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House Of Lords: Separation Of Powers

Volume 597: debated on Wednesday 17 February 1999

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5.9 p.m.

rose to call attention to the arrangements for maintaining the separation of powers in the House of Lords between the judicial branch and the legislative and executive branches of government; and to move for Papers.

The noble Lord said: My Lords, this Motion focuses on the arrangements for maintaining the separation of powers of the holder of the great office of Lord Chancelor as Minister of Justice, legislator and head of the English judiciary, and of the Lords of Appeal acting both as judges and as legislators.

I hope that the Lord Chancellor and the House will agree that open and careful debate on these delicate maters is timely because of the greatly changed and rapidly changing roles of the Lord Chancellor and of the other Law Lords, especially in the light of the implications of the Human Rights Act, and the Scottish, Welsh and Northern Ireland devolution legislation, the reform of Parliament and other constitutional measures. What also makes the debate topical is the setting up of the Royal Commission on House of Lords reform, the terms of reference of which include considering the position of the Law Lords as Members of the House.

Like others within and outside the House, including the Law Lords themselves, I believe that we need to reconsider the concepts of separation of powers and the independence of the judiciary as part and parcel of the new constitutional settlement. I hope and believe that this debate will contribute to that process of rethinking.

The current arrangements for Law Lords were created just over a century ago. Despite the huge changes in the past 30 years, the arrangements have not been seriously reconsidered since late Victorian times. By the middle of the 19th century, the appellate jurisdiction of this House faced criticism because there were few properly qualified members of the judiciary who were Members of the House. The Lord Chancellor personally had to bear an excessive load.

In 1873 the Judicature Act was passed under a Liberal government. It set up a Court of Appeal as a final court for which English appeals were to be heard. However, following the formation of a Conservative government under Disraeli, in 1874 legislation was passed delaying the implementation of the 1873 Act. In 1876, Disraeli's government introduced the Appellate Jurisdiction Bill, which preserved the appellate jurisdiction of the House of Lords and provided for the appointment of Lords of Appeal in Ordinary.

Professor Robert Stevens, Master of Pembroke College, Oxford, eminent legal scholar and historian, recalls (in an essay in The House of Lords: Its Parliamentary and Judicial Roles, edited by Brice Dickson and Paul Carmichael, 1998, page 112) that the Appellate Jurisdiction Act 1876 was,

"the work of a group of right-wing Tory MPs who cared nothing for law, the courts or litigants, but were anxious to prop up the hereditary principle by creating a group of judges who might balance the bishops. The move was opposed by those admirable reformers—Lord Cairns (Conservative) and Lord Selborne (Liberal)".

Those two Lord Chancellors opposed a second level appeal court, wanting instead an expanded Court of Appeal as the final court. In that, I share Professor Stevens' view that they were mistaken, because there is need or a two-tier system of appeals. But I also share Professor Stevens' view that the two Lord Chancellors were right to oppose this further blurring of the separation of powers. Such a blurring may not have much mattered when judges rarely decided politically sensitive issues, but the great advances in judicial review in the past 25 years and the current resettlement

of the British constitution make it important for the separation of powers to be more clearly protected and enforced.

The anomalies of the Lord Chancellor's great office add to the rich tapestry of public life—and the last thing that I want is to be a spoil sport. Those anomalies have been famously parodied in W.S. Gilbert's comic opera lolanthe. In it, the Lord Chancellor sorrowfully explained—I cannot sing it!—

"The feelings of a Lord Chancellor who is in love with a Ward of Court are not to be envied. What is his position? Can he give his own consent to his own marriage with his own Ward? Can he marry his own Ward without his own consent? And if he marries his own Ward without his own consent, can he commit himself for contempt of his own Court? And if he commit himself for contempt of his own Court, can he appear by counsel before himself, to move for arrest of his own judgement? Ah, my Lords, it is indeed painful to have to sit upon a woolsack which is stuffed with such thorns as these!".

These days, the thorns are especially sharp because the Lord Chancellor is so politically powerful both as Minister of Justice in charge of a large spending department and as chair of many Cabinet committees dealing with important and controversial issues of policy central to the Government's programme. He is both an eminent jurist and a senior member of the Cabinet.

The present Lord Chancellor enjoys very great political power. He has had a major influence in shaping, for example, the Human Rights Act, the devolution legislation, the Freedom of Information Bill, and the White Paper on Lords reform, together with his direct responsibility for the radical changes being made by the Access to Justice Bill. As the noble and learned Lord knows, I very much welcome those measures and his involvement in them. As Professor Diana Woodhouse has observed in her important recent article in Public Law ([1998],p.617), there is a continuing shift in the balance in the Lord Chancellor's responsibilities away from the judicial, toward the executive and political.

The Lord Chancellor is not the head of the Scottish judiciary, nor of the judiciary in Northern Ireland. But, for historical reasons, in England and Wales he is President of the Supreme Court, an ex officio judge of the Court of Appeal and President of the Chancery Division. He also sits in the House of Lords and the Privy Council and presides when he sits, arranges the judicial business in the House of Lords and the Privy Council, and makes procedural rules for the Supreme and Crown Courts. He delegates to the senior Law Lord the selection of Law Lords for Appellate Committees, but has made it clear that the Lord Chancellor can override his delegate and sit whenever he chooses.

The traditional justification for his exercising judicial as well as executive and legislative powers is that the Lord Chancellor can be relied upon to preserve the essentials of a separation of power; and that his dual role enables him to interpret the views of the Cabinet and of the judges better. Those are important arguments, and nothing I say is intended to weaken the Lord Chancellor's ability as constitutional and legal adviser to the Government to uphold judicial independence as a member of that Government.

The noble and learned Lord, Lord Steyn, has a well-known commitment to maintaining the independence of the judiciary from the political process which has made him accept a self-imposed vow of perpetual silence in the legislative Chamber while he sits as a Law Lord. I understand that the noble and learned Lord considers himself to have sinned by making his maiden speech and by voting on one occasion, but that he has vowed never the do so again while he continues to serve as a Law Lord. The noble and learned Lord considered these arguments and the contrary arguments in an important lecture a couple of years ago, which was entitled "The Weakest and Least Dangerous Department of Government" and which was published in Public Law 84 in 1997. I hope that I will be forgiven for quoting a passage from that lecture by the noble and learned Lord which I think is important. The noble and learned Lord said:

"I am far from convinced that the interpretative process … cannot continue if the Lord Chancellor merely ceased to be the head of the English judiciary. He would still retain all his other functions about appointments, law reform, statute law revision, legal administration, as well as legal and constitutional advisor to the government, and so forth … That leaves the fact that if the Lord Chancellor ceased to be head of the judiciary in England it would follow that he would not be able to sit in the House of Lords or Privy Council. In practice the Lord Chancellor seldom sits. The Lord Chancellor is a great lawyer. But all lawyers are dispensable"—

I think that I agree with that—

"and it would make little difference if he ceased to sit. On balance it seems to me that little of value would be lost if the Lord Chancellor ceased to be head of the judiciary in England".

The noble and learned Lord, Lord Steyn, also pointed to the positive disadvantages in being both a Cabinet member and the head of the English judiciary. Again, I quote:

"A Lord Chancellor gives the appearance to the public of speaking as the head of the judiciary with the neutrality and impartiality so involved. The truth is different … [The] Lord Chancellor is always a spokesman for the government in furtherance of its party political agenda. Even in respect of the administration of justice he is … always subject to collective Cabinet responsibility … The Lord Chancellor as a Cabinet member represents the voice of reform guided by the Treasury perspective. The view of the judges is rather different. They do not wholeheartedly share the modern adoration of the deity of economy. On the whole they put justice first".

I respectfully agree with the argument of the noble and learned Lord, Lord Steyn, and with his conclusion that the proposition that a Cabinet Member must be the head of our judiciary in England is,

"no longer sustainable on either constitutional or pragmatic grounds".

I also agree with my friend and colleague, David Pannick QC, that if, as I would expect, the European Court of Human Rights upholds the powerful opinion by the European Commission of Human Rights in McGonnell's case, it will be contrary to the guarantee of the appearance of judicial independence and impartiality in Article 6 of the European Convention on Human Rights for the Lord Chancellor to continue to sit judicially, especially in any case concerning matters of public policy on which the Government may have a view, or any case affecting the interests of the Executive, for example, a devolution or human rights case. In McGonnell, the commission decided that the

fact that the Bailiff of Guernsey presided over the Royal Court of Guernsey in deciding questions of law, while also presiding over the legislature and being head of the island's administration, was incompatible with the requisite appearances of independence and impar iality expected of a court of law. Those observations seem to me to apply equally to the Lord Chancellor.

