the day discussed. He believed that that was beneficial in the performance of his judicial functions. It gave him a wider perspective. There is no doubt that judges at that level need a wider perspective because they make decisions that have profound social consequences. However, as I also said on Second Reading, I am persuaded that the case for a supreme court has been made. I mentioned other jurisdictions. No other jurisdiction has our arrangement. Although that is not necessarily conclusive, it is a persuasive argument for change.

I mentioned the supreme courts of Canada and Australia in the common law world. The Indian supreme court is also an eminent judicial body. Across the North sea in Germany, arrangements at the highest levels are different, in that there are supreme courts in functional areas such as tax, labour and administration. However, in Karlsruhe, we find the Bundesfassungsgericht—the German constitutional court—and the supreme court of justice, the Bundesgerichtshof. We have only to read the judgments of those courts to see why the Bundesfassungsgericht is so highly regarded as a constitutional court. Those are examples using comparisons. Other countries have supreme courts, so why do not we?

The argument relating to the rule of law is strong. It is not an argument about the separation of powers, but, as Lord Bingham has said, judges are judges. The hon. Member for Beaconsfield asked why we needed a supreme court. Bagehot talked about the effective parts of the constitution, but he also talked about its symbolic aspects. Sometimes, as in this case, symbols are important. Here we would have a separate supreme court illustrating the fact that judges are functionally separate and that judges do judging.

Let us look at the historical situation. The hon. Gentleman rightly said that we had had courts in this location for centuries. Furthermore, members of the Judicial Committee have also been members of the legislative body in the House of Lords, but those were different times. When we had our debate in Westminster Hall on the Constitutional Affairs Committee report, I quoted the words of Lord Salisbury on the kind of person who ought to be a judge. He also said that the judges in the House of Lords should be Members of the House of Lords,

"since, practically, they have often to make law as judges, they will do it all the better for having also to make it as legislators".

Frankly, I do not think that that argument holds water any more. I accept the point that judges make law. We lawyers all know that Lord Reid famously said that it was a fairy tale that judges did not make law. They do, but, more importantly, they make law within a social and economic context. In a case before the Privy Council in 1949, Lord Porter said:

"The problem to be solved"—

by the court—

"will often be not so much legal as political, social and economic."

Judges make important decisions that have social ramifications.

The fact that we now have the Human Rights Act 1998, that we are getting important decisions such as the Belmarsh decision, and that, in a different context, we have had cases such as the Pinochet case, illustrates that judges are now making decisions that have a much greater impact on our social lives, in terms of both public perception and reality.

Peter Bottomley (Conservative, Worthing West)

I do not want to challenge anything that the hon. and learned Gentleman is saying, but in what kind of forum should a judge be able to say, "The law requires decision X, whereas justice would require decision Y."?

Ross Cranston (Labour, Dudley North)

Judges already do that in the context of their judgments, although they might not put it in exactly those terms. The Law Commission, for example, will often draw on what judges have said about changes in the law. A judge might say, "I have to decide this case in this way, but there is a problem with that." That is something that the Law Commission should look at. That judge might suggest that justice required a change in the law, although, as the hon. Member for Beaconsfield said, judges have to be extremely careful about what they say.

It is difficult to characterise the times in which we live. In a decade's time, when the supreme court is up and running, we might look back and see this as a fundamental revolution in our constitution. However, the proposal seems to me to be the kind of pragmatic, incremental change that is characteristic of constitutional change in this country. Today seems to be an appropriate time to make that change and I support the Government's proposals.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It is a pleasure to intervene in this debate at this stage, having not taken part in it earlier—perhaps a greater pleasure than for those other Members who have laboured day and night over the Bill. I shall be brief, but I shall also be slightly self-indulgent, because this is an enjoyable extra to my normal duties. I have declared an interest, in that I am a member of the Bar. Although I do not currently practise, I am still a member of chambers, so, like the hon. Member for Beaconsfield (Mr. Grieve), I have performed over the road at the Middlesex guildhall in its capacity as a Crown court.

I want to address the two questions raised by the amendments, but I have one preparatory comment. The good knowledge of history that the hon. Member for Beaconsfield demonstrated reminded me that this place now lacks the kind of great historical contributions that used to be made here. He also reminded me of his very-much-still-alive predecessor, Lord Brooke of Sutton Mandeville, formerly Peter Brooke, whose knowledge of London and Westminster history was without parallel. We miss him, although those at the other end of the building still have the benefit of hearing from him.

On the venue for the supreme court, my hon. Friends and I have always supported the idea that there should be a supreme court and that it should be visibly and organisationally separate from the working of the legislature. On Sunday, there was an insert into the "Politics Show" on television; I discovered that it is running a series of them. Last week's asked, "How Conservative are the Conservatives?" This week, it was, "How Liberal are the Liberals?", and next week it will be, "How Labour is Labour?" As I was listening to the hon. Member for Beaconsfield, it struck me that, if ever we wanted an illustration that the Conservatives were still Conservative, he would be a living manifestation that that was the case.

We need to scrutinise the argument for keeping an arrangement that grew up for a reason that has now changed. The reason that the courts were in this building, a royal palace, was that the king was the fount of justice. He invited the courts to sit in Westminster Hall and we are proud of Westminster Hall's history, both its conservative and its progressive, radical history. That must include its most radical moment of all, when King Charles I was sentenced to death in the hall attached to this building.

That was the reason for the courts being here and when the fire happened in the 19th century, the opportunity was taken to move almost all the courts to the new law courts in the Strand. The only court that remained here was the Law Lords. They represent the highest court in the land and effectively form the supreme court, but they are also members of the legislature, which is part of the other historical anomaly.

The hon. and learned Member for Dudley, North (Ross Cranston) rightly said that no other place in the world had the same judicial arrangements as ours. Well, no other place in the world has the same parliamentary arrangements as ours, namely an elected Chamber at one end, and at the other, a Chamber that is, with the exception of nearly 100 people who are the elected residue of the hereditary peers, all appointed. One historical anomaly is that, when the senior judges were appointed, the same group of people were appointed to be Members of the House of Lords. We delude ourselves if we imagine that the judges are regular, active participants there, because they are not. They are given that job incidentally, having been appointed as senior judges. They may incidentally contribute to debate and some benefit may result from their being able to talk to legislators, but I envisage much greater benefit from a separate supreme court elsewhere.

Let us take the great December judgment, when the House of Lords decided by a majority of eight to one that the Government were acting illegally—unlawfully. It is interesting to note that Ministers find it very difficult to use those two words. The Lords said that the Government were acting without the law in detaining people in Belmarsh and required them to change the law. That was a hugely significant constitutional judgment, for which many of us are very grateful.

The House of Lords does its job in a very different style from the one that people would normally expect. The Lords do not sit in robes or on pedestals and do not wear wigs, but the House of Lords hardly ever experiences public involvement, acclaim or participation in its processes. People go much more often to the law courts in the Strand, and even more often to Crown courts around the country, which are visited by school parties, college and university students and others with an interest. Very few people come to the supreme court of this country, although it would be far better if they did.

Members have given examples of courts in other countries that are frequently visited. There is the Supreme Court of the United States. There is the European Court of Human Rights, which has its own building in Strasbourg. There is the European Court of Justice in Luxembourg. People go to those courts and see judges interpret the law, and it is important that the judges can be seen to do that in a way that the public can fully appreciate. The public would be far more likely to appreciate the significance of what the judges do here if they were in a free-standing location and seen to be wholly independent of the legislature. This is about perception as much as reality.

Dominic Grieve (Conservative, Beaconsfield)

I am entirely in favour of people being able to see the supreme court in action, but its work will be similar to that of the Law Lords, and that—as many Law Lords have acknowledged—does not attract much wider public interest, because of its extremely academic and slightly esoteric nature. The High Court in the Strand offers more opportunity for excitement. That will continue to apply wherever the court is, and in whichever building it sits.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Gentleman is right, to an extent. People can no longer come here to see whether someone is sentenced to death or not. They cannot come here to discover whether a conviction for one of the gruesome murders featured in the tabloids will be overturned by the court of criminal appeal. Nevertheless, great constitutional judgments of our day such as the one in December are important, not only to academics but to a huge number of people.

I believe that the first point is made. Let me deal with the second tangentially. My colleagues and I want a mostly elected second Chamber. I should like 80 per cent. of its members to be elected, with a residual number of appointees. That debate is, of course, as yet unresolved, although we hope it can be resolved in the next Parliament, whatever the outcome of the election.

With a minority of appointees, it would be possible to secure the expertise of those in the legal and judicial professions. A nominee might have been a member of the supreme court or been nominated by the judges. With the disestablished Church that some of us favour, denominations of the Christian and other faiths could be equally represented. We need not lose the voice of judicial experience in a second chamber, but the representatives should not be trying to do two jobs at once. It is clearly unfair for someone to be legislating at one moment and judging at the next. There is no weakness in a system whereby judges come fresh to the law and interpret it—they need not have sat through the debate. If the Lord Chief Justice or the president of the supreme court wants to issue a warning that the Government are behaving inappropriately, he or she can do so by calling a press conference or making an announcement, or as part of a judgment.

Then there is the question of the venue. There is no magic in establishing the supreme court in the Middlesex guildhall. I have no absolutist view on that, but take a pragmatic, sensible view on what constitutes an appropriate location. Of course a supreme court could sit at the end of this building without going anywhere else, but if we are to start with the new structure clear, it is surely better on balance for us to vacate space that has been accidentally occupied in this building and move to a convenient location nearby at no huge public expense, if that is possible. It would then be possible to consolidate all the other activities of Parliament in this building. We have "outhouse" buildings that we rent to accommodate people, such as No. 7 Millbank and the buildings in Abbey gardens. Perhaps we could save those costs. Filling the space will be no difficulty in practical terms.

If it is decided that a move would be better, or possible, where should the move be to? It would be logical to choose somewhere near the centre of traditional power in the land. We have Government in Whitehall and the legislature here at Westminster, so the logical venue for the supreme court is close at hand. What are the options? I suppose there is the chapter house of Westminster abbey, although it is not terribly convenient. The court could squat in some of the rooms at Westminster school, although the school might have something to say about that, or we could ask the General Synod of the Church of England whether some hot desking would be possible in Church house. The Synod might not think that appropriate, but I believe that Church house has been used on a temporary basis before: I think that during the war Parliament moved in when this place was bombed. We could talk to the Methodists very nicely—Central Hall Westminster is capacious. It would even be possible to book a few rooms at the Queen Elizabeth II conference centre.

All those are options, but directly opposite us—on the other side of Parliament square—there happens to be a building that was originally the shire hall for the very county in which Parliament was for hundreds of years. It is, indeed, the very county in which Parliament still is, for the old county of Middlesex includes this place. The government of Westminster has moved up the road to less pleasant-looking premises in Victoria street, the city council offices, but that building was our county headquarters. Moreover, it is a court building. It is not as if it would be taken from local government to become a court. Of course some adaptations would be necessary, and I support the Law Lords' wish to retain the style that they have had before, but I cannot believe that that would be impossible in the Middlesex guildhall.

I have only one other thought. I have not gone around with a questionnaire consulting Law Lords or anyone else, but the only other building with a logic to it—if it were adaptable—would be the Privy Council building in Whitehall. It is near enough, and part of the Government's complex of buildings. I should be interested to learn from the Minister whether that has been considered. I share the view that buildings further afield, such as Somerset house, are inappropriate.

I feel that the proposition that the Middlesex guildhall could be adapted is reasonable. I note that the Select Committee on Constitutional Affairs—chaired by my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), who has had to leave the Chamber—decided that it was entirely reasonable, and I hope that it could be adapted at minimal cost. I should also be interested to know what contingency arrangements are in hand for moving the current work of the courts. I have three Crown courts in my constituency just over the bridge: the inner London court of session, which has been there for many years; Southwark Crown court, which is extremely busy; and Blackfriars Crown court. There are spaces in London for other courts. The courts administration could doubtless be adapted and, if the presiding judges were given due notice and help from the Minister's Department, appropriate buildings could be found.

There is a cost issue and it is true that we ought not to spend huge sums. If we were starting from scratch, we could build a new building, but no one is saying that we should do so. I assume that the hon. Member for Beaconsfield is not suggesting that it is Conservative policy to build a new building for a supreme court. The right hon. Member for West Dorset (Mr. Letwin) has not added the associated cost to the list of additional Conservative expenditure, which will of course be balanced by £35 billion-worth of Conservative cuts. In the light of such cuts, it would be difficult to squeeze out of the Tory budget money for a new building.

Dominic Grieve (Conservative, Beaconsfield)

I was amused to hear the hon. Gentleman refer to £30 million costs as minimal—he is being very liberal with the largesse involved. We want the court to remain in the current building because that is the proper setting, but if it is the Government's wish to splash out public money, in our view, the building that has been identified—notwithstanding what the hon. Gentleman says—is wholly unsatisfactory.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We can debate that issue and express our views but, in the end, if the Government get their Bill, they can implement the proposal.

In a rare moment of accord, we have tabled no amendments in Committee to a Government proposal—[Interruption.] No, that is no precedent for the future —not even for the short period before we are the Government and Labour are the Opposition. [Interruption.] That period may be shorter than Labour Members think. That said, I shall not be distracted into too much preliminary electioneering. The reality is that the Bill contains a contingent proposal: there will be a supreme court, but only if it moves from this building. I am surprised that the Government are being so definite about this proposal. I can see the logic of it in one sense, but as the hon. Member for Beaconsfield will agree, it is entirely possible to have a supreme court—the most important point—without moving it immediately, which is a less important point. We must get the priorities right.

I turn to the bigger issue, with which amendment No. 328 deals: whether we have Lords of Appeal in Ordinary or supreme court judges, with all that that entails. My hon. Friends and I approach this issue from different traditions and perspectives, but we share the common view that there is merit in having a supreme court. As my hon. Friend the Member for Somerton and Frome (Mr. Heath) said on Second Reading, Lords of Appeal in Ordinary are certainly not "ordinary" and therefore have an anomalous name. The role that they fulfil would be more clearly perceived as judicially independent were we to bite the bullet and adopt the proposal before us.

This is not a new proposal that the Government have just dreamed up—it has been around for a long time, and we Liberal Democrats are glad that they have grasped this issue. Implementation of such a proposal is overdue. It would make it clear that there is a difference in democracies between government, legislature and the courts. It is important that those elements be separated, because at the moment, there are all manner of anomalies, such as the Lord Chancellor having three jobs and the Law Lords acting as legislators. That is why we will vote against the amendments if they are pressed to a vote. We hope that we can proceed to a satisfactory solution that will cost the taxpayer little money, but which will give us clear judicial independence, separation of powers and a separate, self-contained place in which the Law Lords, in their new role as the supreme court, can do their work.

Peter Bottomley (Conservative, Worthing West)

The hon. Member for Southwark, North and Bermondsey (Simon Hughes) advertised his speech as a short one, but it ran to 19 minutes; mine will be shorter than that. The first question to ask is why we are paying the price of a ministerial brainstorm that occurred during a botched reshuffle. Abolishing the Lord Chancellor and the issues arising from that proposal have resulted in a Bill of 227 pages. The major associated cost—[Interruption.] I do not intend to be interrupted too much by the Minister's Parliamentary Private Secretary. The major associated cost is the capital cost, but there are also high recurring costs.

When the Law Lords appeared before the Constitutional Affairs Committee—I am very grateful to them and to the Lord Chancellor for doing so reasonably frequently—Lord Bingham said that the current arrangements passed the Bingham "pudding test", but not Bingham; in other words, appearances seem to be more important than anything else. If the issue is separating the place where the highest court will sit from the Palace of Westminster, I should point out that in doing so we would be separating it from the legislature, not the Government. I was intrigued by the idea, as advanced by the hon. Member for Southwark, North and Bermondsey, of locating the court in a Government office. It would be far better to locate it in the legislature instead, but perhaps we can sort out that difference of opinion later.

We could say that the Lord Chancellor's house need not be used by the Lord Chancellor. It could be defined as being outside Parliament, but still fall within the Palace of Westminster security screen. As a result, there would be no additional costs. In other words, we could deal with the situation by changing people's perception and altering the definition, in the same way as—as has been suggested—we could change the name from Lords of Appeal Ordinary to supreme court justices.

The Government seem not to understand the difference between continuity and improvement and change. They have shown a lack of respect for an institution that has worked pretty well and they are obsessed with constant change. As a constituent of mine wisely said, if they were half as good at delivering results economically and effectively as they are at launching their ideas, life would be likely to improve. Not a single improvement will follow the high cost, disruption, argument and delay in which the Government's proposal will result. A far better idea would be to say that we prefer that the Law Lords do not vote in the upper House. That could be done by convention and, through a minor adaptation, we could establish that the Lord Chancellor need not sit on cases. The third problem could be solved by defining the place where the Law Lords meet as theoretically outside the Palace of Westminster. The only remaining issue would then be the best way of appointing the judges—an issue with which different clauses deal.

I hope that the Committee will forgive me but I will have to leave the Chamber at 2 o'clock because the Constitutional Affairs Committee, which has contributed to this debate, will be in session and it needs to be quorate.

Paul Tyler (Liberal Democrat, North Cornwall)

I endorse and support what my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) said earlier. I am stimulated to say something else, as well, by the contribution of the hon. Member for Worthing, West (Peter Bottomley), who is of course a member of the Constitutional Affairs Committee. My right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) has left to prepare for the meeting to which the hon. Gentleman just referred, so I am glad that the hon. Gentleman is still here to hear what I have to say.

The role of the Constitutional Affairs Committee in preparing for this debate has been an extremely useful innovation, and we owe it to its members to take their advice very seriously. I am sorry that Conservative Front Benchers have not done so, because a considerable section of Members support the proposition before the Committee. The hon. Gentleman may want to comment on the fact that the Select Committee did not divide on paragraphs 37 to 54 of its report, which endorse the proposal for a supreme court that is separate from the present legislative role of the Law Lords.

Peter Bottomley (Conservative, Worthing West)

To avoid having Divisions all the way through our proceedings, the hon. Gentleman will want to advise the Committee that unfortunately, it was necessary during our Select Committee proceedings to have two votes on paragraph 55, which in essence deals with this issue. The hon. Gentleman is not reflecting fairly, therefore, the decent, gentle and courteous behaviour of the Select Committee.

Paul Tyler (Liberal Democrat, North Cornwall)

I am surprised to hear the hon. Gentleman make that point because I have read the report very carefully. It is true that there were some Divisions on paragraph 55, which dealt with the actual location of the court, but the principle of setting up the supreme court is dealt with in the earlier paragraphs.

