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Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his explanation of Amendment No. 1. I particularly welcome his statement that he is prepared to wait until Third Reading before putting forward whatever new amendment he tables at that time. I think that there is a clear difference between Amendment Nos. 1 and 2, but I do not think that, in the interim period, it will prove unbridgeable. Let me, very telegraphically, explain why I think that there is still a difference of importance.

I agree with the noble and learned Lord the Lord Chancellor that any rule of law clause in the Bill should not be justiciable. That reflects the constitutional tradition. The rule of law is a term that is not explained in any detailed measure in our constitution; and to make it justiciable would give the judges too wide a scope to determine what our constitutional law should be. In that respect, we are ad idem.
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I take issue with the noble and learned Lord the Lord Chancellor on his explanation of the relationship between the sovereignty of Parliament and the rule of law. The doctrine of the sovereignty of Parliament is a doctrine of the courts. Parliament is sovereign only because the courts say that it should be so. Until the middle of the 18th century, it was the view, widely held by common law judges, that the sovereignty of Parliament was subordinate to the wisdom of the common law. That doctrine fell away in the 19th century, and we all readily admit now that Parliament is sovereign. Nevertheless, that sovereignty is an expression of the courts; it is not an assertion of Parliament. So, with great respect to the noble and learned Lord the Lord Chancellor, I submit that the two match happily in the first of the three clauses of Amendment No. 2, in the name of the noble Lord, Lord Goodhart, and myself.

The real difficulty lies in the difference between paragraph (b) in the noble and learned Lord's amendment and our proposed subsection (2). As I understand it, the noble and learned Lord's paragraph (b) binds the Lord Chancellor in relation to his own functions. Our proposed subsection (2) requires the Lord Chancellor to use his best endeavours to ensure that the rule of law is respected by Ministers other than himself. That is my understanding of what a Lord Chancellor does in Cabinet. If a Minister makes a proposal for a draft legislative measure which, in the Lord Chancellor's opinion, is about to impinge on the rule of law, it is his constitutional duty to speak up in Cabinet and say so. That is what the proposed subsection (2) of Amendment No. 2 would do. In my respectful submission, paragraph (b) of the amendment tabled by the noble and learned Lord the Lord Chancellor does not say that.

If, in the interim period between now and Third Reading, the noble and learned Lord the Lord Chancellor can convince me that that is what his paragraph (b) says, or if there is some movement from the noble and learned Lord between now and Third Reading, then we shall happily coalesce around an agreed amendment at that time.

Lord Goodhart: My Lords, my position is much the same as that of the noble Lord, Lord Kingsland. We have both put our names to Amendment No. 2.

I believe that our objectives and those of the noble and learned Lord the Lord Chancellor are, in substance, identical. We both aim to preserve the Lord Chancellor's existing duties in respect of the rule of law and, in particular, to ensure that the change in the more general duties of the office of Lord Chancellor does not alter his duty—a duty not enforceable at law—to bring to the attention of other members of the Government any proposed action that may offend against the rule of law. Therefore, it is simply a question of drafting the most effective and accurate way of achieving that aim.

It is desirable to take some further time on this. Although I am well aware that detailed discussions have been taking place with the parliamentary draftsmen and in the Department for Constitutional Affairs, the first time that the noble Lord, Lord
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Kingsland, and I saw the amendment was last Friday. It needs time for further consideration, and there are aspects of the Government's draft, which the noble Lord has drawn to the attention of your Lordships' House, with which we are not entirely happy.

I can also see some justice in the criticisms that the noble and learned Lord made of our draft. It would be appropriate to try to reach agreement between now and Third Reading, so that we could come back with an amendment that we could all recommend to the House as a whole and would achieve the result for which we are aiming. I therefore hope that it will not be necessary to move either of the amendments today and that they can be carried over until Third Reading.

