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Lord Strathclyde: My Lords, I am not aware that I was saying that, and I do not think that we are breaking any rules today. If we were breaking rules, we would not be doing it. On occasion when an amendment has been tabled that does break the rules, the Clerks draw it to the attention of the Leader of the House, the Leader of the Opposition is copied in, and we agree that it should not progress.
These matters are ultimately in the hands of the House. However, your Lordships have only to recall what happened on the domestic violence Act which came from another place with amendments that more than doubled the size of the Bill and which your Lordships could not discuss except on consideration of Commons amendments; or a recent social security Act, a large part of which was added on Report in your Lordships' House, while the other place had no effective chance to debate issues with major financial implications.
What we are debating today is not a question of breaking the rules; if we were breaking the rules, we should not do so. This is about continuing a very important debate that affects the existence of Law Lords in this House. Again I urge the House to carry on with a proper debate.
On Question, Bill read a third time.
Lord Falconer of Thoroton moved Amendment No. 1:
"THE RULE OF LAW
This Act does not adversely affect—
(a) the existing constitutional principle of the rule of law, or
(b) the Lord Chancellor's existing constitutional role in relation to that principle."
The noble and learned Lord said: My Lords, we have had several useful debates on the rule of law. Perhaps I may summarise the position which I think we reached. We all agreed that we do not want to change the Lord Chancellor's existing role in relation to the rule of law. That role goes further than simply respecting the rule of law in discharging his ministerial functions. It includes being obliged to speak up in Cabinet or as a Cabinet Minister against proposals that he believes offend the rule of law. That role does not require him proactively to police every act of government. The role is not one that is enforceable in courts.
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In the debate on this issue at Report stage, the noble Lord, Lord Kingsland, supported by the noble Lord, Lord Goodhart, sought reassurance that the Government's previous amendment covered the Lord Chancellor's "constitutional duty to speak up in Cabinet". I think that that was the only issue between us. Amendment No. 1 provides such clarity.
The new draft also avoids any possibility of inadvertently infringing on the Lord Chancellor's existing statutory duty regarding the rule of law. Perhaps I can draw attention particularly to the speech on Report of the noble and learned Lord, Lord Mackay of Clashfern, in which he referred specifically to the Witham case. I think that the new wording puts this issue beyond any doubt whatever. I have discussed it fully with the noble Lords, Lord Kingsland and Lord Goodhart, and I think that they are content.
The legality of the Government's conduct is no less crucial to the rule of law than the matters within the Lord Chancellor's remit. The ministerial code requires all Ministers to consult the Attorney-General on issues involving legal considerations. The Attorney-General is the authoritative source of legal advice within the Government.
The Government have listened very carefully to all the concerns raised in previous stages and shown their willingness to meet those concerns and to engage in constructive debate. I think that we can now be satisfied that not only do we now share the same objectives, but that the draft before us successfully achieves those objectives. I beg to move.
Lord Goodhart: My Lords, during the tripartite discussions between the noble Lord, Lord Kingsland, the noble and learned Lord the Lord Chancellor and myself it became apparent that we were agreed on the principle that we should continue with the existing standard of the rule of law and with the existing constitutional responsibility of the Lord Chancellor to uphold it. We had some difficulty in finding a form of words acceptable to us all, but I am satisfied with the form of words in the amendment. Therefore, I am happy to support the amendment.
Lord Tebbit: My Lords, the adverb "adversely" clearly qualifies the verb "affect". Is it intended to strengthen or to weaken the impact of that verb?
Lord Falconer of Thoroton: My Lords, the words "does not adversely affect" make it clear that the Bill does not affect, one jot, the duty of the Lord Chancellor in relation to the rule of law.
Lord Tebbit: My Lords, I understand that that is the intention, but would it not be clearer—or less clear—if the adverb "adversely" was left out?
Lord Falconer of Thoroton: My Lords, we humbly thought it made it clearer.
