Judiciary, Legislature and Executive

Part of the debate – in the House of Lords at 8:00 pm on 21 May 2003.

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Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Parliamentary Secretary, Lord Chancellor's Department, Parliamentary Secretary (Lord Chancellor's Department) 8:00, 21 May 2003

My Lords, I thank the noble Lord, Lord Rodgers of Quarry Bank, for introducing this debate so eloquently and I endorse what has just been said by the noble Lord, Lord Hunt of Wirral: it has been most memorable. After having listened to the heat of the debate, I want also to thank the noble Lord for reminding us that my right honourable friend the Home Secretary is indeed, in so many ways, a great man.

The issues we have discussed and debated today are of fundamental importance. That has been brought home to us not only through this debate, but also by the experiences over the past 13 years or so of those countries seeking to rebuild their democratic institutions after decades of absolutist rule. An independent judiciary in a healthy relationship with the other constitutional powers is one of their first goals, and one of the hardest to achieve. We take it for granted at our peril. I want to assure noble Lords that this Government jealously guard and honour that independence, as is proper.

Much of the debate has been critical of my right honourable friend the Home Secretary. However, he may well be grateful for that because he has said that he would like to "stimulate debate". He has certainly achieved his goal this evening. The right reverend Prelate the Bishop of Worcester expressed empathy and warmth of understanding for my right honourable friend and I thank him for that. He can rest assured that power is not vested in one part of the institution of government. It does indeed demand and receive respect for difference of perception, and that is honoured. The distinction to which the right reverend Prelate referred will be preserved and its fragility respected. I thank also my noble friend Lord Borrie for the sense of balance that he brought to the debate. It was good to hear a noble Lord on these Benches echoing the cool and calm judgment that the noble Lord, Lord Rodgers of Quarry Bank, sought so much to exhort.

It is right to acknowledge that there is nothing wrong with vigorous and healthy debate, in this area or in any other. It takes place against a background which is absolutely clear, in which the independence of the judiciary is acknowledged, respected and valued by government as a whole—and by my right honourable friend the Home Secretary as much as by any other member of the Government—as one of the cornerstones of our liberty. Many would think it more worrying if judges always felt obliged to agree about everything with my right honourable friend the Home Secretary, or vice versa. Luckily, we seem to be in no immediate danger of that.

The noble Lord, Lord Lester, my noble friend Lord Plant, the noble and learned Lord, Lord Lloyd, and not least the noble Earl, Lord Russell, all referred to the historical ebbs and flows of the relationship. I looked forward with joyful anticipation to the contribution of the noble Earl because I was confident that he would bring to your Lordships a certain acuity in terms of the historical perception. He was right to remind us that, compared with the position in 1388, things really are not that bad. My right honourable friend understands the need to catch criminals. To that end, I should like to reassure the noble Earl that this Government have rather a good record of doing that and I think we are becoming increasingly good at it.

Some time ago the Secretary of State, during a period of heightened concern about national security, issued a warrant authorising the security services effectively to burgle the house of a suspect, search for evidence and carry away anything useful they might find. The practice was believed to be authorised by legislation and had been followed for some years previously. However, in the particular case, the suspect sued for trespass. The Lord Chief Justice eventually found that the Act did not have the meaning the Government said it had; that the Secretary of State had no power to issue such a warrant; that considerations of national security and the practice of his predecessors were not enough to give him the power he claimed; that his agents were indeed trespassers; and that his purported search warrant was wholly illegal and void.

I can reassure noble Lords that I do not refer to the noble and learned Lord, Lord Woolf; it was the Lord Chief Justice, Lord Camden. The Secretary of State was the Earl of Halifax. The relevant legislation was the Constables Protection Act 1750. The year was 1765 and the case, as some of your Lordships will doubtless remember—at second hand, at any rate—was that of Entick v Carrington. So while some things may have changed over the quarter of a millennium that has passed since then, others have very definitely stayed the same.

The noble Lord, Lord Lester, spoke of the "cosy cordiality" which characterised the relationship between the executive and the judiciary 40 years ago. I hesitate to say that it may not always have been so described or experienced by those who lived and practised through that period.

Many issues were raised in the debate and I have only a limited time in which to respond. I shall address as many points as I can. First, however, I want to deal with three general issues.

I agree that the noble and learned Lord, Lord Woolf, made an important and powerful contribution, one which the Government take extremely seriously. I shall take this opportunity immediately to confirm to the noble and learned Lord that, when he referred to the five issues on which there was agreement between the judiciary and the Government, he was absolutely right about them. I shall say also that we are fortunate in having a judiciary that is not only well qualified and well equipped for its role, but carries with it the traditions of integrity and independence acquired during practice at the Bar or as solicitors. The noble Lord, Lord Dholakia, was right to say that our judiciary was held in high regard internationally—rightly so. Our judges are robust, and so they should be.

At the moment, the higher judiciary in this country—I say this with the greatest respect—is probably of the highest quality that we have ever enjoyed. Judges and magistrates are in the operational front line. Their daily business is resolving disputes that others have failed to crack, whether over alleged criminality, money or parental access. They see life,

"red in tooth and claw"— bleak, despairing and mundane. One can see that by going into any court in the country.

Secondly, there is the relationship between the judiciary and the legislature. In every good marriage, the partners complement each other. Like Beatrice and Benedick, they do not have the same view on every subject; there is a tension. I think that the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick, referred to that tension. But it can be a creative tension that keeps the relationship alive and vital. The absence of that tension might even be a symptom that all was not entirely well.

So it is between the three constitutional powers. All, to a degree, are jealous of their prerogatives, but they are required, in practice, to co-operate if effective government is to be delivered. Judges are sometimes accused of invading the legislature's turf. It is my experience that, on the contrary, they are very sensible of the respective constitutional roles. In 1980, your Lordships' House, in its judicial capacity, affirmed that it was the judges' duty to apply statutes, however unpalatable and whatever their perceptions of where the public interest lay. Lord Diplock pointed to the risk of judges straying beyond their constitutional role as interpreters of the enacted law. I join my noble and learned friend Lord Morris of Aberavon in quoting the noble and learned Lord, Lord Scarman. He said:

"a judge must be obedient to the will of Parliament, as expressed in its enactments".

That issue was underscored when the noble and learned Lord, Lord Woolf, made his valuable contribution this evening.

Lord Diplock also pointed out that legislation being considered by a court might have injurious consequences that Parliament had not anticipated when it was passed. However, he said:

"if this be the case it is for Parliament, not the judiciary, to decide whether any change should be made to the law as stated in the Acts".

There can be no objection to a judge saying that a statute will not or does not work. Judges have direct practical experience of the administration of justice that makes their contribution of high value.

Much debate was provoked by Mr Justice Collins's decision in the case concerning the entitlement of asylum seekers to asylum support. This evening, the issue was raised by the noble Lords, Lord Lester of Herne Hill, Lord Windlesham and Lord Plant of Highfield, among many others. In his judgment, Mr Justice Collins said:

"I made it clear that I could not go behind the words of the Act which Parliament had enacted. Whether the reasons which have led to its enactment are good or bad is not for me to decide".

In a newspaper article, my right honourable friend the Home Secretary commented:

"I respect the role of our judges to interpret the law. But there has to be a balance between"—