What then of the position of the other Law Lords when they choose to act in a legislative as well as in a judicial capacity—for example, moving or supporting controversial amendments to Bills, which they may later be required to interpret and apply? They are appointed not as legislators but for the purpose of aiding the House of Lords in the hearing and determination of appeals. As life Peers, they are also entitled to sit and vote in the House. In theory, there is nothing to prevent a Law Lord from speaking and voting in a legislative capacity on matters of real political controversy.

Under the previous administration there was an increasing tendency for them to do so. One Law Lord moved a controversial amendment to the Defamation Bill enabling Mr. Neil Hamilton to circumvent parliamentary privilege and revive his libel action against the Guardian. Several Law Lords spoke opposing Home Secretary Michael Howard's equally controversial use of the prerogative to introduce a new scheme to compensate the victims of violent crime, instead of bringing into force a statutory scheme, thereby disqualifying themselves from being members of the Appellate Committee which subsequently decided that the Home Secretary had acted unlawfully.

The White Paper on House of Lords reform states, in paragraph 19 of Chapter 7, that, by convention, the Law Lords,

"do not become involved in politically contentious issues".

I believe that that was the convention until about a dozen years ago, but that there have been some notable recent examples of its breach, for some of which I was grateful at the time as they coincided with my own political viewpoint—for example, during the debates on the Bill of the then Home Secretary, Mr. Michael Howard, to empower the police to use electronic surveillance without a warrant in breach of an important constitutional principle. At that time, I remember a very senior Law Lord lending his support to the Opposition on that proposal.

The White Paper rightly observes that the Law Lords make a major contribution to the Cross-Bench element in the House.

"Retired Law Lords play a particularly distinguished role in the examination of legislation, especially that with a highly technical or legal content. Most significant is their contribution to debates on the administration of justice, penal policy and civil liberties, where law and politics intersect".

I very much hope that a way will be found, in a reformed upper House, of preserving that role, so that Law Lords are able to contribute to public debates within as well as outside the House. However, I hope it will not be considered presumptuous to suggest that, if the Law Lords are to remain as members of this House, they should not play an active role as legislators while holding judicial office. In other words, I do not argue for a rigid and complete separation but for a greater

separation between judicial powers and legislative and executive powers. I appreciate that it is difficult to draw the line sometimes between what is an active role for a legislator and that which is a contributory role to a public forum, as in delivering a lecture or making a speech in this House.

Parliament is vesting new powers and duties in the courts to protect human rights and maintain the separation of powers between Parliament and the Executive and devolved legislatures and executives. I am not alone in believing that Parliament should also create a supreme court for the United Kingdom, similar to those in other democratic countries, with judges who will not participate in the legislative process as active legislators while serving in a judicial capacity. I hope that this debate will help to develop a better informed public philosophy on that subject.

I look forward to the speeches in this debate of noble Lords of great learning, authority and experience. My Lords, I beg to move for Papers.

5.25 p.m.

My Lords, we must all be truly grateful to the noble Lord, Lord Lester of Herne Hill, for raising a very important and significant issue today. I went into the Library of the House and, thanks to the Librarian, I downloaded some Federalist papers, because I thought I would look at the origin of the literature on the separation of powers. In a sense very nicely, one of them says:

"No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty",
than that upon which the notion of separation of power is founded. So we are obviously discussing a very important question.

In moving his Motion, the noble Lord emphasised two different issues, both of which, as a non-lawyer, I want to deal with from a layman's perspective. First, he referred to the Lord Chancellor's extensive powers and questioned what we should do about them. Secondly, he emphasised the position of the Law Lords in the matter. As set out in the Federalist papers, what we have here are abstract principles that there ought to be a separation of power; there is no doubt about that.

Again, when looking at the British constitution as of the 18th century, the writers then were rather fascinated by it and, despite what looked like no separation of powers, Somehow people like Montesquieu thought that that was a great guarantee of liberty. The idea was that you did not have separation of power but, basically, that:
"The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it",
and so on, as The Federalist Paper No. 47 puts it. So the idea is that, while there is a mixture of roles in the British constitution, there is still no overwhelming veto of any particular branch on any other branch.

We must examine the anomaly of the role of the Lord Chancellor from that point of view. I very much want to separate it from the person of the present Lord Chancellor, who is my noble and learned friend. I believe that we should move away from recent history and discuss general principles. As the noble Lord, Lord Lester, pointed out, there has been an avalanche of constitutional reform legislation. It is anomalous that it is precisely because the Lord Chancellor has to play different roles that that reform has been made possible in such a short time. Let us just imagine a constitution in which different people were responsible for doing different things. We must move away from the fact that my noble and learned friend just happens to be efficient and can work 36 hours a day. As I said, we ought to consider the general principle.

I refer to a further anomaly. I very much agree with the noble Lord, Lord Lester, that there is too much of a mixture of roles. There are matters which are inessential or, rather, harmless, to the Lord Chancellor's role—which I do not mind—but there are other matters which may impinge on that role. The fact that he sits on Cabinet committees does not concern me greatly because not every Lord Chancellor has done that. We have had some good Lord Chancellors and some bad Lord Chancellors. Whether a Lord Chancellor is a powerful person on the Executive depends very much on his personality. That is not part of the system. We have also had weak Lord Chancellors in terms of their Cabinet role.

The fact that the Lord Chancellor presides over your Lordships' House is not a matter of great import because he only presides over it, he does not rule over it. He does not perform the role of a Speaker. My noble and learned friend has tried to separate the two roles whenever he has had to perform the role of a Minister of the Crown rather than that of the Lord Chancellor sitting on the Woolsack. I believe that separation can be achieved and I do not think much harm resides there. However, the nub of the problem that the noble Lord has raised concerns the fact that the Lord Chancellor is the head of the judiciary of England and Wales, he appoints judges and can sit as a judge, but he also has an executive function. That is the anomaly.

The problem is not the position of the Lord Chancellor as such, but the fact that we do not have a proper supreme court. Here I agree with the noble Lord. That, I think, is the nub of the problem. If we had a proper supreme court on which the Lord Chancellor had a right to sit, but on which he would not be likely to sit often—let us put it that way—and which comprised permanent appointments, I do not think one would worry about this problem. I quote from the Federalist Paper No. 51. I refer to departing from strict principles in the appointment of the judiciary. The paper states,
"In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them".
I do not think one is worried about the independence of the judiciary because its members are appointed by the Lord Chancellor. What I think has become quite an urgent matter in the light of recent events is the lack of a supreme court, both in terms of dealing with the human rights legislation and the case currently before your Lordships.

People do not understand how Law Lords are appointed. It is not a transparent process. I say nothing about the quality of the people appointed; I am not capable of judging that and I gather it is good. However, it is not a transparent process. I hope I may express the matter thus: Nolan should be appointed on Nolan principles, but those principles have not been applied to the appointment of Law Lords. To have more information on Law Lords would make a tremendous contribution to increasing the degree of openness in the system. When these appointments are made, somewhere, perhaps in a Select Committee, preferably of your Lordships' House, we ought to adopt the American process whereby interests are declared and we examine the interests of people being appointed. I think that would be a good step and a reassuring step. I refer to the tremendous and recent revolution brought about by the noble and learned Lord, Lord Nolan, in reforming standards of public life. That should now be extended to the judiciary.

I refer to the problem of Law Lords participating in your Lordships' House as legislators. On a matter of principle, that does not quite gel. But here I am willing to let things go a little because, as the noble Lord, Lord Lester, admitted, it is useful to have Law Lords taking part in debates. When we were recalled during the Summer Recess to discuss the terrorism and conspiracy Bill, I found the speech of the noble and learned Lord, Lord Lloyd of Berwick, tremendously helpful. He more or less sorted the Bill out and said that it was of no use whatsoever. We then unfortunately had to pass it, but that is another matter! Some noble and learned Lords also spoke on the Scotland Bill. That, too, was useful. If something is useful it should not be sacrificed for abstract principles. To that extent I have been corrupted by living here for so long.

5.35 p.m.

My Lords, I thoroughly enjoyed the eloquent speech of the noble Lord, Lord Lester of Herne Hill. I particularly enjoyed his historical references. The speech was attractive to me not least because throughout most of his speech he steered clear of the threat posed to our present arrangements as a result of a recent decision of the European Commission of Human Rights in the case of McGonnell which seems to say that the lack of any clear separation of powers in our present arrangements puts us in breach of Article 6 of the convention which guarantees a fair trial. I shall not duck McGonnell and the fact that our arrangements may well have to be changed as a result of any decision of the European Court of Human Rights which may follow the McGonnell decision. I think that the McGonnell decision and what may flow from it is a matter of the utmost gravity.

