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Baroness Crawley: My Lords, I apologise for interrupting the noble and learned Lord, Lord Woolf, but we have agreed a time limit of seven minutes.
Lord Woolf: I apologise, my Lords. I come to my conclusion by emphasising the judiciary's deep commitment to the improvement of the administration of justice and by making a plea for those who share that commitment to be prepared to co-operate fully with us in achieving the improvements which are needed. I apologise for my discourtesy to the House.
6.14 p.m.
Lord Morris of Aberavon: My Lords, I, too, am grateful for the opportunity that the noble Lord, Lord Rodgers of Quarry Bank, has given us for this debate on judicial participation in public controversy.
The use of judges to head public inquiries always causes me concern. Frequently there is no one else one can trust to be so impartial, but there is a price to pay. When a judge enters the marketplace of public controversy outside his court and throws coconuts, he is likely to have coconuts thrown back at him. If one values the standing of the judiciary, as I do, the less they are used the better it will be. Neither Lord Scarman's findings on the Brixton riots nor those of Sir William Macpherson escaped completely without criticism.
Secondly, politicians should exercise great restraint in their comments on the judiciary. In another place, it used to be out of order, and probably still is, to comment upon a judge without a substantive Motion. The Home Secretary uses colourful language in his writings. Surely there must be a better way for a Minister to get his views over. If the Home Office gets its actions right, the problems may not arise. I say no more.
Thirdly, the growth of judicial review and the adoption of the human rights convention have radically changed the duties of the judiciary. I read that, in 1980, there were 149 cases of judicial review. In 1997, there were 2,573. It is expected that there will be some 5,000 cases in 2003. Like the noble and learned Lord, Lord Woolf, I very much value judicial review as a bulwark for the people.
As a young man I heard Lord Scarman speak in west Wales on the human rights convention. "Trust the judges", he said. Even then his boldness caused me some concern. The more that judges' views are sought on convention concepts the greater will be the likelihood of controversy. However, I think that the track record of our judiciary in interpreting human rights concepts has in fact caused comparatively little controversy. Nevertheless, it may be opportune before very long for this House to sit back and examine both the growth of judicial review and its effects and the way in which human rights concepts are interpreted.
I turn to another aspect of the relationship of the judiciary and the executive—the office of the Lord Chancellor at the head of our legal system and its holder as part of the executive. With the reform of this House as a backcloth the office cannot escape examination. There are distinguished Members of this House who advocate a supreme court. I have reread the case of the Bailiff of Guernsey, in which, on its facts,
the court—including a distinguished British judge—found unanimously that there had been a breach of the right to a fair trial. The bailiff had presided at a legislative stage and later as part of the executive on a planning inquiry. It was all about the change of use of a shed—perhaps the modern equivalent of the "snail" in our legal history.The Lord Chancellor was right when he said that the position of the Lord Chancellor is unaffected. The question was whether, in a given case, the convention requirements were met. In a large number of cases where convention rights are not affected, he will sit. However, he has already reduced his availability by stating that he will not do so where Article 6 might be infringed. The reality is that the growth of cases involving the convention and of judicial review involving government should persuade us to take stock of the position.
However, in my view the prime justification for a change in the role of the Lord Chancellor is the substantial growth in the responsibilities and the spending of his department. Constitutionally, the granting of supply is the sole prerogative of another place. In 1989–90, the spending of the legal departments, including the Law Officers, was £1,173 million. In 2002–03, it is estimated that it will be over £3,000 million excluding the Law Officers.
A great spending department should have at its head a person directly answerable to another place. That is why it is rare for a Cabinet Minister other than the Lord Chancellor and the Leader of the House to be a Member of this House.
I well remember the fuss when Lord Home and the noble Lord, Lord Carrington, became Foreign Secretaries. Their department's spend was about half the then total of the Lord Chancellor's Department.
These problems will not go away, and it would be prudent for us to consider them—soon.
6.20 p.m.
Lord Windlesham: My Lords, I start with a reflection. The remarkable tolerance of the British constitutional practice has been demonstrated by the Home Secretary, an elected Member of one House of Parliament, criticising the Lord Chief Justice on a public platform outside Parliament, and by the noble and learned Lord, Lord Woolf, as a Member of the other House of Parliament, replying from within it—and what an effective reply it has been.
The debate is timely for several reasons, not only for the Home Secretary's reported remarks in his speech to the Police Federation at Blackpool last week. Although his unwarranted criticism of a recently retired and well respected High Court judge was widely reported in the press, the fact that no mention of it was included in the Home Office press release suggests that Mr Blunkett was speaking off the cuff—something that departmental civil servants always dread on sensitive occasions of that sort. Yet his censure of the judiciary was important in that it
demonstrated publicly his own true instincts, and his political values, more starkly than would have been the case in any more carefully edited text.As widely reported in the press, Mr Blunkett said that judges should live in the same "real world"—that dread phrase—as the rest of us. In a regrettable display of what can only be regarded as class prejudice—there is no other word for it—he declared that a retired judge who had criticised his policy in a radio interview only recently appeared to have discovered that the people he tried lived in a different world from those he had met—mark these words—at school, at university and in his chambers. I know Sir Oliver Popplewell, as do others present in the Chamber this evening. He was my vice-chairman for a time when I chaired the Parole Board. It is an entirely unfair caricature.
If sentiments of this sort are to be the driving force in relationships between Ministers and the higher judiciary, then, indeed, the outlook is bleak. What the Home Secretary appears to want to do is to determine levels of punishment by ministerial decree. This is illustrated by his attitude towards the duration of the period to be spent in custody by offenders who have been sentenced to life imprisonment for murder or certain other serious crimes. His latest claim is that the tariffs—that is, the minimum period to be spent in custody by offenders who have been sentenced to life imprisonment for murder or certain other crimes—should be reviewed. This is very difficult to accept. What it boils down to is his belief that the guidelines set by the Lord Chief Justice are simply not long enough. But how to decide what is long enough? It is a personal judgment which may be influenced and I believe is strongly influenced in the instance of the Home Secretary by reactions as reported in the mass media.
In any high profile criminal trial which attracts the interest of the mass media there is always the likelihood of a strongly punitive public response. From time to time judges have to stand up to this criticism when deciding what is the correct sentence that they believe is appropriate to all the facts that have been heard by the court. We should be grateful to them for doing so.
6.26 p.m.
Lord Dholakia: My Lords, I, too, thank my noble friend Lord Rodgers of Quarry Bank for initiating this very timely debate. I very much enjoyed the constructive response of the noble and learned Lord the Lord Chief Justice.
I should like to concentrate on just one key aspect of the relationship between the legislature, the executive and the judiciary; namely, the issue of sentencing. The nature of crime may vary from place to place and from generation to generation. We can argue about factors that affect crime and its causes, but crime is something with which all societies have to come to terms in their own way. We also have ample evidence to confirm that the public and political mood continues to be conditioned more by hunch, gut feeling and tabloid publicity than by sound research.
The frequent calls for stiff punishments for the minority of offenders convicted of crimes involving violence, drugs or sex are not necessarily in conflict with a wish to see fewer prisoners. No one disputes for a moment that grave offences should in general attract long sentences. But the exaggerated and generalised language sometimes used about crime and law and order tends to create a climate in which it is much more difficult for the more restrained message to be heard and acted upon. The present pronouncement from the Home Secretary has not helped. A determined effort from politicians and others is needed to secure a decisive shift in the public perception of crime and punishment. We need to challenge the attitude among some people that the best thing to do with criminals is to lock them up, preferably in some of our unhealthy prisons, and throw the key away. But that is not realistic and it is unacceptable in every respect.
The past 15 years have seen an unedifying and unnecessary struggle between successive Home Secretaries and the judiciary over one key aspect of sentencing—the resistance of Home Secretaries to losing their former powers in relation to life sentences. The power of Home Secretaries to set tariffs and make release decisions in life sentence cases has always been deeply offensive to the basic principles of justice. Setting tariffs is clearly a sentencing decision and it is right that it should be made by a judge following a judicial process, not by a politician. The procedure whereby Home Secretaries have made such crucial and far-reaching decisions in private, with no right of a hearing for the prisoner and with no right of appeal against the decision, contravenes fundamental precepts of natural justice. In high profile cases there is always a risk that elected politicians will be influenced by considerations of electoral popularity and tabloid headlines rather than by the merits of the case.
