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Lord Selkirk of Douglas: My Lords, I shall speak briefly. I can envisage a strong case for a constitutional court, somewhat akin to the Supreme Court in the United States of America, if the constitutional arrangements were to change in the direction of federalism. I have had occasion to see the Supreme Court of the USA in action. It was enormously impressive. It had written pleadings before it and it decided a large number of cases dealing with states' rights as against federal rights in rapid succession. The Judicial Committee also has a wealth of constitutional experience from the 19th century--when it had to decide issues involving dominion rights and also provincial rights in Canada--to the present day when it has interpreted the rights and the protections of the Maoris in New Zealand under the Waitingi Treaty. I understand that this treaty protected the monarchy and in return the monarchy protected the rights of the Maoris. That was an extremely clever provision on the part of Queen Victoria and the Ministers who advised her at that time. At this stage the Government are right

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to place their confidence in the Judicial Committee of the Privy Council in view of its wealth of constitutional experience.

Lord Wilberforce: My Lords, I wish to add a few words at this stage. I cannot guarantee to keep speaking until the noble Lord, Lord Lester, enters the Chamber, but I had intended to offer some observations on this matter, as I indicated when the noble Lord, Lord Steel, said in Committee that he would table these amendments on Report. I said that I would be glad to see them.

I feel that the whole House ought to be grateful to the noble Lord, Lord Steel, and his colleague, the noble Lord, Lord Lester, who has recently entered the Chamber, for having given the House the opportunity to consider this important point. I hope that the amendments will receive consideration at this stage, although it may be difficult to reach a conclusion upon them.

There are various points involved in the proposals which we shall hear in due course from the noble Lord, Lord Lester. My particular concern relates to the composition of the court or body which will deal with devolution issues. Under the Wales Act, the Northern Ireland Bill and this Bill it has been decided to leave this matter to the Judicial Committee of the Privy Council. We have heard no reasoned explanation as to why that body was chosen. As the noble Lord has said, it is an amorphous body. I think he underestimated the potential number of its members. I would put the number at over 50 when one takes into account the Court of Appeal and retired Lord Justices of Appeal. At any rate it is an amorphous body which is limited only to a small extent by Clause 96 of the Bill.

The selection of the people to sit on any particular case is left to an informal process not defined by the Bill at all. It may be said--if the noble and learned Lord is to reply to this debate, he may say this--and it certainly could be said, that that is already the position under the existing law. At present the Judicial Committee is even larger than is contemplated by this Bill because potentially it could include Commonwealth members. The selection of members to sit on any individual case is by convention--I emphasise that word because there is no legal provision which states this--chosen by the senior Law Lord. Having had some small experience in that position, I can say that it works quite well, as do many other informal elements in our constitution. Up to now the Judicial Committee has been used to dealing with important constitutional points. Questions arising under the treaty of Waikato relating to the Maoris--I am glad to see that the noble and learned Lord, Lord Cooke, is in his place--have been decided by constitutional courts; and previously under the constitutions of Australia and Canada, until the right of appeal was abolished, very important questions were dealt with by the body so constituted in that informal manner.

Under this Bill we are entering upon a totally new dimension as compared with the kind of cases that have come up to be considered in Downing Street. There are

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questions of deep controversy, possibly political, which are likely to bear deeply upon the constitution of the United Kingdom and which are sure to be stirred up in Scotland by the active and vigorous elements there which are pressing for an extension of the powers of the Scottish parliament and will continue to do so. Difficult and sensitive questions are likely to arise. We have only to look at Schedule 5 to the Bill to see the vast range of questions that may have to be faced. We must also remember that decisions of the Privy Council, or whatever body it is, will be binding upon English courts and even upon the House of Lords. So there are questions of great difficulty and importance.

In those circumstances, is it not right to say that the process of selection of the judges to sit on a particular case is sure to come under scrutiny by those who are interested in extending the Scottish jurisdiction? Is it not desirable to remove that area from controversy altogether by giving a firm direction in this Bill?

