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Parliamentary Office of Science and Technology (POST)

The Chairman of Committees (Lord Brabazon of Tara): My Lords, I beg to move the four Motions standing in my name on the Order Paper.
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Moved, That a Select Committee be appointed to consider information and communications services, including the Library and the Parliamentary Archives, within financial limits approved by the House Committee;

That, as proposed by the Committee of Selection, the following Lords be named of the committee:

L. Avebury, L. Baker of Dorking (Chairman), L. Brooke of Alverthorpe, L. Brougham and Vaux, L. Craig of Radley, L. Drayson, E. Erroll, B. Gardner of Parkes, B. Goudie, L. Haskel, L. Rodger of Earlsferry, L. Smith of Clifton;

That the committee have leave to report from time to time.

Statutory Instruments

Moved, pursuant to Standing Order 74 and the resolution of the House of 16 December 1997, That, as proposed by the Committee of Selection, the following Lords be appointed to join with a committee of the Commons as the Joint Committee on Statutory Instruments:

L. Brougham and Vaux, L. Dykes, B. Gale, L. Greenway, L. Lea of Crondall, L. Mancroft.

Parliamentary Broadcasting Unit Limited (PARBUL)

Moved, That, as proposed by the Committee of Selection, the following Lords be named as members of the Parliamentary Broadcasting Unit Limited (PARBUL):

L. Brabazon of Tara, L. Burnham, L. Paul, L. Thomson of Monifieth.

Parliamentary Office of Science and Technology (POST)

Moved, That, as proposed by the Committee of Selection, the following Lords be appointed to serve as members of the Board of the Parliamentary Office of Science and Technology (POST):

E. Erroll, L. Flowers, L. Oxburgh, L. Winston.—(The Chairman of Committees.)

On Question, Motion agreed to.
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Constitutional Reform Bill [HL]

Report received.

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton) moved Amendment No. 1:

This Act is not to be construed in a way that would adversely affect—
(a) the existing constitutional principle of the rule of law, or
(b) the Lord Chancellor's duty (not cognisable in law) to respect that existing principle in the exercise of his functions."

The noble and learned Lord said: My Lords, the House has on several occasions considered how to ensure that reform of the office of Lord Chancellor does not weaken the protection for the rule of law. I hope that today we can move towards a settlement of this most important of issues.

It is trite to say that we have no codified constitution, although we have statutes of particular constitutional significance such as the European Communities Act 1972 and the Human Rights Act 1998. So we have no single source that definitively states what the place of the rule of law is in our constitution. That it has a role is undeniable.

There is a significant measure of agreement in the House about the importance of the rule of law and the Lord Chancellor's role in relation to it. Where we have disagreed, however, is in seeking to translate those shared goals into appropriate statutory language. I completely understand the desire on the part of noble Lords to match the strength of their feelings on the issue with similarly strong language in the Bill. However, in our desire to ensure continued protection for the rule of law, we must be immensely careful that we do not inadvertently disturb other crucial arrangements of our constitution or even undermine the rule of law itself by doing away with one of its most important aspects, legal certainty.

The Government have no problem in accepting that the rule of law must and does guide the actions of Ministers and all public officials. It is also clear that Ministers and other public officials must comply with the law. That obligation is enforceable in the courts. So, if a Minister acted beyond his powers or used them for a purpose other than that for which they were intended, he may have his actions overturned by the courts. It is now settled that Ministers can be required by the courts to take or not to take certain actions, and if the Minister disobeys such an order he can be held in contempt. With that in mind, I shall outline two fundamental issues that need to be addressed in the attempt to legislate with respect to the rule of law.

First, the notion of the rule of law cannot be expressed in the form of an ordinary legal rule. Such a rule cannot itself determine whether the law in general always prevails. There is a paradox in trying to formulate a legal rule that determines the status of the
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law. Such a rule must be open to the interpretation that it is referring to standards that lie outside—and, in a sense, above—the law. That leaves open the question of which prevails when the two come into conflict.

