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Lord Stoddart of Swindon: You were waiting for that, weren't you? The European Union constitution would have just been put on the table by Giscard d'Estaing and was due for discussion at the Thessalonika summit on 20 June. That might have some bearing on the whole strange affair.
I raise this as a possibility because Part 3 of the constitution, in Articles 171 to 175, makes provision for wide-ranging harmonisation and co-operation in judicial and criminal matters and provides for a European public prosecutor. Perhaps that also throws some light on the proposal to change the name of the Crown Prosecution Service to the public prosecutor. It seems strange that these things are coincident
There is no time at present to go into the details, but perhaps in his winding-up speech the Lord Chancellor could say whether the impending European constitution had any bearing on the Government's decision to fundamentally alter our judicial system and abolish a post that has been around for over 1,000 years
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. He brought Europe into the debate. Is he aware that the really relevant part of Europe is in the European Convention on Human Rights, which the Attlee government were first to ratify, that provides that courts must be independent, impartial and established by law? Is the noble Lord aware that a couple of judgments at the European Court of Human Rightsone against the United Kingdom and one against Luxembourghave indicated that there cannot be someone like the Lord Chancellor wearing three hats and exercising judicial power. Is he aware of that?
As I was saying, this is an extremely bad and ill timed Bill. It is a constitutional outrage that ought not to proceed further without the most close and searching scrutiny as to the reasons for it, for the haste in preparing it and bringing it forward and for the unseemly rush to get it onto the statute books. There must be close scrutiny of whether it will improve judicial efficiency and fairness, will harm the legal and constitutional right of subjects, and how it will impinge on the overall constitution of Britain. I oppose the Bill, but if the noble and learned Lord, Lord Lloyd of Berwick, puts his amendment to the vote this evening, I shall almost certainly vote for it.
Lord Maclennan of Rogart: My Lords, although I have not spoken on this proposal before, I shall be brief, recognising the number of noble Lords who have already spoken and the number who have yet to speak. This debate has been more balanced than the previous debate in which the Government's proposals were considered. It is right to remind ourselves that a substantial number of the highest judges in the realm have openly supported the separation of powers as advanced in the Bill and by the Government as justification for the Bill.
This afternoon, we heard from the Lord Chief Justice that he would wish to seespeaking for the judges he made the pointPart 3 of the Bill being given support since in detail it has been accepted by the concordat. I will not linger long on that either, beyond saying that although it is a concordat agreed by the Government and the judges as described, I hope that it is not intended to be pre-emptive of consideration of detail by this House and by the elected House. There are a number of mattersconcerning, for example, the number of judicial nominations be put forward by the commission for selectionto which we shall wish to return. Those are definitely not issues of principle. They are matters that require to be given the kind of consideration that this House is well capable of giving to the detail of a Bill.
So far as the second aspect of the Bill is concernedthe proposed establishment of a Supreme Courtit seems right to remind ourselves, as my noble friend Lord Lester of Herne Hill has just done, of the provision of Article 6 of the European Convention on Human Rights. This is not a remote or distant matter. As I understand it, it is currently being considered under the provisions of the Human Rights Act as a matter that could be applied directly following the 1998 Act in this country. I cannot think that there would be many people who would wish to denounce Article 6 of the European Convention.
The case for the separation of judges from this legislature has been most eloquently made by the noble and learned Lord, Lord Bingham, on more than one occasion. It seems both practically sensible, in that it avoids the embarrassment of judges having to rule themselves out of consideration of cases on matters that come up with which they may have had a legislative connection, and it makes it clear to the public precisely what their role is. That too was well canvassed earlier in the debate.
I wish to focus most on the issue that was most eloquently touched on in the previous debate by the noble Baroness, Lady Kennedy of The Shaws. I refer to what she saw as the peculiar role of the Lord Chancellor in representing in the heart of government the voice of the judiciary and in a sense speaking for the rule of law to the Cabinet. This has always seemed to me to be a metaphysical concept, which was not practical in its outcome and was of little practical value. I have yet to hear any Lord Chancellor, either in this debate or any other, pointing to examples of that role being beneficently exercised within government.
