§ 8.18 p.m.
§ House again in Committee (on Recommitment) on Clause 1.
The noble and learned Lord said
I am not sure whether this is a drafting or a probing amendment, but it seems to me that the word "continued" serves no real purpose. Everybody accepts that the judges are independent now. Why does that fact need to be stated in the Bill? My suggestion is that the word "continued" is verbiage. If we do have to have an adjective qualifying independence, then I would suggest that "existing" is a better word than "continued". I beg to move.
§ Lord Falconer of Thoroton
There does not seem to be much between us. The duty of all Ministers to uphold the independence of the judiciary is nothing new. There has always been an expectation that Ministers will behave in this way, even though it has not previously been expressed as a statutory duty.
Clause 1 gives statutory force to what is now a matter of convention and will ensure that our long history of an independent judiciary continues. We believe that putting the duty into statute and ensuring that it extends to all Ministers will provide stronger protection for judicial independence than exists now.
However, although the form of protection will be enhanced, we believe that the substance of what we are protecting should be defined by reference to what we have now: the sophisticated and well respected notion of judicial independence as it has developed over the centuries. As now drafted, the clause adds certainty that what we now know to be the case will not change. 1214 Removing the word "continued" from this duty would suggest that one is seeking to remove the link with the existing concept of judicial independence. I am not sure what the noble and learned Lord, Lord Lloyd, is seeking to achieve by this but it may be, as he said, that it is simply a probing amendment.
The function of the word sought to be deleted is simply to ensure that judicial independence is defined and must develop in line with the concept as it is now understood. It will not freeze the content of judicial independence at a particular point in time. In exact accord with the judicial method in the common law system, it will simply ensure that the starting point for any consideration of what judicial independence requires must be the concept as it was known at the time the Bill is enacted. The concept can of course evolve to reflect changing circumstances, but the parameters of any such evolution must surely be set by what exists now.
The amendment tabled by the noble and learned Lord would imply something else: that the Bill was declaring some new principle, in a deliberate break with the past. From what he has said, I do not think that is what he intends. I am encouraged in that respect by his use of the word "existing". I do not think that there is much difference between us, therefore.
Declaring such a break with the past—which I do not think he intends—without defining the content of the implied new principle would, in my opinion, sow confusion and uncertainty in an area where clarity and certainty are crucial factors. It is very important in an area such as this that all those concerned have as much certainty as possible as to what is expected of them. What the current provision states clearly is that we want to perpetuate the existing state of affairs, allowing for gradual evolution in accordance with changing circumstances. That must surely be the correct approach to a principle of such crucial constitutional importance.
In those circumstances. I ask the noble and learned Lord to withdraw his amendment.
§ Lord Lloyd of Berwick
The difference between the noble and learned Lord the Lord Chancellor and me is that he cannot see my purpose in excluding the word "continued"; I cannot see his purpose in including the word "continued". Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The noble Lord said
The proposition lying behind this amendment is more significant than the one we have just disposed of so briskly and quickly. It concerns the rule of law.
The proposition is that the rule of law is such a fundamental principle that it deserves to be recognised specifically in this historically significant constitutional Bill. 1215 If we are moving towards a written constitution—which in a number of respects we are—we can all agree that it should be inclusive. Some may argue that such an amendment to this Bill is unnecessary and that a recognition of the rule of law is omnipresent in every ministerial office. A happy picture indeed to visualise, and I hope that it applies to the office of the noble and learned Lord, Lord Falconer, together with his ministerial colleague. If that was ever true, however, it certainly cannot be regarded as an accurate description of some of the policies of the Home Office under the leadership of the present Home Secretary. Mr Blunkett, as we recognise, has many exceptional qualities, but I do not think he would claim that a willing deference to the rule of law is among them. His recent setback over the handling of immigration appeals is only one of a number of Home Office policies to have been successfully challenged in the courts.
This amendment, however, is not an occasion for partisan point-scoring; it is intended to be constructive. I recall the controversy over mandatory sentencing under a Home Secretary who now leads, very successfully, my own party. I refer to Michael Howard. An issue when Michael Howard was the Home Secretary in a Conservative administration was that injustice could result where the sentence for a criminal offence was a mandatory sentence fixed by law rather than one which was adjusted to reflect the severity of an offence and the harm done.
One of the difficulties in adhering to the rule of law is to recognise situations in which it arises, where it may be applied and where it is relevant. Let me give an example. Not long ago the present Government attempted to strengthen the enforcement of probation orders by withdrawing supplementary benefit from offenders who had failed to conform with the requirements of a probation order, very often by failing to report to their supervising officer, which is at the heart of the probation concept.
It was a salutary experience to try to persuade the department concerned at that time—the DHSS or the Department for Employment—that such action would be contrary to the rule of law and that entitlements to social security payments were based upon entirely separate considerations. Finally, after the issue had been raised both in this House and in print, the department gave way and the noble Baroness, Lady Hollis—the Minister then as now—was able to assist in devising some alternative penalties.
That may be regarded as a relatively minor example, but often matters of principle arise out of humdrum situations which are not recognised at the time as amounting to conspicuous issues of injustice. It is just one example which illustrates the need for vigilance.
More broadly, there is a large body of received political wisdom surrounding the definition and the meaning of the rule of law, the subject of the amendment, and the notion of constitutional legality. After a long and controversial debate and a short welcome break for dinner, this is certainly not the moment to probe its significance or to pontificate on 1216 its application. However, what can be claimed without fear of contradiction is that the rule of law is an honourable inheritance which has been developed over a lengthy period of time and which upholds fundamental British values and the political society we enjoy today. Long may it continue. It is our responsibility to ensure that it does.
That is the case, in brief, for adding a specific reference to the rule of law to the opening clause of the Bill. I commend it to your Lordships. I beg to move.
§ 8.30 p.m.
§ Lord Goodhart
Amendment No. 19, which is in my name and that of my noble friend Lord Maclennan of Rogart, is grouped with Amendment No. 3. We on these Benches support Amendment No. 3. We think it is right that all Ministers should be required by statute to uphold the rule of law as well as the independence of the judiciary. However, there are issues which have not yet been resolved about what this obligation really means and how it is to be implemented. Some of these issues are raised by Amendment No. 19.
There can be no doubt that the rule of law is a principle of the constitution and has been so for at least 300 years. That battle was fought for most of the 17th century, from the struggle between Lord Coke and Lord Chancellor Bacon in the early years of the century up to the Act of Settlement around the end of it. However, it is difficult to define the rule of law. Some would say that it is mainly or wholly procedural, that rights and powers must be exercised in accordance with established law and not by arbitrary decision, or that principles of natural justice must be applied, such as that no one must be a judge in their own cause and that both sides are entitled to be heard.
It is less clear whether the rule of law has a substantive content. The question arises whether there are laws, such as the Nazi race laws, which are so repugnant to fundamental human rights that they cannot be regarded as legitimate laws at all.
