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Lord Renton: My Lords, my noble friend should remember that I said that, under the Home Secretary's proposals, if there were exceptional circumstances judges would not be required to apply the minimum penalty. I agree with that.

Lord Boyd-Carpenter: My Lords, that is a matter of some detail and some discussion. What are exceptional circumstances is a matter where I foresee that legal argument of great length and prolixity could undoubtedly be operated. As I understood my noble friend--I do not think I misrepresented him--he was intending to be critical of the minimum penalty provisions of certain statutes. I understand his view. I am rather in favour of them. Indeed, it might be sensible in certain cases to extend their scope and to apply the minimum penalty rule to a number of other offences which are frequently committed.

Our discussion today has been enormously valuable, and as soon as I sit down, will continue to be valuable. I should like once again to thank the noble Lord, Lord Irvine of Lairg, for introducing the debate and to say that your Lordships' House has shown the great value of its widespread membership and of its capacity to deal with every kind of technical problem that arises. I hope therefore that this debate will succeed in influencing opinion in the right direction and will help us to support a judicial system which is undoubtedly the best in the world.

5 p.m.

Lord Simon of Glaisdale: My Lords, I am always glad to follow the noble Lord, Lord Boyd-Carpenter, because I always find that he has said, much better than I could, everything that I wanted to say. I agree with him particularly in what he said about the role of your Lordships' House in the Constitution. I disagree with him on only one matter where I agree with the noble Lord, Lord Renton; namely, on minimum sentences. The noble Lord, Lord Boyd-Carpenter, left out of

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account entirely that in the serious cases to which he referred the Attorney-General can refer unduly lenient sentences to the Court of Appeal.

Like the noble Lord and all other noble Lords who preceded me, I congratulate the noble Lord, Lord Irvine of Lairg, on having introduced this important debate. It is the third important constitutional debate that we have had within a comparatively short period of time. The first was in relation to the amendment of the Defamation Bill seeking to amend the Bill of Rights. The second important debate, just before the Recess, was on sentencing and was initiated by the noble and learned Lord, Lord Taylor, to whom the expressions of sympathy today have been so amply due. The third debate is this one. In the three debates perhaps more questions have been asked than answers provided. The fact that this is the third debate must make one regret that the constant plea in Queen's Speech after Queen's Speech for a Royal Commission on the Constitution fell on deaf ears.

Being so much older, the other thing I wish to say about the noble Lord, Lord Irvine, is that he made a statesmanlike speech. He will forgive me for saying that it differed in tone from the lecture he delivered on this subject and which was printed in Public Law. Today he was far less critical of the way in which judicial review has developed and far more muted in his criticism of the judges who are highly qualified to speak and who have given public lectures on the subject. I refer in particular to public lectures questioning the frontiers of judicial review, which I believe should be questioned in two directions; namely, are we doing too much or are we doing too little and is there something more that we can do? In initiating this debate, the noble Lord, Lord Irvine, made a speech which was statesmanlike and illuminating.

There has been much talk today about the division of powers. Even in the United States there is no complete division. In this country we have practically no sign of it, or very little, and certainly no rigid division of powers. The noble Lord, Lord Mishcon, accused my noble and learned friend on the Woolsack of leading a double life. I fear that it is far worse than that. He is presiding today as Speaker in your Lordships' House. He is replying to this debate, I believe, as head of the judiciary. He is head of an important Government department and he is also a member of the Cabinet bound by the collective responsibility of Ministers, as one saw in his reply to the debate just before Whitsun.

So we have no rigid division of powers. We have something which is much more important and vital to the liberty of the individual citizen--that is, the balance of powers, which is a system of checks and balances, as Walter Bagehot put it. What is essential for the liberty of the individual citizen is that no one organ of the Constitution shall exercise to a substantial extent the functions vouchsafed primarily to another organ of the Constitution.

That leads me to ask why judicial review has been such an emerging part of the law in recent years. I believe that there are two reasons. The first is the extensive and increasing power of the Executive and its

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all-pervasiveness. The second is that judicial review, in those circumstances, has been found to be useful by the individual citizen who has applied for the review and for some who have been granted it. I said that liberty is threatened and that judicial review is required in so far as the Executive power has increased in pervasiveness and in potency.

