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This debate comes at a salient moment, because we are due to consider a constitutional renewal Bill in the new Session. The noble Lord, Lord Norton, my noble friend Lord Maclennan and I have been sitting on a Joint Committee conducting pre-legislative scrutiny on that Bill. It is significant that some of the issues that have been raised this evening have reappeared

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already in draft form, but perhaps not in as satisfactory a form as we had hoped. A number of colleagues on that committee and I filed a minority report on the role of the Attorney-General, to which I shall refer.

The reports before us this evening touch on the ministerial code. I certainly agree that Ministers should keep their sabre-rattling to a more muted tone than they have in the recent past. Frankly, irresponsible, headline-grabbing soundbites such as those made by Dr Reid or Mr Blunkett, designed to play to the Murdoch media gallery, should be consigned to the previous era of spin over substance.

In evidence to the committee, the Lord Chancellor pointed out how important that restraint was for him. The fact that he recognised that is very healthy, given that he is the first Lord Chancellor to sit in the Commons. As the noble Lord, Lord Pannick, said, his discipline is shared with other Ministers. Section 3(1) of the Constitutional Reform Act states:

“The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary”.

There is also the broader question of how the ministerial code is determined and enforced. Again, the committee has given us helpful advice. It surely cannot be satisfactory that the code under which Ministers of the Crown conduct themselves is solely in the gift of the Prime Minister, like a sort of headmaster’s rule book, and that Parliament has no role in scrutinising its principles or agreeing its content.

A separate but related issue is not just how Ministers conduct themselves, but how Prime Ministers behave when they decide, at a stroke, to reorganise the way in which government works. That was true with the Ministry of Justice, but that was not the first occasion on which there was a dramatic change to the architecture of Whitehall without any reference to Parliament. It is important that, in future, we should consider carefully how major changes to the responsibilities of government departments are put in place and ensure that they are justified and scrutinised here in Westminster. Frankly, Friday afternoon changes by press release, sometimes even during recess, are no substitute for effective parliamentary scrutiny. It is clear that new mechanisms to make the process more rational would not just be an unhelpful roadblock for the Prime Minister of the day but might help him to get the changes right at first attempt.

No one can seriously believe that the Lord Chief Justice and the Lord Chancellor would have been left in the dark about the creation of the Ministry of Justice if those matters were not drawn up on the back of Downing Street envelopes. Very often, I fear, the architecture of governance has become a game of musical chairs—how do we move individuals around within the Cabinet?—rather than about ensuring that the way in which departments are given responsibilities is logical, rational and well examined by Parliament. You cannot knock down a terraced house without other houses in the row being affected and Prime Ministers cannot simply demolish the operation of one department without it fundamentally affecting others.

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Similarly, as the reports have indicated, the fundamentally important relationship between the Executive and the judiciary should not be the exclusive province of either or both together to agree. There is a role for Parliament here, just as there is in endorsing the ministerial code. The committee’s report uses fairly typical “committee-ese” in recommending,

I hope that the Leader of the House will this evening be able to respond rather more formidably and forcefully to that recommendation.

The committee repeats and endorses the view of the Lord Chief Justice, who has warm words for our present Lord Chancellor. Indeed, I think that this House and another place believe that Jack Straw has proved himself a deft—and even rather crafty—political operator in respect of constitutional reform. His evidence to the committee shows that he takes his role in that respect, and in relation to the judiciary, very seriously. The combination of his responsibilities with those of the Secretary of State for Justice—again covered by the work of the committee—appears to work well with him. Whether it would always work well, with another individual of less capacity or experience, is something that we should be concerned about.

Paragraph 20 of the follow-up report raises the important issue of whether judges should appear before Select Committees and how they should do so. There is an important issue here about the separation of powers. I am not sure that the noble Lord, Lord Norton, and I entirely agree about the need for a written constitution, but if we were writing a constitution for anywhere else in the world—as, indeed, British jurists have—the separation of powers between the judiciary, the legislature and the Executive would be an absolutely fundamental principle. Making judges in any way answerable to a Select Committee seems a step too far. I think that the balance is right in the committee’s report, but it is still something that we should be careful about.

Similarly, I note the comments about the code of practice for editors in paragraph 33. I would regret Parliament going too far down the road of instructing how editors should regulate themselves. That seems to be the sort of censorship that other countries have suffered from and to which, perhaps, the noble Lord, Lord Pannick, was referring. I have been a journalist and, frankly, what editor is not going to use a quote like that given by David Blunkett when he was Home Secretary? He said:

“I just want judges that live in the same real world as the rest of us”.

