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Lord Irvine of Lairg: No, I am not.

Lord Hacking: My Lords, I am so glad he remembers it clearly. That established the doctrine of estoppel. The vital role that judges have played in the development of law should be encouraged. I refer therefore to the importance of judicial review. I greatly regret that the European Court is not nearly so effective in matters of judicial review in the application of Article 175 and in its approach to such cases. That is of particular importance when judicial review cases are referred from our courts to the European Court of Justice.

I conclude with some remarks from my side of the profession. The noble Lord, Lord Mishcon, referred to our side of the profession as being the "better end" of the profession. The noble Lord has so much seniority

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that he can get away with a comment like that. However, I certainly join with him in saying how lucky we are with our judiciary. Without a written constitution, the debate introduced by the noble Lord, Lord Irvine, becomes all the more important. While we should be aware of the interaction of the powers of judiciary, legislature and executive, I believe that each of those powers should continue to be active.

6.45 p.m.

Earl Russell: My Lords, I have on occasion felt some regret that it has not proved possible to include in the national curriculum a basic citizen's education in law. I formed that opinion when listening to a first-year undergraduate reading an essay on the writ of "alias" corpus. There is confusion between statute and common law. Clearing up that confusion for the laity is quite important.

I am grateful to the noble Lord, Lord Irvine of Lairg, for introducing a subject that has shown this House at its best. I agree with a very large part of what he said. However, I do not altogether agree that the tension at present between the judges and the executive is unprecedented. In 1388, all the judges were impeached. In 1641, two-thirds of the judges were impeached. Once, when browsing in the Public Record Office, I came across the accounts for the diets of Judge Jeffreys in the Tower many years after he had been sent there. All were judges who had allowed themselves to get too close to the executive. So judges may take comfort from the fact that it could have been worse.

Another matter on which I do not wholly agree with the noble Lord is the idea of the separation of powers. The noble and learned Lord, Lord Simon of Glaisdale, expressed views much closer to my position. It is impossible to distinguish vires from origins. All three branches, judiciary, legislature and executive, are emanations of the King's Great Council. So it is a relationship in which the balance that the noble and learned Lord invoked is a key feature. I see it as having been over many centuries a creative tension. I am reminded of a remark by Machiavelli:

    "Those who condemn the tension between the Senate and the people of Rome condemn that which was the very origin of liberty".
That balance is the balance of a see-saw--and the day it stops moving, it is defunct. So if there is a tension from time to time, there are uses as well as dangers in it.

Occasionally, there were some quite acute confusions, which show in the early yearbooks. I believe it was Chief Justice Hengham who, in addressing counsel, once said: "Do not presume to gloss the statute to us. We understand it far better than you do, for we made it". His successor, Chief Justice Bereford was listening to counsel arguing whether something was logically implied in the Act and therefore covered, or not in the Act and therefore excluded. Chief Justice Bereford said, "He that drew the statute intended to put it in, and only left it out through inadvertence. It shall therefore be construed to be in the statute."

Those are not remarks that come from a tradition of separation of powers. Nor, taking the other two powers of legislative and executive, is the example of the

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Select Committee of another place in the reign of Elizabeth I which, when considering a Bill on the organisation of the Exchequer, met in the private house of the Chancellor of the Exchequer. When teaching in the United States I found that producing that example opened a great many doors which otherwise took some opening. "Separation of powers" is not quite the right term. The noble Lord, Lord Renton, used the example of the noble and learned Lord on the Woolsack. It is a positively Athanasian example of the mingling of the three powers with each other.

In the division of function but not the separation of powers, there is a need for restraint. I think we should get it wrong were we to think that it was only a need for judicial restraint. The noble Lord, Lord Borrie, referred to judges having on occasion overreached themselves. No doubt that has happened. Every power overreaches the boundaries of its authority. But the executive also overreaches itself. Of the two dangers, I know which, over the centuries--for one executive is very like another--worries me more. My greatest anxiety is not focused on the judiciary.