As regards Parliament, I need only read something written by an independent political journalist in The House magazine quite recently. He referred to the "alarming loss of influence" of the House of Commons. I agree very much with the way in which the noble Lord, Lord Rodgers, put his point. It is because of that alarming loss of influence by the House of Commons that judicial review has been increasingly called on.

With the House of Commons suffering an alarming loss of influence, the role of your Lordships' House--and I agree so much with what was said by the noble Lord, Lord Boyd-Carpenter--becomes more important. But what does one find? Although lip service is paid to your Lordships as a revising Chamber, in fact it is not recognised that a revising Chamber means nothing if it is not an amending Chamber. It is not sufficient for a revising chamber merely to exist to rubberstamp the after-thoughts of Parliamentary Counsel. What has been dismaying has been the constant reluctance of government business managers to contemplate your Lordships making effective amendments or, if they do, to give your Lordships the opportunity to ask the other place to reconsider the matter. The most important recent example related to the amendment tabled by my noble and learned friend Lord Ackner to the Criminal Appeal Bill.

In view of that, there has inevitably been pressure on the judiciary to make use of the powers that have been vouchsafed to it in the way shown by my noble and learned friends Lord Wilberforce and Lord Woolf. Those powers were vouchsafed by Parliament, endorsed by the Law Commission and were given at least tacit approval by the Government.

So much for judicial review, but I mentioned frontiers. We must remember that in this country, unlike on the Continent, we have no Conseil d'Etat, as was described by my noble and learned friend Lord Wilberforce. We do not have the powers of judicial review such as exist in the United States of America. Years ago the noble Lord, Lord Renton, collaborated with others in producing a pamphlet called Rule of Law when we were faced with the problem which has faced your Lordships today; namely, administrative potency proceeding seemingly unchecked. Having taken counsel with two senior and experienced former civil servants, we suggested that there should be an administrative division of the High Court with important, newly retired civil servants sitting with the judge as the elder brethren of Trinity House sit with the Admiralty Judge.

I am afraid that much bilge has flowed under the bridges since then, but I think that it might be worth reconsidering that matter in the context of the frontiers of judicial review. Where there is a question of extending the frontiers--I think that it rests mainly in

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two directions at the moment, with both of which I must confess that I am in sympathy. The first is the importing of the continental concept of proportionality of administrative remedy, and the other is the concept of reasonable expectation. When the noble Lord, Lord Irvine, gave his lecture he was, I think, chary of both of those developments. If I understood him correctly--the noble Lord will correct me when he replies if I have got him wrong--that was mainly because it was taking judges too much into the realm of administration for which they were not really qualified. However, if we are to advance in those two directions, might it not be useful to revive the idea of having administrative assessors sitting with the judge to provide the necessary expertise, such as was vouchsafed to us who sat in Admiralty by the older brothers of Trinity House?

I come to my final point which relates to the extra-judicial activities of judges. I found little to quarrel with in what was said by the noble Lord, Lord Irvine, and I entirely agree with what was said on the matter by my noble and learned friend Lord Woolf. There is no need for me to repeat what they have said. However, we must be guarded in two directions. I refer first to the danger of judicial populism. Given that popular opinion veers from side to side, judicial populism would lead to judicial decisions veering with similar uncertainty. That would bring about unpredictability in the law.

My second point on this has already been mentioned. Increasingly, when there is a difficult and controversial public issue, such as Hillsborough or the Strangeways riots, a judge is called on to assist by conducting an inquiry. That is because of the first quality that is required of a judge. When the eminent American judge and jurist Felix Frankfurter was asked about the three most important judicial qualities, he said, "First, detachment; secondly, detachment, and thirdly, detachment". Although I would certainly put detachment first, there is also room for intuition, particularly by judges of instant jurisdiction, and for logical rigour, particularly on the part of appellate judges. However, I entirely agree that detachment must come first. That is why judges are called on for such inquiries. However, we must remember that every time that a judge is called to conduct such an inquiry, he is embroiled in a controversial issue and his detachment may be compromised. Indeed, the reputation for detachment of the judiciary as a whole may be compromised. Although, as my noble and learned friend Lord Woolf said, judges have to consider that role as part of their public duty, what I think is a great mistake is if they afterwards campaign for their report, particularly if it has some party political significance, as so many do.

