Judiciary, Legislature and Executive

Part of the debate – in the House of Lords at 7:42 pm on 21 May 2003.

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Photo of Lord Goodhart Lord Goodhart Liberal Democrat 7:42, 21 May 2003

My Lords, I, too, am most grateful to my noble friend Lord Rodgers of Quarry Bank for introducing this important and highly topical debate—a debate that is indeed even more topical than it was when the Motion was originally tabled.

What is the proper role of the judiciary? I believe that the most important part of the role of members of the judiciary is as protectors of the rule of law. The rule of law is an absolutely vital element in any civilised society. It means a system of making laws that is rational, transparent and not arbitrary. It means a system of enforcing laws and protecting rights that is fair, open and accessible. We cannot have a rule of law without a judiciary. The judges are people who enforce the laws and, to some extent, make them through their interpretation of statutes and through the development of common law.

We can have the rule of law without democracy—that was true, for example, of the old British Empire—but it is surely not possible to have democracy without the rule of law. Society without the rule of law ceases to be a democracy. That is why in a true democracy the elected representatives of the people must recognise that there are limits on their powers. That was recognised by the founding fathers of the USA when they set up an independent federal judiciary—a judiciary that was independent because its members had life tenure and because they were not answerable to Congress or to voters for their decisions, something that the present Administration seem to be keen on reversing.

The American Supreme Court, as interpreter of the Constitution, can declare Acts of Congress void as being unconstitutional. In the United Kingdom there is no power in the courts to declare Acts of Parliament unconstitutional. But the corollary of that is that the legislature and the executive must exercise self-restraint in exercising their powers. Politicians must not challenge the rule of law, even if there is public support for their doing so. That way lies the tyranny of the majority, which can be as bad as the tyranny of a single tyrant.

I call attention in particular to what Professor Herbert Hart said, as quoted by my noble friend Lord Lester of Herne Hill. That is why I agree with those speakers in the debate who have been critical of the Home Secretary. So far, no speaker has supported him, with the limited exception of the noble Lord, Lord Borrie. The noble Lord, Lord Plant, was absolutely right to point out that self-restraint is required on both sides. I wait with interest to hear the voice of the Lord Chancellor's Department in the person of the noble Baroness, Lady Scotland.

I believe that it is fair to say that the Home Secretary has not himself expressly challenged the rule of law, but by his attacks on judges—some of them, unfortunately, highly personal—he has stirred up a populist clamour against the judiciary. He is adding his voice to a campaign that is already being generated by part of the tabloid press. I accept that the noble and learned Lord the Lord Chancellor has defended the judiciary, as we would expect of him. We are grateful for that. I agree with the noble and learned Lord, Lord Morris of Aberavon, that the role of the Lord Chancellor should change. However, that is an issue for debate on another day.

It is true that judges are far more interventionist than they were, say, 40 or 50 years ago. When I was a law student, I remember being taught about the ancient remedies known as the writs of certiorari and mandamus, but those impenetrable Latin names have now been swept away and replaced by judicial review. The judges are, rightly, more active in challenging executive decisions that are irrational, reached by an incorrect procedure, or made outside statutory powers. But that inevitably brings judges into the political battlefield. Judicial review and the role of the judiciary is, therefore, a legitimate subject for public debate, but that debate must be rational and restrained; and it must not be conducted through megaphones.

So far, I have spoken about judges as objects of public controversy, but what about judges speaking on controversial issues? The noble and learned Lord, Lord Hope of Craighead, made an extremely valuable contribution on this point. We should remember that the opening-up of this right of judges to speak in public was due to the efforts of the noble and learned Lord, Lord Mackay of Clashfern, who scrapped the Kilmuir Rules, which prevented judges from speaking out in public.

It is entirely appropriate and welcome that two serving members and two former members of the senior judiciary have spoken in tonight's debate. They have all made important contributions. But I am sure the others will forgive me if I say that the contribution made by the noble and learned Lord the Lord Chief Justice was of quite exceptional importance. It is one to which I hope many politicians in this country—not the Home Secretary alone—and the press will pay very close attention.

As noble Lords will know, the policy of my party is that the Appellate Committee should be replaced by a supreme court which is separate from your Lordships' House. But, again, that is a matter for a different debate. While the present system continues, it is right that serving members of the judiciary should use your Lordships' House as a forum to express views that directly concern the role and functions of the judiciary or that engage the rule of law.

I should add a footnote: there is an important boundary in this matter that should be observed by serving judges who are Members of your Lordships' House. They should think carefully about speaking on political issues, especially where speaking out might disqualify them from sitting as members of the Appellate Committee when it considers those issues. But, on issues such as those covered by this debate, leaders of the judiciary not only may, but must, speak out.

It is vital that politicians respect the judiciary, which has an essential role as guardian of the rule of law. Intemperate attacks on the judiciary by people in authority will undermine that role. That must not happen. I hope very much that this debate will contribute to ensuring that it does not.