Yet successive Home Secretaries have resisted every move to challenge their powers on life sentences and they have been forced to withdraw from decision-making only because the Government have lost a series of cases in the European Court and before our own courts applying the Human Rights Act. Even now, the present Home Secretary is not prepared to let the matter go, but has tabled amendments to the Criminal Justice Bill that set significantly higher starting points for tariffs in murder cases, including whole life tariffs for some types of murder.
Constitutionally, Parliament has the right to set down the parameters of sentencing in legislation. There is no dispute about that. Morally, however, Parliament should refrain from legislating for a sentencing framework which will make it extremely difficult, if not impossible, for judges to do justice in individual cases. It should resist laying down a sentencing framework which will have all the ill effects of past failed attempts to distinguish between the heinousness of different categories of murder, such as the Homicide Act 1957, rather than leaving judges to assess the seriousness of each case in the light of all the circumstances.
Parliament should resist laying down a framework of sentences that will deprive significant numbers of prisoners of all prospect of release and any incentive to reform, thereby making it much harder for prison staff to control prisoners deprived of hope and with little to lose. It should resist rushing through a sentencing framework in such a grave area of decision-making which has been produced by the Home Secretary with no consultation whatever with the judiciary, the Prison Service, the Probation Service, victim support organisations, the sentencing advisory panel, or voluntary agencies working with offenders, such as NACRO. I have an interest as the chair of that body.
There have also been increasing moves towards Parliament's laying down mandatory sentences in cases other than murder. Since 1997, we have seen automatic life sentences introduced for a second serious violent or sexual offence, minimum seven-year sentences for a third offence of trafficking in class A drugs, and minimum three-year sentences for a third domestic burglary. The Government have now tabled amendments to the Criminal Justice Bill to provide for five-year minimum sentences for certain firearms offences.
There again, Parliament has the constitutional right to pass such legislation if it chooses to do so—but that does not mean that it is either sensible or morally right to do so. World-wide research on sentencing indicates that increasing the severity of penalties has little if any demonstrable deterrent effect on potential offenders. That is because offenders fall broadly into two categories: first, those who do not calculate rationally when committing an offence; and, secondly, those who plan carefully but plan not to get caught. The evidence shows that increasing the likelihood of detection can produce lower crime rates, but toughening up sentencing produces little demonstrable deterrent effect.
Although mandatory sentences do little to reduce crime, they do a great deal to produce injustice by tying judges' hands and making it impossible for them to sentence according to what the individual offenders deserve. They also produce distortions in the criminal process. For example, they deter guilty pleas with the result that more witnesses unnecessarily have to go through the distressing experience of giving evidence. In some cases the problems of evidence lead to acquittals of guilty defendants.
The system of justice is at the heart of our democratic process. It is the envy of the civilised world. Public confidence is shaped by the way in which justice is delivered. It does not help when the executive start interfering with it.
6.33 p.m.
The Lord Bishop of Worcester: My Lords, in the presence of persons of such distinction and experience on the subject, and in a debate for which I share the gratitude already expressed by many noble Lords, I hope that it will not be thought unduly abstract or over-ambitious if I devote my few minutes to a
discussion of the nature of reality. If noble Lords think that that is a subject about which no human being should talk, I can only say that we on these Benches are constantly talking about subjects about which no human being should talk.I am prompted to speak by a sentence referred to by the noble Lord, Lord Windlesham, from the Home Secretary's speech to the Police Federation, in which he said that he wanted judges who inhabited the same real world as he did. I do not wish to raise the question of whether that had a class focus or not; I simply want to talk about what that says about reality and how it is discovered.
It is important that the House reflect again on the fact that the constitutional and legal arrangements of our society do not come from nowhere. They are based on profound epistemological and ontological convictions—they are based on a set of beliefs about how human beings are to discover reality, and the capacity of any single human being or group of human beings to discover what is real, and good, and true. The wisdom that has produced the network of constitutional and legal arrangements already referred to derives directly from those fundamental convictions.
Out of those convictions comes an insistence that, if we are to discover reality, we must have a variety of perceptions of reality inter-playing with one another, and a variety of organs of society that present those convictions and perceptions to one another. The control of the perception of reality by one arm of government would represent a departure of the most fundamental kind from those convictions that are the base of our Parliament, our democracy and our society.
On these Benches, it is very hard not to feel a great deal of empathy with the Home Secretary in his position. I dare to say that we have some understanding of what it is like to be a person with a mission, and we have some understanding of what it is like to find that mission apparently frustrated by a very peculiar network—one that is hard to understand—of authorities and powers in an institution. The Church of England knows about that very well. Empathy with that frustration leads us to say that out of our corporate experience—not out of my personal experience—has also come a wisdom of the need for some separation of powers. It is not conducive to the common good—to the discovery of reality, truth, beauty or anything else—for power to be vested in one part of the government and authority of any institution, least of all our country.
I therefore want to suggest in all humility to the Home Secretary that his sense of mission is entirely justified—that his conviction that the victims of crime need our protection as much as they have our concern is absolutely right. However, the way forward in discovering how to implement that mission must include a respect for the variety of perceptions and functions offered to the different organs of our society. It may in the short term—although I doubt it—appear to be a protection of victims for powers to be assumed
by one arm of government, but in the long term we shall find ourselves living in a society in which none of us is protected or can feel content.From the Home Secretary's comment about the real world it followed, very logically, that he could go on to say that he wanted judges who helped the police to do their job. I do not. If the judges are to help the police to do their job, or bishops, company directors or politicians to do theirs, it will be by the judges doing their job. If those distinctions are not preserved, we shall be in peril, because the convictions from which I began, fundamental as they are, are also fragile. The past century has taught us a great deal about their fragility, and this century is continuing to teach us about their vital importance.
6.39 p.m.
Lord Ackner: My Lords, almost seven years ago, while only a shadow of what he was to become, the Lord Chancellor initiated a debate on the selfsame subject. It had approximately the same number of speakers as today's debate; but the allotted time was four and a half hours. Today, we have only two and half hours. Of necessity, I must concentrate on only a small—but very important—part of this subject matter.
The Lord Chancellor believed the 1996 debate to be "timely", coming as it did,
- "when the country must believe that there is an unprecedented antagonism between the judges and the Government".—[Official Report, 5/6/96; col. 1254.]
It must be common ground that that precedent has been swiftly overtaken. We have currently the unprecedented hostility within government—with the Lord Chancellor, very rightly, upholding the rule of law and in particular the obligation of the judges to apply the provisions of European human rights legislation, whose incorporation into English law the Lord Chancellor, pursuant to government policy, enthusiastically sough, and, on the other hand, the Home Secretary criticising the judiciary "for undermining democracy" and being "out-of-date"—criticism which related specifically to the Lord Chief Justice, who very recently issued guidelines in murder cases.
The House of Lords recently decided, applying the European legislation, that the Home Secretary is acting unlawfully in seeking to play a decisive role in fixing the period that those convicted of murder must spend in prison. So frustrated is the Home Secretary at being deprived of this power (a deprivation long advocated by this House) that he is proposing in the Criminal Justice Bill, shortly to be considered by this House, to hobble judges to the imposition of minimum terms from whole life to 14 years depending on his subjective assessment of the seriousness of the categories of murder he has specified.
In so doing, he has shown: first, a profound disagreement with the former views of his department, which he has in no way sought to justify; secondly, a total lack of confidence in the Attorney-General's power to evaluate the adequacy of the length of time
murderers should be confined; and, thirdly, a total lack of confidence in the willingness of the Court of Appeal to substitute the just sentence in cases where the original sentence was unduly lenient.In the limited time available I shall deal with those three points seriatim. As regards previous policy, the 1990 White Paper issued by the Home Office entitled, Crime, Justice and Protecting the Public, states:
- "it is not the Government's intention that Parliament should bind the courts with strict legislative guidelines. The courts have shown great skill in the way they sentence exceptional cases. The courts will continue to have the wide discretion they need if they are to deal"—
- "justly with the great variety of crimes which come before them. The Government rejects a rigid statutory framework on the lines of those introduced in the United States, or a system of minimum or mandatory sentences for certain offences. This would make it more difficult to sentence"—
- "justly in exceptional cases. It could also result in more acquittals by juries, with more guilty men and women going free—
- "unjustly as a result".
