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Mr. Trimble: Is it not the case that clauses 4 and 5 impose a duty to uphold the continuing independence of judges individually? That presupposes that judges already are independent. The clauses do not impose a duty to pretend that they are independent if they are not. Therefore, if some international tribunal is clearly not independent in terms of appointments to it, its independence cannot be upheld.
Mr. Leslie: Indeed. Clause 4(8) specifies that any international court established by treaty to which the United Kingdom is a party, or by other organisations in which the United Kingdom takes part, is to be independent. Such courts and tribunals are referred to in the Bill as legitimately organised and established. It would be wrong to allow the amendments to remove respect for and protection of judicial independence in international courts, as set out in the Bill. I hope the Committee will reject the two amendments.
Mr. Cash: In the light of the discussions that we have had and the arguments that I have heard from the Opposition Benches, I still have grave concerns about the drafting of the clause. However, after careful consideration I have decided that we may be able to fight this battle another day, so I beg to ask leave to withdraw the amendment.
Mr. Djanogly : I am pleased to have the opportunity, albeit a brief one, to discuss the guarantee of continued judicial independence in the context of the Lord Chancellor's role, and I start with a quote:
"The Lord Chancellor provides a counter-balance to the judicial branch against the centralised power of government and Parliament. At the same time he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with a full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature."
Those were not the words of a Conservative commentator or an excerpt from an outspoken critic of the Bill. The Minister was trying to remember where they came fromthey were the words of the Government when they defended the office of the Lord Chancellor before the Council of Europe in 2002.
"there is a bit of uniqueness about the Lord Chancellor's Department, which is that its business is dealing with an arm of the state called the judiciary. It is part of the separation of powers. We deal with, as I say, an arm of the state within the separation of the powers and this arm of the state values, and rightly, its judicial independence above all else. It does not want to be bullied by the executive. It believes that its function is to stand between the citizen and the state and to be absolutely robust in deciding when the state has acted contrary to the law."
Yet now, the Government wish abruptly to change the position on the office of Lord Chancelloralbeit that, grudgingly, they will not now change the nameand toss a long-standing part of our Government into the dustbin of history.
It is my belief that the position is too important to be restructured on the basis of a purely political premise masqueraded by the Government under the name of constitutional reform. The position of Lord Chancellor is an ancient one. Some of the most important statesmen in our history have served as Lord Chancellor. Under the Bill, it is now proposed that there will be no requirement that the Lord Chancellor will be a lawyer or have any law experience. Supposedly, according to the Government, a layman has more ability to advise a Prime Minister on legal affairs than a judge who has sat on cases and has training in the law. The Lord Chancellor's unique role in all three branchesExecutive, judicial and legislativegives him a unique opportunity to serve independently and non-politically.
Sir Patrick Cormack: In the Bill as it stands, there is a requirement that the Lord Chancellor should be a lawyer, as set out in clause 3. Is it not therefore all the more important, in view of the sensible remarks that my hon. Friend is making, that clause 3 does indeed stand part of the Bill?
In the short time that remains, I wish to mention that, in addition to clause 3, if there is a single action that could virtually guarantee the independent status of the role of Lord Chancellor it would be the disqualification of the Lord Chancellor from holding any other ministerial office. Perhaps we can deal with that issue when we come to clause 3.
Mr. Leslie: The hon. Member for Huntingdon (Mr. Djanogly) has given good reasons why the clause should stand part of the Bill. It is a point of mutual agreement in all parts of the Committee that we want to provide an unequivocal guarantee of continued judicial independence. That guarantee is binding on all Ministers of the Crown and all those with responsibility for matters relating to the judiciary or the administration of justice. Through the clause, we are seeking to embed in statute the principle of judicial independence, which all in the Committee rightly regard as being of paramount importance in our constitution. Clause 4 does exactly that, and it also imposes particular duties for the purpose of upholding continued judicial independence. First, Ministers of the Crown must not seek to influence particular judicial decisions through any special access. Secondly, the Lord Chancellor must consider the need to defend continued independence throughout.
Sir Patrick Cormack:
On a point of order, Mrs. Heal. My hon. and learned Friend the Member for Harborough (Mr. Garnier) just said in an extremely brief speech that something was a shame. To quote my favourite entertainer, Stanley Holloway, it is a shame and a sin that this Committee has not had the opportunity to discuss clauses 6 or 7 in the first three hours allowed for the Bill. I realise that you can do nothing about this matter tonight but could you, on
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behalf of the House, speak to Sir Alan and Mr. Speaker and see whether any representations can be made to those who draw up programmes to ensure that there can be some built-in flexibility, so that when the House is faced with a major constitutional Bill of this nature, it does not end up without any opportunity to discuss significant parts of it?
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