The noble Lord, Lord Irvine of Lairg, stated that Parliament makes the law. That is an incomplete enumeration. It has been clear at least since the middle of the 15th century and, for all I know, possibly longer that a parliamentary statute is the highest form of law there is; it trumps anything else. But statute is not the only form of law. I believe, subject to correction--I have been unable to confirm it in the time at my disposal--that the first statutory prohibition of murder was the homicide Act 1956 whence legislation was necessary in order to restrict the application of the death penalty. Therefore, subject to correction, murder was simply a crime at common law. The authority of the common law cannot come from an Act of Parliament because it pre-dates the existence of Parliament. The limit of legal memory is 1189, and that is a good century before Parliament was in any significant sense a fact.

Whoever wrote Glanville and Bracton--I realise that question is disputed--they were people who did most of their work before parliaments existed. The noble and learned Lord, Lord Scarman, once said that the common law was like Topsy: it just "growed". So the basic authority of the common law must derive from prescription.

A great deal of the development of the law has been through common law cases where there is a general principle which is interpreted by the judge in the light of precedents. The noble Lord, Lord Irvine, has many times praised the late Lord Reid. I recall more years ago than I care to remember reading a Times Law Report of a judgment by Lord Reid about a case where a council had dug a hole in the pavement--as councils do from day to day--and a blind man had fallen into it and broken his leg. The governing legal principle which was agreed well enough was that the council was bound to take reasonable care to make sure that people did not fall into the hole. The point at issue was whether reasonable care included the need to take care in case there should be a blind man passing. There was a previous judgment of the Appellate Committee of this House that it was not required. Lord Reid, after very

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careful argument, decided otherwise. That seems to me typical of the way the common law has developed to meet new situations; to meet in that case a change in society's attitude to disabled people.

Without needing to clutter up this House with endless new statutes and regulations, we should be grateful to the lawyers that they do it that way. There is nothing new about that either. In 1632 my ancestor--my ancestors have been unlucky in being on the receiving end of test cases--the one who developed Covent Garden, was hauled into Star Chamber for creating a nuisance because he had built Covent Garden without putting in any sewers. The case first established that it was to create a nuisance to build an area of housing without putting in sewers. In that situation the common law was reacting to a growing population density. There again I think the law was reacting sensibly to change. Whether or not judgments of that sort are making new law is a matter of immense philosophical argument into which I am certain the House will not wish me to enter.

Judicial review, about which we have argued so much, rests, before the 1981 statute, on common law principles. I agree with the noble and learned Lords, Lord Cooke of Thorndon and Lord Wilberforce, that those principles go back for centuries. I once had the privilege of reading the argument of the noble and learned Lord, Lord Ackner, as he became, in the case of Ridge v. Baldwin. His earliest case cited came from the reports of Sir Edward Coke. I traced it back to source and found it was one of a sequence of very similar cases exercising a jurisdiction which seems to me to have great similarity to judicial review as it is presently constituted. But that is something which I have yet to publish and before it is taken seriously it needs peer review of another sort than that readily available in this House. However, that is my opinion for the time being. Therefore there is nothing particularly new about judicial review.

Sir Edward Coke's judgment in Bonham's case, quoted by the noble Lord, Lord Irvine of Lairg, in his lecture and to which much reference has been made, is sometimes misunderstood. As I understand it, all he was saying is what was said by Blackstone in a passage quoted by the noble and learned Lord, Lord Woolf, in his article to which reference has also been made, namely, that Acts of Parliament impossible to be performed are of no validity. If one reads the statute on which Sir Edward Coke was judging one will take the point. It is the most abominably drafted statute that it has ever been my misfortune to read.

If Parliament were to follow the example of an old lady making her will in an Agatha Christie novel and passed an Act dividing something into four equal thirds, the judges would not be guilty of any contempt of Parliament were they to fail to divide the thing in question into four equal thirds. That is all Sir Edward Coke was after.

