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Mr. David Heathcoat-Amory (Wells) (Con): Clause 4 seeks to give statutory form to the important principle of judicial independence, and who could possibly be against that? In fact, I have misgivings about the entire Bill, because taken as a whole, it will have the effect over time of politicising the judiciary, particularly allied to the advance of international human rights legislation. When judges are called on to make difficult and sensitive decisions about the right to life, to freedom of expression or to privacy, they are drawn down a political road. We have seen that in the United States, where appointments to the Supreme Court are matters of great partisan political interest. I hope that we can avoid that in this country, but the Bill does nothing positive to entrench what until now we have understood to be the independence of the British judiciary.
My support for amendments Nos. 7 and 8 is based on a narrower consideration. It seems to me that the definition of an international court includes the European Court of Justice. If not, the Minister must stop me now—if it is somehow excluded, the rest of my remarks fall. I take it that the definition in the clause of an "international court"—
"a court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of . . . an agreement to which the United Kingdom . . . is a party"—
obviously includes the European Court of Justice.
The problem about the independence of that Court is that it will be undermined by the European constitution. I draw the attention of the Committee to article 1–18, which lists the institutions of the European Union, including the Court of Justice of the European Union, as the ECJ will become known, the Council of Ministers and the European Commission—the executive branch of the European Union. The provision then states:
Therefore, the executive branch of the EU is to practise full mutual co-operation with the judicial branch. That is a fairly startling defiance of the principle of separation of powers, because it also applies in reverse: the European Court will have to practise full mutual co-operation with the executive.
I am a member of the European Scrutiny Committee, and we are currently taking evidence about the European constitution. A number of witnesses of great renown have come before us: people of judicial training, both in constitutional and international law, from more than one European country. We have asked them what they understand by that clause and those words. They are very worried; some of them are baffled. It is not an accident, however—those words were slightly changed during the negotiations in the Convention on the Future of Europe, which I witnessed. They are therefore deliberate. They are not permissive—they do not say that the European Court of Justice "may" co-operate with the executive but that it "shall". It is therefore a mandatory instruction. Our witnesses could give no other example in the world of a constitution that apparently undermines the independence of a court so dramatically.
Mrs. Dunwoody: I would find this a lot more horrifying were I not already convinced that the European Court of Justice is a wholly political organisation. All the appointments during my time in the European Parliament were made on the assumption that the judge concerned was of a particular political colour. I therefore find it difficult to accept that this has suddenly become a problem; it has been so since the creation of that entirely political court.
Mr. Heathcoat-Amory: The hon. Lady is right. It is an activist court, which takes as one of its duties the upholding of the European ideal and the advancement of European integration. I therefore accept what she says.
The European constitution, however, provided an opportunity to entrench a different doctrine of true independence, along the lines of the separation of powers, as we have discussed in our consideration of the Bill. That makes it all the more worrying to have written into the constitution a provision that obviously undermines that independence. The relevance for the Bill is obvious. We are giving the Lord Chancellor, and future Lord Chancellors, a duty to defend the independence of foreign courts and judges in those courts, yet the Government have signed a European constitution that breaches that independence. Therefore, my question to the Minister is: what will happen? Why are we giving the Lord Chancellor a duty to be independent, and why have we signed a constitution that undermines that independence?
Mr. Garnier:
Has the European Scrutiny Committee, in its evidence sessions, heard any evidence about the meaning of the expression "full mutual co-operation"? I understand my right hon. Friend's argument that that could mean "do as you're told", but it might also mean that the two respect each other's separate roles. I am not
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sure whether we are just having a semantic argument, or whether there is some evidential basis for the concerns, which I can well understand.
Mr. Heathcoat-Amory: I am not a lawyer, but I can read English and I do understand—I think—the following sentence:
That would appear to mean that the judiciary must co-operate with the executive, but is that not a breach of the separation of powers, as understood by my hon. Friend the Member for Stone (Mr. Cash)? There may be an innocent explanation, but such an explanation was not advanced by the expert witnesses who came before the European Scrutiny Committee—quite the reverse. They said that either this was indeed a serious breach, or that hopefully—as one witness put it—the provision will simply be ignored. Well, I am not quite so innocent as that. When a provision is written into a constitution that shall have primacy over the law of all member states, we must take it seriously.
I am not being excessively mischievous or pessimistic in seeing—let me put it no higher than this—a problem, and the problem for us this evening is that this provision conflicts with the Bill. As I have said, although I am not a lawyer I can read, and we are about to pass into law a duty for the Lord Chancellor "to defend" judicial independence. More than that, the judiciary—in this instance, the European Court of Justice—will
so the necessary resources will have to be provided. In every way, therefore, we are supporting an independence denied by the European constitution.
Sir Patrick Cormack: Of course we do not yet have the European constitution—and if my right hon. Friend and I have anything to do with it, we will not have it. The arguments that he is advancing this evening are added ammunition in the battle against that pernicious document—but putting that to one side, does he agree that clause 4 is not as damaging as my hon. Friend the Member for Stone (Mr. Cash) suggested in his speech?
Mr. Heathcoat-Amory: I will be marching with my hon. Friend to secure a no vote on that pernicious document. He is right to suggest that the best way to prevent this conflict is to take out the European constitution, but the only means at my disposal this evening is removing the relevant words from the Bill. This House should not legislate to contradict itself.
Mr. Heald: Surely the Bill provides the good bit. Obviously, one can have many objections to the Bill, but clause 4 states that the Lord Chancellor should stick up for the independence of the judiciary and take the sort of steps for which my right hon. Friend is arguing.
Mr. Heathcoat-Amory:
I do not altogether accept my hon. Friend's assurances. To echo what my hon. Friend the Member for Stone said, we can envisage future conflict between different judicial systems, and in that
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case, I would rather uphold the independence of our domestic courts than put them on an equal footing with international courts.
The main purpose of my brief remarks has been to find out from the Minister how he intends to resolve this problem. He and his Government are in favour of the wording both in the Bill and in the European constitution, and that conflict needs to be resolved this evening.
Mr. Andrew Hunter (Basingstoke) (DUP): I will be very brief. I have some sympathy for the amendments tabled by my hon. Friend the Member for Stone (Mr. Cash) and the arguments that he advanced in support of them, but in reaching a conclusion on them, it might be helpful if the Minister answered the following two points. First, can he explain why the list of office holders in clauses 4(1) and 5(1) is so limited? Why does the Bill not impose a duty to guarantee the continued independence of the judiciary on other executive officers? Secondly, I am somewhat confused by the phrase "special access". For example, what special access do the First Minister and Deputy First Minister in Northern Ireland have to international courts that might so undermine their independence that lines 24 to 31 in clause 5 are needed? The right hon. Member for Upper Bann (Mr. Trimble) might like to comment on that.
7.15 pm
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