Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 160 - 163)



  Q160  Lord Lyell of Markyate: You may be right in that the effect of the Convention on Human Rights has caused judges to play much less part in Parliament, which personally I regret. Do you agree with me that actually there was a very considerable strength in the Law Lords' position being in Parliament and that they knew very well the limits of what they should not do when they took part in legislation and that we may lose something when they go and that we have great benefit, for example, by retired Law Lords taking an active part?

  Mr Clarke: In principle yes, but in practice I have my doubts on two grounds. Lawyers are not quite as bad as economists but they are nearly as such. You get a very great range of very distinguished lawyers giving completely different and contradictory opinions on points with a great wealth of history. For the non-lawyer to observe it with interest is not necessarily clarifying. I am not certain that it is possible to get to a state of affairs with superior wisdom coming to bear on these matters. Secondly I think precisely what you said, Lord Lyell, reinforces the case I am making that there needs to be some forum where there is proper discussion of some of these issues. That may not be the House of Lords and I think it is open to question whether the House of Lords would have been a good forum for that, but there needs to be some forum for exchange and to that extent I agree. I know that you, yourself, are doubtful about some of the ways in which the European Union has operated and indeed the Council of Europe in some of these cases and the impact it has had upon our life in this country. However, we are members of the European Union, we are members of the Council of Europe, we live under the European Convention on Human Rights, we have done for a considerable period of time now. I do not anticipate that changing and therefore we need to find some arrangements which fit the world in which that is a reality. Whether that is a proper debate, to be honest I do not have a very good proposition as to what that should be, but I think we should be trying to edge towards a greater common understanding between the different arms of government about how we operate in these circumstances.

  Q161  Lord Woolf: My last question goes back to what we have been discussing before in this way. You are suggesting there should be informal methods of communication between the Law Lords and the executive which work better than they do at present. However, do you think that Parliament could play a role by establishing new constitutional arrangements to provide better channels of communication between the judiciary and the executive? It is a different constitutional set up but in France there is a process where legislation comes before the Conseil d'Etat before it is passed and the Conseil d'Etat, which is in many respects the final arbiter like our Law Lords, then gives a decision although later on it can come to a different decision.

  Mr Clarke: I am aware of the French example and I think it is quite interesting. Obviously France has a completely different legal system and so on but nevertheless I think there are some interesting points. Just for the avoidance of doubt, I am not arguing that informal is the only way to proceed. I think there needs to be a form of exchange of views which could very well be formal and in answer to Lord Woolf's point I certainly can envisage Parliament having a role in that process that would carry things through in a special way. Obviously the new parliamentary committees—the Joint Committee on Human Rights, for example—are efforts to try to take that forward in a better way. However, it needs to be evolved in a politically non-partisan way and I think that is the real problem. I think that because of the political partisanship about much of this legislation which I am acutely aware of has been so sharp, it has made it difficult sometimes to get to a broader interest in all this and I think that that arises here too. My answer to your question is yes, Parliament could play a major role and I think actually it could well be the moderator between the executive and the judiciary which could enable a better set of relationships to be established.

  Q162  Lord Woolf: Parliament requires from various bodies annual reports which can then be discussed. Certainly when I was Chief Justice I actually did produce annual reports on the civil division and the criminal division of the courts explaining what we had done. Do you think it would help if there was something similar from the Law Lords explaining their position? At the moment you have explained your views but the Law Lords have no similar forum to explain their position.

  Mr Clarke: May I offer them one in my drawing room next week if they would like to take that up? The answer is yes, I do think an annual report of that kind is very helpful. I really do think it is critically important to find some framework of debate on these matters and annual reports and devices of that kind are very, very positive proposals.

  Q163  Chairman: Thank you very much, Mr Clarke, for exceptionally interesting and forthright evidence. It has been very helpful to the Committee. We shall produce a transcript of your evidence and if you have any second thoughts that you would like to let us have we would be very grateful. Meanwhile thank you very much indeed.

  Mr Clarke: Thank you very much.

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