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Mr. John Taylor (Solihull) (Con): Before the right hon. Gentleman leaves that important point, does he agree that the ultimate supremacy of the judiciary is essential, because it is always open to an affected party to take a member of the Executive before the court on judicial review? That is why his remarks on this subject are so very important.
Mr. Beith: That is so. Most people take the term "rule of law" to mean that nobody—including Governments and Ministers—is above the law. We see the rule of law being threatened in certain countries when people start to behave as though they are above the law. In Zimbabwe today, for example, we see the judiciary struggling to maintain the rule of law while the Executive are determined to ignore its actions or to override them in various ways. That is a classic example of the dangers that can result when those in power cease to recognise the rule of law. Such people often have at their disposal the physical means to contravene the rule of law, whatever the courts might do to insist that they recognise it.
Mr. Shepherd
: When lawyers, including our top lawyers, are presented with an Act of Parliament that abrogates what the right hon. Gentleman and I think of as the rule of law, they are bound to accept it. That is why a layman such as me needs the rule of law to be clarified and defined, and not simply through reference to that vague hinterland of Dicey or to judges' ruminations on the matter. The right hon. Gentleman was right to remind us of what the then Home Secretary said.
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Mr. Beith: There is a lot to be said for Dicey and his definitions in this field.
The trouble with placing a definition in statute is that it is inclined to narrow rather than to widen. The judiciary has a very good record of using to the maximum the breadth of statute law for the protection of the individual, and I would not want to undermine that by an excessively tight definition, or by a definition that seemed to point us in one direction rather than another. I fully understand, however, the various reasons that have been introduced in support of the amendment. It has been worth introducing them because they have opened up the opportunity for a debate on the issue. Some of the arguments will be able to be considered on another day and in another context, especially those relating to the supremacy of Parliament, which the Bill does not attempt or purport to change.
Mr. Cash: Does the right hon. Gentleman accept that the issue at the heart of this debate is not the rule of law, but the rule of which law? In the context of the European debate, there are competing assertions as to which law is superior. When we talk about the rule of law, therefore, the necessity to get this right is dependent on the question that gives rise to it. In other words, we need to arrive at a definition that asserts the sovereignty of this Parliament, precisely because the European Court of Justice asserts that the constitution of Europe, or the existing treaties, have priority over our own laws, and, in the case of the constitution, over our constitutional arrangements in this Parliament as well.
Mr. Beith: I understand the point that the hon. Gentleman is making. It is one that he has been determined to make on many occasions. However, this part of the Bill addresses the duty of the Lord Chancellor and asks whether he has the express duty to uphold the rule of law. It does not ask in what areas the rule of law presents dilemmas or problems relating to the state of the law, or to which part of the law has superiority. International law issues come into that question, and they are important issues. They are not, however, what this clause seeks to define. Perhaps we are getting back to the Gilbertian expression by a Lord Chancellor:
"The Law is the true embodiment of everything that's excellent . . . and I, my Lords, embody the Law."
That is quite a good description of the way in which Lord Chancellors of the time viewed the matter, but we have moved on since then.
The Bill needs to ensure that the person who holds the office that is, quite usefully, still going to be known as Lord Chancellor, despite its substantially changed character, should recognise that it is part of his duty to remind his fellow Cabinet Ministers of their obligation to the rule of law, and that they should not even appear to want to threaten or compromise it. He should have the authority of statute when he does so.
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Mr. Shepherd : I am very attracted to the arguments of the right hon. Member for Berwick-upon-Tweed (Mr. Beith), the distinguished Chairman of the Speaker's Committee on the Electoral Commission. He addressed himself to what he took as a rough guide to what the rule of law is: no one is above the law. But the rule of law has to be more than that, does it not? Does it not have anything to do with the process of law or the nature of the law? We can all be equal under a tyranny that manufactures laws to imprison us. That is why some of us are very nervous about a Bill that begins with clause 1, "The rule of law". I ask the right hon. Gentleman this: is it the Dicey definition? Is it protected by the conventions that form it, or as judges have advanced it into the 21st century?
These are probing questions. I want to be given some of the answers, with the certainty that I expect from able and competent lawyers—a certainty that I do not have, as a mere representative of Aldridge-Brownhills. What constitutes this concept? We observe the judges seizing a principle of which, when I was a child, we had little cognisance: judicial review. This whole development is outside statute law. Do I object to that? Not necessarily. I puzzle over it sometimes, but I know that between some point in my youth and now the law has changed when it comes to how Governments are held to account.
I do not want to make a meal of it, but these are terribly deep and important principles that inform our freedoms and liberties. My hon. Friends on the Front Bench want to safeguard a concept of the rule of law, and, in all fairness, I do not doubt that the Government do as well. However, the Bill refers to
I return to my original question: what is that? No authority that is a constitutional authority states unchallenged, "This is the principle". We debate the concept and we argue about it. The intention of the Bill, and of clause 1 in particular, however, is to reassure us that the independence and the integrity of the judiciary are safeguarded.
I am struggling to decide whether the Bill is in fact more sinister than the Minister attractively suggested. Indeed, he suggested that it was not sinister at all. I do believe in the principle of the rule of law, but it is a Shepherd principle. Each of us probably has a principle of the rule of law, but as often as not it is half Dicey, half the development of judicial activism. It is how we think it ought to be if it is to secure our liberty and freedom. That is the difficulty with measures such as this, which touch on constitutional principles.
I am glad to observe that the Liberal Democrats have come in behind Shepherd and want a written constitution. That would set out such matters clearly. I know, however, that my hon. Friends on the Front Bench and my hon. Friend the Member for Stone (Mr. Cash) are trying to establish a protection for us all. That is why we talk about the primacy of Parliament or, as I should like it to be called, the primacy of the people. In the end, all these Bills and Acts are constructed only through the authority of the people who send us here on our temporary mission as Members of Parliament.
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5.45 pm
Mr. Heald: I strongly agree with my hon. Friend on his last point. He fairly made the point that the rule of law means a range of things to different people. My hon. Friend the Member for Stone (Mr. Cash) is not seeking to define the whole of what the rule of law may mean. He is trying to home in on one aspect. I believe that defining what the rule of law should mean for this purpose is well worth doing.
Mr. Shepherd: I accept that, but we will come to clause 4 presently. Again, that which it directs judges to consider as sources of law is way beyond anything that we presently acknowledge as having direct effect in British law. That is why, when I think about what the rule of law means in the context of the wider Bill, I am not dismissive of the sovereignty of Parliament. I have no doubt that that is the most fundamental authority for this country and its constitution. However, that constitution is not enacted. It has been developed and accepted by the courts across a period of time. We could say that it is part of the rule of law, but we saw the assault on what a judge seemed to deem constitutional Acts. We are not sure in our own minds, and our courts are not sure, what constitutes a constitutional Act. Even when a judge mentions the special category of constitutional law—these are particular pieces of legislation or statute that we should look at very carefully—it is contradicted by others.
Therefore, there is no certainty as to what this means. I want all the protections for our traditional freedoms—the first in the continent of Europe. That is why the Bill is important. I accept the Government's arguments on that. I understand the purpose behind the Bill, some of which I have no difficulty with, but when we come to this clause and to clause 4, the significance of which I will not go into now, I am very diffident. Therefore, I will support the new clause and the amendment, which is a probing and interesting amendment that, as we all understand, has wider connotations than just the European Communities (Amendment) Act. Because of clause 4, it can touch on tribunals and a number of things, all of which are important. Therefore, I will support the amendment.
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