I entirely agree with my noble and learned friend Lord Woolf about the value of judges giving the sort of lectures that were given in the Hamlyn Lectures and the Holdsworth Lectures. Judges can be creative in such work. Shortly after the war my noble and learned friend Lord Denning wrote a seminal article in a Law Quarterly Review on onuses and presumptions. It has been formative in the law. That sort of activity is

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valuable and I think that it would be a mistake to consider that that is not a proper activity for a serving judge.

5.20 p.m.

Lord Monkswell: My Lords, I, also, pay tribute to my noble friend Lord Irvine of Lairg on the way he introduced this debate and the topic itself. I contribute to the debate with some trepidation, in that I am sandwiched between two eminent noble and learned Lords. In a debate which calls attention to the relationship between the judiciary, legislature and the Executive it is useful to have noble Lords who are neither members of the judiciary nor members of the Executive contributing as lay members of the legislature as it were. One of the great benefits of this debate is that it is almost completely devoid of political partisanship. One is talking of major constitutional matters which cut right across party and belong to no party at all.

It would be easy for Members of your Lordships' House contributing to this debate to criticise either members of the judiciary for exceeding their brief or members of the Executive as a whole for usurping their powers. It is not my intention to do that this afternoon but to engage in a degree of self-criticism. I believe that that can be applied not only to me individually but to all noble Lords collectively as members of the legislature. One of the difficulties we have presented to the judiciary and the Executive is our failure to ensure that the laws that we write and the Acts of Parliament that we determine are clear, concise and easily understood. I believe that that is a major failing. If we do not recognise that and take steps to improve the situation we will create more and more problems for the judiciary and the executive.

One recent event in the justice system is the judgment in Pepper v. Hart. I am not a legal expert; my understanding of that case is that when interpreting an Act of Parliament the judiciary can have regard to the parliamentary record. To assist them in determining what is meant by a particular Act of Parliament they can look at the record and see what the Executive said it should mean. I believe that that is a very dangerous situation. If we allow it to become the norm that an Act of Parliament does not mean what it says and cannot be commonly understood to mean what it says in the words set out on paper but is determined by what the Executive says it shall mean, we are on very dangerous ground. The judiciary will be placed in a position where the Executive tells it what an Act of Parliament means. I hope that before too long there will be a coming together of the legislature, judiciary and Executive to recognise that that is a wholly unfortunate development in our systems and procedures which needs to be tackled.

I intended to speak as a layman on the subject of judicial review, largely on the basis of pronouncements by the Executive that it was the judiciary interfering with the Executive's powers and privileges. I have learnt in this debate, not only from my noble friend Lord Irvine of Lairg but the noble and learned Lord, Lord Woolf, the new Master of the Rolls, that that is not the

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way judicial review works and that it is a process by which the law is upheld. I hope that the judiciary continues to ensure that that is the way it goes forward.

I turn to judicial participation in public controversy. In Parliament there is a coming together of the legislature, Executive and the judiciary. I believe it is important that each speaks not only forthrightly but is listened to by the others. It is to be hoped that the judiciary as exemplified by the Law Lords, who have their rightful place in Parliament, will make its contribution clear and unambiguous on the basis of its expertise and knowledge so that other members of the legislature and the Executive, who are also members of the legislature, can hear its views. They may not necessarily agree with them all the time but at least they will have the benefit of the wisdom of those views. I hope that not only retired but also sitting members of the judiciary will contribute and that in any future changes to the constitutional arrangements there is no separation and division of these three essential elements of our lives. It has been suggested that there should be a separation of powers. One of the glories of our unwritten constitution is that all of those powers come together. There is no occasion on which one of those powers is in practice allowed to dominate the other; and there is no occasion on which one of those powers can operate separately and independently and have no regard to the other powers. It is useful to have a mechanism within our system whereby everybody can come together to talk and to listen and over time arrive at an arrangement which benefits everyone in society.

In conclusion, I take issue with one phrase which I believe I heard the noble and learned Lord, Lord Woolf, utter. He referred to the judiciary acting in the public interest in interpreting, or reinterpreting, the common law. One of the most difficult issues is who is to determine the public interest. I believe that the judiciary needs to be wary that it is not seen to be interpreting the public interest but rather as interpreting the law as determined by the legislature in the hope that the Executive is kept in check, if that is necessary.

5.30 p.m.

