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Lord Simon of Glaisdale: My Lords, has the noble Lord in mind what happened as regards the appointment of Justice Thomas to the Supreme Court?
Lord Kingsland: My Lords, I am only too acutely aware of that. That is why I made the suggestion with an appropriate caveat. I do not think that the decision about selection should be taken by the legislature. However, I believe that a candidate who has been selected by the noble and learned Lord the Lord Chancellor should have the opportunity of being interviewed by a parliamentary committee so that that committee has the opportunity of finding out something about him. The personal views of noble and learned Lords are now a matter for daily public debate in the press. They would be more secure in their posts were some parliamentary procedure of that kind to be initiated. It would give greater legitimacy to the unelected judiciary who, after all, guarantee the rule of law in our country.
Lord Marlesford: My Lords, before the noble Lord sits down, surely one of the essences of a good judge is that as far as possible he keeps his personal views private. Once one exposes judges' personal views on everything, reasons will be found why they should be regarded as inappropriate for appointment to the highest part of the judiciary.
Lord Kingsland: My Lords, in the past that has been possible, and it has worked most satisfactorily. However, as the noble Lord may have gathered from the earlier part of my speech, for better or worse noble and learned Lords, and indeed Lords Justices in the Court of Appeal, are having, daily, to take decisions about highly political issues. The press and many members of the public feel that the personal views of those judges might influence their ultimate decision. Therefore I think it only right that judges who will be appointed have the opportunity--it is an advantage to them as well as to the legislature--to express their views.
6.50 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I am sure that your Lordships will be grateful to the noble Lord, Lord Lester, for bringing these issues before us. He began his speech with the office which I have the privilege to occupy today and I will begin there, too, by saying why I believe the office is critical within our unwritten constitution.
It is the nature of great offices, and the values which historically inhere in them, that they provide at least as sure a guarantee of our traditional rights and liberties as any transient constitutional text. It is the unique position which the Lord Chancellor occupies in our constitutional arrangements which provides a strong and contemporary, as well as a historic, justification for both the office itself and for the Lord Chancellor to be a professional.
Lord Chancellors traditionally come to the office after a long career in the law. Their profession puts independent individual judgment above all else. They come to the office imbued with the values that underpin our democracy: the rule of law; freedom under the law; the independence of the judiciary from any Executive interference; the duty of the court to stand between citizen and state; the duty of the court to order the Executive to comply with the law and not overreach itself. In short, to insist that, "Be you ever so high, the law is above you". I believe that the public can have a well-founded confidence that, for any Lord Chancellor, these values would be armour against Executive mindedness or Executive pressure.
In our country, the legislative, the Executive and the judicial branches are not equal and co-ordinate as in the United States of America. Parliament is the senior partner in principle and the Executive is very powerful in practice. The office of Lord Chancellor has evolved as the means of ensuring judicial independence within a constitution which both concentrates supreme power in an elected legislature dominated by fierce party political warfare, and at the same time permits a powerful Executive to govern day by day.
After approaching two years in office, my belief which I brought to the office of Lord Chancellor, that it stands at a critical cusp in the separation of powers, is even stronger. Through the office, the judiciary has a representative in the Cabinet and the Cabinet in the judiciary. Lord Chancellors must have the confidence both of their judicial and Cabinet colleagues. They promote mutual understanding in order to avoid collisions at a major intersection in the separation of the powers.
I have to say with regret, that there was a period under the previous Administration when the public would have been forgiven for thinking that on occasions the Executive and the judiciary had ceased to be on speaking terms. In the latter two years or so of the previous Administration there was unprecedented antagonism between judiciary and the Government over judicial review of ministerial decisions. Some politicians even went so far as to call judicial review itself into question. That was bad for our system because our system ultimately requires a government of laws, not of men.
The protection of the judiciary from Executive interference is, in my view, a high order duty--perhaps the highest order duty--of any Lord Chancellor. The office is a buffer between the judiciary and the Executive which protects judicial independence. The Executive cannot tell the judges how to decide cases, civil or criminal, nor what sentences in criminal cases to impose within the discretion conferred by Parliament. Any Executive is capable of being tempted, but Executive interference with judicial independence must never be allowed. Freedom under the law and judicial independence are two sides of the same coin.
If the Lord Chancellor does not fit into a perfect, purist scheme for the separation of powers, nor do the Law Lords, as your Lordships have shown in today's debate. They are Members of your Lordships' House
both in its legislative and its judicial capacity. In a debate which I promoted in your Lordships' House on 5th June 1996 concerning the relationship between the judiciary, the legislature and the Executive, I said then what I still think: that the Law Lords' expertise in the administration of justice allows them to make an invaluable contribution to our debates on that subject. But I believe that they would be wise to stop at the administration of justice. I repeat what I said in that debate:
- "If they engage more extensively in political controversy, they risk undermining public confidence in their political impartiality. There is a basic tension between judicial engagement in political controversy and public confidence in the judges' political impartiality in deciding disputes according to law".--[Official Report, 5/6/96; col. 1259.]
There is also a need for self-restraint in debate in the Chamber, but I would not circumscribe it by iron rules. Here I am with the noble Lord, Lord Renton. It would be prudent for Law Lords participating in debates in this Chamber to abstain from concluded views of a judicial character on issues, whether arising out of legislation under consideration by your Lordships or otherwise, which might disqualify them later from ruling judicially on these very issues. In particular, if an issue arose about whether a ministerial statement that a Bill was compatible with the European Convention on Human Rights was well founded, the Law Lords in this Chamber would be well advised to abstain from concluded views.
Some who are critics of the Human Rights Act argue that it will have a tendency to politicise our higher judiciary. It is true that the Human Rights Act, when implemented, will throw up cases which could be described as politically controversial. But the law is no stranger to that over the centuries. Think of the landmark cases in civil liberties. Think of the development of the law in relation to trade unions and the developments by Parliament of immunities for industrial action which were then interpreted by the judges in controversial ways. Think of Liversidge and Anderson, the Regulation 18B case. Think of the development of judicial review and of natural justice. Think of Brind, which excluded certain politicians from media appearances but allowed actors to stand in. Think of the cases about homosexuality in the Armed Forces. Think about whether the life support machine should be turned off. Think of every controversial decision in the criminal law.
The Human Rights Act may see a change in degree, but not in kind. I remain firmly of the view that judges are to be appointed on their legal merits. Of course, like Shylock, if you prick them they bleed, but that was ever so. I am resolutely opposed to any suggestion--and your Lordships heard such a suggestion from the noble Lord, Lord Kingsland, from the Opposition Front Bench--that our senior judiciary, prior to appointment, should be subject to public hearings, to subject their judicial track records or attitudes to appraisal in terms of the changing
fashions for political correctness. I do not think that our higher courts should be sculpted to conform to some notion of social, political, gender or any other balance.
Lord Desai: My Lords, I confess to my noble and learned friend that I made that suggestion. I did not make it as subtly and distinctly as the noble Lord, Lord Kingsland, did when developing the situation, but I am afraid that it came from me.
Lord Kingsland: My Lords, I did not say that an investigation and vote by a parliamentary committee should be a condition of appointment; I merely said that it would be desirable for a judge to appear in front of a parliamentary committee subsequent to appointment.
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