On many occasions judgments are necessary because of the bad drafting of the original statute. The noble and learned Lord, Lord Slynn of Hadley, in the case of

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Bate v. The Chief Adjudication Officer--decided in the Appellate Committee of your Lordships' House a couple of weeks ago--had this to say:

    "It is deplorable that legislation which affects some of the most disadvantaged people in society should be couched in language which is so difficult for even a lawyer trained and practised in this field to understand".
I declare an interest in agreeing with that view. The clause in what became the 1990 Social Security Act, to which the noble and learned Lord referred, was one where I put myself into the doghouse by getting the House counted out dividing against it at 10 minutes to 12 at night. When the Court of Appeal held otherwise I was reminded of that famous story of the judge's children seeing crate after crate of champagne borne into the house and being told by their mother, "Daddy's been upheld in the appeal court". Alas, I was not upheld in the Appellate Committee of this House.

What that illustrates is that the clause was a last minute government amendment tabled very late on the day it was put to the vote. I wonder whether a slightly more leisurely drafting would perhaps have produced a slightly better statute. I agree profoundly with what the noble Lord, Lord Irvine of Lairg, said in his article in the lecture; that is, that one of the reasons why judges needed to do what they did is what he called the "democratic deficit"--the inability of the legislature to provide a sufficient check on the power of the executive.

When the phrase, "the intention of Parliament", is used, I sometimes wonder exactly whose intention we are talking about. I remember one occasion when we were debating the Child Support Act 1995. We were discussing Section 2 of the 1991 Act, which was introduced as a consequence of an amendment in this House. The Minister told me with great authority what had been the intention of Parliament in 1991. He was not then a Member of either House. Three people who spoke to that amendment were in the Chamber. None of us believed that our intention had been what the Minister was describing but we did think that the Minister was describing with complete accuracy the intention of the noble and learned Lord on the Woolsack in accepting what we were saying.

So when we talk about the intention of Parliament, are we actually talking about the intention of Parliament, or are we talking about the intention of the responsible Minister? So long as we have that confusion in our mouths, we are leaving the judges rather more work to do than is fair. We need to take our share of the work; and until we do, we are not entitled to complain.

7 p.m.

Lord Williams of Mostyn: My Lords, in the very dark hours before the dawn, sometimes a shaft of light sets itself upon you and gives you infinite uncovenanted pleasure. That happened to me just about half an hour ago in your Lordships' Chamber when the noble Lord, Lord Beloff, invited me to say yes or no to whether the noble Lord was right or wrong. The noble Lord, Lord Beloff, was wrong, though he provided me with an interesting historical, nostalgic memory. I had not heard the name of the late Sir Stafford Cripps used as a bogey man since I was a small child in north Wales. My

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mother used to hasten me up to bed if I was slow by telling me that if I did not hurry off to bed soon Sir Stafford Cripps would come and take my thruppenny savings away from me. Sir Stafford Cripps never did and so perhaps we can leave him where he rightly belongs--in mythology and grave.

It is worth reminding ourselves of what my noble friend Lord Irvine of Lairg actually said. He began by saying in effect that the political incorruptibility of the present judiciary is not in question. He affirmed that on a number of occasions in different ways. That was manifest in every speech that was put before your Lordships today. As the noble and learned Lord, Lord Cooke of Thorndon, rightly said, the ground encompassed in the terms of this Motion is panoramic. There are deep questions about the nature of our constitutional arrangements as well as the nature, scope and quality of judicial office and judicial power. We are a fortunate regime indeed, legally speaking, to be able to have two such towering figures as the noble and learned Lords, Lord Woolf and Lord Bingham, to occupy their new positions. I say without disrespect to either of them that there were a number of other candidates who were well-qualified in a Court of Appeal that has probably never been exceeded in the quality of its intellect and judicial authority.

I would suggest that we should define some issues of principle. First, it is not possible precisely to delimit the respective powers of judges, Parliament and executive. Secondly, it is not desirable to attempt such precision, for at least three reasons. First, as the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Kingsland, pointed out, we do not have an overarching written constitution. Secondly, the modern history of this country--this was alluded to by the noble and learned Lord, Lord Ackner, in his reference to less fortunate countries in the east of Europe--shows that we are fundamentally, rightly and deeply an anti-authoritarian country. We believe in the rule of law, which, as the noble and learned Lord, Lord Lowry, said on an earlier occasion, is not a synonym for law and order but encompasses and describes a much more fundamental and nobler concept. Thirdly, changing circumstances demand changing remedies if a legal system is not to ossify and therefore become of no value.