We are between two very different concepts. Under the Bill there is an amorphous body, one that is not defined at all; under the amendments to be proposed from the Liberal Democrat Benches there is great precision, with everything spelt out down to the latest comma: the dominating committees, those who are qualified to sit and those who are not. There is very great precision. I do not know at this stage whether the Government are prepared to go as far as this at this very late stage in this one Bill, when the commitment in other Bills is more or less to a different system. Perhaps they are. I am sorry to speak in the absence of my noble and learned friends, particularly the noble and learned Lord, Lord Hope of Craighead. I hope that this does not go too far. I give general support to the concept proposed in these amendments. I hope that if the Government do not feel able to go the whole way and accept the whole elaborate structure, which is no doubt meritorious but requires a good deal of scrutiny by this place, given that the other place will not have time to examine it at all, perhaps they will at least be willing to contemplate a slightly more limited mechanism in this Bill under which, by an Order in Council made under Clause 96, it might be possible to give some greater definition to the nature of the body that is to sit on devolution issues.

I referred to Clause 96, which gives power up to a certain point to make Orders in Council. If that is not wide enough, it would be easy to extend it at a later stage so as to give power to deal with this matter. I make no suggestion. I simply hope that, if the Government are not willing to accept all the proposals holus-bolus that the noble Lord, Lord Lester, will later urge upon us, they will treat the matter seriously and contemplate including a provision in the Bill to give greater precision to the composition of this court which will deal with important questions. To that extent I warmly support the proposal.

Lord Cooke of Thorndon: My Lords, in supporting the tenor of the remarks made by my noble and learned friend Lord Wilberforce, I should first declare an interest, although it is highly contingent and somewhat temporary. As a number of noble Lords may confirm, at the age of 72, 75 seems to be rushing upon one.

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Clause 96(2)(b) of the Bill contains the words,

    "ignoring for this purpose section 5 of the Appellate Jurisdiction Act 1887".
The effect is that there is to be ignored the membership of the Judicial Committee of the Privy Council drawn from the Commonwealth outside the United Kingdom. I respectfully raise the query whether that is justified.

Three points occur in that connection. First, for many years the Judicial Committee of the Privy Council, including Scottish and Northern Ireland Law Lords, has adjudicated on constitutional questions from various parts of the Commonwealth, including New Zealand and even Maori questions upon which the committee has been able to give guidance. A degree of reciprocity would seem not at all incongruous. Secondly, it is the case that in some other Commonwealth jurisdictions there is already a wider body of judicial experience of human rights law than as yet exists in the United Kingdom.

Thirdly, an inquiry is presently in being commonly known as the Bloody Sunday inquiry, relating to Northern Ireland. For that purpose an inquiry of three persons has been constituted. Two of the three are Commonwealth judges; one is a member of the Judicial Committee of the Privy Council. It has not been thought right to ignore the Commonwealth for that purpose. One therefore wonders why it is thought right to ignore Commonwealth members of the Judicial Committee for the purposes of the Scotland Bill, the Northern Ireland Bill and the legislation relating to Wales.

In principle there are valid reasons for preferring a Constitutional Court to the Judicial Committee of the Privy Council for the purpose of these devolved questions. The reasons pertain to experience, expertise, specialisation and temperament. Lord X may be admirably equipped to decide issues of domestic law, but by experience, interest and temperament may not be so well qualified to deal with human rights questions. They are a field of their own, in which there is a large body of international jurisprudence--a jurisprudence which requires a sympathetic appreciation of the aims of human rights combined with a certain amount of pragmatism and practicality, a combination of idealism and feet on the ground. It tends to be a field of its own and there is much to be said for a court of its own, a court which will have the opportunity of building up a body of jurisprudence not only within the United Kingdom but also attracting international respect. It would be a somewhat specialised, dedicated court, a limited corps of specialised judges.

It can be said that all this can be achieved under the existing mechanism of the Judicial Committee of the Privy Council. It is true, as I understand the position, that the senior Law Lord for the time being has a residual power in the Judicial Committee to nominate the five members of the committee who will sit on any one case. But that is not the end of the matter. Experience seems to show that there is an administrative element in the question as well: at a somewhat different level administrative convenience and even quite minor issues of expense may have some influence on the composition of the committee.

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From the point of view of a security for the effective ascertainment and development of the human rights law that will be required under these pieces of devolution legislation, it may well be that, as against the perhaps less than transparent methods of selecting the composition of the court to sit on individual cases, there will be something rather more open, rather more specialised and possibly therefore more effective in this field than what is at present proposed in the Bill.