I want to respond to the particular point about using this building for this particular purpose, while still maintaining the separation of powers, to which I and my colleagues are very much attached. I accept that there is an argument for doing so in the transitional period. That is why I want to deal with what the hon. Member for Beaconsfield (Mr. Grieve) referred to as the sunrise clause. My colleagues and I have some concerns about it—it is clause 120—because it provides a safety valve that could easily become a blocking mechanism if particular members of the judiciary decided that the accommodation was unsuitable, not ready, or not of the sufficient calibre, standard or quality to which they were attached as residents of this building. The hon. Member for Worthing, West has made an important contribution in that it would be perfectly possible during the transitionary period to use this building until the Middlesex guildhall is available.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman puzzles me now, because the recommendation in the report wholly endorses the need for a sunrise clause and states that no supreme court should come into operation until a new building has been identified. Is there not some inconsistency between what the Select Committee said and the hon. Gentleman's current view?

Paul Tyler (Liberal Democrat, North Cornwall)

Not at all. I want to make it absolutely clear that my colleagues and I are not seeking to exclude the sunrise clause. What we are saying is that the Government owe it to the Committee now to explain precisely how they intend to handle the transition. That is a perfectly reasonable request to put to the Minister, and it is in those terms that I draw his attention to the possibility that the sunrise clause could be used as a blocking mechanism, which I believe would be very damaging to the reputation of Parliament. It would allow one part, albeit an extremely important part, of our body politic to hold up the will of Parliament. I hope that the Minister will respond to that particular point.

I believe that the Select Committee's other comments are admirable. The Committee came down firmly in favour of Middlesex guildhall as an appropriate location, which I believe is a measured and sensible recommendation. The Committee also gave considerable thought to the interim arrangements that will apply until the recommended building is ready. I hope that the hon. Member for Beaconsfield has read that section of the Select Committee report. I endorse the Select Committee's measured approach—I include Conservative members of the Committee in my praise—and I greatly prefer it to the apocalyptic approach of Conservative Front Benchers.

Chris Leslie (Labour, Shipley)

It has been interesting to hear the debate so far, not least because the arguments both for and against have been put forward so well by my hon. and learned Friend the Member for Dudley, North (Ross Cranston) and by the hon. Members for Southwark, North and Bermondsey (Simon Hughes) and for North Cornwall (Mr. Tyler). I agree with many of the points that those Members advocated, though my reading of the amendments before us is rather different from that of Conservative Members, particularly regarding the entire deletion of the creation of a supreme court in one form or another. I accept some of the points made about particular aspects of the building, appointments to the supreme court and so forth, and I shall try to deal with them in turn.

At present, the highest Court of Appeal in the land sits as a Committee of Parliament—the Appellate Committee of the House of Lords. To anyone except a seasoned observer, it can appear that a legislative body is interpreting legislation. The status quo thus has potential flaws that could cause difficulties. About half of the present Law Lords are now reported to be uncomfortable with their position in the legislature, which potentially conflicts with their judicial role. They have had to exercise a self-denying ordinance in recent years in order to avoid speaking or voting on legislation that might later prejudice their objective application of those laws.

Although the present system works, the time has now come to make improvements. Part 3 of the Bill, from clause 20 onwards, therefore proposes the creation of a new supreme court for the United Kingdom that is separate from Parliament, removing the potential conflict between the legislative and judicial roles of our most senior judges, and providing greater clarity and visible independence for our highest court.

Ideally, the functional separation of the judiciary from the legislature and the Executive is a cardinal feature of any modern, liberal and democratic state that is governed by the rule of law. Pragmatically, the business of justice should be, and should be seen to be, independent of the business of Government and the business of Parliament. That was argued strongly by the hon. Member for Southwark, North and Bermondsey. The interpretation and application of laws should not be undertaken by those intimately involved in making the laws. The Joint Committee on Human Rights has welcomed the proposal because it reduces the prospect of a critical judgment in the future that a free and fair tribunal should not be prejudiced by preconceived potential bias. Greater clarity is necessary for public confidence and for our continued reputation in the wider world.

Specifically on the comments by the hon. Member for Beaconsfield (Mr. Grieve) about the location and nature of the prospective building, we believe that a new supreme court must be established in an acceptable way, in a manner fitting to the principles of the highest court in the land and the dignity commensurate to its status, while simultaneously securing value for money for the taxpayer.The Bill places the Lord Chancellor under a duty to provide appropriate accommodation and facilities—and here the sunrise clause 120 additionally ensures that commencement will not occur until those facilities are available. I am glad that the Select Committee commented favourably on those arrangements—in particular on page 20 of its report. To explain a little further, the arrangements were made in order to placate some of the concerns expressed in the other place—that there might be a hasty removal or eviction of the Law Lords from the House of Lords to somewhere they regarded as unsuitable. Ministers will approve the new building and ensure that consultation with the Law Lords takes place throughout the process until they become supreme court justices.

The Government announced in December—I believe on either 14 or 19 December and in a written ministerial statement—the preferred option of Middlesex guildhall, the Crown court that we now see on the opposite side of Parliament square, as the new, separate supreme court building. I am sorry that the hon. Member for Beaconsfield said that I somehow sneaked this out on Second Reading, because there was, as I said, a voluminous written ministerial statement about it. Never mind, but that statement would probably answer many of the questions that the hon. Gentleman put to me today.

The advantage of this particular site—I have advocated it throughout as the most obvious choice—is, of course, its prime constitutional location in Parliament square, with legislature, Executive, the Church and now the judiciary to be represented on all four sides. Furthermore, that location would represent a potentially vast improvement on the cramped conditions of the present accommodation in the House of Lords. Middlesex guildhall is already owned by the Department for Constitutional Affairs and is used as a Crown court.

I understand the concerns expressed by the hon. Member for Beaconsfield, who quoted the concerns of Lord Bingham, but they relate to the building that is used now. I believe that it is perfectly possible to strike the right balance between preservation of the key features—we would need planning permissions elsewhere, which is one of the reasons why the Middlesex guildhall remains our preferred location at this stage—and the more traditional approaches of the Law Lords who prefer to sit in panel and have a more open and transparent method of conducting their hearings. I believe that Middlesex guildhall can be refurbished and changed to meet those concerns. I also believe that that location will provide good value for money, in being a refurbishment rather than a new building. It also has the architecture most likely to galvanise widespread recognition and respect among the general public. We know that it also has the support of the Select Committee on Constitutional Affairs.

The costs of fitting out and refurbishing the building are on the record. They are significant, but modest in comparison with the costs incurred by some of the big institutional building projects that have taken place already this century. The total of £30 million covers fees, value added tax and a 50 per cent. optimism bias. Also, £15 million will be spent to provide additional Crown court rooms elsewhere in London. We have not announced where those will be, but the options will be reviewed over the next few weeks. Some of London's Crown courts have rooms that are under used, and Middlesex guildhall may not always be the most appropriate place for Crown court hearings, given its wide catchment area and the fact that there might be more suitable locations elsewhere.

We announced in a written ministerial statement that we had looked at various different options, including Somerset house. Our preferred option, the Middlesex guildhall, was chosen according to the statement of requirements agreed with Lord Bingham. We considered it suitable because of its location, and on the ground of value for money. Developing and refurbishing court houses, including listed buildings, is already part of the Department's core work. We have a good track record and we work on such schemes around the country every day.

Amendment No. 350 would force the supreme court to remain in the Palace of Westminster. Various Law Lords have complained over the years that this building is too cramped. Middlesex guildhall would offer much more space, with better rooms for hearings as well as better libraries and office accommodation. Those facilities will help the supreme court's very important judges make correct decisions.

If we retained the supreme court in the Palace of Westminster, there would be no benefit arising from a visible separation between it and the legislature, and such an arrangement would invite questions about the separation, free from parliamentary interference, of funding, facilities and governance arrangements. I hope that the creation of the new supreme court will ensure that separation and transparency.

Many of the amendments deal with the title "Supreme Court Justice". The hon. Member for Beaconsfield said that his aspiration was to be the Conservatives' conservative and ensure the retention of the title of Lords of Appeal in Ordinary. Most people find that title confusing and anachronistic. The title of Supreme Court Justice is far clearer and more accessible. The title of Lords of Appeal in Ordinary was coined in the Appellate Jurisdiction Act 1876. In addition, the phrase "in Ordinary" derives from ecclesiastical law, which makes things even more confused.

Dominic Grieve (Conservative, Beaconsfield)

Another oddity is that our constitution means that the proposed court will not be a supreme court so much as the final Court of Appeal for the UK. Moreover, in the Strand there sits already the supreme court established by the Supreme Court of Judicature Act 1891. The Government have not explained what they intend to do with that, but it is one reason why it might have been appropriate to call the supreme court's judges Lords of Appeal—whether in Ordinary or not.

Chris Leslie (Labour, Shipley)

Some courts are commonly called supreme courts, although they are not used as such, and we have suggested that they be called superior courts. The supreme court will be the UK's final Court of Appeal, but it will not take on what are regarded as the functions of the US Supreme Court. Our supreme court will act as the Court of Appeal for cases produced in all of the UK's different jurisdictions. The proposed title is the one that will best fit its functions.

We consulted widely about the name change. The proposal to adopt the title of Supreme Court Justice received widespread support from those who responded to the consultation process.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

My party supports the proposal for a supreme court, with supreme court justices. However, will the term for those who do the Appeal Court job remain Lords Justices of Appeal? In any case, the supreme court will be able to do its job properly only when we have our own Bill of Rights.

Chris Leslie (Labour, Shipley)

The hon. Gentleman may be the Liberals' liberal, but the changes on the tables are enough for now. I shall stick to them.

Various amendments apply to the appointment process for Lords of Appeal and Law Lords. However, increased transparency in the appointment process is not the only requirement when it comes to reforming the system. We want there to be a separate court, so it would therefore not be enough merely to change titles. The court must be separated from Parliament.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate that the amendments envisage retaining an appointments procedure, but that mechanism is rendered ponderous by the requirement that there be a president of the supreme court, and a deputy president. At present, the senior among the corporate group of judges is, by convention, the one who presides and undertakes a certain amount of regulatory function. The provision in the Bill represents quite a change, as we shall discuss at more length in the debate on clause 21 stand part. However, I should be grateful if the Minister would say why the Government have decided formally to appoint a president and a deputy.

Chris Leslie (Labour, Shipley)

The proposed president of the supreme court will have different functions and characteristics from the present senior Law Lord. We believe that the job will merit its own appointment process. The appointment process for supreme court justices will have to be more transparent and formalised than at present, and I know that the hon. Gentleman agrees with that. That reform is well worth while.

Although the amendments are founded on clear principles, I hope that the Committee will reject them. We need to move away from having a legislative body that interprets and applies the laws that it passes. It must not be perceived to do that, so we must secure the functional separation of judiciary and legislature. The highest court in the land must have clarity, transparency and visible independence. These are high constitutional matters, although the hon. Member for Beaconsfield suggested that they were academic and esoteric, without great importance for the public at large. He said that the expenditure incurred by the reform was not necessary, and it may be true that the constitutional environment just at the moment is placid and calm. However, we should not ignore the potential problems in the system or shy away from making improvements.

Dominic Grieve (Conservative, Beaconsfield)

I do not disagree with the last part of the Minister's peroration, but he did not understand at all my use of the words "academic" and "esoteric". I was talking about how members of the public might regard the deliberations of the court, but I did not intend to diminish the importance of what it does. In its current form, the court performs vital work. It will continue to do so in any new form that it might be given.

Chris Leslie (Labour, Shipley)

I understand what the hon. Gentleman says, but his earlier comments betrayed a view that these issues are remote and distant from the public at large. They are fundamental and that is why they require attention, even if they seem from time to time to be academic. They are central questions and my point is simply that it is important to keep the health of our institutions in prime condition. We should not accept a conservative attitude from the Opposition. We have a duty to maintain the health of our institutions as best we can and that is why a new supreme court is necessary. I hope that the amendment will be withdrawn or, if not, rejected.

Jonathan Djanogly (Conservative, Huntingdon)

I am a practising solicitor and, technically, a solicitor of the Supreme Court. The Minister may wish to consider the fair point made by the hon. Member for Southwark, North and Bermondsey (Simon Hughes) that there are complications surrounding the use of the words "supreme court". Those will need to be dealt with if the Bill is passed in its current state.

The arguments against the creation of the Government's new supreme court were eloquently set out during the Bill's passage through the other place.

Chris Leslie (Labour, Shipley)

I need to correct a comment that I made earlier. I said that we would change the colloquial term Supreme Court, covering the High Court and Appeal Court, to the superior courts. In fact, the title in England and Wales will be the senior courts and in Northern Ireland it will be the court of judicature. I wanted to put that on the record.

Jonathan Djanogly (Conservative, Huntingdon)

I thank the Minister for that clarification.

Arguments against the creation of the new supreme court were set out on Second Reading in this House and by my hon. Friends the Members for Beaconsfield (Mr. Grieve) and for Worthing, West (Peter Bottomley) today. Because the Government will not drop this divisive proposal, my hon. Friends and I feel that we must speak out again in the hope that some sense might prevail. We remain convinced that the creation of a new supreme court would not only be a pointless and costly exercise, but cause significant damage to the excellent position we enjoy now.

Despite all their attempts to convince us otherwise, the Government's proposals to scrap the judicial functions of the House of Lords in favour of a new supreme court are unnecessary. The hon. and learned Member for Dudley, North (Ross Cranston) spoke about the chances of the Bill leading to a fundamental revolution. This Bill will not do that. It is a damp squib or, at best, what my hon. Friend the Member for Worthing, West described as change for change's sake. The proposed court would exercise the same role already carried out by a combination of the existing Appellate Committee and Judicial Committee of the Privy Council. Under clause 21, the existing Lords of Appeal in Ordinary would, logically, become the first judges of the supreme court. Legal rulings by the Law Lords already command the highest respect in this country and around the world. Indeed, there is no suggestion from any quarter that the existing Law Lords are anything other than excellent at their work, and the hon. and learned Member for Dudley, North made that point earlier.

What is the justification for wrecking the present arrangements? Again, we come back to change for change's sake and the Minister citing what he thinks is a modern, liberal separation of powers. Not only would the move to a new supreme court do nothing to improve the Law Lords' reputation, the opposite might be the case, as Lord Nicholls of Birkenhead rightly pointed out in the other place. The Appellate Committee's esteemed reputation might not pass seamlessly to a new body. The proposed supreme court would not begin its life as a supreme court as the term is understood in almost any other jurisdiction. It would not have the power to override parliamentary supremacy and strike out legislation as unconstitutional. The question then arises as to whether we would be swapping the prestige of our present Appellate Committee for a court perceived, as the Lord Chief Justice, Lord Woolf said, as a sort of "second class" supreme court.

The Government justify the new supreme court on the grounds of ensuring the independence of the judiciary, yet concerns about that have never been more than anecdotal. No one has seriously suggested impropriety on the part of the Law Lords.

What of the Human Rights Act 1998? I concur with the view expressed by my hon. Friend the Member for Beaconsfield on Second Reading when he suggested that only the fact that the Lord Chancellor sits as a judge—we are all happy to change that—could, arguably, provide grounds for a human rights challenge. That aside, one can point to the fact the despite all the scaremongering, no legal challenge has ever been made to allege that our existing arrangements do not ensure a fair trial, in line with the European convention on human rights. The need for greater separation of powers in the British system is also a spurious justification for a supreme court. As Lord Kingsland said in the other place,

"the argument that the separation of powers requires these reforms proposed by the Government is wholly unsustainable."—[Official Report, House of Lords, 12 February 2004; Vol. 657, c. 1222.]

Democracy has long been upheld in this country without the requirement for the type of rigid separation of institutions favoured in, for instance, the United States. Even if some notion of political correctness were to require such separation, would not the link between the legislature and the Executive be rather more pressing? However, there are no plans—as far as I know—to remove the Executive from this place, notwithstanding the fact that it has vastly more impact on the affairs of the legislature than a few Law Lords in the other place.

Another of the Government's arguments has involved the inadequacy of the present working arrangements for the Law Lords, but it is far from the unanimous view of the Law Lords themselves. Lord Nicholls of Birkenhead, for instance, responded to the suggestion that the Appellate Committee made do with impoverished and substandard facilities by saying:

"Nothing could be further from reality."—[Official Report, House of Lords, 20 December 2004: Vol. 667, c. 1552.]

He also said that the Law Lords unanimously favour some of the advantages that the present arrangements bring, such as the informal layout and procedures, which are conducive to the promotion of dialogue. In contrast, Lord Bingham of Cornhill has previously noted that the Law Lords have grave doubts about the suitability of the Government's proposed choice of Middlesex guildhall for the new supreme court. The arguments have been made already today, and I shall not go over them again. However, in terms of prestige, what more fitting location is there for our highest court than right in the heart of Britain's seat of power—here, in the Palace of Westminster? How can a move away from here be anything other than a negative step?

The hon. Member for Southwark, North and Bermondsey acknowledged that the House of Lords does its job in an unusual way, and that few people were able to watch it. However, the Law Lords' method of working is collegiate and deals with points of law, rather than the exciting facts of the case as does the High Court. I do not see that as a strong argument. Nor would hot-desking in Church house be a good alternative. I appreciate that the hon. Gentleman rejected that suggestion.

Another weak line of argument with which the Government have attempted to sell us their proposals is confusion among the British public. As Lord Norton of Louth made clear in Committee, the Government cannot provide us with any empirical evidence on that point. The British public are, apparently, overwhelmingly confused about the judicial function of the House of Lords. Well, we beg to differ on that point. As others have pointed out, does it matter if the public cannot always remember that the Law Lords are in fact Lords of Appeal in Ordinary, sitting together as the Appellate Committee? The important point is that the public understand the role of the Law Lords as our highest court, independent of the Government and making decisions on the most important legal issues of the day.

There is an argument that some confusion may occur through the use of the name "House of Lords" to describe sittings of the Law Lords, but if that is the root of the alleged confusion, the solution would be as simple as removing reference to the House of Lords from the name of the court. That would avoid any confusion with the House of Lords as a legislative body, but would allow the existing Appellate Committee to continue with its work free from the unnecessary upheaval of leaving its present surroundings. Just such an outcome would have resulted from the amendment tabled by Lord Howe on Third Reading in the other place. To address that issue, we have again proposed an amendment that any supreme court should remain situated in the Palace of Westminster. As Lord Kingsland pointed out when he moved Lord Howe's amendment, the renamed court could be provided with its own entrance, such as the present Black Rod's Entrance, in order to underline further the court's separation to the wider public. Instead of supporting such sensible proposals, the Government continue to insist that what is required is nothing less than the complete uprooting of the Law Lords to less appropriate and more costly accommodation.

In dubbing the proposed court a supreme court, the Government may in reality just add to the level of public confusion. That is because, as I have already mentioned, the court will not be supreme over Parliament. Perhaps a name along the lines of "Final Court of Appeal" as in Hong Kong, for example, would be a more appropriate title.

As I have stated, not only do we believe that the creation of a supreme court is unnecessary, we would go further and state that the measure will have a damaging effect on the Law Lords and the House of Lords overall. As Lord Norton of Louth pointed out, a freestanding supreme court might be isolated and vulnerable to attacks from Ministers, including having its budget cut. As Lord Kingsland pointed out on Report in the other place, it also appears that the new supreme court

"will enjoy less financial independence than . . . the Appellate Committee".—[Official Report, House of Lords, 14 December 2004; Vol. 667, c. 1244.]

