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Mr. Grieve: My hon. and learned Friend is correct—and he reminds me of the first part of the hon. and learned Lady's question, which I did not answer. Of course, the lack of a suitable criminal judge among the Law Lords is perfectly curable under the existing system, especially as we would be willing to have a new system for the appointment of Law Lords if the Government so wished. That would tie in precisely with our views on the judicial appointments commission generally, although I accept that a separate body would operate. We have no difficulty with that.
We have indicated by our reasoned amendment that we consider that this Bill is not worthy of support in its present form. I heard the Minister's comments about the Lord Chancellor and what the Minister intends to do with the Lords amendments in Committee, and that reinforces my view that the sensible thing to do is to vote for the reasoned amendment.
When the Bill comes to Committee, we will do our best to improve it. I again ask the Government to reconsider, even at this stage, their position on which parts of the Bill are taken on the Floor of the House. If the Government want and are prepared to listen, they could, notwithstanding our reservations, still end up with a Bill that will command widespread approval and stand the test of time. However, the way that the Minister and the Government are going at the moment does not give me confidence that that will happen. The truth is that the Government will have difficulty in the other place when the Bill returns there, and they deserve that. It is a pretty fitting epitaph on the way that they have handled this matter.
5.30 pm
Ross Cranston (Dudley, North) (Lab): I declare my interest as a lawyer and part-time judge. I see one other Member in the Chamber who sits as a recorder.
I want to start with the important principles that are set out in clauses 1 and 4, which deal with the rule of law and judicial independence. It is vital that we focus on principle so as to build a system in accordance with principle. Other important values include equality before the law and access to justice, which has already been mentioned in the debate. There is an issue about whether the clauses would be justiciable, but the fact that they are in the Bill and will therefore be part of the Act is not just symbolic; the clauses are cardinal in our system.
How do we define the principles of rule of law and judicial independence? We can do so negatively. We can look, for example, at Zimbabwe. The Bar Council and other Bars around the world recently published a report demonstrating how there is no longer the rule of law in Zimbabwe. Mugabe has said:
The report sets out how the independence of the judiciary and the rule of law have been corrupted. Judges who have handed down decisions adverse to the ruling party have been arrested, and up to 10 judges have left and hacks have been appointed in their place.
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More positively, we have clear definitions in our law. On the rule of law, as lawyers we tend to go back to what Dicey said—that the rule of law means that no person is punishable except for a breach of the law established in the ordinary manner before the ordinary courts of the land. That contrasts with Zimbabwe, where there is arbitrary power and wide discretionary authority. Secondly, no person is above the law—the principle of equality before the law. Thirdly, the general principles of the constitution are the result of judicial decisions determining the rights of private persons.
In modern language, the rule of law means that the system has to accord with certain formal criteria. The law has to be promulgated to the public; it has to be prospective and not retrospective; it has to be possible to comply with its provisions; it has to be clear, coherent and stable; and the persons who make and administer it should be accountable for the way in which they administer it. One aspect of the rule of law these days is also said to be judicial independence.
As the criteria tend to be formal, some have said that we must also take account of substantive principles. Modern accounts of the rule of law thus include not only formal criteria, but the content of the rules themselves and the nature of the system. When the World Bank recommends new judicial systems to countries, it talks about the rule of law and tells them that they need democratic, open and transparent systems in which several political parties can contest elections. Additionally, public officials must be aware of the limits of their powers and act accordingly.
Judicial independence is mentioned in clause 4. At a basic level, that simply means in some countries that one should be able to buy goods and services, but not judges. The hon. Member for Beaconsfield (Mr. Grieve) mentioned the separation of powers, and I agree with him that Montesquieu got it wrong. It was interesting that he was concerned about the separation of powers because he did not want Executive and judicial power to be coupled to oppress citizens. Even in the United States, the separation of powers does not exist in a pure form because, for example, the Chief Justice of the Supreme Court would have presided over an impeachment trial of President Clinton. Bagehot was right—we have a fusion of powers. The fact that I sit as a recorder and a Member of Parliament shows that this country does not have a strict separation of powers.
None the less, the notion of judicial independence has force. That independence has individual and institutional aspects. The individual aspect is mentioned in clause 4(5), which provides that the Government should not seek to influence the specific decisions of judges. That is absolutely right because courts must be protected from actual or apparent interference by the Executive—there should be no back-door influence. Lord Mackay, a former Lord Chancellor, was right to say that the independence of the judiciary denotes not only independence from the Executive, but the independence of one judge from other judges. Clause 4(5) reflects the international consensus on the meaning of the independence of the judiciary that is set out in international instruments such as those promulgated by the International Bar Association and the United Nations.
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There is a question about whether independence includes the concept of impartiality. Article 6 of the European convention on human rights uses the words "independent" and "impartial". Although some people have suggested that they are separate principles, I prefer to regard impartiality as an aspect of independence. Impartiality means of course not only that judges must not have personal biases or prejudices, but that they must exclude considerations that are not relevant.
A judge must mediate in disputes between citizen and citizen, and the citizen and the state.The institutional aspect of independence is recognised in clause 4(6). It says that a Minister or the Lord Chancellor
"must have regard to . . . the need for the judiciary to have the support necessary to enable them to exercise their functions."
Such support is absent in Zimbabwe because some of its judges have no facilities—several reports suggest that they sit in rooms without electric lights. Governments have an obligation to provide the administrative and financial support that is necessary for the judiciary to do its work.
An independent judiciary does not mean that judges come in with a blank sheet of paper, which is especially important when we consider widening the pool and increasing diversity in the judiciary. We want judges to have varied experience and a range of expertise. They must, of course, act in accordance with law and, according to the judicial oath, without fear, favour, affection or ill will, but that does not mean that they come without any views at all. In fact, it could be argued that the wider the range of experience that judges have when they come to the job, the better.
Judicial independence does not mean that judges are not accountable. The most important way in which they are accountable is that they have to give reasoned decisions, which are available to the parties and the general public. Judgments can be criticised, which is an important aspect of accountability. These days, judges have to be aware of the importance of acting efficiently; time is an important resource. Returning to the principle of access to justice, which I mentioned earlier, the fact that disproportionate resources are given to a few cases means that many outside the system do not get access to justice. Judges also have to be accountable if they are rude to litigants or counsel.
Independence does not mean that judges can decide what they want. They have to act in accordance with the law. Lord Scarman, one of the most prominent Law Lords of the 20th century, who recently died, said that it is not just a matter of deciding what is right; judges have to act in accordance with statute and the common law. If neither statute nor common law gives a clear answer, it is possible to reason by analogy. One cannot simply decide issues without any guidance from law whatsoever.
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