HL Deb 18 October 2004 vol 665 cc527-42

3.8 p.m.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)

My Lords, I beg to move that the House do now again resolve itself into Committee (on Recommitment) on this Bill.

Moved, That the House do now again resolve itself into Committee (on Recommitment)—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

House in Committee (on Recommitment) accordingly.


Clause 41 [Minister's duty]:

Lord Maclennan of Rogart moved Amendment No. 88BPD:

Page 15, line 36, leave out "Minister" and insert "President of the Supreme Court"

The noble Lord said: The group of amendments standing in my name and that of my noble friend Lord Goodhart are designed to enable the Lord Chancellor to indicate to this House how the Government propose to ensure that the principle which I believe they strongly support—the independence of the Supreme Court—is in practice to be strengthened. The drafting of Clauses 38 and 41 of the Bill was the subject of considerable scrutiny in the Select Committee and much evidence was given in favour of the requirement to ensure that the independence of the Supreme Court is strengthened by giving it greater administrative and financial autonomy.

To take, first, the issue of administration, the Government, in the person of the Lord Chancellor, gave their own evidence to that Select Committee, and I think it is acknowledged that the task of administration is not a huge one and that the size of the Supreme Court and its attendant administrative backup will be that of a middle-sized firm of solicitors. In any event, to establish a super-bureaucracy within a department might, even if one did not take the point about the separation of powers, be thought to be a sledgehammer to crack a nut. But there is an issue of principle here and it seems entirely appropriate that the responsibility for administration should rest with the President of the Supreme Court and not with the Minister, as provided so far in the Bill.

In its concluding comment on this matter, the Select Committee report indicated that it was anticipated that the Lord Chancellor would bring forward some amendments at a later stage of the Bill. Therefore, I shall not labour this point before the Minister has had an opportunity to tell us the Government's thinking on this matter.

So far as concerns the issue of finance, here the case for greater independence seems very strong indeed. I think that it was the noble and learned Lord, Lord Cullen, who, in evidence to the committee, spoke not only of the desirability but of the reality of the perception of independence being strengthened.

When it comes to finance, there can be no greater test of the reality than the avoidance of the arrangements which would flow from the Bill whereby the Lord Chancellor would be engaged in a haggling process with the Treasury about the finances of the court and the budget proposed, to which he would have to give his assent. It seems that that is neither necessary nor desirable. It is not desirable for the reasons of independence that I have given. Indeed, to some extent, it would be seen to be a step backwards from the present arrangements for the funding of the House of Lords sitting in its judicial capacity because, at present, special arrangements are in place under which the House receives its vote directly from the Treasury for that work. If the Bill were to go through in its present form, that would be a step back from that degree of independence.

However, from the evidence given to the Select Committee by a number of expert witnesses, I think it is clear that such independence would also be practical. Those witnesses included Professor Ian Scott of Birmingham University, who drew attention, as did the House of Commons Constitutional Affairs Committee, to the experience of Australia, where the High Court, which bears comparison with the highest court in this country, has a degree of separate independence with respect to budgetary arrangements. For those reasons, I hope that the Government will say rather more on the subject of finance than we have heard so far.

3.15 p.m.

I should not like to give the impression that all the evidence that we heard was one way. The noble and learned Lord, Lord Hope, for example, indicated that he thought that it had been advantageous to have a Cabinet Minister batting on behalf of the courts when it came to determining money. But, when one is talking about relatively small amounts of money such as that involved in the establishment and running costs of the Supreme Court, it would be highly undesirable if those involved were caught up in any kind of Star Chamber process and made the victim of some general ukase about the Ministry cutting its expenditure or tightening its belt. It seems to me that this Supreme Court, which will now have a quite different function within our constitution, should be seen as separate from that kind of consideration.

One other anxiety has been expressed by the Faculty of Advocates in Scotland, which advanced concerns about the compatibility of the arrangements with Article 19 of the Act of Union. To some extent, I think that that point has been answered, or at least addressed, by the Lord Chancellor, but it is a factor which seems to me could be put at rest if the Government approached this issue along the lines that I have recommended.

I hope that the amendment will be seen as constructive and in conformity with the express wishes of the noble and learned Lord the Lord Chancellor, although I acknowledge that, so far as concerns finance, he has been a little less forthcoming than he has been on the issue of administration. I beg to move.

