Examination of Witnesses (Questions 200
- 211)
WEDNESDAY 24 JANUARY 2007
LORD LLOYD OF BERWICK
Q200 Lord Peston:
I understand that but who should? Are you telling us that the
Lord Chief Justice knows, or that the Lord Chancellor should be
the one to defend them?
Lord Lloyd of Berwick: I think in practice it
would and should be done between the two. That is why it is so
important that the relationship between the Lord Chancellor and
the Lord Chief Justice should be as close as I have no doubt it
is, and they will discuss it and they will say which of them is
the more appropriate to deal with it. In general, where the attack
is by a minister, it would be more appropriate for the Lord Chancellor
to do it: it may be more appropriate in other cases for the Lord
Chief Justice to do it. I think if I had to say one or the other
I would say primarily the Lord Chancellor. But as long as somebody
does it that is the essential thing, and not what happened when,
as you discussed with the journalists, there was that gap when
the Lord Chancellor thought the Lord Chief Justice was going to
do it and he did not realise he was in Poland. That must not happen
again.
Chairman: Would you mind if we
just skipped back for a moment to the rule of law? I think Lord
Lyell has a supplementary.
Q201 Lord Lyell of Markyate:
If I may take my supplementary here and now, is not really this
problem of interplay between ministers and the judiciary really
a matter of courtesy and reasonable restraint on both sides? It
does not mean that you cannot say that a judgment is, in your
view, very unwise or to be tested on appeal or to be considered
by Parliament: it is the way you pitch in, and if you do it with
courtesy and explanation that has always been fine. The problem
is that there have been rather too many occasions over the last
X years when that has not been the case.
Lord Lloyd of Berwick: I entirely agree. Of
course, it is open to ministers to say they disagree with judgments,
and generally they will appeal if they can and if that appeal
is lost then they will say, "Well, we still do not like it
and we may have to consider legislation". What I think is
intolerable, and I think this lies behind your question, is a
personal attack on judges because the minister has disagreed with
a particular judgment. I am afraid that did reach a very serious
point when Mr Blunkett was Home Secretary when he attacked a judge
in an article in the Evening Standard and so on. That is
what should not happen.
Q202 Chairman:
Do you have the impression there are more of these ad hominem
attacks?
Lord Lloyd of Berwick: I think they reached
a crescendo during Mr Blunkett's tenure of the office of Home
Secretary. With Mr Clarke I think it was somewhat better, in fact
much better, and one just does not want to see that happening
again. But there is still obviously a tension.
Chairman: Thank you very much.
Lord Goodlad?
Q203 Lord Goodlad:
Can I ask Lord Lloyd how difficult he thinks it is for the Lord
Chief Justice to represent the diverse views of the judiciary
under the new arrangements?
Lord Lloyd of Berwick: Yes. The important point
to stress here is that there are very diverse views among the
judiciary. I think Lord Woolf would be the very first to accept
that. Judges all have independent minds. Very often they do not
agree, as we know, when they are giving judgments. They are unlikely
to agree all the time about the future arrangements in the administration
of justice. So there are clearly diverse views which will continue
to exist. I cannot see there is any real problem in the Lord Chief
Justice representing these diverse views. He can say what the
diverse views are. I recall very well a speech made by Lord Bingham
in the House of Lords when he explained what the views of the
judges were—I cannot remember what it was about, I think
it may have been about minimum sentences or something of that
kind—and then to everybody's surprise he said: "Well,
those are the views of the judges but I actually think differently".
So he can represent the views and I suppose his job will be to
reconcile them so far as he can.
Q204 Lord Goodlad:
Could I ask further, please, how representative, Lord Lloyd, you
think the Judges' Council is, and under what circumstances you
think it would be acceptable for judges other than Lord Chief
Justice to criticise government policy outside the courtroom?
Lord Lloyd of Berwick: So far as I know the
Judges' Council is completely representative but, again, Lord
Woolf himself would be the best person to give you evidence on
that. Judges are often asked to give their views about future
legislation in the form of consultation papers. This is perhaps
not always recognised. The circuit judges have done that quite
recently in relation to the proposed changes to the law of rape.
If they are asked to give their opinions then obviously they must
give their own opinions and, if they happen not to agree with
the views of the government, then too bad. I am nervous about
judges expressing too readily their views about public policy
generally. As Lord Woolf said when Lord Mackay was giving evidence,
they must be encouraged to use as much self-restraint as they
can.
Q205 Viscount Bledisloe:
I think we are all aware that you are less than wholeheartedly
enthusiastic about the arrangements for the new Supreme Court
and the removal of the Lords of Appeal from this House, but what
appreciable impact do you think that will actually have on the
constitutional relationships between the judiciary, Parliament
and the Government?
Lord Lloyd of Berwick: I think the main one
will be, and I regret this very much, that judges, and in particular
the Lord Chief Justice, will no longer be able to represent the
views of the judges in Parliament. That has worked well in the
past: there has never been any difficulty with it, and nobody
has been able to think of a satisfactory way of replacing that
role. Section 5 is obviously not going to operate very frequently.
