|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Lord Whitty: My Lords, perhaps I can correct the noble Lord. I said that there would need to be further work in 2000 and 2001. It is unlikely that the closures will be of as great a scope as those this year and, as the noble Lord, Lord Thomas, indicated, there is some indication that we shall not need closures.
Lord Crickhowell: My Lords, I note what the Minister says. One of the difficulties about weekend closures is that on more than one occasion they have spilled over into the Monday and caused major disruption to the Monday morning service, as they did a month or so ago.
A number of noble Lords dwelt on the important question of safety. I thought that the noble Lord, Lord Thomas of Gresford, was on rather sounder ground when he suggested an independent survey. We also had a demand for an overall assessment of the condition of the tunnel when he produced his, frankly, rather bizarre suggestions about a Wales rail regulator who would have to control a system that largely operates in England. I believe that that would cause considerable difficulty.
The Minister confirmed that Railtrack had been less than perfect in its communication and consultation procedures. I hope we shall see an improvement there. He said that fears had been exaggerated. I note what he said. Time and events will prove whether he is right or wrong. I believe that there will have to be substantial ongoing work on this great Victorian masterpiece. I ask only that there is the fullest possible consultation and the fullest possible provision of information before it is undertaken. I thank all noble Lords who have taken part in the debate, and I beg leave to withdraw my Motion for Papers.
Lord Lester of Herne Hill rose to call attention to the arrangements for maintaining the separation of powers in the House of Lords between the judicial branch and the legislative and executive branches of government; and to move for Papers.
I hope that the Lord Chancellor and the House will agree that open and careful debate on these delicate matters is timely because of the greatly changed and rapidly changing roles of the Lord Chancellor and of the other Law Lords, especially in the light of the implications of the Human Rights Act, and the Scottish, Welsh and Northern Ireland devolution legislation, the reform of Parliament and other constitutional measures. What also makes the debate topical is the setting up of the Royal Commission on House of Lords reform, the terms of reference of which include considering the position of the Law Lords as Members of the House.
Like others within and outside the House, including the Law Lords themselves, I believe that we need to reconsider the concepts of separation of powers and the independence of the judiciary as part and parcel of the new constitutional settlement. I hope and believe that this debate will contribute to that process of rethinking.
The current arrangements for Law Lords were created just over a century ago. Despite the huge changes in the past 30 years, the arrangements have not been seriously reconsidered since late Victorian times. By the middle of the 19th century, the appellate jurisdiction of this House faced criticism because there were few properly qualified members of the judiciary who were Members of the House. The Lord Chancellor personally had to bear an excessive load.
In 1873 the Judicature Act was passed under a Liberal government. It set up a Court of Appeal as a final court for which English appeals were to be heard. However, following the formation of a Conservative government under Disraeli, in 1874 legislation was passed delaying the implementation of the 1873 Act. In 1876, Disraeli's government introduced the Appellate Jurisdiction Bill, which preserved the appellate jurisdiction of the House of Lords and provided for the appointment of Lords of Appeal in Ordinary.
Professor Robert Stevens, Master of Pembroke College, Oxford, eminent legal scholar and historian, recalls (in an essay in The House of Lords: Its Parliamentary and Judicial Roles, edited by Brice Dickson and Paul Carmichael, 1998, page 112) that the Appellate Jurisdiction Act 1876 was,
The anomalies of the Lord Chancellor's great office add to the rich tapestry of public life--and the last thing that I want is to be a spoil sport. Those anomalies have been famously parodied in W.S. Gilbert's comic opera Iolanthe. In it, the Lord Chancellor sorrowfully explained--I cannot sing it!--
These days, the thorns are especially sharp because the Lord Chancellor is so politically powerful both as Minister of Justice in charge of a large spending department and as chair of many Cabinet committees dealing with important and controversial issues of policy central to the Government's programme. He is both an eminent jurist and a senior member of the Cabinet.
The present Lord Chancellor enjoys very great political power. He has had a major influence in shaping, for example, the Human Rights Act, the devolution legislation, the Freedom of Information Bill, and the White Paper on Lords reform, together with his direct responsibility for the radical changes being made by the Access to Justice Bill. As the noble and learned Lord knows, I very much welcome those measures and his involvement in them. As Professor Diana Woodhouse has observed in her important recent article in Public Law (, p.617), there is a continuing shift in the balance in the Lord Chancellor's responsibilities away from the judicial, toward the executive and political.
The Lord Chancellor is not the head of the Scottish judiciary, nor of the judiciary in Northern Ireland. But, for historical reasons, in England and Wales he is President of the Supreme Court, an ex officio judge of the Court of Appeal and President of the Chancery Division. He also sits in the House of Lords and the Privy Council and presides when he sits, arranges the judicial business in the House of Lords and the Privy Council, and makes procedural rules for the Supreme and Crown Courts. He delegates to the senior Law Lord the selection of Law Lords for Appellate Committees, but has made it clear that the Lord Chancellor can override his delegate and sit whenever he chooses.