The public's perception of the court could suffer, too. Would not the judges in a new supreme court, away from the House of Lords, be more open to accusations that they were sitting in some ivory tower cut off from real decision making? The introduction of the supreme court could herald the first steps towards the type of rigid written constitution adopted in the United States.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Before the hon. Gentleman reaches his coda, I have a question for him. I know that he lives in Huntingdon and represents it, but has he ever calculated the distance between the House of Lords and the proposed new premises? By my calculations, the distance is about 100 yd. That is hardly an ivory tower, miles away, far out of sight and mind.

Jonathan Djanogly (Conservative, Huntingdon)

Many Members have spoken about the special historical significance of these premises. Indeed, the hon. Gentleman pointed out that the execution warrant of Charles I was signed in Westminster Palace, so he makes my point for me.

As Lord Rees-Mogg stated in the Select Committee in the other place, there must be serious concerns about the developments that would follow the creation of a supreme court. Would such a court begin to debate whether it should in fact respect the very cornerstone of our British constitutional system—the supremacy of Parliament? As we shall no doubt consider in detail in relation to clause 109 later on, the other place would also lose the valuable input of the Law Lords.

There are so many more arguments that can be ranged against the Government's supreme court proposal, but I cannot sit down without touching on one of the most significant—the cost of the supreme court. Members will need no reminding that the Government's estimates—or should I say the estimate emanating from the ex-Minister for the dome?—are a capital outlay of £30 million. The Minister said that refurbishment would be cheaper than new build, but let us see where the Government get to. We say it will be £50 million, and how much more? Who knows? On top of that, there will be yearly running costs of £8 million, as my hon. Friend the Member for Beaconsfield made clear, compared with only £168,000 for the Appellate Committee at present.

I repeat what I said on Second Reading—that we will be far from surprised if those figures do not grow significantly by the time the money is actually spent. How can those costs be justified to the British public when, as my hon. Friend said, we can all agree on much more pressing uses for that amount of money? Without even venturing beyond the bounds of the justice system, there would be many better uses.

This unnecessary new supreme court is not a priority for the people of Britain and does not even command the full support of the Law Lords. It will damage our constitution and the high regard in which the Law Lords are held at present. The Government should desist from their attempts to force the proposal through during the remainder of this Parliament. Our view on the proposal could not be stated more clearly and simply than by quoting the Government's former Chancellor, Lord Irvine:

"a sufficient case has not been made for the abolition of the Appellate Committee of the House of Lords and its replacement by a separate new supreme court."—[Official Report, House of Lords, 10 June 2002, Vol. 636. c. WA3.]

The Government have completely failed to convince us on this issue and we ask that amendment No. 350 be put to the vote.

Clause 21 — First members of the Court

Chris Leslie (Labour, Shipley)

Clause 21 provides for the first judges of the supreme court to be the Lords of Appeal in Ordinary who hold office at the date of commencement. This is a one-off provision to allow for the transition of members of the Appellate Committee of the House of Lords to the supreme court. The effect of the clause is that, on establishment of the court and immediately before commencement, Lords of Appeal in Ordinary will become the first supreme court judges. The senior Lord of Appeal in Ordinary before commencement will become the president, and the second senior Lord of Appeal in Ordinary before commencement will become the deputy president of the supreme court.

The clause will ensure a smooth transition between the present arrangements and the new ones, which is very important. In the same way as the supreme court will take over the jurisdiction of the Appellate Committee, the judges who sit in one will move to sit in the other. They have already been selected as the judges best suited to sit in the UK's highest court, and it would be unnecessarily disruptive to suggest that any separate selection procedure was necessary to identify the first members of the new supreme court. Schedule 9 provides detailed arrangements for the handling of cases that might be in progress at the time of transition. That is why the clause should stand part of the Bill.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for outlining those arrangements, but I return to a point that I raised in an earlier debate that can be raised now just as easily. I hasten to add that this is not an objection to the Government's position—I simply want a bit of clarification.

Currently, there is no president or deputy president of the Law Lords, although I understand that, in practice, they operate an informal system by which the senior Law Lord discharges certain duties and has responsibilities for the good organisation of their work. Despite that, it is an exceptionally collegiate structure, which marries very well with the informality that we debated earlier, and I get the impression that both Government and Opposition Members wish to preserve that in the new supreme court structure.

The Government are sufficiently comfortable with those arrangements to make the point in clause 21 that in any transitional provision the senior Law Lord and the second senior Law Lord will simply become president and deputy president respectively. However, when we go on to consider the process for selecting the members of the court, we realise that all this will become quite complicated. Not only a system for selecting ordinary members of the supreme court but a special system—or at least a similar but particular system—for selecting the president and the deputy president will be required. I want to draw the Minister a little on the Government's reasons for wishing not only to set up a supreme court but to create those two formal positions, rather than relying on the more informal structure that pertained previously.

Patrick Cormack (Conservative, South Staffordshire)

As an unrepentant conservative who sees absolutely no need for the changes, I underline the point that my hon. Friend made when he talked about the collegiate nature of the body. I do not want a supreme court and I see no need for one. It is being visited on us unnecessarily. If we are to have it, we do not need to formalise its structures in the way that the Minister outlined and the Bill proposes. I do not want a proliferation of titles, as the members of the collegiate body are equals. I would prefer the informal arrangement that pertains at present to pertain in the supreme court.

Chris Leslie (Labour, Shipley)

We do not propose to end the collegiate nature of the final court of appeal in our country—far from it. However, we want to make important improvements to the system. Clause 21 has not been over-criticised, not least because Conservative Front Benchers have realised that there is virtue in bringing greater transparency and formality to the appointment process, rather than having candidates emerging and then being appointed by Her Majesty on the advice of the Prime Minister without a clear and transparent process.

Patrick Cormack (Conservative, South Staffordshire)

I am all for emerging.

Chris Leslie (Labour, Shipley)

We will have to see whether the hon. Gentleman ever emerges in that context. We certainly do not want the proliferation of titles. Indeed, the title of Lord of Appeal in Ordinary needs to go, and we need to use the simpler title of supreme court justice. However, we debated that earlier.

The hon. Member for Beaconsfield (Mr. Grieve) asked several questions. We need a separate process for the appointment of the president and deputy president of the supreme court, although the process will be similar to that for any member of the supreme court. The holders of the posts will have slightly different jobs. The president will chair the selection committee to select new members and will determine whom to invite to serve as acting judges or on the supplementary panel. He or she will make directions about the composition of sitting panels and will make rules of the court. He or she will also have additional functions specifically pertaining to guarding the independence of the supreme court, namely the appointment of the chief executive, officers and staff. He or she will be involved in consultations around those areas and will work closely with the chief executive on the administration of the court's operation. Given that the post is different, it merits specific attention, instead of simply having an individual emerging from the body.

I think that our proposals are pretty straightforward. When establishing a new court, we have to start somewhere. Clause 21 thus makes provision about the first members of the court at transition, with the existing senior Law Lord becoming the president and existing Law Lords becoming justices of the supreme court. The clause is the right way to proceed and I commend it to the Committee.

Question put and agreed to.

Clause 21 ordered to stand part of the Bill.

New Clause 4 — Representations to the Northern Ireland Assembly

New Clause 5 — Northern Ireland Act 1998: excepted and reserved matters relating to Supreme Court

Chris Leslie (Labour, Shipley)

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

In the Northern Ireland Act 1998, areas of legislative competence are divided into three categories. I know that the right hon. Member for Upper Bann (Mr. Trimble) will know this backwards, but partly for my own benefit, I shall elucidate. The first category is transferred matters, which are the responsibility of devolved government in Northern Ireland, when that is functioning. The second category is reserved matters, which include policing and justice, on which the Northern Ireland Assembly may legislate with the consent of the Secretary of State for Northern Ireland and subject to parliamentary control. Reserved matters are listed in schedule 3 to the 1998 Act. The third category is excepted matters, which are responsibilities retained by the British Government. They are listed in schedule 2 to the 1998 Act.

The Northern Ireland Assembly, when active, has the power to make primary legislation conferred on it by the 1998 Act broadly according to those three distinctions. New clause 5 will simply ensure that the new UK supreme court will be identified as an excepted matter in schedule 2 to the 1998 Act. It also makes it clear that rights of appeal to the UK supreme court and legal aid for such appeals will be reserved matters under schedule 3 to the 1998 Act. That is the current situation that applies to the House of Lords. Legal aid is already dealt with by Orders in Council, and the Northern Ireland courts are a reserved matter. We are taking the opportunity to clarify the situation by amending schedule 3.

David Trimble (UUP, Upper Bann)

I wish to ask a question about terminology, although the Minister may have dealt with it in earlier proceedings on the Bill. The phrase "Supreme Court" in new clause 5 refers to the body that will unfortunately replace the House of Lords in its judicial capacity, but does not refer to the Supreme Court of Northern Ireland, which presumably will require a new name in the same way as the Supreme Court of England and Wales will require a new name. What will the new name of the Northern Ireland body be?

Chris Leslie (Labour, Shipley)

The body will be called the court of judicature in Northern Ireland—for completeness, the body in England and Wales will be the senior court.

By making the change to schedule 3 to the 1998 Act, new clause 5 will ensure that the position of the new UK supreme court will exactly reflect the current status of the judicial function of the House of Lords, so the status of the final court of appeal for Northern Ireland will not be altered. The new clause reflects and preserves existing devolution arrangements, so I hope that the Committee will accept that it is effectively a consequential aspect of the wider principles that we debated earlier.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Clause 37 — Jurisdiction

Annabelle Ewing (Scottish National Party, Perth)

I beg to move amendment No. 366, in page 17, line 23, leave out 'An' and insert 'No'.

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

With this it will be convenient to discuss amendment No. 367, in page 17, leave out lines 24 and 25.

Annabelle Ewing (Scottish National Party, Perth)

The clause sets out the jurisdiction of the so-called supreme court. In its present form, it provides for final appeals in civil cases in Scotland, which currently lie to the House of Lords, to lie instead to the new supreme court. Amendments Nos. 366 and 367 would, in effect, delete that provision by amending clause 37 so that no final appeal in civil cases in Scotland would lie to the supreme court. I made a detailed speech on Second Reading setting out my thoughts on the clause and it would not be appropriate to go over the same ground at length today, but I shall state briefly the principal reasons behind the amendments.

First, the amendments would end the 18th-century anomaly whereby final right of appeal in Scots criminal law cases lies—quite properly—in Scotland, but final appellate jurisdiction in Scots civil law cases still lies south of the border. In post-devolution Scotland, that arrangement is illogical, unnecessary and undesirable. The second reason relates to the structure of the court and the system that will be operated as a result. In Scotland, serious concerns have been voiced by senior legal figures about the negative impact that the new supreme court system will have on the integrity of Scots law. I submit that those concerns have not been sufficiently addressed in the Bill.

It is clear that the new supreme court will not be entirely distinct and separate in all respects from the administration of justice south of the border, as is required by the 1707 treaty of Union. We see, for example, that the new Lord Chancellor—a Department for Constitutional Affairs Minister—will not only be responsible for appointing the chief executive of the supreme court but will retain some functions relating to the working of the judiciary in England. In addition, funding for the supreme court will, in effect, come within the DCA's overall budget. The proposals for the court therefore fall foul of the treaty of Union by not providing a system that is entirely distinct and separate in all respects from the administration of justice south of the border.

It is time to repatriate to post-devolution Scotland final appellate jurisdiction in Scots civil law cases. The Bill as it stands represents a missed opportunity, which the amendments are designed to rectify. Given the constitutional importance of the matter, it is a great pity that no other Scottish Member from the other parties has bothered to turn up to this key debate, just as they did not turn up for Second Reading.

Keith Vaz (Labour, Leicester East)

As the hon. Lady knows, I am not a Scottish Member, but does she agree with me that it is incredible that there are no Conservative Back Benchers present? After the fuss they made yesterday about the constitutional importance of the Bill, they cannot be bothered to turn up to listen to this important debate.

Annabelle Ewing (Scottish National Party, Perth)

I had not noticed that, so I am grateful to the hon. Gentleman for pointing it out. It is indeed rather odd, given that the Conservatives argued at great length on Second Reading for the time for consideration of this important Bill to be extended. Not only are there no Conservative Back Benchers present, but the sole Scottish Tory MP, the so-called shadow Secretary of State for Scotland, the hon. Member for Galloway and Upper Nithsdale (Mr. Duncan), has not bothered to turn up either.

Given the constitutional importance of the clause and the fact that it relates directly to the integrity of the Scots legal system, I shall seek to divide the Committee on the amendment.

Ross Cranston (Labour, Dudley North)

I oppose the amendments. I do so, first, for selfish reasons. English law has benefited enormously from the Scots' contribution in terms of both personnel and the substantive law. For their contribution of personnel, we need only look at the great jurist Lord Reid—a Scottish Law Lord, a former Advocate-General, I believe, and a Member of this House. For their contribution to the substantive law, I mentioned on Second Reading the case of Donoghue v. Stevenson: we have benefited because civil cases have come from Scotland and, conversely, Scotland has benefited as well. Because of the way in which jurisdictional limits operate in courts in England, the smaller cases, but cases that none the less involve important points of principle, do not always come to the highest courts. The Scots civil cases that come to the House of Lords provide that opportunity for law making. Returning to personnel, Lord Rodger of Earlsferry, an eminent Law Lord, is an example of one who can bring that dimension of Scots law—the heritage from Roman law—to decision making in our highest court of appeal.

When considering devolution cases, the House of Lords and the Privy Council have been highly sensitive to the Scottish dimension. Not only has there been a substantial Scottish presence on the relevant appellate body but there has been a majority of Scottish judges deciding devolution cases in the Privy Council. Let me quote a Scottish advocate, Aidan O'Neill QC, who wrote:

"The somewhat surprising (and surely unintended) result of this might be thought to be an effective Scottish take-over of England law when matters of Convention rights are raised in the UK Privy Council".

I simply do not understand the rationale behind the amendments.

Annabelle Ewing (Scottish National Party, Perth)

The hon. and learned Gentleman will be aware, since he has quoted a senior advocate, of the serious concerns expressed by the Faculty of Advocates about the proposals in general. As for his specific point about the composition of the panel and the number of judges, the faculty expressly called for a majority of Scottish judges on the panel dealing with Scottish cases.

Ross Cranston (Labour, Dudley North)

As I said, that has happened in a number of the important devolution cases. I repeat, I cannot see the rationale for the amendments.

Dominic Grieve (Conservative, Beaconsfield)

I endorse every word that the hon. and learned Gentleman has said. I agree that the fact that there is in the Law Lords at present, and will be in the supreme court, the ability to apply common principles to civil jurisdiction in England and in Scotland has been of inestimable advantage to the development of our jurisprudence over the centuries. The fact that the two systems are different but based on the same philosophical principles means that the tension in differences of approach can be examined and ideas that start in one country can be adopted by the other. Such things are what the substance of being a united kingdom is all about, but at the same time they allow within the framework of the devolution settlement—and did so even before devolution, as can be seen in the preservation of the sole right to criminal jurisdiction in Scotland—the autonomy of the different parts. That is one of our great national success stories.

I disagreed profoundly with the hon. Member for Perth (Annabelle Ewing) when she described the arrangement as an 18th-century anomaly. She might think it anomalous today, but it certainly was not anomalous in the 18th century. It was the logical thing to do in view of the desire of the two Parliaments coming together, and that desire has continued ever since. If the amendment is pressed to a Division, I shall vote against it.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I support entirely the thrust of the arguments made by the hon. Member for Beaconsfield (Mr. Grieve) and the hon. and learned Member for Dudley, North (Ross Cranston) against the amendments. There are huge benefits in a system that allows one of the Lords of Appeal in Ordinary—under the Bill, they will become supreme court justices—to come from Scotland. They have always played a significant part, and have made a contribution. Scotland has been well represented at that level. The last Lord Chancellor but one was a Scot. The highest reaches of the United Kingdom legal decision-making process has benefited from Scottish participation.

The logic of the argument made by the hon. Member for Perth (Annabelle Ewing) is that there would be no such participation, and Scots would not be nominated at that level. That is an implication of independence— a country pulls itself away entirely—but we have benefited greatly from that mixture.

Annabelle Ewing (Scottish National Party, Perth)

The hon. Gentleman will be aware that the Bill includes an express provision that the judgments of the new court outwith their jurisdictional aspects are not to be binding but merely persuasive. How do his arguments sit in light of that fact?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

With respect to the hon. Lady, that is not particular in relation to Scotland. There has never been perfect unity—we are a united kingdom to which four different countries contribute. The Scottish position is different from the Northern Irish and the Welsh position. Like my colleagues, I believe that it is better to take the Scottish contribution to our legal system up to the top. We have benefited significantly from that contribution, and some of the greatest jurists have been Scots. The United Kingdom should continue to benefit from that at the highest possible level.

Chris Leslie (Labour, Shipley)

I agree with everyone who has spoken except, of course, the hon. Member for Perth (Annabelle Ewing). It is a pity that she decided to divide the Committee before hearing the rest of the debate.

Iain Luke (Labour, Dundee East)

Is the Minister aware that the Scottish Parliament has had an opportunity to debate this fully? Scots law will be protected under clause 37.

Chris Leslie (Labour, Shipley)

My hon. Friend is right. On 19 January, the Scottish Parliament passed a Sewel motion endorsing the establishment of a UK supreme court, with 63 votes in favour and 56 against. That was the decision of the Scottish Parliament, I am glad to report.

The amendments would simply remove Scottish civil appeals from the jurisdiction of the UK supreme court. Clause 37, and schedule 8, which it introduces, make provision for the jurisdiction of the new supreme court. We propose that its jurisdiction will be the same as the jurisdiction of the Appellate Committee of the House of Lords in appeals from England, Wales, Scotland and Northern Ireland, together with the jurisdiction of the Judicial Committee of the Privy Council in relation to devolution issues. The supreme court will be a superior court of record, as are the House of Lords and the Judicial Committee of the Privy Council.

Clause 37 is critical, because it ensures that current jurisdictional arrangements are preserved, thereby ensuring consistency in approach between the new and the old regimes for people seeking a judgment from the highest court in the land. Those arrangements include the appeal process and the types of appeal from each jurisdiction, including leave requirements and routes of appeal.

Annabelle Ewing (Scottish National Party, Perth)

The Minister would be hard pressed to find one Sewel motion that has not been passed by the Labour-Liberal Scottish Executive. However, can he explain to senior legal figures in Scotland and to me what on earth is the logic of sending a final appeal down to a court in London, when the judgment is not binding on any other part of the UK? The opposite also obtains. What is the logic of that in post-devolution Scotland?

Chris Leslie (Labour, Shipley)

It is the same logic that applies to any part of the United Kingdom that sends its appeals to that court or to the new supreme court. The hon. Lady could make the same argument for any other part of the United Kingdom, and the change that she has proposed would not be beneficial. As my hon. and learned Friend the Member for Dudley, North (Ross Cranston) pointed out, it could be detrimental. The hon. Lady suggested that the passing of a Sewel motion is a minor irrelevance, but it is democracy. In fact, it is the choice of the people of Scotland themselves who, through their elected representatives, backed the creation of a UK supreme court. That was Scotland's choice, and I am glad that it was passed by the Scottish Parliament.

