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Judiciary, Legislature and Executive

5.48 p.m.

Lord Rodgers of Quarry Bank rose to call attention to the relationship between the judiciary, the legislature and the executive, and to judicial participation in public controversy; and to move for Papers.

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The noble Lord said: My Lords, seven years ago, on 5th June, 1996, the noble and learned Lord, Lord Irvine of Lairg, rose to call attention to a Motion in precisely the terms that I have adopted this evening. The noble and learned Lord said:

    "I believe that this debate is timely. It comes when the country must believe that there is an unprecedented antagonism between the judges and the Government".—[Official Report, 5/6/96; col. 1254.]

He also referred to judicial review and judicial discretion in sentencing.

Time has moved on—there has been the Human Rights Act, for example—but not moved on. At that time the noble and learned Lord was on the Opposition Front Bench, while in most of the intervening years the noble and learned Lord, Lord Irvine, has been the Lord Chancellor and a member of the Cabinet. But changing places, and the switch from one government to another, leaves the issues much the same. In particular, the antagonism of the Home Secretary towards the judiciary is a matter of serious concern, echoing the controversy between Michael Howard and the judges between 1993 and 1997.

In the debate seven years ago there were 20 speakers—it was a full day debate—15 of whom were lawyers. Only one speaker, myself, was both a non-lawyer and a former Member of the House of Commons. I was bold, perhaps foolish, to intervene, but it seemed right to speak from a different experience to other speakers, whatever conclusion I reached. I am speaking from that perspective again. I have now spent more than 10 years in your Lordships' House. But I was a Member of Parliament for over 20 years, more than 10 of them in government. I see no merit in presenting these important issues in terms of "us" and "them" between Members of Parliament and the judges.

Of course, Members of Parliament are close to their constituents who experience the sharp end of life. They are absolutely right to listen and reflect upon public opinion on law and order, violent crime, children as victims, drugs and policing. Members of Parliament are sometimes troubled and even angry about the apparent failures of the judicial system. But I have no evidence, and I had none during the time of my own constituency, that the judiciary has been indifferent towards these problems or living in an ivory tower.

There are no easy solutions to the rough and awkward corners of our society. The judiciary, the legislature and the executive each have their task. It is better to work together in a tolerant partnership, given their inescapable roles. That is why I am particularly disturbed by an article in the London Evening Standard on 12th May, under the name of David Blunkett. The Home Secretary chose the headline, "I won't give in to the judges", quickly slipping into,

    "my so-called 'war on the judges'".

He asked why it was not possible to avoid,

    "a strong and lively debate"

about Parliament and the judiciary instead of "a brawling slanging match". It was news to most of us that the judiciary had been brawling at all.

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There was a good deal more of hyperbole, often lumping together the judiciary and the rest of the legal profession. More important, Mr Blunkett made disturbing assertions that "judges now routinely"—I repeat, "routinely"—

    "rewrite the effects of a law that Parliament has passed",


    "ever more ingenious ways of getting what they want".

This was not a casual news-based item, but a carefully considered article of over 1,000 words. At the core was his argument that,

    "we need a long hard look at the constitutional relationship between Parliament and the judges and be clear how it has changed".

But if he has raised some fundamental questions, they cannot be the property of the Home Secretary alone. On the contrary, much of the substance of the article is closer to the responsibilities of the Lord Chancellor than those of the Home Secretary. So long as the Lord Chancellor's Department remains within Government, the Lord Chancellor cannot wash his hands of Mr Blunkett's statement. To be fair, that would not be characteristic of the noble and learned Lord, Lord Irvine of Lairg.

There may be a case for "a long, hard look" at the constitutional relationship that Mr Blunkett wants. We shall see in this debate and elsewhere. But there cannot be a bilateral exchange between the Home Secretary and the judges, least of all in the language of the Evening Standard article. In the article, the Home Secretary referred to the judgment delivered by Mr Justice Collins on 19th February in an asylum case, saying,

    "the Home Office eventually won the legal arguments".

In fact, on 18th March, the Home Office lost the appeal. But on this occasion it is not asylum policy or the outcome that I am discussing; it is the manner in which the Home Secretary handled the matter.

Mr Blunkett was clearly very upset about the initial judgment. He appeared on the BBC Radio 4 programme, "The World at One" and said:

    "Frankly, I'm fed up with having to deal with a situation where Parliament debates the issues and the judges then overturn them".

He added:

    "I am absolutely clear that we don't accept what Justice Collins has said. We will seek to overturn it".

That was not an off-the-cuff response, as the judgment had been delivered on the previous day. It was, again, a considered statement. And he made no comment on an unpleasant and highly personal attack on Mr Justice Collins in the Daily Mail.