Under Section 36 of the Criminal Justice Act 1988, if it appears to the Attorney-General that the sentencing of a person in a proceeding in the Crown Court has been "unduly lenient", he may, with the leave of the Court of Appeal, refer the case to it to review the sentencing of that person, and on such a reference the Court of Appeal may quash any sentence passed on him in the proceeding and in place of it pass such sentence as it thinks appropriate to the case.
Murder cases cover a very wide spectrum of human behaviour—from terrorist attacks down to the mercy killing of a greatly loved close relative who is suffering intolerable pain from a terminal illness. But there are many more serious cases, such as rape, robbery and arson, to name but a few, and for such cases the court has the discretion to impose life imprisonment.
It has been decided in recent times that the Home Secretary has no part to play in such sentencing. The trial judge fixes what has been known as the punitive part of the sentence; that is, the minimum period that the offender is required to remain in prison before being eligible for consideration by the Parole Board. The Parole Board's decision on whether or not it is necessary for the protection of the public that the prisoner should continue to be confined binds the Secretary of State. In such cases the trial judge considers the matter in open court, permits representation on behalf of the offender, and his decision is appealable to the Court of Appeal. The Court of Appeal has the power, and has on very rare occasions used that power, at the suit of the Attorney-General or on its own motion, to increase the sentence from a determinate period to life imprisonment. There is, however, not the slightest indication that the frequency or success of the Attorney-General's
application has given rise to any suggestion that the judges are failing in their duty to impose the just sentence.We should now make the mandatory life sentence discretionary; or, if we retain it, we should assimilate it to the discretionery life sentence procedure which I have briefly described.
While fully aware that we send more offenders to prison and for longer than any other European country bar one, the Home Secretary, for party political purposes, seeks to exploit the public illusion that judges are soft on crime. That is grossly irresponsible. While accepting that in any democracy there will always be a measure of tension between the judiciary and the executive, the present position has become intolerable.
6.48 p.m.
Lord Borrie: My Lords, we are all well aware that the noble and learned Lord the Lord Chancellor, who initiated a debate on this subject in 1996, lost virtually no time after coming into office in the following year in introducing the Human Rights Bill. He is a proud and passionate defender of the values contained in the Human Rights Act, and of what he might describe as the sensible and balanced approach of the judges in adjudicating on challenges made under that Act since it came into force in 2000. He rounded off a public lecture delivered at the University of Durham last November by saying that the Act had,
- "breathed new life into the relationship between Parliament, government and the judiciary, so that all three are working together to ensure that a culture of respect for human rights becomes embedded across the whole of our society".
I strongly agree with the noble and learned Lord the Lord Chancellor, who also said in that lecture that in a democracy under the rule of law, it is not mature for Ministers to cheer judges when a win is secured in court proceedings and to boo when a loss is suffered. I have some sympathy—or, if I may borrow from the right reverend Prelate, some empathy—with Ministers who see policy decisions for which they are accountable in an ongoing way to Parliament and ultimately to the electorate, upset by unelected judges, who are, in a sense, not accountable to anyone and certainly have no responsibility for the ongoing work of developing policy in a particular field.
The grounds on which judicial review can be sought for ministerial decisions are, to use the straightforward and simple words of the late Lord Diplock, that a decision is tainted with,
- "illegality, irrationality or procedural impropriety".
I am an enthusiast for the growth of judicial review over the past 20 or 30 years, and I said so in that debate seven years ago, about which I have spoken. The noble Lord, Lord Rodgers of Quarry Bank, said then that all governments abuse power. I guess that he has the same view today as he had then. There needs therefore to be accountability on the part of governments, government departments and officials and agencies of all kinds, to an independent judiciary.
However, there are sometimes signs—it would be wrong if I ignored this entirely—that courts can overreach themselves. As other noble Lords have said, although it is very firm law that the judges are not supposed to question decisions simply on their merits, they therefore may not use irrationality as a basis for attacking decisions simply because they might disagree with them on the merits. They have not always been careful to maintain that distinction.
I shall not on this occasion repeat the examples that I gave in the previous debate because there is now a new factor, which is worth mentioning and which has expanded the scope of judicial review; that is, the Human Rights Act. The traditional basis for judicial review—if "traditional" is the right word for something fairly modern—of illegality, irrationality or procedural impropriety has now been expanded by the principle of proportionality. Ministerial decisions can be challenged for not being proportionate to the legitimate aims of the legislation under which the decision was made.
If we assume that most judges, Ministers and officials are reasonable people—many noble Lords may think that that is a big assumption—surely there is often scope for differences of interpretation about what the law permits as being a proportionate application of a statute. Under the rules of judicial review, it must be the judges' interpretation that prevails.
It is therefore of particular importance that judges exercise what has been termed by others—it is not my phrase—a measure of self-restraint. I fully agree with the noble and learned Lord the Lord Chancellor—again, I take his view from the lecture that I mentioned earlier—that the experience during the first couple of years of the Human Rights Act indicates that there has been a measure of judicial restraint—some might even refer to judicial deference—towards certain areas of governmental decision-making. In that regard, it can readily be seen that Ministers, officials or—dare I say it—regulators are thought to have some particular knowledge and experience.
Nobody will be surprised at judicial self-restraint in matters of national security, because that seems to have been so for a very long time. The cases show that the judges have also been willing to let Ministers determine, for example, planning policy and to apply it in particular cases without risk of judicial review, except for some extreme case of unlawfulness or procedural unfairness.
Because of the significant increment in judicial power granted by the Human Rights Act, together with the further development of the grounds for
judicial review, I sometimes wonder whether it is worth reviving the idea put forward by the noble and learned Lord, Lord Simon of Glaisdale, who, unfortunately, is not with us today. Seven years ago, he said that it might be useful to have administrative assessors sitting with the judge in what is now called the Administrative Court, to provide an element of expertise in administration.Judges as well as Ministers are capable of making decisions that do not achieve a sensible balance between the demands of executive policy and the public interest on the one hand and individual human rights on the other. In my view, judicial review in general and the Human Rights Act in particular are part of the worthwhile process of better ensuring that balance.
6.56 p.m.
Lord Lester of Herne Hill: My Lords, I cannot recall a time in the past half century when there was such a pressing need to defend our judges against ill-informed attacks, not only from one section of the media but, unfortunately, from the present Home Secretary. I refer to attacks that are politically motivated and orchestrated; attacks against which the judges are unable to defend themselves effectively with help from spin doctors; and attacks against which the Lord Chancellor, because of an institutional conflict of interest, is unable to provide effective protection.
Forty years ago, judges were rarely called upon to decide controversial cases involving abuses of power by Ministers and public officials. In those days, relations between the judiciary and Ministers were cosy and cordial. There was a culture of mutual respect within the establishment. Judges were submissive lions beneath rather than beside the throne of government and sometimes more executive-minded than the executive.
Forty years later, our constitutional arrangements have been transformed, in part by an enlightened judiciary in developing modern principles of public law to protect the citizen against the abuse of public powers; in part by the incoming tide of European Community law; and in part by the Human Rights Act.
A judge once famously reminded us that justice is not a cloistered virtue. In a free society it is healthy for judges to face public criticism and debate. However, the way in which the Home Secretary and some tabloid journalists attacked Mr Justice Collins three months ago exceeded the bounds of legitimate criticism and threatened judicial independence. The criticism was unfair and ill-informed. It displayed ignorance at the highest levels of government, not only about what the judge had decided but also about our system of parliamentary government under law.
The judge gave the Home Secretary permission to appeal to the Court of Appeal. But Mr Blunkett could not contain his fury at losing the case. In the immediate wake of the judgment—I believe that it was on the very same day—and before its contents could properly have been digested by his advisers, still less explained to
him, he made his defiant statement on "The World at One" on BBC Radio 4, as my noble friend pointed out in his powerful introductory speech.Later, the Daily Telegraph reported that the Prime Minister is,
- "prepared for a showdown with the judiciary to stop the courts thwarting the Government's attempts to curb the record flow of asylum seekers into Britain. He has ordered new legislation to limit the role of judges in the interpretation of international human rights obligations and reassert the primacy of Parliament".
- "Frankly, I'm fed up with having to deal with a situation where parliament debates issues and judges then overturn them".
- "If public policy can be always overridden by individual challenge through the courts, then democracy itself is under threat".