The decision to transfer the devolution jurisdiction of the Judicial Committee of the Privy Council to the supreme court will create a single apex to the UK's judicial systems. Previously, that was not possible, because of the need to avoid the constitutional absurdity of a court hearing a dispute between the UK Parliament and a devolved Administration where the court is a Committee of one of the parties—in other words, the UK Parliament. I forgot to mention it earlier, but that is another reason for creating a supreme court and removing an existing anomaly.

In discussing the proposed repatriation of civil appeals, it is significant, as I said, that a Sewel motion was passed. There is a 300-year-long tradition for appeals in civil matters legitimately to come to a UK-wide court of appeal. The hon. Lady's arguments about the Act of Union of 1707 are misguided, and nothing in the Bill is inconsistent with it. The overriding fact in this debate is that the Bill preserves the essential nature of appeals to the House of Lords. The route of appeal will lie, from the same courts, in the same cases and in the same way, to the supreme court, just as it does to the House of Lords. I therefore urge the Committee to agree to the clause unamended and to reject the amendments.

Annabelle Ewing (Scottish National Party, Perth)

Briefly, I have not heard anything in our short debate that obviates the need either for the amendments or for a Division, which I shall still seek. Scots law is entirely separate and is devolved to the Scottish Parliament. We have a new political structure in the United Kingdom, which the Minister may not yet have caught up with. He used the Sewel motion as a purported justification for the clause, but it is a political mechanism, and provides no justification for the provisions of the Bill that, as I explained in detail, we are seeking to amend. Fifty-five Sewel motions have been passed since 1999. They represent devolution in reverse and are not to be commended.

The Minister referred to the treaty of Union, but he has failed on Second Reading and in Committee to address the specific concerns expressed by senior legal figures in Scotland about the compatibility of the Bill's proposals with that treaty. The proposed new system and structure will not be entirely distinct and separate from the administration of justice south of the border, and he did not seek to deal with those specific points at all. I therefore seek to divide the Committee on amendment No. 366.

Chris Leslie (Labour, Shipley)

Briefly, clause 37 and schedule 8, which it introduces, together provide for the jurisdiction of the UK supreme court, and transfer over the current arrangements, ensuring that they are preserved. Effectively, that is what clause 37 does, and I commend it to the Committee.

Question put and agreed to.

Clause 37 ordered to stand part of the Bill.

Schedule 8 agreed to.

Clause 109 — Parliamentary disqualification

Jonathan Djanogly (Conservative, Huntingdon)

I beg to move amendment No. 339, page 48, line 27, leave out subsections (1) and (2).

Jonathan Djanogly (Conservative, Huntingdon)

My hon. Friends and I tabled the amendment and new clause with the intention of retaining the ability of any future judges of the supreme court to sit in the other place.

The usual concerns are raised regarding the independence of the judiciary from the legislature. A convention already exists, however, in relation to the present Law Lords—that they will exclude themselves from debates and voting in circumstances where this is properly left to the remaining Members of the other place. As Lord Bingham of Cornhill's statement in 2000 made clear, the Law Lords will not speak or vote on matters which are strongly party political or which they believe would affect their ability to judge a case involving the matters under discussion. If an issue arises in a case as a result of a comment that a Law Lord has made during a debate, the Law Lord in question will not hear that case. That does not take us outside the general principle that the senior judiciary must be careful not to be seen to prejudice their judicial work through extra-judicial activities, an example being the giving of opinions in lectures.

The input of the current Law Lords is highly valued in the scrutiny of legislation, particularly in Committee, where they bring their technical experience of interpreting legislation. In addition, they contribute informed criticism on social issues, drawing on their practical experience in the courts. They also help to promote the type of legal reform measures that can sometimes be a low legislative priority for Governments.

All that being the case, there is little weight to the argument that the Law Lords, or if necessary their successors in the supreme court, could not maintain or be seen to maintain their independence in judicial matters, and therefore need to be excluded from the other place. As Lord Hope of Craighead said in Committee in the other place, the most that any perceived imperfections in this area might call for is a Standing Order to formalise the successful present conventions. However, I am afraid that that would play into this Government's mindset of total disregard for our conventions, which have served us well in years gone by and still do so today. I have no doubt that the quality of debate in the other place, particularly on legal issues, will be much reduced as a result of the Bill. That is highly regrettable.

The hon. and learned Member for Dudley, North pointed out that it is helpful for the Law Lords to sit in on proceedings of the House so that they are kept up to date on the issues. All that will go, on the basis of this Bill. I note the Government's desire for a separation of powers, but ask again what is the real purpose of the measure. As for whether things will be better as a result, I am afraid that I cannot see how that will be the case.

Keith Vaz (Labour, Leicester East)

Is not the best way to guarantee independence to allow the Lords to act as they are—as the House of Lords—without the presence of members of the supreme court? Is not that the best way to ensure that there is no cause for misinterpretation of anything that they do or say?

Jonathan Djanogly (Conservative, Huntingdon)

It is interesting that throughout our debates on the Bill no Member on either side of the House has suggested that the House of Lords is at all party political or that it has acted wrongly in any way. In fact, people were only too keen to say how impartial they are. The hon. Gentleman must consider his question in the context of history, precedent and what happens in practice. In practice, the court works, and we wish to keep it that way. We believe that the Bill will distort that, which is why we tabled the amendments.

Chris Leslie (Labour, Shipley)

I want briefly to come back at the hon. Gentleman on some of his points and, I hope, to leave some time for the rest of the timetabled debate.

The Bill will add judges of the supreme court to the list of persons disqualified from membership of the House of Commons and the Northern Ireland Assembly, and consequently the Scottish Parliament and National Assembly for Wales in other legislation. A separate part of clause 109 will suspend the sitting and voting rights of full-time judicial officeholders in the House of Lords, while not wholly removing their membership of the Lords or their peerages.

The amendments are clearly contrary to one of the key principles behind the proposals for a separate supreme court and for the functional separation of the judiciary from the legislature. The supreme court must be able to demonstrate the independence of Parliament's Upper Chamber, and that would be impossible if all the members of the court continue to be Members of the House of Lords entitled to take a full part in its proceedings, which would be the effect of the amendment. Law Lords are judges, not legislators. We must maintain that proper distinction and go on to enhance it with the creation of the supreme court justices. The separation between the two functions must be clear. In practice, we propose applying to the House of Lords provisions that have long applied in the House of Commons. Full-time members of the judiciary should not also be Members of Parliament, able to speak and vote on legislation that they will subsequently be called upon to interpret. The first judges of the supreme court will be the current Lords of Appeal in Ordinary, and they will retain their peerages but be disqualified from sitting and voting in the House.

It has been said that removing the sitting and voting rights of the judiciary will lead to a loss of expertise in the House of Lords. However, members of the supplementary panel—retired supreme court judges and other senior judges in the first five years of their retirement—can be full Members of the House alongside other part-time judges. It will also become the convention that judges of the supreme court are offered peerages on their retirement. We recognise that the judiciary has made an important contribution to the work of the House of Lords, but that cannot override the clear need for a visible, separate and independent supreme court while the judges are conducting their full-time job.

Edward Garnier (Conservative, Harborough)

I accept the Under-Secretary's argument, although I do not agree with it, about the need for a clear separation between the House of Lords as a part of Parliament and the judiciary. However, he undermines his argument by saying that those on the supplementary panel would be entitled to participate in the work of the Judicial Committee or the supreme court and none the less remain active members of the House of Lords as a legislature. If he is to be as pure as he wishes, surely he should be consistent and exclude or include everybody.

Chris Leslie (Labour, Shipley)

If we took that attitude, the hon. and learned Gentleman, as a member of the part-time judiciary, might be in some difficulty. We need to draw a line on the basis of practical common sense. We do not want members of the full-time judiciary to have a concurrent full-time legislative role. From time to time, because of illness or bringing in extra individuals, people on the supplementary panel may need to help out at supreme court level. It would be prudent and reasonable to allow them to continue with their full membership of the House of Lords.

I have outlined the line that we need to draw. Going further than that would mean change in this House, too.

John Redwood (Conservative, Wokingham)

rose—

Chris Leslie (Labour, Shipley)

I should like to leave a little time for further debate after I have finished, but I shall give way briefly.

John Redwood (Conservative, Wokingham)

I was about to make a suggestion to help further debate. Several hon. Members wish to speak and the knife will fall too soon. Will the Under-Secretary adjust our sitting hours so that we can discuss the issue properly? I am sure that, under pressure, we could still finish at his chosen time this evening, but it is silly that we do not have enough time to discuss the subject of our current debate.

Chris Leslie (Labour, Shipley)

That is a matter not for me but for the Chairman and the House generally.

Mechanisms will be put in place so that even though the full-time members of the judiciary will be separate from the legislature, they will continue to be able to make their views known to Parliament. Clause 6 provides for senior members of the judiciary to make written representations. That will adequately aid the dialogue between the different branches of our constitution. The senior judiciary will be free to appear before Select Committees and make representations to both Houses of Parliament.

It is important to separate the full-time judiciary from the legislature, and I hope that the amendments and new clause 7 will be rejected if not withdrawn.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Government's proposal, which we support, does not imply any criticism of the current conduct of the Lords of Appeal in Ordinary. Everybody accepts that they have done their job impartially and managed to keep out of the party political debates in the Lords. They should not therefore feel that the proposal is a criticism.

The amendments are slightly bizarre. Amendment No. 339 would remove the current bar on senior judges being in the Commons. New clause 7 deals with the House of Lords, which is the more substantive issue. On that point, we share the Under-Secretary's view, for a reason at which he hinted but on which he did not elaborate. Someone who has been a member of the supreme court—the most senior court in the land—could later become a member of the legislature. Someone who does a part-time judicial job, such as the hon. and learned Member for Harborough (Mr. Garnier), who sits as a recorder, can be a member of the legislature. It is therefore entirely logical that if judges want to be consulted or have an input, they can do that. They can be asked to give evidence to Select Committees and they can submit evidence in any review. The supreme court will be quite entitled to give a view on any matter that it deems appropriate. That will surely be done in a proper way, so that people can see that the judges' views are being given to Parliament—both the Commons and the Lords—and that Parliament will then decide what to make of them. Appointed judges will not have been elected to pass laws or sit in the legislature. That distinction remains important, which is why we shall join the Government in resisting these amendments.

Tony Wright (Labour, Cannock Chase)

I was going to make two quick points, but I am now going to make three. The first, which I had not intended to make, is that, having heard the previous exchanges on this issue, I now have worries about recorders sitting in the House of Commons. Of course, I am not referring personally to the hon. and learned Member for Harborough (Mr. Garnier), but there is a principle involved here. We have embarked on a process of logical constitutional development, and at some point we shall have to follow it through to its logical conclusion. I do not want to alarm the hon. and learned Gentleman, but that is clearly the direction in which we shall have to travel.

My second point is that the amendment would simply subvert the principle behind the entire Bill, which is to try to clarify the constitutional relationships here. Having embarked on the process, we clearly have to do that. I note in passing that the Lord Chief Justice, Lord Woolf, has recently been arguing for the logic of what is being proposed. One of the reasons why he is still having an argument with the Lord Chancellor about who should decide whether judges should take part in politically contentious inquiries is that he says that the logic of what we are doing in the Bill is to separate the judiciary from politically contentious areas. If we follow that logic, it is clearly implausible to reinsert these provisions into the Bill.

Thirdly, when we talk about peerages in this context we get into a terrible muddle. That is because we always confuse the question of whether a peerage is designed to enable people to give service in a second legislative Chamber, or to confer an honour. We have to decide, in the case of judges and everyone else, whether we want to confer an honour or to deploy those people for service in a second Chamber. We are not resolving that issue in the Bill, but I simply note that we shall have to do so at some point; otherwise we shall keep returning to contradictions such as this.

Edward Garnier (Conservative, Harborough)

The hon. Member for Cannock Chase (Tony Wright) is perfectly right, and I think that the Minister failed to understand the logical extension of his own arguments. If the hon. Member for Cannock Chase wants to be a purist, fine. In that case, a person should be either a Member of Parliament of one kind or another, or a member of the judiciary. The hon. and learned Member for Dudley, North (Ross Cranston) and I are no doubt quivering in our boots every night, lest we be expelled either from the House or from the courts. However, I think we can probably cope. We give our services as part-time judges—recorders—as a public service, not because it earns us huge sums of money. It also informs the work that we do here as legislators, and vice versa.

I do not however want to dwell on that argument in the two or three minutes that we have left for this debate. While accepting the purist logic of the hon. Member for Cannock Chase, I disagree with the conclusion that he has reached. I believe that there is a value in Members of the House of Lords sitting as judges as well as being members of the legislature. I fully take on board the point made by the hon. Member for Southwark, North and Bermondsey (Simon Hughes) about amendment No. 339. As I understand it, full-time judges are already excluded from becoming Members of the House of Commons or the Northern Ireland Assembly, and I assume that the amendment was tabled to provide us with an opportunity to debate the wider issue. It is certainly not an amendment based on logic, if one reads the wording.

There is some merit in not disqualifying the senior judges from the Committee work of the House of Lords or, in particular, from the Joint Committee work of both Houses. I am looking around the Chamber to see whether I can spot Members who have served on Joint Committees at the same time as I have. In fact, the hon. and learned Member for Redcar (Vera Baird) and I served together on the Joint Committee considering the draft Corruption Bill. That was chaired by a retired Law Lord, but sitting Law Lords have chaired such Committees. [Interruption.] If Lord Bridge was a sitting Lord, I take that back. [Hon. Members: "Lord Slynn."] That is right. Lord Bridge died a little while ago. The new Bill would not prevent Lord Slynn from continuing that work, but, say, existing Law Lords chair Committees from time to time, and do a very valuable job. We would lose that. Members may say "Bad luck", but I think it would be a pity to throw out that benefit without any obvious benefit on the other side.

I support new clause 7 in so far as it clarifies what is possibly implied in the Bill. The Government, the Prime Minister and the Queen are not precluded from making supreme court judges peers, but once they are peers they are precluded from voting and sitting in the House of Lords. I take the point about the confusion between an honour and a job, but I trust that once the Bill is in force the Prime Minister will allow peers to be made supreme court judges.

It being three hours after the commencement of proceedings on the Bill, The Chairman put the Question already proposed from the Chair, pursuant to Orders [17 and 31 January 2005].

Clause 105 — Removal from most senior judicial offices

Chris Leslie (Labour, Shipley)

I beg to move amendment No. 3, in clause 105, page 46, leave out from end of line 17 to 'unless' in line 19 and insert

'or, if the Lord Chancellor is not a member of that House, by another Minister of the Crown at his request.

(4) No motion for the presentation of such an address may be made'.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this, it will be convenient to discuss Government amendments Nos. 4 and 16.

Chris Leslie (Labour, Shipley)

These amendments are consequential on the removal of the requirement that the Lord Chancellor be a member of the House of Lords, which was debated in Standing Committee and agreed yesterday on the Floor of the House.

As drafted, clause 105 provides in that in the House of Lords only the Lord Chancellor may make a motion for the presentation of an address by Her Majesty to remove a senior judge in Northern Ireland.

Government amendment No. 3 provides that, where the Lord Chancellor is not a member of the House of Lords, he or she may request another Minister of the Crown to make a motion to that House for the presentation of an address to Her Majesty for the removal of a person from office as a senior judge. Clause 105 also provides that, before making such a motion in the House of Lords, the Lord Chancellor shall lay before that House a copy of the removals tribunal's report. Therefore, to make that consequential change, Government amendment No. 4 provides that that could be done by the other Minister making the motion.

Government amendment No. 16 makes similar consequential amendments to the post-devolution arrangements governing removal from most senior judicial offices in Northern Ireland. Those arrangements are prescribed in section 12B of the Judicature (Northern Ireland) Act 1978, as substituted by section 6 of the Justice (Northern Ireland) Act 2002.

These amendments are essentially consequential on yesterday's decision by the Committee to remove clause 2 of the Bill.

Patrick Cormack (Conservative, South Staffordshire)

The Minister rightly says that these amendments are consequential on yesterday's decision by the Committee, but he will concede that the Bill must return to the other place after our deliberations here. There will therefore be further opportunity for their lordships to reflect on what has been said in this House, and to pronounce upon it. If the other place reinserts clause 2, or something similar, and requires the Lord Chancellor to be a Member of the House of Lords, I hope that the Government will not insist on their proposals.

It is highly unlikely that we will have to wait until 2006 for a general election, but even so the Parliament Act cannot be invoked for this Bill, as it began in the House of Lords. The Government are likely to get most of what they want, even though the Bill, when it was first presented, was very rough. I therefore hope that they will not reject any insistence by the other place that the Lord Chancellor should be a Member of the House of Lords.

I should be grateful to hear what the Minister has to say about that.

Bill Cash (Conservative, Stone)

I am concerned about the reference in proposed section 12B(1) of the Judicature (Northern Ireland) Act 1978 to holding office "during good behaviour". What do those words mean? Our Parliament was established as a result of the deal struck when the Stuarts abdicated in 1688, and one piece of the resulting legislation was the Act of Settlement of 1700. That and other contentious issues in respect of who governs this country lay at the heart of the great historical events—the civil war, the driving out of James II, the battle of the Boyne, and so on—which collectively are known as the Glorious Revolution.

Another important question at that time was the extent to which judges determined the laws of the land, and the basis on which they did so. The question of whether a judge should be removed because he had infringed the principles of good behaviour were well understood at that time. I am glad to say that the principles that judges accept, certainly on matters of law, are adhered to, as far as we know, in every respect. However, the substitution of quando bene gesserint, which means during good behaviour, for durante bene placito regis, which means at the pleasure of the king, was a fundamental shift. The expression "at the pleasure of the king" was removed because it was clear that the king had such overriding control that he could remove a judge who had the temerity to disagree with the king's assessment of policy on, for example, the suspending power, the dispensing power and so on. The expression "during good behaviour" raises the question of misconduct.

At the end of the Bill there is an interesting amendment that has not yet been discussed. I cannot put my finger on it straightaway, but I would like the Minister to explain the amendment to section 11(3) of the Supreme Court Act 1981 and the way in which misconduct will be dealt with. The Minister may know what I am referring to, but I realise that he may not have a clue.

The significance of the amendment is simply that misconduct in the context of judicial office would today be considered to be corruption, conflict of interests and so on. Not so long ago, things got a bit tricky when a question arose as to whether a judge had a conflict of interests because of his interest in a charity, but I will not go into that now. Generally speaking, I am entirely satisfied that our judges, whether here or in Northern Ireland, are of impeccable character and would not infringe the rules of misconduct, corruption and so on.

Misconduct, under the original proposition of "during good behaviour"—I shall not repeat the Latin for that—was well understood at the time as going much further. It was part of the settlement in 1700 that judges would have regard to the importance of maintaining the stability of the constitution and to the political and constitutional principles underpinning the deal.