The question has been raised that if the Government were to introduce laws which were inconsistent, or might be thought by some to be inconsistent, with the rule of law, would the courts be bound to apply them? If the judges have power to disregard laws in such cases, then we get a potential conflict between the rule of law and another principle of the constitution, which is the sovereignty of Parliament. We have not had to resolve that issue and I hope we never will. I do not think that we should aim to decide it in this Bill. That means that we should not use the Bill to restrict the sovereignty of Parliament as it exists.
We believe that the duty of Ministers to uphold the rule of law will be part of the legal background when reviewing an executive decision or the validity of secondary legislation, but the decision of a Minister to lay legislation before Parliament should not be capable of being restrained because that legislation is arguably contrary to the rule of law.
The possibility of a judicial review before an Act of Parliament or a Bill is laid before Parliament is a route to the rule of lawyers rather than the rule of law. That 1217 is why Amendment No. 19 spells out that nothing in the Bill is intended to derogate from the sovereignty of Parliament.
§ Lord Kingsland
I am most grateful to the noble Lord for giving way. As I understand it, following the incorporation of the European Convention on Human Rights into our law, the Minister is under a duty not to put before Parliament a Bill which contains a contravention of the convention. Why should that same principle not apply to the rule of law?
§ Lord Goodhart
I do not believe that there is such a duty. There is a requirement in the Human Rights Act that there must be a statement on whether the Bill complies, but I do not think there is any duty not to lay a Bill before Parliament. The sovereignty of Parliament still permits a Minister to lay before Parliament a Bill that does not comply with the rule of law. Indeed, as I understand it, the Civil Partnership Bill now before the House of Commons following its hectic passage through your Lordships' House contains a statement by the Minister that she is not satisfied that it does comply with the European Convention.
§ Lord Kingsland
Does it not follow from the obligation to certify a Bill that, should a Minister conclude that a Bill were not certifiable, he would be restrained from promoting it? Alternatively, he would have to place on the Bill, "I am promoting this Bill even though I do not think that it complies with the European Convention".
§ Lord Goodhart
The second point is obviously correct, but the first point is not. For example, it must be correct that it is open to any government who saw fit to repeal the Human Rights Act 1998 as a matter of constitutional legality. I cannot think that anything less than that would, in itself, involve something that was restrainable by any judicial process.
Amendment No. 3 concerns duties under Clause 1(1) which apply to Ministers generally. It does not apply to the specific duties of the Minister—or the Lord Chancellor as we must now continue to call him following the passing of the amendment earlier today. The specific duties are covered by Amendment No. 10 and in part also by Amendment No. 19, although I will not now deal with the particular part of that amendment which relates to the specific duties of the Lord Chancellor.
The Government have not yet come up with their own amendments on the rule of law issues. It is desirable to see them before we take a vote on this issue, if indeed we have to take a vote. Therefore, although we support Amendment No. 3, we hope that it will not be put to the vote today and we do not intend to press our own amendment to a vote in Committee so that we can give time for further consideration of the rather complex and abstruse issues raised by the duty to uphold the rule of law.
I have two points. I will return to the definition of the rule of law, but my first point is an 1218 interesting one. Something has always puzzled me, and what happened over the Civil Partnership Bill is a good illustration. I have always been concerned about what would happen if a Bill were introduced that was compliant with the Human Rights Act and had the ministerial certificate, but was then amended—which would have to happen in the House of Lords, because the Government have not lost a Division in the Commons since 1997—which made that Bill non-compliant. Of course, the Minister would have to introduce it to the Commons and say that it was not compliant in order to use the Commons majority to make it compliant. That probably answers the point made by the noble Lord, Lord Kingsland. The Bill must be promoted as non-compliant in order to use the power of the Commons to make it compliant. I think that that answers the puzzle that I have always had about what would happen if a Bill became non-compliant on its passage.
To return to my second point, as members of the Committee who were on the Select Committee will remember, we had long discussions about the rule of law. There were nine lawyers out of 16 of us and it was a very interesting discussion. I was interested in the point made by the noble Lord, Lord Goodhart. He said that it was hard to define the rule of law. In fact, I do not think that it has ever been defined. I asked a number of members of the Select Committee, "Could you please define the rule of law?" Nobody could. Amendment No. 19 states:The rule of law is a principle of the constitution".Is it not odd to include in the Bill a principle of the constitution that cannot be defined? Perhaps the noble and learned Lord the Lord Chancellor would like to have a go at defining it.
§ Lord Crickhowell
I follow the noble Lord, Lord Carter, if only because we have one thing in common: he and I are not lawyers. The noble Lord performed an immensely valuable function in the Select Committee by producing solutions to all those parliamentary questions that arose, just as he has now.
He has attempted to steal my function which, as a non-lawyer, is to ask what I call the Pooh Bear or damn-fool question, which sometimes produces astonishing truth when put to the experts.
It is in that spirit that I intervene. I have no great difficulty with the amendment tabled by the noble Lord, Lord Goodhart. I accept that the rule of law is the principle of the constitution. He put it to one of our most eminent witnesses that the courts would assume that it was and would act on that basis. Equally, I have no difficulty with the principle of the sovereignty of Parliament. I do not think that anyone in the Committee argued that whatever the lawyers decided, they were interpreting the law as made by Parliament, and Parliament could always change the law. We are not far apart on that. I am glad to hear that we shall come back to the noble Lord's amendment when we have all considered it again.
My reason for intervening on the proposition that we should include a specific reference to the rule of law is that on that point we have the support of the Lord 1219 Chief Justice, the noble and learned Lord, Lord Woolf. On page 152 of the evidence section, in answer to question No. 501 put by the noble Viscount, Lord Bledisloe, the Lord Chief Justice said:It seems to me that it is very desirable that there should be a clear statement which reflects the need for the protection of the rule of law and I can well see that there is a very important role for the individual, whether he be called the Lord Chancellor or whether he be Secretary of State, to perform the function that you have just identified within government".Encouraged by the fact that the noble and learned Lord, Lord Woolf, thinks it is a good idea to have a specific rule, I turn to the Committee's opinion, expressed in paragraph 73. We decided, unanimously I think, or certainly without difficulty, that there should be a reference to the rule of law. The Lord Chancellor undertook to produce a suitable amendment. The only point that I made at that stage because we were well advanced in our deliberations is that I hoped that his amendment would come back in adequate time for us to consider it, and not on the last Tuesday on which we were sitting when we would have to agree it without proper consideration. About 10 days passed and no amendment came from the Lord Chancellor.
That is why I intervene today. I am pretty confident that the Lord Chancellor produced an amendment and then found that he was in considerable difficulty with his colleagues in Cabinet, particularly the Home Secretary. There was then great difficulty in reaching agreement on an amendment that would be acceptable both to those of us who wanted to defend the rule of law and to the Home Secretary. That encourages on why we need a specific reference in the legislation on that point.