Lord Campbell of Alloway

I have to oppose the amendment. As I have said on previous occasions, these functions should—perhaps subject to the view of the House—be performed by the Lord Chancellor, whose office has been retained. The efficient and effective system of business of the courts is within the control of the courts, and it is my case, which has not yet been argued, that the Lord Chancellor should retain that function. So, with respect, I appreciate that the Liberal Democrats have another concept but I cannot agree with it.

Lord Mackay of Clashfern

This matter touches on a rather important issue which of course affects the Supreme Court but, to some extent, it also affects all the other courts. Hitherto, the Lord Chancellor was a judge, having taken the judicial oath, and he was responsible for providing the staff to all the courts that were in the immediate responsibility of the Lord Chancellor. That did not include the magistrates' courts until more recently.

One significant fact to be taken into account is that the staff of the courts are engaged in judicial functions, an important example of which is listing the cases. It is of extreme importance that that function should be seen to be the responsibility of someone carrying judicial office—not necessarily as a serving judge in the sense of sitting in cases but as a judicial officer with responsibility for administration in accordance with the judicial oath. For example, it is obvious that the way in which cases are listed can have a very important effect on the ultimate outcome. Indeed, failure to list a case can be of crucial importance, in particular, in disputes between the Government and the citizen. Therefore, these are clearly matters of judicial responsibility.

At our last meeting the noble and learned Lord the Lord Chancellor said that anyone might be a good administrator without being a lawyer, which I can understand. On the other hand, it is important that the person with responsibility for the administration of the courts includes judicial functions, as I asserted without much fear of contradiction; judicial responsibility is important. To put it another way, who will be responsible for any mistake that is made in the listing of a particular case, with consequent expense to the citizens? Will it be the Minister, who is still the Lord Chancellor but without any judicial functions according the way in which the Government propose the matter should develop, or will it be some member of the judiciary?

Lord Kingsland

Under the new architecture of the Bill, it seems to me that there are two possible candidates to fulfil the role in Clause 41. One is the Chancellor of the Exchequer, the other is the President of the Supreme Court. I certainly do not think that either the Secretary of State for Constitutional Affairs or the Lord Chancellor should be the person whose name is inserted in that clause.

At the risk of introducing a degree of tedium to the proceedings, I ask the Committee to reflect on what the Select Committee on the Constitutional Reform Bill said on this matter. Paragraph 256 of the Select Committee's report states: In assessing the budgetary arrangements, we noted the views expressed by the House of Commons Constitutional Affairs Committee in their February 2004 report, Judicial appointments and the Supreme Court HC48–I". The quotation is from paragraph 100 of that report, which reads as follows: Clearly the new court must be seen to be independent … the reality of day to day administration is as important for safeguarding the independence of the judiciary as any theory. The argument that Parliament should be able to dismiss all those to whom it votes money is ingenious, if theoretical—there is no prospect of a minister in modern political circumstances being dismissed by Parliament. The ordinary reality of having independence in managing the affairs of the new court is more important. Close attention should be paid to the Australian system, which preserves independence of the High Court within a parliamentary tradition similar to the one in the United Kingdom. The Department of Constitutional Affairs is not the appropriate organization to run the new court because it is too associated with the England and Wales court system and because giving the Government control over the administration of the new court could offend against the principle of judicial independence". That was the view of the Constitutional Affairs Committee in another place.

I turn to the opinion of the Select Committee under the chairmanship of the noble Lord, Lord Richard. Members of the Committee will find it at paragraph 268, and I make no apology for quoting what is stated therein, as follows: While some members of the Committee agree with those witnesses who saw some advantage in the financial and administrative arrangements provided for in the bill, a majority considered that the Supreme Court should have greater financial and administrative autonomy than currently envisaged under Clauses 38 to 41. The Committee therefore agree that the Supreme Court should be established according to the model of a non-ministerial department. Funding would go direct from the Treasury to the Supreme Court (not into the DCA's budget). The degree of ministerial involvement would be slight, but remains an issue for some members of the Committee. The Lord Chancellor will bring forward amendments at a later stage of the bill". We shall be interested to see what those amendments are.