If we are not careful, we could be taken as seeking to create a special rule with a higher status than that of the law itself, including primary legislation. That would be to limit the sovereignty of Parliament by reference to the rule of law. The question of which prevailed in the event of conflict would have to be resolved by the courts. That is something that we cannot contemplate. A rule of law can never, in our constitution, enable individual cases to be decided by the courts in such a way as to invalidate an Act of Parliament validly passed. Such a radical and fundamental constitutional change surely must not be enacted by Parliament in a Bill devoted to limited reforms relating to the Lord Chancellor and the judiciary.

The second issue is that the success of the rule of law in our system has never been dependent on grand statutory exhortations. That success has been assured by a delicate and gradually evolved institutional balance based on a mixture of convention, practice and law. There is no single or even privileged guardian of the rule of law in our constitution. A statutory statement that singles out one of the major actors risks undermining the position of the others.

I do not regard either of those fundamental issues as necessarily fatal to any provision in the Bill concerning the rule of law, but I think that they need to be extremely carefully thought through and resolved satisfactorily before we can commit to any amendment. We and others have been grappling with the issues for some time now and have come up with what we think is a workable and appropriate solution.

I believe that my Amendment No. 1 would meet the objective of preserving the existing position in relation to the rule of law while avoiding broader constitutional effects, particularly in relation to parliamentary sovereignty. My amendment seeks to maintain the balance in our constitutional arrangements and to preserve the sovereignty of Parliament, while providing the clarity and reassurance that the House has rightly sought with respect to the rule of law.

The obvious way of providing that reassurance, while properly addressing the issues I have outlined, is to keep in mind the specific issue that we are trying to address; namely, the perceived threat to the rule of law from the changes the Bill will bring about, particularly the reform of the office of Lord Chancellor.

We should start with a proposition about what the Bill is not to be taken as doing. The proposition is that it should not be taken as detracting from the rule of law, as it is currently understood as a principle of the United Kingdom constitution. The amendment acknowledges the rule of law as a principle of the constitution of the United Kingdom. This is, to my knowledge, unique in statutory language in this country and represents a powerful statement of the Government's commitment to the rule of law. It does not, however, create any legal paradox or create
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ambiguity with respect to other constitutional principles. Most importantly, it does not detract in any way from the principle of parliamentary sovereignty. The reference in the amendment is to the existing principle of the rule of law, which is, and will remain, subject to the sovereignty of Parliament.

The second effect of the amendment is also to state what the Bill is not to be taken as doing, but this time with specific reference to the office of Lord Chancellor. Subsection (2) recognises that the Lord Chancellor has had, and will continue to have, a duty to respect the rule of law in the exercise of his functions, and states that the Bill cannot be interpreted as affecting that duty adversely either.

Members of the Select Committee, many of whom I am glad to see in the Chamber today, and other followers of this debate will note that I have listened to concerns that my previous amendment was too narrowly drawn, in that it related only to those statutory functions conferred on the Lord Chancellor in the Bill. I accept that it is right that the duty should relate to all of the Lord Chancellor's functions, which would include his duty to speak up, if necessary, in Cabinet, and we have so provided in this amendment.

I hope that it will also have been noted that this amendment also refers to the Lord Chancellor's duty to "respect" the rule of law. I have considered carefully our last debate on this issue and I accept that the term "respect" is preferable in this context, as the noble Lord, Lord Goodhart, said.

Throughout the debates we have had on the rule of law, the contention has been that the Lord Chancellor has always had a role with regard to the rule of law and that it is important that we do not inadvertently lose or diminish that role. There has also been general, if perhaps not universal, agreement that such a duty was a political one—that it was not a duty to be enforced in the courts. My amendment seeks to give effect to both these lines of argument: it acknowledges that the Lord Chancellor has a duty with regard to the rule of law and it acknowledges that that duty is not one that is cognisable as a matter of law. It will ensure that the rule of law features in the deliberations of the reformed Lord Chancellor in the same way as it does now with the existing Lord Chancellor. But it does this in a way that does not have wider, unintended effects.