The Lord Chancellor is a staunch defender of judicial independence, and I have no doubt that he made representations in private, but he certainly did not succeed in persuading the Home Secretary to end his attacks. Nor did the Prime Minister do so. It has been left to my noble and learned kinsman the Lord Chief Justice to do so today in what is a historic statement. It is highly regrettable that it had to be made.
Mr Justice Collins was in due course vindicated by the Court of Appeal, but by then the real damage had been done to the relationship between the Government and the judiciary.
The Home Secretary learnt nothing from the episode, as my noble friend noted, and he wrote that bellicose and ill-informed article in the Evening Standard. Incidentally, in that article he prayed in aid two distinguished jurists—Professor Sir William Wade QC and my learned friend and colleague, Michael Beloff QC—both of whom have confirmed to me that he lacked their support for his views. The next day Mr Blunkett was reported as having taken a sarcastic swipe at the Lord Chief Justice in a speech to the annual Police Federation conference and to have told them that he likes,
- "judges who help us and help you to do the job".
If democracy is under threat from anywhere, it is not from the judges but from a Home Secretary who infringes basic constitutional conventions and panders to the tabloid press and popular prejudice.
That is also true of Mr Blunkett's rhetoric about sentencing decisions. There is no objection to a sentencing council and sentencing guidelines, but there is to executive interference or coercion. There really is a dangerous slippery slope. Only a couple of weeks ago, the US Congress passed a law that will require a
report on any federal judge who sentences below the minimum in the sentencing guidelines to be sent to the Justice Department, no doubt so that Attorney-General Ashcroft may draw the judge's identity and conduct to the attention of the Congress. The Home Secretary has not gone so far—at least, not yet.As the right reverend Prelate the Bishop of Worcester said so well , it is not the function of the judiciary to help the Home Secretary or the police, but to be impartial judges protecting the citizen against the abuse of state power and upholding the rule of law.
It is 40 years since Professor HLA Hart warned, in Law, Liberty and Morality, against the fallacy of what he described as "moral populism"; namely, that the majority have a moral right to dictate how all shall live. Professor Hart wrote;
- "This is a misunderstanding of democracy which still menaces individual liberty . . . The central mistake is a failure to distinguish that acceptable principle that political power is best entrusted to the majority from the unacceptable claim that what the majority do with that power is beyond criticism and must never be resisted".
The Home Secretary's brand of judge-bashing, with its class-based undertones, is both unfair and misconceived—a form of official bullying. It encourages a culture of disrespect for the independent judiciary, when the Home Secretary should use his great office to encourage respect for human rights and the rule of law. Perhaps I may say, respectfully, that I hope the Prime Minister will say to Mr Blunkett what was once said by another Prime Minister, Clem Attlee, to Harold Laski: that "A period of silence from you would be welcome". That would enable the Home Secretary to reflect on the wise advice of the right reverend Prelate the Bishop of Worcester, which I will always remember.
7.4 p.m.
Lord Lloyd of Berwick: My Lords, like all noble Lords, I am grateful to the noble Lord, Lord Rodgers, for initiating this important debate. It is a topical debate for reasons which are well known to us all. I do not intend to go into the more topical matters, already fully covered, in particular by my noble and learned friend the Lord Chief Justice, because this is a golden opportunity to consider the more general question of principle concerning the relationship between all three branches of government.
I want to start with the so-called principle of the separation of powers, a subject which is open to grave misunderstanding. I say "so-called principle" because the principle has never applied in the United Kingdom in a way that it does in France and the United States. The great difference between ourselves and the French is that they start with an abstract principle, most famously stated by Montesquieu, and then apply it rigidly like a straitjacket.
We in this country have always distrusted abstract principle. We prefer to go by what works well in practice. Alexander Pope said it all in,
- "For forms of government let fools contest;
- Whate'er is best administered is best".
Then take the relationship between the legislature and the judiciary. The origin of the House of Lords as the final Court of Appeal is that the litigant could petition the Queen in Parliament. Since in days gone by—perhaps happily—there were not so many experienced lawyers in the House of Lords as there are now, Parliament summoned all the judges to advise it on the particular point in question. But it was the House of Lords, not the judges, which made the decision. Again, that worked well until more lawyers with experience were needed in the House of Lords. So the Government created Baron Parke, the first Lord of Appeal in Ordinary.
There was a good deal of resentment at that time, but only because the House of Lords did not like the idea of life peerages. We have now become used to life peers, so that objection no longer lasts. There was never any objection to the thought that Baron Parke—Lord Wensleydale, as he became—was in some way out of place in this body as a part of the legislature.
So I ask: is there any objection now to judges, more particularly retired judges, taking part in the House of Lords? Even now there are part-time judges sitting in the House of Commons. They are called "recorders". No objection seems to be raised to their sitting in the House of Commons and as part-time judges. So is there really any reason why more senior judges should not sit in the House of Lords? To that I answer no, provided always they exercise all proper self restraint. If they have taken part in a debate, obviously they will not be able to sit subsequently in a case in which that particular issue is raised. So historically there was never any separation of powers between the legislature and the judiciary. I see no reason to introduce that now for the sake of some abstract theory.
I turn to the judiciary and the executive. Here the separation of powers is absolutely vital. And why? Not because of some abstract theory, but because it is the function of the judges to stand between the individual and the executive. The writ of habeas corpus is an obvious example. But habeas corpus is only one aspect of the matter. Whenever Parliament grants powers to Ministers, as it does so frequently, it is the function of judges to ensure that Ministers keep within the powers that they have been granted. In the area of administrative law it is the most important function that we have. We do it by judicial review.
It must be irritating—we all accept that—for Ministers, including the Lord Chancellor, to be told that they have acted unlawfully, but that is the very essence and heart of the rule of law. It is bound to create friction. Look at the friction that was created between President Roosevelt and the Supreme Court at the time of the New Deal.
Because of that risk of friction it is essential that both sides—I hate to use the word "sides" in this context—should act with the maximum of self-restraint and good will. It is essential that judges should realise, as I believe they do, that the Government have a job to do. It is essential that government should realise that judges have a job to do. I agree very much with what the right reverend Prelate said in that respect.
Of course Ministers will disagree with the decisions of judges from time to time, but when they do, it simply does not help to say—please do not let them say—that the judges are out of touch. We are not out of touch. We have no axe to grind at all other than to ensure that the law is enforced.
7.12 p.m.
Lord Plant of Highfield: My Lords, in 1941, in what subsequently became a much cited letter, a High Court judge wrote to Lord Atkins complaining that judges, far from being lions under the throne, as envisaged by Francis Bacon, had been reduced to squeaking mice under a chair in the Home Office. I doubt very much that my right honourable friend the Home Secretary or for that matter most of his predecessors over the past 20 years would regard them as squeaking mice and it is clear that the relationship between the judiciary and Parliament in both its legislative and its executive functions is now a matter of considerable controversy. For that reason I congratulate the noble Lord, Lord Rodgers of Quarry Bank, on his Motion, although its very timeliness is itself a cause for concern as it shows that things are not as they should be.
I want to suggest that current controversies are a symptom of something rather profound. It is important that what is usually called comity between Parliament and the courts should he preserved. Hitherto comity has been preserved, I think, by an assumption shared between the two institutions that Parliament made the laws and the courts applied them. In this sense it was what has come to be called a uni-polar concept of parliamentary sovereignty. This assumption no longer holds. In an indirect, and rather crab-wise way, I think we are moving to what Lord Justice Sedley has called a bi-polar concept of sovereignty,
- "of the Crown in Parliament and the Crown in the Courts—to each of which the Crown's ministers are answerable: politically to Parliament; legally to the courts".
We do not have to look very far to see how that has come about. It is through the growth and increasing scope of judicial review and the Human Rights Act. Both of those, which I support, impose constraints on the exercise of executive power and the question, particularly in respect of judicial review, is how the exercise of that power on the part of the courts is made legitimate. The fact is that many cases under judicial review and under the Human Rights Act are going to be politically controversial. So the question of legitimacy is important in the sense that the exercise of these powers may appear to conflict with the view of the Government which can lay claim to a democratic mandate.
In the early stages of judicial review I do not think that that mattered very much because the review was of actions taken by government and their agents as authorised by statute and the courts were therefore able to appeal to the express intention or will of Parliament in legislation. It could therefore keep closely to the concepts and principles embedded in the legislation while reviewing its operation in a particular case with respect to the various criteria under which the review could proceed.