Meanwhile, it is clear that the opinion of the committee was that it is inappropriate for the department, whether it continues to be described as the Lord Chancellor's Department or as a new Department of Constitutional Affairs, to play any role under Clause 41. According to the Select Committee, the two players in this new drama, which may or may not unfold on the nation in the forthcoming year, are, on the one hand, the Chancellor of the Exchequer, who provides the funds—

Lord Campbell of Alloway

I thank my noble friend for giving way. Does he agree that the opinion of that committee did not appear to be in favour of the retention of the office of Lord Chancellor, and that therefore his quotation pre-empts my objection?

Lord Kingsland

The committee did not come out either for or against the retention of the office of Lord Chancellor; it looked at the arguments on both sides and came to the conclusion that whether or not the Lord Chancellor was retained was a matter to be taken on the Floor of your Lordships' House. However, so far as the financial arrangements for a new Supreme Court are concerned, on the assumption that a new Supreme Court is established, the committee was, in my submission, almost unanimous in concluding that, again, whether or not the noble and learned Lord the Lord Chancellor is retained, he should play no part in that matter. It should be an issue entirely between the Chancellor of the Exchequer on the one hand and the President of Supreme Court on the other.

I am extremely grateful to noble Lords on the Liberal Benches for tabling this amendment. In my submission, they have half right the answer to the question that they pose. I think that the President of the Supreme Court will have a crucial role in these matters. Equally, however, I do not see how he, alone, can provide the guarantee. He needs the complicity of the Chancellor of the Exchequer in another place. I wonder whether the noble Lord, Lord Maclennan of Rogart, will reflect on how he might factor in that ingredient in order to be consistent with what the committee asked—and perhaps come back at the next stage with an amendment containing the kind of refinement of which I know he is capable.

Viscount Bledisloe

Perhaps I may take up the last part of the speech of the noble Lord, Lord Kingsland. Clause 41 imposes on the Minister an obligatory duty to ensure the provision of an efficient system and appropriate services. Clauses 42 to 45 set out various ways in which that can be done. To use a nauseating, modern expression, it provides the choice of outsourcing services or employing them directly.

For the reasons clearly given by the noble and learned Lord, Lord Mackay of Clashfern, I agree wholeheartedly that the right person to decide how the money is disposed of, who is hired and what directions they get from their employers is the President of the Supreme Court. However, I suggest that it is necessary to place on the Government an obligation to provide the money. There would be no point in telling the President of the Supreme Court, "You must provide services", if the poor man had not been allocated any money with which to do it. Echoing the proposal of the noble Lord, Lord Kingsland, that this matter needs rethinking, I venture to suggest that Clause 41 should impose a duty on the Government to provide enough money and that the remaining clauses should grant to the President of the Supreme Court a discretion as to how it should be spent, who to employ and so on.

3.30 p.m.

Lord Morris of Aberavon

I agree entirely with the noble and learned Lord, Lord Mackay, about the importance of listing as a judicial function. Whichever way the argument goes, I wonder whether the point will be met by ensuring and specifying that listing is a judicial function and therefore is ring-fenced in this way.

Baroness Ashton of Upholland

This has been a very interesting debate. Noble Lords have addressed the central issues, with which the Government have a great deal of sympathy, about ensuring that we have the relationship correct and, as the noble Lord, Lord Kingsland, pointed out, being mindful of paragraph 268 of the Select Committee's report and the views put forward by noble Lords.

The noble Lord, Lord Maclennan of Rogart, began by saying that this was an attempt to extract in part from the Government what further we were proposing to do. I shall endeavour to reassure the noble Lord. We share the concern that the court should have the greatest possible degree of institutional and operational independence, which is consistent with proper ministerial accountability.

As regards the particular point raised by the noble and learned Lord, Lord Mackay of Clashfern, concerning listing in the courts, I shall if I may take that away. Thinking back to what was said by the noble and learned Lord, Lord Morris of Aberavon, that might be a matter which one could specifically consider. I think that the point that the noble and learned Lord made in particular was to differentiate between the functions within the role that is envisaged and to ascertain who best in those circumstances would take responsibility. We in Government are seeking to go down that road to ensure that we have proper accountability in the right place.

Where I disagree with the noble Lord, Lord Kingsland, in particular is on the funding and resourcing of the Supreme Court and the way in which ministerial accountability would operate. Although I agree with the noble Lord in his analogy, that is, the issue of which chancellor we are describing. I do not believe that this is the role of the Chancellor of the Exchequer but rather the role of the Lord Chancellor.

