Examination of Witnesses (Questions 160
- 163)
WEDNESDAY 17 JANUARY 2007
MR CHARLES CLARKE
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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