What would happen under clause 105 if the question arose—we sincerely hope that it would not— of removing the Lord Chief Justice, Lords Justices of Appeal, judges of the High Court or any other judges who fall within the rubric? Can we be certain that the question of what constitutes good behaviour is clearly understood? We could thus understand from the Minister that good behaviour is not confined simply to what we might generically describe as corruption, which I am certain would not be the case, but that the matter is much wider and involves questions relating to the Oath of Allegiance or matters of that kind.

We might end up in a situation where a judge decided wilfully, or perhaps deliberately—there are various gradations—that the decisions reached by, for example, the European Court of Justice had overriding power of interpretation as compared with the rules that we understand to apply. We discussed them yesterday, and I believe that the Government have accepted the point that I have been making for several years: at the end of the day, the judges of this country are under an obligation, under our constitutional doctrines in the House, to give effect to the latest, inconsistent, clearly and unambiguously expressed Act of Parliament, which would say, for example, that notwithstanding the European Communities Act 1972, we would legislate in relation to immigration and asylum, thereby immediately removing all the current controversies. I should be grateful if the Minister addressed that question—[Interruption.] I shall be glad to give way to my hon. and learned Friend the Member for Harborough (Mr. Garnier) if he wants to intervene.

Edward Garnier (Conservative, Harborough)

I wanted to intervene and then thought better of it, but I shall now take the opportunity my hon. Friend offers me.

It seems to me that clause 105 deals exclusively with the judiciary of Northern Ireland. No doubt the right hon. Member for Upper Bann (Mr. Trimble) will help us further on that point. I was under the impression that justice—the appointment of judges and so forth—had been devolved to Northern Ireland and indeed may have been suspended. Again, the right hon. Gentleman may be able to help us. That is why I thought better of my intervention. My question was unformed so I thought it better not to put it, but if my hon. Friend the Member for Stone (Mr. Cash) would like to continue his remarks without concerning himself with mine, I shall take advice and either keep quiet or make another intervention in due course.

Bill Cash (Conservative, Stone)

I am grateful to my hon. and learned Friend. He touches on an important point. As I said yesterday, with regard to clause 4 and devolution in Scotland, it is unequivocally the case—certainly according to the best constitutional authorities; Bradley and Ewing is a good example—that if we want to legislate in Westminster as the United Kingdom Parliament, irrespective of the passage of the Scotland Act 1998, as a matter of constitutional law, we have the right to do so. There is no doubt of that. The same applies in respect of Northern Ireland, perhaps even more so. I defer to the right hon. Member for Upper Bann (Mr. Trimble) on that point.

This is an important and serious matter, because judges, whatever their eminence and in whatever part of the United Kingdom we are talking about, are governed by the same criteria. The question of misconduct in respect of clause 105 is specifically related to Northern Ireland, but without prejudice to the fact that the United Kingdom Parliament has overriding jurisdiction. The tribunal with responsibility for considering removal, which we shall discuss later, has to go through a series of judgments, which include judgments made by persons of equal standing.

I need not elaborate further. I invite the Minister, if he would be good enough, to give us a proper definition of the words "during good behaviour" in this context. After all, if we are dealing with what the Prime Minister and the Lord Chancellor are likely to do and we then go through the motions of tribunals and the rest, it would be at least important to know that the words "good behaviour" are understood not merely in terms of criminal activity, corruption or whatever, but in relation to dealing with the fundamental question of who makes the final judicial decisions—the note on which I left the Minister last night in the final moments of our debate on the rule of law.

Dominic Grieve (Conservative, Beaconsfield)

In noting what the Government intend to do in respect of these amendments, it might be helpful if the Minister could also amplify the wording of proposed new section 12B on tenure of office. I accept that this is presumably derived from past example, but I am surprised that the only person who could move the motion for the presentation of an address to Her Majesty is the Prime Minister in the House of Commons or, under the old scheme, the Lord Chancellor in the House of Lords and, under the new scheme, his substitute.

Are we to understand therefore that no other Member of the House can table or move such a motion of their own volition, particularly in the other place? If that is the outcome, I am startled. I always understood that such questions were ones for Parliament to determine. Clearly, it may be appropriate for Ministers to trigger the process, but it is not designed to exclude the right of Members of Parliament to move such motions.

Chris Leslie (Labour, Shipley)

indicated assent.

Dominic Grieve (Conservative, Beaconsfield)

I see the Minister is nodding, so he will doubtless be able to provide me with complete reassurance, but I find the wording of proposed new subsection (3) slightly surprising in those circumstances because it appears to exclude that possibility even if that may not be its intention. I should be grateful to the Minister if he would deal with that.

As for the rest of the amendments, the Minister will be aware why we wish to preserve the office of Lord Chancellor, but I fully accept that such amendments are necessary, as that office will disappear at the end of the process. Doubtless, if the other place decides to reverse the amendments that the Government have tabled here, the Minister will have to reconsider the matter.

Chris Leslie (Labour, Shipley)

The hon. Member for South Staffordshire (Sir Patrick Cormack) said that he regretted decisions that we took earlier in Committee and postulated the hypothetical scenario in asking what would happen if the other place were to reintroduce clause 2 on the requirement for the Lord Chancellor to be a Member of the House of Lords and, if it were to do so, whether we would have to reverse these consequential changes. He will not be surprised to hear me say that, as with most hypothetical scenarios, that is entirely hypothetical and it would be premature for me to suppose that that will be the consequence of the other place's deliberations on our amendments, which we made with good grounds and a strong majority opinion in the House. I hope that the other House would respect the view of the elected Chamber on that matter, so it is not unreasonable that we have introduced these consequential Government amendments, which could allow someone other than the Lord Chancellor, if the post holder sits in the Commons, to move motions for the removal of judges in the other place.

The hon. Member for Stone (Mr. Cash) asked a wider question that seemed to suggest that we were broadening the debate from simply discussing these Government amendments. The definition of good behaviour in clause 105 is not technically touched on by these Government amendments, but I am happy—if it is in order, Mrs. Heal—to answer his points since it appears that we may be having a substantive debate at this stage. He asked about the definition of good behaviour, good conduct and so forth. I am sure that he has more historical knowledge about the origin of many of those phrases. I gather that, around the time of the Glorious Revolution of 1688, there was a change from judges holding their offices at the king's pleasure to them doing so during good behaviour. I do not think that the phrase "good behaviour" is defined elsewhere in statute, but it is commonly understood. For example, the last judge who was removed for misbehaviour was apparently a circuit judge who was convicted of smuggling, although I am not sure when that happened. A clear breach of the judicial oath would fall under that category, but decisions must be based on each specific case.

Bill Cash (Conservative, Stone)

I am sure that the Minister is not dodging the question, but he is not addressing it. I am well aware of the point about corruption and criminal activity, but the point that I am trying to get out of him—I am insisting on asking this time—is whether the expression "during good behaviour" covers deliberately deciding to adopt a source of interpretation that is inconsistent with the conventions of our constitutional arrangements in this Parliament and this country. Does he understand what I am saying? If he does not, he will have to come back to the matter.

Patrick Cormack (Conservative, South Staffordshire)

The Minister had better write my hon. Friend a letter.

Chris Leslie (Labour, Shipley)

It might have been appropriate to table an amendment on the matter, but I do not think that the inconsistency or contradiction that the hon. Member for Stone presupposes exists.

The hon. Member for Beaconsfield (Mr. Grieve) asked whether any Member could move a motion for the removal of judges, but I remind him that we are debating the amendments in the context of clause 105, which relates specifically to Northern Ireland. A feature of the settlement in Northern Ireland means that the measure will exclude Members from having the right to move an address in relation to judges in Northern Ireland, but we are not introducing such a provision for judges in England and Wales. It will still be open to any Member to move a motion regarding such judges in theory, but if a motion were moved on behalf of the Executive, that would clearly be the responsibility of specific Ministers in circumstances described elsewhere in the Bill.

Dominic Grieve (Conservative, Beaconsfield)

I am aware that we have set up different structures for Northern Ireland, some of which are dependent on devolution coming into operation. Parliament will continue to have direct responsibility for the Northern Irish judiciary in the interim, so I am worried to learn that it will not be possible for any Member of the House to move a motion because that will be completely at the Executive's discretion. That is a worrying state of affairs and the Government should rectify it.

Chris Leslie (Labour, Shipley)

I am sure that the hon. Gentleman recognises that the wider features of the Northern Ireland settlement mean that arrangements for Northern Ireland are different from those for England and Wales and I am sure that we will discuss such matters when we consider other clauses. We have set out our proposals in clause 105, but the Government amendments do not necessarily impinge on the point that the hon. Gentleman raised.

Bill Cash (Conservative, Stone)

I am sorry to be so persistent on this point. As my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack) suggested, perhaps an exchange of letters would be the simplest way to deal with the problem. I refer the Minister, as a starting point, to page 372 of the important tome "Bradley & Ewing", which sets out the issues clearly. It says:

"assuming that there was no intention to alter the effect of the Act of Settlement by the revised wording now contained in the Supreme Court Act 1981, it is theoretically possible for a judge to be dismissed not only for misconduct, but for any other reason which might induce both Houses to pass the necessary address to the Crown".

I am especially interested in the words

"but for any other reason"

because there is not a question simply of misconduct. These are weighty matters and, if I may say so, this is an example of the deep waters into which we are getting. The Bill is setting out in statute provisions that have been covered by profound constitutional arrangements that have developed over centuries. It does not follow that every single thing that has been done in the past was right, but the Bill is not being handled in the correct way.

Chris Leslie (Labour, Shipley)

I understand the hon. Gentleman's point. As he has done in several debates, he brandishes his copy of "Bradley & Ewing" and keeps his finger at page 372—he is very attached to that weighty tome. Perhaps correspondence might be a good idea, although my understanding is that Parliament is sovereign in all matters on which it legislates. That principle should overcome some of his concerns.

We have departed somewhat from the Government amendments. I remain of the view that they are robust and valid and hope that the Committee will accept them.

Amendment agreed to.

Amendment made: No. 4, in clause 105, page 46, line 25, leave out from 'and' to end of line 26 and insert

'a person making such a motion in the House of Lords shall lay a copy of the report before that House before making the motion.'.—[Mr. Leslie.]

Question proposed, That the clause, as amended, stand part of the Bill.

David Trimble (UUP, Upper Bann)

I rise to comment briefly on the clause in the hope that the Minister will explain the scheme of things. Having only glanced at the legislation, my understanding is that the provisions of clauses 105 to 107, which apply to removal from senior judicial offices in Northern Ireland, will take effect until such time as the Justice (Northern Ireland) Act 2002 comes into operation, whereupon they will be replaced by the provisions of sections 6 to 8 of that Act. I think that that is what is intended.

Chris Leslie (Labour, Shipley)

indicated assent.

David Trimble (UUP, Upper Bann)

I see the Minister nod, which is rather disappointing for me, because when I first read the clauses, I thought to myself, "Oh, goody—they've written the First Minister and the Deputy First Minister out of the process." Under the 2002 Act, the First Minister and the Deputy First Minister have a significant role, but it is a role with which I was never comfortable, which is one of the reasons why I opposed the relevant provisions of the 2002 Act and the Justice (Northern Ireland) Act 2004.

The provisions on the appointment and removal of judges will be bad in practice. They open the door to far too much political influence on the process. The present system, although superficially it appears to involve politicians in the administration of justice, works well in fact, whereas the Government's proposals, which are allegedly designed to remove the appearance of political interference, will in fact result in greater political interference. That might not be the intention. Although the intentions behind the legislation may be good, I think that the consequences in almost every case will be a deterioration in the quality of the system.

I rose simply to make sure that my understanding of the legislation is correct. I am sorry to find that it is and that my hope that the First Minister will no longer be involved is to be dashed.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry to return to an issue that I raised during debate on amendments to the clause, but until our debate started, I had not picked up on it, and nor, I suspect, had the Minister. When I asked him whether the clause would fetter the right of a Member of either House to move a motion for the removal of a judge, he initially nodded assent, but was then handed a note from the Box saying that that was indeed the position for England and Wales, but not for Northern Ireland. That makes me anxious. I fully appreciate that there is a devolution settlement in Northern Ireland. When it is introduced—and I am mindful of the views of the right hon. Member for Upper Bann (Mr. Trimble) and his criticism of the arrangements—it is intended, for better or for worse, to work as an interim arrangement. As the Minister knows, interim arrangements in Northern Ireland can last a long time.

David Trimble (UUP, Upper Bann)

The substance of the interim arrangement that the hon. Gentleman does not like is part of the 2002 Act. By criticising that arrangement he is also criticising the arrangement in that Act, and I am wholly with him on that point.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the right hon. Gentleman. I remember the 2002 Act, having played a part in its passage through the House. I remember discussing those issues at that time and expressing concern. Indeed, I think that I did so on that very point, but my mind is not completely clear about every detail of a Bill that we discussed two years ago. In the meantime, a devolution system is not in operation, so the Parliament of the United Kingdom keeps special responsibilities in respect of the Northern Ireland judiciary. In those circumstances, it is strange that the only way in which a Lord Chief Justice, Lord Justice of Appeal or judge of the higher court can be removed is by passing a resolution of both Houses in the usual way but that the only two people who can move the motion are the Prime Minister and, in the other place, the Lord Chancellor or his nominated substitute.

Let us consider an example. A judge behaves controversially in Northern Ireland and his conduct is called into question. A decision is made to remove him, following a report by a tribunal, but for reasons of political expediency, the Prime Minister decides that it would not be appropriate to do so. Under the present arrangements, it would be impossible for a Member of either House to move a motion to remove that judge. I am happy to acknowledge that the chance of such a circumstance arising is fairly remote, but we are abdicating our responsibility as a Parliament and as a House by surrendering our right to move a motion, while we still have responsibility for the matter, to the Prime Minister and the Lord Chancellor or his nominated substitute.

When the devolution arrangements come in, because they allow greater autonomy for the Northern Ireland Executive, it could be argued that the Prime Minister is required to provide ratification of a procedure that remains with Northern Ireland for the most part. In those circumstances, there is a different argument about whether other Members of Parliament should get involved. In the interim—I suspect from the way in which the Minister presented the case, that this is unintentional—we are surrendering a responsibility that we ought to keep.

Bill Cash (Conservative, Stone)

My hon. Friend is making an interesting point. With reference to the good tome that I have brought with me, motions can usually be moved by any Member of the House, so allowing only the Prime Minister to do so is a significant shift. That consolidates the point that my hon. and learned Friend the Member for Harborough (Mr. Garnier), other Members and I have repeatedly made. These are deep waters. Furthermore, I touch on the fact that in Scotland judges hold office ad vitam aut culpam, meaning that they cannot be removed except on the ground of misconduct. But the tribunal describes the position as unfitness for office

"by reason of inability, neglect of duty or misbehaviour",

so the deeper we go into the subject, the more problems are thrown up. The Prime Minister might easily take an entirely different view from a Member of the House.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my hon. Friend. Pending devolution, responsibility lies squarely with Parliament and the Government. As the maintenance of a sound judiciary is very much one of our parliamentary responsibilities, I am coming to the conclusion—it was not my position when we started debating the clause; it had never occurred to me—that unless the Minister gives me an assurance that he will revisit the matter and table necessary amendments if required, I shall invite the House to divide on clause stand part. The House should not abdicate to the Prime Minister, the Lord Chancellor or anybody else its central responsibility, if it considers that a judge within its area of jurisdiction is misbehaving, to move a motion for his removal.

I hope the Minister will respond positively. The matter has arisen in the course of debate, but it is more than academic.

Edward Garnier (Conservative, Harborough)

I am encouraged by my hon. Friend. I have not found all the amendments tabled by him and my hon. Friend the Member for Huntingdon (Mr. Djanogly) wholly agreeable, but most have been interesting. On this occasion, we are opening up an interesting area of constitutional crisis.

The Government have made many mistakes, but they never do anything by mistake. Here we are witnessing the sucking of power from the Chamber to the Executive. We all know that the Executive not only sit in, but sit on the Chamber. When Ministers say, "This is a matter for Parliament" or "This is a matter for the House", of course they mean nothing of the sort. What they mean is, "We, the Government, have made a decision and our obedient Back Benchers will troop through the Lobby, as directed by us and the Chief Whip."

Nobody is under any misapprehension about that. I know the rules of the parliamentary game as well as the Minister does. However, we ought occasionally to remind ourselves that it is a charade, and that when the Minister prays in aid the votes of Parliament, he is merely exercising his power as a member of the Executive to control the House of Commons. I find it extremely worrying. I appreciate that it may be for only a short time in interim legislation, but it is worrying that a Prime Minister or a Government could arrogate to themselves exclusively the ability to do what Members of the House have traditionally been able to do, certainly since 1688.

Bill Cash (Conservative, Stone)

Would my hon. and learned Friend also go along this path? The situation in Scotland, because of the different definition of the basis of misconduct, which I gave earlier, is different from that in England and Wales and in Northern Ireland, where there is a similar definition of good behaviour. Taking the responsibility away from the House of Commons and giving it to the Prime Minister raises some extremely tricky questions, which include the question of the tribunal and the basis on which it would arrive at its decision. The Prime Minister—

Edward Garnier (Conservative, Harborough)

Under the next clause we may be able to discuss further the points that my hon. Friend was making. I am concerned that a limited part of the Executive—the Prime Minister—will keep to himself the ability to present a motion for the removal of a judge. In so doing, he will, at the very least, inconvenience—I use that word in an old-fashioned sense—Westminster Members of Parliament from Northern Ireland of both sides of the traditional divide who may wish to express an opinion about the conduct of a particular judge. He may want to do that, as my hon. Friend the Member for Beaconsfield (Mr. Grieve) said, for overriding political reasons, because it is convenient to move the peace process on in a particular way at a particular time. It is not right, however, that we should allow the appointment and removal of judges to be a creature of some other political game.

Paul Tyler (Liberal Democrat, North Cornwall)

Does the hon. and learned Gentleman accept that, under clause 105(4), the critical issue is surely not what action is taken by whom but what the tribunal itself has determined? Therefore, his comments on this clause, I hesitantly suggest to such an experienced Member, are more appropriate to the next clause.

Edward Garnier (Conservative, Harborough)

The hon. Gentleman has been correctly rebuked by you, Mrs. Heal, but on the other hand he illustrates the difficulty that, under our artificial procedures, we are allowed only to debate things in slices. The Bill needs to be considered as a whole. We may be able to have a fascinating conversation about the matter on Third Reading, but by then, of course, it will be too late.

Dominic Grieve (Conservative, Beaconsfield)

My hon. and learned Friend might agree that the hon. Member for North Cornwall (Mr. Tyler) has this point, as the word "tribunal" does feature in clause 105:

"Neither the Prime Minister nor the Lord Chancellor"—

or his substitute, as it now is—

"may make a motion for the presentation of such an address unless a tribunal".

That, of course, provides adequate protection from wrongfully removing a judge from office, but no protection at all from leaving a judge in office when he should not be there.