It is for those reasons that I support the amendment put down by the noble Lord, Lord Lester, and his colleagues.

6.30 p.m.

Lord Lester of Herne Hill: My Lords, I owe the House an apology for having arrived late. Luckily I do not have to pay costs as I would perhaps in court! I am extremely grateful to my noble friend Lord Steel of Aikwood for having introduced and moved this and other amendments that are in truth the brainchild more of my noble friend Lord Goodhart and myself. It has given me the opportunity to listen to two of our truly great judges, the noble and learned Lords, Lord Wilberforce and Lord Cooke of Thorndon, before I explain some of the background to what is now being debated.

It is with great pleasure that I see the noble and learned Lord, Lord Hutton, in the House. I once had the privilege of joining him in a great case in Strasbourg. He is in that special category of judges from Northern Ireland who are especially brave and noted for their fearless independence.

The purpose of these amendments is to protect the independence of the judiciary and the constitutional separation of powers in the determination of constitutional issues by the final court. The means suggested by the amendments to achieve that aim are threefold: first, to create an appropriate pool of well qualified senior judges to serve on the court; secondly, to create a mechanism for appointing members of the court which is likely to enhance its independence and legitimacy; and, thirdly, to make the Lord Chancellor and former Lord Chancellors ineligible to sit judicially in the final court which determines these issues. That is dealt with by Amendment No. 196.

There will be differences of opinion as to whether we have chosen the right nomenclature for the final court--a "constitutional court", as in South Africa, rather than the Judicial Committee of the Privy Council. There will also be differences of opinion as to whether we have chosen the right way of creating the final court. We are not dogmatically committed to any particular mechanism. What we seek at this stage is to debate the important issues of principle which are essential for maintaining judicial independence and for the rule of law.

During my time at the Bar, the role of our judges has been transformed from being lions sheltered beneath the Throne to a more powerful and controversial judicial role as a co-ordinate branch of government. Subject to the principle of parliamentary supremacy, our courts must set aside Acts of Parliament if they are inconsistent

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with directly effective European Community law. With the development of judicial review, the courts scrutinise the decisions of Ministers, civil servants, and other public authorities to determine whether public powers have been abused.

Under the Human Rights Act, which is woven into the fabric of the devolution settlements, our courts will have to strive to interpret all existing and future legislation to be compatible with human rights guaranteed by the European Convention on Human Rights. If the Scottish Parliament or Scottish administration, or other public authorities, act in breach of Convention rights, or if they otherwise act beyond their devolved powers, the courts will have to prevent them from exceeding their powers.

The constitutional issues will be similar to the issues decided by courts elsewhere in the Commonwealth and in Europe: by the Supreme Court of Canada, or the High Court of Australia, or the Constitutional Court of South Africa, or of France or Germany. They will involve difficult and controversial decisions about where state power ends and where personal liberty begins; decisions about striking a fair balance between competing human rights; decisions about the respective powers and duties of the Parliament of Westminster and central Government and of the devolved legislatures and administrations.

These decisions are properly justiciable, but they will sometimes be politically and ethically controversial. That is why it is especially important to ensure that the independence, authority and legitimacy of the final court are securely protected.

We believe that the Judicial Committee of the Privy Council is an unsatisfactory model for a final constitutional court for three main reasons. In the first place, as noble Lords have indicated, it has a large and amorphous membership of retired and serving judges, dominated, because of the great size of the English Court of Appeal, by retired and serving judges from that English court. Unlike the House of Lords, whose membership is fixed and stable, the Privy Council, with a jurisdiction derived from the antique Judicial Committee Act 1833, is large, uneven, and geographically completely unbalanced. It is surely anomalous that the entire body of serving and retired members of the English Court of Appeal or for that matter of any other court, should automatically be eligible to sit on the Judicial Committee as the final court.

The second problem is that the composition of the Judicial Committee is in any particular case to be decided in theory by the Lord Chancellor and in practice by the senior Law Lord. There are no prescribed criteria in the Bill according to which the senior Law Lord is to choose from among the large pool of members of the Judicial Committee who have held high judicial office, whether in terms of their special expertise in public law, or in terms of the particular legal system of the United Kingdom where they have performed their judicial functions.

