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Mr. Heald: Does my hon. Friend agree that that is particularly important, as it has emerged that Sir Thomas Legg, the permanent secretary in 2000, warned against dismantling the role of Lord Chancellor, and pointed to the numerous difficulties that that would create?
Sir Patrick Cormack: Sir Thomas Legg has a reputation for wisdom, which is not shared by many members of the Government. We do not, I emphasise, want confusion. I am delighted that the Minister, in his winsome and emollient manner, moved the amendment. I just hope that he accepts the logic of the changes to the wording of the Bill, and will pass the message on to No. 10 that we do not want confusion visited upon us in future by having two titles for one Minister.
Mr. Shepherd:
I support the arguments made by my hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Huntingdon (Mr. Djanogly), as well as by the hon. Member for
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North Cornwall (Mr. Tyler). I appreciate the fact that the Government have removed the words "the Minister" and re-emphasised the role of the Lord Chancellor. I would like to address amendments Nos. 7 and 8, but principally amendment No. 7, which asks for the deletion—
The First Deputy Chairman of Ways and Means (Sylvia Heal): Order. We are discussing Government amendment No. 18.
Mr. Shepherd: I see, we are on a separate group. Forgive me, Madam Deputy Speaker.
Mr. Garnier: While there is a hiatus, may I reinforce the point made by my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack)? I accept that the Minister is part of the Department for Constitutional Affairs, but we live in a strange country. The ministerial head of the Department could easily be called Lord Chancellor. I presume that, once the Bill is enacted, the title of Lord Chancellor will disappear for the transitional period, although that sounds very strange. Once that transitional period ends, however, let us celebrate our illogicality and have a Lord Chancellor who heads a Department with a different name.
Mr. Leslie: There is not much further to add now, other than to say that I am glad that there seems to be a consensus that it is right to include these amendments and then move on to other more substantial parts of the Bill.
Amendment agreed to.
Mr. Cash: I beg to move amendment No. 7, in clause 4, page 2, leave out lines 35 to 42.
The First Deputy Chairman of Ways and Means: With this it will be convenient to discuss amendment No. 8, in clause 5, page 3, leave out lines 24 to 31.
Mr. Cash: Clauses 4 and 5 will impose a duty on the Lord Chancellor and Ministers to uphold the independence of the judiciary. Of course, as I mentioned earlier in relation to the whole Bill, that duty would be enforceable by the judiciary itself as a matter of statute in terms of judicial review. In this context, I would assert that that in itself represents a radical gear change in the interpretation of statute law and, indeed, in the principles to which I shall refer in a moment. Yes, of course, there must be judicial independence—I would not want anyone to suppose that amendments Nos. 7 and 8 would affect that principle in any way—but there is also the Oath of Allegiance and salaries, to which are connected security of tenure and other matters, including the role of judges as embedded in the Act of Settlement 1700. In fact, as we well know, a range of conventions, rules and principles have been enunciated over the past several hundred years and are accumulated in the current state of the rule of law and in the specific question of judicial independence.
Clause 4(7) goes too far, and the same applies under amendment No. 8, with respect to Northern Ireland, where much the same sort of thing obtains, although I have no doubt that Northern Ireland Members will
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want to make their own contribution on its application to Northern Ireland itself. I will therefore confine my remarks primarily to the issues that apply to the United Kingdom, rather than to Northern Ireland.
Scotland is mentioned in clause 4(2), which states:
on the duty of the Lord Chancellor and others to uphold the continued independence of the judiciary—
"does not impose any duty which it would be within the legislative competence of the Scottish Parliament to impose."
Again, I would prefer to leave those matters to any Scottish Member who may wish to intervene—I see that the Advocate-General for Scotland is here—but subsection (2) must be considered in relation to the background of the supremacy of the United Kingdom Parliament. It is well established that the Scotland Act 1998 is ultimately subject to the question of whether or not the United Kingdom Parliament might decide to amend or repeal any part or all of the Scotland Act 1998 itself. That may be a matter of great contention in Scotland, but I believe that it represents good constitutional law in so far as the United Kingdom Parliament is concerned.
Clause 4(7) and the definition contained in subsection (8) go too far, because they would confer judicial independent in respect of international treaties. I believe that that would be to make radical, new law and entrench it in statue, given that those provisions would apply to treaties irrespective of whether they were endorsed by statute. Indeed, as I have mentioned already, we must remember that Lord Diplock made it clear in the commissioner of Excise case of 1967 that statute can, in fact, break treaties.
6.45 pm
I shall now address the question of what the words mean. Subsection (7) says:
of course it lists the Supreme Court, but it then refers to
I do not seek to knock out those words, for obvious reasons, although I have the gravest reservations about their necessity in the light of the development of our constitutional position. I have a certain sympathy, to say the least, with what my hon. and learned Friend the Member for Harborough (Mr. Garnier) said with regard to clause 1. Attempting to include all these things in statute and making them subject to judicial review is, in itself, an extremely unfortunate and dangerous course. However, that raises a particular question in respect of judicial independence: quis custodiet ipsos custodes? After all, the judges will be the ones who determine the question of judicial independence under the duty imposed by clause 4. What are we to do, therefore, about the reference to "any international court" in subsection (7)(c)?
"means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of judicial nature, in pursuance of . . . an agreement to which the
- United Kingdom or Her Majesty's Government in the United Kingdom is a party, or . . . a resolution of the Security Council or General Assembly of the United Nations."
I find that a radical departure from the existing state of affairs. Indeed, it is clear that the European Court of Justice and/or the European Court of Human Rights at Strasbourg are included in subsection (8), given the absence of any words to exclude them. In fact, subsection (8) does not refer to the International Criminal Court, and I rather think that that will be included, too. I find it astonishing that subsection (8) refers to a
"court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of . . . a resolution of the Security Council or General Assembly of the United Nations."
I look forward to hearing what the Minister has to say by way of justification.
Sir Patrick Cormack: I am following my hon. Friend's comments with great interest and I can understand where he is coming from when we look at subsection (8)(a), but is he seriously suggesting that this country should flout Security Council resolutions when so much of what we have done in international affairs recently has been based on adhering to them?
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