By legitimising that sort of wording, Home Secretaries and other Ministers are giving the media, particularly the tabloid media, opportunities that they will inevitably take. There are plenty of other examples. If it were not so late, I could report several such instances involving previous Home Secretaries. Dr John Reid learnt much at the feet of his predecessors.

Where do we go from here? The Joint Committee on the Draft Constitutional Renewal Bill, on which I sat with my noble friend Lord Maclennan and the noble Lord, Lord Norton of Louth, was clear in

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chapter 8 of its report that the draft Bill did not meet the expectations raised by the Prime Minister’s Statement in July 2007, the Green Paper that followed it and even the White Paper that followed that. Although it would not be appropriate at this hour to quote in extenso from chapter 8, I hope that the Leader of the House will be prepared to take back to her colleagues the strong view of the Joint Committee that the very narrow scope of the draft Bill did not fulfil the hope and expectations that the Prime Minister raised in his original Statement on constitutional reform. Uniquely, I think, both Houses and Members of all parties were unanimous in this. Specifically, The Prime Minister said that it was necessary for Parliament to be given a much wider role in controlling the work of the Executive and holding Ministers to account. Frankly, the draft Bill does not do that. There are strong comments to that effect not only in chapter 8 but throughout the report.

I referred earlier to the role of Attorney-General. Colleagues from all parties and I submitted what was, effectively, a minority report. Again, I am not going to quote from it at length, as that would not be appropriate. We started from the premise that the Prime Minister was right when he said:

“The role of Attorney-General, which combines legal and ministerial functions, needs to change”.—[Official Report, Commons, 3/7/07; col. 817.]

He said that, not the committee. It was in his first Statement on the important issue of constitutional renewal. The primary colours in those bold words had faded to a murky grey by the time we reached the draft Bill.

Anyone who thinks that this problem has gone away should read the comments made by the noble and learned Lord, Lord Bingham, about the advice given by the then Attorney-General on the war in Iraq. I regret that it was not possible for the noble and learned Lord, Lord Goldsmith, to be with us this evening; I was not aware of that until the debate started. The noble and learned Lord, Lord Bingham, said:

“If I am right that the invasion of Iraq by the US, the UK and some other states was unauthorised by the Security Council, there was, of course, a serious violation of international law and of the rule of law”.

The reports are extremely interesting, but the interrogation of the present Lord Chancellor by the committee on 23 October 2007 was even more interesting. I read it again this evening; one of the advantages of starting rather late is that one gets an opportunity to read all the evidence. In his evidence in that appearance before the committee, Mr Jack Straw said that,

the role of Attorney-General—

That is strong stuff, but the fact is that, as the draft Bill is constituted, that is not likely to happen.

When the Queen’s Speech takes place in a couple of weeks’ time and when, in due course, the Government publish their Bill, I hope that they will look carefully

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at the recommendations of the Joint Committee, but I hope that they will also think carefully about what Mr Straw said to the committee at that hearing. I refer to his answer to question 10, in which he said that,

The Joint Committee strongly recommended broadening the Long Title of the draft Bill, and it seems that Mr Straw intended that all along. I hope that the noble Baroness the Leader of the House will be able to give us an undertaking that some of the concerns expressed in this House, by our committee and during this debate, as well as by the Joint Committee, will be taken into account.

Lord Holme, who was then in the chair, said to Mr Straw:

“So you see it as a positive advantage that it is a portmanteau Bill and people can put other things in the portmanteau?”.

Mr Straw replied simply: “I do”. It is not often that a senior Minister gives an answer as specific or as brief as that. I hope that the Government will now respond not just to the Constitutional Committee’s reports but to that of the Joint Committee looking at the draft Bill.

My noble friend Lord Lester, who has done such pioneering work on the royal prerogative, will have a great deal to contribute to that portmanteau. So will other Members of your Lordships’ House, not least the noble Lords, Lord Pannick and Lord Norton, who have made such sensible contributions to this debate. If we do not take that opportunity, not just the work of our committee but all the preparations since the very moment that the Prime Minister indicated the priority that he was going to give to constitutional renewal will be wasted.

10.24 pm

Lord Maclennan of Rogart: My Lords, this has been a remarkable debate that has ranged quite widely, as might have been anticipated from the scope of the two reports that we are considering tonight. It has been made a memorable debate by the outstanding maiden speech by the noble Lord, Lord Pannick, whose presence in this House adds not just great experience of the interrelationship of the judiciary and Parliament but great wisdom and sensitivity, which was reflected in the four points he wanted to make in the relatively short time available.

