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Lord Lester of Herne Hill: My Lords, speaking as a non-absolutist pragmatist--as is the noble and learned Lord the Lord Chancellor--does he also agree with the Wakeham commission recommendation that it would be wise for the Lords of Appeal to publish an up-to-date statement of current constitutional practice so as to ensure that those who wear two hats--one legislative and one judicial--or even three, as in the case of the noble and learned Lord the Lord Chancellor, are able to explain the new principles to be applied to ensure that there is no future case like McGonnell in which Article 6 must be relied upon?

The Lord Chancellor: My Lords, I believe that McGonnell usefully reinforces the circumspection required of the Law Lords when they participate in the legislative process. When they participate in your Lordships' debates, it would, of course, be prudent for them to abstain from concluded views of a judicial character on issues which might later disqualify them from adjudicating should those issues come before them. The Wakeham commission recommended in Recommendation 59 that the Lords of Appeal should set out in writing and publish a statement of the principles that they intend to observe. The noble Lord,

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Lord Lester, drew attention to that. The senior Law Lord has informed me that the Law Lords will discuss that matter at their next meeting later this month.

Lord Borrie: My Lords, given that a very wide range of cases comes before the House of Lords in its judicial capacity, is it not better that the Lord Chancellor and future Lord Chancellors use their discretion to ensure that they comply with Article 6, rather than that there should be any general ban forbidding the Lord Chancellor dealing with, and gaining experience of, judicial cases?

The Lord Chancellor: My Lords, I agree. Noble Lords will appreciate that there are very many appeals--a multitude of appeals--in which on no conceivable reading of McGonnell could there be any objection to the Lord Chancellor sitting; for example, in cases arising under the common law where there is no issue concerning any statute arising. Your Lordships can rest assured that I shall take care to ensure that I do not sit in cases where to do so would infringe Article 6.

Lord Renton: My Lords, bearing in mind that under our constitution the separation of powers has been ignored for centuries, does the noble and learned Lord agree that there is some advantage in having him preside over your Lordships' legislative Chamber as responsible for the legal system and as a member of the Cabinet, and that that co-ordination of powers under his responsibility is an advantage within our constitution?

The Lord Chancellor: My Lords, I clearly believe that the role of the Lord Chancellor in upholding the independence of the judiciary--an important unwritten article of our constitution--is vital. The noble and learned Lords who have held this office previously have said--I must agree with them--that the office acts as a strong buffer between the judiciary and the executive. The office will be the more necessary in that regard as decisions come forward under the Human Rights Act which inevitably will not give pleasure to all and may sometimes give displeasure to government.

Speeding: Self-incriminatory Evidence Ruling

3.23 p.m.

Lord Mackay of Ardbrecknish asked Her Majesty's Government:

    What steps they propose to take in the light of the court decision in Edinburgh that Section 172 of the Road Traffic Act 1988, used extensively in speeding charges, contravenes the European Convention on Human Rights.

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The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, the court in the Edinburgh case did not hold that the use of Section 172 to obtain information infringed Article 6(1) but, rather, that in the circumstances of the case the prosecution could not use the self-incriminatory evidence obtained. It is a long and detailed judgment and the court granted the Crown leave to appeal to the Judicial Committee of the Privy Council. All aspects of the case are being considered carefully before a decision is taken on whether to appeal. That being so, inevitably there is a risk that any discussion of the case in the House could be prejudicial to further legal proceedings. Accordingly, I am constrained in any answers that I can give to further questions. That said, the question as to whether the case has implications for other circumstances, such as those where safety cameras are used, was not addressed by the court, which was very clear on that point.

Lord Mackay of Ardbrecknish: My Lords, I appreciate the measured response given by the noble Lord. Does he appreciate just how serious this judgment is, coming as it did from the Lord Justice General and from two of his colleagues on the Scottish Bench? While I appreciate that the case centred around a drunk driver who incriminated herself, the press and other legal people consider that it has serious implications, for example, for speed cameras. The current position in Scotland may well be that people can go through speed cameras with impunity because they cannot be forced to tell who is driving the car. Is the noble Lord aware that the same circumstance could occur in England after 2nd October? I wonder whether the Government appreciate exactly the consequences of incorporating the ECHR into the Scottish and, eventually, the English legal systems. Is the noble Lord aware that if action is not taken to proof legislation against the ECHR, instances such as this will occur again and again and again?

Lord Whitty: My Lords, were the noble Lord to be correct that there is a read-across from this particular case into other areas of road traffic offences where the keeper is required to give evidence, then clearly there would be a serious problem. However, I reiterate that the justices in this case indicated that they had not considered the facts of other possible cases. They said in terms that not all the features of the present case would be found, for example, in cases where the police send out a written request to the keeper of a vehicle which is caught speeding by a roadside camera. Therefore, the read-across to which the noble Lord refers, and on which comment has been made in Scotland, does not necessarily exist.

Lord Lester of Herne Hill: My Lords, contrary to the view expressed by the noble Lord, Lord Mackay of Ardbrecknish, and regardless of whether one agrees or disagrees with the outcome of the case--a possible appeal to the Privy Council is pending--does the Minister agree that the case illustrates a success for the Scotland Act read with the Human Rights Act in that

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three senior Scottish judges, following full and careful analysis of Scots law and European Convention law, confined themselves carefully to the narrow issues in the case? In his judgment, one of the judges, Lord Marnoch, went out of his way to explain that he found nothing in European case law that added significantly to what has long been the common law of Scotland in regard to the treatment of suspected persons. He pointed out that Scots law requires that such persons should normally be cautioned that they are not obliged to say anything and, even with a caution, anything in the nature of cross-examination.

Lord Whitty: My Lords, I believe that the last point made by the noble Lord, Lord Lester, is particularly apposite in this case. However, I believe that in any further value judgment I make of this case I should confine my remarks to what I said earlier because the Scottish Law Officers are still considering the case on appeal.

Lord Mackenzie of Framwellgate: My Lords, I accept the necessity for the law to protect suspects in crime from incriminating themselves. However, particularly in a week when road safety initiatives have been introduced, does the Minister agree that it is important that we, and justice, take account of the human rights of innocent victims of crime and not only of those of the perpetrators of crime?

Lord Whitty: My Lords, I agree absolutely with my noble friend. The road safety strategy launched yesterday by my right honourable friend the Prime Minister was intended to address the fundamental human rights of people whose lives are taken away through road traffic accidents--at present, 3,500 each year. Therefore, it is important that both our system of catching such criminals--and they are criminals--and our system of justice surrounding that are robust.

The Earl of Erroll: My Lords, does the Minister agree that on occasion everyone is so busy worrying about road safety that it is forgotten that three speeding offences can mean the loss of someone's driving licence? If one lives in the country, that totally destroys one's ability to earn. It can therefore totally destroy one's family life and, in fact, have far greater repercussions than what were perhaps three minor offences causing no damage to anyone else. Sometimes the issue is completely out of balance.

Lord Whitty: No, my Lords, I do not agree. I fundamentally disagree. The family life and, indeed, life itself of many people is affected seriously and, on occasion, taken away by people conducting themselves on the roads by committing what the noble Earl describes as "minor speeding offences". Speed kills. It is therefore important that we should deter people from speeding on our roads.

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