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Mr. Straw: We want changes in article I.40, not least in respect of I.40.7 and I.40.6, and the articles in part III that it triggers, as I have already explained. My response to my hon. Friend's first point is straightforward: of course we can do things by ourselves, but working in alliance with the United States and with our European partners—not seeing those as alternatives, but with the alliance with the United States complementing and strengthening our alliance with our European partners—we can do so much more good in the world and be so much more effective in pursuing our British foreign policy.

Hugh Robertson (Faversham and Mid-Kent): In purely practical terms, what difference would the European security and defence policy, once implemented, have made to operations in Afghanistan or Iraq?

Mr. Straw: In Afghanistan, it might have made a difference, because some of the arrangements might have been operated under ESDP arrangements. As the hon. Gentleman knows, the International Security and Assistance Force is now under NATO command. It is not impossible to foresee circumstances in which part of the NATO command in a large country is made subject to sub-arrangements of an ESDP type.

On Iraq, Europe was split. Europe is an association of sovereign nation states, each of which sets its own foreign policy. Sometimes there is a split, and that will continue even if every last word of the current draft is passed, because it is an intergovernmental matter. However, where we can do so it surely makes sense for Europe to work together on defence, as we are doing in the Balkans and in the Congo and as we may do in future. It is the responsibility of European member states to recognise the phenomenal humiliation of what happened in the Balkans in the mid-1990s, for example. We should have faced up to our responsibilities then and we should do so in future.

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Orders of the Day

Courts Bill [Lords]

As amended in the Standing Committee, considered.

[Relevant documents: The First Report from the Committee on the Lord Chancellor's Department of Session 2002–03, HC 526, Courts Bill, and the Government response thereto, Cm 5889.]

New Clause 2

Judicial Independence

'The Lord Chancellor is under a general duty to preserve and maintain the independence of the judiciary.'.—[Mr. Heath.]

Brought up, and read the First time.

4.30 pm

Mr. David Heath (Somerton and Frome): I beg to move, That the clause be read a Second time.

Mr. Speaker : With this it will be convenient to discuss the following:

New clause 4—General duty—

'The Lord Chancellor and the Department for Constitutional Affairs are under a general duty to preserve and maintain the independence, impartiality and integrity of the judiciary and the lay magistracy.'.

Amendment No. 1, in page 1, line 5 [Clause 1], leave out 'and effective' and insert ', effective and accessible'.

Amendment No. 48, in page 1, line 10, leave out 'and'.

Amendment No. 49, in page 1, line 10, at end insert

', and that there is at least one magistrates' court in every local government area in the United Kingdom (at least one within every borough and district council area in England and Wales)'.

Amendment No. 50, in page 2, line 2, at end insert

'which must include a report on the operation of this legislation and must contain a report by analysts independent of Her Majesty's Government about how the changes brought about by this legislation and other changes since May 1997 have affected the accessibility of courts to court users.'.

Amendment No. 55, in page 44, line 14 [Clause 92], at end insert—

'(3A) The Lord Chancellor may not under this section prescribe fees which seek to recover—
(a) the costs of judicial salaries; or
(b) the notional cost in use of heritage buildings.'.

Mr. Heath: At the first sitting of the Committee that considered the Bill, I said that the first group of amendments that we were debating went to the crux of the Bill and dealt with the key issue for many Committee members—the accessibility to justice that is conferred or denied by the Bill. The present group of amendments goes even wider and deals with three key issues that will be encapsulated in our debates this afternoon. First, there is the issue of judicial independence; secondly, physical accessibility to justice; and thirdly, financial accessibility to justice. I shall deal with each issue in turn.

The issue of judicial independence is encapsulated in new clause 2, as well as new clause 4, which was tabled by the hon. Member for Surrey Heath (Mr. Hawkins). Without wishing to be too pompous about the issue,

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there is a fundamental constitutional arrangement that we would be unwise to dislodge. There are three pillars of democracy—the Executive, the legislature and the judiciary—and our democracy works best when each not only preserves its identity but maintains its independence from the others. Indeed, although it has never been written in our constitution because we have no written constitution, it appears in the constitutions of countries with similar jurisprudence. It was clearly enunciated, for instance, by the founding fathers of the democracy of the United States—John Adams could not have been plainer in what he said on the issue.

When we are talking about the independence of the judiciary, we are not talking about some supposed freedom from criticism that the judiciary ought to enjoy. It is entirely proper that occasionally both the legislature and the Executive have the opportunity to criticise the court process. Indeed, people who say that politicians should have nothing to do with the structures of the judiciary are wrong, as that is essentially a political issue. However, we must be sure that the judiciary is independent in its actions, decision making and the way in which it operates. If those dividing lines begin to be blurred, it is too easy for an Executive to exercise an unhealthy influence on the judiciary. It is probably unfashionable to quote Plato, but he said it all in "The Republic":

"What I say is that 'just' or 'right' means nothing but what is in the interest of the stronger party."

The stronger party will always be the Executive if left to its own devices, which is why we hold the judiciary's independence to be important.

Friction is to be expected—there will always be times when the judiciary takes a different view from the Secretary of State, and the Secretary of State must accept that. Some do so with good grace, and some do so with rather less than good grace. Although I am not the greatest fan of Lord Irvine, I believe he did a good job of preserving that view of the independence of the judiciary, both in Cabinet and elsewhere. In evidence that he gave to a Committee of this House, he said that

"maturity requires that when you get court decisions you favour, you do not clap and when you get a court decision which is against you, you do not boo."

He was right. He did not refer to the Home Secretary by name, so one cannot assume that he had the Home Secretary in mind. Nevertheless, there is a clear dictum there that is worth underlining.

Mr. A. J. Beith (Berwick-upon-Tweed): My hon. Friend may have noted that although we were able to elicit those words from Lord Irvine in Committee, we had difficulty in getting anything quite so strong out of the current Lord Chancellor when we put the same questions to him, hoping that he would be as robust in his response.

Mr. Heath: Not for the first time, my right hon. Friend goes to the heart of the matter. The changes in the Department, not just in personnel—it is unhealthy to personalise the matter too much—the changes in the way that the Department works, and particularly the changes that are envisaged, such as the removal of the

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position of Lord Chancellor and the moves towards a new Department, mean that there are far fewer protections than there have been up to this point. Up to now, however unsatisfactory it has been, we have had a Cabinet Minister who was also a member of the legislature and the head of the judiciary, and could make that point repeatedly if the judiciary was under attack from other Ministers. In future that will not be the case unless we do something to replace the present situation. There is a lacuna in the make-up of the Cabinet that needs to be filled.

Some may hope that that will be done not in the Cabinet but outside, by the Lord Chief Justice. Lord Woolf is doing a remarkably good job of maintaining that position. So adamant is he that he will protect the position of the judiciary that he has delayed his retirement expressly for that purpose. Having said that he learned at "a very late hour" of the significant constitutional changes that the Government have put in train, he feels it is his duty as Lord Chief Justice to ensure that judicial independence is protected, and that the quality of justice for future generations is protected. I agree with him, but I do not believe that that can be done entirely from the position of the judiciary outside Government. That is why the new clause is so important.

The Government accept that there is a risk of the principle of judicial independence being eroded. They made reference to it in the consultation papers that they issued. They said that there is a question that is properly asked, and I accept that. I want to make clear our reply to that question, which is that there is a need for a statutory basis for judicial independence, and that the Bill is as good a vehicle as any to establish it. I hope that the Minister will respond in kind to that before we consider very important legislation in the next Session dealing with the setting up of the Supreme Court and the process for taking judicial appointments away from the Lord Chancellor.

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