Crime and Courts Bill [HL]

Lord Butler of Brockwell Excerpts

Tuesday 18th December 2012 Lords Chamber

[Lord Beecham]

My Lords, I speak with diffidence as, I think, the ninth lawyer to speak in this debate—albeit from the junior branch of the profession—to add my support to the amendment moved by the noble and learned Lord, Lord Phillips. For the avoidance of doubt, I should say that my noble and learned friend Lord Falconer, who is not in his place tonight, would have supported this amendment, were he here. He has made that very clear. My noble and learned friend Lord Goldsmith is right to say that the legislation under which the present situation obtains was imperfect. It is now an opportunity for the House and, I hope, the other place, to correct what was a mistake—forgivable, but nevertheless a mistake. The independence of the judiciary, particularly that of the Supreme Court, must be at the heart of our judicial system. It is timely that we are discussing this amendment tonight, because in the House of Commons today the Justice and Security Bill is being debated. The role of the judiciary in relation to certain proceedings, which we have debated at length in your Lordships’ House, is very much part of those discussions. In addition, there are proposals in the air around judicial review and, again, the role of the judiciary in a particularly important and sensitive area of law.

Perception counts for a good deal in these matters. I entirely endorse the views of all but one of the noble Lords who have spoken tonight, that it is important to reinforce the independence of the judiciary. That independence has not in substance been threatened over the past few years, but there is always a risk that at some point it might be, and that in any event it might be perceived to be an issue on the part of the public. I do not know whether the noble and learned Lord will seek to test the opinion of the House if the Minister cannot provide a clear, unequivocal response to the suggestion here. Frankly, I cannot think why it should take any time at all for there to be discussions about the issue, which seems to me perfectly straightforward. If the noble and learned Lord seeks to test the opinion of the House, again, I will invite my colleagues to support him through the Lobbies.

[Lord Butler of Brockwell]

My Lords, I hesitate to intervene in the debate when so many distinguished members of the judiciary have spoken. The fact that I do so is the fault of the noble Lord, Lord Lester. Many years ago, when the noble and learned Lord, Lord Browne-Wilkinson, was about to deliver the lecture to which the noble Lord, Lord Lester, referred, the noble Lord, Lord Lester, encouraged me to speak to the noble and learned Lord and argue the case for the interest of the Treasury in the administration of justice. I had a very interesting debate with the noble and learned Lord, although I made absolutely no impact on him at all.

However, I want to put in a contrary voice because the administration of the courts, including the Supreme Court, is a matter of administration. It takes place at the taxpayer’s expense. It is therefore necessary that the Government have an interest in and a responsibility for it; on these administrative matters and the use of resources it is legitimate for the Government to have a proper interest. I argue that that does not impinge on the independence of the judiciary. The independence of the judiciary, which refers to its operation as judges, and here we are talking about an administrative matter. In that case, the arrangement that exists at the moment, which was legislated for and brought into effect by the Constitutional Reform Act, is probably right. However, I realise that, in the light of the views of the members of the judiciary, this is not a popular view.

[Lord Lester of Herne Hill]

The noble Lord’s memory is correct. Does he remember that consideration of arguments of the kind he has just given led some of us to say we shall follow Australia and ring-fence the budget of the Supreme Court? That is, we should either ring-fence as they do in Australia, or ensure that the money comes from Parliament and not the Government. Does he remember that those were arguments at the time, counter to his suggestion?

[Lord Butler of Brockwell]

Yes, I remember those arguments well. The issue is to what extent the Government—the Executive—should have an interest in this matter. I think that the arrangements that were introduced protect the independence of the Supreme Court and the judiciary, and I would not want to change them.

[Lord McNally]

My Lords, I often think how well served we are by the depth and richness of the judicial talent that serves here in the House of Lords. I often think it, but perhaps not tonight.

This has been an interesting debate, full of mea culpas. The noble and learned Lord, Lord Lloyd, cannot quite remember how he let this through the committee on which he was serving; the noble and learned Lord, Lord Woolf, must have nodded when it went through; and the noble and learned Lord, Lord Goldsmith, said that the previous Government did not get it perfectly right. The fact is that this is an Act of Parliament carried by the previous Administration. I was very pleased to find out the intentions of the noble and learned Lord, Lord Falconer, at the last minute, although they did not really surprise me, but it seems strange that we should be discussing this.

Let me make my position perfectly clear. One of the things of which I am most proud in my parliamentary life is the steadfastness with which the Liberal Democrats delivered the votes in this House to carry through the reform that delivered us the Supreme Court. I have been a strong believer in the Supreme Court from that time—I think a little ahead of the noble and learned Lord, Lord Phillips, in devotion to the separation of powers—and that should stand in the record about my attitude to this amendment.

Of course it is possible for your Lordships to send strong messages to the other place. Let us remember that very shortly another place will be debating this Bill. However, I urge noble Lords to ponder whether it is the best way to send such a message. The Lord Chancellor can read, and I will make sure that part of his Christmas reading is the Hansard of this debate, but negotiations are going on. The noble Baroness, Lady Jay, asked whether the discussions have run into the ground. No, there has been discussion at official level in the two weeks since this issue was raised, and the letter that was quoted was from the Lord Chancellor to the noble and learned Lord, Lord Neuberger, pointing out that the Government are still considering this matter.

Let me clarify for the record that the Government do not have any concerns about the accountability of the UK Supreme Court. While there is no doubt that the Executive has a legitimate interest in the effective and efficient administration of all courts—a point that the noble Lord, Lord Butler, made very eloquently—the Government fully respect the independence of the judiciary and our duty to uphold that independence.

The amendment tabled reflects concerns about the present arrangements concerning the appointment of the chief executive, the staffing arrangements for the court and the ramifications of those arrangements for the independence of the court. This is a matter of great constitutional importance—a point made by the noble Lord, Lord Pannick. I emphasise that it is a matter of great constitutional importance, so when the noble Lord, Lord Beecham, with the impetuosity of a young solicitor says, “Why can’t this be handled?”, it is because it is a matter of great constitutional importance. It has been raised by a former president of the Supreme Court. It has been raised today by former high office holders—Attorneys-General, Lord Chief Justices and other Supreme Court justices. Nobody is underestimating its importance. However, I most humbly say—I am beginning to learn how lawyers manage to insult each other with the most exquisite politeness—that on a matter of this constitutional importance, where the Lord Chancellor of the day is saying that he is in negotiations and discussions with the president of the Supreme Court, it is not particularly helpful for this House to pass an amendment on the hoof in this way.