I would further suggest that each party--Parliament, executive and judiciary--needs to have a decent reflective consideration for the claims made by the others. It is always bound to be a dynamic competition because nothing remains the same. Therefore, the answers to the questions will never be the same. They will be infinitely variable.

Part of the purpose of this debate of course arises by virtue of the insistence by some Secretaries of State recently on the exercise of unbridled, and therefore illegitimate, power. It is normally the Home Secretary but, in fairness to him, not always. This debate should not remain lodged in a period when public debate is rather febrile because we are in the expiring months of a government who are about to fall. The tensions which have been described in various ways will undoubtedly continue after the next election. There will be angry words from Labour Ministers and about Labour

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Ministers. I feel like an aboriginal in Australia. I have just thrown the boomerang. Next year it will come back and hit me on the back of the head. But it matters because the principles must endure, whatever the complexion of the government in power, or the struggle is valueless. If a principle obtains in June of 1996, it must obtain thereafter--in June of 1997 and following.

It is interesting to see what contribution the judiciary has made to the modern life of this country. Virtually the whole of the modern law of negligence is judge-made--compensation for individuals wronged by the illegal acts of others. There would be no system effectively of employee compensation for the negligent acts of the employer without judicial intervention. Parliament did not give proper rights. The judges provided them. The noble Earl, Lord Russell, touched on this point in his reference to Lord Reid's judgment. On the other hand, it could be said that the judges have not discharged their duty fully in keeping personal injury awards up to an appropriate level. If that is so, the remedy is available to Parliament and Parliament has not chosen to take that remedy.

The common law, it is said, can grow organically. It does not always do so. The noble and learned Lord, Lord Bingham, as I understood his lecture, was pointing to the fact that a discrete right of privacy does not exist in this country. I did not understand my noble friend Lord Irvine of Lairg to dispute the right of the noble and learned Lord, Lord Bingham, to put that forward as a proposition. What I understood him to be saying was that there are different complexions; that the question of privacy impinges on the freedom of the press; it subtly interrelates with the question of freedom of information; it also has to do with the reform of the defamation laws. Therefore, it is not always the courts which must attend to these very difficult questions. There may be occasions, particularly at a time when there is a promise from the present Government that a White Paper will be produced, when it is better for Parliament to reform than for the judges to create. I submit that that is a perfectly legitimate point of view for anyone conscientiously to hold.

The noble and learned Lord, Lord Bingham, himself in 1992 made a noteworthy speech at the Bar conference about incorporation of the European Convention on Human Rights. I believe that he was perfectly within his legitimate authority to do that. It is an expression of judicial view which he was entitled to hold and publicly express. It is right that judges should give academic lectures. It is right that senior judges--I mention three: the noble and learned Lords, Lord Woolf, Lord Nolan and Lord Templeman, over the years--should be able to discuss law reform and change on a philosophical jurisprudential basis with colleagues; for instance, in other jurisdictions like India.

The question is where the line is to be drawn. If the courts and the prisons become clogged with petty offenders who have not paid their fines for their television licences, are the senior judges entitled to complain? I believe that they are. If legislation is tortuous, confused and plain wrong, is the

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Lord Chief Justice entitled to say so in your Lordships' House? I believe that he is. I believe that it is part of his duty on his oath to do that.

One looks at what the judges have done in the field of crime. The protection of the illiterate, uneducated and largely unrepresented defendant was entirely brought about by the judges and not by Parliament. It was the judges who in fact erected and perfected the Judges' Rules to protect the weak defendant. Parliament did not do that: it closed its eyes. It is the judges who have taken to themselves the power, which may not always be appropriately exercised, for striking out criminal cases for abuse of power or for abuse of the system. Parliament gave them no such right. The judges have taken it to themselves and many would say that in a free society they have rightly done so.