The Lord Chancellor came back eventually in the final week—so late that we had to sit on the Thursday to consider the final draft of the committee—and we looked at the amendment, which is in the record so I need not read it out. It seemed to be one of the great masterpieces drafted by Sir Humphrey. Sir Humphrey had clearly been brought back from retirement—perhaps because the most distinguished Permanent Secretary to the Lord Chancellor's Department gives a masterly performance of Sir Humphrey on charitable occasions. Those of us who have attended at Smith Square on one of those occasions will know that he is a master at performing the role of Sir Humphrey, and may have wondered perhaps whether, in drafting this amendment, he made a contribution to it. But it was a contribution of such obscurity, in its complex bringing together of the need to protect the rule of law with the need to maintain the supremacy of Parliament, that a very large number of us in the Committee said that we simply could not accept it.
The noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Kingsland produced very clear amendments whose objectives we could all understand. But all those amendments—the complex, Sir Humphrey-drafted amendment of the noble and learned Lord the Lord Chancellor and 1220 the clearer amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend—were all withdrawn on the simple basis that as a Committee we decided that we could not press to a Division amendments on which we could not agree. That is why we are back in the House this afternoon.
This is an important issue, which goes back to that issue referred to in the earlier debate about the inevitable tension in government between those who protect the rule of law and those with equally important functions—the functions of the Home Secretary—in trying to maintain law and order. As a non-lawyer, I certainly do not have a solution, and I support the noble Lord, Lord Goodhart, in saying that this is probably not an issue that we shall press to a conclusion tonight. However, before this Bill leaves the House, and certainly before it becomes an Act, we should have greater clarification than we have at present. We need to have, as the noble and learned Lord the Lord Chief Justice said that we should have, a very clear statement in the Bill to protect the rule of law.
My Lords, I am sure that the noble Lord will agree with me that it is extremely hard to define the rule of law—and if it is extremely hard to define, how does one know that one is in breach of it?
§ Lord Crickhowell
That is exactly the question of which I said that the noble Lord was following my example in asking the damn fool question that sometimes produced interesting answers. Surrounded as I am by some of the most eminent lawyers in the country, and indeed the world—lawyers with a huge reputation—I hope that before we reach the end of our proceedings, we shall have enlightenment. And who better to give us enlightenment than the noble and learned Lord the Lord Chancellor himself?
§ Lord Goodhart
I should like to say, before the noble Lord sits down, that the situation is surely that one does not always know when one is in breach of the rule of law, but that there are times when one knows when one is.
§ Viscount Bledisloe
I support the amendment so ably and concisely moved by the noble Lord, Lord Windlesham. Until now, it has been the Lord Chancellor's role to be what the noble and learned Lord, Lord Bingham, described as the guardian of constitutional propriety. Although that has been a vital role, until now it has never been spelt out in any statute. But now that role is to be codified in Clause 1, which imposes both a general duty on Ministers and a special duty on the Lord Chancellor.
Since the role is now to be codified, it is surely vital that the wording of Clause 1 sets out the whole of that duty as guardian and does so in clear and forceful language. At present, Clause 1 fails in that in several 1221 different respects, which will be covered by the various amendments—the one now before us and some of its successors.
In respect of this amendment, the trouble with Clause 1 is that it relates only to the independence of the judiciary and says nothing about upholding or defending the rule of law. That, when one is codifying, is a very serious omission, because if part of a duty is expressed and the other part is not, the inevitable conclusion is that the second half no longer exists. A nauseating Latin expression used by lawyers is expressio unis est exclusio alterius. It means that if we say that it is the duty of Ministers to uphold the independence of the judiciary and do not also say that it is their duty to uphold the rule of law, we have lost their duty to uphold the rule of law.
The noble and learned Lord the Lord Chancellor accepts that principle. Indeed, in his closing speech in the somewhat better attended earlier debate he referred specifically to the duty to uphold the rule of law being part of the function of the relevant Minister. As the noble Lord, Lord Crickhowell, has said, at a late stage he put an amendment before the committee that was met with almost universal criticism and was withdrawn. Our present solution is very simple. It is to insert the rule of law alongside judicial independence as the things that must be upheld.
The answer, with respect to the noble Lord, Lord Carter, is—to paraphrase some words of Lord Denning—"I may have difficulty in defining it but I can recognise it when I see it". The answer is that one can recognise something that is in breach of the rule of law, even if one cannot write a sentence that codifies precisely what it means.
The noble Lord, Lord Goodhart, is correct that once the words "rule of law" have been inserted in Section 1(1) they also have to be inserted in Section 1(4), and that that is dealt with by Amendment No. 10. I am delighted to hear that the Liberal Democrats support this amendment. I must confess that I have some problems with their Amendment No. 19. I am not sure whether it is meant to be an alternative or a cumulative amendment. I would point out two slightly difficult problems with it. The first is that it imposes a duty in relation to the rule of law on the one Minister only. That is curious when the duty to uphold the independence of the judiciary is imposed first on all the Ministers and secondly under Section 1(4)—
§ Lord Goodhart
Amendment No. 19 was tabled after Amendment No. 3, so it was taken to be cumulative to that amendment. The difference is that Amendment No. 3 deals with the rule of law as it applies to Ministers as a whole in Section 1(1). It does not deal with the specific duty of the Lord Chancellor under Section 1(4). Therefore, something else needed to be put in to deal with that. That would be either Amendment No. 10 or Amendment No. 19.
§ Viscount Bledisloe
I am very grateful to the noble Lord for that explanation. The other difficulty with Amendment No. 19 is that it appears to deal with the 1222 rule of law somewhat differently for the independence of the judiciary, and I suspect that if the Government do not accept this amendment we will need to get together and produce a compendium version. I suggest to the noble and learned Lord the Lord Chancellor that the right thing to do at the moment is to accept Amendment No. 3, write in the rule of law there and then go on to decide what further amendments are needed. I hope that idea will commend itself to him.
§ Baroness Williams of Crosby
One of the beauties of the House of Lords is that noble Lords who have not been part of Select Committees are entitled to contribute to the debate. I speak with a consciousness of great humility because we have heard a brilliant Sophoclean dialogue between noble Lords who were members of the Select Committee, and not many other noble Lords have taken part in the debate so far.
I am not a lawyer and therefore I shall address in fairly simple terms the arguments that a politician might bring to bear on this particular argument. One of the things that emerges—and I think I might use the words "après le deluge"—is how we find a basis of agreement because clearly it would be an impossible situation for the two Houses to enter into an unending game of ping-pong with no outcome. It would do considerable and grave damage to the status and standing of Parliament. My brief remarks in this discussion are directed towards how we might move steadily towards some sort of broadly acceptable compromise. I will not go back to the issue of the title because that has been decided, for at least the time being, by a substantial majority in the Committee. Frankly, I do not think that it matters as much as the substance of the role of the new Minister.
From my point of view, and probably from that of many outside the House, the key question is not so much the title as the role, significance and weight of the person who holds office in the department that will be responsible for upholding the independence of the judiciary and the rule of law. That is obviously the crucial consideration, so we should address the question of how we improve the standing, status and weight of this department.
It is well known that the Liberal Democrats believe that the best way to do that is to create a Ministry of Justice, which would include the criminal justice responsibilities of the existing Home Office, and leave the Home Office more involved in the application and execution of law than the making of law and legal guidelines. Since for the moment that simply is not a possibility, much as we would like it to be, the House must address itself to every possible way in which it can enhance the status of the department that will be responsible, whether the title of the noble and learned Lord is Lord Chancellor or Secretary of State for Constitutional Affairs.