When one considers the practicalities of what is proposed, it would be the President of the Supreme Court rather than the Minister who would be responsible for negotiating directly with the Treasury for the funding and provision of accommodation, staff and services. In other words, the Supreme Court would become a department but without a Minister, with a judge at its head. It would be required to account for money voted to it by Parliament rather than by a board, commission or executive fundholders which we believe stands in opposition to the principle of functional separation of the judiciary from the legislature, which underlines our whole proposal for the Supreme Court.

The Government believe that it is an important matter of principle that a Minister should be held accountable to Parliament for any item of public expenditure and to answer appropriate questions in Parliament. Noble Lords believe that this is an important area. As they stand, the amendments remove the Minister from the process, which we do not believe is acceptable. Apart from anything else one would have to question the practicalities—certainly, I would. The president would have to find and equip a suitable building. We think that that should be the responsibility of a Minister. As my noble and learned friend the Lord Chancellor made clear, he hopes to make an announcement shortly regarding the building, certainly before this Chamber reaches a conclusion.

We believe that the amendments would create practical difficulties and drawbacks. What one might describe on the one hand as independence could very easily become isolated weakness: a very small public body with less weight—dare I say, less clout—than a Minister able to negotiate with the Treasury.

If there were circumstances in which, for laudable and understandable reasons, the Supreme Court were to overspend, under these amendments the Minister would not be able to allocate additional money from the overall DCA budget. On that particular issue, the Government feel strongly that because of ministerial accountability and, frankly, the impracticalities of putting the president in that position, it is better that accountability for negotiating the amounts of money and responsibility to Parliament rests with the Minister.

As I have made clear, we recognise that what was said in the Select Committee and in your Lordships' House is of extreme importance to us. We believe that the provisions within the clauses offer a high degree of protection from ministerial interference. That is very important and guarantees adequate funding. However, as the noble Lord, Lord Maclennan of Rogart, indicated, we have said clearly that we intend to table amendments. I should say to the noble Lord that I, too, have looked at the Australian High Court model, which is interesting. I shall say no more than that at this point. Accepting what noble Lords have indicated they feel strongly about today and the views of the Select Committee, we believe that we can put forward a package of amendments that ensures that the Supreme Court will have, as the noble Lord, Lord Kingsland, described from within the Select Committee report, even greater financial and administrative autonomy than is currently envisaged in Clauses 41 to 45.

I believe that the way in which we shall be able to bring this forward will reflect that, preserving ministerial accountability, as I have indicated but—frankly, this is the critical part—reducing the role of the executive to the minimum possible with the intention of achieving the greatest degree of institutional and operational independence and ring-fencing the court's finances. That is an important part of ensuring that financial support is available to the Supreme Court. We are considering how that can be ring-fenced consistent with that minimised ministerial role.

I was most taken by the point raised by the noble Viscount, Lord Bledisloe, about who supplies the money and who spends it. That is an interesting description of the difference between ensuring that resources are available and that the process of administration within the courts works well. I shall, if I might, take that particular point away and consider it further.

It is important that noble Lords are able to see, before Report, what we are proposing. Therefore, I undertake to send to the noble Lord, Lord Maclennan of Rogart—with a copy to the noble Lord, Lord Kingsland, and other noble Lords who have participated in this debate—the draft amendments before they are tabled. I hope that that will enable noble Lords to pass back comments to me and to my noble and learned friend and to see whether there are further issues they wish to put forward either informally or through the process in your Lordships' House.

I am grateful for the comments made by noble Lords. I am confident that the amendments we shall table will tackle the critical underlying issues noble Lords have raised. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Windlesham

Before the noble Baroness sits down, did I understand her to say earlier that the Government intend to make a Statement shortly on the location of the Supreme Court, or was that just wishful thinking?

Baroness Ashton of Upholland

In Committee last Monday my noble and learned friend indicated that it was his ambition to ensure that before the Bill had completed its passage through the House he would be in a position to do that.

Lord Crickhowell

Before the noble Baroness sits down, she made a most helpful statement about tabling amendments and consulting on them. Indeed, she therefore anticipated the intervention I was about to make asking that she should do so. These are crucial points. It is very important that we have the amendments in such time that if necessary we can produce amendments ourselves for Report stage. Therefore, perhaps I may ask not only that she circulates the amendments to those who have taken part in the debate but that they are adequately brought forward for the whole House and that time is given so that we do have an opportunity to consider them and, if necessary, to table our own amendments on Report.