Viscount Bledisloe: My Lords, it was somewhat less than gracious or charitable of the noble and learned Lord to chide me for putting down the same amendment as I put down last time. The rule of law has been under debate since your Lordships' Select Committee started meeting. The noble and learned Lord's theme has continuously been, "I will come forward with an amendment to deal with the rule of law". At one stage in the Select Committee, without giving us the draft in advance, he produced a draft that was subjected to criticism from all sides. He withdrew it in haste and almost with apology. Since then, we have seen nothing from him until, as the noble Lord, Lord Goodhart, said, last Friday.

It was therefore hardly surprising, since there was nothing on the topic, that I put down an amendment to raise the topic. It may be somewhat unkind to say so, but I have a nasty suspicion that if neither I nor anyone else had done so, we would not have seen anything from the noble and learned Lord the Lord Chancellor even now.

If the noble and learned Lord tells us that he will take the matter away, think about it and come back, in decent time, with a draft that we can consider, I am happy not to move my amendment. Indeed, I prefer Amendment No. 2, in the names of the noble Lords, Lord Kingsland and Lord Goodhart. The noble and learned Lord has criticised that, but could he answer two simple questions? First, does he, as Lord Chancellor, regard the rule of law as a central principle of our constitution? Secondly, does he, in fact, use his best endeavours to ensure that the rule of law is respected? I shall ask him a third question: if his answer to either of those is "No", when will he resign?

The noble and learned Lord's amendment is inadequate. First, it starts off, very undesirably, on a negative basis, saying:

the rule of law and the Lord Chancellor's duty. It does not put the matter positively; it merely puts it negatively. Secondly, in paragraph (b), the Lord Chancellor's duty is qualified by the phrase,

What limitation, if any, do those words put upon it? Is it part of the Lord Chancellor's functions to advise his colleagues that their proposed measures may infringe
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the rule of law? If so, what do those words add? Is there not a nasty risk that it would be suggested that the exercise of his functions is merely the performance of his departmental duties? Would it not be much better to remove those words?

If I get satisfactory answers to those questions, I would be content that this matter stood over till Third Reading.

The Earl of Onslow: My Lords, I hesitate to intervene in the incestuous squabbles between two members of the Fountain Court Chambers, amusing though that may be. Have we not come to a rather pathetic pass when we actually have to consider putting into law that the Lord Chancellor should obey the law? To me that is horrifying. I have assumed that every Lord Chancellor whom I have ever seen, of whom Lord Simon was the first, in Churchill's Cabinet—right through from the great Lord Elwyn-Jones and Lord Hailsham, even to the present Lord Chancellor, the noble and learned Lord, Lord Falconer—was there to uphold the law. It is awful that we have even come to think of imposing, in an Act of Parliament, that the Lord Chancellor should be so bound. That is the result of mucking about with the constitution, without thinking, to which this Government are so prone.

Baroness Carnegy of Lour: My Lords, I want to ask a question to which I am sure that I should know the answer, but other noble Lords who are not lawyers may be puzzled about it, too. Amendment No. 1 states:

Why does it say, "the existing constitutional principle"? Is that principle going to change in the next few years? Obviously, the law changes—but does the principle change? If it does not, why does it say "existing"?

Lord Lester of Herne Hill: My Lords, I was not going to intervene until I heard the remarks of the noble Earl, Lord Onslow. I think that he was suggesting that there was something bad about the amendment, in that it suggests that the Lord Chancellor would otherwise be above the rule of law. My understanding is that the amendment is simply not designed to deal with the liability of the Lord Chancellor, like every other Minister of the Crown, to obey the law. If the Lord Chancellor were, for example, to fetter the right of access to courts, as has happened before, and was challenged by way of judicial review, as I understand the matter the amendment would not touch that situation. The Lord Chancellor would be liable, as would any other Minister, under the rule of law, in accordance with the law.

Finally, I agree with the noble Lord, Lord Kingsland, that common law antecedes and defines the sovereignty of Parliament.
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