The traditional justification for his exercising judicial as well as executive and legislative powers is that the Lord Chancellor can be relied upon to preserve the essentials of a separation of power; and that his dual role enables him to interpret the views of the Cabinet and of the judges better. Those are important arguments, and nothing I say is intended to weaken the Lord Chancellor's ability as constitutional and legal adviser to the Government to uphold judicial independence as a member of that Government.
The noble and learned Lord, Lord Steyn, has a well-known commitment to maintaining the independence of the judiciary from the political process which has made him accept a self-imposed vow of perpetual silence in the legislative Chamber while he sits as a Law Lord. I understand that the noble and learned Lord considers himself to have sinned by making his maiden speech and by voting on one occasion, but that he has vowed never the do so again while he continues to serve as a Law Lord. The noble and learned Lord considered these arguments and the contrary arguments in an important lecture a couple of years ago, which was entitled "The Weakest and Least Dangerous Department of Government" and which was published in Public Law 84 in 1997. I hope that I will be forgiven for quoting a passage from that lecture by the noble and learned Lord which I think is important. The noble and learned Lord said:
What then of the position of the other Law Lords when they choose to act in a legislative as well as in a judicial capacity--for example, moving or supporting controversial amendments to Bills, which they may later be required to interpret and apply? They are appointed not as legislators but for the purpose of aiding the House of Lords in the hearing and determination of appeals. As life Peers, they are also entitled to sit and vote in the House. In theory, there is nothing to prevent a Law Lord from speaking and voting in a legislative capacity on matters of real political controversy.
Under the previous administration there was an increasing tendency for them to do so. One Law Lord moved a controversial amendment to the Defamation Bill enabling Mr. Neil Hamilton to circumvent parliamentary privilege and revive his libel action against the Guardian. Several Law Lords spoke opposing Home Secretary Michael Howard's equally controversial use of the prerogative to introduce a new scheme to compensate the victims of violent crime, instead of bringing into force a statutory scheme, thereby disqualifying themselves from being members of the Appellate Committee which subsequently decided that the Home Secretary had acted unlawfully.
I very much hope that a way will be found, in a reformed upper House, of preserving that role, so that Law Lords are able to contribute to public debates within as well as outside the House. However, I hope it will not be considered presumptuous to suggest that, if the Law Lords are to remain as members of this House, they should not play an active role as legislators while holding judicial office. In other words, I do not argue for a rigid and complete separation but for a greater
Parliament is vesting new powers and duties in the courts to protect human rights and maintain the separation of powers between Parliament and the Executive and devolved legislatures and executives. I am not alone in believing that Parliament should also create a supreme court for the United Kingdom, similar to those in other democratic countries, with judges who will not participate in the legislative process as active legislators while serving in a judicial capacity. I hope that this debate will help to develop a better informed public philosophy on that subject.
Lord Desai: My Lords, we must all be truly grateful to the noble Lord, Lord Lester of Herne Hill, for raising a very important and significant issue today. I went into the Library of the House and, thanks to the Librarian, I downloaded some Federalist papers, because I thought I would look at the origin of the literature on the separation of powers. In a sense very nicely, one of them says:
In moving his Motion, the noble Lord emphasised two different issues, both of which, as a non-lawyer, I want to deal with from a layman's perspective. First, he referred to the Lord Chancellor's extensive powers and questioned what we should do about them. Secondly, he emphasised the position of the Law Lords in the matter. As set out in the Federalist papers, what we have here are abstract principles that there ought to be a separation of power; there is no doubt about that.
Again, when looking at the British constitution as of the 18th century, the writers then were rather fascinated by it and, despite what looked like no separation of powers, somehow people like Montesquieu thought that that was a great guarantee of liberty. The idea was that you did not have separation of power but, basically, that:
I refer to a further anomaly. I very much agree with the noble Lord, Lord Lester, that there is too much of a mixture of roles. There are matters which are inessential or, rather, harmless, to the Lord Chancellor's role--which I do not mind--but there are other matters which may impinge on that role. The fact that he sits on Cabinet committees does not concern me greatly because not every Lord Chancellor has done that. We have had some good Lord Chancellors and some bad Lord Chancellors. Whether a Lord Chancellor is a powerful person on the Executive depends very much on his personality. That is not part of the system. We have also had weak Lord Chancellors in terms of their Cabinet role.