However, it has been extended to the exercise of power in a much broader sense. The rub here is that the judges can no longer appeal in those cases to legislative intent to legitimise what they are doing. As ex hypothesi the judges cannot rest on legislative intent, what legitimates their capacity to review, particularly in relation to the somewhat elusive and difficult notions of rationality and proportionality?
In recent years in this context recourse has been made to the invocation of constitutional principles such as the idea of the rule of law in the Pierson case or an appeal to the basic right of access to the courts in the Witham case. One or two noble and learned Lords who sit in a judicial capacity in your Lordships' House have sought to make that point rather more generally and have not been slow in drawing the inference that the power of government has to be limited by principles of constitutionality as much as they would be in a polity with a basic constitutional document. I could give examples of that, but there is not time.
The defence of the use of such constitutional principles is not that they are based upon some kind of constitutional or jurisprudential theory, but rather that they are implicit in common law and in the legal and political traditions of the country. As far as that is the case I believe that it is a good thing and provides a good defence of the invocation of those kinds of principles.
That kind of characterisation of the role of judicial review would very much support the claim that we are now moving towards a bi-polar concept of sovereignty with government and indeed Parliament being limited by basic constitutional principles. Indeed it is not just constitutional principles, but what might be called constitutional substance, as the Thorburn case put statutes into an order of precedence which was not a disposition made by Parliament itself.
That of course is paralleled in the case of the Human Rights Act, particularly in relation to the strong construction requirement in Section 3 and the Section 4 requirement of the possibility of issuing a declaration of incompatibility. The noble and learned Lord, Lord Woolf, in the Poplar Housing judgment said that the judges should interpret the law in the context of the Human Rights Act and not legislate. "Amen to that", I say. But under Section 3 his judicial colleagues have in some cases moved towards the legislating rather than the interpreting end of that spectrum. I cannot go into the details, but the Mendoza case, the Offen case and a case arising out of the youth crime prevention legislation are examples of where the judges have read things into statutes retrospectively or changed the meaning of the words. In the Mendoza case they actually substituted words in the statute.
If we are moving towards a bi-polar constitutional democracy—something I welcome—it seems to me inevitable that judges will be put into controversial, political situations. They need to be very careful about their exercise of those powers and about the nature and sources of the principles that they use to guide them in those cases where there is no legislative intent to follow. They should indeed interpret and not legislate. They need to be trusted by the citizens of this country as they cannot in practice be made accountable to them.
The quotation from Francis Bacon with which I started said that the judicial lions should not check or oppose any part of sovereignty. If I am correct in following Lord Justice Sedley, the courts now share a degree of sovereignty. They need to be very careful indeed how they exercise that power in a democracy and what in fact will legitimise that exercise.
7.19 p.m.
Earl Russell: My Lords, first I thank my noble friend Lord Rodgers of Quarry Bank for initiating the debate. I recall the time when he was leader of our home affairs team, a role in which he was most conspicuously successful. It was a happy team in which I was proud to have the parts of spare man, extra and "Lords, Ladies and attendants".
The Home Secretary, on the other hand, was, I think, a little over the top when, in an article in the Evening Standard, he said:
- "Confidence in our criminal justice system is at an all-time low".
In 1388, all the judges were impeached and the Lord Chief Justice was executed. In 1641, after ship money, almost all the judges were impeached. In 1609, when King James I was arguing with Chief Justice Cooke, he threw a punch at him. I do not think that things have reached that pass yet. It illustrates a serious point; that in the first two of those cases the judges were in trouble for being too compliant with the executive; and in the third they were in trouble for being too uncompliant.
There has always been steering between Scylla and Charybdis. But, when I listen to people outside this House—and I include my street neighbours in Kilburn
as well as my academic colleagues—I hear a great deal more lack of confidence in the legislature and the executive than I do in the judiciary.Since coming to this House, I have acquired a great deal more understanding and affection for every part of our political establishment. The only one for which I have acquired an increased respect is our higher judiciary. It has earned that many times over.
On 5th June 1996 I spoke about judicial review. I shall not do that again. I have made many speeches about judicial review. If anyone wishes they are perfectly welcome to follow the American principle and read that speech into the record of today's debate.
This year I had the privilege to give the annual lecture at Stratford-on-Avon for Shakespeare's birthday. The play for the year was "Measure for Measure". The play is a classic debate about the nature of justice between Angelo and Isabella. It illustrates a philosophical dispute about what justice is, which is eternal. It stretches from Plato and Aristotle at one end of the story to the Home Secretary and the Lord Chancellor at the other. It arises from the fact that Shakespearean England had the mandatory sentence, which led to the application of what I have come to think of as "Bingham's law" after a speech made by the noble and learned Lord, Lord Bingham, on the Second Reading of the Crime (Sentences) Bill. He said that the attempt to abolish discretion in one place always led it to break out somewhere else.
The mandatory sentence is an attempt to abolish discretion. However, Tudor and Stuart courts and juries got around that by the use of verdicts, which usually undervalued the stolen goods to bring them below the limit of selling, or by the grant of benefit of clergy.
The debate between Angelo and Isabella in "Measure for Measure" is about mercy. In the specific context of the Shakespearean courts, which practised very much the kind of principles that Isabella and Portia were arguing, the debate is about how far sentences should be based on the details of the particular case and how far they should be based on a general formula. Angelo of course was an advocate of the formula. Some of his lines sound very familiar.
- "We must not make a scarecrow of the law".
- "I show it most when I do justice. For then I pity those I do not know".
That is one example of a deliberate attempt to apply discretion to the facts of the case, which is the foundation of the doctrine of mercy for which Isabella pleads.
This attention to the individual facts of the case is a philosophy to which I have personally a profound devotion. But one cannot settle public policy simply on one's own devotions. So we need to think about a dividing principle. Until we have justice done by a formula coming out of computer and so long as we have courts hearing evidence, it must be the job of the judge who has heard the evidence to decide on the statement. One cannot understand what is going on in a court case without reading a transcript. Incidentally, I agree with the noble and learned Lord, Lord Woolf, about the importance of reading judgments. So that must be a matter for the courts.
The duty of the executive is to catch criminals. If it were a little better at doing that, it would be in a rather better place to criticise. When Lord Jenkins of Hillhead was Home Secretary, I remember saying:
- "At last we have a Home Secretary who understands that if you want to deter crime, you don't hang 'em, you don't flog 'em, you don't shoot 'em, you catch 'em".
The duty of legislature is of course to lay down general rules because one cannot have discretion without general rules. One returns to the practice of King John before Magna Carta when he deprived the man of his lands, in the words of the official record,
- "because we were cross with him".
One must have the general principles and they must interact with the discretion. How that should be done is best set out by the noble Lord, Lord Renton, in the Renton report of 1974 on the preparation of legislation; that Parliament is to lay down the general principles; it is to do it in a general form which allows the statute, as one allows the child, to grow up and not be kept perpetually in leading strings. That was the answer of a good parliamentarian and a good lawyer. I think that it should stand.
7.27 p.m.
Lord Hope of Craighead: My Lords, for reasons which are no doubt obvious to your Lordships, I was not at all certain that it would right for me as a serving Lord of Appeal in Ordinary to contribute to this debate. The first part of its subject matter—the relationship between the judiciary, the legislature and the executive—is so closely related to the work on which I and my colleagues are engaged day in and day out that I do not think that I should say anything about it, although I have listened with very great interest to what has been said by so many noble Lords on this most important topic.
However, the second part—judicial participation in public controversy—raises a number of quite different issues on which I feel able to contribute some thoughts which may perhaps be of interest. So it is on that limited chapter that I wish, in these few remarks, to concentrate.
I should explain that my qualification for making these remarks is that I was, for seven years, between 1989 and 1996, Lord President of the Court of Session and Lord Justice General for Scotland. Those combined offices impose on a single judicial figure, which for that period happened to be me, the responsibilities which are borne in England and Wales by the Master of the Rolls and the Lord Chief Justice. The holder of these offices is the head of the judiciary in Scotland. That position brings with it, of course, numerous responsibilities, one of which is that of representing the judiciary as a whole in discussions with the executive.