Because we have reached that point in the debate which, if it is not the pause in the occupation that is known as the children's hour, is, in a sense, the low point before the dinner hour, it might be appropriate for me to tell a story illustrative of the point.
Back in February 1993, there was a debate in your Lordships' House about an extremely important issuethe changing of the rules of eligibility for legal aid. It aroused great passion inside and outside this House, and it was opened by the then shadow Lord Chancellor, the noble and learned Lord, Lord Irvine. He drew attention to the feared adverse consequences of reducing eligibility, which would adversely affect no fewer than 37 per cent of the households in the land. You may think that access to justice is an important issue for consideration by the Lord Chancellor, and one which he would hold particularly close to his heart.
The case was formidably advanced by the Lord Chancellor as well as by two sitting Law Lordsthe then Lord Chief Justice, Lord Taylor, who cited the support of the Master of the Rolls for his point of view. Lord Taylor spoke of the damage that would be done to the judicial process if legal aid withdrawal resulted in the self-representation of litigants and how this would snarl up the whole process.
In a lengthy speech replying to this, the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, who graced this debate earlier this afternoon, made no reference to the views of the judiciary. He did not directly answer the points made either by Lord Taylor in the debate or, indeed, in the letter that Lord Taylor had told the House that he had written to the Government. Even more surprising was the denial, that very same afternoon, to the House of Commons Public Accounts Committee that such a letter had been received, or at least that Sir Thomas Legg, the then Accounting Officer and Secretary to the Lord Chancellor's Department, had any recollection of such a letter.
Two days later, Sir Thomas Legg wrote a letter of apology to the Public Accounts Committee saying that yes, indeed, such a letter had been written and the concerns expressed on the Floor of the House by Lord Taylor had been expressed to the Lord Chancellor.
I think the point is quite clear: the Lord Chancellor was not, on that occasion, acting as the voice of the rule of law. He was acting as the voice of the Treasury. That is what is essentially wrong with placing so much reliance upon the position of the Lord Chancellor as the defender of the rule of law in this country or as the voice of the judges. The actuality is that he has to, and does, behave like any other member of the Cabinet, carrying collective responsibility for the decisions. If the Lord Chancellor has to be put up to defend cuts in legal aid, the Lord Chancellor will do it.
It is time to recognise that we need tougher and stronger defences of the rule of law than that historic office, hedged, or garlanded, with ancient traditions, as it may be. In my judgment, the judiciary is quite capable of speaking out for itself; it neither requires a place in the Cabinet to do so nor a place in this House. The roles are distinct and different, and the constitutional law of this country should reflect that difference.
Lord Clinton-Davis: My Lords, I am delighted to follow my old friend, the noble Lord, Lord Maclennan, who has made a very pertinent point. I have a very high regard for the noble and learned Lords the Lord Chief Justice and Lord Lloyd of Berwick, both of whom have employed the wisdom of being absent when I am speaking. Between them, they have done a great deal to settle the parameters of this debate. Having said that, I reserve the right to criticise the contributions which both of them have made.
I think it is regrettable that this debate has been tarnished by two matters. First, in my respectful submission, the amendment moved by the noble and learned Lord, Lord Lloyd, is, behind all the camouflage, untenable and inconsistent with the traditions and procedures of this House. If he were to succeed, it would, inevitably, delay reform and, indeed, as I think is his wont, destroy the Bill altogether.
It is a clear part of the noble and learned Lord's argument that everything in the garden is okay. Very little needs or ought to be changed. In that, I think he is profoundly mistaken. I submit that the onslaughts he has launched would have been better employed on the obvious deficiencies of the present situation which cry out to be remedied. For example, there is only one woman in the highest court in the land, and she has been appointed only recently. My noble friend Lady Jay made reference to that fact. It is also appalling that nobody from the ethnic communities is represented in the judicial affairs of this House. In my view, neither of those facts is acceptable, yet we have heard not a whimper from the noble and learned Lord, Lord Lloyd, or any of his supporters, in that regard.
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