Crime and Courts Bill [HL]

Lord Lester of Herne Hill Excerpts

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.

[Lord Woolf]

My Lords, I add my voice to those who support this amendment. I do so with diffidence, because it may appear to the House that perhaps everything that could be said on the subject has already been said; but I hope that I will be forgiven for two reasons. The first is that, as was stated a few moments ago by the noble and learned Lord, Lord Goldsmith, it was my responsibility, as Lord Chief Justice at the relevant time, to be the spokesman for the judiciary. I had very many conversations with the person who became Lord Chancellor after the noble and learned Lord, Lord Irvine, when we strove to find the right answer to various activities which took place within the court system and which would take place in the relationship between the courts and government after the changes that the Constitutional Reform Act was going to bring about. I am afraid that I must have nodded on this point because I did not realise its significance at the time; I certainly do so now.

Secondly, in relation to the intervention of the noble Lord, Lord Goodhart, I suspect that he is influenced—as I would have been influenced, perhaps, not to attach the importance that I should have done to this point—by the fact that there was a great tradition within the Lord Chancellor’s Department, as in the judiciary, that the civil servants who supported the court system could do so without undermining the independence of the judiciary. Throughout my judicial career, I worked very closely with senior civil servants and civil servants at all levels, and there was never a problem. The Permanent Secretary at the department fully understood what the independence of the judiciary required. The unfortunate fact is that in those days there was a tradition in the Ministry of Justice of civil servants and, indeed, Ministers spending substantial time in the Ministry of Justice—or, as it was then called, the Lord Chancellor’s Department—and if they did not know at the outset the complexities of that very special relationship within a very short time of being there, they came to understand it because the whole ethos of the Lord Chancellor’s Department was that they must focus at all times on protecting the independence of the judiciary. I believe that, so far as the courts are concerned, that continues to be the position.

--- Later in debate ---

[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.