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Lord Goodhart: My Lords, it is an extremely important issue. I have little to add to what my noble friend Lord Lester said. The arguments he put forward on why we should have a constitutional court are incontrovertible. I entirely agree with him on the reasons why the Lord Chancellor should not sit as a Member of the Judicial Committee of the Privy Council, or as a member of the constitutional court, for the purpose of deciding devolution issues. Effectively, they are issues between the Government at Westminster and the government at Holyrood.

The Lord Chancellor is a member of the Cabinet. He is de facto a Minister of Justice. It would hardly be surprising if in those circumstances, in the course of a dispute between Westminster and Holyrood, he was regarded as parti pris rather than someone who was impartial and independent. Impartiality and independence are at the core of the judicial system. It would be my hope that the senior Law Lord would not seek to appoint a sitting Lord Chancellor; nor would a sitting Lord Chancellor think it right to accept an invitation to sit on the Judicial Committee, if one were offered to him.

The position of former Lord Chancellors--we have excluded them from the amendments--is somewhat different.

Lord Fraser of Carmyllie: My Lords, before the noble Lord continues, will he elaborate a little on the position of former Lord Chancellors? In one fashion or another, I can understand that the present occupier of the Woolsack from time to time might be seen to be excluded in the case of a matter of high constitutional dispute. However, I have greater difficulty in understanding why someone who has left the Woolsack should be excluded from participation in this court. It is not difficult to think of very distinguished Lord Chancellors. One does not have to go back further than

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the present occupant's predecessor to find someone who might have occupied a position on such a constitutional court and have been a great adornment to it.

Lord Goodhart: My Lords, I accept entirely what the noble and learned Lord says. It is an arguable matter. In future there might be a Lord Chancellor who had been what one might describe as such a highly political animal that Holyrood might think it inconsistent with the existence of an impartial and independent tribunal for that particular Lord Chancellor to be a member. That is not an argument I apply to the previous Lord Chancellor. It could be argued that if there are some cases where it would be inappropriate for a former Lord Chancellor to sit it might be better to exclude former Lord Chancellors altogether rather than to have invidious questions arising as to whether an individual was or was not a desirable member of the constitutional court.

At this stage I do not propose to go into any detail about the nature of the amendment which I drafted at the request of my noble friend Lord Lester. I fully recognise the problems of timing. It is a fundamental issue. Our amendment was designed to raise the issue for debate rather than to provide fully worked-out legislation for the creation of a proper constitutional court. Nevertheless, the arguments in favour of a special constitutional court are extremely strong. In that respect, I am most grateful for the contributions of the noble and learned Lords, Lord Wilberforce and Lord Cooke of Thorndon, with their immense experience of sitting in the highest courts of their respective countries.

I believe that an immensely heavy burden will lie on the senior Law Lord. I saw the present senior Law Lord outside the Chamber; he is not present now. I shall be interested to know what he feels about the burden that will be placed upon him.

It is essential that the court is of the highest standard. When selecting judges to sit on panels, its work must have priority over the ordinary work of the House of Lords and other courts. The senior Law Lord will have to create what is in effect a constitutional court by identifying, from the wide scope offered him by the substantial membership of the Privy Council and those legally qualified to sit on its Judicial Committee, a group of judges who can develop a sense of teamwork and expertise in this field.

In the exercise of those functions, there is no doubt that the senior Law Lord may be exposed to political pressure. For that reason, even if the matter does not go forward on this occasion, I believe that it should be the start of further debate, as the noble Lord, Lord Hogg, suggested, leading in the not too distant future to the enactment of legislation providing for a properly chosen constitutional court with proper powers to act as such.

Lord Hutton: My Lords, notwithstanding the kind words of the noble Lord, Lord Lester of Herne Hill, for which I am most grateful, I rise to speak with considerable diffidence. My diffidence arises for a number of reasons. First, it is my maiden speech in your Lordships' House; and that itself is a reason for diffidence. Secondly, I realise that it is somewhat

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unusual to make a maiden speech at Report stage. However, the point on which I wish to speak had not arisen at the earlier stages of the Bill. I am grateful for all the helpful indications I have received that it might be permissible for me to speak at this Report stage.

My third reason for diffidence is that it is a Bill relating to Scotland and I, as a former judge in Northern Ireland, am venturing to speak on the amendments. But they relate to a proposed constitutional court of which at least one member will be a Northern Ireland judge, or a former Northern Ireland judge, and there would also be a representative of Northern Ireland on the proposed nominating committee. It would include one person appointed by the presiding officer of the Northern Ireland Assembly, as there would be one person appointed by the presiding officer of the parliament in Edinburgh. Therefore, I hope that your Lordships may feel that it is not inappropriate for me to speak on these amendments.

One of the objectives of the amendments is to ensure that if a devolution issue relating to Scotland becomes the subject of a final appeal from the Inner House of the Court of Session there would be at least one Scottish judge who would sit on the final appellate court. The amendments to the Northern Ireland Bill have the same objective in relation to a Northern Ireland judge.