When I began my period of office the practice was for these discussions to take place very largely behind closed doors. There was inevitably much to discuss. Sentencing policy was a regular topic. The administration of the court system was another. Politics came into it, of course, because I was engaging in discussions with the executive. But I did not see myself as engaging in political or public controversy. I believed that I was putting forward thoughts and ideas on behalf of the judiciary in order to assist the executive in policy making. That was the reality of co-operation, of which the noble and learned Lord, Lord Woolf, spoke.
However, as time went on, I sensed that there was a distinct and increasingly pronounced change in the atmosphere. Criminal justice had already reached the top of the political agenda in England, and it was not long before that development was felt in Scotland, too.
At about the same time, the late Lord Taylor of Gosforth became the Lord Chief Justice of England. He was already a prominent figure, well used to dealing with the media, due to his work on safety at football grounds. He adopted a quite different approach to the media from that which had been adopted by his predecessors. I think it no exaggeration to say that, with much skill and great charm, he brought the judiciary out into the open. He sought to de-mystify the judges, and his personality was such that he made great strides forward in that endeavour. Needless to say, I felt that, in my small way, I had to do my best north of the Border to follow his example.
I suppose that it was inevitable that putting a more public face on the judiciary would attract the attention of the media. The fact that we were willing to be approached and, from time to time, to be photographed and to give interviews was welcomed. I believed then, and I still believe, that that was the right thing to do and that we all owe a great deal to Lord Taylor of Gosforth for his initiative. But there is no doubt that it led, step by step, to the position where much of the debate which in my early days was conducted behind closed doors now takes place in the open, and—far too often, no doubt—is conducted through the media. I was already conscious before I left office as Lord President that important policy initiatives of which I had had no previous notice were being announced to the media, and that I was being called upon by the press to react to them on behalf of the judiciary.
What then are we make of the situation in which we now find ourselves? The first point that I should like to emphasise is that judges do not seek to engage in public controversy. The initiative does not lie with them. Politics is not their business, nor is it their business to engage publicly—off the Bench, that is—in controversy. Their business lies in judging such cases as may be brought before them to the best of their ability. On the other hand, issues do from time to time arise that affect their work and it is inevitable, as the public have such a strong interest in those issues, that they become the subject of public controversy.
Judges would not be human if they did not have opinions on those issues. I felt that it was my business as Lord President to consult the judges, to listen to what they had to tell me and, as best I could, to represent them in such discussions as were thought necessary. My function, it could be said, was administrative and representative—not judicial, in the strict sense. The advice that I gave to judges at all levels, and especially to sheriffs, the county court judges, who often felt especially vulnerable to public criticism, was that they should not attempt to deal with those issues themselves. They should make their views known to the senior judges through whom, in a suitably detached way, their concerns might be expressed.
Inevitably, that approach focuses attention on the Lord President—the Lord Chief Justice—as the judges' representative. What it achieves is detachment. It insulates the vast majority of judges from that process, because it is through the Lord Chief Justice that the views of the judiciary as a whole are communicated. The value of that approach should not be underestimated.
The second point is that the perceived participation of the judiciary in public controversy is just the tip of an iceberg—perhaps an unfortunate metaphor in this most heated of contexts—which is represented by the extent to which judges at all levels engage with the executive, at its invitation, in issues that are developed through discussion and in due course become government policy. It is to the credit of the executive, and of the noble Baroness, Lady Scotland, in particular, that the judiciary is widely consulted on a whole range of issues of concern to government. That exercise took up a good deal of my time when I was Lord President, and I have no doubt that that is just as true today as it was in my time.
I suppose that it is inevitable that some of that process becomes known to the public. Just last weekend in Scotland, extracts from the response of the judges to a government consultation paper on the treatment in court of child witnesses were published in a Sunday newspaper. The article was accompanied by a library photograph of the judge who had prepared the response. The views in the response were portrayed as controversial, as no doubt they were. But it was not the judges who had asked for that to be published, nor who had sought pubic controversy.
We could, no doubt, reverse the whole process towards greater openness which a succession of judges including the present Lord Chief Justice have been pursuing for more than a decade. We could close the shutters and turn out the light. Whether that would entirely remove judges from participation in public controversy is debatable. It is questionable whether it would be worth while. I for one would not want to go down that route at all.
The value of the representative function that senior judges, the Lord Chief Justice in particular, perform on behalf of the judiciary is invaluable. For myself, I applaud the fact that the noble and learned Lord, Lord Woolf, has contributed to this debate, and I am sure that I am not alone in expressing my profound admiration for what he has done and is continuing to do on the judges' behalf in that most demanding of all judicial roles.
7.35 p.m.
Lord Smith of Clifton: My Lords, I, too, congratulate my noble friend Lord Rodgers of Quarry Bank on introducing this debate. It is timely, as are all other debates in your Lordships' House on the constitution. Those need to be held at frequent intervals, in view of the current state of constitutional disrepair into which the UK has been allowed to drift. Running repairs are urgently needed but, if they are not forthcoming, there need to be regular reviews, such as this debate affords.
I wish to cast a wider look at the topic of the Motion, as other noble Lords have done. The character of the constitutional system of the UK has changed drastically in the past 25 years in both its formal and its informal composition. Things are now so out of kilter that the contemporary situation is parlous.
The most serious problem is the lack of any radical reform of the House of Commons. That colours everything. It should be the main mechanism for holding the executive to account, which it has not been for some time now. The Commons should be at the operational heart of the constitution. Recent Back-Bench revolts have suggested themselves to some commentators as signs that the Commons is reasserting itself. Welcome though some of those revolts have been, they are merely sporadic outbursts. They serve simply to tease the hopes of those of us who are fully paid-up members of the constitutional reform movement.
Unbridled presidentialism is now the operational basis for British government. That is forcefully demonstrated in the recent report, Parliament First, subscribed to by a cross-party group of senior MPs. Unless the relatively moderate reforms that it proposes are implemented—and there is little likelihood of that—the relationship between the executive and the legislature will remain lopsided.
Constitutional deterioration has come about largely because of the mind set behind the prevailing paradigm in which modern British government operates. Its mood can be gauged by some of the
statements made by members of the governing elite. I shall cite three examples. A recent head of the Civil Service observed that,
- "the constitution is what we do",
- "the age of representative democracy as we have come to know it, may be coming to a close".
- "regional headquarters, with headteachers being its branch managers".
Those quotations—I could cite many more—show how old principles and boundaries are being allowed to atrophy, to be replaced with targets, performance tables, benchmarks and the like. It should occasion no surprise that many of the old, formal institutions and conventions have been allowed to wither in favour of the burgeoning number of new, informal agencies. Task forces, hived-off executive agencies, quangos and tsars have increasingly assumed the tasks of government. No real thought has ever been given as to how those can be rendered accountable or their existence properly codified. There is a vital need to bring them within the constitution.
The chaotic character of the UK constitution and the growing weakness of the legislature have inevitably placed a greater responsibility on the judiciary to adjudicate on the actions of government. As the distinguished legal scholar, Dr Robert Stevens, has recently written in his book, The English Judges, because of the increasing centralisation of power under all governments,
- "the judges have grown more important because others have become less so".
The judiciary has, perforce, been brought into contentious issues that have led to a series of clashes between judges and Ministers. As other speakers have said, this has been particularly noticeable in the area of sentencing policy. It has reached a crescendo with the present Home Secretary, who seems to rail daily against what he sees as the irresponsible interference of the judges in his work. He is threatening to limit judicial discretion by imposing mandatory sentences for certain classes of crime, and other provisions for fettering judges' power. His public criticism of Mr Justice Collins' ruling against the Home Office on asylum law prompted me to table a Starred Question on the matter. Frankly, it was disproportionate and quite uncalled for. The contretemps last week between the Home Secretary and Sir Oliver Popplewell was as unprecedented as it was unseemly.
There is a certain historical inevitability about these ministerial/judicial clashes. They arise from the fact that constitutional modernisation has nowhere near kept pace with the ever-burgeoning powers and agencies of the state. They will continue until we contrive a satisfactory new settlement regarding the judiciary's constitutional role in contemporary circumstances. The need urgently to address these questions is paramount. One commends the proposals advanced by the noble and learned Lords, Lord Bingham and Lord Steyn, in this regard.
Another factor making for the historical inevitability of these clashes is the corporation mindset to which I referred previously. It is one that is oblivious to matters of form, established manners and protocols. Changes and modernisation are assuredly needed from time to time, and old ways of doing things may need to be abandoned. But any replacements should still be put into an ordered, coherent framework that facilitates openness and public accountability. Recent governments have utterly and wilfully been disdainful of the basic principle of democratic constitutionalism.
