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Noble Lords: Hear, hear!

Lord Mishcon: My Lords, I have discussed whether or not the independence of the judiciary has been preserved for all generations having regard to our method of appointment. Perhaps I may deal with a subject which has been discussed; namely, whether, if a Minister decides to promote a Bill in the House, it is proper for our judges to comment on it, especially if the comments are adverse. In all our affairs, with our unwritten Constitution we rely upon common sense. I know that I shall be forgiven for saying that it is not really common sense for a Minister to promote legislation which limits the discretion of our judges. Having said that, I at once agree with my noble friend Lord Irvine of Lairg that constitutionally it is quite right to do so. Parliament is sovereign. However, when looking up an old debate, I noted that the noble and learned Lord the Lord Chancellor saw fit to read to noble Lords present at that time a letter written by the noble and learned Lord, Lord Taylor, to The Times. At col. 791 of the Official Report of 27th April 1994, the noble and learned Lord said:

that was 8th May, 1993--

    "put that in a way which I should like to refer to. It was in connection with a sentence that had been before the court. The letter is dated 8th May 1993. The Lord Chief Justice is the writer.

    "'Sir, You print today an account of the case in the Court of Appeal yesterday in which the Attorney General's application to have an unduly lenient sentence reviewed was granted and the sentence was increased. The headline read: Lord Taylor Ignores Act to Increase Jail Sentence. The report went on to say: "The Lord Chief Justice over-ruled the sentencing provisions of the Criminal Justice Act yesterday when he increased a jail term on a motor cyclist ...". Those assertions were wholly wrong. The judgment of the court, as anyone who listened to it would readily have realised, explained how and why it was possible and appropriate for the court, within the terms of section 29(2) of that act, to take into account the circumstances of previous offences because they showed an aggravating factor in the instant case. I do not ignore acts of Parliament. To suggest the contrary is not only wrong but a gross libel. I am therefore glad that you have agreed to publish forthwith a retraction and apology as well as this letter. It is true that I have made it clear I consider the 1991 act to be flawed in a number of respects. I support the broad philosophy which inspired it that a custodial sentence should be imposed only where the seriousness of the offending merits it or the protection of the public demands it. But a number of provisions in the Act place arbitrary and unworkable restrictions on the discretion of the judge to deal with each case on its merits. I hope that these defects can be cured in the very near future'".
The noble and learned Lord the Lord Chancellor goes on to say this:

    "But this is the quotation which I wish to emphasise, and with which the noble and learned Lord the Lord Chief Justice concludes the letter: 'However, until they are, it is my duty and that of all the judges to apply the law as Parliament has enacted it. That duty we will fulfill'".
I do not think that there can be any doubt, therefore, as to what the noble and learned Lord, Lord Taylor, felt about the sovereignty of Parliament, nor about the right of judges to warn, to criticise, and to plead for liberty

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as regards legislation which they regard as being harmful in carrying out their duties in both civil and criminal matters. That liberty is as a rule very carefully and studiously adhered to with propriety.

I repeat that this has been an interesting debate. It has thrown up issues which we have discussed before. Nothing very novel has emerged, but there is one thing which we can conclude. I started with it and I shall finish with it: we are lucky in the judges whom we have.

4.20 p.m.

Lord Woolf: My Lords, I was very much in two minds as to the advisability of my taking part in the debate this afternoon, just over 24 hours after donning new clothing--not sheep's but, as noble Lords have heard, as Master of the Rolls. There are two reasons why I decided to do so, although having heard the debate so far this afternoon I fear that my intervention will not be of great assistance to your Lordships.

The first reason is the importance of the question which my noble friend Lord Irvine of Lairg has raised before your Lordships. It is one of constitutional importance and one which calls for great sensitivity on the part of the legislature, the government of the day, and particularly the judiciary. It raises issues on which no doubt the new Lord Chief Justice would have been happy to address the House, if he had not been prevented from doing so since he has not yet had an opportunity to be introduced to your Lordships' House.

The second reason is one which will no doubt interest the noble Lord, Lord Renton. I received a letter of congratulations signed "Tom, 97 and-a-third". The "97 and-a-third" reflected the age of the author. It came from no ordinary Tom, Dick or Harry, but from the noble and learned Lord, Lord Denning, the distinguished past holder of my present office. In that letter, the noble and learned Lord reminded me that we had both made Hamlyn Lectures, but some 40 years apart. The noble and learned Lord gave the first of those lectures, "Freedom under the law". In his letter he referred me to the final paragraph of his lecture, of which I was well aware, which includes these eloquent words:

    "Just as the pick and shovel is no longer suitable for the winning of coal so also the procedure of mandamus, certiorari and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to-date machinery".
In that passage, in 1949, the noble and learned Lord, Lord Denning, was referring to the importance of establishing the present role of the courts on judicial review--a subject to which I shall return briefly later.