However, I have a reservation about the proposal in the amendments that there should be a nominating committee which would recommend persons to Her Majesty for appointment to the proposed constitutional court, and in particular about the proposal that one member of that nominating committee would be a person appointed by the presiding officer of the Northern Ireland Assembly. My reservation arises in relation to a point which has already been made tonight by the noble and learned Lord, Lord Wilberforce. He made it during discussions on the Bill on 8th October, col. 618, in relation to whether dissenting opinions on devolution issues should be permitted in the Judicial Committee. The point he made was that devolution issues will be highly political issues when they come before the final court. Of course, devolution issues relating to Northern Ireland will also be highly political.

During the past quarter of a century many cases have come before the High Court and Court of Appeal in Northern Ireland which have had an intensely political background. There was, for example, a case where members of Sinn Fein could sit on local councils at a time when the IRA was conducting a terrorist campaign. But throughout those years, the judges in Northern Ireland strove to remain detached from and above the political frame. I hope, and I believe, that they have largely succeeded in doing so. So far as I am aware, there have never been any serious suggestions that the decisions of the Northern Ireland judges have been influenced by their political views.

I am concerned that if there were to be a nominating committee, particularly if one member were appointed by the presiding officer of the Northern Ireland Assembly, almost inevitably there would be a discussion, which would be bound to become known in the public sphere, about what were believed to be the

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political views and leanings of individual judges in a way which has not taken place before. If it were known that certain judges were being considered for appointment to the constitutional court suggestions would no doubt be made that judge A was believed to have nationalist views and judge B was believed to have unionist views. I believe that considerable harm could be done to public confidence in the judiciary--and this is such an important factor--if there were public debate and discussion about the political views of judges, as I believe there would be if a nominating committee were established.

I appreciate the points that have been made tonight by the noble and learned Lord, Lord Wilberforce, about the desirability of a better mechanism for defining the judges who would sit in this final court. I also appreciate the point made by the noble and learned Lord, Lord Cooke of Thorndon, that a similar body of judges would be able to develop a system of jurisprudence. However, I wish to raise for consideration the reservation that I mentioned about the risk which I feel would arise from the nominating committee proposed in the amendments.

7 p.m.

Lord Mackay of Drumadoon: My Lords, it is a privilege to be the first to congratulate the noble and learned Lord, Lord Hutton, on his maiden speech. In the careful speech which he has just delivered, he has made a valuable contribution to our debates on these important amendments and has well illustrated one of the sensitivities which are undoubtedly involved in setting up a constitutional court of the nature proposed by the noble Lord, Lord Lester, and his colleagues.

The noble and learned Lord, Lord Hutton, joined your Lordships' House last year as a Lord of Appeal in Ordinary after many years of distinguished service in the legal profession in Northern Ireland, initially as a practising lawyer and then as a judge. Those of us who are aware of the pressures under which judges work need not elaborate on the additional pressures imposed upon judges in Northern Ireland. It is right that we should pay public tribute to the service given by the noble and learned Lord before he became a Lord of Appeal in Ordinary.

Apart from being an able lawyer, the noble and learned Lord is a man of great charm with a wonderful sense of humour. I first came to know him a few years ago when I attended a conference in Athens of chief justices and senior prosecutors from the European Union. We sat for several days in a rather non-descript tourist hotel discussing the issues which one discusses at such conferences: the appointment and sacking of judges, how to combat international crime and so forth. All the time the sun shone and we gazed out of the window to the sea where many of us wished to go and bathe.

Our hosts believed that the conference would benefit from a visit to Delphi. We embarked on the bus to consult the oracle who, as your Lordships will recall, does not always speak in straightforward terms. It was on that trip that the noble and learned Lord came into

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his element. He communicated with the guides who showed us around in a most amusing and helpful manner. We all came away much better informed and were very grateful to him. I am sure that he has a great deal to contribute to our future debates on this and other Bills and we look forward to hearing from him frequently.

I turn to the amendments introduced by the noble Lord, Lord Steel. The skill he displayed earlier in the debate reminded me of my first acquaintance with him when we were at school. I hasten to add that I was several years behind him in age. My first recollection of the noble Lord's debating skills was when he took part in a mock election. On that occasion, he was a senior representative of one of the joke parties which were taking part. I am sure that if my noble friend Lord Mackay of Ardbrecknish were present he would observe that some things never change.

It is right that I should recognise that these amendments raise very important issues. The House will welcome the fact that they are being ventilated and we look forward with interest to the response of the noble and learned Lord the Lord Chancellor. Undoubtedly, the setting up of judicial procedures for the determination of devolution issues under the Wales, Scotland and Northern Ireland Bills has been a very important part of this tranche of legislation. It is clear that there is no easy solution to what is the best way to proceed.

I expect that in recent months I have not been alone in having ambivalent views as to whether it should be the Appellate Committee of your Lordships' House or the Judicial Committee of the Privy Council which should have the ultimate say in the resolution of devolution issues. There are arguments in favour of both solutions. Indeed, amendments seeking to change the position were tabled in the Wales Bill and debated at that time. The amendment brought forward by the noble Lord, Lord Lester, put forward a third solution and one which undoubtedly merits serious consideration.