Lord Tebbit: My Lords, I apologise for being more dense than usual.
Lord Falconer of Thoroton: My Lords, I am sorry for not getting the point until the second shot.
Lord Kingsland: My Lords, the noble and learned Lord the Lord Chancellor will recall that, initially, we
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were unhappy with the expression "adversely"; but, as a result of the tripartite meetings that took place between the noble and learned Lord, the noble Lord, Lord Goodhart, and myself, it became clear that it added to the sense of what we were trying to achieve. We were trying to say that the Lord Chancellor's existing powers would not be affected in any way that prevented the Lord Chancellor from continuing to fulfil the constitutional duties in the future in Cabinet that he has always fulfilled in the past. I believe that that was the logic behind the use of the expression.
However, I agree with my noble friend Lord Tebbit, that it carries with it a certain clumsiness and a sense of reluctance, a sense which, initially, I also shared. But I am now entirely happy that, when, in future, the noble and learned Lord seeks to exercise his constitutional powers in Cabinet, he will not in any way be impeded. This has been a good example of constructive thinking between the Government, the Liberal Democrats and ourselves. We are entirely content with the outcome.
Lord Tebbit: My Lords, I am most grateful to my noble friend—
Lord Evans of Temple Guiting: My Lords, the procedure book tells us that noble Lords are allowed to speak only once on an amendment.
On Question, amendment agreed to.
Lord Woolf moved Amendment No. 2:
"REPRESENTATIONS TO PARLIAMENT
(1) The chief justice of any part of the United Kingdom may lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice, in that part of the United Kingdom.
(2) But in relation to Scotland those matters do not include matters within the legislative competence of the Scottish Parliament, unless they are matters to which a bill for an Act of Parliament relates.
(3) In this section "chief justice" means—
(a) in relation to England and Wales or Northern Ireland, the Lord Chief Justice of that part of the United Kingdom;
(b) in relation to Scotland, the Lord President of the Court of Session".
The noble and learned Lord said: My Lords, it will be remembered by some of your Lordships that I tabled the amendment, which stands in my name, on Report. At that stage the noble and learned Lord the Lord Chancellor indicated that he would carefully consider the amendment. It is now in a revised form for reasons which I shall explain, but I understand that the Lord Chancellor is now prepared to support the amendment.
My noble and learned friend the Lord President, Lord Cullen, also has his name to the amendment and is fully supportive. Unfortunately, his judicial commitments mean that he cannot be here today. He asked me to convey his apologies to the House.
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This is an attempt to square the circle between the present position, where as Lord Chief Justice I can address the House directly, and the position in the future, if the Bill continues in its present form, when I will not have the privilege of appearing before your Lordships.
The virtue of the amendment is that it will allow the three judges—the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland—to lay written representations before Parliament which are, in the opinion of the judge laying the paper, matters of importance relating to the judiciary or the administration of justice.
The main difference between the original form of the amendment and the present one is that of the position in Scotland in respect of devolution. Subsection (2) is designed to meet concerns expressed on behalf of the Scottish Executive, that it would not be appropriate for representations to be made to this Parliament on matters under consideration by the Scottish Parliament. The main concern was thought to be that, without the qualification set out in subsection (2), the amendment might have been regarded as undermining the devolution settlement, although it was recognised that in practice problems were most unlikely to occur.
The formulation which has been agreed means that the Lord President will not be able to make written representations to your Lordships' House on matters that are within the competence of the Scottish Parliament unless there is a Bill or draft Bill under consideration. By convention, this Parliament legislates in devolved areas only with the consent of the Scottish Parliament.
I do not consider that this will be a power that any of the judges will use frequently. It is an additional safeguard. Apart from the amendment, a Joint Select Committee or a committee of either House may also choose to hear representations from the judiciary. That practice is exercised more often than hitherto but is still relatively rare. The senior judges of the three jurisdictions do not regard the possibility of appearing before a committee as a substitute for the protection forwarded by the amendment. I beg to move.
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