We on these Benches support Amendment No. 3, tabled by a group of Cross-Bench and Conservative Peers, because we think that even in a small way it will enhance the position of the Minister responsible for upholding the rule of law. It is only a first step, not in 1223 itself sufficient, and although I always dislike in any way disagreeing with that formidable intellect, the noble and learned Lord Brennan—
§ Baroness Williams of Crosby
Not learned? He sounds awfully learned to me. I apologise—the noble Lord, Lord Brennan. I disagree with the noble Lord to some extent, because I thought that in his brilliant speech he put rather too much weight—and I am very sorry to have to say this—on the response, reaction and power of Parliament. In the past 15 years—I make no political distinction whatever—there has been a steady encroachment of the executive on the influence and power of the legislature. That has increased, partly in legitimate response to concerns about security after 9/11.
The great issue that confronts us is how we limit the demands of security, which are now powerfully enhanced, by setting against them the responsibility of Parliament for upholding the liberties on which the whole significance and justice of our society depend. That makes the position of the Lord Chancellor/ Secretary of State for Constitutional Affairs much more important than it was a few years ago.
In the United States, there is a full and thoroughgoing separation of powers. Following the Patriot Act, the Senate finally woke up—it was very late in doing so—to depending upon its own considerable status and holding the executive to account. That happens much more rarely in the United Kingdom.
How can we enhance the powers of the new department? One way is that suggested by the noble Lords who tabled the amendment. There are other ways in which we need to address the question. We need to consider whether we should set any conditions. We also need to consider the argument for the person concerned being a lawyer, with a more instinctive knowledge of the rule of law. We also need to consider the question of whether he or she should sit in this House or another. On that, I am persuaded by the arguments of the noble and learned Lord the Lord Chancellor that the Prime Minister should not be constricted in that way.
Finally, we must address the most difficult question of them all. The Lord Chancellor, in his speech on the first group of amendments, pointed to the need for the most capable, able, intelligent and, above all, courageous person to be appointed to the job we are now discussing. I hate to say it, but we must address the fact that there is no longer the trust in politicians that once existed. Therefore, arguing that the crucial issue is who a Prime Minister—any Prime Minister—has in mind and that he will always have regard to the integrity and courage of that person rather than to his own association, party links or whatever, no longer carries a great deal of weight with the public.
For those reasons, I believe that we need to be more specific about some of the powers that should adhere to this department and about some of the requirements 1224 we would expect the person appointed to it to meet. We must recognise the fact that that extraordinarily negative vote we have just seen in part arises as much from distrust in politicians as it does from the view that the title Lord Chancellor should be retained.
§ 9 p.m.
§ Lord Lloyd of Berwick
I want to follow the noble Baroness in the wider ground which she has opened up before us, but it is better to confine myself strictly to the amendment now before the Committee. I support Amendment No. 3.
In the Select Committee, as I am sure the noble Lord, Lord Richard, will confirm, we waited anxiously from day to day for the Government to produce an amendment to cover the inclusion of the rule of law. At that stage, I thought that that was common ground. Eventually, at the 59th minute of the final hour, an amendment was produced and it was, as accurately described by the noble Lord, Lord Crickhowell, quite unacceptable.
If I had been asked before 12 June 2003 whether we should ever be debating in this House an amendment which would require Ministers of the Crown to uphold the rule of law, I would have thought that was perfectly absurd. Of course Ministers must uphold the rule of law. It is one of the basic facets of our constitution. But all that changed when the Government decided to abolish the office of Lord Chancellor. It is because of that decision—and only because of that decision—that this amendment is now necessary. I support the amendment.
§ Lord Campbell of Alloway
I support the amendment. The wider appreciation of the noble Baroness, Lady Williams, encapsulated some of my own thoughts and anxieties. I know not yet how those may be resolved. The rule of law and judicial independence as such are all but incapable of definition. Being incapable of definition, they cannot be enforced by any court of law. There is no suggestion that they should be or that Clause 1 should be amended to confer express jurisdiction.
That being so, I come back to the way in which the noble Baroness, Lady Williams, presented the situation. I do not know what the committee's view was, as I was not a member. I just read the report, but I did not find much in it to help me with this problem. Is it to be assumed that the committee took the view that these obligations, as they were incapable of definition and enforcement by the courts, should not be enforced by the courts? If it took that view—and I have a feeling that it may have done, although I do not know what its view was—
I have been waiting ever since my speech for the chance to intervene on the noble Lord, Lord Campbell of Alloway. If we accept the principle that the obligation can be neither defined nor enforced, what happens to the legal principle of certainty?
§ Lord Campbell of Alloway
I shall try to deal with that. I am very grateful for the intervention, which was wholly irrelevant to the question, with respect. There is a far wider problem apart from the question; it was raised eloquently and objectively by the noble Baroness, Lady Williams of Crosby. What was the Select Committee's attitude? Was it that there would be no recourse to enforcement of these obligations by the courts or was it not? I assume that, as the obligations could not be defined, they could not be enforced by the courts.
§ Lord Lloyd of Berwick
I shall let the noble Lord complete his speech, but I would like to ask him a question before he sits down.
§ Lord Campbell of Alloway
If the obligations cannot be enforced by the courts, it seems that the only way in which they can be enforced is by retaining the persuasive powers of the Lord Chancellor in a constitutional role in the Cabinet. If that is the position, what other measure is to be taken?
§ Lord Lloyd of Berwick
On the question of what was discussed in the committee, there was no agreement on whether the clause was enforceable. As the noble Lord will notice, I have tabled Amendment No. 16, which is specifically designed to make the duty under Clause 1 enforceable in the courts.
§ Lord Brennan
I am about to give some advice to my noble friend the Minister which is gratuitous and, therefore, all the more likely to be objective: he should approach this question with extreme caution.
The Bill is about the independence, structure and administration of the judiciary. In any written constitution, that would be a discrete chapter. Although I commend the sentiment that the rule of law should prevail in our justice system, to latch it on to the end of a clause dealing with the independence of the judiciary is constitutionally clumsy. If we were debating a written constitution, the role of the rule of law and our obligation throughout government and justice to maintain it would be a declaratory statement and the first or second article of a written constitution.
It is therefore inappropriate for us now to use the phrase loosely, as if we all know what it means, in the context of this clause, for the following reasons. First, the rule of law requires to be defined. It is not a law in the sense of an enforceable law between parties, so much as a constitutional principle that feeds the justice of the community to which that constitution applies.
Secondly, in determining what the phrase means constitutionally to our community, we must consider broader considerations than justice. Clause 1 refers in subsection (1) to the role of Ministers and those connected with the administration of justice. The rule-of-law obligation should apply to all Ministers in all departments. 1226 Thirdly, subsection (1) says:Ministers of the Crown and all with responsibility for … the administration of justice".The "and" is conjunctive, not disjunctive. That means that this all requires some careful consideration. That is not to demean the intent of the amendment, rather to ensure that when we debate it further, and when my noble and learned friend from the Government considers it, our responses are produced carefully. What he says tonight and hereafter will be seized on as the view of the Government on the status of the rule of law in our constitution. That requires very careful thought. The amendment proposed by the noble Lord, Lord Windlesham, is extremely simple; the amendment proposed by the noble Lord, Lord Goodhart, is analytically unacceptable when it is subjected to some careful thinking, and neither really achieves the intent of all parties.
