Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 180 - 182)



  Q180  Lord Windlesham: Let us turn now, Lord Mackay, to the role of judges in Parliament. Under the Constitutional Reform Act it would seem that the judiciary will no longer have the ability to speak on the floor of the House of Lords, and so raise concerns they may have about Government policies affecting the judiciary; instead of this the Lord Chief Justice may make written representations to Parliament under section 6 of the Constitutional Reform Act. May I ask you, on what sort of issues do you envisage that this new procedure should arise?

  Lord Mackay of Clashfern: There are two matters I would want to mention. First of all, it has become much more common now for the judiciary—the senior judiciary particularly, but not always the senior judiciary—to come to speak to parliamentary committees, such as the Home Affairs Select Committee, and now the Constitutional Affairs Committee—and Home Affairs is still of importance in relation to prisons and that kind of thing. I believe that the section 5 representations would be appropriate only for very critical—I do not mean critical in the sense of finding fault, I mean critical in the sense of very important—matters; I do not think it is a procedure that I would envisage being used very often. It would be something really fundamental, I think, that one would expect to be raised if that procedure was to be used. More informal procedures such as speaking to committees and so on are more common and more likely to be productive. I, of course, greatly regret that the senior judiciary are not able to speak in the House of Lords; that is a pity. It is part, as My Lord Chairman said, of the separation of powers; separation of powers is well in theory but I doubt whether it always produces the best results in practice if carried too far, but as Lord Falconer said yesterday, that is history, Parliament has done this now. The senior judiciary often contributed very importantly to debates in Parliament, on matters not directly affecting them. For example, I remember a very interesting and eloquent speech of the late Lord Wilberforce on the insurance provisions in relation to buildings and in relation to the surveying of buildings by the local authority, and the liability that failure to survey properly might produce. He was an absolute master of that area and Parliament is deprived of the benefit of that. No doubt he could put it in a lecture or something, but it is not quite the same as a direct address to Parliament. My answer is that section 5 is only for very dramatic and extremely important developments, otherwise less formal communication, particularly with the committees of both Houses, is important.

  Chairman: I want to bring Lord Lyell in but could I just ask you a supplementary. If written representations under section 5 are a sort of ultimate deterrent, were not to be used lightly but for, as you say, critical issues, the question arises of what sort of normative patterns of communication are there rather than exceptional. One idea which has been put to the Committee and has found some support from various witnesses is that the judiciary might produce an annual report to be laid before Parliament every year, setting out activities and issues of public interest that they want to put in the public domain, and that that every year would occasion a Parliamentary debate and be an opportunity to, as it were, sum up in a less dramatic way than section 5 written representations, although it could be complementary to it. What would be your reaction to that idea?

  Lord Mackay of Clashfern: My impression is that there is already a provision for the court reporting annually; the Court of Appeal has done it for some time but it is more general now. That is a method of communication that I would regard as very appropriate and rather routine, and it is on that occasion normally that the Lord Chief Justice would probably give a press conference, explaining the report and answering any questions that might be raised about it by the press.

  Q181  Lord Lyell of Markyate: Following that up, Lord Mackay, one of the great strengths, it always seemed to me, of our constitution was that in a sense all three arms came together in Parliament—the executive, the judiciary, the legislature. The previous Lord Chancellor, Lord Irvine of Lairg, in a quite seminal debate in 1996, which you took part in, said: "I turn to the role of the Law Lords, both sitting and retired, in your Lordships' House. Their expertise in the administration of justice allows them to make an invaluable contribution to our debates on that subject." I would take it that you would agree with that. At the moment, at least, unless there is some change, the sitting judges have been pushed out of Parliament, but for retired Law Lords the position does not seem to be entirely clear. Would you encourage the fact that they should, when they retire, come in and seek to contribute actively to our debates?

  Lord Mackay of Clashfern: Of course, the position will change in that the members of the Supreme Court will not be Lords once the new Supreme Court arrangements come into place, and therefore that option after that will not be available unless they are given peerages on retirement. That could happen, but I do not know whether you expect it to happen, I am not sure. Anyway, unless and until they get a peerage they will not be able to participate, and that is a pity, if that is the way it works out. If I may say, I entirely agree with what Lord Irvine said in that debate and I would not be surprised if his view on that matter remained the same in June 2003, which led to the events of which we know.

  Chairman: I am afraid this will have to be the final question because we have another distinguished witness, but Lord Bledisloe.

  Q182  Viscount Bledisloe: You began by saying that you are aware of the evidence which Mr Clarke gave to us last week; can I ask you a bit more about that? He was suggesting that the senior Law Lords should be prepared to discuss with him legislative proposals which he intended to bring forward, and indeed he went so far as to suggest that they might give a formal opinion upon their validity before they were enacted. Indeed, he went so far as to say that it is disgraceful that a Law Lord is not prepared to discuss with the Home Secretary of the day the instances of the principle involved in this matter. What is your view of the constitutional propriety of a discussion of that kind as to the validity of a law before it had been challenged in court?

  Lord Mackay of Clashfern: Under the new arrangements, in effect putting the Law Lords out of Parliament—though it has not quite happened yet—on the basis that it is to happen the consequence of that is the situation which Mr Clarke found difficult or objectionable. On the other hand, it would be possible because some of the courts in Europe have the possibility of pronouncing on bills before they become fully law, but that would require a statutory provision that would enable a minister to put his bill before the courts for discussion in the court. One of the difficulties Mr Clarke may not fully have appreciated is that a Law Lord sitting in his room in the House of Lords or elsewhere, presented with Mr Clarke's proposals, might see them as quite reasonable, but he has not heard the full argument and when somebody comes along with the opposite argument, his mind may change. After all, I believe that the essential quality of our judges is their ability to have an open mind, to decide the case in the light of the arguments. I was once at a conference with the then Chief Justice of the United States and the Chief Justice of Canada, and the subject of judicial appointments came up. I ventured the opinion, in the presence of these gentlemen, that in the United States judges were appointed for their opinions—because they were examined in great detail in the Senate Committee—whereas here they were appointed for their ability to form opinions after they heard the argument, and I think William Rehnquist was prepared to accept that. One of the difficulties of Mr Clarke's proposal in the informal shape of it is just that, that judges would be forming opinions without a full argument about it, and that is highly dangerous. On the other hand, if there was a formal statutory procedure for ministerial proposals being put to the courts, say in a draft bill, then argument would be open and everyone who had an interest in it would have a chance to state their point of view before the judges came to a decision.

  Chairman: Thank you very much, Lord Mackay; we are most grateful. There will be a transcript of your evidence and if you have any seconds thoughts or things that you would wish to have said, we shall be extremely grateful to receive them, but as it is could I thank you very much, it has been very helpful evidence indeed. Thank you.

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