Successive British governments have never reflected in anything like a holistic way on the constitutional implications of their actions. They delude themselves into thinking that state institutions and practices evolve in a fashion consistent with the theory of Edmund Burke. Such muddling through simply builds up into a huge muddle, which is precisely what our constitutional arrangements are in today. Those arrangements need to be looked at in the round, preferably by a Royal Commission; but that will never happen. I would even settle for a task force, but that is equally unlikely. As it is, we shall have to make do as best we can with regular debates, such as the one being held tonight.
It is a huge irony that while British governments preach the virtues of representative democracy and the rule of law abroad, they neglect to attend to their refurbishment at home.
7.42 p.m.
Lord Goodhart: My Lords, I, too, am most grateful to my noble friend Lord Rodgers of Quarry Bank for introducing this important and highly topical debate—a debate that is indeed even more topical than it was when the Motion was originally tabled.
What is the proper role of the judiciary? I believe that the most important part of the role of members of the judiciary is as protectors of the rule of law. The rule of law is an absolutely vital element in any civilised society. It means a system of making laws that is rational, transparent and not arbitrary. It means a system of enforcing laws and protecting rights that is fair, open and accessible. We cannot have a rule of law without a judiciary. The judges are people who enforce the laws and, to some extent, make them through their interpretation of statutes and through the development of common law.
We can have the rule of law without democracy—that was true, for example, of the old British Empire—but it is surely not possible to have democracy without
the rule of law. Society without the rule of law ceases to be a democracy. That is why in a true democracy the elected representatives of the people must recognise that there are limits on their powers. That was recognised by the founding fathers of the USA when they set up an independent federal judiciary—a judiciary that was independent because its members had life tenure and because they were not answerable to Congress or to voters for their decisions, something that the present Administration seem to be keen on reversing.The American Supreme Court, as interpreter of the Constitution, can declare Acts of Congress void as being unconstitutional. In the United Kingdom there is no power in the courts to declare Acts of Parliament unconstitutional. But the corollary of that is that the legislature and the executive must exercise self-restraint in exercising their powers. Politicians must not challenge the rule of law, even if there is public support for their doing so. That way lies the tyranny of the majority, which can be as bad as the tyranny of a single tyrant.
I call attention in particular to what Professor Herbert Hart said, as quoted by my noble friend Lord Lester of Herne Hill. That is why I agree with those speakers in the debate who have been critical of the Home Secretary. So far, no speaker has supported him, with the limited exception of the noble Lord, Lord Borrie. The noble Lord, Lord Plant, was absolutely right to point out that self-restraint is required on both sides. I wait with interest to hear the voice of the Lord Chancellor's Department in the person of the noble Baroness, Lady Scotland.
I believe that it is fair to say that the Home Secretary has not himself expressly challenged the rule of law, but by his attacks on judges—some of them, unfortunately, highly personal—he has stirred up a populist clamour against the judiciary. He is adding his voice to a campaign that is already being generated by part of the tabloid press. I accept that the noble and learned Lord the Lord Chancellor has defended the judiciary, as we would expect of him. We are grateful for that. I agree with the noble and learned Lord, Lord Morris of Aberavon, that the role of the Lord Chancellor should change. However, that is an issue for debate on another day.
It is true that judges are far more interventionist than they were, say, 40 or 50 years ago. When I was a law student, I remember being taught about the ancient remedies known as the writs of certiorari and mandamus, but those impenetrable Latin names have now been swept away and replaced by judicial review. The judges are, rightly, more active in challenging executive decisions that are irrational, reached by an incorrect procedure, or made outside statutory powers. But that inevitably brings judges into the political battlefield. Judicial review and the role of the judiciary is, therefore, a legitimate subject for public debate, but that debate must be rational and restrained; and it must not be conducted through megaphones.
So far, I have spoken about judges as objects of public controversy, but what about judges speaking on controversial issues? The noble and learned Lord, Lord Hope of Craighead, made an extremely valuable contribution on this point. We should remember that the opening-up of this right of judges to speak in public was due to the efforts of the noble and learned Lord, Lord Mackay of Clashfern, who scrapped the Kilmuir Rules, which prevented judges from speaking out in public.
It is entirely appropriate and welcome that two serving members and two former members of the senior judiciary have spoken in tonight's debate. They have all made important contributions. But I am sure the others will forgive me if I say that the contribution made by the noble and learned Lord the Lord Chief Justice was of quite exceptional importance. It is one to which I hope many politicians in this country—not the Home Secretary alone—and the press will pay very close attention.
As noble Lords will know, the policy of my party is that the Appellate Committee should be replaced by a supreme court which is separate from your Lordships' House. But, again, that is a matter for a different debate. While the present system continues, it is right that serving members of the judiciary should use your Lordships' House as a forum to express views that directly concern the role and functions of the judiciary or that engage the rule of law.
I should add a footnote: there is an important boundary in this matter that should be observed by serving judges who are Members of your Lordships' House. They should think carefully about speaking on political issues, especially where speaking out might disqualify them from sitting as members of the Appellate Committee when it considers those issues. But, on issues such as those covered by this debate, leaders of the judiciary not only may, but must, speak out.
It is vital that politicians respect the judiciary, which has an essential role as guardian of the rule of law. Intemperate attacks on the judiciary by people in authority will undermine that role. That must not happen. I hope very much that this debate will contribute to ensuring that it does not.
7.51 p.m.
Lord Hunt of Wirral: My Lords, this has been a memorable debate, with some outstanding contributions. We owe a great debt of gratitude to the noble Lord, Lord Rodgers, for introducing the topic. Having spoken on the subject in authoritative terms almost exactly seven years ago, he did so again today. I have compared the two speeches. The one phrase from his speech seven years ago that the noble Lord left out—no doubt he was daunted by the array of lawyers in front of him—was:
- "Good lawyers almost always make bad politicians".
It is a timely debate, as the noble Lord, Lord Smith of Clifton, and the noble Lord introducing the debate, told us. Indeed, the word "timely" was used by the noble and learned Lord the present Lord Chancellor when he introduced the debate on 5th June 1996.
I have been fascinated by the debate about the separation of powers. We have had some very interesting speeches. The noble and learned Lord, Lord Lloyd of Berwick, gave the historical perspective. However, he ended up by referring to the "so-called" principle of separation of powers, and I can understand why. The noble Lord, Lord Plant of Highfield, who has considerable experience in these matters, also delivered a very interesting speech. He ended by reminding us that judges should interpret and not legislate. That has been very much a theme of the debate.
The noble and learned Lord the Lord Chancellor, in opening the previous debate, said:
- "Parliament makes the laws, the judiciary interprets them and the judiciary develop the common law. Parliament also confers all manner of powers on the executive and other bodies, and it is for the courts to ensure that those powers are neither exceeded nor abused but exercised lawfully".
- "The judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that judicial power".
The noble Earl, Lord Russell, put the situation in historical context. He also delivered an entertaining speech, which I enjoyed enormously.
On the whole, it is accepted that the doctrine of separation of powers works well, although, as the noble and learned Lord reminded us, its strict application is not always possible. A slight blurring at the edges often occurs, as several noble Lords commented. We are now in a situation where the edges have been blurred too much.
The noble Lord, Lord Goodhart, reminded us of the importance of the rule of law preventing the tyranny of the majority. I am sure that he did not refer only to the media and the tabloid press; we must all exercise some restraint.
Much has happened since 1996. We have had the Human Rights Act 1998. The noble Lord, Lord Borrie, reminded us how the noble and learned Lord the Lord Chancellor fought so hard to introduce that legislation. As the Minister will know, I have on many occasions paid tribute to the reforming zeal of this Lord Chancellor. We all benefit considerably from that.
