HOUSE OF LORDS Select Committee on the Constitutional Reform Bill [HL] Constitutional Reform Bill [HL] Volume 1: Report Ordered to be printed 24 June and published 2 July 2004 Published by the Authority of the House of Lords London : The Stationery Office Limited £price HL Paper 125-I Select Committee on the Constitutional Reform Bill [HL] The Committee was appointed to consider and report on the Constitutional Reform Bill [HL]. Membership The Members of the Committee were: Viscount Bledisloe Lord Goodhart Lord Carlisle of Bucklow Lord Holme of Cheltenham Lord Carter Lord Howe of Aberavon Lord Craig of Radley Lord Kingsland Lord Crickhowell Lord Lloyd of Berwick Lord Elder Lord Maclennan of Rogart Lord Falconer of Thoroton Lord Richard (Chairman) Baroness Gibson of Market Rasen Lord Windlesham General Information General information about the House of Lords and its Committees is on the internet at www.parliament.uk Contacts for the Select Committee on the Constitutional Reform Bill [HL] All correspondence should be addressed to the Clerk of Committees, Committee Office, House of Lords, London SW1A 0PW. The telephone number for general enquiries is 020 7219 4911. CONTENTS Page Chapter 1: Introduction 5 Chapter 2: Arrangements to replace the office of Lord Chancellor (Part 1 of the bill) 8 Chapter 3: The Supreme Court (Part 2 of the bill) 31 Chapter 4: Judicial appointments and discipline (Part 3 of the bill) 72 Chapter 5: Parliamentary issues 95 Chapter 6: Summary of conclusions and recommendations 102 Appendix 1: Orders of Reference 111 Appendix 2: Constitutional Reform Bill [HL] Select Committee 112 Appendix 3: Minutes of Proceedings 117 Appendix 4: List of Witnesses 198 Appendix 5: Call for Evidence 200 Appendix 6: The Lord Chancellor’s Judiciary-Related Functions: Proposals (The “Concordat”) 202 Appendix 7: Summary Report of the Online Consultation on the Constitutional Reform Bill 225 Appendix 8: Lords of Appeal in Ordinary – Interventions in the House of Lords 234 NOTE: The Report of the Committee is published in Volume I, HL Paper No 125-I. The Evidence of the Committee is published in Volume II, HL Paper No 125-II. References in the text of the Report are as follows: (Q) refers to a question in oral evidence (Volume II, HL Paper No 125-II) (p) refers to a page of evidence (Volume II, HL Paper No 125-II) Constitutional Reform Bill [HL] CHAPTER 1: INTRODUCTION Background to the Committee 1. The Constitutional Reform Bill [HL] makes provision for replacing the office of Lord Chancellor and to abolish that office; to establish a Supreme Court for the United Kingdom and to abolish the appellate jurisdiction of the House of Lords; to establish for England and Wales a Judicial Appointments Commission to recommend appointment of all judges (other than those of the Supreme Court); and for introducing new arrangements for judicial discipline. 2. Although some aspects of the policy of the bill had been under consideration by the Government for some time—particularly, but not exclusively, the question of judicial appointments—the immediate catalyst for change was the specific announcement by the Government on 12 June 2003 of its intention to abolish the office of Lord Chancellor and establish a Supreme Court. There followed a period of public consultation on the three principal elements of reform (Lord Chancellor, Supreme Court, and judicial appointments), and the Government published summaries of the responses on 26 January 2004.1 Meanwhile the Supreme Court and judicial appointments issues were also considered by the Constitutional Affairs Committee of the House of Commons, which reported on 3 February 2004.2 One of its recommendations (at para.188) was that the Constitutional Reform Bill would be “a clear candidate for examination in draft” and a number of speakers in a keenly argued debate in the House of Lords on 12 February 2004 made the same point (HL Deb col.1211-1344). 3. The Government took a different view and the bill was introduced into the House of Lords on 24 February 2004 (HL Bill 30). During the Second Reading debate on 8 March a number of speakers advanced the case for referring the bill to a Select Committee (there having been no opportunity for pre-legislative scrutiny) and following a vote on a motion in the name of Lord Lloyd of Berwick the bill was committed to a Select Committee, rather than to a Committee of the Whole House which would have been the usual course. Select Committees on Public Bills 4. The practice of committing a bill to a Select Committee has been very rarely used in respect of Government bills in recent times (though not unusual in respect of contentious private members’ bills).3 Indeed the most recent precedents for so doing by agreement lie in the period during and just after the First World War. 1 Department for Constitutional Affairs, Summary of Responses to Consultation CP (R) 13/03,11/03,10/03. 