These amendments are purely matters of drafting improvement and consistency and do not affect policy. After one sentence, I give way.
The Minister is unfailingly courteous and always tries to help. I wanted to intervene at this stage because I have a point not of order but of substance, which I want the Minister to address. We have spent two hours of the first three hours allocated and have discussed one amendment. There has clearly been no filibustering; many Members have not taken part because they have felt that they should leave matters to those who are leading on the issue. We now have less than an hour to complete consideration of the first group of clauses. Some very important subjects will clearly not be debated. Will the Minister discuss with the Leader of the House and others responsible for deciding the programme whether we can have a fourth day on this Bill? It is absurd that whole chunks of a Bill of this magnitude, which has come to this House having been thoroughly discussed in another place, will be dispatched without anybody saying anything about them.
We have not debated just one amendment; we have debated two separate amendments on a very big issue. What can be much bigger than the issue of the rule of law? I am not surprised that we took some time on that. However, having listened to the hope expressed by the hon. Gentleman, I shall try to be briefer so that we can make as much progress as possible. Perhaps we shall even finish consideration ahead of schedule, leaving time for other matters.
I have been sitting quietly trying to listen to the debate. This Bill is important to those of us who are not lawyers and who are trying madly to find a way through much of the provision, which impinges fundamentally on parliamentary privilege. The point made by Sir Patrick Cormack is not about the content of individual amendments; it goes rather deeper. If such a Bill is programmed—as this one is—the House will not debate it. My hon. Friend has called in aid debates in another place, not once but several times. It is bizarre that in seeking to amend a House of Lords Bill the House of Commons is praying in aid the House of Lords. We should be debating the Bill here.
Indeed we are debating it here. We are at the beginning of our extensive debates on these matters. I say to my hon. Friend that I will try to be as brief as possible to allow as wide a debate as possible.
The amendments replace references to "Minister" with "Lord Chancellor" throughout the Bill. The Bill as introduced into the Lords last year sought to abolish the office of Lord Chancellor and therefore set down many functions as the responsibility of the "Minister". Since then, we have listened to concerns about abolition, expressed here and in the other place. The Government accept the decision of the House of Lords to retain the title and formal office of Lord Chancellor. Whether the post holder is called "Secretary of State for Constitutional Affairs", "Lord Chancellor", or has both titles, is not of great significance.
As I said on Second Reading, what matters most is the substance of the post, the nature of the job, and whether it is reformed so that the post holder no longer has conflicting duties. If the role of the head of the judiciary can pass to the Lord Chief Justice, and with it many of the judicial functions that are incompatible with the political functions of a Cabinet Minister, the office of Lord Chancellor can continue in that substantially reformed way. The Bill therefore retains the office of Lord Chancellor, but in a significantly altered and more appropriate form. To ensure that the Bill's terminology is consistent, the Government amendments replace references to the Minister with references to the Lord Chancellor. They ensure that it is immediately clear to everyone who reads the Bill that the Lord Chancellor is the Minister responsible for exercising those functions, so they do not need to cross-refer to another part of the Bill. That follows the precedent that functions vested in the Lord Chancellor in statute are, for the sake of clarity and ease of understanding, vested specifically in that office rather than in "the Minister".
As I have already mentioned, the decision to abolish the post of Lord Chancellor was misconceived. It was a back-of-the-envelope decision made on the back of a reshuffle by cosy chums sitting around in No. 10, without the usual safeguards of consultation and measured consideration in Cabinet. It was clearly wrong to try to abolish such a pivotal role in that way, and the amendments represent recognition by the Government that the Prime Minister got it wrong. Conservatives and Members in the other place were right to battle hard to restore the Lord Chancellor's role and ensure that that ancient but important post was not abolished as planned. I therefore welcome the fact that in numerous instances throughout the Bill the word "Minister"—the Lord Chancellor would simply have been a Constitutional Affairs Minister—has been replaced with the words "Lord Chancellor", which reflects the success of my noble Friends in another place.
