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Mr. Garnier : These are mighty issues and I feel even more diffident than the good Shepherd, my hon. Friend the Member for Aldridge-Brownhills, in discussing them, but I shall try to join the discussion to this extent.
My hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Stone (Mr. Cash) seek to amend clause 1. Clause 1 is fundamentally intellectually dishonest, because it says:
and it sets out what it does not adversely affect in subsections (a) and (b), but hanging like a ghost in the background is the implication that some other Act, either existing or, more likely, a future Act, may well do so.
The clause seems to fall into the category of an early-day motion set into legislation. In my view, Acts of
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Parliament should not set out wishes or declarations, but should deal with concrete issues. I am not convinced that
not least because it is difficult to define what the rule of law is. The Opposition side had an interesting exchange about that. I am doubtful that the Bill will not change—and change quite radically—the Lord Chancellor's existing constitutional role, so I am wholly sceptical about clause 1.
I am glad that my hon. Friends have spoken in support of their amending provisions, because they have enabled us to have a useful debate, but I am not sure that the two respective sets of arguments—both where they coincide and where they differ—answered the problems effectively.
Mr. Cash: That happened because we were each seeking a solution to a problem that we viewed in common. Unfortunately, we did not come together to discuss the wording. Had we done so, we probably would have arrived at something slightly different on both counts. That does not alter the powerful reason for seeking to elucidate the deep questions that lie at the heart of the clause.
Mr. Garnier: I do not know whether that is an explanation or an excuse, but it does not get us much further.
Mr. Cash: It is a plea in mitigation.
Mr. Garnier: I am grateful to my hon. Friend for putting forward that plea.
I believe that the strength of our constitution depends on the mutual respect and understanding of the powers and duties pertaining to each part of our constitution. There seems to me to be a growing gap between parliamentarians and the law, and between practitioners and academics on the legal side, and they increasingly seem to inhabit a different country. We no longer speak the same language or seem able to communicate in terms of mutual understanding. That is why we often hear speeches in the House that attack the judgments of judges and also why, thank goodness, we hear Lord Chancellors, as in the case of Lord Irvine, criticising the Home Secretary for intemperate remarks about the judiciary. If Lord Irvine did not understand the finer art of diplomacy, he certainly understood the difference between these two aspects of the constitution—the respective roles of the Executive and the judiciary. Such understanding seems to be dying rapidly and it is cured neither by clause 1 nor, I fear, by the amendment and new clause that my hon. Friends have proposed. That worries me.
Mr. Heald: Does my hon. and learned Friend accept that one advantage of new clause 8 is that it places a duty on the Lord Chancellor to do something specific—namely, to
and, I would add in parenthesis, to do so in the Cabinet? At least the conscience role of the Lord Chancellor is clearly set out there beyond peradventure. Is that not something worth doing?
Mr. Garnier: It might be if I thought that it would be effective, but how is it to be enforced? How do I know, as a citizen or even as a Member of Parliament, whether the Lord Chancellor is using his best endeavours in the Cabinet to ensure that the rule of law is respected? I do not know. I have to trust the Lord Chancellor to do so. I can trust the Lord Chancellor if I respect both the man or woman who occupies that office and the office itself, but the problem is that the Bill undermines the office. The Government want less authoritative and respected holders of that office, so my faith in the Lord Chancellor's ability to ensure that the rule of law and the different roles of the Executive and the judiciary are respected is diminished to that extent.
When the late Lord Hailsham of St. Marylebone was Lord Chancellor, he said that it was his duty to defend the independence of the judiciary "to his final breath". He was not interested in "best endeavours". Although I understand that that expression is used day in, day out in court undertakings and consent orders, it is not what I expect to find in an Act of Parliament describing the duties of a Lord Chancellor. It sounds a bit wimpish and I view it as utterly unsuitable for an Act of Parliament. I am not even convinced that, if the phrase were to be included in the Bill, it would be enforceable. It would not, so why are we writing yet another early-day motion sort of provision into a piece of legislation?
