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Lord Donaldson of Lymington: My Lords, I wish briefly to raise a question about the statement by the noble and learned Lord that Parliament is always supreme. I would have agreed with him five years ago. However, the ouster clause passed by the Commons in relation to the then asylum Bill caused me to give a great deal of thought to what would have happened if it had become law. It would have excluded the right of the courts to intervene under any circumstances. Its width was quite breathtaking, and I am confident that if it had been passed, the judges would have said, "We're not having this".

How the judges could have done that is a different matter. One possibility would be that they might have grounded their opposition, and based their insistence on taking jurisdiction, on the rule of law. We have a tripartite constitution, unwritten though it may be, under which it is not open to any two of the three components simply to close down the third. I make that point because I would not like the statement to go uncontradicted that in all circumstances Parliament is superior to the rule of law. It is in 99 out of 100 cases, yes, but not in all circumstances.

Lord Mackay of Clashfern: My Lords, I should like to follow up the remarks of the noble Lord, Lord Lester of Herne Hill. I am not clear, although the noble and learned Lord the Lord Chancellor may help me to become clear, that paragraph (b) in his amendment is not sufficiently general to exclude attempts to challenge the Lord Chancellor's actions—based, for example, on the rule of the law in its principle that the access to the courts should not be unduly fettered. The noble and learned Lord the Lord Chancellor will know that a Lord Chancellor was successfully challenged on that, notwithstanding the fact that others supported him. When that happened, the Lord Chancellor of the day immediately accepted the judgment of the court and altered the arrangements that had been challenged.

Grateful as I am to my noble friend Lord Onslow for believing that Lord Chancellors always obey the law, inadvertently it may happen that something goes wrong and the courts have the function to correct it. The principle on which that case was decided was the constitutional principle as part of the rule of law that access to the courts was not to be impeded. There was a particular case, and it was generally thought that legal aid would cover the point—but there was no legal aid for defamation, and therefore there was a loophole. A litigant seeking a defamation action was thought by the divisional court to have been wrongly excluded from the court by the necessity to pay fees.

It is not clear to me that the Lord Chancellor's duty, said not to be "cognisable in law", is sufficiently constrained not to be put at jeopardy with regard to that particular type of action. I would be grateful to the noble and learned Lord the Lord Chancellor for dealing with that matter. Perhaps he will satisfy me that the provision does not deal with that kind of situation, as the noble Lord, Lord Lester, said. For my part, I feel grateful that the noble and learned Lord has
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considered the matter and introduced the amendment. My only difficulty with it so far is the one that I mentioned.

I agree that this is a difficult area and that we are trying to replace what was very much a matter of convention and understanding. That is because of the way in which the Government have chosen to legislate about the office of the Lord Chancellor. We are now, in view of those changes, trying to legislate for what was a delicate and important position in the past, which rested on convention and understanding.

Lord Falconer of Thoroton: My Lords, I am grateful for all the interventions. First, I agree with the noble Lord, Lord Kingsland, that the history of how parliamentary sovereignty came to be sovereign is a matter of interest. However, I did not understand him to say that he disputed the principle that Parliament was sovereign in relation to what it did, so I believe that we start from the same proposition.

Secondly, in relation to functions, I hope that in the remarks I made in introducing the amendment I put the noble Lord's mind at rest. I want to make it absolutely clear that the functions of the Lord Chancellor in relation to the rule of law do not just stop at his departmental functions, but include dealing with other Cabinet Ministers who put forward proposals that in his view offend against the rule of law, and offend against the rule of law in relation to areas which do not relate to his own departmental responsibilities. I believe that that deals to some extent with the point made by the noble Lord, Lord Goodhart.

The point that has to be made, on which I believe that noble Lords agree, is that the Lord Chancellor does not traditionally have a roving, proactive brief to go to each individual Minister, see each piece of legislation and express a view on whether that legislation is sufficiently certain to comply with some people's concepts of the rule of law. The distinction that I seek to draw is that the Lord Chancellor is not like the German Minister of Justice, who has to approve every piece of legislation and every government Act in accordance with that provision. I believe that we are agreed with regard to that matter. My view is that paragraph (b) in my amendment, which the noble Lord, Lord Kingsland, believes does not deal with that point, does in fact deal with it. It is my intention that it should. My hope is that between now and the next stage, I shall be able to persuade him on that matter.

In response to the questions asked, very tellingly, by the noble Viscount, Lord Bledisloe, I say that the rule of law is a central principle of our constitution and that I regard my role as seeking to uphold it. However, I do not regard my role in relation to the rule of law as being, for example, always to support an increase in expenditure on the police in counties where crime is going up and the number of police is going down. I believe that that would be the effect of the amendment in the name of the noble Lords, Lord Kingsland and Lord Goodhart. It is important to define what we mean in that regard.
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I am very grateful to the noble Viscount, Lord Bledisloe, for having tabled his amendment. No doubt, it suitably chides us all into action. I hope that he will participate actively in any discussions which we have on it. As regards what the noble Earl, Lord Onslow, said, I do not think it has ever been in question that the Lord Chancellor and, indeed, every other Minister in the Government, would seek to comply with the law. The issue that we seek to deal with is the extent to which the Lord Chancellor has a particular role in government to see that the rule of law is enforced.

In relation to the point made by the noble and learned Lord, Lord Mackay of Clashfern, I refer to the Witham case, which concerns access to justice, although I stray very diffidently into it. I had absolutely no intention of excluding—nor do I think that I have done so—the court from reaching a conclusion that what the Lord Chancellor had done inadvertently in the Witham case was to, as it were, break the law by illegally fettering access to justice. It was certainly not my intention—nor do I believe that it would be the effect of my amendment—to prevent a subsequent Lord Chancellor who did precisely the same thing being sued in the future. However, I shall certainly consider the matter in the light of what the noble and learned Lord said.

The noble and learned Lord, Lord Donaldson of Lymington, referred to the ouster of judicial review. Assuming that an ouster of judicial review had been passed and assuming that the court concluded that it applied to the particular circumstances before it, in my view if it had been passed by Parliament it would determine what the position would be. Given the principles of parliamentary sovereignty, there would be no basis on which the courts could say, "We think this is going too far even though Parliament intended to pass it, and we can strike it down because we do not like it".

In the light of what has been said, I do not intend to press my amendment. I hope that we can bring it back—

Viscount Bledisloe: My Lords, before the noble and learned Lord sits down, I remind him that, no doubt inadvertently but perhaps somewhat Freudianly, he has not yet replied to my request for undertaking that his new proposal will be brought forward in good time to enable us to discuss it, rather than having it bounced upon us at the last moment.

Lord Falconer of Thoroton: My Lords, my proposal is contained in Amendment No. 1.

Lord Renton: My Lords, could the noble and learned Lord explain what he considers to be the legal effect of the words "not cognisable in law" in paragraph (b) of Amendment No. 1?

Lord Falconer of Thoroton: My Lords, by that I mean that the court should not be able to say, "This is the stance that the Lord Chancellor should take in Cabinet on a particular position". I apologise to the
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noble Baroness, Lady Carnegy of Lour, for not having answered her question; namely, why use the word "existing"? I think that we are all agreed that what we are seeking to do through this provision is to preserve the Lord Chancellor's existing duty, rather than to create any new one. That is why we use the word "existing". We do not intend in any way to restrict the development of the law. The duty of the Lord Chancellor that we are discussing is a general duty to seek to ensure that government complies with the rule of law.

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