This is important stuff. In the enthusiasm to deal with the judiciary constitutionally, those who are conservative become liberal and expand it to include the rule of law in a general way. I commend the enthusiasm, but let us do it carefully, comprehensively, and in a way that has constitutional significance across the board.
§ Lord Slynn of Hadley
The noble Lord Lord Brennan has beaten me to it in his gratuitous advice. He is obviously more nimble than I am in getting up.
I support the inclusion of a reference to the rule of law somewhere in the document, but I have some hesitation in including it in subsection (1). I shall be brief, because my noble friend Lord Brennan has already said it, but the clause deals with those,with responsibility for matters relating to the judiciary or otherwise to the administration of justice",and it probably would be construed as meaning, "Ministers concerned with matters relating to the judiciary". In other words, it would read, "Ministers of the Crown and all others with responsibility for matters relating to the judiciary". If it is meant to apply to all Ministers of whatever kind, whether concerned with the judiciary or otherwise, that ought to be made explicit. I can see some lawyer appearing before the Judicial Committee—I hope that it is still in existence —arguing that there is a doubt about this.
It is common in constitutions for there to be a reference to the rule of law simply as a principle of the constitution. I hope that I am not misremembering, but I think that in the Treaty of Rome as amended, and in the draft constitution, there is a reference to the rule of law as a principle of the constitution. That seems to me—despite the anxieties of the noble Lord, Lord Carter, which I well understand—to point without doubt to not including a definition of the rule of law in the Bill. Judges have been applying the rule of law, enforcing it, making people act in accordance with the rule of law, and preventing people acting contrary to the rule of law for a long time without necessarily on every occasion giving a clear, specific, detailed definition of it. 1227 I support the inclusion of a reference to the rule of law somewhere, but I am not in favour of including a definition of what is in essence a constitutional principle.
§ 9.15 p.m.
§ The Lord Bishop of Worcester
Perhaps I may build on this debate. Much of what we have been saying today seems to have been a struggle towards some articulation of social transcendence. That may sound rather abstract and pretentious, but we are trying to find a way of speaking about that which overrules even that which rules us, or even those who rule us, and to which those who rule us are, in some sense, accountable, even if they could get a popular majority for a quite different course of action.
I am not nostalgic about a society in which everyone assented to the kinds of assumptions that are built into our daily prayers. But it is not possible for a society to do without some articulation of the transcendent in relation to its own life, even if that is done in entirely humanistic terms. I would hold that there will always be limitations to our ability to do that. But I think that that is what we are struggling towards.
As I understand it, to have some articulation of what the rule of law means —because it is not the rule of a law; it is certainly not the rule of lawyers; and it is not the rule of politicians—is to have a discussion about what it is to which we are all accountable: that is, not just this Minister; not just all Ministers; not just all Members of the Houses of Parliament, but everyone. That cannot be dealt with by inserting three words into a clause. Nevertheless, it is an important obligation that we do not lose the fact that that is what is emerging from this important debate about this important Bill.
§ Lord Kingsland
I should like to ask the noble Lord, Lord Goodhart, another question about his amendment. New subsection (3) in Amendment No. 19 states:Nothing in this Act shall derogate from the sovereignty of Parliament".As I understand it, the sovereignty of Parliament is a doctrine of the courts. If I am correct in that, what function does making a reference to it serve? The courts in their jurisprudence will determine exactly what the sovereignty of Parliament is in a particular context. They might take the view, as did many courts in the 16th and 17th centuries, that the sovereignty of Parliament was qualified by the genius of the common law; or, as in 19th century Benthamite England, they might take a much more robust view about the powers of the legislature. But in the last resort it is the courts that define the sovereignty of Parliament, not Parliament itself. In those circumstances, is it really very helpful to add subsection (3) to the amendment?
§ Lord Goodhart
I think that it is inaccurate to say that the sovereignty of Parliament is a creation of the courts. It is something that is certainly recognised by the courts, but it is a constitutional principle. It was recognised by Dicey, as is well known, and by many 1228 other distinguished constitutional lawyers since. There have been questions about whether there is a limit to the sovereignty of Parliament and, if so, what that is.
The intention behind subsection (3), and why it is necessary to include it, is that, as I said in my speech earlier, there is the possibility that at some time we might get a major conflict—which could have happened on the ouster clause in the asylum Bill—between the courts and the Government about whether the courts were bound to recognise the sovereignty of Parliament and the legitimacy of decisions made by Parliament. It seemed desirable that the question should be left as open after this Bill as it was before. I did not want any conclusion to be drawn that, because there was a specific reference in this Bill to upholding the rule of law, therefore parliamentary sovereignty was in any way less than it would be if this Bill were not passed. I hope that that is an adequate explanation of why I included this particular amendment.
§ Lord Campbell of Alloway
As we appear to be debating Clause 19, having listened to what the noble Lord has said, I cannot see the slightest justification for retaining subsection (3). It does not make any sense at all.
§ Lord Elton
As a non-committee member and a non-lawyer, I am a little puzzled over the difficulty about the rule of law. Are we not simply asking Ministers of the Crown to do what we ask the wearer of the Crown to do when we say, "May she uphold our laws" and perhaps adding sotto voce, "Until you are able to change them"? That is what it comes down to. It is for Parliament to see whether the laws are changed or not.
§ Lord Kingsland
There appear to be two separate issues as regards the clause with which we shall have to grapple over the next few days in Committee. The first is whether it should be enforceable. That is dealt with in later amendments. The second is the content. At one level one might say that, constitutionally, the rule of law deals with issues such as the ouster clause; or one might posit an unlikely set of circumstances in which Parliament passed an Act limiting the franchise of the electorate. Those are two circumstances in which the courts might decide that the fundamental nature of the common law constitution was undermined by the sovereignty of Parliament.
At the other end of the scale it might be said that a defendant's rights in a criminal trial form part of the rule of law. I am rather attracted to that argument because it seems to me that the weakest point of the European Convention on Human Rights relates to the rights of the accused in a criminal trial. That arises, I believe, because we in this country have a very different system of criminal litigation to that on the Continent. There the protections are in my view at a much lower level. Therefore, the jurisprudence of the European Court of Human Rights is not much help, for example, when governments introduce proposals about propensity evidence to be led by the prosecution. 1229 I believe that the issues of content and enforcement have both to be looked at in greater depth as we move closer to the heart of this topic. I heard with interest the views of the noble and learned Lord, Lord Slynn of Hadley, and of the noble Lord, Lord Brennan, who rightly identified a possible weakness in the positioning of the amendment. Nevertheless, I believe that the expression "rule of law" has to come somewhere. I shall be interested to hear what the Lord Chancellor says about it.