Mr. Cash: I would like to help my hon. and learned Friend in respect of his concern about the origin of the definitions and the amendment's attempts to deal with the definition of the rule of law. I refer him and the House to the case of X v. Morgan-Grampian of 1991 and the judgment of Lord Bridge. For practical purposes, I modelled my wording precisely on what he said, although I adjusted it slightly to take account of the European dimension of the problem. I hope that it helps my hon. and learned Friend to know that my amendment was based on the judgment of a very senior Law Lord.
Mr. Garnier: I have no doubt at all that my hon. Friend spent a considerable time studying law reports and legal textbooks. I am also sure that the expressions used in his amendment are well sourced, in so far as they emanate from eminent judges. What I am concerned about, however, are the practical consequences of placing his provisions into an Act of Parliament. I am worried that playing the Government's game by amending the Bill, rather than striking out clause 1 entirely, might be falling into the trap that the Government have set for us.
The rule of law will not be protected one bit more by clause 1—still less, I am afraid, by new clause 8 or amendment No. 364. I understand all the arguments advanced by my hon. Friend the Member for Stone, in particular that our government and law-making systems have been internationalised over the past 20, 30 or 40 years. He and I have fears about further internationalisation of our domestic government system
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in the forthcoming year. I also understand that, as that happens, competition for influence and the demands of others to influence us will grow.
That is a real concern for my hon. Friend, for myself and, I hope, for every Member in the House. We face a vast and, in many ways, unwelcome cultural change in respect of how this country is run. Power is seeping away from this Chamber and this Parliament, as is the ability of our courts to uphold the rule of law, whether it be the common law as revealed by the courts or statute law as interpreted by the courts. All that is seeping away to other places. As both Members of the House and citizens of this country, we need to be wary of that, to debate it and to do our best to protect against it.
What really concerns me is that new clause 8, amendment No. 364 and clause 1 amount to nothing more than a lot of writing. They have enabled us to conduct this interesting discussion, but they do not protect our constituents or underpin the office of the Lord Chancellor, which the Bill as a whole fundamentally destroys.
Mr. Leslie: The Government are and remain strongly committed to the principle of the rule of law. Both sides of the debate so far agree that the Lord Chancellor has and will continue to have a vital role in ensuring that the rule of law is upheld. In my view, however, we must be careful not inadvertently to disturb other crucial arrangements of our constitution in the process of framing statute law. The issue of how best to make provision for the rule of law in the Bill was extensively debated in the other place, with various amendments tabled and discussed. There, and to a certain extent in our debate today, two points have been commonly agreed: first, the Lord Chancellor has always had a role connected to the rule of law that we would not wish to lose or diminish; and, secondly, the duty of the Lord Chancellor is in general political, rather than a duty to be enforced in the courts. Clause 1 meets both those concerns by acknowledging that the Lord Chancellor has a duty in respect of the rule of law and that that duty is not cognisable as a matter of law.
6 pm
Clause 1 preserves and reinforces the status of the rule of law as a principle of the constitution—uniquely, incidentally, in statutory language in this country—and is thus a powerful statement of our commitment to that principle. I think that the hon. Member for North Cornwall (Mr. Tyler) agreed with that point. It will ensure that the reformed office of Lord Chancellor will continue to have deliberations informed by that principle in the same way as the current office of Lord Chancellor, but in a manner that will not have wider or unintended effects.
I wish to address the arguments surrounding new clause 8 and amendment No. 364. New clause 8 is almost identical to a provision moved and subsequently withdrawn by the Opposition on Report in the House of Lords. The Government oppose it for broadly the same reasons as we outlined at that time. Including the question of parliamentary sovereignty in the same clause as the rule of law raises difficult questions about the relationship between those two principles, and that between them and other principles that are not
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mentioned in the Bill, such as collective responsibility, ministerial accountability to Parliament and the proper scope of judicial review. That problem is exacerbated by the reference in new clause 8 to the rule of law being a "central principle", which tends to imply that some sort of ranking of different constitutional principles is occurring.
Additionally, we, like the hon. and learned Member for Harborough (Mr. Garnier), are worried about the precise meaning of the phrase "best endeavours" in the new clause, and concerned not only about how the Lord Chancellor's best endeavours might be measured, but about how they might interact with other constitutional conventions, such as the Lord Chancellor's role as a Cabinet Minister subject to normal collective responsibilities.
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