The fact that the Lord Chancellor presides over your Lordships' House is not a matter of great import because he only presides over it, he does not rule over it. He does not perform the role of a Speaker. My noble and learned friend has tried to separate the two roles whenever he has had to perform the role of a Minister of the Crown rather than that of the Lord Chancellor sitting on the Woolsack. I believe that separation can be achieved and I do not think much harm resides there. However, the nub of the problem that the noble Lord has raised concerns the fact that the Lord Chancellor is the head of the judiciary of England and Wales, he appoints judges and can sit as a judge, but he also has an executive function. That is the anomaly.
The problem is not the position of the Lord Chancellor as such, but the fact that we do not have a proper supreme court. Here I agree with the noble Lord. That, I think, is the nub of the problem. If we had a proper supreme court on which the Lord Chancellor had a right to sit, but on which he would not be likely to sit often--let us put it that way--and which comprised permanent appointments, I do not think one would worry about this problem. I quote from the Federalist Paper No. 51. I refer to departing from strict principles in the appointment of the judiciary. The paper states,
People do not understand how Law Lords are appointed. It is not a transparent process. I say nothing about the quality of the people appointed; I am not capable of judging that and I gather it is good. However, it is not a transparent process. I hope I may express the matter thus: Nolan should be appointed on Nolan principles, but those principles have not been applied to the appointment of Law Lords. To have more information on Law Lords would make a tremendous contribution to increasing the degree of openness in the system. When these appointments are made, somewhere, perhaps in a Select Committee, preferably of your Lordships' House, we ought to adopt the American process whereby interests are declared and we examine the interests of people being appointed. I think that would be a good step and a reassuring step. I refer to the tremendous and recent revolution brought about by the noble and learned Lord, Lord Nolan, in reforming standards of public life. That should now be extended to the judiciary.
I refer to the problem of Law Lords participating in your Lordships' House as legislators. On a matter of principle, that does not quite gel. But here I am willing to let things go a little because, as the noble Lord, Lord Lester, admitted, it is useful to have Law Lords taking part in debates. When we were recalled during the Summer Recess to discuss the terrorism and conspiracy Bill, I found the speech of the noble and learned Lord, Lord Lloyd of Berwick, tremendously helpful. He more or less sorted the Bill out and said that it was of no use whatsoever. We then unfortunately had to pass it, but that is another matter! Some noble and learned Lords also spoke on the Scotland Bill. That, too, was useful. If something is useful it should not be sacrificed for abstract principles. To that extent I have been corrupted by living here for so long.
Lord Waddington: My Lords, I thoroughly enjoyed the eloquent speech of the noble Lord, Lord Lester of Herne Hill. I particularly enjoyed his historical references. The speech was attractive to me not least because throughout most of his speech he steered clear of the threat posed to our present arrangements as a result of a recent decision of the European Commission of Human Rights in the case of McGonnell which seems to say that the lack of any clear separation of powers in our present arrangements puts us in breach of Article 6 of the convention which guarantees a fair trial. I shall not duck McGonnell and the fact that our arrangements may well have to be changed as a result of any decision of the European Court of Human Rights which may follow the McGonnell decision. I think that the McGonnell decision and what may flow from it is a matter of the utmost gravity.
If it really be the case that Article 6 of the European convention may force on us changes in constitutional arrangements which over many years have worked well and have stood us in good stead; if we are to be forced into a rigid observance of a separation of powers which
The briefing paper produced by the House of Lords' Library on the Human Rights Bill stated--I think correctly--that the principal reason why, after ratification, the European convention was not incorporated in our law was that back in the 1950s everyone was agreed that the rights and freedoms specified in the convention were already fully protected in UK law and incorporation was not therefore necessary. No one foresaw that it would be interpreted in the way in which it has been. Now, after the horse has bolted, we are told that perhaps incorporation will be a means of influencing the development of case law under the convention. But some may think that that is pretty unlikely when cases will continue to find their way to a court now made up in the main of very distinguished judges--but judges from countries whose laws and legal systems are, in the truest sense, wholly foreign to our own.
I am absolutely delighted that countries such as Lithuania and Slovakia, the Ukraine and Croatia, Poland and Romania, have joined the Council of Europe. But they are countries with histories, constitutions and laws entirely different from our own. It would be surprising if, from time to time, judgments were not handed down which make little sense in the context of our own history, constitutional arrangements and laws.
I am sorry to strike a somewhat discordant and doleful note, but at a time when all our institutions seem to be under threat from an administration obsessed with modernisation, it is about time that someone said that those self-same institutions have not served us badly over the years and certainly have proved a far more effective defence against tyranny than the continental institutions which we are so often told we should ape.
In these dismal circumstances, I can only trust that if and when the McGonnell case finds its way to the European Court of Human Rights those responsible for representing Britain will argue with all the skill and force they can muster against the Commission's decision, which would lead to results so inimical to our interests and contrary to our traditions.