If it really be the case that Article 6 of the European convention may force on us changes in constitutional arrangements which over many years have worked well and have stood us in good stead; if we are to be forced into a rigid observance of a separation of powers which up to now has never existed in this country; if we can no longer have a Lord Chancellor who is not only the head of the judiciary but a senior member of the Cabinet; if, as a result of decisions at Strasbourg, the Law Lords—with all their wealth of experience on matters of sentencing policy, the treatment of offenders and many other subjects—will no longer be able to sit in this House; if that is the situation in which we may find ourselves as a result of a decision at Strasbourg, we certainly should be asking ourselves whether perhaps somewhere along the line we have taken a wrong turn. Indeed, perhaps in future we should be a little more cautious about signing up to international conventions full of high flown phrases which may be interpreted by foreign lawyers brought up in very different disciplines in wholly unexpected ways.

The briefing paper produced by the House of Lords' Library on the Human Rights Bill stated—I think correctly—that the principal reason why, after ratification, the European convention was not incorporated in our law was that back in the 1950s everyone was agreed that the rights and freedoms specified in the convention were already fully protected in UK law and incorporation was not therefore necessary. No one foresaw that it would be interpreted in the way in which it has been. Now, after the horse has bolted, we are told that perhaps incorporation will be a means of influencing the development of case law under the convention. But some may think that that is pretty unlikely when cases will continue to find their way to a court now made up in the main of very distinguished judges—but judges from countries whose laws and legal systems are, in the truest sense, wholly foreign to our own.

I am absolutely delighted that countries such as Lithuania and Slovakia, the Ukraine and Croatia, Poland and Romania, have joined the Council of Europe. But they are countries with histories, constitutions and laws entirely different from our own. It would be surprising if, from time to time, judgments were not handed down which make little sense in the context of our own history, constitutional arrangements and laws.

I am sorry to strike a somewhat discordant and doleful note, but at a time when all our institutions seem to be under threat from an administration obsessed with modernisation, it is about time that someone said that those self-same institutions have not served us badly over the years and certainly have proved a far more effective defence against tyranny than the continental institutions which we are so often told we should ape.

In these dismal circumstances, I can only trust that if and when the McGonnell case finds its way to the European Court of Human Rights those responsible for representing Britain will argue with all the skill and force they can muster against the Commission's decision, which would lead to results so inimical to our interests and contrary to our traditions.

I certainly hope that the Government will not heed the advice of the noble Lord, Lord Lester, which seems to be that we should just put on a brave smile and swallow the unpleasant medicine being spooned out to us.

5.42 p.m.

My Lords, when in the 18th century Montesquieu compared the lack of freedom of the individual and his lack of basic rights in France with what he saw, or thought he saw, in England, he ascrbed the difference to the fact that we had, as he asserted, separation of powers, a phrase that the noble Lord, Lord Lester, used. As is well known, that was a formative influence in the American constitution—a written constitution—which genuinely has separation of powers. It also influenced the constitution-making Abbé Sieyès, who was a precursor of the noble Lord, Lord Lester, in his enthusiasm for system making. As the noble Lord, Lord Waddington, has indicated, it also influenced the juristic thinking of most continental countries.

In fact, Montesquieu was wrong in his perception of this country. We did not have and do not have separation of powers. The noble Lord, Lord Lester, dealt with the Lord Chancellor's position; at the other end of the spectrum, there were also the justices of the peace, who had wide administrative functions. What we had was not separation of powers but something far more subtle and far more valuable—a balance of powers. It is no use separating your executive if it has powers over the individual which are considered inordinate. The executive's powers should be balanced by that of the legislature and the judicature. That is threatened by advocacy of a system purely based on separation of powers. It is a balance of powers that will vouchsafe liberty of the subject and individual rights.

In his valuable speech, the noble Lord, Lord Waddington, mentioned the recent case of McGonnell before the European Commission. To my mind, that was a typical example of looking at the surface instead of at the reality. The Commission—and it was only the opinion of the Commission; the case has yet to go to the Court—was quite right in saying that you must have the very appearance of independence and impartiality. But where it went quite wrong was in imagining that the Bailiff of Guernsey, because he presides in the States, thereby invalidates the claim of the judiciary to have impartiality and independence. I think that the decision of the Commission was wholly wrong.

Perhaps I may make my position clear; I am a completely committed Europhile. But as we are reluctant latecomers, we have to accept that much of the European institutions and their concepts is out of harmony with our own. There is no need to rush to embrace everything that comes from Strasbourg or any other European court. We may have to swallow the medicine in the end, but woe unto him by whom the evil cometh.

As to your Lordships' House—which was the principal subject of the interesting introduction to the debate of the noble Lord, Lord Lester—I see no reason in the way in which your Lordships' House works at the moment to rush into a ministry of justice, which would concentrate even more power over the legal system in the hands of an executive. I see no reason to hive off the Appellate Committee; still less do I see any reason why my noble and learned friend the Lord Chancellor should have to follow his predecessor, Thomas More, to Tower Hill, or even his predecessor, Clarendon, to face impeachment in Westminster Hall.

One has only to think of the great Lord Chancellors. It is invidious perhaps to mention individuals, but just think of Cairns, Haldane, Viscount Simon, and how much they have contributed to our legal system and our juristic structure. Think, too, of the judgments that have been given by the Appellate Committee against the Crown, which on occasions, as in the Burmah Oil case, have run into millions of pounds. And not even the noble Lord, Lord Denham, as Chief Whip, whipped a majority to vote down the objectionable, as he saw it, judgment of the Appellate Committee.

In the end, because we are latecomers, we may have to bow, but let us not anticipate disruption and disadvantage.

5.50 p.m.

My Lords, I do not know whether Cassandra had time to be happy after her prognostications were fulfilled. Noble Lords who took part in the debate on the incorporation of the European Convention on Human Rights into our law may recollect that I strongly urged this House to reject it and warned the House that it would have bad consequences for our ability to run our own institutions. I must, as I rarely do, differ from the noble and learned Lord who has just spoken. We were not latecomers to the convention. We had a lot to do with the convention. The trouble is that the convention was designed to prevent the recurrence of Nazi-style tyranny and was never thought of as an appropriate method for guiding the administrative or judicial aspects of democratic countries. The fact that a junior member of my college, Mr. David Pannick, thinks otherwise, does not move me.

I am very puzzled by the unwillingness of people generally—I am not talking about your Lordships—to recognise the nature of our constitution, of which the features we are discussing today are part. The noble Lord, Lord Desai, puzzled me totally. He refers to The Federalist papers. He could have avoided troubling the Library staff. I would gladly have lent him a copy of my own edition of the papers, from which he would have learnt that the authors were, on the whole, not familiar with the actual operation of the British constitution and were relying too much on commentators such as Montesquieu in putting forward their notions.

However, I was even more puzzled when the noble Lord said that what we needed was a proper supreme court. Does he really admire the American Supreme Court, which is nominated by presidents of successive parties, who put in office members sympathetic to, or members of, those parties, with an eye to decisions which will favour the administration in being, though longevity does of course occasionally disappoint that hope? Looking at the record of the American Supreme Court in recent years, it does not seem to me that we have anything very much to copy from that.

My Lords, I was really thinking of the Indian Supreme Court. It takes off from the British constitution but has a separate judiciary.

My Lords, if the noble Lord was referring to the Indian Supreme Court, I shall plead ignorance. I do not know how it is constituted and therefore it would be improper for me to comment upon it. When people talk about the supreme court, they normally have the United States in mind.

The idea of a ministry of justice is a continental one. Is even the noble Lord, Lord Lester, happy at some of the judicial proceedings in neighbouring countries? Does he really think that there is something admirable about the way in which some ministers in a previous French government are now being tried in an extraordinary public way and under an extraordinary set of procedures which we would find alien?

My Lords, as the noble Lord has asked me a question, perhaps I may answer it. Of course I do not consider that everything which happens abroad is better than what happens in this country. To the contrary, I consider that we have the finest serving judiciary in any democracy. But I should have thought that, as the noble Lord apparently regards the current Prime Minister and his Administration as somewhat Hitlerite in tendency, he should be grateful that the European Convention on Human Rights gives effective protection against the misuse of power.