Baroness Ashton of Upholland

The noble Lord makes an important and valid point about ensuring, as I tried to indicate, that there is sufficient time. I shall endeavour to do my very best. As noble Lords will know, I want to try to be as supportive to the House as possible. This is not entirely within my gift. As noble Lords will appreciate, there are issues to be discussed, not only within the department but across departments. However, we shall endeavour to do that. Certainly, I shall oversee that process to ensure that we can.

Lord Carlisle of Bucklow

Perhaps I may ask a question on the point raised by my noble friend Lord Windlesham. Is it the intention of the noble and learned Lord the Lord Chancellor to make a Statement about the future premises for any Supreme Court, if one were to be decided upon, before Report? The noble Baroness will remember that those members of the Judicial Committee who say they support the change to a Supreme Court have made it clear that their support is dependent upon appropriate premises being found. To date in Committee we have not been given any indication that such premises have yet been found. Therefore, if the noble and learned Lord the Lord hancellor is in a position to make a Statement it is vital that he makes it before Report.

Baroness Ashton of Upholland

I am sure that my noble and learned friend intends to make a Statement when he can do so.

Lord Ackner

Would consultation with the existing Law Lords also take place? I have always understood that that was a crucial factor in reaching a decision.

Baroness Ashton of Upholland

My noble and learned friend is and will continue to be in dialogue with the Law Lords. That would he appropriate.

The Earl of Onslow

Will the noble Baroness also send me a list of the amendments? I felt that I could not intervene, so I have risen slightly late. I also get a rocket for intervening, but, even though I have not participated in the debate on this amendment, I would be interested to see them.

Baroness Ashton of Upholland

I would be delighted to, and I make the same offer to any noble Lords who let me know that they want it. They should not feel that they have to intervene.

Last week, my noble and learned friend said that one valuable lesson that he had learnt was that one should indicate a final proposition when it was a final proposition and not get embroiled in speculative discussion of the issues, if one were not discussing something so important. It is his ambition to resolve the issue and to ensure that accommodation is found that is appropriate to the needs of the Supreme Court. My noble and learned friend is an ambitious Peer, and I am sure that he will seek to do that. However, I cannot indicate precisely when on his behalf. The Committee will know that there are lots of issues to be debated, but that is our ambition, and we shall try to fulfil it.

Lord Lloyd of Berwick

It ought to be possible to postpone Report until we have the Statement. We cannot have a sensible debate on Report unless we know what is planned and how much it will cost.

Baroness Ashton of Upholland

One has to consider the issues of principle and then the issues of practicality. I recognise the fact that the noble and learned Lord feels strongly about the matter, but there are also people who believe that the process of looking for the best and most appropriate accommodation should not prevent the passage of a Bill dealing with the principle of establishing the court.

With the greatest respect to the noble and learned Lord, I say that it is not always the case that the building must determine the legislative programme. My noble and learned friend has indicated that he will make sure that we deal with the accommodation issue, but that should not prevent the passage of the Bill through the House.

Lord Kingsland

I am grateful to the noble Baroness for the fact that she will table amendments consistent with the undertakings given by the noble and learned Lord the Lord Chancellor to the Select Committee.

There was, however, one issue the noble Baroness raised that gave me some cause for concern. In paragraph 268, the Select Committee stated that it agreed that the Supreme Court should be established according to the model of a non-ministerial department. Now, the Select Committee would not have agreed that had the noble and learned Lord the Lord Chancellor dissented from it. Therefore, the noble and learned Lord the Lord Chancellor agreed that the court would be set up with the same status as a non-ministerial department.

If that is so—I see the noble Baroness nodding her assent—of what relevance would the Secretary of State for Constitutional Affairs be? If the department is to be non-ministerial, the intervention of a Minister will not be needed; so I assume that the amendments that the noble Baroness will table will be consistent with the undertaking given by the noble and learned Lord the Lord Chancellor to the Select Committee.

