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Lord Donaldson of Lymington: My Lords, I support both amendments, but only on the assumption which I see being made and which I think is very regrettable, that the Lords of Appeal in Ordinary, the Lord Chief Justice, of course, and possibly the Master of the Rolls should not have a right of direct access to this House. It would be in accordance with modern thought that they should not have a right to vote but, in my view, it is very important that they should have a right to advise.

My recollection is that the Writ of Summons issued not only to them but to all judges in England and Wales, down to High Court judges, requires them to drop everything—it has some rather better language—and come to the House at once in order to advise its Members. When I was sworn in and Lord Gardiner gave me the Writ of Summons, he said, "For goodness' sake, take no notice of it". But the idea of advising the House is of very long standing and if the Lord Chief Justice was to have no right of audience here, we should be deprived of speeches such as we have heard today, which would be a great loss. I asked him
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whether he intended to go on to the "Today" programme but he assured me that he had no immediate plans to do so.

Lord Mackay of Clashfern: My Lords, I am grateful for the support of the noble Lord, Lord Maclennan of Rogart, and my noble friend Lord Henley on the principle behind my amendment and the approach taken by the noble and learned Lord the Lord Chancellor. As I sought to do at the beginning, I make it absolutely clear that the amendment is on the assumption that the provisions that exclude the Lords of Appeal in Ordinary and the senior judges, who are by virtue of life peerages Members of this House, are carried. The amendment is intended to replace that. Obviously, if that does not happen, it is not intended to come into effect.

I understand perfectly the problem about flexibility and so on. All that I am concerned about is that what is being proposed by the Government is to withdraw the present method for the judges to make their representations. I should certainly like an undertaking that, in substitution for that if it is to go forward, something of this kind, although not necessarily this particular format—the presently existing committees, such as the Constitutional Affairs Committee, a Select Committee of this House or a combination of both—will be considered in substitution for the rights that the judges presently have as Members of this House to give their views. Those views have often been given considerable publicity because expressed in this House. It is important that under the new arrangements, if they are carried into effect, there should be effective means of communication, and that an undertaking to that effect should be given before we are asked to approve the other proposals.

In the mean time, I am happy to withdraw my amendment. I know that the next amendment, Amendment No. 24, deals substantially with the same matter and will reveal what I have to say in that connection. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Woolf moved Amendment No. 24:

If the Lord Chief Justice of England and Wales, the Lord President of the Court of Session in Scotland or the Lord Chief Justice of Northern Ireland wishes to make a representation to Parliament on a matter of importance relating to the judiciary or otherwise to the administration of justice, he may make such a representation in writing. Such a representation shall be laid before either or both Houses, as the Judge making the representation shall specify."

The noble and learned Lord said: My Lords, the amendment is tabled in my name and that of the noble and learned Lord, Lord Cullen of Whitekirk. Regrettably, he cannot be here because of his judicial duties.
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The amendment is related to the previous one, but I emphasise that it is an addition not a substitute or alternative to it. The inspiration for the amendment was the fact that the nature of the office of Lord Chancellor will change. Because of that deficit, it was thought particularly important that it be possible to devise a procedure which allowed not only the Lord Chief Justice of England and Wales, who traditionally has been a Member of this House, but also the Lord President, who often is not a Member, at least for part of the period that he holds that very distinguished office, and the Lord Chief Justice of Northern Ireland to put before the House material thought to be of such serious significance to the administration of justice that this House and the other place should be aware of it.

Obviously, having had the privilege of addressing noble Lords directly, I know that that has singular advantages. What is proposed in the amendment would not have that advantage. However, having explored all the possible alternatives, I must confess that, even after consulting the most experienced advisers, I have not been able to find a method of presenting a way in which it is possible for the holder of my office and the other two offices to which I referred to address this House directly. The advantage of Amendment No. 24 is that it would allow all three heads of the judiciary in the three jurisdictions immediately to place before one or both Houses of Parliament something of real significance to the judiciary or the administration of justice. That would be an immense advantage. It is why I have tabled the amendment.

I know that the noble and learned Lord the Lord Chancellor has had a limited opportunity to consider the amendment, and I understand that he would like further time to do so. I hope that he will consider it favourably, because such a clause would be of the greatest importance to the independence of the judiciary. It is consistent with the separation of powers. It would be valued in Northern Ireland and north of the border in Scotland. That being the situation, I hope that it will be thoroughly considered by the House and the noble and learned Lord the Lord Chancellor. I beg to move.

Lord Maclennan of Rogart: My Lords, I support the amendment tabled by the noble and learned Lord the Lord Chief Justice. The problem that he has outlined is extremely significant. It would not be wholly resolved by the establishment of a Joint Committee, as provided for in the earlier amendment, because the initiative on whether to mount an inquiry would lie with the committee and not the judiciary. Consequential upon the expectation that the senior judiciary will not be seated in this House, provision must be made to enable their views to be directly represented to Parliament. No doubt, if such representations were laid as proposed, they could be referred like a petition to the appropriate committee for consideration. Neither House of Parliament would
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ignore such a public statement of position. That must be very much in line with the wishes and purposes of the Government in the Bill.

Lord Kingsland: My Lords, until now, if the noble and learned Lord the Lord Chief Justice or the noble and learned Lord the Lord President had something to say to your Lordships' House, they would come down and say it. That will no longer be possible under the new arrangements. As the noble and learned Lord, Lord Mackay of Clashfern, has indicated, your Lordships' House will have to find another way of communicating with the heads of the respective jurisdictions. I see no reason why the proposals of the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern, should be mutually exclusive; there is a role for both.

I would have preferred to follow the suggestion of the noble and learned Lord, Lord Donaldson, and rely on the old tradition that, from time to time, your Lordships' House has invited the judges to come and give advice on a matter. That traditional process could be adapted to modern circumstances. However, I understand that there is some learning in your Lordships' House that this may no longer be appropriate. Therefore the proposal in Amendment No. 24 is wholly apposite and is one that I urge on the noble and learned Lord the Lord Chancellor.

Lord Falconer of Thoroton: My Lords, the practice of calling the Law Lords down to give advice to the House fell into desuetude approximately 200 years ago. I assume that the noble and learned Lord, Lord Donaldson of Lymington, regularly takes the opportunity of addressing us through the "Today" programme because he is so worried that he may not be asked to come down sufficiently frequently to advise us. Much as it pains us, therefore, we must face up to the fact that we must try to find an alternative to asking the Law Lords to give advice to the House.

I hope that the message that I gave in response to the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, was that we needed to try to find a committee. I am simply saying that Parliament should decide whether it is an existing committee or one crafted specially. One of the purposes of those committees—or that committee, if it be only one—is that the Lord Chief Justice or a senior judicial figure of any of the jurisdictions, such as the President of the Family Division, should be able, if he or she thinks it appropriate, to come and give evidence to the committee on an issue. Do we also need the ability for judges to lay written material before Parliament? It could be a useful adjunct. I need to look at the other circumstances in which that can occur and think about where one would get to in setting up a committee.
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I shall come back to the matter at Third Reading. Frankly, I do not think that by then we will have made much progress on what the committees are. That is a longer-term discussion, but I hope that I will be able to return to it at Third Reading.

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