Like the noble Lord, Lord Hogg, I am not yet convinced that the constitutional court is the correct approach. But I am convinced--and I share the view of the noble Lord, Lord Hogg, on this--that it is a matter which merits serious consideration. I very much hope that this may be the start of examining the whole issue.

It seems to me that before one establishes any body called a constitutional court a number of issues must be addressed. First, what is to be the totality of its role? Is it merely to deal with devolution issues, or is it to have a final say on human rights issues or other aspects of legal work which could be conveniently and sensibly diverted to that court and taken away from the Appellate Committee of your Lordships' House? I do not suggest that there are such issues but I suggest that those matters must be addressed.

Another major aspect to consider is the relationship of such a court with parliament itself. The third major issue is the composition, on which the noble Lord, Lord Lester, has touched, as has the noble Lord, Lord Goodhart. I believe that it would be a serious mistake to set up any body calling itself a constitutional court until

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all those issues have been fully addressed. For that reason, on these Benches we could not support the amendments if they are pressed, albeit that we fully support the good sense in raising this as an issue which merits consideration over the next few years.

7.15 p.m.

Lord Hope of Craighead: My Lords, I too congratulate my noble and learned friend Lord Hutton on his maiden speech. I am sure that I was not alone in being very impressed by the manner of his delivery and also the great perception which he was able to bring from his unique perspective of the implications of some of the detail of the amendments before us this evening.

I should apologise to the noble Lord, Lord Steel, because I was not here during his introduction to the amendment. I should apologise also to my noble and learned friend Lord Wilberforce for being invisible to him for, I believe, the second occasion within three weeks of discussion on this Bill.

I speak with the experience of having sat on the Judicial Committee from time to time. Therefore, I shall add one or two observations from, as it were, inside to supplement the points made by the noble Lord, Lord Lester, in his more detailed remarks in support of the amendment.

The issues which are behind the amendment are of great importance. I have already drawn attention in my speech on Second Reading to the constitutional significance of the changes which this Bill will bring about. I have no doubt that the judicial aspects of the Bill will have to serve as an anchor for the way in which the whole process of devolution will work itself forward within the framework which has been provided for it by the Bill.

Two points are of great importance in understanding the function which the Judicial Committee or the constitutional court, whatever it is called, will have to perform. One is that among the duties which it is being asked to perform under the Bill as it stands is the duty of preliminary scrutiny provided in Clause 32. My understanding of that measure is that it will provide the only guarantee which can be provided under the devolved structure that a Bill which has been passed by the Scottish parliament will be immune from further attack once it comes into force. It seems to me that that is an extremely important function and it is one which the judicial body may have to perform at very short notice. Therefore, in considering the whole issue, one should bear in mind not simply the matters which may arise under Schedule 6 but also the Clause 32 procedure.

The second point is that, taking the amendment as it is presented to us this evening, for, I believe, very good reasons, the qualifications which are put forward for membership of the constitutional court depend heavily on those judges who are already serving in very senior positions in our system. It seems to me inevitable that the bulk of the membership of a new court as so designed, as is certainly the case in the case of the Judicial Committee, will come from the Lords of Appeal in Ordinary, who have important functions to perform in your Lordships' House. Other senior judges may

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participate, although I rather suspect that if the Lord President of the Court of Session is being asked to be a member of the nominating committee, that disqualifies him from being a member of the constitutional court. That would be a disadvantage which may require further thought.

My experience of working within the body over the past two years has been that one of the strengths of the system from the administrative point of view is the flexibility which exists between the Appellate Committee of this House and the Judicial Committee of the Privy Council. It is often necessary at short notice to alter the scheduling of cases which come before your Lordships' House: cases over-run; some cases require to be introduced here as a matter of urgency; and some cases, for some reason, are shorter than has been expected. That phenomenon is present also in the Privy Council as it works at the moment.

I should have thought that it would be inevitable in the new process that matters will require to be decided at short notice by the new body. That seems to me to point strongly in favour of flexibility, using as best one can the administrative processes which we already have to support the existing Judicial Committee in its work.

Without elaborating, I am very much of the same view as the noble Lord, Lord Hogg of Cumbernauld, that this is not the juncture at which one should start to redesign the arrangements which we have for dealing with those extremely important issues. I am grateful to the noble Lords, Lord Steel and Lord Lester, for raising the issue because it certainly needs to be discussed. However, from my point of view, I prefer to leave the existing structures that we have, bearing in mind that time is now very short for us to have the processes in place for the coming into effect of the Bill.

However, one detail has been raised in the early course of this debate by my noble and learned friend Lord Cooke of Thorndon; that is, the issue of Commonwealth judges. There was force in the point that he made that those who have experience elsewhere in the Commonwealth of constitutional and human rights issues have an expertise which may be of value to the Judicial Committee in carrying out the functions which are given to it by the Bill. It seemed to me a pity that they were excluded under the Bill as it stands. Now that the issue has been raised, I warmly support the points which my noble and learned friend made on that issue.

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