Baroness Ashton of Upholland

My noble and learned friend will have made the commitments that he intends to honour to the Select Committee. The difference that I was indicating was the question of how one describes a body that did not have ministerial involvement in its negotiation with the Treasury for funding. I indicated that that funding could be ring-fenced. That deals with some of the issues behind noble Lords' questions about moneys being raided—if I may describe it thus—for other parts of the DCA budget. That is true of many other bodies, and there is a direct line of accountability to Parliament from the Minister and to the Treasury with regard to funding. I do not believe that they are inconsistent, although the noble Lord, Lord Kingsland, may take a different view.

I will leave it to my noble and learned friend to read Hansard and consider whether he needs to clarify things further for the benefit of the noble Lord. That is my understanding from what I have read, not from what I have asked of my noble and learned friend.

3.45 p.m.

Lord Maclennan of Rogart

I am grateful to the Minister for her answer to the debate and for reasserting the fact that it was the Government's intention to amend the terms under consideration.

I must take slight issue, at least, with the way in which she presented her argument in respect of two matters. First, she ventured the view that the president of the Supreme Court would be seen as a lesser weight than the Minister in debates about resources. That is a misconception. The whole concept of the Supreme Court is to establish a new and independent arm of the constitution. The Select Committee suggested how that independence could be represented to Parliament through the possibility of giving direct evidence. That method would be open to the president of the Supreme Court for revealing any differences of opinion with the Chancellor of the Exchequer that might arise.

Baroness Ashton of Upholland

I did not want to suggest that the president would not have weight; my point was about ministerial clout, which is slightly different. As the noble Lord will know, it is important in discussions about how finances are distributed—other noble Lords will understand it better than I—not to underestimate the relevance of the critical debates that take place. That is not to say that the president would not have great importance, but the budget would be small, and he or she would not be able to take part in the cut and thrust of debate in the way that ministerial colleagues would be.

Lord Maclennan of Rogart

With respect, I believe that the Minister may be making my point. It is highly undesirable that the funding of the Supreme Court should be part of the cut and thrust of the debate about the Budget. That fortifies the case that I have made for a special arrangement.

That leads me to the second point arising from the Minister's answer that I wish to make. The Minister speaks of the Government's position on accountability as though it preserved something that was of great importance in the constitution. I must reiterate: that is not factually the case. The present funding of the "Supreme Court of the country"—I use those words in inverted commas to refer to this House sitting in its judicial capacity—is not subject to the scrutiny of Parliament through a departmental Minister in the way that other budgetary expenditure is.

In fact, the Government appear to be proposing an undesirable constitutional innovation. I hope that the Minister will add that issue to the internal debate that is, no doubt, going on about how to deal with the conundrum. With those considerations in mind, I thank the noble Baroness again for her answer, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Bledisloe moved Amendment No. 88BQ:

Page 15, line 39, after "appropriate" insert "premises and"

The noble Viscount said: The amendment relates to the point that the clause imposes an obligation to ensure that there is an "efficient and effective" system of support and to ensure that, appropriate services are provided for the Supreme Court".

Clauses 42 to 45 describe the ways in which the Minister can provide the officers, the staff and the services and ways in which he can provide the accommodation. The Bill notably lacks an obligation to ensure that there are "appropriate" premises. There is an obligation to ensure that there is an efficient and appropriate system and appropriate services. But if appropriate premises have not been provided, it will be impossible to provide an effective system or effective services. Whatever the conclusion on the debate that we have just had will be, everyone would accept that it is the Government's duty to find the premises, build them and pay for them, even if the president will be running the budget to fund them, once they are built. I cannot believe that the president of the court will he given the job of dealing with estate agents and building contractors.

It seems an absolutely remarkable omission from Clause 41 that there is not an obligation on the Government for them to ensure "appropriate premises" are provided for the court. That omission will become more and more important as it emerges that the various premises suggested by the Government are wholly inappropriate in the view of those who will hear and try cases in them. Perhaps I may ask the noble Baroness two questions. First, can she explain why those words have been omitted? Secondly, does she realise that if the omission is not rectified, the suspicion will be greatly strengthened that it is the Government's intention to put the Bill through and then bundle the Law Lords into any old building that can be found, which will be wholly unsuitable to their duties? I beg to move.

Lord Kingsland

I shall just add a footnote to the comments made by the noble Viscount, Lord Bledisloe. Interpreting the word "appropriate" in the context of premises raises two issues that the Lord Chancellor and the noble Baroness must confront. The first concerns the adequacy of the premises for the services that will be provided. That follows self-evidently from the obligation to provide services.