We are of course in the real world. It was also very interesting to hear the discussion on the nature of reality led by the right reverend Prelate the Bishop of Worcester, for which we are all very grateful. We all try to live in the real world, but sometimes we do not see it quite as clearly as the right reverend Prelate does. In the real world, I wish that more people would listen to the words of the noble Lord, Lord Dholakia, when he
said that the framework of sentencing must allow judges to dispense justice. How important a contribution that was in this debate, with all the noble Lord's experience. The noble Earl, Lord Russell, reminded us that the prime objective must be first to catch criminals before we engage in great esoteric debates on sentencing.I am afraid that most of the debate seems to have been directed against someone whom I know very well—David Blunkett. He was my pair in another place for many years, and I have tremendous respect for him. It probably should not come from me, but no other Conservative Front Bench Members are present, so I shall speak in the hope that they do not read my remarks in Hansard: I think that he is a very great man in many different respects. If we are attacking the Home Secretary, we are attacking the Government, because I know many Cabinet Ministers share the Home Secretary's views. So we should not isolate the Home Secretary as we have done perhaps too much in this debate.
The last straw for David Blunkett appeared to be the recent controversy over the Government's ending of the presumption of support for in-country asylum applicants. The Home Secretary launched an appeal against the High Court's ruling that the policy breached applicants' human rights. He told the BBC's "World at One" programme:
- "Frankly, I'm fed up with having to deal with a situation where Parliament debates issues and the judges then overturn them".
The noble Lord, Lord Rodgers, had very good advice: stay silent, stay calm, and take a more mature view of these important issues. The noble Lord, Lord Lester of Herne Hill, said that a period of silence would be welcome. The noble and learned Lord, Lord Morris of Aberavon, said that surely there must be a better way for the Government to get across their views. I hope that we will have a chance to debate more extensively some of the ideas put forward by my noble predecessor as Secretary of State for Wales, Lord Morris of Aberavon, as he has great experience of these matters.
The most important contribution was that of the noble and learned Lord, Lord Woolf, and I am so glad that he said what he did. I shall now willingly give up a couple of minutes of my speech to allow the Minister her full speaking time. The noble and learned Lord expressed judicial concern about the tone and content of the debate. I say to the Minister that I hope the Government are listening.
8 p.m.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I thank the noble Lord, Lord Rodgers of Quarry Bank, for introducing this debate so eloquently and I endorse what has just been said by the noble Lord, Lord Hunt of Wirral: it has been most memorable. After having listened to the heat of the debate, I want also to thank the noble Lord for reminding us that my right honourable friend the Home Secretary is indeed, in so many ways, a great man.
The issues we have discussed and debated today are of fundamental importance. That has been brought home to us not only through this debate, but also by the experiences over the past 13 years or so of those countries seeking to rebuild their democratic institutions after decades of absolutist rule. An independent judiciary in a healthy relationship with the other constitutional powers is one of their first goals, and one of the hardest to achieve. We take it for granted at our peril. I want to assure noble Lords that this Government jealously guard and honour that independence, as is proper.
Much of the debate has been critical of my right honourable friend the Home Secretary. However, he may well be grateful for that because he has said that he would like to "stimulate debate". He has certainly achieved his goal this evening. The right reverend Prelate the Bishop of Worcester expressed empathy and warmth of understanding for my right honourable friend and I thank him for that. He can rest assured that power is not vested in one part of the institution of government. It does indeed demand and receive respect for difference of perception, and that is honoured. The distinction to which the right reverend Prelate referred will be preserved and its fragility respected. I thank also my noble friend Lord Borrie for the sense of balance that he brought to the debate. It was good to hear a noble Lord on these Benches echoing the cool and calm judgment that the noble Lord, Lord Rodgers of Quarry Bank, sought so much to exhort.
It is right to acknowledge that there is nothing wrong with vigorous and healthy debate, in this area or in any other. It takes place against a background which is absolutely clear, in which the independence of the judiciary is acknowledged, respected and valued by government as a whole—and by my right honourable friend the Home Secretary as much as by any other member of the Government—as one of the cornerstones of our liberty. Many would think it more worrying if judges always felt obliged to agree about everything with my right honourable friend the Home Secretary, or vice versa. Luckily, we seem to be in no immediate danger of that.
The noble Lord, Lord Lester, my noble friend Lord Plant, the noble and learned Lord, Lord Lloyd, and not least the noble Earl, Lord Russell, all referred to the historical ebbs and flows of the relationship. I looked forward with joyful anticipation to the contribution of the noble Earl because I was confident that he would bring to your Lordships a certain acuity
in terms of the historical perception. He was right to remind us that, compared with the position in 1388, things really are not that bad. My right honourable friend understands the need to catch criminals. To that end, I should like to reassure the noble Earl that this Government have rather a good record of doing that and I think we are becoming increasingly good at it.Some time ago the Secretary of State, during a period of heightened concern about national security, issued a warrant authorising the security services effectively to burgle the house of a suspect, search for evidence and carry away anything useful they might find. The practice was believed to be authorised by legislation and had been followed for some years previously. However, in the particular case, the suspect sued for trespass. The Lord Chief Justice eventually found that the Act did not have the meaning the Government said it had; that the Secretary of State had no power to issue such a warrant; that considerations of national security and the practice of his predecessors were not enough to give him the power he claimed; that his agents were indeed trespassers; and that his purported search warrant was wholly illegal and void.
I can reassure noble Lords that I do not refer to the noble and learned Lord, Lord Woolf; it was the Lord Chief Justice, Lord Camden. The Secretary of State was the Earl of Halifax. The relevant legislation was the Constables Protection Act 1750. The year was 1765 and the case, as some of your Lordships will doubtless remember—at second hand, at any rate—was that of Entick v Carrington. So while some things may have changed over the quarter of a millennium that has passed since then, others have very definitely stayed the same.
The noble Lord, Lord Lester, spoke of the "cosy cordiality" which characterised the relationship between the executive and the judiciary 40 years ago. I hesitate to say that it may not always have been so described or experienced by those who lived and practised through that period.
Many issues were raised in the debate and I have only a limited time in which to respond. I shall address as many points as I can. First, however, I want to deal with three general issues.
I agree that the noble and learned Lord, Lord Woolf, made an important and powerful contribution, one which the Government take extremely seriously. I shall take this opportunity immediately to confirm to the noble and learned Lord that, when he referred to the five issues on which there was agreement between the judiciary and the Government, he was absolutely right about them. I shall say also that we are fortunate in having a judiciary that is not only well qualified and well equipped for its role, but carries with it the traditions of integrity and independence acquired during practice at the Bar or as solicitors. The noble Lord, Lord Dholakia, was right to say that our judiciary was held in high regard internationally—rightly so. Our judges are robust, and so they should be.
At the moment, the higher judiciary in this country—I say this with the greatest respect—is probably of the highest quality that we have ever enjoyed. Judges and magistrates are in the operational front line. Their daily business is resolving disputes that others have failed to crack, whether over alleged criminality, money or parental access. They see life,
- "red in tooth and claw"—
Secondly, there is the relationship between the judiciary and the legislature. In every good marriage, the partners complement each other. Like Beatrice and Benedick, they do not have the same view on every subject; there is a tension. I think that the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick, referred to that tension. But it can be a creative tension that keeps the relationship alive and vital. The absence of that tension might even be a symptom that all was not entirely well.
So it is between the three constitutional powers. All, to a degree, are jealous of their prerogatives, but they are required, in practice, to co-operate if effective government is to be delivered. Judges are sometimes accused of invading the legislature's turf. It is my experience that, on the contrary, they are very sensible of the respective constitutional roles. In 1980, your Lordships' House, in its judicial capacity, affirmed that it was the judges' duty to apply statutes, however unpalatable and whatever their perceptions of where the public interest lay. Lord Diplock pointed to the risk of judges straying beyond their constitutional role as interpreters of the enacted law. I join my noble and learned friend Lord Morris of Aberavon in quoting the noble and learned Lord, Lord Scarman. He said:
- "a judge must be obedient to the will of Parliament, as expressed in its enactments".
Lord Diplock also pointed out that legislation being considered by a court might have injurious consequences that Parliament had not anticipated when it was passed. However, he said:
- "if this be the case it is for Parliament, not the judiciary, to decide whether any change should be made to the law as stated in the Acts".
Much debate was provoked by Mr Justice Collins's decision in the case concerning the entitlement of asylum seekers to asylum support. This evening, the issue was raised by the noble Lords, Lord Lester of Herne Hill, Lord Windlesham and Lord Plant of Highfield, among many others. In his judgment, Mr Justice Collins said:
- "I made it clear that I could not go behind the words of the Act which Parliament had enacted. Whether the reasons which have led to its enactment are good or bad is not for me to decide".
- "I respect the role of our judges to interpret the law. But there has to be a balance between"—
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