My Lords, I am delighted to hear that admiration for what goes on abroad is not as powerful in the noble Lord's breast as some of us may have thought it was.

The historic constitution dates from the Middle Ages. It comprised the Monarchy—we have a monarchical constitution—and associated with it were the more important members of the aristocracy and the Church and ultimately representatives of the other ranks in the population who were thought to have a proper voice. The king, council and parliament were known often as the High Court of Parliament. That is an important point to remember because a distinction was not made between a remedy for a particular wrong which the council—often, in practice, that would mean the Lord Chancellor—was called on to adjudicate, and a more general grievance which, in the end, was corrected by legislation. Those were thought parts of the same procedure by which governments would see that individuals were protected and that the people at large had the institutions and the legislation which seemed appropriate.

I can see no good reason for giving that up. It may well be—obviously it is the fact—that, as the machinery of government has become more complicated and the amount of legislation is much greater, the Lord Chancellor of today may find that the political aspects of his post demand more time than was demanded of some of his eminent predecessors. There may well be reasons for considering that aspect of matters. But to remove the powers of the Lord Chancellor in all respects would be a break with the past which I think would be undesirable.

The noble Lord, Lord Lester, referred to the other constitutional legislation that has gone through the House, notably in regard to devolution. It is interesting to recollect that when the Liberal Government, in the Judicature Act, abolished appeals to the House of Lords—it did not last for long—they made an exception for appeals from Scotland and Ireland. In others words, there is a good deal to be said for looking at the role which, in the light of these changes, this House, in its judicial capacity, and of course the Privy Council, which is associated with the Law Lords, may play and should play in holding together the United Kingdom.

We should begin by appreciating that we have a monarchical constitution which embodies counsel in the broadest sense and Parliament; and the Law Lords should manage to play a role that fits in with that constitutional settlement.


My Lords, I have one thing in common with the noble Lord who has just spoken. We both speak without recourse to notes. I do so from physical disability; he does it from natural genius. I wish strongly to submit one proposition which may appeal in one way or another to a number of noble Lords. I believe that our judiciary as constituted, led by the Law Lords who are so highly esteemed, is a supreme bulwark, particularly in these latter days, against mob rule and the menace of the tabloid press.

Perhaps I may offer one example before coming to my main illustration. Recently, the Home Secretary of the day increased the sentencing tariff on two young boys who committed a terrible crime. The courts held that to be unlawful because he appeared to have been subject to undue pressure from the tabloids.

My main example is that of Myra Hindley who as a woman in her early twenties was sentenced, about 33 years ago, for her part as an infatuated accomplice in terrible crimes. For many years she has been an exemplary prisoner. She has gained an honours degree from the Open University and has been recommended for open prison by the Parole Board—a recommendation that was rejected by the Home Office. I have visited her for 30 years and I know her to be, today, a deeply religious woman. Not so long ago her tariff was increased from the 30 years that was first pronounced by the Home Secretary. Now the sentence is that she should remain in prison until she dies. No one could pretend that the seriousness of her crime has increased in the meantime.

To what is that due? There are no prizes for giving the answer. It is due to persecution by the tabloid press. Not so long ago the Sun newspaper, which I read every day—when I agree with it I enjoy it, but not otherwise—described Myra Hindley as "an evil monster." The newspaper knows that to be untrue and could find out the truth, if it were interested, by visiting a whole series of priests who would testify to the contrary.

No to be outdone, the Daily Mirror discovered not so long ago that four years ago Myra Hindley and another lady were left in charge of an eight year-old child for a short while. There was of course no damage to the child. That was regarded as a scandal. The matter was dredged up after four years for no reason at all except nastiness. The mother of one of the murder victims, a lady who had my sympathy and whom I got to know quite well at one time, died the other day. The Sun, keeping pace with the Mirror, took the opportunity to attack Myra again in a leading article—after 30 years! If that is not tabloid pressure, what is?

Therefore, I am not surprised that people in this House and elsewhere say to me, "I agree with you, my dear chap. Of course after all these years she ought to come out. But you can't imagine any Home Secretary having the guts to let her out, can you? Think what would happen to him. Think what the tabloids would do to him." That is what many people say to me about tabloid pressure.

What is the remedy? It is difficult to know how a Home Secretary is to summon up the courage. I hope that the present Home Secretary will do so. He is a Christian socialist and a man of integrity. But one must not be too optimistic under these pressures. I do not pretend for a moment that I could do his job. Many years ago when I became Leader of this House, my old friend, the novelist Evelyn Waugh, said he was so glad that I was not going to be Home Secretary. Otherwise, he said, we should all be murdered in our beds—not, perhaps some might think a fair estimate. No one who is a friend of prisoners is going to find it easy to persuade the public that they are safe in his hands. The Home Secretary has a heavy responsibility, as the noble Lord, Lord Callaghan knows, as do former Home Secretaries who are present for this debate. They are tempted to feel with Caiaphas, who said, "It is expedient that one man should die and that the whole people perish not." That is the great temptation when under these pressures. The Home Secretary is not only thinking of his career; he is thinking of the reputation of his government. These are far-reaching issues. The confidence of the public, he may feel, has to be maintained. However, I hope that that will not be the final answer.

There is one alternative; namely, recourse to the courts, which is now being done. I shall say nothing about the case, which will eventually go to the Law Lords. I have a different kind of confidence in them. I do not say that members of the judiciary are never subject to political influence. When Mr. Michael Howard was Home Secretary, in four years the prison population increased by over 50 per cent., although crime was going down. So one has to feel that the judiciary were influenced by political attitude. When it comes to individual cases, I shall go to my grave believing that the judges examine matters to the best of their ability. They are all human and are fallible. But to the best of their ability they view matters in an objective light.

I therefore return to my opening remarks. I submit that the British judiciary as now constituted with the Law Lords is the best bulwark against mob rule and undue domination by the tabloid press.

6.7 p.m.

My Lords, I am sure that your Lordships are always glad to hear what the noble Earl. Lord Longford, has to say and are very interested in it. His remarks about the independence of the judiciary are vital for us to bear in mind during this debate. Indeed, in Parliament we try to ensure that. We have the rule that when a matter is sub judice and before the courts we refrain from expressing views about it. That is as it should be.

My noble friend Lord Waddington, the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lord Beloff made excellent speeches, with which I agree. I can therefore keep my remarks quite short. Perhaps I should just mention that I was one of Britain's representatives at the Council of Europe at Strasbourg in 1951 and 1952. The European Convention on Human Rights was finally endorsed in 1951, and in 1952 I was appointed to the Legal Affairs Committee and had the responsibility, with the famous Belgian lawyer, M. Rollin, who represented Dr. Mosadek at The Hague, of giving advice to the Council of Europe as to the constitution of the European Court of Human Rights. In the two sessions that I attended, in 1951 and 1952, the Council was mainly concerned with giving guidance to European countries, some of which were newly formed or re-formed so as to save them from Nazi or fascist influence in settling what their constitution should be. At no stage did any of the British representatives or anyone else conceive that it would have the effect of changing our constitution. If by some mischance the McGonnell case turns out to be wrongly decided from our point of view, we shall have to think very carefully before we fall into the trap that it might create.

Yes, the separation of powers is broadly speaking a good constitutional principle. I hope that I am not generalising too much, however, when I say that every good principle can be strengthened by making good and necessary exceptions, and we should be proud of the exceptions in our constitution.

I start off with the position of the noble and learned Lord the Lord Chancellor. He is the one person in our constitution who has the task of being a great co-ordinator. He is head of the judiciary, he presides over your Lordships' House, and he is a member of the Cabinet. His help and guidance enable a degree of co-ordination between the responsibilities of those three important parts of our constitution to take place.

The position of the Law Lords and their influence upon our legislation has already been well described. I would just add this. It has for generations been customary for the Lord Chief Justice, the Master of the Rolls and sometimes others, like the President of the Family Division—Probate, Divorce and Admiralty as it used to be—to be Members of your Lordships' House. When they come here they never talk politics, but they give valuable advice to us about what has gone wrong with legislation that we have already passed, and about how to avoid making mistakes in our legislation which affect the judicial system.

My Lords, I conclude—

My Lords, before the noble Lord concludes, perhaps he could clarify one point. Would he then be happy were a Lord Chancellor to sit as a judge in a case in which the Government were a party or directly interested—for example, a dispute between central government. the executive, and the Scottish Parliament? Would he regard that as an appropriate way in which to deal with the arrangements for the separation of powers?

My Lords, there have always been cases in which the Lord Chancellor of the day has wisely decided that he should not take part. I am grateful to the noble Lord, because he has given me yet another potential example.