I, too, welcome the clarification in the Bill, which reflects the views of Members from all parts of the other place and puts into effect the requirements of the concordat between the Government and the higher judiciary. I have some sympathy with the view expressed by Shakespeare that a rose
"By any other name would smell as sweet."
I am not sure how we would apply that to the post of Lord Chancellor, but the semantic significance of the amendments goes beyond the title given to his particular functions. On Second Reading, my hon. Friend Mr. Heath was concerned that by retaining the title of Lord Chancellor we were sending the message that there was not any change in his functions within the Executive and the hierarchy of the judicial system. That is not the case, so I regret that it has not been possible to find a better title. Indeed, my hon. Friend and others have argued that the Bill provided an opportunity to look at the boundary between the Department for Constitutional Affairs—Decaff, as it is commonly known, because it is said to be all froth and no substance—and the Home Office. This could have been the time to look more substantially and strategically at they way in which those two Departments interrelate. Logic, however, now dictates that references to the Minister throughout the Bill should be replaced with references to the Lord Chancellor. That is the settled will of Members from all parts of the other place and, I suspect, of Members of the Commons. I hope that we will now progress as fast as possible to the more substantial issues before us.
I support the Government amendments, and I am delighted that the Government have seen sense and conceded the power of our arguments. References to the Lord Chancellor now appear in the Bill, but I think that the Minister would agree that it is important that people outside should not be confused. There is nothing confusing about changing some of the Lord Chancellor's responsibilities. That has happened before—in the middle ages, the Lord Chancellor was frequently a bishop or senior cleric—but if he has a dual title, as at present, people will get mixed up. We should not have a dual title for the man or woman who fulfils the role of Lord Chancellor. I should be delighted if a woman became Lord Chancellor—that would be a very good idea if we chose the right person—but whoever bears that important title, it should not be subsumed by another title.
My hon. Friend has made an important point about the confusion that has been engendered. That is not helped by the fact that the Government did not include these proposals in either their 1997 or 2001 manifesto.
Indeed, that is the case, and the events that led to the introduction of the proposals have been rehearsed many times. The Prime Minister was suddenly confronted with what turned out to be the temporary retirement of Mr. Milburn. He also had some sort of altercation with the then Lord Chancellor—one day, when memoirs are written, perhaps we will know precisely what did, or did not, happen. The proposals, however, were introduced without proper consideration or deliberation. As we said on Second Reading, the substance of the Bill should have been the subject of a White Paper and preferably a Green Paper and draft legislation as well. All that, however, is history.
Sir Thomas Legg has a reputation for wisdom, which is not shared by many members of the Government. We do not, I emphasise, want confusion. I am delighted that the Minister, in his winsome and emollient manner, moved the amendment. I just hope that he accepts the logic of the changes to the wording of the Bill, and will pass the message on to No. 10 that we do not want confusion visited upon us in future by having two titles for one Minister.
I support the arguments made by my hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Huntingdon (Mr. Djanogly), as well as by Mr. Tyler. I appreciate the fact that the Government have removed the words "the Minister" and re-emphasised the role of the Lord Chancellor. I would like to address amendments Nos. 7 and 8, but principally amendment No. 7, which asks for the deletion—
While there is a hiatus, may I reinforce the point made by my hon. Friend Sir Patrick Cormack? I accept that the Minister is part of the Department for Constitutional Affairs, but we live in a strange country. The ministerial head of the Department could easily be called Lord Chancellor. I presume that, once the Bill is enacted, the title of Lord Chancellor will disappear for the transitional period, although that sounds very strange. Once that transitional period ends, however, let us celebrate our illogicality and have a Lord Chancellor who heads a Department with a different name.
There is not much further to add now, other than to say that I am glad that there seems to be a consensus that it is right to include these amendments and then move on to other more substantial parts of the Bill.
Amendment agreed to.
