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Lord Donaldson of Lymington: Leaving that to one side, my Lords, I stress that in relation to judging, judges are totally independent of the Chief Justice or any other judge. Early in my judicial career, I wanted advice from the Chief Justice about a bail case. I went to see him, and he gave me unequivocal advice about whether bail should be granted. The circumstances of the case, when I eventually heard it, were very peculiar, and I granted bail, contrary to the Chief Justice's policy and advice. I went back to him and said, "I am terribly sorry, but I thought that on the facts of this case I had to grant bail even though it is contrary to all policy and precedent". His answer was, "Don't think about it for a moment, John. That's what you're paid for". That illustrates the independence of the judiciary on individual cases.
The senior judiciary are members of a collegiate body. If the senior members of that body thought and said that there were good policy reasons for not accepting the appointment, I am convinced that the appointment would not be accepted. To that extent, it makes little difference, except that it is part and parcel of taking independence away from the judiciary.
My last point does not arise directly on this amendment, but the noble Lord, Lord Kingsland, mentioned it. He said that there was talk on the Government side that in the next Parliament, if they are in a position to do so, they will attempt to reduce the delaying power of this House. I am sure that he is right about that.
I wish to draw the attention of the House and perhaps a wider public to the fact that a by-product of the Hunting Act dispute was that the Court of Appeal gave judgment that the Parliament Act is not available
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to alter relations between the two Houses of Parliament. That is vital. I know that those concerned with hunting felt very strongly about it. Without resorting to the Parliament Act, the Government could have got the legislation through by today by putting the Bill before the Commons in this, the third Session. I am delighted that the Hunting Act was taken to the courts because it will enable them, subject to what this House in its judicial capacity may say on a further appeal, to say flatly that you cannot use the Parliament Act to get rid of the House of Lords.
Lord Ackner: My Lords, before the noble and learned Lord sits down, has he read the remarks of the noble and learned Lord, Lord Cullen, the President of the Court of Sessions, as reported in Hansard, at Report stage of the Inquiries Bill? He said:
"This matter should be in the hands of the senior judge; it should not be left to the judge who is the target of the Minister's attentions. From my own experience as an inquiry chairman, I think that most judges would feel very diffident about turning down an invitation to take an appointment which was seen as being for the public good".[Official Report, 7/2/05; col. 646.]
Lord Lester of Herne Hill: My Lords, the noble and learned Lord, Lord Ackner, once described somebody as a jellyfish. I do not regard the judges of this country as jellyfish, and the idea that judges would behave in the way that has been suggested by two very distinguished former Law Lords is, with great respect, not my view of Her Majesty's judges. It is inconceivable that any judge worth his or her salt would accept an invitation to serve at an inquiry of the kind contemplated by this Bill without consulting the Lord Chief Justice. No Minister would be so foolish as to invite any judge to serve on an inquiry without first ensuring that he or she had the consent of the Lord Chief Justice. In practice, a constitutional convention, if one likes, will develop under this Bill, and has already developed, whereby any Minister who wishes a judge to head an inquiry will in practice not only consult the Lord Chief Justice but obtain his consent.
We have not changed our minds. We agree with almost everything said by those in favour of the amendment that we first fashioned. Above all, we agree with the views of the Lord Chief Justice, the noble and learned Lord, Lord Woolf, who, as I understand it, has not changed his mind on the issue of principle. The problem, which the noble and learned Lord, Lord Ackner, describes as "neurotic", is not neurotic at all. We are concerned at the moment with what a great Conservative Home Secretary, RAB Butler, described as the art of the possible. I regret that the noble and learned Lord the Lord Chancellor takes a very firm position on this matter and will not budge. Although the noble and learned Lord, Lord Ackner, invites us to gamble and to call what he considers to be the noble and learned Lord the Lord Chancellor's bluff, we are not prepared to gamble with a very important Bill in that way.
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I remind the House that, like the Cross Benches, the Liberal Democrats are in an unusual position in this House. We and the Cross Benches effectively control the balance of power in some key issues. Without wishing to sound pompous about it, the way in which we exercise that responsibility is rather important. We do not gamble; we must be sure that if a Bill is well designed it will pass. We are in an uncomfortable position because we wholly agree with our own amendment and wish that the noble and learned Lord the Lord Chancellor had changed his mind.
The Lord Chief Justice, to whom I have spokenI am sure that I am at liberty to say thisis very disappointed that this amendment will not be agreed to. But he is a statesman, a wise person who combines principle with pragmatism, recognises the art of the possible and has made it clear that he would not wish to block this Bill by taking an obstinate position on the issue.
If we thought that it would weaken judicial independence if the amendment were not agreed to, we would continue with our original position. But as my noble friend Lord Goodhart and the Minister have both indicated, it will not weaken judicial independence in any way. It will make certain that a wise Minister will act as I have said. If an unwise Minister is foolish enough not to consult and get the consent of the Lord Chief Justice, the Lord Chief Justice and the judges will make sure that that will be made public, it will be a scandal and the Minister will be accountable to Parliament.
For those reasons, I very much hope that the House will reject the position being taken now, even though it was our original position. There is no change of mind on our part. We deplore the fact that our original position is not acceptable to the Government, but there is a greater purpose: to get the Bill on to the statute book.
Lord Laming: My Lords, as ever, the noble Lord, Lord Kingsland, has moved an amendment with great skill and thought. It would be foolish to discount the points that he has made. As, yet again, the only non-lawyer to address these issues
Lord Laming: Sorry, my Lords, apart from the Minister, who is in a central positionI took that as granted. I hope that it will not be thought presumptuous of me if I say that I agree with the noble Lord, Lord Kingsland, that members of the judiciary should take seriously the thoughts of the American Bar Association about judges getting too closely involved in matters that are overtly party political. That is a serious issue.
It was because of my concern, for what it is worth, about the independence of the judiciary, and in particular the position of the Lord Chief Justice, that I supported the earlier Bill that went through your Lordships' House. It strengthens considerably the independence of the judiciary and the position of the Lord Chief Justice. But history shows that Lord Chief Justices are made of sterner stuff than we sometimes seem to give them credit. Nobody becomes a Lord Chief
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Justice unless heand, I hope, some time shehas learnt to operate within the system tenaciously and robustly, and to have the dexterity to turn a problem into an opportunity. The position of the Lord Chief Justice in the Bill as it left the Commons, where he must be consulted about these matters, strikes the right note.
I have no doubt that, recognising that both the Lord Chancellor and the Lord Chief Justice have common cause on many of these issues about the effectiveness and resources of the courts, the Lord Chief Justice will find himself or herself in a strong position in negotiating with the Lord Chancellor on such matters in the future. I also agree with those who saythe noble Lord, Lord Lester, in particularthat the Lord Chief Justice is likely to have such a standing with fellow judges that a quiet word will have considerable effect.
I do not agree that there is a great attraction in chairing an inquiry because of the opportunity that it gives for personal publicity. Indeed, anybody who felt that that was an attractive proposition has obviously not experienced the glare of personal publicity. I believe that, having myself had the benefit of a quiet and sound word in the earand sometimes, even in my humble position, having offered a quiet and sound word in the earI feel sure that these matters can be dealt with properly. I believe that the Bill, as it has left the Commons, strikes the right note and I hope that this amendment will either not be pressed, or, if it is, will be defeated.
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