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Lord Phillips of Sudbury: I am grateful to the noble Lord for giving way. How supine was the House on 12 June last year, when the role of Lord Chancellor was de facto abolished? How effective were we then?

Lord Brennan: That is a matter for our own consciences. How effective were we when we debated the ouster clause in the Asylum and Immigration (Treatment of Claimants, etc.) Bill? It was changed. It was far more important that that happened than that we did not debate adequately or fully at the time the provenance of these changes.

I want to finish. Having discussed how this guarantee can be honoured, the ultimate guarantor in parliamentary terms is us, but in terms of government it is the Minister. What kind of cheapskate politics do we anticipate will occur when a Minister with a constitutional duty will ignore his duty? It is difficult to accept that we should approach our constitution in such a way.

Lastly, if the Bill is given its full reforming effect, the Lord Chancellor's office has come to an end—an honourable end—but the new start is a better start. A combination of constitutional guarantees, roles of the Lord Chief Justice and so on make it better. To continue the role would be to preserve a name. It would be confusing and unhelpful. It would certainly be undemocratic to require such a Minister to be a lawyer and from this House. It would certainly anticipate a lack of calibre that I do not accept in politics: Roy Jenkins, not being a lawyer, presented the first Prevention of Terrorism Bill in the other place with distinction, as many other non-lawyer Ministers have done with complex litigation. Above all, it is unnecessary.

The concordat indicates at paragraph 5 that the new arrangements should reinforce the independence of the judiciary. In the previous debate in this House, the noble and learned Lord the Lord Chief Justice himself said that the Bill had his firm support in implementing the concordat because it would ensure the continued independence of the judiciary.

The noble Lord, Lord Kingsland, is right. This is a dramatic change in constitutional life. But what is the choice? Is it to be a practice vague to discern, dependent upon the strength and personality of a Lord Chancellor to make it effective; and to be effective in circumstances about which we know next to nothing? Or should it be a principle writ large in a constitutional chapter; plain to read; readily understood; and thereby much more enforceable?

The chapter of our constitution that the Bill represents is an occasion for necessary change. It is an occasion when this House should support this Bill, whether it sadly leads to the end of the Lord Chancellor or not.

Lord Crickhowell: My Lords, I want to address two of the principal points made by the noble Lord, Lord Brennan; the role of this House and the particular position of Clause 1.
 
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Members of the Select Committee very soon learnt that my King Charles's head, my obsession, was the question of the enforceability of Clause 1, an issue that had been raised at Second Reading by, among others, the noble and learned Lords, Lord Mackay of Clashfern and Lord Lloyd of Berwick. I raise it again now, partly because it has just been raised by the noble Lord and partly because the alleged "guarantee of continued judicial independence"—that is the heading to Clause 1—has been placed right at the front of the Bill. The worth of that guarantee should be evaluated and fully understood by noble Lords before they decide that the proposed abolition of the office of Lord Chancellor is to be supported or rejected.

The Judges' Council Working Party on the Bill, in its written evidence to be found on page 213 of the evidence volume, stated:

Another working party of greatly respected Members of this House, chaired by my noble friend Lord Alexander of Weedon, whose important memorandum to the Select Committee can be found on page 465 of the evidence volume, drew attention to the attempt made in Clause 1 to impose a statutory duty to protect the independence of the judiciary and commented:

The noble and learned Lord the Lord Chief Justice, giving oral evidence in response to my question on the subject (question 527), said that it was not intended that a clause of this sort should be enforced in the courts. He compared it to the declaratory provisions to be found in education and National Health Service legislation and told the committee that a Minister failing to fulfil the responsibilities set out in the clause,

With great respect to the Lord Chief Justice, I believe that this clause, which seeks to impose very specific highly important duties, is intended to be of much greater significance than clauses which impose general duties to promote education or to establish a comprehensive health service. And as the Alexander of Weedon working party pointed out in paragraph 61,

It identified other equally unfortunate consequences of the same failure.

When Lady Justice Arden, who chaired the Judges' Council Working Party, gave evidence (question 745), I pursued the subject again and asked a number of questions about this

which is supposed to protect judicial independence and, it is hoped, the rule of law. I argued that the House of Commons, with a large government
 
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majority, is not likely to be an effective body to challenge executive action and that this House may not find it easy.

I suggested that if the clause is extended to cover the rule of law and, even more, if Clause 1 is given enhanced status by imposing an interpretive obligation along the lines of Section 3 of the Human Rights Act 1998, as proposed by the Judges' Council,

We have got into a sort of circular position because we started with an unenforceable clause, and then we are told that it is okay because Parliament will deal with it; but if Parliament fails to do something about it for the people, the people's only remedy is to go to the courts.

When I put this proposition to Lady Justice Arden, she said that if it was required it should be possible to draft a clause that was enforceable; but that, understandably, she did not wish,

It seems to me wildly unlikely that the clause will be redrafted to make it legally enforceable. The last thing that Ministers want is to be pursued in the courts for their failures. And as Professor Jolowicz argued in his written evidence (page 365), although the clause is a fine example of what he called lex imperfecta, it may not be wise to open the door to an application for judicial review. That, he said,

So we are left with a declaratory clause unenforceable in the courts and the concordat which, apart from the bland and unsubstantiated statement quoted by the noble Lord, Lord Brennan, that,

gives little comfort. Like Professor Jolowicz, I believe that there is no adequate substitute for a Lord Chancellor and that it is,

The Alexander Weedon working party gets to the heart of the question in paragraph 56, when it says:


 
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Equally telling is the working party's earlier quotation of Lord Birkenhead's defence of the office, written in 1922, to be found on page 467 of the evidence volume. It firmly deals with the argument of the noble Lord, Lord Goodhart, that all we are talking about is a name. Lord Chancellor Birkenhead wrote:

the judiciary and the executive—

We live in a moment of history when that warning seems prescient and apposite.

My final reference is to the Law Lords, who told the Select Committee, as reported at page 116, that they are,

The Prime Minister decided to remove that historic safeguard without consultation and, astonishingly, without reference to the Cabinet—so much for the idea that the Cabinet Secretary is to be the proper defender of the independence of the judiciary. It seems unarguable that an unenforceable declaratory clause cannot be an adequate substitute for the historic role of the Lord Chancellor. Furthermore, the authority and influence of the role does not stem simply from his responsibility for what were described in our report as "judicially related matters". The special responsibility as the "constitutional conscience" of government, defending judicial independence and the rule of law in Cabinet goes much wider and springs from the historic character and seniority of the office. That must not be casually put on one side, which is why I strongly support the amendment and the other clauses that go with it.


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