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Mr. Cash: In a sense, that is my point. Indeed, in so far as it is clear that our existing arrangements respect those international tribunals, that is one thing, but it is quite another thing to impose the duty on the Lord Chancellor and other Ministers of the Crown as a matter of statute law to uphold the continued independence that arises in that context. It is a step change, which troubles me. If we, as a nation, decided that we did not support a particular Security Council resolution in relation to an international court, aspects of it might be applicable to us in the United Kingdom, in which case we might find that we are not prepared to accept the setting-up of that tribunal, still less the deliberations, conclusions and judgments passed by that court.
Clause 4 is another example of clumsily drafted legislation, and the fact that my hon. Friend the Member for Stone has had to pose those questions through his amendment exemplifies that point. Clause 4 could be intended to prevent the Lord Chancellorunder the Government's regime, the Lord Chancellor will not necessarily be a senior lawyer, still less a Member of the House of Lords, but could be a highly political Minister on the makeand other political Ministers from seeking to influence British-appointed members of international courts or courts set up on an ad hoc basis under a United Nations resolution, such as the courts in Sierra Leone or Rwanda. In that case, the Lord Chancellor, who will not be a Member of the Lords or a member of the judiciary, would be inhibited by statute from ringing up Mr. Justice Somebody-or-Other and saying, "Look, we would find it politically convenient if you were to reach this particular conclusion in this international court." That
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is the most charitable explanation that I can provide for clause 4, but my hon. Friend the Member for Stone might have a more or less charitable explanation.
That is not the same as how the judiciaryI am thinking of the European Court of Justiceinterpret a law under which they claim a superior jurisdiction to not only our courts, but our laws and constitutions. A severe danger exists that that wording could leave open the probability that upholding the continued independence of the judiciaryin that case, the ECJand dovetailing it with the European Union Bill, which we are about to consider, could lead us into some extremely dangerous constitutional situations.
The Bill will probably displace the assumption that the judiciary in this country are obliged to give effect to the latest enactment of the European Communities Act 1972, if, as I put it to the Prime Minister the other day, the European constitution were turned down in a referendum and it were necessary to repeal the European Bill, as enacted.
In a nutshell, if my amendment were accepted, it would not change the existing situation. I have no idea why clause 4, which will take us into extremely deep and dangerous waters, has been included in the Bill, and I look forward to hearing what the Minister has to say. The Minister owes it to the House of Commons to be entirely candid as to why clause 4 has been included, because in my opinion it would be better if it were removed.
My hon. Friend the Member for Stone (Mr. Cash) is concentrating on a situation in which conflict occurs between courts. I appreciate that he seeks to avoid a situation in which the Lord Chancellor, other Ministers or judges are expected to uphold the independence of an international court at the expense of a local court.
The aim of clause 4 is to ensure that each of the courts listed in subsection (7) is not subject to improper ministerial influence or denied the support that it requires in order to function. This part of the concordat, as expressed in the Bill, is designed to militate against the sort of scenario set out by my hon. and learned Friend the Member for Harborough.
My hon. Friend may correct me on this point, because he has studied the Bill at greater length than me: am I right in thinking that the judicial appointments commission will not appoint judges to the International Criminal Court or to the other
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international judicial bodies to which we send judges, and that a non-legal Lord Chancellor could therefore require his politically convenient appointees to go only to those international bodies? Is my hon. Friend worried that the reason why the Government included that provision is that they fear that an ignorant Lord Chancellor will attempt to do precisely that at some future date?
Mr. Heald: I agree with my hon. and learned Friend about the mischief, which is our concern. If the Lord Chancellor is a politician on the make rather than a senior figure reaching the end of their career, if they sit not in the other place but here, if they are not a lawyer and if they are very different from a traditional Lord Chancellor, such concerns will emerge.
Sir Patrick Cormack: Have we not been placed in this position because of the peculiar programming? Clause 4 is a logical consequence of clause 3, which demands that the Lord Chancellor be legally qualified. The person with whom we are dealing in clause 4 is therefore legally qualified, but we will debate clause 3 later, which makes nonsense of the whole Bill.
Our Ministers and judges should uphold the independence of all those categories of courts. As a country, we have a proud tradition of supporting the independence of the judiciary in international tribunals and courts, of which there are many examples, some of which were mentioned by my hon. Friend the Member for Stone. Given the history and importance of our involvement in a range of courts and tribunals, it would be wrong to do anything that suggests that we do not want to uphold the independence of those courts and that those courts are open to ministerial interference or interference through the non-provision of the necessary logistical support.
On this occasion, I find it difficult to support the amendment moved by my hon. Friend the Member for Stone. I do not want to derogate from the argument that I made earlierthe UK Parliament is sovereign and should be sovereign, and our courts should interpret our laws accordingly. I hope that my hon. Friend will consider his amendment and perhaps seek to find other ways in which to achieve his laudable intentions.
Mr. Tyler: I am glad to hear the hon. Gentleman's comments, as I, too, feel that clause 4 is critical to the whole Bill, and the amendments would dilute it. It is important to recall the context of clause 4 and the specific requirements placed on the Lord Chancellor, which it is extremely important for us to reiterate this evening.
The clause has two such requirements, extending to subsection (8), to which I shall refer in a moment. The first is the insistence that no opportunity of special access to exert pressure on any elements of the judiciary should be used. I take the point made by the hon. and learned Member for Harborough (Mr. Garnier) that one can imagine circumstances in which an appointee to
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some international body or tribunal who will not go through the normal judicial process could be under some form of influence or obligation to a political Minister. It is important that we recognise that.
It seems to me that the hon. Member for Stone (Mr. Cash) has tabled one of his bogeyman amendments, in which there is always somebody in Brussels, or some devilish foreigner, whom we must do down and keep in their place. He is making a mountain out of molehill, if one can do that with a bogeyman. He is trying to imply that there is some sort of inflated recognition in the subsection for the non-domestic court process. I do not read it like thatI simply read it, as the hon. and learned Member for Harborough said, in the terms that it is a proper precaution to be placed in the Bill, to ensure that the Minister does not have special access. We are advised that that need not in any way impede the way in which he operates to make sure that the public interest in matters relating to the judiciary, at any level of the administration of justice, is properly represented. That seems to me to be a perfectly proper approach.
If there is a problem with the wording, that is down to the Minister, and no doubt he will defend itI hope that he will do so in a moment. I see some practical advantage, however, in making it clear in the Bill that we will not tolerate political interference with the judicial process, wherever that may lie.
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