Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 200 - 211)



  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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