There must be a much more subtle interplay between the judges and the legislature than some speeches have implied. Many of the judges and many practising lawyers colluded, as we all know to our shame, in a system which produced many miscarriages of justice. Eventually, that meant legislative intervention in the form of the Police and Criminal Evidence Act. On another occasion, following headline miscarriages, the executive intervened. The then Home Secretary directed the setting up of a Royal Commission nobly chaired, if I may say so, by the noble Viscount, Lord Runciman. Following that report Parliament re-intervened by passing some of the appropriate legislation. So the dynamic which I earlier described is capable of working without the embattled judiciary, the envious legislature or the overweening executive, each settling into its respective trench thinking that there is no good in this partnership which is capable of being alive and valuable.

I turn very briefly to public controversy. I respectfully agree with what the noble and learned Lords, Lord Cooke of Thorndon, and Lord Lowry, said. For instance, it would be wrong for a practising judge, however senior, to conduct a public campaign on something as controversial perhaps as abortion. However, senior judges now have to deal with questions which I take almost at random: when is it lawfully allowable to cut off a life support system from a patient who has been in a coma for many years? When is it appropriate in law for a conscientious doctor to carry out a sterilisation operation on a mentally defective young woman who is sexually active? This is a judicial power which no judge that I have ever spoken to is greedy to take. They are obliged to take those powers because Parliament has been too busy, too supine or too fearful to define the limits of those activities.

The noble and learned Lord, Lord Simon of Glaisdale, mentioned the use of judges in inquiries. I believe that there are significant dangers there. There are enormous benefits in having the independence of the noble and learned Lord, Lord Nolan, Sir Richard Scott, the noble and learned Lords, Lord Woolf and Lord Taylor, and, just a few years ago after Aberfan, Lord Edmund-Davies. But it was a very wrong consequence of Sir Richard Scott's report that there was an officially orchestrated, mischievous, wilful campaign to undermine the judge who had done no more than his

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public duty. When people suggest, quite improperly, by misrepresentation of what he said, they might care to re-read the debate which your Lordships had at some length to see who supported Sir Richard Scott and who did their best to undermine him.

The Law Commission does extremely important work. We shall not be able to look to High Court judges to chair that commission if the sort of unscrupulous campaigns that we have recently seen continue. I refer to Mrs. Justice Hale and now Lord Justice Brooke. I shall say nothing about judicial review because I cannot improve on the masterly exposition which the noble Lord, Lord Borrie, gave. I simply wish to offer this as a proposal: all we can hope for in a civil society bound by law is a decent, honourable understanding that there are competing claims. Each of those claims may be of apparent legitimacy; not all of them can always be perfectly reconciled. If we understand that, the problem sets itself in appropriate proportion.

7.15 p.m.

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I certainly wish to thank the noble Lord, Lord Irvine of Lairg, for introducing this debate. I do not follow my noble friend Lord Beloff into particular speculations, but I am indebted to the noble Earl, Lord Russell, for the remark of Mr. Enoch Powell that the amateur in politics is the one who predicts the result of the next general election. Accordingly, it would not at all surprise me to find the noble Lord, Lord Williams of Mostyn, still sitting comfortably where he is this time next year.

As the noble and learned Lord, Lord Cooke of Thorndon, said, the subject matters in this debate are extremely wide. I do not believe that your Lordships would thank me if I were to try to encompass all that has been said. I wish to start by reference to the judiciary. We are extremely fortunate in this country in the quality of our judiciary. I was very glad to hear that said from a number of parts of the House and perhaps particularly what the noble Lord, Lord Williams of Mostyn, said about the standard of, among others, the Court of Appeal at the present time. I agree with the view that there were a number of very worthy candidates for the highest offices in our judiciary. That is a great tribute to the judiciary. As the noble Lord, Lord Mischon, said, there is an element of sacrifice for many in joining the judiciary. In my experience it is a sacrifice which is very willingly made. It is embraced as an honour by those who receive these offers, and for that I am extremely grateful.

We also have a judiciary whose independence, as individual judges from one another and from any improper influence, is also superb and complete. I certainly do not know of anyone who has successfully attempted--or indeed has attempted without success--to influence the decisions of the judges in the cases committed to them. The essence of judicial independence is that the judge trying the case is free to decide it according to his judgment in the light of the existing law. That applies to the individual case and that is the essence of judicial independence.