The matter was raised by my noble friend Lord Smith of Clifton at Questions on 26th February. The Lord Privy Seal, the noble and learned Lord, Lord Williams of Mostyn, was at his most emollient, and that can be very emollient indeed. He said:

    "We live in a pluralist democracy",

adding that the Home Secretary was,

    "perfectly entitled to give his view about the judgment of Mr Justice Collins".

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He drew attention to another interview in which the Home Secretary had said,

    "'I merely ask that alongside'"—

that is, the role of the judiciary—

    "'that there should be a recognition of the role of government in establishing public policy'".

The Lord Privy Seal mentioned yet another article—the Home Secretary had had a couple of busy days—in which he made,

    "a classic statement of constitutional principle".

In response to a Question asked by my noble friend Lord Lester about whether Whitehall had briefed the Daily Mail against Mr Justice Collins, the Lord Privy Seal said,

    "I have not the slightest idea".—[Official Report, 26/02/03; cols. 239–240.]

I make no criticism of the Lord Privy Seal. As expected, he made the best possible defence of the Home Secretary. But he knew, and the House knew, that the Home Secretary's remarks were against the spirit of—to put it at its least—the conventional relationship between the executive and the judiciary. Mr Blunkett's remarks had been foolish and damaging. The Home Office was entitled to appeal against Mr Justice Collins's judgment, but the Home Secretary went far beyond what was required in making an attack on Mr Justice Collins.

I turn for a moment to two announcements by the Home Secretary made on 7th and 9th May calling for clarity, consistency and confidence, as the Home Office puts it, in sentencing. In the first, he referred to "tougher sentences for murderers"; in the second, he announced a new sentencing body "to guarantee sentencing reform". The principles of tougher sentences will form part of the current Criminal Justice Bill and the new sentencing body will follow.

The Home Secretary explained that he was not prepared,

    "to allow sentences . . . which do not reflect either the punishment required or the need to give a clear signal to perpetrators that will not tolerate their presence in our society".

He said that "life should mean life" for the most serious crimes of murder. For other serious crimes, there should be a minimum of 30 years in prison, and there should be a minimum of 15 years for other murderers.

The Criminal Justice Bill should reach your Lordships' House towards the middle of June and the Home Secretary's detailed proposals will be debated at that time. I am not pursuing the new minimum sentences or the meaning of "clarity, consistency and confidence", although other noble Lords may wish to do so. My concern today is the extent to which these proposals shift the balance towards the executive from the judiciary. The Home Secretary called his statement "a landmark change." For the first time, he said,

    "Parliament will . . . provide a framework for judges to determine how long an offender should spend in prison".

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I accept the Home Secretary's term "a landmark". He is right. The effect of these changes will diminish the discretion of the judges.

As for the sentencing guidelines council, I find it difficult to measure its weight and significance. The chairman will be the Lord Chief Justice, with seven members of the judiciary and five lay members, including the interests of victims of crime. The purpose may or may not be cosmetic. In his statement the Home Secretary referred to "too much individual discretion" in sentencing, but its powers do not appear beyond—his own description—a "dialogue" between members.

I am not claiming that the Home Secretary's new proposals—the two announcements—are unconstitutional. But, I repeat, the balance between the executive and judiciary is changing, which is precisely what Mr Blunkett wants.

Let me go back to the background of the debate seven years ago and the Home Secretary's article of 12th May. The Home Secretary claimed that the judges routinely rewrite the effects of a law and find ways of getting what they want. But judicial review is not an appeal on the merits of the case: the merits have been decided by Parliament. Judicial review simply decides whether the actual exercise of power is lawful, fair and reasonable. Judges are seeking to interpret what Parliament has decided, sometimes as the result of sloppy or ambiguous drafting by Ministers.

The Home Secretary complains about,

    "a rash of high-profile cases",

under the Human Rights Act 1998. However, apart from his claim, only about 400 cases of judicial review in a year succeed—about 15 per cent of all applications. That is despite the vast number of decisions that are made by officials.

"Our democracy", as the Home Secretary described it, is not only the processes of Parliament. The noble and learned Lord the Lord Privy Seal was right: ours is a pluralist democracy. There is a huge subtle web of relationships, far beyond one man, one woman, one vote at the ballot box, the votes in Parliament and the decisions of Parliament. Our democracy is rich, sophisticated and vigorous.

If I was still in the House of Commons, I might be tempted to say to the Home Secretary, "Stop whinging". But in your Lordships' House and on this occasion, I suggest as an alternative that he stays silent and calm and, to use another word that he likes, takes a rather more mature view of these very important issues. I beg to move for Papers.

6.4 p.m.