The noble Lord was right to say that tension between Ministers and judges is inevitable, as he was right to point out that sometimes criticism of judges is appropriate, provided that it is delivered in a reasoned way with measured language. The tone of his contribution was immensely encouraging and we very much look forward to hearing from him again. The thrust of our interest in this place in constitutional reform and the acceleration of the consideration of such matters is something that will no doubt bring him back on a number of occasions.

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It is appropriate to express the warmest appreciation to the noble Lord, Lord Goodlad, and his committee and to remember with gratitude the role played by my late friend Lord Holme of Cheltenham. The noble Lord, Lord Goodlad, refreshed our recollection of the outstandingly important points in the report. I would not presume at this hour to rehearse the main issues that it lighted on. Rather, I shall confine my remarks to one or two points of interest. I am grateful to the committee for having raised them; I may have a slightly different emphasis in animadverting about them.

One of the greatest achievements of the committee may be to have induced agreement that there should be an annual report from the Lord Chief Justice. There must be—notwithstanding the independence of the judiciary, which Parliament must respect—an interface between Parliament and the judiciary, and that is best handled in this way, with the considered deliberations of the judiciary expressed by the Lord Chief Justice, especially with regard to issues of management and budgetary concerns. Those are entirely proper issues for Parliament to consider. It is also right that they should be discussed in advance of determinations being made.

I note the criticisms made about the creation of the Ministry of Justice without much prior deliberation, but these matters have led to the valuable framework document, which will bring together the responsible Minister and the head of the judiciary. Here I slightly disagree with the committee report. That document has to a considerable extent been overtaken by the concordat set out in 2004 during the passage of the Constitutional Reform Act. That document—although an important historical document, and one that set out the understanding of the Minister, the Lord Chancellor of the day, who was responsible for the proposed reform, and of the judiciary as to how it might operate in practice, and some of the fundamental values and principles to be supported by the legislation—is none the less an historical document. It is a document which is of value in that context but I doubt whether it makes sense to treat it as though it were some sort of statutory instrument which needs to be revised if there are changes of political emphasis. If there are such changes, it is of course desirable that they should be made explicit so that they can be discussed, but it should not be seen as a kind of fundamental law governing the relations between the Executive and the judiciary.

My noble friend Lord Lester in his comprehensive speech raised a number of extremely important issues, not least his reflections on the prerogative powers. These are matters which, as my noble friend Lord Tyler mentioned, will be reviewed again if the Government bring forward their Constitutional Renewal Bill in anything like the form considered by the Joint Committee prior to the Summer Recess. There will be other opportunities for deliberating on these matters but I wish to say how strongly I support the view of my noble friend that the prerogative powers should be drawn from Parliament and based on statute. There was a clear watering-down of the Prime Minister’s initial statement expressed so eloquently in his Green Paper on the role of Parliament, particularly in respect of the prerogative powers, which was not

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welcome. I hope that matter has been reviewed in the light of the consideration given by the Joint Committee.

The noble Lord, Lord Norton, as we might expect from such a thoughtful Member of the House, raised the remarkably interesting question of the need for an agreed constitutional framework in which the relationships between the Executive, Parliament and the judiciary can be developed. I was not entirely certain that he was suggesting that a written constitution is the answer, though my personal view is that the kind of discussion that he proposed, led by a royal commission, might very well point in that direction. In so far as we have two major constitutional matrices—the European Communities legislation and the Human Rights Act which now cover a major part of our constitutional provision—it would not be such a departure from British tradition to move a few steps further in that direction.

One step further which I would not welcome, however, is the proposed Bill on rights and duties to sit beside the Human Rights Act. My noble friend Lord Lester, in a charitable spirit as one would expect, expressed the view that if such a piece of legislation was proposed, it might assist in clarifying areas of uncertainty. I hope I do not misrepresent him. In the sphere of human rights the drafting by those distinguished British lawyers and politicians of the original European convention was very apt. Sir David Maxwell Fyfe, I believe, was one of them—a Member of the Conservative Government and subsequently Lord Chancellor. It is worth saying that these rights are expressed in the broadest and most general terms, and that their effectiveness in protecting the citizen depends on the wise judiciary applying the jurisprudence that has grown over the 50 years of their existence, both in Strasbourg and now more recently in our own country. Parliament would not necessarily find it an easy task to define these matters, the application of the principles of which may well be best left to the judiciary.