In this country we are fortunate in having a constitution which is truly unique. One of its unusual features is that it is unwritten, but, as noble Lords have heard from the noble and learned Lord, Lord Wilberforce, it is not unique in that regard. There is the other jurisdiction to which he referred which is in the same position, and in New Zealand there is a similar situation. But we are unique, first, in relation to the roles of the Lord Chancellor, to which reference has already been made. Secondly, we are unique in that members of our supreme appellate court are able to take part, as I do this afternoon, in the deliberations of your Lordships'

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Chamber and, of course, also in your Lordships' Committees. The ability of Law Lords to take part in such deliberations is something which I hope your Lordships value. It continues to exist only because the noble and learned Lords who sit in the Appellate Committee exercise the restraint to which your Lordships have rightly drawn attention as a necessary concomitant to their having that ability.

We have a great advantage in enabling those who have the responsibility for interpreting and applying the law to give advice, to the House when it is appropriate, on matters of which they are knowledgeable as a result of their experience.

Another role which our constitution places upon the judiciary which is not unique but is unusual is the extent to which the judiciary are invited by the government of the day to take part in inquiries on behalf of the Government and usually to conduct those inquiries on the Government's behalf. That is a role which the judiciary do not seek but which is thrust upon them. But they accept the responsibility for doing so because they recognise that it is thought that it is in the public interest that they should do so.

However, the fact that a judge is given that task creates problems for those who have the responsibility of conducting the inquiry. They are sometimes inevitably drawn into positions of public debate. They are sometimes drawn into situations of political debate. That is unfortunate, but we are in the position that either we dispense with what I regard as an important public service by the judiciary or we accept the consequences which flow from it. We cannot have it both ways. I say to your Lordships that restraint needs to be exercised, not only by the judiciary in making comments as a result of such inquiries, but also on the part of those, either in the Executive or in the legislature, who are desirous of criticising the judge who is responsible for making the contribution.

The reference by the noble and learned Lord, Lord Denning, to his Hamlyn Lecture drew attention to the fact that before the Kilmuir rules, indeed, before the statement of the present noble and learned Lord the Lord Chancellor, it had been the long-established practice of members of the judiciary from time to time to give lectures. Again, I suggest that this is a desirable and constructive practice, something from which the public benefits because it contributes to the development of the law. In relation to constitutional issues, it can inform the debate because of the advantage of the judiciary's experience in relation to the subjects in question.

If that practice is to continue--and I suggest we would all be the poorer if it did not--it is very important that what the judiciary say, often to learned audiences and to specialist bodies, should not be taken out of context. If my noble friend Lord Irvine of Lairg will forgive me in this respect, I would say that he was in error in focusing upon one or two lectures and extracting from those lectures a sentence here or there which did not give a true representation of the content of the lecture as a whole. The fact of the matter is that there are areas of the law where it can be genuinely and fairly

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said that our laws at present are not serving the public in the way that they should. In that situation it is the strength of the common law that it can develop and extend in a way in which it has in the past, and in which I hope it will continue to do in the future, to make up for those deficiencies.

The Law Lords themselves now have the power to set aside decisions given in the past by which they no longer feel the public are served. If their Lordships can do that in the Appellate Committee, surely it cannot be objectionable in the course of a lecture to identify an area of the law which many would say needs re-examination and suggest that, in the course of the ordinary development of the law on a case-by-case basis, a change might take place. In doing so, the judge is not seeking in any way to interfere with or abrogate the sovereignty of Parliament.

We have been reminded of the words of the noble and learned Lord, Lord Taylor, the former Lord Chief Justice. I venture to say that every judge of whom I am aware on the High Court Bench, the Circuit Bench or in the Appellate Courts would agree with everything that he said. No one would say that any legislation that we can contemplate having been passed by our Parliament would not be honoured both in the letter and in the spirit by the judiciary of today.

The comments that are made in the course of a lecture must be seen in the context in which they are made. When they are seen in that context it is beneficial, not a disadvantage, that a judge should express his views. I dissent from the suggestion that it is only the higher judiciary who can be trusted to make comments of that sort in the course of a lecture.