Another answer to the noble Lord is this: that in our constitution we have self-disciplines, conventions—call them what you like—well-established habits, which prevent us from abusing the opportunities that the constitution could give if misused. Bearing in mind that great tradition of behaviour, I would have thought that it is better to stick to the system that we have.

I conclude with a saying which is about 200 years old but it is one which applies particularly to what has been raised in this debate: if change is not necessary, it is necessary not to change.

6.15 p.m.

My Lords, I am unprepared for this debate because I did not know what the noble Lord, Lord Lester, had in mind. I wondered whether he wanted us to move towards an American-style constitution in which the executive, the legislature and the judiciary are totally separated. I would note only that this unique separation of powers operates only because America has a written constitution which is interpreted by the Supreme Court, and of course we have no written constitution.

In another sense, however, I am prepared. I listened with awe yesterday to the exchanges between noble and learned friends. I noted that the friendship—for which of course the Bar is renowned—they expressed for each other had certain limitations. There was one remark, however, of the noble and learned Lord, Lord Ackner, which struck me. He said that the Lord Chancellor had produced a discussion paper in order to bamboozle—the word he actually used was "premeditate"—
`… the great British public, upon whose hostility to lawyers one can always rely…".—[Official Report, 16/2/99; col. 629.]
The noble and learned Lord is entirely correct.

I am prepared for this debate, having re-read, while convalescing in Egypt last week, the most famous indictment of the legal profession that was ever written, by England's greatest novelist. Charles Dickens. I re-read Bleak House and his attack on what he called "wigocracy". Despite the efforts of the noble and learned Lord. Lord Mackay of Clashfern, our judges and barristers still wear wigs. The House took over two hours to agree to the present Lord Chancellor's request to wear trousers and to de-wig when he is to sit on the Front Bench. It reminds me of "Jarndyce v. Jarndyce"! The noble Lord, Lord Ackner, who I am sorry to see is not in his place tonight, can count me, as fortified by Bleak House, to be among the hostile British public.

When I sat, in Cambridge, at the feet of that great defender of the common law, Professor Hamson, and when I heard him denounce the feeble Mr. Justice McCardie and praise Lord Justice Scrutton, I sensed then that it was next to impossible to reform the law, however unjust, by relying on judicial interpretation alone. The legislature is better at carrying out that task. The legal profession is notorious, of course, in defending not only the common law but its own organisation and procedures. There is a remedy, however. The remedy lies in the presence of the Lord Chancellor in the House of Lords.

The Lord Chancellor is certainly one person who can propose and carry through major reforms of the law. He is not the only Minister who can do this. As the noble Earl, Lord Longford, reminded us, the Home Secretary is also responsible for a major sector of law reform: the criminal law and the law relating to the freedom of the individual. But to deprive the Lord Chancellor of the right to take part in debate and to institute reform would be to cripple those who want to reform the law.

At this point I fear that the noble Lord, Lord Lester, may be looking at me rather quizzically. How many reforming Lord Chancellors have we had during this century? Not many, I would be the first to agree. Perhaps the most famous was a Conservative, Lord Birkenhead. At any rate, I was taught that it was he who reformed the antiquated land law of this country. I can well remember having to learn two kinds of land law: the old land law, which was perfectly incomprehensible, and the new land law which Lord Birkenhead introduced. For the most part, I concede that Lord Chancellors have contented themselves with a little tinkering and persuading the Cabinet to allow them time for some of the less controversial proposals of the Law Commission to be considered. But when we have, as we have now, a Lord Chancellor who is determined to reform the law in many areas, the importance of this office and the essential need to keep the Lord Chancellor as an active Member of the House becomes immediately apparent.

Institutions find great difficulty in reforming themselves. Each generation finds itself in changed conditions and has to adapt to them; but institutions find it difficult to do so. It took three Royal Commissions to transform Oxford and Cambridge from clerical seminaries into modern universities and much government intervention—by no means all of it wise—to provide for mass higher education. It requires a powerful will to bring about changes which have to be made if we are to have, for instance, legal aid available for those who cannot afford to go to law.

It is all the more necessary to have the Lord Chancellor in this House when we are having to redraft our law to adapt it to the law of the European Community. Can anyone doubt the value of the presence and ability of the noble and learned Lord the Lord Chancellor when we cast our minds back to the passage of the Human Rights Bill through this House? It could have taken months had it been in the hands of a Minister who was not at the top of the legal profession.

Of course, Lord Chancellors can be misguided, like any other Minister, in insisting on this or that clause in a Bill. I was struck yesterday when two experienced criminal lawyers, the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Hutchinson of Lullington, opposed the establishment of a salaried panel of defence counsel. They are lawyers who are not among the fat cats of the profession and who have often defended the accused for virtually nothing. Yet at the same time I felt it might well be possible to curb the ever-rising cost of legal aid if such a system as that proposed by the noble and learned Lord the Lord Chancellor was set up. I am simply saying that, as always in life, those who want reforms find that at some point their natural allies desert them and they have to think again. The notion that a Lord Chancellor can become a tyrant, however robust his language may be, is absurd.

I have more sympathy for another of the proposals of the noble Lord, Lord Lester. I am not convinced that it is in the public interest that the Lord Chief Justice and the Lords of Appeal in Ordinary should sit in the House and vote. Let them do so when they have retired, by all means. We all in this Chamber know what we owe to those Law Lords who have retired. We need their wisdom. The noble and learned Lord the Lord Chancellor, as he knows only too well after yesterday, should be faced with expert criticism and probing when he tries to move reforms of the law. But it does not seem right to me that those who sit in the highest court of appeal should sit in the legislature.

I remember only too well what happened when the noble Viscount, Lord Runciman, spoke on a particular issue in his report on the reform of criminal procedure. He was followed by the then Lord Chief Justice, the much respected and indeed beloved Lord Taylor, who opposed the Runciman proposal. The conclusion was foregone: if the Lord Chief Justice was against it, no more needed to be said.

There has been talk today of a supreme court. I have some sympathy with that idea, but I do not think that when we talk about a supreme court we need have the American Supreme Court in mind—certainly not. But a supreme court which is distinct from the House of Lords has the following advantage. Very often in the public mind the procedures of this House are confused. It is said, "The Lords have done this". What is meant is that the judicial part of the Lords, the Lords of Appeal in Ordinary, have made a decision, which no doubt may much affect the public. That is very different from the decisions which this House takes as a legislature. I believe that there is some merit in distinguishing openly between the supreme legal body and the legislative functions of this House.

I take the point about the need for the Lord Chancellor to use his natural discretion in deciding whether to sit in cases in which it could be said that he was so politically involved that it would affect the final conclusions of a supreme court. But, that having been said, I hope that we will not alter the procedures which allow the Lord Chancellor to be a formidable part of the legislature.

My Lords, as we have more time than was expected for the speeches in this debate, perhaps I may ask the noble Lord, with whom I agree on nearly everything he said, whether he does not realise that the American constitution, which applies the separation of powers so rigidly, has in fact caused great trouble.

My Lords, yes, indeed. It caused great trouble to President Roosevelt, who tried to pack the Supreme Court in order to get the New Deal legislation through. I am very much in favour of what the noble Lord, Lord Renton, has said.

6.26 p.m.

My Lords, I start by noting the interesting fact that the previous five speakers have all been over the age of 80 and two of them over 90. While I do not entirely agree with everything they said, the quality of their speeches is a good reason for not imposing a retiring age on Members of your Lordships' House.

My Lords, in the United Kingdom we pay lip service to the separation of powers but we rarely give it serious thought. There is no separation of powers between the executive and the legislature. In theory, the legislature controls the executive; in practice, the executive, backed by a working majority in the other place, controls the legislature.

There is separation of powers between the legislature and the judiciary. In practice they rarely come into conflict. The legislature has no power to appoint judges. It can remove them but has only attempted to do so once, in the case of an Irish High Court judge early in the 19th century. The judiciary has no power to declare Acts void or unconstitutional except, as the Factortame case showed a few years ago, for a very limited power in respect of inconsistency with legislation of the European Community. The main exception to the separation is the fact that Law Lords are Members of your Lordships' House.

There is also separation of powers between the executive and the judiciary. Here the Lord Chancellor plays a pivotal role as a member of the Cabinet, as de facto Minister of justice, as the person who appoints the judiciary and as the head of the judiciary in England and Wales.

The conflicts in the case of the executive and the judiciary are more serious. The judges can exercise, and for the last 30 years or so increasingly have exercised, control over the executive through judicial review. Conversely, successive Lord Chancellors have also, with greater or less success, tried to influence the judiciary.

