Crime and Courts Bill [HL]

Debate between Lord Goldsmith and Lord Lester of Herne Hill

Tuesday 18th December 2012 Lords Chamber

[Lord Goldsmith]

My Lords, I am the first Member to speak to this amendment who was a member of the Government at the time that the Constitutional Reform Act 2005 was passed. I support the amendment, as I did on Report, at which point I gave the House an anecdote to illustrate why I think that it is right. It is because of the risk of the perception of a lack of independence, about which the noble and learned Lord, Lord Phillips of Worth Matravers, and others have spoken. I do not want to repeat what I said at the previous stage but, in the light of what may be said by the noble Lord, Lord McNally, it is right to remind ourselves how the Constitutional Reform Act came about.

The Act did not come about—how can I put this politely?—in the most orderly way, and the consequence was that we rather scrambled to get to the conclusions. I am happy to see my noble and learned friend Lord Irvine of Lairg in his place and I should say that a number of noble Lords were involved in the process. However, it does not surprise me that, despite those valiant efforts, in the end we did not get the legislation completely right, and this is a provision which we did not get completely right. If we had known about the examples to which the noble and learned Lord, Lord Phillips of Worth Matravers, has at least referred, if not identified, and if the risk could have been seen that the chief executive somehow being responsible to the Lord Chancellor might lead to the view that the Supreme Court was in some way connected to the Government so that the Government were able to influence its decisions, we would not have included this provision. Therefore, despite the time spent on the Bill, in the end much of it was done through discussions between my noble and learned friend Lord Falconer of Thoroton and the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, although a lot also happened on the Floor of the House. If the only thing that was not quite right was this particular provision, it was still a considerable triumph, but I hope that the noble Lord, Lord McNally, those behind him and of course ultimately the Lord Chancellor will see that this is a small but hugely important change that will do no harm at all to any of the issues of administration.

The Lord Chancellor is not responsible for the finances of the Supreme Court, a point that was made clear by my noble and learned friend Lord Falconer in, I think, the very passage to which the noble and learned Lord, Lord Phillips of Worth Matravers, referred. What would happen is that a bid would be put forward that could not be altered and it would then come directly from the Consolidated Fund. I do not think that there is anything to be accountable for. For those reasons, I strongly support the amendment.

[Lord Lester of Herne Hill]

My Lords, I strongly supported, as did my party, the separation of the traditional branch from the legislative branch. At the time, I disagreed with the noble and learned Lord, Lord Lloyd of Berwick, as my party does today, about the need for it. We thought—and think—that perceptions mattered very much, and it was a great embarrassment when we travelled around the world to discover that the rest of the world could not understand how judges could take part in or vote in our debates and that the Lord Chancellor could sit in politically sensitive cases. Therefore, we strongly supported the reform process, as I do and as my noble friend Lord Goodhart does.

I disagree with my noble friend Lord Goodhart for the reason given many years ago by the noble and learned Lord, Lord Browne-Wilkinson, when he gave a notable lecture about the independence of the judiciary and warned about the way in which questions of resources and management from the Treasury could encroach on judicial independence. It was a very enlightened and courageous lecture. I agree with the noble and learned Lord, Lord Phillips, and the noble Lord, Lord Pannick, about the function of the chief executive, especially when the Lord Chancellor is not an old-fashioned, legally qualified Lord Chancellor, who, from his experience, would instinctively understand the need for judicial independence. In my view, it is all the more important that the chief executive should be accountable to the president of the Supreme Court of the United Kingdom and not to a non-legally qualified Minister. For that reason, and because we do not have a written constitution that spells out the separation of powers but only an Act of Parliament, I believe it is particularly important that the law should be clear on this in our legislation. Therefore, I support the amendment.