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Although the pool of potential members of the Judicial Committee is so large, as the noble and learned Lord, Lord Cooke of Thorndon, pointed out, some very experienced judges with great judicial experience in deciding constitutional cases are excluded from the pool. Under Clause 96(2) as it stands, the senior Law Lord will not be able to choose very senior and experienced Commonwealth judges, such as the noble and learned Lord, Lord Cooke of Thorndon, with much greater expertise in deciding constitutional issues than many of their British brethren. Normally, these judges would be eligible as members of the Judicial Committee but the Government seek to exclude them from the pool.

There is a very real danger that without prescribed and appropriate standards and criteria, the way in which the senior Law Lord exercises his discretionary powers of appointment, on the Lord Chancellor's behalf, in any particular case may become a matter of political controversy, whether in Edinburgh, Belfast, or London. If that happened it would impair the independence and legitimacy of the judicial process, turning the Judicial Committee into a political football, kicked hard by politicians for their partisan political ends.

Nor is that all. If because of the great workload already imposed upon the Lords of Appeal in Ordinary, the senior Law Lord were driven to choose less senior and experienced judges than the Law Lords there is a real danger that the Judicial Committee would lack the authority of the House of Lords. There is also a danger that decisions of the Judicial Committee might be inconsistent with decisions of the House of Lords, leading to awkward conflicts and a weakening of the authority of the judicial process and a lack of legal certainty.

The third flaw in the system proposed is that it breaches the separation of powers and the institutional independence of the judiciary. Under the legislation as it stands the present Lord Chancellor and former Lord Chancellors will remain eligible to sit judicially in the Judicial Committee, and for that matter in the Appeal Committee of this House, in devolution and human rights cases. This is the position even though the Government, of which the Lord Chancellor is a senior and very powerful Minister of justice, are directly or indirectly interested, and even though a party to the dispute is represented by the Attorney-General, the Lord Advocate, the Advocate General for Scotland or the Attorney-General for Northern Ireland.

No one doubts that the present Lord Chancellor wears his three official hats with panache and distinction: as legislator, as Minister of justice and as a senior judge. We do not doubt his personal independence and impartiality in any way. But what matters is that the institutional independence as well as the individual and personal independence of the judiciary should be seen to be free of direct or indirect government interference or any conflict of interest that breaches the separation of judicial from legislative and executive powers. It is no answer to the problem for the Lord Chancellor to delegate the function of appointing the members of the court to the senior Law Lord. That leaves a potentially embarrassing tension within the rather opaque system of choosing the court, especially were the Lord Chancellor

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to be unwise enough to seek to persuade the senior Law Lord to agree to his sitting as a member of the Judicial Committee or the Appellate Committee.

In two recent Written Answers the Lord Chancellor explained that where cases arise in which the Government or a Minister has an interest as a party litigant, or in which constitutional or political issues are involved, he will exercise his discretion so as not to sit where he considers that it would be inappropriate or improper to do so. With respect, that statement does not altogether deal with the problem. In the first place it should not be for the Lord Chancellor with his three hats to decide whether it is appropriate or proper for him to sit in such cases. The time has surely come to recognise that inevitably it would be constitutionally inappropriate and improper for the Lord Chancellor to sit in any case where the Government or a Minister has an interest as a party litigant or in which constitutional or political issues are involved; in other words--with great respect, it is difficult to say this in the presence of such a distinguished Lord Chancellor--the Lord Chancellor should disqualify himself or be disqualified from sitting in cases of that kind.

Secondly, we had supposed from an earlier Written Answer that the Lord Chancellor had completely delegated to the senior Law Lord the power to decide upon the composition of the Judicial Committee but his latest Answer suggests that he regards his own role as a matter to be determined by the Lord Chancellor himself. That would surely be inappropriate given the conflict of interest inherent in his many public offices.

Thirdly, the Lord Chancellor draws support for his Answers from the fact that Lord Chancellors have recently sat in criminal and tax appeals. That is true. But it does not mean that it was or is now appropriate for him or his predecessor to sit in cases involving the powers of the state and the relationship between the different branches of government. This is a sensitive matter in which counsel in such cases have felt embarrassed about the Lord Chancellor's presence as a member of the Appeal Committee. I do not refer to the present Lord Chancellor, but Lord Chancellors in general. I myself found it embarrassing when the previous Lord Chancellor sat in the appeal in Pepper v. Hart to decide whether it was permissible in law to have judicial recourse to parliamentary debates. The Lord Chancellor presided while the Attorney-General contended that recourse to Hansard would breach parliamentary privilege and weaken the good governance of the country.

