Examination of Witnesses (Questions 180
- 182)
WEDNESDAY 24 JANUARY 2007
RT HON LORD MACKAY OF CLASHFERN
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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