Edward Garnier (Conservative, Harborough)

Exactly. That is the point. It is a matter of considerable concern to me that we are allowing the Executive to take on such additional powers. That having been said, I think that the hon. Member for North Cornwall (Mr. Tyler) wants to make his contribution.

Paul Tyler (Liberal Democrat, North Cornwall)

I only want to intervene briefly to say that the obverse could apply. If the tribunal has made that recommendation, it would be a peculiar decision by any member of the Executive, whether Prime Minister or Lord Chancellor, to go against the advice. That is properly a matter for a subsequent clause, however.

Edward Garnier (Conservative, Harborough)

The hon. Gentleman says that it would be a peculiar Prime Minister. It is not unknown to have peculiar Prime Ministers.

David Trimble (UUP, Upper Bann)

It is not at all unknown for Prime Ministers to make peculiar decisions on matters relating to Northern Ireland.

Edward Garnier (Conservative, Harborough)

The right hon. Gentleman is right: peculiar Prime Ministers make sensible decisions from time to time, but peculiar Prime Ministers occasionally make peculiar decisions, and we are the victims of them.

Chris Leslie (Labour, Shipley)

Part 5 of the Bill provides for the removal of judges in Northern Ireland in the period prior to devolution of justice to the Northern Ireland Assembly. Clause 105 inserts a new section 12B into the Judicature (Northern Ireland) Act 1978, to provide for the removal of judges from the most senior judicial offices in Northern Ireland. As at present, the Lord Chief Justice, Lord Justices of Appeal and High Court judges may be removed by the Queen on an address by both Houses of Parliament.

Then we come to the point that has raised the interest of the hon. Member for Beaconsfield (Mr. Grieve), namely, a motion for an address may be made to the House of Commons by the Prime Minister and to the House of Lords by the Lord Chancellor—or, under the earlier amendments, if the Lord Chancellor is not a Member of that House, by another Minister of the Crown at his request. In responding to the hon. Gentleman's inquiry, I confirmed that while for England and Wales any Member of Parliament can make the motion on the removal of judiciary, in Northern Ireland that is not a feature of the settlement arrangements in that jurisdiction.

The hon. Gentleman worries that that will in some way fetter the freedoms and discretions of Members of Parliament in moving motions in Parliament. Let me respond to that. In the case of a statutory requirement such as this, an address could not have legal effect. If it was not proposed by the Prime Minister and/or the Lord Chancellor, Her Majesty could not act upon it. Such statutory provisions are not unusual. For instance, some financial motions—the Whips will know of them—can be moved only by Ministers in this House. Her Majesty's placing of her prerogative at the disposal of the House sometimes requires an indication from a Privy Councillor that consent is signified. On some occasions, particular types of motion require different hon. Members, in their different roles, to make their views known. In this case, I accept that the position is not in line with the England and Wales arrangements, but there is a particular reason for that.

Dominic Grieve (Conservative, Beaconsfield)

That is precisely the question—I do not wholly understand what the reason is. As I infer it, it is this: the Government, on the basis of the history of this matter and their intention to move towards devolved structures, simply reproduced in clause 105 the system that would have applied when the devolved structures were in operation, even though they are not.That is not an adequate reason. For the moment, as we continue to carry the can for the discharge of judicial functions in Northern Ireland, it is unnecessary to remove the power of a Member of this House or the other place to move the motion. The Minister should ensure that that right is here; at least then, when the time comes to set up the devolved structures, it would be understandable for him to come to the House to say that it has to be given up. If he wants to convince me that he is right, his explanation must centre on explaining why we cannot have that right in the interim.

Chris Leslie (Labour, Shipley)

I disagree with the hon. Gentleman. This issue was debated at length during the passage of the Justice (Northern Ireland) Act 2002. There are reasons for the differences between the arrangements for England and Wales and for Northern Ireland. A particular feature of the settlement that followed the changes made in the Belfast agreement is that there were, and are, differences in the devolution arrangements, as even the hon. Gentleman accepts. I understand his point, but that is not the proposal that we are making.

David Trimble (UUP, Upper Bann)

I think that the Minister is, uncharacteristically, in error. What we are discussing is in no way related to the current suspension of the Northern Ireland Assembly. If it resumed tomorrow, the provisions in the 2002 Act would not apply. They are not part of the settlement to which the Minister refers, but they are part of an entirely separate arrangement about the possible future devolution of justice and policing matters to the Northern Ireland Assembly. That will not happen without the agreement of both sides of the community in Northern Ireland, and at present there is absolutely no prospect of that happening in the foreseeable future. We have turned our face very firmly against it. In that situation, to introduce measures that would come into effect only in the distant future is a retrograde step, and to pass this off as following on from the 1998 agreement is not right.

Chris Leslie (Labour, Shipley)

I am reluctant to reopen the debate that took place not only on the 2002 Act, but in advance of that through the Belfast agreement. The right hon. Gentleman has his particular view and I respect that. However, the arrangements are not unduly constraining on a decision of this House or of the other place in making its views known about the judiciary and the removal of members from it.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

I am concerned that we may be giving away a genuine power in exchange for nothing. Will my hon. Friend the Under-Secretary simply tell us whether the right hon. Member for Upper Bann (Mr. Trimble) is correct? He says—he spelled out the precise reasons—that the effect that the Under-Secretary outlined is incorrect. Is he right?

Chris Leslie (Labour, Shipley)

I do not believe that the Government should agree with the right hon. Gentleman's position—[Interruption.] Let me explain why. The clause provides for a mechanism for the House to begin the process of moving an address to Her Majesty for removing members of the senior judiciary and for a specific arrangement for Northern Ireland, and I believe that it is a corollary of the settlement that followed the Belfast agreement and the Justice (Northern Ireland) Act 2002. If the Committee determined that it did not like the arrangement, hon. Members could not only vote against it today, but pass an Act to amend it in exceptional circumstances.

It would be for Parliament to overturn the arrangement and, in a pre-devolution environment, make the necessary arrangements for all hon. Members to express their views through a majority opinion. After all, Governments do not always win the day on Divisions. I can think of occasions when Governments have been defeated. If a majority of hon. Members believed that the issue was so important that we needed to overturn the arrangement, they could have their day and express their view.

Edward Garnier (Conservative, Harborough)

I am sure that the Under-Secretary believes every word that he says, but the problem is that he did not serve, as I did, on the Standing Committee that considered the 2002 Act. I am sure that he has a note telling him about the matter but, as far as I can recall, those issues were not canvassed at length. Like the Bill that we are considering, that measure was severely guillotined and therefore many important subjects were not discussed. The Under-Secretary has yet to provide us with a reason. He said, "I believe"— that is not a reason but an assertion of the state of his mind. I need to know the reason.

Chris Leslie (Labour, Shipley)

I shall be more explicit for the hon. and learned Gentleman. The Belfast agreement, which led to the criminal justice review report, suggested that specific arrangements should be included in the 2002 Act. They are in that Act but have not yet been implemented. That is why we are making those specific points now.

David Trimble (UUP, Upper Bann)

It is important to clarify the matter. The Belfast agreement of 1998 does not refer to the devolution of policing and justice. It set up a justice review, which was not a matter of negotiation or settlement. Neither my party nor any other party agreed to it. It involved a group of academics and officials. The Government unilaterally decided to adopt the report—there may have been pressure from some parties, but not mine, to agree to it—and the provisions for removal were to come into operation on devolution, which has not happened and will not happen. Why, therefore, introduce before the devolution of policing and justice a provision that relates to post-devolution, when the Government know that devolution is controversial in Northern Ireland? I hope that the Under-Secretary will stop trying to pass off the clause as part of the agreement; it is not.

Chris Leslie (Labour, Shipley)

I have a different understanding from that of the right hon. Gentleman about the contents of the criminal justice review, its recommendations and the way in which they should be implemented in Northern Ireland. I act on the advice that I receive on those matters.

Dominic Grieve (Conservative, Beaconsfield)

I thank the Under-Secretary for giving way, which will give him an opportunity to read the next note that has landed on his lap.

The 2002 Act did not envisage the position that clause 105 sets out, but that of an operating devolved Administration. As the Under-Secretary knows, the chances of a devolved Administration, especially after recent announcements by the Prime Minister and others, are low for the foreseeable future. Surely that in itself is a reason why a measure that might have been justified as an extremely short-term arrangement, lasting a few months pending the devolved structures coming into operation, cannot possibly be justified in terms of removing a fundamentally important right of this House and the other place, when there is no foreseeable date for the new system to come into operation. I hope that, even at the eleventh hour, the Minister will think again and give an assurance to the Committee that he will table an appropriate amendment to restore our right, and that of the other place, to move a motion to remove a judge if we think it right to do so.

Chris Leslie (Labour, Shipley)

The Bill has yet to pass through its other stages and we shall have an opportunity to look at this matter again on Report. However, under advice, I am of the opinion that the arrangements that we are proposing reflect the criminal justice review report. If, on studying these matters further, I reach a different opinion, there will certainly be opportunities to return to them at a later date. We do not yet have a date for the Report stage, but there will be opportunities to look at the issue at that point.

Bill Cash (Conservative, Stone)

rose—

Chris Leslie (Labour, Shipley)

I think that that is all I can say for now, but I suppose I should give way to the hon. Member for Stone (Mr. Cash).

Bill Cash (Conservative, Stone)

One last intervention, if I may.

There are several gates involved here, as the Minister will appreciate. First, there is the question of whether an address may be presented by any Member of this House. On the question of the Prime Minister's involvement, I know that we are going to discuss the tribunal later, but it is directly related to this issue. When the Minister looks at the manner in which the tribunal will function, and of whom it will be composed, he will realise that when the Lord Chancellor comes to exercise his powers under subsection (5) he will have to do so after the tribunal—which will be constituted as set out in clause 107—has performed its functions. The more gates there are, the more difficult—

Chris Leslie (Labour, Shipley)

I remain to be convinced of these arguments, but I will look at them again. I might, however, come back to the House on Report to say that we should stand by the way in which we have drafted this arrangement. I understand that it relates to the pre-devolution settlement and not necessarily to the post-devolution arrangement, as the right hon. Member for Upper Bann (Mr. Trimble) has said. This might be a matter on which I should review the texts involved. He is more familiar with them than I am, but this is the advice that I have received. I know that this is part of the 2002 Act and that it features in part in the criminal justice review, so I shall look at those particular matters again—but, for the time being, I feel that it is of value for clause 105 to stand part of the Bill. It makes provision for far more important issues than simply this narrow point about Members of Parliament and the ability of the tribunal to sit. I hope that clause 105 can stand part of the Bill.

Clause 106 — Removal from listed judicial offices

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 351, in page 47, line 7, leave out 'except after consultation with' and insert 'without the agreement of'.

Clause 106 deals with the mechanism of removal from listed judicial offices in Northern Ireland. Under subsection (1):

"A person holding a listed judicial office other than as a judge of the High Court may be removed from office (and suspended from office pending a decision whether to remove him) but only in accordance with this section."

Under subsection (2):

"The power to remove or suspend him is exercisable by the Lord Chancellor",

and I have no problem with that. Under subsection (3):

"He may only be removed if a tribunal convened under section 107 has reported to the Lord Chancellor recommending that he be removed on the ground of misbehaviour or inability to perform the functions of the office."

The problem arises there. It is quite clear that the Bill provides that he can be removed or suspended only

"after consultation with the Lord Chief Justice".

I have to tell the Minister that I do not consider that to be an adequate safeguard.

Provision is made for the tribunal to make a preliminary finding and pass on the recommendation, but given that the system in England and Wales is based on an attempt to separate the mechanisms of discipline from political interference, I would have expected that the removal by the Lord Chancellor could take place only with the agreement of the Lord Chief Justice of Northern Ireland. Will the Minister explain why it was not thought right to include that point in part 5?

It is also worth considering what, in reality, the tribunal amounts to. I apologise for possibly straying into clause 107, but it is necessary to do so. As I understand the constitution of the tribunal, it would be possible for the Minister to appoint a majority of its members. Although clause 107 provides for certain individuals to serve on such a tribunal, it does not provide a ceiling limit on the numbers who do so serve. In those circumstances, there is all the more reason for the Lord Chief Justice of Northern Ireland to be involved in the decision-making process. If he believes that a judge should not be removed, I would find it inconceivable for the Lord Chancellor to go ahead nevertheless. In that case, the proper safeguard should surely be that they are both in agreement on the matter.

If it were suggested that acceptance of the amendment could lead to a conflict between the Lord Chief Justice and the Lord Chancellor, I would regard that—providing the system were working properly—as extremely far-fetched. If that did happen, we would effectively have a constitutional crisis, and in those circumstances it would be right for Parliament to know how and why the Lord Chief Justice and the Lord Chancellor had such diametrically opposite views on the subject.

I do not want speak to this amendment at great length, but I do not want the Committee to think that that suggests that I do not consider it to be very important. I do: it is of fundamental importance, and I shall divide the Committee if the Minister does not give me suitable reassurance that the matter will be considered again.I simply do not understand why the tribunal should go the Lord Chancellor, and why the Lord Chief Justice should have only a consultative role. I believe that the Lord Chancellor and the Lord Chief Justice should act together in this matter.

Ross Cranston (Labour, Dudley North)

I did not rise to the bait in respect of clause 107, but I do want to contribute to this debate. As the hon. Member for Stone (Mr. Cash) said, these are deep waters, but I hope that their very depth will protect me to some extent.

I want to make three points, but first I should declare an interest. I am a member of the Bar of Northern Ireland and also hold the rank of Queen's Counsel there. I have never practised in Northern Ireland and the rank that I hold is not an indication of my merit, as it followed automatically when I became Solicitor-General in 1998.

When I visited Northern Ireland as Solicitor-General, I was struck by the quality of the judiciary there. For judges, the situation was very difficult and they were under close protection all the time. The fact that the Bench was drawn from the whole community in Northern Ireland impressed me, as did the way in which the judiciary handled emergency cases. Although there was no jury in those cases, judges were both conscientious and careful.

My first point is that clause 106, and the equivalent provisions in the Justice (Northern Ireland) Act 2002, as amended, will never be invoked in practice. Only in very exceptional cases will a member of the lower judiciary in Northern Ireland be found guilty of the misbehaviour that will cause these provisions to be applied.

My second point has to do with the substantive provisions in the clause, and it is that very high barriers are in place in respect of the removal of a judge. A tribunal has to be convened and, although I do not want to stray too far into the territory covered by clause 107, the composition of that tribunal is set out in clause 107(5). That subsection provides that the exclusive membership of the tribunal must "consist of" the Lord Chief Justice or a Lord Justice of Appeal in Northern Ireland, a judge of Northern Ireland High Court, and a lay person. I think that the hon. Member for Beaconsfield (Mr. Grieve), in his earlier remarks, may have made an error in that regard.

The tribunal is therefore extremely powerful, and the first hurdle that must be negotiated is that there must be a tribunal decision.

Dominic Grieve (Conservative, Beaconsfield)

If the hon. and learned Gentleman is correct in his reading of clause 107, I am reassured. However, he used the word "exclusively", whereas I saw in the Bill only the word "consist". That is why I suggested that the tribunal had to consist of those members specified, but that it could also consist of other members.

Chris Leslie (Labour, Shipley)

indicated dissent.

Dominic Grieve (Conservative, Beaconsfield)

The Minister shakes his head to indicate that I am mistaken. The anxiety that I felt when I read that part of the clause is therefore allayed.

Ross Cranston (Labour, Dudley North)

The hon. Member for Beaconsfield has done the Committee a service and the provision can now be read in terms of Pepper v. Hart—that the Bill sets out the exclusive membership of the tribunal.

The first thing that must happen is that the tribunal must be constituted. It must then conclude that there has been misbehaviour on the part of a judge, or that that judge is unable to perform the expected functions. Therefore, the tribunal would act in a quasi-judicial way, making that decision on the basis of facts. It would be a reasoned decision.

The third hurdle is that there must be consultation and the amendment refers to that. I am not aware of the detailed jurisprudence in Northern Ireland about what that means, but in England and other common law jurisdictions consultation means consultation. It does not mean asking and getting a reply. It means serious consultation. There are three serious hurdles in the clause.

Bill Cash (Conservative, Stone)

The hon. and learned Gentleman will know that consultation, although it must be serious, means no more than that someone must listen to what is said. It does not mean that someone must do something as a result of it. Serious consultation means that someone must listen, but it goes no further than that.

Ross Cranston (Labour, Dudley North)

No, it means that someone must listen seriously. I accept that it does not mean that someone must do as they are told; but it means that someone must listen to what their consultees have told them.

I disagree with my hon. Friend the Member for Cannock Chase (Tony Wright), one of my neighbours in the west midlands, who spoke about the logic that would lead to people who sit as recorders—as I do and as at least one Opposition Member does—being excluded from the House. On the subject of logic, if one starts from the wrong premise and follows it logically, one may end up in hell. In this country, our constitutional arrangements do not work logically; they work pragmatically and we proceed incrementally. Sometimes that means that the arrangements may be muddled or inconsistent, as in this case, between jurisdictions, but that is the nature of our constitution. I can see that, logically, the amendment might have a certain attraction, but as a matter of pragmatic incrementalism, which is what our constitution is based on, it is not appealing.

Paul Tyler (Liberal Democrat, North Cornwall)

In contrast with the hon. and learned Gentleman, I was brought up to believe that the road to hell is paved with good intentions. I suspect that that might have happened with these proposals.

This is an important amendment, and I and my colleagues share the view of the hon. Member for Beaconsfield (Mr. Grieve) that we need some assurance on the matter. It may seem narrow geographically and in terms of the total range of the Bill, but it is symbolically important. Consultation and agreement are the last-stop position in a decision-making process. Reference has already been made to the various hurdles. It is important to have a proper balance for what is clearly a safety valve to be used—as the hon. and learned Member for Dudley, North (Ross Cranston) said—in exceptional circumstances. If the House legislated only on circumstances that are not exceptional, we would lighten our legislative load considerably. The provision may cover exceptional circumstances, but it sends out an important signal. If there is to be a veto at the end of the process, we should consider carefully whether it should best be put in the hands of the appropriate Lord Chief Justice rather than a Minister of the Crown.

I pray in aid my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), the Chairman of the Constitutional Affairs Committee, and I am delighted that he is in his place. The Committee said:

"any new system of discipline will need to be firmly within the control of the judiciary in individual cases, and we believe that the Lord Chief Justice should be the person primarily responsible for it. The relevant provisions of the Bill will need to be very carefully examined."

That should apply to the whole United Kingdom and should include Northern Ireland, as well as other parts. I hope that the hon. and learned Gentleman is about to persuade me otherwise, but I suspect not.

Ross Cranston (Labour, Dudley North)

I simply point out that the Lord Chief Justice is one of four members of the tribunal and, obviously, a persuasive voice in the proceedings of that tribunal.

Paul Tyler (Liberal Democrat, North Cornwall)

I am delighted to hear that. I, too, am very persuasive, but I suspect that in a few moments that will not necessarily result in the conclusion of the debate going in my favour. Persuasion is not enough—[Interruption.] The Minister thinks that I may be persuaded. I am delighted about that.