I have read with great interest an as yet unpublished article by Professor Robert Stevens, to whom my noble friend Lord Lester referred earlier, in which he gives a number of examples of where Lord Chancellors, from Lord Jowitt to the noble and learned Lord, Lord Mackay of Clashfern, have intervened with judges in relation to the exercise of their judicial functions.

The central position of the Lord Chancellor has been defended—and not only by your Lordships today. In a lecture given at Oxford in 1997 the noble and learned Lord, Lord Woolf, said of the office of the Lord Chancellor:
"On behalf of the Government [the Lord Chancellor] can explain to the judiciary the realities of the political situation and the constraints on the resources which they must inevitably accept. As long as the Lord Chancellor is punctilious in keeping his separate roles distinct, the separation of powers is not undermined and the justice system benefits immeasurably".
I do not find that argument persuasive. To my mind, it makes the Government and the judiciary sound too much like common members of a ruling elite—a group of platonic guardians or (what is perhaps much the same thing) a group of members of the Garrick Club, of which my noble friend is a member but I am not.

I believe that the Lord Chancellor should not sit as a judge. I agree entirely with the noble Lord, Lord Annan, that the Lord Chancellor should continue to sit in this House and introduce legislation here. I believe that the noble Lord misunderstood the point made by my noble friend. It is his ministerial role on which the Lord Chancellor should concentrate. The Lord Chancellor could certainly not be seen as impartial in any case where the Government had a direct interest. That would include Revenue cases. I agree with my noble friend Lord Lester that the noble and learned Lord, Lord Mackay of Clashfern, was wrong to sit in Pepper v. Hart.

I believe that the Lord Chancellor could not sit in a judicial review case involving a government department, in many cases under the Human Rights Act and certainly not in a devolution case. Plainly, it would have been wrong for him to have sat in the Pinochet case. It is strongly arguable that he should not sit in a criminal case. Maybe a Lord Chancellor would be seen as impartial in a commercial case involving two independent corporate bodies but, frankly, in my view, sitting in such a case would be a waste of his time. The problems of having a senior member of the Government sitting as a judge are so serious that I believe it is much better for the Lord Chancellor not to sit at all.

The noble Lord, Lord Waddington, supported by a number of other noble Lords, attacked the decision in McGonnell. That appears to me correct given that the Government of Guernsey was itself an interested party in the action. My belief in the correctness of that decision is reinforced by the fact that Sir Nicolas Bratza, who was then the British member of the commission and is now a most distinguished judge of the European Court of Human Rights, wrote an opinion that concurred in the decision. I also believe that the Lord Chancellor should hand over his power to appoint judges to a judicial appointments commission. In recent years we have grown used to impartial appointments being rude. I have previously criticised the noble and learned Lord, Lord Mackay of Clashfern, but he was outstanding in the impartial way in which he made appointments. I believe that his successor is likely to prove the same. But in the earlier part of the century political appointments were common. Even in more recent years it is widely believed that the noble and learned Lord, Lord Donaldson of Lymington, was denied promotion to the Court of Appeal by the Labour Government of 1974 to 1979 because of his previous association with the Industrial Relations Court. The had old days could return. The increased importance of judicial decisions on devolution issues and convention rights makes this a serious risk.

I turn now to the other element of the separation of powers: the presence of the Law Lords in your Lordships' House. I find this a more difficult issue. It is an issue that is being debated by my noble friends on these Benches as we prepare our submissions to the forthcoming Royal Commission on the House of Lords. Therefore, I am not today in a position to speak for my party. Speaking for myself, I have no doubt that Law Lords, especially retired ones, contribute much to debates in your Lordships' House. In debates on the Access to Justice Bill we have had very valuable contributions from the noble and learned Lords, Lord Lloyd of Berwick, Lord Ackner and Lord Simon of Glaisdale and also from others. The Lord Chief Justice has made powerful speeches on the Youth Justice and Criminal Evidence Bill. Going back some two years, the noble and learned Lord, Lord Browne-Wilkinson, played a leading role in removing from the Police Bill in early 1997 the quite improper power for chief constables to authorise their own forces to carry out bugging and other forms of surveillance.

But there are increasing problems. The Pinochet case is a warning to Law Lords that they must not speak on issues that may come before them in future. This will limit the usefulness in future of serving Law Lords in your Lordships' House. Even retired Law Lords under the age of 75 who may wish to make themselves available to make up the numbers on the Appellate Committee may find themselves somewhat constrained in what they can say in the course of debates.

Devolution cases present what appears to be an intractable problem. Most of them will involve questions to do with the powers transferred to the Scottish Parliament or the Welsh or Northern Ireland assemblies and the powers reserved to the United Kingdom Parliament. How can Members of one of the Houses of Parliament of the United Kingdom be regarded as impartial for this purpose? Technically, the decision will be that of the Judicial Committee of the Privy Council rather than the House of Lords, but all or most of the judges who sit on the Judicial Committee that makes such a decision will plainly be Members of your Lordships' House. That raises the question of whether, when devolution issues become more prominent in litigation, it will be possible for serving Law Lords to remain as Members of your Lordships' House.

As the United Kingdom faces up to unprecedented consitutional change the question of the separation of powers becomes increasingly important. I have expressed my views. I believe that the debate, in drawing out many other views, including quite contrary ones, has made a valuable contribution to the discussion of the separation of powers in the future, and I am most grateful to my noble friend Lord Lester of Herne Hill for having initiated it.

6.37 p.m.

My Lords, I also congratulate the noble Lord, Lord Lester, on initiating this timely debate. I hope he agrees with me that the quality of the speeches on the balloted Motion fully justifies his initial speculation.

It has been said that our unwritten constitution does not contain within it the principle of the separation of powers. In my view, the separation of powers under our constitution is at the same time the most invisible and the most important part of it. Without it we would have no rule of law. As my noble friend Lord Renton rightly said, the essence of the principle is that, on the one hand, the judges do not interfere in the procedures of Parliament and, on the other hand, Parliament respects the rule of sub judice.

For 300 years that principle has served this nation very well; and is still respected as such. The difficulty is that its spirit is beginning to fray at the edges because an increasing amount of litigation upon which judges must adjudicate has a political content. An increasing amount of litigation involves conflicts between citizen and state, and often issues which relate to the content of legislation.

I believe that the judiciary is being asked to bear too heavy a political burden. The reason for that is the failure of the political part of our constitution to do its job in controlling the executive. One looks in vain at the programme of constitutional reform of the Government for anything which increases the power of members of the legislature to control members of the executive. That is as true in your Lordships' House as in another place. So it is no wonder that one reads increasing vituperation in the press about the decisions of the judiciary.

In some respects, the single most important constitutional reform that the country needs is not devolution. It is not the incorporation of the European Convention on Human Rights. It is increasing the power of the ordinary MP to control the executive. I see no sign of any serious thought being given to that issue. As long as no serious thought is given to it, judges will continue to be in great difficulty.

Quite rightly, judges are unelected. They have to deal with political issues, in particular in the Crown Office and the Appeal Courts, almost every day of the year and, at the same time, retain their legitimacy in the eyes of the nation. That is the real challenge the separation of powers has to face.

Until now the judiciary has managed to survive because, in taking sometimes highly courageous decisions about controlling the acts of the executive, it has been able to disguise them under the myth of interpreting the intention of Parliament. That has been the basis of the development of judicial review, beginning with the genius of the late Lord Reid and continuing through to so many able judges in your Lordships' House today. But the great difficulty is that, with the introduction of legislation on devolution and the incorporation of the European Convention on Human Rights, the fig leaf of interpreting the intention of Parliament will no longer be available to the judges. In future they will have to take decisions which will quite clearly be their own decisions. Thereafter they will have to bear the full limelight of responsibility for having so judged. It is in that context that your Lordships have to consider whether anything needs to be done about the principle of separation of powers.

The noble Lord, Lord Lester, offered two solutions: one in relation to the noble and learned Lord the Lord Chancellor; and the other in relation to noble and learned Lords who sit on the Judicial Committee of the House of Lords. I believe that it was the noble and learned Lord, Lord Woolf, who said not so long ago in your Lordships' House that the Lord Chancellor wears three hats, and as long as he remembers which one he is wearing when he is doing whatever he is doing the principle of separation of powers is safeguarded. I have a great deal of sympathy with that. Indeed, I can think of only one occasion since the noble and learned Lord has been Lord Chancellor when he forgot to put on the right hat; and that was in his drafting of Part III of Schedule 5 to the Access to Justice Bill. I shall say no more about that because he has heard me speak about it on so many occasions.