Clauses 4 and 5 will impose a duty on the Lord Chancellor and Ministers to uphold the independence of the judiciary. Of course, as I mentioned earlier in relation to the whole Bill, that duty would be enforceable by the judiciary itself as a matter of statute in terms of judicial review. In this context, I would assert that that in itself represents a radical gear change in the interpretation of statute law and, indeed, in the principles to which I shall refer in a moment. Yes, of course, there must be judicial independence—I would not want anyone to suppose that amendments Nos. 7 and 8 would affect that principle in any way—but there is also the Oath of Allegiance and salaries, to which are connected security of tenure and other matters, including the role of judges as embedded in the Act of Settlement 1700. In fact, as we well know, a range of conventions, rules and principles have been enunciated over the past several hundred years and are accumulated in the current state of the rule of law and in the specific question of judicial independence.
Clause 4(7) goes too far, and the same applies under amendment No. 8, with respect to Northern Ireland, where much the same sort of thing obtains, although I have no doubt that Northern Ireland Members will want to make their own contribution on its application to Northern Ireland itself. I will therefore confine my remarks primarily to the issues that apply to the United Kingdom, rather than to Northern Ireland.
Scotland is mentioned in clause 4(2), which states:
"Subsection (1)"— on the duty of the Lord Chancellor and others to uphold the continued independence of the judiciary—
"does not impose any duty which it would be within the legislative competence of the Scottish Parliament to impose."
Again, I would prefer to leave those matters to any Scottish Member who may wish to intervene—I see that the Advocate-General for Scotland is here—but subsection (2) must be considered in relation to the background of the supremacy of the United Kingdom Parliament. It is well established that the Scotland Act 1998 is ultimately subject to the question of whether or not the United Kingdom Parliament might decide to amend or repeal any part or all of the Scotland Act 1998 itself. That may be a matter of great contention in Scotland, but I believe that it represents good constitutional law in so far as the United Kingdom Parliament is concerned.
Clause 4(7) and the definition contained in subsection (8) go too far, because they would confer judicial independent in respect of international treaties. I believe that that would be to make radical, new law and entrench it in statue, given that those provisions would apply to treaties irrespective of whether they were endorsed by statute. Indeed, as I have mentioned already, we must remember that Lord Diplock made it clear in the commissioner of Excise case of 1967 that statute can, in fact, break treaties.
I shall now address the question of what the words mean. Subsection (7) says:
"In this section 'the judiciary' includes the judiciary of any of the following"— of course it lists the Supreme Court, but it then refers to
"any other court established under the law of any of the United Kingdom".
I do not seek to knock out those words, for obvious reasons, although I have the gravest reservations about their necessity in the light of the development of our constitutional position. I have a certain sympathy, to say the least, with what my hon. and learned Friend Mr. Garnier said with regard to clause 1. Attempting to include all these things in statute and making them subject to judicial review is, in itself, an extremely unfortunate and dangerous course. However, that raises a particular question in respect of judicial independence: quis custodiet ipsos custodes? After all, the judges will be the ones who determine the question of judicial independence under the duty imposed by clause 4. What are we to do, therefore, about the reference to "any international court" in subsection (7)(c)?
Subsection (8) says:
"In subsection (7) 'international court'"— here is the definition—
"means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of judicial nature, in pursuance of . . . an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or . . . a resolution of the Security Council or General Assembly of the United Nations."
I find that a radical departure from the existing state of affairs. Indeed, it is clear that the European Court of Justice and/or the European Court of Human Rights at Strasbourg are included in subsection (8), given the absence of any words to exclude them. In fact, subsection (8) does not refer to the International Criminal Court, and I rather think that that will be included, too. I find it astonishing that subsection (8) refers to a
"court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of . . . a resolution of the Security Council or General Assembly of the United Nations."
I look forward to hearing what the Minister has to say by way of justification.
I am following my hon. Friend's comments with great interest and I can understand where he is coming from when we look at subsection (8)(a), but is he seriously suggesting that this country should flout Security Council resolutions when so much of what we have done in international affairs recently has been based on adhering to them?