I certainly hope that the Government will not heed the advice of the noble Lord, Lord Lester, which seems to be that we should just put on a brave smile and swallow the unpleasant medicine being spooned out to us.
Lord Simon of Glaisdale: My Lords, when in the 18th century Montesquieu compared the lack of freedom of the individual and his lack of basic rights in France with what he saw, or thought he saw, in England, he ascribed the difference to the fact that we had, as he asserted, separation of powers, a phrase that the noble Lord, Lord Lester, used. As is well known, that was a formative influence in the American constitution--a written constitution--which genuinely has separation of powers. It also influenced the constitution-making Abbe Sieyes, who was a precursor of the noble Lord, Lord Lester, in his enthusiasm for system making. As the noble Lord, Lord Waddington, has indicated, it also influenced the juristic thinking of most continental countries.
In fact, Montesquieu was wrong in his perception of this country. We did not have and do not have separation of powers. The noble Lord, Lord Lester, dealt with the Lord Chancellor's position; at the other end of the spectrum, there were also the justices of the peace, who had wide administrative functions. What we had was not separation of powers but something far more subtle and far more valuable--a balance of powers. It is no use separating your executive if it has powers over the individual which are considered inordinate. The executive's powers should be balanced by that of the legislature and the judicature. That is threatened by advocacy of a system purely based on separation of powers. It is a balance of powers that will vouchsafe liberty of the subject and individual rights.
In his valuable speech, the noble Lord, Lord Waddington, mentioned the recent case of McGonnell before the European Commission. To my mind, that was a typical example of looking at the surface instead of at the reality. The Commission--and it was only the opinion of the Commission; the case has yet to go to the Court--was quite right in saying that you must have the very appearance of independence and impartiality. But where it went quite wrong was in imagining that the Bailiff of Guernsey, because he presides in the States, thereby invalidates the claim of the judiciary to have impartiality and independence. I think that the decision of the Commission was wholly wrong.
Perhaps I may make my position clear; I am a completely committed Europhile. But as we are reluctant latecomers, we have to accept that much of the European institutions and their concepts is out of harmony with our own. There is no need to rush to embrace everything that comes from Strasbourg or any other European court. We may have to swallow the medicine in the end, but woe unto him by whom the evil cometh.
As to your Lordships' House--which was the principal subject of the interesting introduction to the debate of the noble Lord, Lord Lester--I see no reason in the way in which your Lordships' House works at the moment to rush into a ministry of justice, which would concentrate even more power over the legal system in the hands of an executive. I see no reason to hive off the Appellate Committee; still less do I see any reason why my noble and learned friend the Lord Chancellor
One has only to think of the great Lord Chancellors. It is invidious perhaps to mention individuals, but just think of Cairns, Haldane, Viscount Simon, and how much they have contributed to our legal system and our juristic structure. Think, too, of the judgments that have been given by the Appellate Committee against the Crown, which on occasions, as in the Burmah Oil case, have run into millions of pounds. And not even the noble Lord, Lord Denham, as Chief Whip, whipped a majority to vote down the objectionable, as he saw it, judgment of the Appellate Committee.
Lord Beloff: My Lords, I do not know whether Cassandra had time to be happy after her prognostications were fulfilled. Noble Lords who took part in the debate on the incorporation of the European Convention on Human Rights into our law may recollect that I strongly urged this House to reject it and warned the House that it would have bad consequences for our ability to run our own institutions. I must, as I rarely do, differ from the noble and learned Lord who has just spoken. We were not latecomers to the convention. We had a lot to do with the convention. The trouble is that the convention was designed to prevent the recurrence of Nazi-style tyranny and was never thought of as an appropriate method for guiding the administrative or judicial aspects of democratic countries. The fact that a junior member of my college, Mr. David Pannick, thinks otherwise, does not move me.
I am very puzzled by the unwillingness of people generally--I am not talking about your Lordships--to recognise the nature of our constitution, of which the features we are discussing today are part. The noble Lord, Lord Desai, puzzled me totally. He refers to The Federalist papers. He could have avoided troubling the Library staff. I would gladly have lent him a copy of my own edition of the papers, from which he would have learnt that the authors were, on the whole, not familiar with the actual operation of the British constitution and were relying too much on commentators such as Montesquieu in putting forward their notions.
However, I was even more puzzled when the noble Lord said that what we needed was a proper supreme court. Does he really admire the American Supreme Court, which is nominated by presidents of successive parties, who put in office members sympathetic to, or members of, those parties, with an eye to decisions which will favour the administration in being, though longevity does of course occasionally disappoint that
|Next Section||Back to Table of Contents||Lords Hansard Home Page|