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Mr. David Trimble (Upper Bann) (UUP): While I was First Minister I had no special access to any member of the judiciaryat home or abroad. What puzzles me about this provision is its stating that one must not misuse special access. What about normal access?
Sir Patrick Cormack: I was not quite sure whether that was an intervention or a speech. We have heard two very brief speeches, and I shall try to make a third, because I want to hear what the Minister has to say.
I want to revert to the narrow but important point that I made in an intervention. I am tolerably comfortable with the clause, but only if the holder of the officeon whom enormously onerous responsibilities will be placed, by implication and by direct injunction in the clauseis sufficiently well versed in the law to be able to understand all these matters. That underlines the point that the Lord Chancellor should indeed be removed from the hurly-burly of everyday politicsto me, that means sitting in the other placeand should be a lawyer of considerable experience and distinction. I am baffled as to why we are going to deal with that issue, which is addressed in clause 3, after considering clause 4. I want the Minister briefly to acknowledge the importance of the point that I am making when he responds to those made by others.
I, too, have difficulty with this provision. I am not sure in what way the Lord Chancellor can uphold the continued independence of
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the members of any international courta point that applies, as has been said, to the putative European Court of Justice as defined in the European constitution, but also to the European Court of Human Rights. The Lord Chancellor has no role in the appointment of the overall judiciary of that court, yet it will give judgment directly on many of the issues confronting this nation. I am therefore very nervous about the inclusion of such a provision.
Of course many such courts, the validity of which it is difficult to recognise, are set up by prerogative power; their nature has not been established through the legislative process. I have a list of them, but I shall not read it out, given the lack of time and the need for the Minister to explain the reasoning behind the provision. In what way will the Lord Chancellor, or any Minister, affect the appointments to those international courts, and why are we using prerogative power through the back door to sign up to them? There is a further, wider principle, which the hon. and learned Member for Redcar (Vera Baird) and I have often discussed. Should not many of these treaties, which contain within them a legislative process, be legislated for through this House, so that we know what powers we are giving and to whom?
Mr. Leslie: We have covered a number of different points, although I am not entirely convinced that all of them related to clauses 4 and 5, the latter of which deals with the provision as it affects Northern Ireland. That said, the points made were, of course, in order. The clauses set out clearly the responsibility of the Lord Chancellor and other Ministers of the Crown to uphold the continued independence of the judiciary. In answer to the hon. Member for Basingstoke (Mr. Hunter), all Ministers of the Crown are covered in that context. As the hon. Member for South Staffordshire (Sir Patrick Cormack) and Conservative Front Benchers have said, that is a pretty unobjectionable goal; indeed, it is a wholly admirable ambition.
Amendments Nos. 7 and 8 would limit that duty by removing international courts from the definition of "the judiciary". I shall explain briefly why that would not be appropriate. The removal of those subsections would not affect in any way the UK's participation in any agreement with any international courts that have been established, or alter in any way their jurisdiction over the United Kingdom. Even if that was the intention of the hon. Member for Stone when he tabled the amendments, they would not achieve it. There is no sound justification for limiting our respect for the international judiciary in that way. Just as Ministers should uphold judicial independence in this country, so they should uphold the independence of judges in properly constituted international courts and tribunals, wherever they may be. The judges of both types of court should be treated in the same way.
I understand the point that the Minister is making, but is the position not even worse than that? The hon. Member for Aldridge-Brownhills (Mr. Shepherd) is right to say that those who are appointed as British representatives in any court may be appointed by royal prerogative rather than through the judicial system, so they may be more susceptible to
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pressure. If we removed the provision, the implication would be that it was acceptable to exert pressure on them.
Mr. Leslie: Exactly. It would be perverse to argue that we should respect the judicial independence of judges in this country, but that Ministers should be free to undermine the independence of judges in international courts elsewhere.
Mr. Garnier: The Minister almost persuaded me that he had an argument, but he ruined it with that terrible answer to the hon. Member for North Cornwall (Mr. Tyler). Until now, nobody ever thought a Lord Chancellor would seek to influence a particular judge, in this country or elsewhere, in the making of a judgment or by use of special or normal access. The clause must go into the Bill because the Government intend to do something different to the nature of the relationship between the appointers of judges and the judiciary. The Minister should not argue that by removing the clause we would be doing something bad. Lord Chancellors have not sought to misconduct themselves in relation to judicial independence
Mr. Leslie: The hon. and learned Gentleman's argument is ridiculous. The purpose of the clause is to enshrine the protection of judicial independence. I pointed out, as did the hon. Member for North Cornwall (Mr. Tyler), that it would be perverse to remove the provision and leave a gaping hole in respect of judges in international courts. I am sure that even the hon. and learned Member for Harborough (Mr. Garnier) can see that.
To answer an earlier point, in some cases British judges sit on international courts. Are they to have their independence protected when sitting in the UK, but not when sitting on an international court? The credibility of clauses 4 and 5 depends on their covering all judicial decisions affecting the United Kingdom. The same standard needs to apply to the treatment of all judges, regardless of which forum they sit in. It makes no sense to afford less protection to some judges than to others.
The right hon. Member for Wells (Mr. Heathcoat-Amory) spoke about how we might in future be able to reconcile concepts of mutual co-operation with concepts such as judicial independence and separation of powers. I do not see any inconsistency between concepts of co-operation and concepts of independence in other legislation.
Is the Minister prepared to say that as he understands it, the positive duty being imposed on Ministers would in no way create a situation in which there was any granting of an assumption that those who were adjudicating in international courts, including the European Court at Strasbourg and the one in Luxembourgthe European Court of Justicein the interpretation that they place on legislation in the framework of the European Union and the European convention on human rights? Can the Minister give me satisfaction on that point?
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Mr. Leslie: In so far as I follow the point, it would be for UK legislation to give the legal basis for judicial decisions affecting domestic law, independent of which court was making those decisions. I do not understand the point that the hon. Gentleman is making.
Mr. Heathcoat-Amory: The Minister presumably would not dream of placing an obligation on a British court to co-operate fully with the Government if that court were deciding on a case in which the British Government were a party, so how can he place such an obligation on the European Court of Justice?
Mr. Leslie: I do not have the draft European constitution before me, but I am not sure that there are requirements for particular co-operation in specific individual cases. It may be possible for the judiciary, the legislature and the Executive to co-operate in partnership, as we do in this country. We signed up in the concordat to the idea that partnership does not exclude independent judicial decision making in particular cases. That is the fundamental point.
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