In a sense, that is my point. Indeed, in so far as it is clear that our existing arrangements respect those international tribunals, that is one thing, but it is quite another thing to impose the duty on the Lord Chancellor and other Ministers of the Crown as a matter of statute law to uphold the continued independence that arises in that context. It is a step change, which troubles me. If we, as a nation, decided that we did not support a particular Security Council resolution in relation to an international court, aspects of it might be applicable to us in the United Kingdom, in which case we might find that we are not prepared to accept the setting-up of that tribunal, still less the deliberations, conclusions and judgments passed by that court.
Clause 4 is another example of clumsily drafted legislation, and the fact that my hon. Friend the Member for Stone has had to pose those questions through his amendment exemplifies that point. Clause 4 could be intended to prevent the Lord Chancellor—under the Government's regime, the Lord Chancellor will not necessarily be a senior lawyer, still less a Member of the House of Lords, but could be a highly political Minister on the make—and other political Ministers from seeking to influence British-appointed members of international courts or courts set up on an ad hoc basis under a United Nations resolution, such as the courts in Sierra Leone or Rwanda. In that case, the Lord Chancellor, who will not be a Member of the Lords or a member of the judiciary, would be inhibited by statute from ringing up Mr. Justice Somebody-or-Other and saying, "Look, we would find it politically convenient if you were to reach this particular conclusion in this international court." That is the most charitable explanation that I can provide for clause 4, but my hon. Friend the Member for Stone might have a more or less charitable explanation.
That question should be addressed to the Minister, and I am also puzzled for the same reasons.
Clause 4(5) states:
"The Lord Chancellor and . . . Ministers . . . must not seek to influence particular judicial decisions thorough . . . special access to the judiciary",
That is not the same as how the judiciary—I am thinking of the European Court of Justice—interpret a law under which they claim a superior jurisdiction to not only our courts, but our laws and constitutions. A severe danger exists that that wording could leave open the probability that upholding the continued independence of the judiciary—in that case, the ECJ—and dovetailing it with the European Union Bill, which we are about to consider, could lead us into some extremely dangerous constitutional situations.
The Bill will probably displace the assumption that the judiciary in this country are obliged to give effect to the latest enactment of the European Communities Act 1972, if, as I put it to the Prime Minister the other day, the European constitution were turned down in a referendum and it were necessary to repeal the European Bill, as enacted.
In a nutshell, if my amendment were accepted, it would not change the existing situation. I have no idea why clause 4, which will take us into extremely deep and dangerous waters, has been included in the Bill, and I look forward to hearing what the Minister has to say. The Minister owes it to the House of Commons to be entirely candid as to why clause 4 has been included, because in my opinion it would be better if it were removed.
My hon. and learned Friend Mr. Garnier has already expressed my concerns better than I will.
My hon. Friend Mr. Cash is concentrating on a situation in which conflict occurs between courts. I appreciate that he seeks to avoid a situation in which the Lord Chancellor, other Ministers or judges are expected to uphold the independence of an international court at the expense of a local court.
The aim of clause 4 is to ensure that each of the courts listed in subsection (7) is not subject to improper ministerial influence or denied the support that it requires in order to function. This part of the concordat, as expressed in the Bill, is designed to militate against the sort of scenario set out by my hon. and learned Friend the Member for Harborough.
My hon. Friend may correct me on this point, because he has studied the Bill at greater length than me: am I right in thinking that the judicial appointments commission will not appoint judges to the International Criminal Court or to the other international judicial bodies to which we send judges, and that a non-legal Lord Chancellor could therefore require his politically convenient appointees to go only to those international bodies? Is my hon. Friend worried that the reason why the Government included that provision is that they fear that an ignorant Lord Chancellor will attempt to do precisely that at some future date?
I agree with my hon. and learned Friend about the mischief, which is our concern. If the Lord Chancellor is a politician on the make rather than a senior figure reaching the end of their career, if they sit not in the other place but here, if they are not a lawyer and if they are very different from a traditional Lord Chancellor, such concerns will emerge.