Of course, the Lord Chief Justice can appear before parliamentary
committees. But there was nothing quite like successive Chief
Justices being able to come to the House and explain, for example,
why minimum sentences do not really work, how they necessarily
involve injustice in particular cases. Three successive Chief
Justices expressed their view in the House. Now they can only
do it in lectures or however it may be, and that is not satisfactory.
As for the Law Lords, let us suppose for a moment the Constitutional
Reform Act had never been passed. I think there might have been
a period during which for various reasons the Law Lords were not
taking a very active part in the chamber of the House of Lords.
One is that they work very hard and they just simply do not have
the time to take as much interest in legislative matters as they
used to do. But that might well have passed and I think there
would have been future Law Lords—and perhaps there are some
now—who would have wanted to take part in the legislative
process. They can be a very great help to the House in doing so.
Lord Mackay mentioned Lord Wilberforce but I can name any number
of others. Lord Scarman is a good example of someone who made
a great contribution to the House and there are many others. So
I think when it comes into operation it will have a deleterious
effect on the work which the House does.
Q206 Viscount Bledisloe:
Now that there is an automatic retiring age for Law Lords do you
not think that that can largely be solved by bringing some of
the retired Law Lords back into the House in whatever form the
reformed House takes?
Lord Lloyd of Berwick: I do not think that will
work myself. One of the advantages of the old system, (and I am
sorry just to defend the old system but you have asked me why
I defend it), was that when a man became a Law Lord this place
was at first quite strange to him. He might have felt a little
shy—and I can see the Chairman finding that odd! It takes
quite a lot for a Law Lord to take part in the ordinary business
of the House of Lords. It happens generally through a Law Lord
being Chairman of one of the Committees of which Law Lords have
traditionally been Chairman. Gradually they get to know members
of the House and so on, and that leads on to their taking a part
after they have retired. If they do not become members of the
House of Lords until after they have retired I can guarantee that
none of them will come. I cannot see why they should.
Chairman: That is a very touching
picture of these shrinking violets! I am afraid this is going
to have to be the last question. Lord Rowlands?
Q207 Lord Rowlands:
What impact do you think Human Rights Act has had upon the relationship
between the courts, Parliament and the Government?
Lord Lloyd of Berwick: I basically agree with
what Lord Mackay said. There is sometimes a confusion between
the effect of the Human Rights Act on the relationship between
the courts and Parliament and the effect of the European Communities
Act way back in 1972. The only way in which the judges can overrule,
if you like, primary legislation is under Section 2 of the 1972
Act, on the ground that it is inconsistent with the Treaty of
Rome. Some people have got, I think, confused between the 1972
Act and what happens under the Human Rights Act, which is utterly
different. There is no ability under the Human Rights Act for
judges to declare an Act of Parliament to be unenforceable.
Q208 Lord Rowlands:
But, in effect, it can happen. If you strike down in this particular
case virtually the whole basis of the legislation, then that is
virtually having the same effect as striking the statute, is it
not?
Lord Lloyd of Berwick: Well, no. In the terrorism
cases—which is what you are thinking about?
Q209 Lord Rowlands:
Yes.
Lord Lloyd of Berwick:—that was not so.
All they did was to say that the 2001 Act was incompatible with
the Human Rights Act; that is all they could do. It was then up
to Parliament to decide what to do about it. The critical moment
was in 2004 when, if the Secretary of State had said: "Well,
I do not care what the judges have said, I am going to go on with
the 2001 Act", there really would have been a crisis. But
he did not. The Home Secretary accepted the decision of the Law
Lords and provided something in its place.
Q210 Lord Rowlands:
So you do not think that the combination of both the Human Rights
Act and the issues of anti-terrorism legislation has brought the
judges more into the political scene?
Lord Lloyd of Berwick: Well, it certainly has
highlighted the importance of the function which they perform,
which is to say whether or not any legislation complies with the
Human Rights Act which, after all, Parliament itself passed. That
is all they can do. In most cases it happens quite easily. I did
ask somebody once how often there has been a declaration of incompatibility.
It is somewhere between 40 and 50 cases. In every case Parliament
has had no difficulty in adjusting the situation. It is only when
it is in a very high profile case, as it was in terrorism, that
it hits the headlines. Otherwise it happens, not all that frequently
but it does happen, all the time. And it does not create any problem.
Q211 Lord Rowlands:
What do you think of Charles Clarke's view that you should have
an opportunity for getting some sort of advisory view on legislation
before it is passed?
Lord Lloyd of Berwick: Well, Lord Mackay was
a little more understanding of that idea than I am. I think that
is an impossible idea. I do not think one could conceivably have
ministers going to the Lords saying: "Will this be all right
or not?", it just underlines another point Lord Mackay made,
how little people who ought to know better, understand how things
actually work. Astonishing.
Chairman: That seems a very good note on which
to conclude your very helpful evidence. May I say, as I said to
Lord Mackay, if you do have any second thoughts that you would
like to show to this Committee we would be grateful, but meanwhile
thank you very much for coming along. It has been a very helpful
session.
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