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The Deputy Speaker (Baroness Gould of Potternewton): My Lords, before calling Amendment No. 7, I have to inform your Lordships that if Amendment No. 7 is agreed to I cannot call Amendments Nos. 8 or 9 for reasons of pre-emption.

Viscount Bledisloe moved Amendment No. 7:

The noble Viscount said: My Lords, this relates to the strength of the duty imposed on the Lord Chancellor and other Ministers to uphold the independence of the judiciary. Your Lordships will see that that duty is set out forthrightly and cogently in Clause 1(1), which states:


 
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That is an admirable statement and an admirable principle. But the trouble is that in subsections (4), (5) and (6) that duty is considerably watered down. Subsection (5) states that:

Ministers of the Crown should not seek to influence particular judicial decisions by any means whatever, other than by making representations to the judge who is hearing those proceedings. The restrictions should not be only on special access to the judiciary, leaving it all right for them to say, "If the judges' decisions continue to go against me, they won't do very well in the next salary review", or something of that kind. Subsection (6) then states that:

That is infinitely weaker and wetter than a duty to uphold the continuing independence of the judiciary.

In Committee, there were elaborate amendments designed to modify subsections (4), (5) and (6). I think that the noble Lord, Lord Brennan, suggested that it would be much simpler just to concentrate on the duty in Clause 1(1) that the Lord Chancellor,

and to take away the subsequent provisions that water that down. The amendment seeks to do that. I beg to move.

Lord Kingsland: My Lords, I simply wish to endorse everything that the noble Viscount, Lord Bledisloe, has said.

Lord Mackay of Clashfern: My Lords, I would like to ask a question regarding subsection (5). I have had this thought previously, but I felt that I should mention it. Those who propose a certificate of public interest immunity have a special access in that sense to the judiciary, which is different from the way in which the judiciary deals with other matters. Perhaps it might be necessary to consider whether that requires some special provision.

Lord Falconer of Thoroton: My Lords, Amendment No. 7, tabled by the noble Viscount, Lord Bledisloe, to which the noble Lord, Lord Kingsland, has also put his name, seeks to remove the majority of Clause 1 altogether. As noble Lords are aware, Clause 1(4) to (6), which the amendment and Amendment No. 9 seek respectively to remove and to amend, are important aspects of the protections put in place for judicial independence in the Bill. These provisions flow directly from the opening sections of the concordat with the Lord Chief Justice. They were put in because of the concordat and reflect in part, I should imagine, the protection of the independence of the judiciary to which the noble and learned Lord, Lord Woolf, referred earlier.
 
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The subsection (5) duty, to which the noble Viscount, Lord Bledisloe, referred, makes it absolutely clear that Ministers must not seek to influence judicial decisions other than by means open to other litigants before the courts. That would include the ability to make an application for a PII certificate, where appropriate, because it would not be special access, in accordance with litigation rules.

The subsection (6) duties on the Lord Chancellor are particularly important. They make it clear that he has a special position regarding judicial independence, that he must ensure that the judiciary has the resources it requires, and that he ensures the public interest is properly taken into account in matters relating to the judiciary or the administration of justice.

I have no doubt that the noble Viscount and the noble Lord agree to the fundamental importance of the need to protect judicial independence. Indeed, they may seek to remove the existing provisions in Clause 1 on the grounds that they are not satisfied that they are expressed with the degree of force with which some noble Lords would wish.

Let us be clear that the Bill is not saying that the particular duties set out in these subsections mark the outer boundaries of the overall duty to uphold judicial independence. The subsections draw out particularly important duties that must necessarily be met. But that is not the end of the matter. Just because the particular duties have been met does not guarantee that the Lord Chancellor has met the overall duty to uphold judicial independence, which will apply in respect of everything he does. But the spelling out of the particular duties gives prominence to some very important matters of particular concern to the judiciary. To delete the whole of this section of the provision, as proposed by Amendment No. 7, does not seem to be a useful way forward.

Amendment No. 9 would undermine two principles that form a relevant part of our institutions: first, that Ministers have to submit many of their decisions to collective decision of the Cabinet and are subject to constraints imposed by other Ministers and Parliament; and secondly, that the fulfilment of the general objectives of a Minister's portfolio is not a matter to be settled by substantive judicial review in the courts, but is the subject of political accountability and the Minister's obligation to resign if he is unable to support a collective decision.

Amendment No. 9 would undermine both those principles by applying a positive statutory standard of conduct across a wide range of the Lord Chancellor's major activities, and beyond. The reference to the rule of law in particular, to which I will return, would extend the scope of the positive duty well beyond the bounds of the Lord Chancellor's current portfolio, imposing the threat of illegality over what he should and should not be saying and doing in respect of other Ministers' areas of responsibility, and even matters completely outside government. This is fundamentally inconsistent with existing notions of ministerial accountability in our constitution and goes well beyond the purpose of codifying the Lord Chancellor's
 
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existing roles in statute. Also well beyond that purpose would be the result secured by Amendment No. 9 that major objectives of the Lord Chancellor's portfolio would become matters of substantive judicial review.

Of course we accept, and have included in the Bill, a positive statutory obligation on all Ministers to uphold the independence of the judiciary. But that is binding on all Ministers at once, so does not create significant problems with the constitutional background of collective responsibility. Nor does it open up a large field of substantive judicial review of policy matters. It is confined to securing the already accepted and existing boundary between two branches of government, and we think it accurately reflects the existing constitutional background in this respect also.

There is one further example of how Amendment No. 9 does not take proper account of a crucial part of the broader constitutional picture. It fails to take account of the role of the Lord Chancellor as a Member of one or other House of Parliament. The absolute legal duty created by the amendment would apply to the Lord Chancellor when he was exercising functions in connection with parliamentary proceedings. As the duty would be in absolute terms, with no reference to such proceedings, questions could arise as to the legality of the Lord Chancellor's actions in Parliament, including his position on Bills and the content of his speeches. I am sure that that is not the intention of the noble Lords who have tabled the amendment, but it illustrates the real difficulties in imposing absolute, unqualified duties on a particular Minister without properly taking into account the entirety of his constitutional role.

To sum up, it would seem that Amendment No. 7 is based on a misunderstanding of the clause which it seeks to amend and it would remove important aspects of the protections that exist for judicial independence. The alternative solution that is proposed by Amendment No. 9 also makes no attempt to accommodate itself to the rest of our constitutional fabric, proceeding as if in a vacuum. In consequence, both amendments are misconceived and I ask noble Lords not to press them.


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