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The independence of the judiciary--in agreement, for example, with my noble and learned friend Lord Simon of Glaisdale--is an important part of the checks and balances of our constitution. The jurisdiction which the judges exercise right across the board is fundamental to the rule of law. I agree with the view that the rule of law is a deeper concept than just that of law and order.

I, too, very much support the view that judges have developed the law over the centuries. The extent to which that is permissible for them is not easy to formulate. I have seen various attempts in recent times to define the boundary between what is a proper development and what is not. Like some of my noble and learned friends in the Judicial Committee in recent times, I find it difficult to enunciate what that boundary is. That can sometimes be seen in the difference of views between my colleagues as to whether that boundary has been passed. If the boundary were clear, one would not expect such a difference of opinion. In my submission, that development of the law is part of the traditional role of the judges over the years under our system. It has been a healthy and a powerful influence on the law and on the development of the law and the protection of our people in the various centuries when it has been done, and it continues with complete health and robustness at the present time.

Judicial review is a particular part of that judicial function. My noble and learned friend Lord Wilberforce, who has played a vitally important part in the development of the jurisdiction in the years during which he has served particularly in your Lordships' House, gave an exposition which I would not seek to modify in any way.

The noble Lord, Lord Borrie, was involved almost as a litigant. He was an adviser, whose advice underlay a decision that was called into question in the Divisional Court. His reaction to that decision by the Divisional Court is not an uncommon reaction among litigants who find that a court has in some way differed from them. His reaction was to say that the court had in some way overreached itself or gone wrong. That feeling is quite common among litigants. It sometimes affects even Ministers of the Crown who happen to be overruled. The noble Lord, Lord Borrie, is fortunate in this respect: the Court of Appeal and ultimately the House of Lords agreed with his point of view. He was therefore able to have a comfort which some litigants are not able to attain.

On that aspect of the matter, the important point to underline is the impartiality of the judiciary. I do not believe that the impartiality of our judiciary in this country is in doubt and I did not understand the noble Lord, Lord Irvine of Lairg, to suggest that. I may have misunderstood what the noble Lord, Lord Rodgers of Quarry Bank, said, but whatever the position with regard to his remarks, I do not believe that there is any question about those of the noble Lord, Lord Irvine.

Some questions have been raised about developments in the law. I refer, for example, to Pepper v. Hart. That matter was raised by the noble Lord, Lord Monkswell. As the lone dissenter in the Judicial Committee on Pepper v. Hart, I would be glad to have the noble Lord's

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support for the view that that decision was not correct. Unfortunately, however, I do not feel that I can embrace that support because I do not for a moment take the view that the decision of the majority had the effect that the court would take what the Minister said was the meaning of an Act of Parliament as binding it. With great respect to the noble Lord, I think that that is a misreading of Pepper v. Hart. Your Lordships may remember that among the majority on Pepper v. Hart was my noble and learned friend Lord Ackner and he would be unlikely to subscribe to the view that a Minister could tell the court what to do even in that indirect manner.

The next point which I think is important in relation to the position of the judiciary is the supremacy of Parliament. A good deal has been said about that and I do not propose to elaborate upon it. I had intended to quote the passage from the letter to The Times by my noble and learned friend Lord Taylor of Gosforth. However, as it was quoted by the noble Lord, Lord Mishcon, I do not need to repeat it. It is a most clear, succinct and authoritative modern statement of the position and has lost none of its authority by the sad fact that my noble and learned friend has now resigned his office as Lord Chief Justice of England. I believe that the supremacy of an Act of Parliament, and the giving of effect to an Act of Parliament according to the meaning which a judge concludes that it has, is the basis on which courts exercise jurisdiction and give full effect to Acts of Parliament.

Some points have been made about the difficulties which give rise to judicial review, to which I shall return later, arising from the nature of the legislative process. Comments have been made about the effectiveness or otherwise of the other Chamber of Parliament. I would not wish to cast any aspersion whatever on the work of either House of Parliament. It is worth remembering, particularly in view of what the noble Lord, Lord Kennet, said, that this Government instituted the system of Select Committees in Parliament to oversee the activities of particular departments. That is a new and effective method of supervision of the executive by the legislature. I believe that it is a considerable change, enhancing the method by which the legislature can call the executive to account.