§ Lord Falconer of Thoroton
This is an important issue which I do not believe we can resolve tonight. We have always been particularly concerned to ensure that our constitutional reforms in no way dilute the rule of law as a fundamental principle of the United Kingdom constitution. On the contrary, we believe that the overall effect of the reform should and will be to strengthen the constitutional principle of the rule of law by entrenching the independence of the judiciary and ensuring increased clarity and transparency in judicial and ministerial rules.
Members of the Select Committee who considered the Bill considered amendments similar to those before us. They also considered a government amendment. I have not tabled that amendment again as I first wished to listen to the views of Members of this Committee on what principles they believed an addition to the Bill on the rule of law should encompass.
Noble Lords have already raised the importance of ensuring that the rule of law continues to be upheld, but before we get to the detail of such an amendment, perhaps I may seek to establish clearly what the objectives are that we are seeking to address in this Bill. It seems to me that there are a number of key principles that ought to guide us in our consideration of this issue, excepting as I do that there should be a reference to the rule of law in the Bill. The principles are as follows.
First, in referring to the rule of law in the Bill, we ought to be seeking to ensure that the responsibilities in regard to the rule of law currently discharged by the Lord Chancellor are, after the change or abolition of that office— whatever may happen in the future—still discharged within government.
Secondly, the responsibilities of the Lord Chancellor or the office holder in regard to the rule of law arise, I believe, from his or her ministerial responsibilities for the justice system. Thirdly, we must accept that other Ministers of the Crown have responsibilities in regard to the rule of law; for example, the simple proposition that they must abide by the decisions of the courts. But the Lord Chancellor, or whatever the office holder may be called, because of his responsibilities for the justice system and their importance for the rule of law, has a special position within the Cabinet and within the executive.
Fourthly, the responsibilities of the Lord Chancellor or office holder in regard to the rule of law are not and should not be a matter for enforcement by 1230 the courts. They are discharged in the Cabinet and in the executive through his position there and his influence in discussion with his colleagues. The operation of Cabinet government is central to our constitution and we should not be seeking to change that in the Bill by imposing a duty that would fall to be discharged in Cabinet, but that could be subject to judicial review going to the merits of the action taken or not taken by the office holder.
Fifthly—and this is why I think that in terms of principle, the noble Lord, Lord Goodhart, is right in his third subsection—any provision we add to the Bill should not in any way restrict the ability of Ministers or others to put proposals before Parliament on which Parliament can then decide.
Finally, any provision we add to the Bill must properly take account of the roles of persons other than Ministers in regard to the rule of law, and not undermine their—the other person's—proper responsibilities. It is not the purpose of this Bill to codify the roles of all persons with responsibilities for the rule of law in our constitution. The danger of codifying some and not others is that we would upset the delicate balance that currently exists, which is not defined and could not be satisfactorily defined, in statute.
A further general point about the rule of law which I think must guide our deliberations is that the rule of law is not itself a directly applicable legal rule, but a description of the status that the law as a whole should be accorded within our constitutional system. It informs the content, interpretation and application of the law, as the courts have often said in, for example, cases involving Article 6 of the European Convention on Human Rights. But the rule of law is not and never has been of itself a standalone legal doctrine. It does not by itself form a directly applicable part of the law, so the courts could not at present declare actions to be illegal solely on the ground that they were contrary to the rule of law. If the rule of law is engaged, there must be some specific legal rule that gives expression to it before the courts can intervene. Any amendment that did not take account of this distinction would have constitutional effects reaching far beyond the subject matter of this Bill.
It follows from the above principles that any provision in the Bill on the rule of law should seek to provide reassurance that the existing position in relation to the rule of law is preserved while avoiding wider constitutional effects. It should preserve the balance in our constitutional arrangements while demonstrating the continuity and providing the clarity that noble Lords both on the Select Committee and in this Committee have been rightly anxious to secure with respect to the constitutional principle of the rule of law.
Before proceeding to the detail of the amendments I would like to make one further point which I think is highly relevant and was touched upon by the noble and learned Lord, Lord Slynn of Hadley, but which is frequently overlooked. 1231 9.30 p.m.
The point is that securing the independence of the judiciary forms a very substantial part of the Lord Chancellor's current role in upholding the rule of law and of Clause 1 of the Bill. The starting point for any attempt to define what is the Lord Chancellor's role with respect to the rule of law must be his ministerial responsibility for the justice system. Fundamental to this is the need for an independent and impartial judiciary. The centrality of that need to the rule of law is something that all commentators on the topic agree upon.
That substantial part of the Lord Chancellor's role in upholding the rule of law has already been referred to in Clause 1 of the Bill. The duties imposed represent a very substantial strengthening of the protection for judicial independence by comparison with the present position. Not only is the current role of the Lord Chancellor in securing judicial independence placed in a statute for the first time, it is also extended to all government Ministers.
The task in hand in relation to the rule of law in the Bill is therefore to define what additional role the Lord Chancellor has in relation to the rule of law, over and above the question of judicial independence, and to provide for continuity with that role after the office is changed. It seems to me that many of the differences—if there are differences—between the Government's position and that of others in your Lordships' House, and many of the difficulties we have identified with the amendments now before us, can be traced back to this point.
In short, we do not think that the point is properly taken account of in the amendment tabled by the noble Viscount, Lord Bledisloe—a matter to which I will return in a moment, after recalling the views of the Select Committee in relation to the rule of law.
The Select Committee that examined this Bill was able to agree on a number of significant areas with respect to the rule of law, although perhaps these areas have received less attention than the areas of disagreement. For that reason, the Committee was able to agree easily that it is desirable for the Bill to make reference to the rule of law. We also agreed, first, that the reference to the rule of law should replicate as far as possible the responsibilities in regard to the rule of law currently discharged by the Lord Chancellor. Secondly, we agreed that, while other Ministers have responsibilities in regard to the rule of law, the Lord Chancellor has and should continue to have a special role in relation to the rule of law within the Cabinet. Most of the Committee, though not all, agreed that this duty is not and should not be directly enforced through the courts, but stems from his position in Cabinet and is exercised by way of his influence in discussions with colleagues.
The simplicity of the amendment of the noble Viscount, Lord Bledisloe, at first seems alluring. Indeed, my initial inclination was exactly the same as his. At the outset it appeared that achieving our objectives would simply require a reference to the rule 1232 of law to be added to Clause 1 of the Bill, as this amendment seeks to do. However, closer scrutiny has revealed some fundamental problems.
As I have said, the rule of law denotes a state of affairs in which, in the event of conflict, the law has paramount force and effect in relation to any persons, institutions, interests, values, customs, practices, and so forth. It is not a directly applicable legal principle but a description of the status that the law as a whole should be accorded within our constitutional system. It can inform the content, interpretation and application of the law, but is not itself a directly applicable part of the law.
This amendment would remove that distinction and make the rule of law into a directly applicable legal doctrine, binding on certain individuals. On one interpretation, it would require those individuals to ensure that a constitutional state of affairs, that is, the supremacy of law, prevails in all circumstances. On another, it would require them to act in accordance with a standard determining the legality of their actions and possibly to enforce that standard in relation to the actions of others.