I agree, and I suspect that the noble and learned Lord agrees too, that there are certain cases before the Judicial Committee which it would be inappropriate for him to hear. I think that common sense dictates which those are. I do not believe for a moment that it would be necessary to have those written down or stipulated in some constitutional agreement.

It would be a shame if we were denied the wisdom in parliamentary debate of the noble and learned Lords who sit on the Judicial Committee of your Lordships' House. However, I take note of what the noble Lord, Lord Lester, said about the dangers of their having to sit in future on cases which gave rise to matters upon which they had already spoken. That is not an easy matter to deal with, but it will depend on the individual wisdom of each of the noble and learned Lords to apply the appropriate restraint to himself, or herself, when considering whether or not to intervene in a debate.

Only one noble Lord has addressed the issue of the selection of our senior judiciary. I take the view that the legitimacy of the senior judiciary, who are unelected, will be enhanced if they undergo some kind of public parliamentary procedure, not necessarily before they are appointed but as a part of the appointment. I believe that that will give them greater security in office in future and greater protection from the kind of criticism that we read in the tabloid press and sometimes hear in another place.

My Lords, has the noble Lord in mind what happened as regards the appointment of Justice Thomas to the Supreme Court?

My Lords, I am only too acutely aware of that. That is why I made the suggestion with an appropriate caveat. I do not think that the decision about selection should be taken by the legislature. However, I believe that a candidate who has been selected by the noble and learned Lord the Lord Chancellor should have the opportunity of being interviewed by a parliamentary committee so that that committee has the opportunity of finding out something about him. The personal views of noble and learned Lords are now a matter for daily public debate in the press. They would be more secure in their posts were some parliamentary procedure of that kind to be initiated. It would give greater legitimacy to the unelected judiciary who, after all, guarantee the rule of law in our country.

My Lords, before the noble Lord sits down, surely one of the essences of a good judge is that as far as possible he keeps his personal views private. Once one exposes judges' personal views on everything, reasons will be found why they should be regarded as inappropriate for appointment to the highest part of the judiciary.

My Lords, in the past that has been possible, and it has worked most satisfactorily. However, as the noble Lord may have gathered from the earlier part of my speech, for better or worse noble and learned Lords, and indeed Lords Justices in the Court of Appeal, are having, daily, to take decisions about highly political issues. The press and many members of the public feel that the personal views of those judges might influence their ultimate decision. Therefore I think it only right that judges who will be appointed have the opportunity—it is an advantage to them as well as to the legislature—to express their views.

6.50 p.m.

My Lords, I am sure that your Lordships will be grateful to the noble Lord, Lord Lester, for bringing these issues before us. He began his speech with the office which I have the privilege to occupy today and I will begin there, too, by saying why I believe the office is critical within our unwritten constitution.

It is the nature of great offices, and the values which historically inhere in them, that they provide at least as sure a guarantee of our traditional rights and liberties as any transient constitutional text. It is the unique position which the Lord Chancellor occupies in our constitutional arrangements which provides a strong and contemporary, as well as a historic, justification for both the office itself and for the Lord Chancellor to be a professional.

Lord Chancellors traditionally come to the office after a long career in the law. Their profession puts independent individual judgment above all else. they come to the office imbued with the values that underpin our democracy: the rule of law; freedom under the law; the independence of the judiciary from any Executive interference; the duty of the court to stand between citizen and state; the duty of the court to order the Executive to comply with the law and not overreach itself. In short, to insist that, "Be you ever so high, the law is above you". I believe that the public can have a well-founded confidence that, for any Lord Chancellor, these values would be armour against Executive mindedness or Executive pressure.

In our country, the legislative, the Executive and the judicial branches are not equal and co-ordinate as in the United States of America. Parliament is the senior partner in principle and the Executive is very powerful in practice. The office of Lord Chancellor has evolved as the means of ensuring judicial independence within a constitution which both concentrates supreme power in an elected legislature dominated by fierce party political warfare, and at the same time permits a powerful Executive to govern day by day.

After approaching two years in office, my belief which I brought to the office of Lord Chancellor, that it stands at a critical cusp in the separation of powers, is even stronger. Through the office, the judiciary has a representative in the Cabinet and the Cabinet in the judiciary. Lord Chancellors must have the confidence both of their judicial and Cabinet colleagues. They promote mutual understanding in order to avoid collisions at a major intersection in the separation of the powers.

I have to say with regret, that there was a period under the previous Administration when the public would have been forgiven for thinking that on occasions the Executive and the judiciary had ceased to be on speaking terms. In the latter two years or so of the previous Administration there was unprecedented antagonism between judiciary and the Government over judicial review of ministerial decisions. Some politicians even went so far as to call judicial review itself into question. That was bad for our system because our system ultimately requires a government of laws, not of men.

The protection of the judiciary from Executive interference is, in my view, a high order duty—perhaps the highest order duty—of any Lord Chancellor. The office is a buffer between the judiciary and the Executive which protects judicial independence. The Executive cannot tell the judges how to decide cases, civil or criminal, nor what sentences in criminal cases to impose within the discretion conferred by Parliament. Any Executive is capable of being tempted, but Executive interference with judicial independence must never be allowed. Freedom under the law and judicial independence are two sides of the same coin.

If the Lord Chancellor does not fit into a perfect, purist scheme for the separation of powers, nor do the Law Lords, as your Lordships have shown in today's debate. They are Members of your Lordships' House both in its legislative and its judicial capacity. In a debate which I promoted in your Lordships' House on 5th June 1996 concerning the relationship between the judciary, the legislature and the Executive, I said then wait I still think: that the Law Lords' expertise in the administration of justice allows them to make an invaluable contribution to our debates on that subject. But I believe that they would be wise to stop at the administration of justice. I repeat what I said in that debate:
"If they engage more extensively in political controversy, they risk undermining public confidence in their political impartiality. There is a basic tension between judicial engagement in political controversy and public confidence in the judges' political impartiality in deciding disputes according to law".—[Official Report. 5/6/96; col. 1259.]
There is also a need for self-restraint in debate in the Chamber, but I would not circumscribe it by iron rules. Here I am with the noble Lord, Lord Renton. It would be prudent for Law Lords participating in debates in this Chamber to abstain from concluded views of a judicial character on issues, whether arising out of legislation under consideration by your Lordships or otherwise, which might disqualify them later from ruling judicially on these very issues. In particular, if an issue arose about whether a ministerial statement that a Bill was compatible with the European Convention on Human Rights was well founded, the Law Lords in this Chamber would be well advised to abstain from concluded views.

Some who are critics of the Human Rights Act argue that it will have a tendency to politics our higher judiciary. It is true that the Human Rights Act, when implemented, will throw up cases which could be described as politically controversial. But the law is no stranger to that over the centuries. Think of the landmark cases in civil liberties. Think of the development of the law in relation to trade unions and the developments by Parliament of immunities for industrial action which were then interpreted by the judges in controversial ways. Think of Liversidge and Anderson, the Regulation 18B case. Think of the development of judicial review and of natural justice. Think of Brind, which excluded certain politicians from media appearances but allowed actors to stand in. Think of the cases about homosexuality in the Armed Forces. Think about whether the life support machine should be turned off. Think of every controversial decision in the criminal law.

The Human Rights Act may see a change in degree, but not in kind. I remain firmly of the view that judges are to be appointed on their legal merits. Of course, like Shylock, if you prick them they bleed, but that was ever so. I am resolutely opposed to any suggestion—and your Lordships heard such a suggestion from the noble Lord, Lord Kingsland, from the Opposition Front Bench—that our senior judiciary, prior to appointment, should be subject to public hearings, to subject their judicial track records or attitudes to appraisal in terms of the changing fashions for political correctness. I do not think that our higher courts should be sculpted to conform to some notion of social, political, gender or any other balance.

My Lords, I confess to my noble and learned friend that I made that suggestion. I did not make it as subtly and distinctly as the noble Lord, Lord Kingsland, did when developing the situation, but I am afraid that it came from me.

My Lords, I did not say that an investigation and vote by a parliamentary committee should be a condition of appointment; I merely said that it would be desirable for a judge to appear in front of a parliamentary committee subsequent to appointment.

My Lords, with that I profoundly disagree.