Lord Ackner: My Lords, nearly 10 years ago, at the fourth international appellate judges conference held in Kuala Lumpur, I met the most senior Judge of the USSR. He was Chief Justice Terebilov. I have no doubt that he lived up to his name. Some five years later, shortly after the collapse of communism, I attended a seminar in Moscow arranged by the Council of Europe. Chief Justice Terebilov was no longer in evidence. It so happened that on the very first day of our meeting, the President approved a new law on the status of judges, recognising that the judiciary was a separate power and guaranteeing the judge's independence.

I learnt during the seminar that many judges were, during the Terebilov days, known as "telephone judges". Either before a trial took place, or, exceptionally, part way through the trial, they were rung up by the prosecuting authorities and told what their decision should be. A few years later I raised that with the chief prosecutor from Moscow who confirmed with approval the existence of that practice, saying that after all the

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work they had spent on building up the prosecution case, whatever that might mean, they were not going to run the risk of a judge making a mess of it.

Those were no doubt extreme cases of interfering with the independence of the judiciary, totally at variance with our concept of the rule of law. Indeed, in the Government's Green Papers of 1989 entitled The Work and Organisation of the Legal Profession, which foreshadowed the radical provisions of the Courts and Legal Services Act 1990, it was stated:

    "a strong and independent judiciary is one of the central supports upon which our liberties are based and upon which the Rule of Law depends".

In the White Paper issued by the Home Office in 1990--a strong contrast to that issued in 1996--and entitled Crime, Justice, and Protecting the Public it is stated:

    "No Government should try to influence the decisions of the courts in individual cases. The independence of the judiciary is rightly regarded as a cornerstone of our liberties".

Thus it seems that everyone supports judicial independence. It is after all the judge, and the judge alone, who stands between the power of the state and the freedom of the individual under the law. But does everyone support judicial independence? That very question was answered in a lecture given by my noble and learned friend Lord Hailsham in 1989, in these terms:

    "Certainly not the public or the back-benchers in the House of Commons, who constantly revile, frequently from inconsistent standpoints, individual judges on particular decisions, or what they imagine to be judicial qualities, and daily demand the individual judges be directed or rebuked (presumably by the Executive Government) to move in this direction or that or even that they should be removed from office. Certainly not the Opposition, whichever party happens to be on the Speaker's left. Certainly not Party Conferences of any hue. And least of all, I reassure you, individual Members of the Cabinet whose Departmental interests from time to time basically conflict, not only with the views of the judiciary, where they are entitled to differ, but in provision of the means necessary to enable the courts to discharge their functions".

In the opening words of the leading article in The Times on Saturday 25th May, commenting upon relations between the judiciary and executive, it was stated, and in my view rightly stated:

    "In any democracy there will always be a measure of tension between the Judiciary and the Executive".
However, I submit that currently, and indeed for the past few years, that measure of tension has proved excessive. I believe that that is due largely to the fact that the Government fail properly to understand, and therefore properly to protect, judicial independence--a vital ingredient in our system of justice.

There are many examples I could provide to support that thesis, but the time limitation on our speeches permits me to refer to only a very few. It goes back to the 1989 Green Papers produced by my noble and learned friend the Lord Chancellor at the behest of a sub-committee of the Cabinet's Economic Committee, chaired by the then Chancellor of the Exchequer, Mr. Nigel Lawson. He was warned by the Lord Chancellor that his proposals would be, "bitterly opposed by the judges" (page 619 et seq. of the noble Lord's biography entitled View from Number Eleven).

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Indeed, the Green Papers were described by the noble Lord, Lord Beloff, in the debate on 7th April 1989 as another attempt by the Civil Service to establish its control of what had hitherto been an independent and separate part of our national life. With the deepest respect, my noble friend Lord Irvine of Lairg is totally wrong in thinking the Green Papers were limited to the question of rights of audience. That was far from the case.

One of their central proposals, which the Government were later obliged somewhat to modify, was the so-called Lord Chancellor's Advisory Committee--a lay-dominated committee staffed by civil servants of the Lord Chancellor's Department of which all the members were or are appointed at the sole discretion of the Lord Chancellor. "An instrument", said my noble and learned friend Lord Oliver of Aylmerton:

    "by which the Executive can in very large measure control a legal profession which was previously self-regulated and by which it can, by the creation of new classes of practitioners in the courts, secure an even greater control than it enjoys at the moment over the composition and, of course ultimately the conduct of the judiciary at all levels".