The position of the judiciary in relation to the conduct of inquiries has been mentioned. I entirely agree with the view that that has benefits as well as risks. However, I consider that it is a high tribute to the general esteem in which members of our judiciary are held by the public that when a difficult matter has required resolution successive governments have taken the view that the inquiry should be in judicial hands--although not necessarily in judicial hands only. There is sometimes a judicial chairman but sometimes the judge sits alone. I believe that that has advantages from time to time. Of course, there are dangers in that but, on balance, I consider that our practice of using judges rather sparingly for that purpose attains the correct balance.

I come now to the question of the relationship between judges and the public in relation to lectures and other public utterances. I agree strongly with my noble and learned friend Lord Woolf that it is absolutely

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fundamental that judges and other lawyers should be able to participate in discussion of developments in the law. Public lectures have been a well authenticated way of doing that over many years.

There is a risk these days that what the judge says may be taken out of context because it is unusual for the press to quote fully from such a lecture. To some extent, quotations are likely to be selective and may be interspersed with comments which the ordinary reader may find difficult to dissociate from the actual text of the lecture. Therefore, it is possible for statements made by the lecturer to appear in the public press in a way which would not strike the hearer of the lecturer as exactly in accordance with what he heard when attending the lecture. One example of this is the matter to which the noble Lord, Lord Irvine of Lairg, referred. My noble and learned friend Lord Bingham recently gave a lecture about the law of privacy. In the very last paragraph he said:

    "The lecturer who asks himself a question must answer it".
I am sure that your Lordships applaud that idea. He continues:

    "So I do. Should there be a law to protect rights of personal privacy? To a very large extent the law already does protect personal privacy; but to the extent that it does not, it should. The right must be narrowly drawn, to give full effect to the right of free speech and the public's right to know. It should strike only at significant infringements, such as would cause substantial distress to an ordinarily phlegmatic person. My preference would be for legislation, which would mean that the rules which the courts applied would carry the imprimatur of democratic approval. But if, for whatever reason, legislation is not forthcoming, I think it almost inevitable that cases will arise in the courts in which the need to give relief is obvious and pressing; and when such cases do arise, I do not think the courts will be found wanting".
I do not regard that as an indication on the part of my noble and learned friend that judges would create legislation. As I understand it, he says that if a particular case arises in which a remedy is obviously required as a pressing matter the courts will not be found wanting in granting it.

Apart from matters such as lectures, my noble and learned friends Lord Cooke of Thorndon and Lord Lowry counselled caution. I am sure that those counsels are wise. Reference was also made to the risks to those who keep quiet. As my noble and learned friend Lord Lowry reminds us, Proverbs tells us that there is considerable benefit in keeping quiet, because even if a fool keeps quiet he will be accounted wise. I believe that that was substantially the basis of the Kilmuir Rules. However, I felt that on the whole judges could be credited with judgment in this matter and therefore I adopted the course described, which I hope your Lordships will regard as wise in the circumstances. I do not believe that it has been subjected to criticism by any of your Lordships, and for that I am glad.

My noble friend Lord Beloff raised the question of Europe. The judges of the European Court of Justice are judges who, by virtue of an Act of our Parliament, give judgments which may be effective in this country, in the sense that our courts may be obliged to give effect to them. That arises by virtue of Acts of Parliament of the United Kingdom: the European Communities Act 1972

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and Acts which amend it. These judges are surely entitled to the same kind of independence as those who sit in the United Kingdom. They have to construe texts which are less precise for the most part than those which judges are required to construe in the United Kingdom. Those are matters that one has to bear in mind in considering the European Court of Justice. Of course, the European Court of Human Rights is a different tribunal. Its judgments are not directly binding in domestic law in this country. They are binding in international law as a convention commitment and Parliament considers what should be done. It may or may not alter the law according to what it considers is required in the light of the judgments of that particular court.