Finally, I turn to the question of judicial review. We heard from the noble and learned Lord, Lord Wilberforce, a masterly examination as to the way in which that subject has developed extensively over the 40 years or more that have elapsed since the noble and learned Lord, Lord Denning, gave that lecture. Judicial review is the means by which the courts enforce the will of Parliament, not the contrary. What the courts are doing when they hear an application for judicial review on a case brought before them by a member of the public or some institution is ascertaining whether the public body concerned has acted in accordance with the law as laid down by Parliament. If the public body has not performed a duty placed upon it by Parliament, then the courts will intervene and order the public body to perform that duty. If the public body has acted in a way which is beyond the powers given to it by Parliament, the courts will remove the decision that results from that action and quash it, because it has acted unlawfully. If the public body has not gone about the process of reaching its decision in accordance with the requirements of Parliament, again the courts will intervene. In this way the courts do not act inconsistently with the will of Parliament, but support the will of Parliament.

As we heard from the noble and learned Lord, Lord Wilberforce, the law has developed in relation to judicial review without the direct intervention of Parliament. But Parliament has endorsed the machinery

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of judicial review; it did so in the Supreme Court Act 1981. Since that time, the Law Commission has looked at the way in which judicial review is working and, on the whole, has reached the conclusion that it deserves a clean bill of health.

Judges do act with restraint in relation to judicial review. Judicial review is a singular procedure, because it is surrounded by safeguards for the Executive to ensure that it can properly perform its function. The courts hesitate before interfering with the decision of the Executive. But if the decision is unlawful they have no alternative. They would be failing in their duty if they did not make use of the powers that Parliament has said they should have; namely, the remedies given to them by the Act of 1981.

Speaking for myself, I hope that the courts will continue to dismiss applications for judicial review where the action concerned is lawful, but that they will not hesitate to intervene, no matter who is the applicant, if a public body has acted unlawfully. I am grateful to your Lordships for hearing me.

4.36 p.m.

Lord Kennet: My Lords, I am only the second non-legal Member of the House to speak in the debate. As such, perhaps I may hope that I speak for the whole House in congratulating the noble and learned Lord, Lord Woolf, on the cogency and force of his first intervention in this House as Master of the Rolls. As well as being a Member of this House for 36 years watching life go by, I have served both as an official and a Minister in the executive. But, as I say, I have no legal experience whatever.

Within our sovereign constitutional edifice cohabit the three powers that the French political philosophers of the 18th century saw as such a healthy tripod in this country; namely, the legislative, the judicial and the executive. That is also the separation that the framers of the American constitution sought to produce in written form. Ever since, new or renewing countries have incorporated that separation in their written constitutions, right down to Russia a couple of years ago.

But our constitutional arrangements include many historical idiosyncrasies. Our lower House is democratically elected--more or less; it is many years since the Government had the majority of the voters behind them. Our upper House is, quite unusually, not only part hereditary but gives house room to Bishops of the established Church, leaders of other denominations ennobled for the purpose, the top judges, and nationals of several other countries. So we have the top of the judiciary in this House and the top of the executive in the other House.

Thus, today, the powers are not separated. The executive is not a distinct, free-standing leg of the tripod, as it is for instance in that elective monarchy, the United States. Here, the executive now emerges directly from within the elected Chamber of the legislature where previously it emanated directly from the monarch. That leads to constitutional confusion--the subject of our debate today-- because the executive has been

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attempting to seize and misuse Parliament's democratic credentials for its own, now often unconstructive, purposes.

That confusion has licensed the repeated and sometimes successful attempts by the present Government to introduce retrospective legislation and Henry VIII clauses and Bills so badly drafted that we spend days examining the Government's hundreds of amendments to their own Bills. The noble and learned Lord, Lord Hailsham, a few years ago famously used the phrase "elective dictatorship" to alert us to the vulnerability of our position and to the scale of the damage we might suffer.

This very day we have that "dictatorship" on full display with the executive's announcement that it intends, regardless of the lawful procedures of this House, to enact the privatisation and commercialisation of the Civil Service Recruitment and Assessment Services. It seems in fact to be tending towards a kind of unicamerality. And all that it is able to do because we have no written constitution. We still seem to be rather proud of that. But any society which chooses to live without the certainty of law can only rightfully do so as long as no harm results. We are now living without a part of that which the rest of decently governed humanity regard as necessary law: the coherent constitutional law that ought to govern all the other parts. Unlike others, we have no administrative court--as the noble and learned Lord, Lord Wilberforce, wisely reminded us--to thwart the executive when it steps outside its role. We have no constitutional court either, to strike down Acts that the executive has succeeded in whipping through the legislature when they conflict with the constitution. The suggestion that we might have such things may strike terror into untravelled souls. But does anyone who knows France or the United States believe that they are any the worse off for having those elementary precautions against "elective dictatorship"?