The second dimension to the definition is one that partly emerged in the debate on a previous amendment. It is crucial that the premises are appropriate to the status of the new court. The architecture must match the importance of the task. If noble and learned Lords who are to become members of the Supreme Court are housed in a building that is architecturally inferior to your Lordships' House, that will reflect upon the status of the new court. Of course it will not be necessary for the new court to have a building on the same scale as this House; but it will be crucial to have a building of similar quality.

I well recall the speech of the noble and learned Lord, Lord Hope of Craighead, last Monday, reflecting on the architecture of the new Scottish Parliament building. He said that, whatever one might think about modern design and, indeed, the expense, there was no doubt whatever that the new Parliament in Edinburgh was both appropriate to the task and reflective of its status. Equally, the new premises of the Supreme Court must pass that test.

Lord Ackner

This matter has an important connection with the interim position. On a number of occasions I have warned against a position being taken of your Lordships of the Appellate Division being required to leave on the basis that the accommodation will be purely temporary and will be replaced in due course by proper accommodation appropriate to the status of the court. I have said, perhaps a little cynically, that the "pre-fab" houses that still stand may be a monument to the risks that we run. If the word "appropriate" is inserted here, that will cover the interim as well as the long-term. It will ensure that their Lordships are not bundled out.

My other point is that if "appropriate" is put in, it would mean "ready and fit for occupation". This matter will clearly take a long time after premises have been found. What will happen in the interim in relation to this House? There is no sunset, or similar, clause and the Lord Chancellor has resisted one whenever I have raised the subject. He wishes there to be no provision that would prevent the Bill operating because the premises have not been found. That is why I strongly support the amendment.

Lord Lloyd of Berwick

I, too, support the amendment. One undertaking given by the Lord Chancellor, both in the Select Committee and on the Floor of the House, was that moving the Law Lords out of this place into temporary accommodation was the one thing that would not happen until they reached the final phase of where they were going to move to. That may at least help the noble and learned Lord, Lord Ackner. I understand that that suggestion—the idea of temporary accommodation between the House of Lords and the final building—is completely out of the question at the moment.

Baroness Ashton of Upholland

It is interesting that I agree with much, if not all, of what has been said about the importance of suitable accommodation that reflects the status of the Supreme Court. I do not believe that any member of the Government has any difficulty with that concept. We could spend a great deal of time negotiating around the word "appropriate", because noble Lords have different and distinct views of what would reflect that. But I absolutely accept, and my noble and learned friend has accepted, that it is very important that the building reflects the fact that this is an important move—that this will be the Supreme Court. That has connotations for the kind of building that would be appropriate.

One could argue—and noble Lords who have been involved in the law for a long time would accept—that the dispensation of justice can happen in a shed—at one level. I am not trying to suggest that the building somehow denotes the quality of the experience for the clients or the individuals who face the law or, indeed, for those participating. But I utterly accept that it is important that we view this matter in the correct light. I had the privilege of being at Langanside in Belfast, Northern Ireland on Friday, where new courts have been made available. They are beautiful buildings with the right type of facilities for everyone involved, including juries, judges, clerks and those seeking justice or being brought before the courts. So I accept and have no difficulty with the principle behind that. The notion that anyone would wish to see the Law Lords, who are held in the highest esteem by this Government and your Lordships' House, being bundled anywhere is anathema to us all.

If there was any suggestion that the Supreme Court was to be put in inappropriate premises, it would be impossible for there to be an efficient and effective system of justice and appropriate services. That would mean that we were not fulfilling the statutory duty that the Minister has, which is already stated in the Bill, and is reflected in the Courts Act 2003. It states: The Lord Chancellor is under a statutory duty to ensure that there is an efficient and effective system to support the carrying on of the business of", the courts, and that appropriate services are provided for those courts". That is why I do not accept the amendment. The Secretary of State will provide the right kind of accommodation with the wording we already have, particularly in subsections (1) and (2) of Clause 45, and we have put that in a legislative framework that has been approved through parliamentary counsel. I entirely accept what noble Lords are seeking to do, which is to say, very clearly, "Status matters and this building matters. We do not want to see the Law Lords bundled out in the way that has been described. We wish to see the right kind of accommodation". Noble Lords know that my noble and learned friend is in discussions with the Law Lords about all those factors.