On either interpretation, the amendment is unsatisfactory for three main reasons. First, the amendment could not work because the content of the principle of the rule of law is controversial, with opposing views having been expressed over time by judges, academics, politicians, and practitioners. So individuals could never know with certainty what was required of them. Secondly, the amendment treats in identical terms roles that are fundamentally different.
At present, the rule of law is upheld—that is, the supremacy of law is secured—primarily by the courts. The prominence of their role follows from the fact that it is they who have the authority to interpret the law and authorise its enforcement against all persons, including against the Government.
Others, too, have roles in upholding the rule of law. The nature, extent and content of these roles varies considerably and has developed gradually over centuries as part of the process of constitutional development. Parliament ultimately has the power to make or unmake any law. The Attorney-General advises the Government on the law and represents the public interest before the courts. The police prevent and investigate criminal behaviour to ensure that the criminal law is enforced. The legal profession advises and represents individuals, corporations and governments in their dealings with the courts and with each other. This helps to ensure that the law prevails in private dealings, in police investigations and in court proceedings. Ministers are required to obey the law but do not generally have any direct role in enforcing the law against others.
None of these roles is presently defined as such in statute although the relative positions of some of the players are buttressed by specific statutory or common law rules—such as, for example, the provisions in the Act of Settlement about the removal of judges. They are all different in nature and content. They fit together to form the overall structure of the 1233 constitution and ensure the status of the law within it. None of them amounts to a comprehensive duty to ensure that the rule of law is upheld in all respects. No one in our present constitutional system has such a duty.
Seeking to impose upon Ministers of the Crown and all with responsibility for the administration of justice an unqualified statutory duty to uphold the rule of law, which is the effect of Amendment No. 3, fails to recognise that none of these persons would be in a position by themselves to ensure that the rule of law is upheld even within the limits of their own constitutional roles. It also fails to recognise that the status of the law within the constitution can only be guaranteed as the net effect of different independent roles that complement and, at the same time, act as checks and balances upon each other. Making each and every one of these persons comprehensive guardians of the rule of law in identical terms, which is the effect of Amendment No. 3, would ignore these distinctions and impose a duty on each that he would find himself unable to fulfil.
The Lord Chancellor has certainly never been subject to such an undifferentiated duty. As I have said before, we have already improved upon the Lord Chancellor's role in defending judicial independence in Clause 1 by giving it statutory expression in unqualified terms and extending it to all Ministers of the Crown. That is an important advance. The issue we are grappling with now is to define and give expression to what else the Lord Chancellor's role in relation to the rule of law comprises.
I very much thank the noble Lords, Lord Goodhart and Lord Maclennan, for their amendment. It is an interesting and thoughtful attempt to come to grips with the complexity of this matter. The approach suggested in their amendment is much more in line with the principles that I have already set out as key to our consideration of this important issue. The amendment appears to have considerable merit but I wish to consider the draft further. I believe that, as it stands, the draft does not quite address some of the concerns I have raised in relation to the other amendment on the rule of law of the noble Viscount, Lord Bledisloe, that we have debated.
As drafted, the proposed subsection (1) could give rise to considerable legal uncertainty—there is a difficulty about what is meant by the rule of law—but, as I said, I accept that the words "the rule of law" have to go into the Bill somewhere. The amendment that I proposed to the Select Committee referred to the rule of law as an existing principle. The intention was to make it clear that whatever is agreed as encompassing the rule of law now is the principle that we are seeking to safeguard in the future in order to provide as much certainty as possible. I am concerned that the unqualified mention of the rule of law—that is, without reference to the word "existing"—as per the amendment would not provide this clarity or certainty.
I also have some concerns that unless the Bill makes clear that it is the existing principle of the rule of law that is to continue, the provision could be interpreted 1234 as creating a new constitutional principle. I think we all agree that we are seeking to replicate an existing principle.
Subsection (2) of the amendment causes some difficulty in its use of the term "respect". I remain unsure what is meant by this term in this context and what its effects in practice are intended to be. More importantly, I am not sure how the courts, if it were ever to come to it, would interpret the term. That uncertainty is reflected in the fact that, as far as I am aware, a statutory obligation to respect something is hitherto unknown in primary legislation. When dealing with a contested and potentially fluid concept such as the rule, I have reservations about introducing more uncertainty of terminology.
I also have some misgivings as to whether the amendment appropriately takes into account other important constitutional principles. We must be very careful not to disturb the balance of existing constitutional principles, as I have gone through before. I accept that proposed new subsection (3) seeks to acknowledge the sovereignty of Parliament, but there are other principles whose status under the proposed text would need to be considered very carefully.
There is no doubt, as I have said, that we need to introduce provision in relation to the rule of law. I remain committed to bringing in an amendment to ensure that the rule of law continues to be upheld. I have listened carefully to the debate and will seek better to understand the views of the whole House before tabling an amendment of my own at a later stage. That later stage will be while the Bill goes through this House.
No written constitution, to my knowledge, has a provision imposing general obligations to uphold the rule of law. Given the nature of the principle, and the complexities and subtleties of its application, that is perhaps unsurprising. That highlights the scale of the task before us, and the importance—as the noble and learned Lord, Lord Slynn, and the noble Lord, Lord Brennan, said—of not rushing ahead and of ensuring that we get this provision right. I hope that in those circumstances the noble Lord will feel able to withdraw his amendment.
§ Viscount Bledisloe
Can the noble and learned Lord be a little more specific about what he intends to happen if the amendment is not now pressed? He said that he would bring forward an amendment at some later stage of the Bill before it leaves this House. In the light of our previous experience, as vividly described by the noble Lord, Lord Crickhowell, I am afraid that we want something more categorical.
Will the noble and learned Lord assure us, first, that he will produce that amendment for Report, and, secondly, that he will circulate and discuss it with those who have taken part in this debate before tabling it?
§ Lord Falconer of Thoroton
It would be useful to have a discussion with those people who have taken part in this debate and those who were members of the 1235 Select Committee. I very much hope that I will be able to table an amendment before Report. As Report will probably not take place until October or November, I have a very long time in which to prepare it.
§ Lord Windlesham
The response of the noble and learned Lord, Lord Falconer, was in two parts, almost audibly so. There were his own extempore reactions for the first three or four minutes and then the Government's prepared response, which he was naturally bound by, but treated with a fairly free hand. There was generosity in those replies. The importance of rule of law is clearly recognised by the Minister, as well it should be. It is a question of how that primacy can best be reflected in the Bill. We can take encouragement from what has been said, particularly in the last few minutes of his reply.
The short debate was also notable for the contribution of the noble Baroness, Lady Williams of Crosby. If I may say so to her, and to Members of the Committee, there are few people who have done more to encourage the growth of human rights in their public career—hers is a very long public career—than she has, irrespective of the Benches on which she was sitting at the time. Her contribution was a most important one. We value it and thank her.