The measure gives a rather important signal: who is to have the last word? That is significant in all parts of the United Kingdom. The relationship of the Executive to the judiciary is at the heart of the legislation and, as the Minister knows, we have great sympathy with the bulk of the Bill, but it is more than a symbol. There is significance in this point and we would err on the side of judicial independence.

Earlier, the hon. Member for Stone (Mr. Cash) was lecturing us about the glorious revolution of 1688. I, too, studied that period, and although I was never a lawyer and aspire to no legal expertise, I believe that that change, from the king's pleasure to the way in which we now operate in this kingdom, is extremely important, because if we were directly to translate the king's pleasure of the pre-1688 disposition to the present day it would be the Executive's pleasure—the Government's pleasure—that would be the deciding factor as to whether somebody remained in post. That is not a satisfactory position.

I hope that the Minister will be able to give us the reassurances that have already been sought on the issue. It is more than symbolic, and it is extremely significant that we should get it right.

David Trimble (UUP, Upper Bann)

I listened with great interest to the contribution of the hon. and learned Member for Dudley, North (Ross Cranston), although I am not sure that his intervention during the last speech was entirely accurate. He may want to look at that provision again. What particularly interested me in his original contribution was his comment that we worked pragmatically rather than simply following logic wherever it might lead. That struck me as a reworking of the famous dictum of Oliver Wendell Holmes, and I endorse it entirely. It is of course part of the reason why I do not like the whole Bill. The whole Bill stems from a rather jejune attitude to the separation of powers, rather than respecting the way in which our traditions have actually evolved, but that is a broader matter.

I agree entirely with the comments of the hon. Member for Beaconsfield (Mr. Grieve) and would like to add to them that examining the legislative history of the provision that is now clause 106 (5) would be worth while. One turns to the Justice (Northern Ireland) Act 2002, where the equivalent provision is section 7(5), which, as enacted, reads that a person holding a listed judicial office

"may not be removed or suspended without the agreement of the Lord Chief Justice".

The Act was clear that it had to be the agreement of the Lord Chief Justice, rather than consultation. The lowering of the procedural hurdle occurred in the Justice (Northern Ireland) Act 2004, on whose Bill Committee I had, unfortunately, to sit—but that is another matter. The phrase "without the agreement of" was deleted from clause 5 and the phrase "except after consultation with" was inserted.

We disapproved heartily of the 2004 Act. We did not consider that the change was made on its merits; it was made simply because it was one of a number of items on the Social Democratic and Labour party shopping list. The SDLP wanted to prove that it was more effective than Sinn Fein and that it could bully the Government into making changes in the law to suit the SDLP rather than the changes the Government considered appropriate or advisable. For their own reasons, the Government decided to give way to that pressure and amended that Bill.

As I said previously, the 2002 Act is not in force and will not be in force even if devolution is resumed in Northern Ireland. The Act will come into force only after resumption and a subsequent decision by the Northern Ireland Assembly on a cross-community vote to agree to the devolution of justice and policing matters, which as I said to the Minister, is not going to happen. It will not happen because my party will not agree to it, and I believe that the Democratic Unionist party would adopt the same position. It will require considerable changes that do not seem likely to happen before we would agree to the devolution of policing and justice matters.

This is not a temporary arrangement that will operate in six months or a year, when policing and justice matters are devolved. This is something for some way in the future, so why it has been brought into the present? It is not a matter of any agreement between the parties—there never was any agreement between them before the 2004 Act or the 2002 Act—and it is not in any way part of any settlement. Crucially, when the Government first looked at the issue, they decided—their decision is embodied in the 2002 Act—that these procedures should operate only with the agreement of the Lord Chief Justice, which is more than just consultation.

On this matter, the Government's first thoughts, which were their own thoughts, were better than what they decided to do as part of a squalid political deal with the SDLP at a later date. For that reason, I urge the Government to accept the amendment moved by the hon. Member for Beaconsfield. At the very least, they should go back and take a good, hard look at the issue and explain to us why they have introduced these provisions, which will not go live in Northern Ireland—at least the rest of the 2002 Act provisions will not go live—and the Minister will need to assure us that there is a reason for introducing them and that no untoward political influence of the sort that resulted in the 2004 Act is behind them.

Edward Garnier (Conservative, Harborough)

The right hon. Member for Upper Bann (Mr. Trimble) has, not for the first time, alighted on some serious points and, by explaining the history of the Northern Ireland legislation, exposed the Government's paucity of thinking when they came to construct clause 106, and the amendment is a further means by which we can expose the inadequate thinking that lies behind the Bill.

The hon. and learned Member for Dudley, North (Ross Cranston) sought to persuade us that the way in which the Bill was drafted and constructed had a pragmatic basis, but we know very well that the entire volume is an ex post facto justification for the Prime Minister's decision to remove Lord Irvine. We have had all those arguments, but the Bill is the result of two years' thinking about how to undo or make politically and constitutionally acceptable that act of political assassination. We are having to wade through the consequences of that in Committee, and it is a pity, first, that we do not have enough time to do so properly, and secondly, that the Minister, at least judging by our previous discussion, is not entirely briefed on the subject.

Chris Leslie (Labour, Shipley)

Perhaps the hon. and learned Gentleman could help the Committee by getting to the point.

Edward Garnier (Conservative, Harborough)

I think that these late nights are getting to the young man, but I shall continue.

The amendment is perfectly sensible. Surely, if the Government are as keen as they tell us they are to ensure the separation between the Executive, Parliament and the judiciary, it must be perfectly proper for the Lord Chief Justice to be required to agree with any disciplinary activities that the Bill intends. If the separation of powers is to be a properly respected concept, the senior judge in Northern Ireland must agree to the removal or suspension of a judge in Northern Ireland. After all, that is only the reverse of the picture that the Government wish to paint in this jurisdiction. Clause 94(2)—we will consider the clause in greater detail in due course—says that the Lord Chief Justice of England and Wales

"may exercise any of the following powers but only with the agreement of the Minister".

If there is to be agreement one way, why should there not be agreement the other way in the other jurisdiction?

That is a minor matter compared with the question of removal. The Lord Chief Justice must get the agreement of the Minister—the Lord Chancellor, as we now know he will be called—if he wants to give advice, a warning or a formal reprimand to a judge in this jurisdiction. However, the Lord Chief Justice of Northern Ireland cannot do any of those things because only the Lord Chancellor can do that, after merely consulting the Lord Chief Justice of Northern Ireland.

Clause 94(5) states that the Lord Chief Justice may suspend an English judge for any period if

"the person has been convicted of a criminal offence, . . . it has been determined under prescribed procedures that the person should not be removed from office, and . . . it appears to the Lord Chief Justice with the agreement of the Minister that the suspension is necessary for maintaining confidence in the judiciary."

What is good for one jurisdiction should be good for the other.

I was not impressed by the attractively put argument of the hon. and learned Member for Dudley, North that this is a funny old world and we have a funny old constitution, so we tinker about with it in a funny old way. The Government are knocking the constitution to bits on the back of an envelope. When we get to a Bill, we should at least do things properly.

Bill Cash (Conservative, Stone)

My hon. and learned Friend referred to several anomalies, and I am rather pleased about the extremely small alliance of Opposition Members that has built up. These matters are important and have been cobbled together in the Bill. They are not being treated as seriously as they should on behalf of the people of this country, and especially those in Northern Ireland, who will suffer their consequences in due course.

The hon. and learned Member for Dudley, North (Ross Cranston) is a fairly near neighbour of mine. He said that we should not get too worried about most of this stuff because the measures are unlikely to be used in practice. He then said that they would be used in exceptional cases, at which point one might have reasonably drawn a sharp intake of breath. We would assume that the measures would deal with only exceptional cases, but part 5 of the Bill and the accumulated legislation that lies behind it are devoted to doing just that. It is exceptional for such things to go wrong, but it is important to handle exceptional cases correctly, so I am glad that the amendment is giving us the opportunity to examine the provision.

Clause 106(5) states that a judge may not be removed or suspended

"except after consultation with the Lord Chief Justice."

We would like the words "without the agreement of" substituted for the phrase "except after consultation with". However, I ask, "Without the agreement of the Lord Chief Justice about what?" Subsection (3) gives us a clue. I am grateful to the right hon. Member for Upper Bann (Mr. Trimble) for having schedule 1 to the Justice (Northern Ireland) Act 2002—the relevant legislation—immediately available, because I did not have it to hand. It is headed "listed judicial offices" and details all those who fall into the category. I hazard a guess that few hon. Members have had the opportunity to examine it today. The list starts with a judge of the High Court and continues down through county court judges to a range of other persons, many of whom hold an office that might be described as fairly low but is not low at all, because it is of immediate and great importance to the average person in Northern Ireland: such offices include the chairmen of a range of tribunals. The list is extremely long and therefore permeates the whole of Northern Ireland society. When I read that the tribunal will recommend in its report that a person

"be removed on the ground of misbehaviour or inability to perform the functions of the office",

I feel bound to draw attention to one or two points about the grounds for removal and what sort of recommendations will be made.

Under new section 12B(1) of the Judicature (Northern Ireland) Act 1978, the Lord Chief Justice and Lord Justices of Appeal hold office "during good behaviour". Although I do not think that we need to be pedantic, it is interesting to note that, under clause 106(3)(b), the recommendation that will lead to removal from office is based

"on the ground of misbehaviour".

Immediately, therefore, we see a distinction: good behaviour is set forth as the rule, but at the point of removal, the question has become whether there is misbehaviour.

Perhaps there is a simple explanation. We can be confident that the draftsman knows what he is doing and that, as my hon. and learned Friend the Member for Harborough (Mr. Garnier) pointed out, the Government do nothing without a good reason, so it would be incredibly stupid of us to imagine that they do not have a good reason based on an assessment of the precise meaning of the wording. I go further and say that parliamentary counsel can certainly tell the difference between "good behaviour" on the one hand, and "misbehaviour" on the other.

John Taylor (Conservative, Solihull)

I am following my hon. Friend's argument as carefully as I can. Is he suggesting that there is a twilight zone of behaviour that falls short of good behaviour, but has not yet become as debased as misbehaviour? If so, what would he call it?

Bill Cash (Conservative, Stone)

That is an important point. Perhaps he was fortunate, but my hon. Friend did not hear the debate on the previous clause, when I raised the question of what misconduct involves. Those are questions that will be decided by the tribunal. There is indeed a twilight zone, and it may well emerge in the exceptional circumstances to which the hon. and learned Member for Dudley, North referred. That will be the only basis on which such matters are decided. The more unique the circumstances, the more important it is that we get the provisions right. I am puzzled by the discrepancy between the expressions used—"good behaviour" and "misbehaviour"—and I would like an explanation.

Hon. Members might recall that in the previous debate I referred to Scotland, where there is a different historic tenure to that which applies in the rest of the United Kingdom, including Northern Ireland. In Scotland, the historic tenure is ad vitam aut culpam—judges cannot be removed except on the grounds of misconduct. However, inferior judges in the list of judicial offices in the United Kingdom, including Northern Ireland, receive lesser protection. The legal position is that circuit and district judges can be removed from office by the Lord Chancellor, if he thinks fit, for incapacity or misbehaviour. I am certain that parliamentary counsel and the Minister will realise that that is another deliberate change to the existing arrangements, and I should like to know why.

With respect to the question of tribunals in Scotland, the removal of judges, if the First Minister is involved under devolution arrangements which, as I have already said—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I am sure that the Committee is always pleased to hear from the hon. Gentleman. I am not sure, however, that he should speak in quite such a dilated manner about the amendment, which is very particular. A certain amount of comparative evidence may be raised, but I suspect that we have reached the boundaries, as this is a narrow amendment relative to the persons mentioned in the Bill.

Bill Cash (Conservative, Stone)

I entirely understand that point, Sir Alan. The framework of the clause, however, allows an interaction with the questions of criteria. According to a legal text, a judge from the Court of Session could be investigated if he were unfit for office

"by reason of inability, neglect of duty or misbehaviour."

In relation to the question of what he is being removed or suspended for under clause 106(3)—

Bill Cash (Conservative, Stone)

I understand your point, Sir Alan.

Bill Cash (Conservative, Stone)

I will indeed, Sir Alan. If the amendment were accepted, a judge could not be removed or suspended without with the agreement of the Lord Chief Justice. In its existing form, clause 106(5) says that he cannot

"be removed or suspended except after consultation with the Lord Chief Justice."

It would defy my understanding of the rules of debate if I were not allowed to argue that the question of removal or suspension should include reference to clause 106(3). In conclusion, the words "neglect of duty" have been omitted from that subsection, although the draftsman included the words

"misbehaviour or inability to perform the functions".

That mirrors precisely the Scottish provision. The omission of "neglect of duty" must therefore be deliberate, and I should be grateful if the Minister would explain why.

Chris Leslie (Labour, Shipley)

Clause 106 provides the Lord Chancellor with the power to remove from office a member of the judiciary in Northern Ireland below High Court judge level in the period prior to devolution of justice to the Northern Ireland Assembly. Removal is possible only for reasons of misbehaviour or inability, and can take place only on the basis of a recommendation from a tribunal convened under clause 107 and following consultation with the Lord Chief Justice of Northern Ireland. The clause takes into account the arrangements under the Justice (Northern Ireland) Act 2002, as amended by the Justice (Northern Ireland) Act 2004, for the removal of a member of the judiciary after devolution of justice functions. Under the 2002 Act as amended in 2004, the Lord Chief Justice is not required to consent to removal.

The provisions in Northern Ireland in relation to the post-devolution removal of a member of the judiciary reflect the recommendations of the Northern Ireland criminal justice review report. That report, which arose out of the Belfast agreement, was tailored to Northern Ireland's circumstances and was subject to wide consultation and acceptance by the Government. The report did not recommend that the Lord Chief Justice must consent to the removal of a judge. That means that Northern Ireland will be different from England and Wales. That is what devolution is about. It does not mean, though, that we are less committed to the central principles of independence, fairness and transparency. There can be different ways to achieve different aims.

Amendment No. 351 is not necessary. Each UK jurisdiction will find its own way towards independence, fairness and transparency for its judiciary, in the most appropriate way and in accordance with the needs and circumstances of its own jurisdiction. The process that I outlined happens to be the right way forward for Northern Ireland.

David Trimble (UUP, Upper Bann)

I repeat to the Minister the point that I made on the earlier set of amendments. It is not sufficient simply to pray in aid the 2002 Act. The Act is not in operation, and we are dealing here with legislation that will operate only until the 2002 Act comes into force, whereupon the provisions of the Bill will fall. Why, when the 2002 Act does not apply, has a policy decision been made to bring forward into the current regime provisions which, under the law as I understand it, will come into operation only at some dim and distant point in the future when the 2002 Act comes into operation, if it ever does?

Chris Leslie (Labour, Shipley)

The reason we are introducing the proposals at this stage is that we are discussing the reform of the office of Lord Chancellor. The proposals are needed in order to bolster judicial independence in all jurisdictions in which the office of Lord Chancellor changes. We know that if the arrangements were not changed, as at present, the Lord Chancellor could act unilaterally for lesser judges, and for High Court judges or above with an address to Parliament. There would be no tribunal requirement. This is our way of ensuring that we are bolstering the independence of the judiciary in the jurisdiction of Northern Ireland, making it consistent with the 2002 Act, as amended in 2004.

Oliver Heald (Conservative, North East Hertfordshire)

Does the Minister agree that the decision to remove under clause 106 would be justiciable, in the sense that it would be subject to judicial review if it was made in an arbitrary or unreasonable way? Can he think of any circumstances in which it would not be arbitrary or unreasonable if, having been consulted, the Lord Chief Justice said, "No, this shouldn't happen", and in the teeth of that opposition, the Lord Chancellor went ahead and did it?

Chris Leslie (Labour, Shipley)

All these matters are justiciable and could be subject to requirements for reasonableness, but I will not discuss hypothetical situations and what is or is not reasonable. That will be for the courts to test, and there is plenty of case law, the Wednesbury principles and so on, to which we can return. The provisions in the clause, which the amendment would change, are the right way for Northern Ireland to give extra protection to bolster judicial independence. I shall explain why I believe that.

The removals tribunal that we will set up in Northern Ireland, which is not being replicated in England and Wales, is different and adds extra layers of protection for judicial independence—for instance, the fact that the judicial members of the removals tribunal are appointed by the Lord Chief Justice of Northern Ireland, who is capable of appointing himself to that tribunal. The tribunal could be chaired by the Lord Chief Justice of Northern Ireland, if so desired, and he would be involved throughout the tribunal process. That is not the arrangement for England and Wales.

We have consultation instead of concurrence with the Lord Chief Justice, as we would have in England and Wales. We do not need that in Northern Ireland because the Lord Chief Justice of Northern Ireland would have had his bite of the cherry earlier through the removals tribunal process, which is stronger than we have arranged for England and Wales. They are different jurisdictions, they follow different paths, and that is the nature of the split in jurisdictions between those points, and of devolution.

David Trimble (UUP, Upper Bann)

The Minister has said that part of the justification is that the Lord Chief Justice had a bite at the issue at an earlier stage. That is true of a tribunal under clause 107(5),

"to consider the removal of the holder of any other protected judicial office",

where tribunals consist of

"a person who holds, or has held, the office of Lord Chief Justice or Lord Justice of Appeal",

which gives the Lord Chief Justice a chance of being there, not a certainty. Under clause 107(4), however, a tribunal

"to consider the removal of the Lord Chief Justice, a Lord Justice of Appeal or a judge of the High Court is to consist of . . . a person who holds high judicial office . . . and does not hold (and has never held) the office of Lord Chief Justice, Lord Justice of Appeal or judge of the High Court".

Therefore, the Lord Chief Justice possibly comes in under subsection (5), but certainly does not do so under subsection (4).

Chris Leslie (Labour, Shipley)

The provisions mirror arrangements that were debated at length in relation to the 2004 Act and, before that, the 2002 Act. We are introducing them at this stage because they give that extra measure of protection to bolster independence of the judiciary. Were we not to do that at this stage, and were we to change the office of Lord Chancellor, we would not have the programme for removals in place to give that protection to judicial independence.

Bill Cash (Conservative, Stone)

There is another question of protection—the protection of people in Northern Ireland in this context or elsewhere. We are dealing with the question of whether there has been some misfeasance—I use that word because of the confusion that has been created by the wording that the Minister has chosen. Why are the words "neglect of duty" not also included in subsection (3)? Can he clarify what is the difference between good behaviour and misbehaviour? If he cannot do that now, will he please be good enough to write to me?

Chris Leslie (Labour, Shipley)

Those parts of the clause mirror provisions in other Justice Acts: in this case, the Justice (Northern Ireland) Act 2002, as amended by the Justice (Northern Ireland) Act 2004. I hear the hon. Gentleman's point and your strictures, Sir Alan, not to widen the debate too far from the amendment. On the difference between good behaviour and misbehaviour, however, I am not sure that there is the hidden middle ground between those points that he seems to suggest. The current law is that judges hold office during good behaviour, and if they are guilty of misbehaviour, they can be removed. That reflects that misbehaviour is of course the opposite of good behaviour. It is as straightforward as that.