The amendment does not work, as it does not approach the issue in a legalistic sense within the way in which the Bill is drafted, but we believe subsections (1) and (2) of Clause 45 do so. There is very little between us. On that basis, I hope the amendment will be withdrawn.

Viscount Bledisloe

I am grateful to the noble Baroness for her general acceptance of the principle. However, this is not just a question of the grandeur of the building. As the noble and learned Lord, Lord Bingham, has made plain, it is enormously important that the actual hearing rooms should be of the same kind as in this building; namely, committee rooms around a semi-circular table with everyone close, rather than a traditional intimidating criminal court, designed to put a suitable degree of fear and trembling into those accused of having broken the law. It may sound a minor point, but I assure those who have not appeared before such a court that it makes a vast difference when everyone, including the various Law Lords, can see each other. There is nothing more useful to an advocate who is having his point demolished by one Law Lord than to be able to see the other two shaking their heads in disagreement. It is also helpful to those objecting to be able to see. The atmosphere and layout are important.

I am disappointed by the noble Baroness's reply on the substance of the amendment. I fully accept that applying "suitable premises" is an overall part of the duty. However, there are two subsections making an express obligation to provide an "appropriate system" and "appropriate services", followed by provisions dealing with services, staff and accommodation. There is a temptation to construe that as "They must have left accommodation and premises out of Clause 41 because they did not mean they were the same as system and services".

If there is an obligation, there is no possible objection to putting that in the wording. "Appropriate" governs all the words—it is as apt to govern "premises" as "services"—although there can, of course, be arguments over what services or premises are appropriate. I urge the Minister to reconsider. Inserting the phrase may only be a sop to us, but it would allay many of our concerns.

The Earl of Onslow

If what is proposed is already implied in the Bill, surely the rest of the subsection is as well. By putting the rest of the subsection in, less weight is being given to that which is not emphasised but implied than what is there already. Is that the case or not?

Baroness Ashton of Upholland

I do not believe it is the case, although I can see why the noble Earl might think so. Because of the duty on the Minister, and because of the way the whole clause is phrased, there is no question in the eyes of those who drafted it. I have discussed this point in order to be sure, because I try to be as supportive as I can when I can see where noble Lords are trying to move to. I always reflect on what is said in Committee, so I will check again, to ensure that noble Lords will not feel the need to put forward further amendments.

Lord Ackner

The noble Viscount has drawn our attention to the absence of the word "appropriate", while the Minister has drawn our attention to Clause 45, which points out an important distinction. In Clause 41, in regard to "system" and "services", there is an objective test. They have to be objectively "efficient" and "appropriate". In Clause 45, in regard to equipment, premises and the like, the test is subjective: The Minister may provide…such…accommodation", and so on, as he thinks appropriate for the purpose of discharging his…duty". Subsection (2) states: The Minister may make such accommodation arrangements with other persons as he thinks appropriate". That is all subjective and is in marked contrast to what is in Clause 41.

Baroness Ashton of Upholland

I apologise for not making the point as clear as I should have. The Minister has a statutory duty to ensure that services are efficient and effective. If inappropriate accommodation were provided, the Minister would have failed in that duty. As far as the Government are concerned, the drafting of this clause and the way the clauses relate to each other mean that, in order to fulfil the statutory duty on the Minister, he must ensure that the services provided are appropriate to their purpose.

In any legislation, one does not put in superfluous words, which this amendment would do. It is also my personal view that the definition of "appropriate" varies. Although I understand what the noble and learned Lord, Lord Ackner, is saying about subjectivity, it is a subjective judgment within a statutory duty, because someone has to make that judgment. The statutory duty is on the Minister.

Viscount Bledisloe

This is my last point. Has the noble Baroness never stayed in a hotel where the waiters were extremely efficient, the food was very good, the cocktails were beautifully mixed, but the rooms were lousy? That is an example of "appropriate services" but not "appropriate premises". I do not see that the former covers the latter. I beg leave to withdraw the amendment, but I warn the noble Baroness that this subject will not go away.

Amendment, by leave, withdrawn.

[Amendment No. 88BQA not moved.]

Lord Evans of Temple Guiting

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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