I shall now deal with the two other amendments in this group. First, we have Amendment No. 6, tabled by the noble Viscount, Lord Bledisloe. The noble Viscount made it clear in Committee that he would return to this issue on Report. Although I fully understand his reasons for doing so, I confess to some disappointment that the amendment before us now is identical to that tabled in Committee. I recognise, however, that the noble Viscount will be similarly disappointed to hear that I remain unable to accept this amendment. It fails to engage with either of the fundamental issues that I outlined earlier. It simply assumes that a duty to uphold the rule of law can be inserted into a statute, as if we were operating in a constitutional vacuum. For that reason alone, this House should not accept it.
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This is not merely a theoretical issue. The content of the principle of the rule of law is controversial, with opposing views having been expressed over time by different judges, academics and practitioners. Under this amendment, individual Ministers could never know with certainty what was required of them. For example, there are respectable academic arguments to the effect that certain provisions in anti-terrorist legislation could be regarded as impinging upon the rule of law, in accordance with a wide interpretation of the principle. Provisions limiting the rights of terrorist suspects might be said to be within this category. The Government could not accept such an analysis. By bringing the rule of law directly into play as a legal rule in potential conflict with the law itself, the noble Viscount's amendment would create confusion and uncertainty, risk undermining parliamentary sovereignty, and risk impairing the clarity and effectiveness of the law in vital areas such as national security and the prevention of terrorism. For all these reasons, I ask the noble Viscount, Lord Bledisloe, not to move his amendment.

Finally, we have Amendment No. 2, tabled by the noble Lords, Lord Kingsland and Lord Goodhart. Let me first acknowledge that the terms of this amendment represent a genuine attempt to seek consensus and to get to grips with the very important and difficult issues that I outlined earlier. I am genuinely grateful for the efforts that the noble Lords, Lord Kingsland and Lord Goodhart, have made to move the debate forward in a positive manner. It is, therefore, a bit disappointing that the Government are unable to accept Amendment No. 2 as it stands. We do, however, recognise that it contains at least a partial solution to the fundamental issues.

But in several important respects, the amendment fails to address the concerns that I have already outlined. First, although I initially thought that a reference to parliamentary sovereignty was a good idea, I have now come to the view that such a reference would be dangerous. The problem is the need to ensure that parliamentary sovereignty remains the overriding principle. Simply mentioning it as an additional principle "together with" the rule of law would not be enough. The reference in the amendment to the rule of law and parliamentary sovereignty as central principles does not remove this problem. It says nothing about the relationship between the principles, which is the crucial issue. The amendment would leave the status of parliamentary sovereignty vis-à-vis the rule of law ambiguous, and as such would not be acceptable or clear.

Secondly, I am concerned about the precise meaning of the "best endeavours" test in subsection (2), and how it might interact with constitutional conventions such as the Lord Chancellor's role as a Cabinet Minister. I think subsection (2) also engages the very difficult issue that I mentioned earlier about the paradox of a legal duty to ensure that others respect the rule of law. This amendment also quite seriously mis-states the current duty of the Lord Chancellor.
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The Lord Chancellor has never been responsible for enforcing the law against others; this amendment states that he is. It is not confined by reference to the Lord Chancellor's functions; nor does it state by whom the rule of law is to be respected.

Lastly, I understand the intention behind subsection (3) to be to render the amendment declaratory, as we all intend. But subsection (3) implies that the Lord Chancellor's duty is to some extent currently enforceable as such. That implication must surely be inaccurate.

This amendment is a carefully crafted and well thought-out suggestion that seriously engages with the very difficult issues we are facing here. But I think the problems I have identified must be fatal to the text as it stands.

To conclude, I have sought to listen very carefully to the views of your Lordships' House, as expressed in previous debates and in the debates in Committee, and have brought forward an amendment that seeks to give effect to all of the views that have been expressed. I believe that it gives effect to those views. I submit that Amendment No. 6 goes too far and should be rejected by the House as it would undermine parliamentary sovereignty and create confusion and uncertainty, which is surely contrary to the very rule of law that the amendment seeks to uphold. While Amendment No. 9 has much to recommend it, I cannot see that it satisfactorily resolves the issues before us. I believe that Amendment No. 1 has that effect.

I have spoken with noble Lords about the terms of my amendment. As I have indicated, I believe that my amendment achieves what we are all seeking to achieve. I have gone through it in some detail, as it is a very important amendment. A number of noble Lords have asked me to discuss the content of my amendment with them further. I believe that it achieves what we want to do. I am happy to wait until Third Reading before I put my amendment to give effect to those further conversations, but I hope I have set out as fully as I can the reasons why I think my amendment achieves that which we all wish to achieve. I beg to move.

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