I turn now to the issue to which the noble Lord, Lord Lester, also called attention as to the circumstances in which the Lord Chancellor should sit in the Chair in the House of Lords. Both my predecessors, the noble and learned Lords, Lord Mackay and Lord Hailsham, attached real importance to the Lord Chancellor sitting in the Chair. So do I. Sitting gives the Lord Chancellor a practical awareness of the development of the common law at the highest level. It enables him to assess the quality of the most senior advocates. And it is just possible that the Lord Chancellor may himself have a contribution to make. Many Lord Chancellors across the centuries have done so. Though I doubt that many would go as far as my noble and learned predecessor, Lord Hailsham. Characteristically trenchantly, he said that regular sitting for the Lord Chancellor was,
"the only factor ensuring that a politically motivated Prime Minister does not give the office to a no-good lawyer".
The only problem is: in what cases would the Lord Chancellor be wise not to sit? In common with the noble Lord, Lord Renton, and the noble and learned Lord, Lord Simon of Glaisdale, I am unwilling to lay down any detailed rules because it is ever a question of judgment combined with a need to ensure that no party to an appeal could reasonably believe or suspect that the Lord Chancellor might, because of his other roles, have an interest in a specific outcome. Examples might be where the lawfulness of a decision or action by any Minister or department might be at issue. In my view, however, there is no category of cases that could be labelled "constitutional" which should be "no-go areas" for the Lord Chancellor.

I part company with the noble Lord, Lord Goodhart, because Lord Chancellors have traditionally sat on criminal appeals which may give rise to issues which could be given that label. The furthest I would go is to say, "any appeal where the Government might reasonably appear to have a stake in a particular outcome"; apart from that, the issue should be addressed case by case.

The extent of sittings by Lord Chancellors in recent years has been remarkably variable. The House may be interested to know the facts. Lord Gardiner, who was Lord Chancellor from 1964 to 1970, sat very little; only four days. The noble and learned Lord, Lord Hailsham, was a prodigious sitter. From 1970 to 1974 he sat for 28 days, but when he came to his second period in office—from 1979 to 1987—he sat for 53 days. Lord Elwyn-Jones, Lord Chancellor from 1974 to 1979, was not a great sitter; he sat for eight days. Lord Havers, who was sadly in this office for so short a period in 1987, was not able to sit at all. The noble and learned Lord, Lord Mackay, throughout his Lord Chancellorship from 1987 to 1997, counts as a prodigious sitter too; he sat for as many as 60 days. I tell your Lordships that because I had the curiosity to inquire and, having done so, I thought I should share the information with your Lordships.

In the debate to which I referred and which I initiated on 5th June 1996 the noble Earl, Lord Russell, who unfortunately is not with us today and therefore has not contributed to this debate as well he might, said this, with which a number of your Lordships who contributed today may agree:
"It is impossible to distinguish vires from origins. All three branches, judiciary, legislature and executive, are emanations of the King's Great Council. So it is a relationship in which the balance … is a key feature. I see it as having been over many centuries a creative tension … That balance is the balance of a see-saw—and the day it stops moving, it is defunct. So if there is a tension from time to time, there are uses as well as dangers in it".—[Official Report, 5/6/96; col. 1301.]
The noble and learned Lord, Lord Simon of Glaisdale, echoed that approach. He said that it is ever a matter of balance and not iron rules. That is essentially what the noble Lord, Lord Renton, was saying too. So we have had a good debate, none the worse for its brevity, and your Lordships will be grateful to the noble Lord, Lord Lester, for providing us with the opportunity to discuss these interesting issues.

My Lords, before the noble and learned Lord sits down, he may be interested to know that this afternoon I visited my noble and learned friend Lord Hailsham who, alas, is not at all well physically, though his mind is as alert as ever. I told him of the debate that we were going to have and his only comment was, "Do be careful"!

My Lords, I hope that in everything I have said I have unwittingly—not knowing what the noble and learned Lord said—heeded his injunction.

7.7 p.m.

My Lords, I too tried to do so and especially because I am proud to have got my red bag from the noble and learned Lord, Lord Hailsham, in his last case at the Bar. I have great affection for him and am very sorry that he is not in good health and recently suffered a bereavement.

When the noble and learned Lord the Lord Chancellor referred to Lord Elwyn-Jones, I was reminded of a conversation that I had with Lord Elwyn-Jones in 1973 just before the Labour Government won a narrow victory. We were travelling back together from Morocco and I asked him what he would do if he became Lord Chancellor. He said, "Well, the one thing I would do is make sure that I was not the last Lord Chancellor". I said, "Surely there must be other things" and In said, "No, that is the most important thing. I must make quite sure that I am not the last Lord Chancellor".

I want to make quite clear, if it is not evident already, that nothing that I have said or done was intended to make the present powerful and eminent holder of that office the last Lord Chancellor. The debate is concerned with a much more narrow but still important issue; that is, the appearance of independence and impartiality in our final court and the arrangements in this House for strengthening rather than sacking judicial independence.

I am grateful to all noble Lords who participated. I am glad that I was lucky enough to win the balloted Motion because it gave me an opportunity of hearing a wide range of speeches, some of which gave me particular pleasure and all of which were educational in a broad sense. Perhaps I may be permitted to deal with one or two matters.

First, the enemies of the European Convention on Human Rights were fulminating about the McGonnell case and Article 6. They might be interested to know that Article 6 was drafted by Home Office lawyers. In Europe it is regarded as one of the British articles; it is regarded as reflecting Blackstone's great principles. When Lord Chancellor Jowitt was considering his advice to the Government as to whether or not we should ratify the convention, he foresaw that, if we did so, we might need to make changes about separation of powers. He was worried, for example, about the peremptory powers of the judge to commit for a contempt of court on the spot knowing that it might breach Article 6. It is no surprise, it seems to me, if in the McGonnell case the European Commission and, I dare say, the European Court would be deeply troubled by the notion of a political officer, an administrator, presiding in the Royal Court on Guernsey. If we need to amend our arrangements to give effect to the convention, I regard that as beneficial and not the end of civilisation as the British know it.

I have only one or two other points to make. I am not in favour, and nor is my noble friend Lord Goodhart, of a United States Supreme Court or a United States straight separation of powers. We are in favour of the dewigging of barristers and we hope that the Lord Chancellor, having changed his own costume successfully, will be able to change ours, but that is beyond the terms of the Motion.

We agree that the Lord Chancellor plays a key role in law reform and hope that that will continue and that he or she will always continue to be a Member of this House. The noble Lord, Lord Annan, was absolutely right in pointing to the confusion about the role of the Law Lords, not only in this country, but across the world. I have been astonished by the ignorance of many people in high places abroad—for example, in a friendly foreign government—who still think that the Law Lords are not proper lawyers and that we do not have a proper supreme court. One of the reasons for moving the Motion is that I believe, in the interests of the judiciary and our system, that we should eventually have a proper supreme court.

No one has drawn attention to the oddity of our situation. Across the Commonwealth—whether in Australia, Canada, New Zealand, India or any other part of the Commonwealth—there is no other country in which the minister of justice, the key law reformer in government, also reserves the right to exercise a judicial role. I continue to believe, at any rate in certain classes of case—I think that the Lord Chancellor by implication agrees with me—that it would be unwise for him to exercise that right because of the appearance of a conflict of interest were he to do so.

One has only to think of the situation that might arise with another powerful Minister—say, the Minister of State at the Home Office, the noble Lord, Lord Williams of Mostyn, who sat as a judge before becoming a Minister. It would be unthinkable for him to sit as a recorder or a deputy high court judge while serving as a Minister. I believe the same is true of the Lord Chancellor who sat as a judge before he became Lord Chancellor. I can see no good reason why, when he becomes the Lord Chancellor, he should continue to sit judicially, at any rate in the kind of cases that have been debated this evening.

Unlike the noble and learned Lord the Lord Chancellor, I believe that we need some criteria and some principles. They do not have to be iron laws—of course not—and they do not have to be rigid or immutable. However, I believe that if we are to proceed by convention, the conventions should he much clearer than they are at present. The Lord Chancellor—I agree with him—gave guidance before he became Lord Chancellor to the Law Lords and other judges about self-restraint in giving lectures. This evening he has given guidance again about Law Lords making speeches in your Lordships' House. I say, with great respect to him and affection for him, that I believe similar guidance needs to apply to the Lord Chancellor himself. Basically it is, "trust me". Of course, we all trust the Lord Chancellor as an individual personality, but this evening we are debating the system itself and the institution itself.

Those are the points that I wanted to deal with briefly. I thank all noble Lords who participated in the debate. I beg leave to withdraw my Motion for Papers.

Motion for Papers, by leave, withdrawn.