2 Judicial Appointments and a Supreme Court (court of final appeal), Session 2003-04, HC 48-I and II. 3 The Hare Coursing bill, a Government bill, was referred by the Lords to a Select Committee against the then government’s wishes in 1975. The Select Committee reported that the bill should not proceed. 6 CONSTITUTIONAL REFORM BILL [HL] 5. The orders of reference of a Select Committee on a public bill are the bill itself. It has power to receive evidence on the policy of the bill and to determine whether or not the bill should proceed. The Committee also has power to amend the bill, so the bill may be reported to the House with or without amendments. Any amendments are made in the context of the Committee’s private deliberations and printed in the minutes of proceedings appended to the report. The bill is reprinted as amended and re-committed to a Committee of the Whole House. 6. The order of the House establishing our Committee required us to report by 24 June. We embarked upon a programme of twice weekly meetings between 24 March and 22 June, nine of which were assigned to hearing evidence and eleven of which were deliberative. The Committee appointed Professor Andrew Le Sueur, Barber Professor of Jurisprudence at the University of Birmingham, as its specialist adviser. The Committee is grateful to him for his invaluable assistance. We also commissioned an e-consultation exercise the conclusions of which are summarised at Appendix 7. The Justice 2 Committee of the Scottish Parliament conducted an inquiry into the bill between March and May 2004 and we were able to take account of their report (4th Report, 2004 (Session 2), SP Paper 163). 7. In exercising our powers, we took the view early on that it was not appropriate in this case to prevent the bill from proceeding to its next stage of Committee of the Whole House (on recommitment). Having heard a wide range of evidence we identified those Clauses of the bill which raised issues on which we should comment. To the extent that is practicable our report is based on those issues in the sequence in which they are raised by the bill. Where we have been unable to reach agreement we decided to register that disagreement in the terms of our report, rather than by voting. Consistent with that approach all the amendments we have made to the bill—there are over 400 of them—have been made by agreement and on the basis that they improve and clarify the bill while leaving the main structure of the bill in its present form. These changes have, however, been made without prejudice to the fact that on at least two central features of the bill—the abolition of the office of Lord Chancellor and the establishment of a Supreme Court—the Committee’s views have been more or less evenly divided. We thus wish to make it clear that, in those areas of disagreement, the fact that we have stood the Clauses and Schedules part of the bill does not imply that we all acquiesce in them, nor will it inhibit some of us from registering such disagreements at the later stages of the bill. 8. In our consideration of the issues, we have made every effort to set out the full range of arguments which emerged in the evidence we have received, both orally and in writing. In some cases, where we have agreed on a policy matter, it is clear that we have accorded more weight to some views than to others. But in those policy areas where we have been unable to agree, we express no view upon, nor do we attempt to ascribe weight to, the evidence set out. We see no advantage in attempting to “count heads” in support of a particular line of argument. Moreover, although we sometimes disagree, that should not be taken to imply that we have not discussed those issues of disagreement exhaustively amongst ourselves. But ultimately it will be for the House itself to take a view on these matters and we hope that our report will be a helpful aid in that respect. CONSTITUTIONAL REFORM BILL [HL] 7 9. The amendments we have made fall into a number of categories. They include amendments which the Lord Chancellor4 announced at Second Reading and amendments brought forward by the Lord Chancellor as a result of the Committee’s deliberations. These are all substantive amendments and are for the most part referred to in the body of our report. A further group of amendments were deemed necessary by the Government to fulfil more completely the Concordat with the Lord Chief Justice.