Have we not been placed in this position because of the peculiar programming? Clause 4 is a logical consequence of clause 3, which demands that the Lord Chancellor be legally qualified. The person with whom we are dealing in clause 4 is therefore legally qualified, but we will debate clause 3 later, which makes nonsense of the whole Bill.
It is hard to argue with my hon. Friend's point. Perhaps he will take it up with the Minister in due course.
Our Ministers and judges should uphold the independence of all those categories of courts. As a country, we have a proud tradition of supporting the independence of the judiciary in international tribunals and courts, of which there are many examples, some of which were mentioned by my hon. Friend the Member for Stone. Given the history and importance of our involvement in a range of courts and tribunals, it would be wrong to do anything that suggests that we do not want to uphold the independence of those courts and that those courts are open to ministerial interference or interference through the non-provision of the necessary logistical support.
On this occasion, I find it difficult to support the amendment moved by my hon. Friend the Member for Stone. I do not want to derogate from the argument that I made earlier—the UK Parliament is sovereign and should be sovereign, and our courts should interpret our laws accordingly. I hope that my hon. Friend will consider his amendment and perhaps seek to find other ways in which to achieve his laudable intentions.
I am glad to hear the hon. Gentleman's comments, as I, too, feel that clause 4 is critical to the whole Bill, and the amendments would dilute it. It is important to recall the context of clause 4 and the specific requirements placed on the Lord Chancellor, which it is extremely important for us to reiterate this evening.
The clause has two such requirements, extending to subsection (8), to which I shall refer in a moment. The first is the insistence that no opportunity of special access to exert pressure on any elements of the judiciary should be used. I take the point made by Mr. Garnier that one can imagine circumstances in which an appointee to some international body or tribunal who will not go through the normal judicial process could be under some form of influence or obligation to a political Minister. It is important that we recognise that.
It seems to me that Mr. Cash has tabled one of his bogeyman amendments, in which there is always somebody in Brussels, or some devilish foreigner, whom we must do down and keep in their place. He is making a mountain out of molehill, if one can do that with a bogeyman. He is trying to imply that there is some sort of inflated recognition in the subsection for the non-domestic court process. I do not read it like that—I simply read it, as the hon. and learned Member for Harborough said, in the terms that it is a proper precaution to be placed in the Bill, to ensure that the Minister does not have special access. We are advised that that need not in any way impede the way in which he operates to make sure that the public interest in matters relating to the judiciary, at any level of the administration of justice, is properly represented. That seems to me to be a perfectly proper approach.
If there is a problem with the wording, that is down to the Minister, and no doubt he will defend it—I hope that he will do so in a moment. I see some practical advantage, however, in making it clear in the Bill that we will not tolerate political interference with the judicial process, wherever that may lie.
Clause 4 seeks to give statutory form to the important principle of judicial independence, and who could possibly be against that? In fact, I have misgivings about the entire Bill, because taken as a whole, it will have the effect over time of politicising the judiciary, particularly allied to the advance of international human rights legislation. When judges are called on to make difficult and sensitive decisions about the right to life, to freedom of expression or to privacy, they are drawn down a political road. We have seen that in the United States, where appointments to the Supreme Court are matters of great partisan political interest. I hope that we can avoid that in this country, but the Bill does nothing positive to entrench what until now we have understood to be the independence of the British judiciary.
My support for amendments Nos. 7 and 8 is based on a narrower consideration. It seems to me that the definition of an international court includes the European Court of Justice. If not, the Minister must stop me now—if it is somehow excluded, the rest of my remarks fall. I take it that the definition in the clause of an "international court"—
"a court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of . . . an agreement to which the United Kingdom . . . is a party"— obviously includes the European Court of Justice.
The problem about the independence of that Court is that it will be undermined by the European constitution. I draw the attention of the Committee to article 1–18, which lists the institutions of the European Union, including the Court of Justice of the European Union, as the ECJ will become known, the Council of Ministers and the European Commission—the executive branch of the European Union. The provision then states:
"The Institutions shall practise full mutual cooperation".