Lord Woolf: My Lords, I am extremely grateful to the noble Lord, Lord Rodgers of Quarry Bank, for enabling us to have this debate. It was pleasing to hear him speak today as eloquently as he did seven years ago in the debate on the same subject.

As the noble Lord indicated, we are concerned today about the relationship between the different arms of government. Judges of all levels are concerned

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about the tone and content of the current public debate about that relationship. After consultation with other members of the senior judiciary, I decided that it would not be helpful for me to leap into print, as to do so could so easily be portrayed as my entering into an unattractive tussle between competing interests. Having heard at the weekend of this debate, I decided that, as I have the privilege of addressing your Lordships in person, it would be wrong of me not to inform the House of the reasons for the judiciary's concern, so far as it is possible to do so within my allotted time of seven minutes.

Before I proceed let me make some things clear. First, it is not in issue that the three government departments responsible for the criminal justice system are at one with the judiciary in seeking to improve that system and the public's confidence in it. Secondly, it is not in issue that changes are needed to the criminal justice system and that Parliament is the body that should have the final say as to what form those changes should take. Thirdly, it is not in issue that changes that are made by Parliament will be loyally implemented by the judiciary. Fourthly, it should not be in issue that, if the justice system is to be improved, close co-operation is required between the government departments involved, the judiciary and the legal profession. Fifthly, it should not be in issue that in recent times the judiciary has indeed co-operated with government departments, so far as is appropriate, to achieve the changes that are needed. Sixthly, it is not in issue that the judiciary can appropriately contribute to the work of parliamentary committees that have responsibilities in relation to criminal justice and human rights.

Let me say a few more words about co-operation. The implementation of the civil justice reforms involved the Lord Chancellor's Department, the legal profession and the judiciary working closely together. The success of the reforms demonstrates what can be achieved through co-operation. Happily, that co-operation continues. The judiciary has made very substantial efforts to assist the Home Office in achieving our common objective of improving the criminal justice system. My predecessor, the noble and learned Lord, Lord Bingham, established the Rose committee, which takes its name from Lord Justice Rose, to ensure that there is a body of highly experienced judges who can give a prompt response to proposals for change when they are received from the Home Office.

We have ourselves asked for legislation to introduce changes which we see as being needed. In relation to asylum and immigration, which we recognise are particularly difficult areas for the Home Office, we have tried to assist in every way that is appropriate. We have made Mr Justice Collins, and now Mr Justice Ouseley, available to be presidents of the Immigration Appeal Tribunal. They have transformed that body. We have made senior judges available to sit on the Special Immigration Appeals Commission so as to try to ensure that the rights of suspected terrorists who are being detained without trial receive proper protection in a manner which does not prejudice national

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security. We have also made special arrangements to enable certain asylum proceedings to be disposed of with remarkable expedition.

One of our senior judges, Lord Justice Kay, sits on the National Criminal Justice Board, a body with a critical role in achieving co-operation between agencies. We have co-operated with the various initiatives which the Home Office has rightly piloted to improve the justice system.

There are a great many more examples that I could give, but, regrettably despite our efforts, we have so far failed to achieve the co-operative relationship that is required between the judiciary and the Home Office. Unfortunately, there are times when the judiciary is left with the impression that its efforts are neither appreciated nor welcomed.

Members of the judiciary are fully prepared to accept criticism when it is justified, but they are particularly vulnerable to unjust criticism. They have no public relations machine to deploy to rebut such criticism. They are dependent upon the reasoning set out in their judgments to explain their decisions, but they cannot compel their critics to read their judgments. If judgments are not understood or are misrepresented, the judiciary is inhibited from responding because of the very important convention that judges do not discuss individual cases. The lack of response from individual members of the judiciary or the judiciary as a whole should not be regarded as indicating that criticism is not extremely damaging and, if unjustified, unfair. It is damaging because it undermines the confidence of the public in the justice system and inhibits reform of the system. It also makes the individual tasks of judges more difficult.

Finally, I turn to judicial review. Judicial review is the last protection of the individual member of the public from the unlawful activities of public bodies, including, when appropriate, the government of the day. So far as this is consistent with upholding the law, the procedure is designed to minimise the impact upon the activities of public bodies. A wide range of public bodies are subject to judicial review in addition to the Government. It is of course frustrating for the Government to be unsuccessful, but the courts do not intervene unless that intervention is necessary to uphold the laws passed by Parliament. Out of respect to the courts and Parliament, the Government must resist giving vent to their frustration.

To attack judicial review is to attack one of the basic protections of our society today. It is inconsistent with the rule of law. It must not be forgotten that the rule of law has a critical role to play in the war against terrorism and that this country is regarded as being its flag bearer around the globe. The impact of any failure on our part to observe the rule of law is not confined to this country.

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