We may perhaps already have something to which we could turn to preserve our ancient laws and freedoms. We have the oath the Queen took at her coronation by which she is solemnly bound and from which no one in the United Kingdom has released her. At her coronation the Queen swore to govern us,

    "according to [our] respective laws and customs".
Certainly, among our reputed "customs", if not our actual laws, is precisely that invaluable and widely admired tripartite division of the powers.

Since the Queen's Ministers exist to execute the power that was once her predecessors'--power wrested from those predecessors by the people in the 17th century--and since Ministers and the Government constitute her Government, it must follow that they are bound by her oath. I was particularly glad last week to see Sir Frederick Lawton--a much respected and now retired Lord Justice of Appeal--quoting the Queen's coronation oath, though another part of it, to the same effect. He wrote in a letter to The Times that the judges, in their dispute with the Home Secretary,

    "regard themselves as the Queen's delegates to perform the part of her coronation oath whereby she undertook 'to cause law and justice in mercy to be executed in all [her] judgements'".

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Those are the words in the oath which bind the judiciary. The words in the oath which bind the executive are those with which she promised to govern us,

    "according to our laws and customs".
And her Ministers must regard themselves as her delegates to perform that part of her coronation oath.

The question arises: if that oath is, as it surely must be, binding on the executive, who, in the absence of constitutional and administrative courts, is to judge whether and how well it is being kept? The Government today intensely dislike judicial review because, some Ministers claim, it enables the judiciary to restrict the sovereign rights of Parliament. In fact it does not do that, as has become clear in this debate. On the contrary, it is a means whereby the judiciary examines whether the executive--the Ministers themselves--have properly respected the will and the Acts of the legislature and whether or not they are breaking, by their executive acts, the laws which Parliament has, usually at the behest of that same executive and often under threat, made.

The judiciary is part and parcel of our customary system of internal sovereignty--"the Queen in Parliament". It is one of the three separate but symbiotic powers, and it is a capricious and self-serving contention that it should not have the power to preserve the authority of the legislature over the executive.

On executive matters, the Queen is, of course, advised by her Prime Minister who is bound by her oath. On judiciary matters, she is advised by her Lord Chancellor who is also so bound. The press has been telling us--it was alluded to earlier--that not all Ministers were happy with the Lord Chancellor's recent appointments to the judiciary. The possibility therefore arises of the executive Prime Minister and the judicial Chancellor disagreeing about some larger matter. If that were to happen, ought the Queen simply to take her own counsel? I think not, but as this Government increasingly, and quite unprecedentedly, insult our laws and customs, the question deserves examination. Given the division of the powers that our system in theory used to embody, how has the "elective dictatorship" come about and what redress do we have?

It has come about because of the conflation within the House of Commons--a subset of the legislature--of the legislative power with the executive power which now emanates directly from it. The executive now regularly seeks full control of that part of the legislature and often achieves it. But that democratically elected part of the legislature is not only not the Queen's; it is not the executive's either. It is the electorate's, and it alone democratically represents those whose laws and customs the Queen's coronation oath binds her to protect.

The House of Commons' democratic glory today is horribly tarnished. Members of the judiciary have, at the executive's request, made that only too clear. We do not--thank God--have sleaze, as the current mix of corruption and mendacity has come to be called, in the judiciary. But we do have it in the executive, as Scott showed, and in the legislature, as Nolan showed. The electorate does not care for the sleaze which members of the judiciary have uncovered and displayed.

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If the Government were to try to prevent or limit judicial review of ministerial executive action or to wriggle away from Scott or Nolan, that would quite specifically be an insult to the electorate and to the House of Commons it elects. The legislature clearly has the right to insist that executive behaviour is properly examined and by now judicial review is customary, even if all its limits are not yet quite hard-edged.

It is not now unimaginable that some members of this Government--of the executive and of its friends--should wish to squash this still rather new custom. They might even obtain a majority in the House of Commons. What would the Lord Chancellor then do? I speak entirely hypothetically, and this is not a direct question to the noble and learned Lord who sits on the Woolsack. I am asking what any Lord Chancellor would do. One hopes that he would stand up for the Queen's oath.

But then, with her two principal customary advisers advising differently, what should the Queen herself do? It is worth thinking around all the possibilities. Facing such a dictatorial text, should the Queen obediently declare la Reine le veult? Her Prime Minister might advise her to do so, despite her oath; her Lord Chancellor might tell her that the oath is binding above all else, and advise her not to. She would have no customarily valid individual from whom to obtain formal advice. Previous monarchs since 1688 have not, I believe, faced that specific situation.