Therefore, the executive branch of the EU is to practise full mutual co-operation with the judicial branch. That is a fairly startling defiance of the principle of separation of powers, because it also applies in reverse: the European Court will have to practise full mutual co-operation with the executive.
I am a member of the European Scrutiny Committee, and we are currently taking evidence about the European constitution. A number of witnesses of great renown have come before us: people of judicial training, both in constitutional and international law, from more than one European country. We have asked them what they understand by that clause and those words. They are very worried; some of them are baffled. It is not an accident, however—those words were slightly changed during the negotiations in the Convention on the Future of Europe, which I witnessed. They are therefore deliberate. They are not permissive—they do not say that the European Court of Justice "may" co-operate with the executive but that it "shall". It is therefore a mandatory instruction. Our witnesses could give no other example in the world of a constitution that apparently undermines the independence of a court so dramatically.
I would find this a lot more horrifying were I not already convinced that the European Court of Justice is a wholly political organisation. All the appointments during my time in the European Parliament were made on the assumption that the judge concerned was of a particular political colour. I therefore find it difficult to accept that this has suddenly become a problem; it has been so since the creation of that entirely political court.
The hon. Lady is right. It is an activist court, which takes as one of its duties the upholding of the European ideal and the advancement of European integration. I therefore accept what she says.
The European constitution, however, provided an opportunity to entrench a different doctrine of true independence, along the lines of the separation of powers, as we have discussed in our consideration of the Bill. That makes it all the more worrying to have written into the constitution a provision that obviously undermines that independence. The relevance for the Bill is obvious. We are giving the Lord Chancellor, and future Lord Chancellors, a duty to defend the independence of foreign courts and judges in those courts, yet the Government have signed a European constitution that breaches that independence. Therefore, my question to the Minister is: what will happen? Why are we giving the Lord Chancellor a duty to be independent, and why have we signed a constitution that undermines that independence?
Has the European Scrutiny Committee, in its evidence sessions, heard any evidence about the meaning of the expression "full mutual co-operation"? I understand my right hon. Friend's argument that that could mean "do as you're told", but it might also mean that the two respect each other's separate roles. I am not sure whether we are just having a semantic argument, or whether there is some evidential basis for the concerns, which I can well understand.
I am not a lawyer, but I can read English and I do understand—I think—the following sentence:
"The institutions shall practise full mutual co-operation".
That would appear to mean that the judiciary must co-operate with the executive, but is that not a breach of the separation of powers, as understood by my hon. Friend Mr. Cash? There may be an innocent explanation, but such an explanation was not advanced by the expert witnesses who came before the European Scrutiny Committee—quite the reverse. They said that either this was indeed a serious breach, or that hopefully—as one witness put it—the provision will simply be ignored. Well, I am not quite so innocent as that. When a provision is written into a constitution that shall have primacy over the law of all member states, we must take it seriously.
I am not being excessively mischievous or pessimistic in seeing—let me put it no higher than this—a problem, and the problem for us this evening is that this provision conflicts with the Bill. As I have said, although I am not a lawyer I can read, and we are about to pass into law a duty for the Lord Chancellor "to defend" judicial independence. More than that, the judiciary—in this instance, the European Court of Justice—will
"have the support necessary to enable them to exercise their functions", so the necessary resources will have to be provided. In every way, therefore, we are supporting an independence denied by the European constitution.
Of course we do not yet have the European constitution—and if my right hon. Friend and I have anything to do with it, we will not have it. The arguments that he is advancing this evening are added ammunition in the battle against that pernicious document—but putting that to one side, does he agree that clause 4 is not as damaging as my hon. Friend Mr. Cash suggested in his speech?
I will be marching with my hon. Friend to secure a no vote on that pernicious document. He is right to suggest that the best way to prevent this conflict is to take out the European constitution, but the only means at my disposal this evening is removing the relevant words from the Bill. This House should not legislate to contradict itself.
I do not altogether accept my hon. Friend's assurances. To echo what my hon. Friend the Member for Stone said, we can envisage future conflict between different judicial systems, and in that case, I would rather uphold the independence of our domestic courts than put them on an equal footing with international courts.