My noble and learned friend Lord Ackner referred to a number of matters. I believe that most of them are fully dealt with in the passages in Hansard to which he referred. I do not believe that your Lordships would expect me to read them out now. My reply to the last case to which he referred took about an hour. I imagine that your Lordships would not find it convenient if I read that now.

This has been a valuable debate. I believe that the relationships between Parliament, the executive and the judiciary and the extent to which the judiciary should participate in public debate are important matters. Further, I believe that there is a large degree of consensus in the speeches that your Lordships have kindly contributed on the proper role of each of these institutions and their inter-relationship. For that I am extremely grateful.

7.35 p.m.

Lord Irvine of Lairg: My Lords, I am grateful to all noble Lords and noble and learned Lords who have participated in this debate. I believe these issues to be of great public concern. Contrary to what the noble Lord, Lord Rodgers of Quarry Bank, appeared to suggest, I emphatically did not express or imply any lack of public confidence in the political impartiality of judges. I said in terms, as Hansard tomorrow will show, that in my judgment there was no question today about the political impartiality of judges. I do believe, however, that there is much public perplexity about the current issues that have arisen between judges and Ministers and that this debate will go a good way to meet that perplexity.

These issues are not to be passed by in embarrassed silence; they are for discussion in Parliament. I am convinced by the many contributions to this debate that it was right to move this Motion. I was particularly appreciative of the observations to that effect by one of the most senior and respected Members of your Lordships' House, the noble Lord, Lord Boyd-Carpenter. Likewise, I am appreciative of the observations to that effect of the noble and learned Lord, Lord Simon of Glaisdale. The noble and learned Lord thought that on the basis of a public lecture that I had delivered, to which he was kind enough to refer, I had modified my views in this debate. If in future anyone chooses to read my lecture and my opening of

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this debate he will find that my views are wholly consistent. But I would say that, would I not? That is for others to judge.

I take this opportunity to agree with the noble and learned Lords, Lord Simon of Glaisdale and Lord Woolf, that lectures by sitting judges are to be welcomed. I have listened to many to great advantage, and I encourage them to go on giving such lectures as long as there are audiences for them. I am confident that that will always be so as long as the lectures are of the quality of the lectures of the noble and learned Lord, Lord Woolf. However, in his speech the noble and learned Lord took issue with my questioning in a public lecture something that he had said in a public lecture in 1994. We share an affection for public lectures and, I am sure, for fair and rational controversy. I do not accept that I quoted him out of context. I will not take the argument further but leave both lectures to be read and judged for themselves.

I was heartened to hear the noble and learned Lord, Lord Wilberforce, bring into play the heavy force of his opinion in asserting as strongly as he did that Lords Wright and Reid were absolutely correct to declare that the courts would never question, and could never question, the validity of an Act of Parliament.

I repeat my personal hostility to any legislative attempt to restrict judicial review which I believe directly promotes the rule of law. I enjoyed the first half, if I may say so, of the contribution of the noble and learned Lord, Lord Ackner. I am sure we were all delighted to learn that he has been so widely travelled in recent years. I did not, however, suggest that the 1989 Green Paper exclusively concerned rights of audience. I dare say that he might himself recall that I spoke out against any abolition of the Lord Chancellor's Legal Aid Advisory Committee.

I am sorry that the debate disappointed the noble Lord, Lord Beloff. He has such high standards, and as he told us himself his own speech broke entirely new ground. But deep cynicism, worthy indeed of Talleyrand whom he invoked, must have taken hold of the noble Lord's vitals before he could suspect that the Labour Party harboured any intention to restrict the judiciary. It does not. The role and independence of the judiciary will be vigorously upheld by the next Labour government which, I can assure the noble and learned Lord on the Woolsack, there will be.

I shall just put the rather jaundiced observation--if he will forgive me--of the noble Lord, Lord Beloff, down as an early harbinger of the scaremongering to which some in the next general election campaign may feel increasingly driven to resort. I believe that the debate will stand for some considerable time as the major source of contemporary opinion and judgment on these issues. I repeat my thanks to all noble Lords who chose to participate. I beg leave to withdraw my Motion for Papers.

Motion for Papers, by leave, withdrawn.

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