I hope that I have explained to the Committee why we feel that it is right to bolster judicial independence in Northern Ireland in this particular way, with the removals tribunal and the involvement of the Lord Chief Justice of Northern Ireland. Yes, it is different from the arrangements in England and Wales, but that is for good, historic reasons. It suits the situation amply and provides an extra level of protection, enhancing the protection of judicial independence.

Oliver Heald (Conservative, North East Hertfordshire)

On the good behaviour point, subsection (3) refers not just to "misbehaviour" but to

"inability to perform the functions of the office."

Does not the absence of good behaviour include incapability as well as misbehaviour?

Chris Leslie (Labour, Shipley)

I do not want to get into the definition of misbehaviour, further to my previous comments. We might be able to correspond about the matter, and I know that the hon. Gentleman enjoys correspondence. I will probably engage in a long series of written representations with him on that point.

I hope that I have explained why we do not feel that amendment No. 351 is legitimate at this point, and we hope that in due course the Committee will support clauses 106 and 107.

Dominic Grieve (Conservative, Beaconsfield)

I very much regret the approach that the Minister has taken on this. Faced with a major piece of constitutional legislation that provides for reform of the role of the Lord Chancellor, the Minister and the Government have been obliged to place in one statute, in stark juxtaposition, different structures for different parts of the United Kingdom. The Minister is forced to stand up and say rather limply to the Committee, "We have got to preserve this, because it is what has been deemed appropriate for the people of Northern Ireland in past legislation that we have enacted." However, the problem that he shies away from tackling is that all that past legislation was introduced with the intention that it would operate under a devolved structure that will now not happen for the foreseeable future. For this House then to abdicate its responsibility and leave the people of Northern Ireland with a vastly inferior system of scrutinising the activities of the judiciary through Parliament is extremely unhelpful and wrong.

Edward Garnier (Conservative, Harborough)

My hon. Friend is being too generous. Before the right hon. Member for Upper Bann made his first intervention on the Minister, the Minister said that this happens to be the best system for Northern Ireland, as though it had emerged out of the ether. Nothing in the Bill is there except by design, so either the Government have thought about it and got it wrong, or they have not thought about it and stuck it in regardless.

Dominic Grieve (Conservative, Beaconsfield)

My hon. and learned Friend is right. I infer, I think correctly, that the Government's desire to draft the Bill in this way has nothing to do with an objective analysis of whether this is the best system to impose on the people of Northern Ireland, or with protecting their interests. They did it because they fettered themselves, as they see it, in the past by setting up structures that may or may not be appropriate for a devolved structure of government, but certainly are not for as long as power is retained at Westminster. Then they say to the House, "You can't tinker with it."

I completely disagree with the Minister about this. It would be much better if any removal or suspension had to take place with the agreement of the Lord Chief Justice. Furthermore, it is wrong that this House should be deprived of the opportunity to table a motion for the removal of a judge from office. On that basis, we are being completely consistent. For those reasons, Sir Alan, I wish to press the amendment to a vote.

Clause 94 — Disciplinary powers

Chris Leslie (Labour, Shipley)

I beg to move amendment No. 11, page 41, line 4, leave out subsection (3) and insert—

'(3) The Lord Chief Justice may give a judicial office holder formal advice, or a formal warning or reprimand, for disciplinary purposes (but this section does not restrict what he may do informally or for other purposes or where any advice or warning is not addressed to a particular office holder).'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to consider Government amendments Nos. 12 to 15.

Chris Leslie (Labour, Shipley)

These are mainly drafting amendments, but the provisions that they amend are important.

Clause 94 puts the judicial disciplinary system for England and Wales on a statutory basis for the first time. The judicial disciplinary system will involve the Lord Chancellor and the Lord Chief Justice working together. The Lord Chancellor will have the power to remove judicial office-holders below the level of the High Court, with the agreement of the Lord Chief Justice. The Lord Chief Justice will have power to give formal advice, warnings or reprimands to judicial office-holders as a result of the disciplinary process, with the agreement of the Lord Chancellor.

The provisions faithfully reflect the concordat agreed with the judiciary. They build on the judicial disciplinary system that already exists, but involve the Lord Chief Justice more fully in decisions to reflect the fact that he will henceforth be the head of the judiciary in England and Wales. The Lord Chancellor's continuing role in disciplinary matters reflects the need for a Minister to be accountable to Parliament, and a representative of the public interest. The more detailed framework of the disciplinary process will be contained in regulations made by the Lord Chief Justice, with the agreement of the Lord Chancellor, under clause 96. The regulations will be subject to the negative procedure in Parliament.

The Lord Chief Justice also has power, under clause 98, to make subordinate rules, with the agreement of the Lord Chancellor, which must be published but are not subject to parliamentary approval. That is because we envisage that the rules will contain a lot of detail on how complaints and disciplinary procedures will work, and they may need to be revised and reissued fairly frequently.

Government amendment No. 11 removes a possible problem arising from the drafting of clause 94 by making it clear that subsection (2), which states that the Lord Chief Justice may exercise his disciplinary power

"only with the agreement of the Minister"

and in accordance with "prescribed procedures", does not affect what he may do informally. That ensures that the existing arrangements for informal guidance and counselling can continue within the new framework.

Government Amendments Nos. 12 and 13 correct references to "disciplinary procedures" by replacing them with references to "prescribed procedures". Disciplinary procedures will be prescribed by the Lord Chief Justice under clauses 96 and 98. The former clause allows him to make regulations with the agreement of the Lord Chancellor, and subject to Parliament's negative procedure; the latter clause allows him to make rules with the agreement of the Lord Chancellor.

Government Amendment No. 14 clarifies the effect of suspending a judge. Clause 94 allows the Lord Chief Justice, with the agreement of the Lord Chancellor, to suspend a judge in certain circumstances when that judge is subject to disciplinary procedures. The amendment makes it clear that a judge who is suspended may not exercise the functions of his office, but that his other rights—concerning pay and pension, for example—are unaffected.

Government Amendment No. 15 makes it clear that disciplinary regulations made by the Lord Chief Justice will define when someone is subject to prescribed procedures or is under investigation for an offence. That will govern the exercise of the new power in clause 94(7), which allows the Lord Chief Justice, with the agreement of the Lord Chancellor, to suspend a judicial office holder in those circumstances.

These are tidying-up amendments, but they also relate to the important issues with which clauses 94 and 95 deal. I therefore urge the Committee to support them.

Dominic Grieve (Conservative, Beaconsfield)

Is not the difference between "disciplinary procedures" and "prescribed procedures" merely an exercise in semantics? I am slightly puzzled by the Minister's belief that it is necessary to alter the wording, and I am not sure, having listened to him, that I have completely grasped why he believes that.

Chris Leslie (Labour, Shipley)

It is necessary for completeness' sake. Although such alteration might not be vital for the purposes of reading the Bill, it is necessary in a technical sense to ensure that this part of the Bill is consistent with the other parts in which references to "prescribed procedures" are made. With that in mind, I hope that the Committee will support the amendments.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has succeeded at this late stage in becoming persuasive. I did have the slight suspicion that the use of the word "prescribed" rather than "disciplinary" had its origin in the enormous reluctance in certain government circles to call a spade a spade. Being subjected to "prescribed procedures" sounds a little less onerous than being subjected to "disciplinary procedures". Save for that, the other amendments are coherent and merit support. I am particularly pleased that it will be possible for the Lord Chief Justice to have an informal system of dealing with judges, but I have to say that I did not read clause 94(3) as preventing that. However, if the Minister thinks it advisable to spell out such a possibility openly, so be it; doing so does not detract from the intention behind subsection (3).

Keith Vaz (Labour, Leicester East)

I want to speak briefly about this issue now because the various remaining amendments might be dealt with quite quickly. That shows that the Government were right to give the Committee of the whole House the opportunity to debate the Bill over two full days. The Government were also right to table these particular amendments, because it is important that an informal procedure be put in place that allows the Lord Chief Justice to speak directly to a judge who might be the subject of disciplinary procedures. Obviously, clear procedures also have to be in place, and I am glad that the regulations to be produced by the Lord Chief Justice will be the subject of consultation. I am not clear—I hope that the Minister will tell us in his reply—whether that means consultation with the Lord Chancellor. I hope that the wider judiciary will be consulted. If we want a fair system that enables judges to be treated with respect and dignity, it is important to consult the judiciary as widely as possible.

At some stage, I hope that we can also deal with the broader issue of the training of judges. It is important to give them the widest possible training on a wide range of issues. The provisions that we are debating now deal specifically with the incidents mentioned in clause 94(1), (2) and (3). I want us to reflect on the wider issues and ensure that, when judges are appointed, they are acquainted with the reasons why they might be disciplined. The clause allows the disciplinary procedures to be put into effect and the amendments would allow the informal procedures to take place, which is very important, but it does not detract from the importance of being absolutely clear about why a judge is being subject to any of these proceedings.

Edward Garnier (Conservative, Harborough)

What makes the hon. Gentleman think that the reasons are not already clear to judges?

Keith Vaz (Labour, Leicester East)

I hope that they are, but in keeping with the spirit of compromise and the passion displayed by the hon. Member for Beaconsfield (Mr. Grieve), who urges the Government to build everything into the Bill, I stress that the Government are doing precisely that. We are clarifying the position and making it clear where the informal procedures can take place, which is perfectly right and proper.

Dominic Grieve (Conservative, Beaconsfield)

I have to disappoint the hon. Gentleman, because it is simply not the case that I have encouraged the Government to put everything into the Bill. Indeed, one of the major problems of the legislation—it will become more apparent on the last day of our consideration of the Bill—is that moving away from convention makes it appear that everything has to be spelled out line by line if progress is to be made. However, until the Minister proposed the amendment on providing informal advice to, or reprimanding, judges, it had never crossed my mind that it might not be possible to achieve those aims through the Bill. I rather took the view that the Bill could achieve them, so the amendment was necessary only because the Bill could not.

Keith Vaz (Labour, Leicester East)

That goes to the heart of problem about the way in which the Opposition have treated the Bill. I believe that the majority of Opposition Members would, because the Government have consulted, probably agree with most of what is contained in the Bill. Here we have a particular example of the Government clarifying the position by amending the Bill. If any of the circumstances mentioned in clause 94 were applicable, I am absolutely certain that the Lord Chief Justice would put his hand on the judge's shoulder, sit him down and offer some informal advice. That happens already, but what is wrong with proceeding, as the Minister suggested, by specifying it clearly on the face of the Bill that such informal advice should be given? Let me tell the hon. Member for Beaconsfield that he is being given something here: why not take it with open arms, thank the Government and move on?

Bill Cash (Conservative, Stone)

What the hon. Member for Leicester, East (Keith Vaz) has just said defies belief. On the issue of suspending a person from judicial office where he is "subject to criminal proceedings", I agree as a matter of fact and fully understand the position. It gets far more difficult, however, when we are dealing with questions relating to much less well defined circumstances, which I and my hon. Friend the Member for Beaconsfield (Mr. Grieve) believe would be much better left as they are. It does not improve or clarify the situation to give a judicial office holder "advice", a "warning" or "formal reprimand" for disciplinary purposes. In what circumstances are they to be given—in the context of good behaviour or misbehaviour?

Keith Vaz (Labour, Leicester East)

It is clearly in the context of this clause, which is why the amendment relates to this clause. If the context were different, this amendment would not have been tabled.

I am surprised at the hon. Member for Stone (Mr. Cash), who spent all of yesterday telling us that the Bill needed clarity and a defined purpose. He was worried about what the EU would do, given all the treaties that exist. However, it appears that he will not accept what the Government are trying to do with this Bill.

Bill Cash (Conservative, Stone)

There is no need to go over what happened yesterday, other than to say that all these matters— the rule of law, the question of advice, warnings and full reprimands, and so on—have arisen because the Government chose to include them in the Bill. The Government are therefore hoist by their own petard: they have forced us to ask questions on matters that we believe would be better left to people of good judgment, as used to be the case.

A year ago, in my previous capacity, it fell to me to consider these matters when this pantomime started up, and we had the Gilbertian farce involving the Lord Chancellor and whether he was going to sit on the Woolsack. Since then, difficulties have arisen that I predicted were unnecessary. The Government have created a rod for their own back with this Bill—or, I should say, a rod for the British people's back.

John Gummer (Conservative, Suffolk Coastal)

My hon. Friend the Member for Stone (Mr. Cash) will understand that I do not think that this matter has anything to do with the EU, but I hope that the Minister will pay attention to what I want to say. One of the difficulties that arises through trying to clarify matters in so detailed a way is that people's natural and proper behaviour gets lost. That has been evident when the House had legislated about its own and other people's arrangements, and about transparency in general.

Transparency is crucially important, but results are often better when people feel that it is their responsibility to interpret general principles in the particularity that is sometimes called for. The Bill makes it more difficult for sensible decisions to be made because it tries to categorise them too much.

I do not intend to divide the Committee on this issue, but I hope that the Minister will talk to his colleagues and accept that we have come a long way by using conventions in these matters. Those conventions work extremely well, and the Bill is not only unacceptably detailed but—if I may say so—rather un-British.

Chris Leslie (Labour, Shipley)

First, my hon. Friend the Member for Leicester, East (Keith Vaz) was concerned about the details of the rules governing disciplinary proceedings and the processes that must be followed. He said that there must be ample consultation, and I assure him that the rules require the agreement of the Lord Chancellor and that they must be published. In many ways, the further enshrinement of the rules' particularities is useful, not only for the members of the judiciary who may be subject to them but for raising the confidence of the wider public.

The right hon. Member for Suffolk, Coastal (Mr. Gummer) is one of those Conservative Members who have said that we should not categorise rigidly all relevant rules and decisions. That is why we tabled an amendment to ensure that the Lord Chief Justice's more informal activities will not be constrained. Our aim is to strike the right balance. If legislation is insufficiently specific, we get criticised for leaving gaping holes, whereas we get criticised for being rigidly constraining if we put too much detail in. I hope that we have managed to strike the balance well and achieved broad consensus on the disciplinary arrangements.

As for the question raised by the hon. Member for Stone on his current favourite subject—good behaviour as opposed to misbehaviour—we have not changed the principles that are to be followed. The Bill does not alter arrangements for the test for removal from office, for example. The present arrangements will continue. If the hon. Gentleman wants to continue our discussion, I would happy to correspond with him on the issue. I hope that the amendments will receive the support of the Committee.

Amendment agreed to.

Amendments made: No. 12, leave out lines 14 and 15 and insert

'prescribed procedures in relation to the conduct constituting the offence.'.

No. 13, in page 41, line 28, leave out 'disciplinary' and insert 'prescribed'.

No. 14, in page 41, line 29, leave out subsection (8) and insert—

'(8) While a person is suspended under this section from any office he may not perform any of the functions of the office (but his other rights as holder of the office are not affected).'.

No. 24, in page 41, line 20, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]

Clause 94, as amended, ordered to stand part of the Bill.

Clause 95 — Disciplinary powers: interpretation

Chris Leslie (Labour, Shipley)

Clause 95 provides detailed definitions of when, to whom and in which circumstances the new disciplinary powers set out in clause 94 will apply. It is therefore an essential part of delivering reformed functions for the Lord Chancellor and defining the new relationship between the Executive and the judiciary.

Clause 95 defines—for the purpose of clause 94—first, when a judge is subject to criminal proceedings or to any proceedings for an address in Parliament. That helps to define when suspension powers may be used. Secondly, it defines the meaning of "judicial office" and "senior judge". Thirdly, it makes clear what is meant by "sentence" for the purpose of the suspension provisions. Clause 95 provides that the terms "subject to disciplinary procedures" and "under investigation" may be defined in regulations.

Edward Garnier (Conservative, Harborough)

How does the definition in clause 95(2) differ from that for any other person?

Chris Leslie (Labour, Shipley)

Clause 95(2) states:

"A person is subject to criminal proceedings if in any part of the United Kingdom proceedings against him for an offence have been begun and have not come to an end, and the times when proceedings are begun and come to an end for the purposes of this subsection are such as may be prescribed."

I suspect that—

Edward Garnier (Conservative, Harborough)

The "person" is a judge, as referred to in clause 94. However, I am not sure why the definition of proceedings, and when they start and end, should be different for a judge than for any other person.

Chris Leslie (Labour, Shipley)

The hon. and learned Gentleman raises a fair point. I shall look into the matter further, but I suspect that it is probably necessary to have the definition in the Bill at that point for the sake of completeness, so that those who are referring to clause 94 may have a proper understanding of the position.

Bill Cash (Conservative, Stone)

The Minister may have noted that clause 94(3) gives a list of the circumstances in which notice of a motion is given in each House of Parliament. In a previous discussion, we established the points that we wanted to make about the role of the Prime Minister in the matter, compared with Members of Parliament. Must we assume that, in all the circumstances listed in clause 95(3)(a) to (d), the Prime Minister would be the person who initiated the notice of the motion? That is not entirely clear from our earlier discussions.

Chris Leslie (Labour, Shipley)

As I explained earlier, in our debates on other clauses, the arrangements for England and Wales are different in so far as there is not such a restriction on particular Ministers, although of course if the activity is carried out on behalf of the Government, particular Ministers—for example, the Lord Chancellor and the Prime Minister—might be involved. I hope that that helps to answer the hon. Gentleman's question.

Dominic Grieve (Conservative, Beaconsfield)

I have a slight difficulty in following the expression:

"'Sentence' includes any sentence other than a fine (and 'serving' is to be read accordingly)."

I am slightly concerned about that. Obviously, fines can be imposed for minor matters; indeed, I suspect that quite a few senior judges may have received small fines for motoring offences yet still remain on the bench. However, one can also be fined—and fined only—for serious criminal offences. Will the Minister explain what would happen if a judge received a fine for a serious matter? Is he in some way excluded from those rules and regulations?

Chris Leslie (Labour, Shipley)

That would depend on the nature of the criminal offence. Obviously, the reason that we have a sophisticated process whereby the Lord Chief Justice can act on questions of discipline right the way through, from the formality of removal to discipline, to informal advice and counselling, is precisely to mirror the fact that different gradations of issue can arise. I have no further definitions than the one in the clause, so if there are other aspects on which the hon. Gentleman feels we should elaborate I shall be more than happy to correspond with him further.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to join the hon. and learned Member for Harborough (Mr. Garnier) in suggesting that if we can shorten the Bill we should do so. It strikes me that subsection (2) of clause 95, which we discussed earlier, repeats the general presumption of English law, so we could lose that provision as we do not really need it. In general, it is good practice not to have things that we do not absolutely need. We have had great discussion of things that we may or may not need. If the Minister asked his officials to remove from the Bill provisions that we do not need, rather than including provisions that we merely might need, we would have a shorter Bill and everybody would be more pleased.

The rest of the debate is in Hansard.