In the same debate, my noble and learned friend Lord Lane, the then Lord Chief Justice, referring to the totality of the proposals in the Green Papers, warned in trenchant terms that the growth of the powers of the executive and therefore of the Government over the administration of justice had steadily increased in recent years. He said:

    "The signs are that it will extend still further, and one asks whether we are now seeing tools being fashioned which by some future, perhaps less scrupulous, government, may be used to weaken the independent administration of justice".--[Official Report, 7/4/89; col. 133.]
Some may view those observations as highly prophetic.

Some two years ago I attended, at the invitation of the British Council, a series of meetings and discussions with the Mauritian judiciary. One of the problems which confronted it was the rather too early retiring age which denuded the Bench of experienced judges. To mitigate that, the Government had suggested that the Prime Minister should have the statutory power to retain in office up to a given number of years, judges after they had reached retiring age. That suggestion was quickly rejected by the judiciary, appreciating the danger to judicial independence of judges being placed on short-term contracts. Indeed, unbeknown to them, some 60 years earlier, a Royal Commission (the Peel Commission) for the same reasons firmly rejected a similar suggestion when judicial retirement was being first considered.

The then permanent secretary to the Lord Chancellor's Department (Sir George Shuster, later Lord Shuster) spoke firmly against the proposal. Yet when the Judicial Pensions and Retirement Bill was introduced into this House in 1992, it was specifically proposed in one of the clauses that the Lord Chancellor, without the obligation to consult anyone, should have that very power. How did that come about? It was only at a very late stage in the Bill that the Government bowed to the criticism and withdrew the proposed section, not without my noble and learned friend

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Lord Simon of Glaisdale expressing his astonishment that this unconstitutional provision ever appeared in the Bill.

The Police and Magistrates' Courts Bill 1994, when first introduced into this House--it later had to be substantially amended--provided for a structure of control covering not only the administration of magistrates' courts but the selection and employment of magistrates and their clerks which in the view of many, including the former Lord Chief Justice the noble and learned Lord, Lord Taylor, would have provided a means in the hands of the Lord Chancellor or his department of directly influencing the magistrates or their clerks in the discharge of their judicial duties. Indeed, that necessitated for the first time, to my knowledge, the need to insert in the Bill a specific clause purporting to safeguard their independence.

While the Bill was being presented to Parliament the Observer disclosed letters, copies of which were later deposited in your Lordships' Library, from my noble and learned friend the Lord Chancellor to Mr. Justice Wood, the then President of the Employment Appeal Tribunal. In substance they stated that, if that judge did not apply certain statutory rules to the tribunal in the manner in which the Lord Chancellor thought appropriate, he should consider his position. That led to Questions in the House and subsequently to a debate at the instigation of the noble Lord, Lord Irvine of Lairg, on 27th April 1994.

In a fully considered reply quoted in the debate, Mr. Justice Wood concluded his letter to the Lord Chancellor in the following terms:

    "You have demanded that I exercise my judicial function in a way which you regard as best suited to your executive purposes, but I have to say that in all the circumstances that present themselves to me, and in the light of the existing law, I cannot regard compliance with your demand as conducive to justice ... You express disappointment. I express profound regret that it has ever been the uncomfortable duty of a judge in this country, in compliance with his Judicial Oath, to write to a Lord Chancellor refusing a demand such as the one you made of me".
No reply came. There was merely a civil servant's acknowledgment on 5th May stating:

    "The Lord Chancellor is ... considering the issues you raise and hopes to reply shortly".

In the course of that debate, which ended shortly before 1 a.m., my noble and learned friend Lord Oliver was moved to say:

    "Recent pronouncements in this House have seemed to indicate that the noble and learned Lord the Lord Chancellor and his department interpret the principle of judicial independence in a very much more restricted sense and as meaning simply this: that judicial independence is infringed only if an attempt is made to dictate or influence the decision in a particular individual case".
He observed:

    "I hope very much that I am wrong about that because one has only to think about it to see where the logical train then leads. On that analysis, a direction in the 1930s by the German Ministry of Justice that judges were not to decide disputes in favour of members of the Jewish faith or against party members"--[Official Report; 27/4/94, col. 779.]

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