I fear that the complexities of seeking to embody aspirations for a law of privacy in a separate law might have a contrary effect to the one intended. The balance between freedom of expression and privacy is clearly contained in the convention, and in the Human Rights Act as a result, and no amount of distortion by such witty and amusing writers and speakers as Mr Paul Dacre can or should be allowed to detract from the power of the courts to apply these things. I was grateful to the noble Lord, Lord Pannick, for reminding us of the extent to which the Court of Appeal and others have considered these issues; they have not been decided entirely by one judge, who was the butt of the attack by the editor of the Daily Mail in his speech to the Society of Editors.

It is worth putting on to the record of our proceedings two statements made by Paul Dacre in that speech. First, he said that,

Secondly, he drew attention to what he described as,

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I have a sense that that speech was distinctly over the top. There was an element of mischief in it, too.

It is also worth noting that Mr Paul Dacre, in his remarks about human rights and about privacy in particular, rather candidly expressed an opinion that may offset some of his criticisms of the judge. After praising the press for its role in public shaming—and, as it were, in setting standards—he went on to say:

“Put another way, if mass-circulation newspapers ... don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process”.

It seems to me that that consideration was very much at the front of his mind when he delivered that speech, and I am bound to say that I cannot see that all journalists regard the peddling of scandal as a necessary duty to retain the freedom of the press and its role in our democratic processes.

This debate has been valuable, not least for giving wider attention to an important and valuable report. Some of its recommendations have already been acted on, and I hope that we will continue to hear more from the Constitution Committee about these matters.

10.39 pm

Lord Kingsland: My Lords, first, I should like to thank my noble friend Lord Goodlad for his excellent report and his opening speech. Equally, I congratulate the noble Lord, Lord Pannick, on his memorable maiden speech and echo everything that has been said about it by other noble Lords. The noble Lord, Lord Pannick, is a practising barrister of colossal distinction and a journalist of wit and perspicacity. He will undoubtedly adorn the Cross Benches and we look forward to hearing a great deal from him.

Three initiatives have influenced the relationship between the Executive, the judiciary and the legislature since the Government came to power in 1997: the passage of the Human Rights Act 1998 and the Constitutional Reform Act 2005, and the amalgamation of the office of the Lord Chancellor with that of the newly created Secretary of State for Justice in 2007.

I do not propose to say very much about the impact of the Human Rights Act, partly because we are very late and partly because your Lordships will have an opportunity to consider precisely that matter in the debate scheduled for next Monday. I will simply underline the importance of two generally accepted, indeed obvious, features. First, there is little doubt that the courts are making more searching analyses of the exercise of executive discretion than hitherto as a consequence of applying convention principles to government decision-making. Secondly, judicial reasoning by reference to the articles of the convention gives the impression that the judges are acting independently of, and above, Parliament. Hitherto, whenever a court quashed a judicial decision, it always did so by construing an Act of Parliament and concluding that their judgment was what Parliament really intended. For both those reasons, the courts are often described as encroaching on territory hitherto occupied by the Executive and Parliament, thus justifying, according to the fourth estate, their heightened profile in the media. That is a fact that the judiciary will have to accept.

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The decision to abolish the office of Lord Chancellor in June 2003 and, having failed to achieve that objective, the decision to amalgamate it with a newly established Ministry of Justice in June 2007, were made without any prior consultation with Parliament or the judiciary. The Select Committee is rightly scathing about this.

Neither change, I should add, was inspired or foreshadowed by any form of constitutional analysis in government. Just as the removal of the Lord Chancellor was motivated by the desire to get rid of someone— Mr Blair did not have the courage to fire the noble and learned Lord, Lord Irvine, so he sought to make him redundant—so the creation of the Ministry of Justice in 2007 was motivated by Mr Reid’s desire to get rid of something, a responsibility he no longer wished to face up to; namely, the appalling state of prisons and the Prison Service.

In its subsequent legislative quest to abolish the office of Lord Chancellor, the Government totally failed. Some of the changes proposed in the Bill they advanced were long accepted as necessary, such as removing the right of the Lord Chancellor to sit as a judge and making the judicial selection process more transparent. Of much more significance is the way in which the legislature extended and strengthened the Lord Chancellor’s role in protecting our judges and preserving the rule of law. As a result, the Lord Chancellor emerges as, at least potentially, a more powerful figure constitutionally than hitherto.

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