One can think of a novel, if quaint, procedure that might answer that not quite unimaginable situation. The Queen might, quite privately--perhaps at Sandringham--invite the Speaker of the House of Commons to join her for tea, and while informally showing her the auriculas in the greenhouse invite her opinion, saying, "This piece of legislation that the Government have whipped through, is it in accordance with our longstanding customs whereby the powers are properly divided and the executive does not take more power than law and custom allow? My Lord Chancellor has already advised me that it is not. What is your view, as the personification of the democratically elected House of Commons?"

And if the Speaker were to venture the purely personal opinion, using the words of the Bill of Rights of 1689, "No, I think it seeks to subvert and extirpate ... the laws and liberties of this kingdom", the Queen might then signify that she was not minded to vouloir any such thing--La Reine ne le veult pas.

To her Prime Minister the Queen might even quote Winston Churchill, who saw the British constitution as "liberty broadening down from precedent to precedent", and Burke, who recognised the right of a people to throw out a ruler--in this case the elected dictatorship--who like James II subverted its liberties.

But of course the Speaker could not do or say any of this, because she can do nothing except as the House of Commons bids her. And that executive-controlled House would not bid her to undermine its own decision.

And so we are forced back on the question: can we really go much longer without beginning to think of a written constitution? Of course the forthcoming change

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of government will no doubt make that seem less urgent, but we may live to regret it if we let the subject drop permanently out of sight.

4.51 p.m.

Lord Boyd-Carpenter: My Lords, 57 years ago I was in practice at the Bar when my practice was rather rudely interrupted by the actions of the late unlamented Corporal Schicklgruber. Therefore, for the purposes of this debate, I think I come, together with the last speaker, on the amateur side as opposed to the very distinguished professional representation of the law which we have had the privilege of hearing. I hope I may be allowed very respectfully to thank the noble Lord, Lord Irvine of Lairg, very much indeed both for the debate and for the admirable speech with which he opened it. In his speech he raised a great many of the difficult issues of today without, as I understood it, offering any dogmatic assertions in respect of them. It has been extremely helpful to have his opening speech.

I would say, too, that the debate is a very good indication of the immensely useful role which your Lordships' House can fulfil. A House constituted as your Lordships' House is, with its immense experience and knowledge, with high legal officers like the noble and learned Lord, Lord Woolf, and with people of every kind of experience, can discuss these matters in a way which no other organisation in this country is capable of doing. The debate so far shows that this is one of the many justifications for the House and makes one express very sincere regret at those--there are some outside--who in different political circumstances would like very much to alter it. Your Lordships' House is justifying itself by holding a debate of this kind.

For my own part, I shall for the reason I have given not venture to detain your Lordships for any substantial length of time; but I should like to say that I was intensely interested in what was laid down as being the duty of the judges. As I understand it, the first and main duty of the judge is to interpret the law as it stands, and where it is difficult to understand, where it is complicated, to give the advantage of his ability and experience to working out the application of that particular branch of the law to the case which is before him.

I am not saying for a moment that it is not right separately from the judicial duties for members of the judiciary, particularly senior members of the judiciary, to offer their advice to Parliament as to possible changes in the law. But in the handling of actual cases I would stress very strongly that the judicial duty is simply assessing what the law means in the context of the case that is before it. Of course that is sometimes a matter of very great difficulty and it is sometimes a matter on which opinions may vary. But it is an important aspect of the matter.

Therefore, I suggest that there are two areas for discussion. The first is what the judiciary should do in court. There, I am afraid, there is no doubt that it is the duty of judges, whatever their personal views on the legislation they are construing, to give the best possible

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interpretation of what Parliament meant when the particular Act or even the particular section of the Act was under discussion.

I should like to take up a point made by my noble friend Lord Renton in the course of what was, I hope he will allow me to say, a delightful and very adequate speech. As I understood it, my noble friend was against the provision which exists in certain statutes that where a conviction is recorded for certain offences, there is a minimum penalty which cannot be cut back by the court which is handling the case. Personally, I think it is a good safeguard to have a certain number of minimum penalties so that if one gets an aberration by a judge--as occasionally one does--it does not mean that someone guilty of a very serious offence is too lightly treated and indeed does not receive a proper penalty. Therefore, with respect, I differ from my noble friend Lord Renton and I feel that the minimum penalty which exists for only a certain number of offences is a salutary part of our judicial system.

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