The first appeal in which the present Lord Chancellor sat concerned judicial review of public authorities. Last week, I read of a criminal appeal involving the limits upon the right to freedom of association and assembly guaranteed by the human rights convention. There is real concern, not about the present Lord Chancellor, but the recent practice, in the light of the modernisation of the system, to sit in cases of that character. I have discussed the matter with a number of lawyers and judges: for example, Heather Hallett, QC, who chairs the Bar Council of England and Wales; Philip Dry, President of the Law Society of Scotland; Antoinette Curran, President of the Law Society of Northern

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Ireland; Roy Amlot, QC, recent chairman of the Criminal Bar Association; and Michael Lavery, QC, chairman of the Standing Advisory Commission on Human Rights in Northern Ireland. They all share our concern about the Lord Chancellor continuing to sit in such cases.

Were the Lord Chancellor to sit as a member of the Judicial Committee or the House of Lords in its judicial capacity in such cases I have little doubt that the European Court of Human Rights would, if necessary, find our system to have breached the guarantee of institutional judicial independence under Article 6 of the convention. It has already done so in the case of Procola, involving the Conseil d'Etat of Luxembourg. It would be deeply embarrassing if it became necessary to challenge the presence of the Lord Chancellor before his fellow Lords of Appeal in Ordinary and before the European Court. It would surely be better for the Lord Chancellor to concede the position gracefully, as I am sure he will, without the need for binding rules in tablets of stone. We greatly welcome the general thrust of the Government's constitutional reform programme. We hope that the Government will be willing to accept the implications of that programme for the choice of the final constitutional court and the way that its members are selected.

We have attempted to devise a broadly representative nominating process that avoids appointing judges only after what the noble and learned Lord, Lord Hailsham of St. Marylebone, has rightly described in relation to the appointment of American federal judges as a,

    "cruel, and often politically motivated, scrutiny by a senate committee".

My noble friend Lord Goodhart, who drafted the amendments, will explain their scope and detail. I very much hope that there will be support for their aims from all sides of the House, especially from the Woolsack. I beg to move.

6.45 p.m.

Lord Hogg of Cumbernauld: My Lords, I congratulate the noble Lord, Lord Steel of Aikwood, for so ably standing in. He ran on to the pitch wearing a No. 12 jersey and demonstrated a professionalism that left all of us breathless. I am not a lawyer but I am concerned about the constitution. I am deeply aware of the fact that the Government have set their hand to constitutional reform in a very big way. By the time we reach the end of this Parliament we shall have witnessed constitutional change on a scale that has not been seen for decades.

I support constitutional change in all of the areas and along the lines proposed by the Government but I am conservative about changing the constitution. I believe that great care should be taken to get it right and to ensure that what we do on behalf of the people will last and serve them as well as the constitutional arrangements that they have had for so long. A constitutional court has, as a matter of government policy, already been opposed. It is interesting that no amendment was tabled to make such a proposal during the passage of the Human Rights Bill. It is also interesting that it did not emerge when the House discussed Wales. I believe that to bring it into the

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Scotland Bill in this way is to introduce too far-reaching a proposal and that it is better to examine this idea once all of the constitutional changes are in place and have worked their way through.

I do not much like Amendment No. 196, not least because I have always held Lord Chancellors in the highest regard. I hold the present Lord Chancellor in particularly high regard because he is a close friend. I would not like to consider the suggestion that power should be taken away in this way until I have examined carefully and thoughtfully the case made today by the noble Lord, Lord Lester, and others of our great legal Members.

I greatly admire the previous Lord Chancellor. I thought him a fine man in that role; indeed a fine man. Therefore, I say this to the House. The amendment may be a good idea. I do not know; I am not a legal man. But I wish to be able to consider it carefully. In order to do that, I hope that the noble Lord will not press his amendments this evening. There is plenty of time to change the constitution. However, if the noble Lord feels persuaded to press the amendments to a Division, I hope that the Government will resist them.

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