The noble Lord, Lord Brennan, made a conservative speech. He said that, broadly speaking, things were all right as they stand and any question of introducing changes, amendments and so on had to be looked at most carefully. Broadly speaking, he appeared not to favour any change at all. That was a revelation from someone whom we respect as one of the greatest orators in the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 9.45 p.m.
§ Lord Falconer of Thoroton
moved Amendment No. 4:Page 1, line 7, at end insert— "( ) Subsection (1) does not impose any duty which it would be within the legislative competence of the Scottish Parliament to impose.( ) A person is not subject to the duty imposed by subsection (1) if he is subject to the duty imposed by section 1(1) of the Justice (Northern Ireland) Act 2002 (c. 26).
The noble and learned Lord said
Amendments Nos. 14, 90, 91 and 98 are grouped with this amendment. These amendments address two issues relating to the extent of Clause 1. First, we have concluded that in one sense the present drafting is too narrow. As it stands, the duty is confined to the territory of England and Wales only. It could therefore be argued that it applies only to the actions of Ministers and others that take place within the physical limits of England and Wales. It could also be argued that the judiciary other than that of England 1236 and Wales fall outside the scope of the protection afforded by the duty. It would not include the justices of the new Supreme Court, the judiciary of Northern Ireland and Scotland, and the judiciary of international courts and tribunals.
Secondly, we think that the drafting is too broad in another respect—it does not take account of the positions of the devolved administrations in Scotland and Northern Ireland. The scope of the clause needs to be narrowed to take account of that.
The effect of the amendments in this group is as follows. The territorial extent of Clause 1 will be the whole of the United Kingdom. Clause 1 will remain binding on Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice. The clause will not impose any duty that could be imposed by the Scottish Parliament. It will not, therefore, infringe on the competence of that Parliament. That is in line with the unanimous views expressed by the Select Committee. Those bound by the parallel provisions in Section 1 of the Justice (Northern Ireland) Act 2002, which already contains provision in relation to continued judicial independence and to which my Amendment No. 17 refers, will not be bound by the existing Clause 1 duty. As both duties will be coextensive, the effect of being bound by either one of them will be the same.
I believe that this approach accords with the opinion of the Select Committee on these issues. But, I should spell out one aspect of the amendments that could, at first blush, appear not to be in line with the opinion of the committee. The Government, respecting the devolution settlement, fully accept that Clause 1 should not bind Ministers of the Scottish Executive and their officials, or otherwise operate within the competence of the Scottish Parliament. My Amendment No. 4 achieves that. However, the Government believe that the object of Clause 1 should be all of the judiciary of the United Kingdom, including the judiciary of England and Wales, of Scotland, Northern Ireland and the justices of the Supreme Court of the United Kingdom. It must be right that the responsibilities of UK Ministers should cover all members of the judiciary in the UK. That said, Amendment No. 4 makes it clear that it will be for the Scottish Parliament to decide whether, and if so what, duties in this area are appropriate for the Scottish Executive. I would note that the approach taken by these amendments has been agreed with those in the devolved assemblies.
Amendment No. 98 limits the territorial extent of Clauses 2, 4 and 5 to England and Wales only; those clauses deal with the judicial posts in England and Wales. I would also note that Amendment No. 14 defines the "judiciary". As well as covering all members of the UK judiciary, the amendment will cover the judiciary of any court or tribunal which exercises functions of a judicial nature in pursuance of any international agreement to which the United Kingdom is a party or any resolution of the Security Council or General Assembly of the United Nations. That would include the International Court of Justice, 1237 the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Court, the European Court of Justice and Court of First Instance and the European Court of Human Rights.
Finally, Amendments Nos. 90 and 91 make it clear that the term "Minister of the Crown", as used in Clause 1, follows the definition in the Ministers of the Crown Act 1975:holder of an office in Her Majesty's Government in the United Kingdom".That makes it clear that Ministers of the Scottish Executive are not caught by the clause. I beg to move.
§ The Duke of Montrose
I need a little clarification. Not being a lawyer or having gone into all the findings of the Select Committee, is it right that the Scottish Parliament has no role in relation to the independence of the judiciary? I see from the Scotland Act that the existence of the High Court and the Court of Session is reserved to the United Kingdom Parliament at Schedule 5, under reservations to the constitution. I believe that the salaries and pensions of judges are also reserved to the United Kingdom Parliament under financial and economic matters.
Perhaps the Scots are not totally excluded because I believe that in certain circumstances, Scottish Ministers are Ministers of the Crown. There is a stipulation under Section 52:Statutory functions of the Scottish Ministers, the First Minister or the Lord Advocate shall be exercisable on behalf of Her Majesty".
I am not sure whether that means that they rate as Ministers of the Crown and, as such, have a responsibility for the independence of the judiciary.
Under Clause 53:The functions … so far as they are exercisable within devolved competence, [shall] be exercisable by the Scottish Ministers instead of by a Minister of the Crown".
It seems to me that it is not the Scottish Parliament that has to do with the independence of the judiciary, but perhaps some Scottish Ministers.
§ Lord Falconer of Thoroton
First, Ministers of the Crown do not include members of the Scottish executive. Secondly, the Scottish Parliament has legislative responsibility for a measure similar to Clause 1 in so far as it affects Ministers of a Scottish Parliament or the Scottish executive. That is why we have not included them in the provision.
Thirdly, the reservations in the Scotland Act, to which the noble Duke referred, relate to the existence of the Court of Session only, and this has nothing to do with the existence of the Court of Session. Justice is devolved, which is why if there were a duty that Scottish Ministers should be prevented from interfering with the independence of the judiciary, it would be a matter for the Scottish Parliament, not this Parliament. 1238 In relation to the changes that we have made, we have done two things. First, any Minister of the UK executive should be prevented from interfering with a judge, wherever he—the Minister—might be geographically. Secondly, that includes judges of the Scottish court.
§ Lord Cullen of Whitekirk
I wonder whether I may make a few comments on Clause 1 as affected by Amendments Nos. 4 and 14.
I am grateful to the noble and learned Lord the Lord Chancellor and Secretary of State for pursuing the objective to which the amendments are directed. It is clear that, even if one proceeds on the basis of the opinion expressed by the Select Committee report that it should be left to the Scottish Parliament to impose on Scottish Ministers duties similar to those in Clause 1, there would still be an anomaly in that Ministers of the Crown and other persons who have responsibilities throughout the United Kingdom would be subject to Clause 1 duties only as regards England and Wales.
Amendment No. 14, along with a consequential amendment to Clause 109(1) which deals with extent, are designed to fill that gap.
The terms of Amendment No. 4 do not impose any duty which would be within the legislative competence of the Scottish Parliament to impose. I appreciate the difficulty in devising a form of words that leaves a Minister or other responsible person in no doubt as to when he or she is subject to a duty under the clause, as it would be amended. It may be possible to improve the wording. No doubt that can be discussed in due course.
§ Lord Falconer of Thoroton
I am obliged to the noble Lord, Lord Cullen, for that intervention. Certainly, if the wording can be improved, we would consider an amendment on Report. I shall entertain suggestions on those lines.
On Question, amendment agreed to.
§ Lord Evans of Temple Guiting
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.