The main purpose of my brief remarks has been to find out from the Minister how he intends to resolve this problem. He and his Government are in favour of the wording both in the Bill and in the European constitution, and that conflict needs to be resolved this evening.
I will be very brief. I have some sympathy for the amendments tabled by my hon. Friend Mr. Cash and the arguments that he advanced in support of them, but in reaching a conclusion on them, it might be helpful if the Minister answered the following two points. First, can he explain why the list of office holders in clauses 4(1) and 5(1) is so limited? Why does the Bill not impose a duty to guarantee the continued independence of the judiciary on other executive officers? Secondly, I am somewhat confused by the phrase "special access". For example, what special access do the First Minister and Deputy First Minister in Northern Ireland have to international courts that might so undermine their independence that lines 24 to 31 in clause 5 are needed? Mr. Trimble might like to comment on that.
While I was First Minister I had no special access to any member of the judiciary—at home or abroad. What puzzles me about this provision is its stating that one must not misuse special access. What about normal access?
I want to revert to the narrow but important point that I made in an intervention. I am tolerably comfortable with the clause, but only if the holder of the office—on whom enormously onerous responsibilities will be placed, by implication and by direct injunction in the clause—is sufficiently well versed in the law to be able to understand all these matters. That underlines the point that the Lord Chancellor should indeed be removed from the hurly-burly of everyday politics—to me, that means sitting in the other place—and should be a lawyer of considerable experience and distinction. I am baffled as to why we are going to deal with that issue, which is addressed in clause 3, after considering clause 4. I want the Minister briefly to acknowledge the importance of the point that I am making when he responds to those made by others.
I, too, have difficulty with this provision. I am not sure in what way the Lord Chancellor can uphold the continued independence of the members of any international court—a point that applies, as has been said, to the putative European Court of Justice as defined in the European constitution, but also to the European Court of Human Rights. The Lord Chancellor has no role in the appointment of the overall judiciary of that court, yet it will give judgment directly on many of the issues confronting this nation. I am therefore very nervous about the inclusion of such a provision.
Of course many such courts, the validity of which it is difficult to recognise, are set up by prerogative power; their nature has not been established through the legislative process. I have a list of them, but I shall not read it out, given the lack of time and the need for the Minister to explain the reasoning behind the provision. In what way will the Lord Chancellor, or any Minister, affect the appointments to those international courts, and why are we using prerogative power through the back door to sign up to them? There is a further, wider principle, which Vera Baird and I have often discussed. Should not many of these treaties, which contain within them a legislative process, be legislated for through this House, so that we know what powers we are giving and to whom?
We have covered a number of different points, although I am not entirely convinced that all of them related to clauses 4 and 5, the latter of which deals with the provision as it affects Northern Ireland. That said, the points made were, of course, in order. The clauses set out clearly the responsibility of the Lord Chancellor and other Ministers of the Crown to uphold the continued independence of the judiciary. In answer to Mr. Hunter, all Ministers of the Crown are covered in that context. As Sir Patrick Cormack and Conservative Front Benchers have said, that is a pretty unobjectionable goal; indeed, it is a wholly admirable ambition.
Amendments Nos. 7 and 8 would limit that duty by removing international courts from the definition of "the judiciary". I shall explain briefly why that would not be appropriate. The removal of those subsections would not affect in any way the UK's participation in any agreement with any international courts that have been established, or alter in any way their jurisdiction over the United Kingdom. Even if that was the intention of the hon. Member for Stone when he tabled the amendments, they would not achieve it. There is no sound justification for limiting our respect for the international judiciary in that way. Just as Ministers should uphold judicial independence in this country, so they should uphold the independence of judges in properly constituted international courts and tribunals, wherever they may be. The judges of both types of court should be treated in the same way.
I understand the point that the Minister is making, but is the position not even worse than that? Mr. Shepherd is right to say that those who are appointed as British representatives in any court may be appointed by royal prerogative rather than through the judicial system, so they may be more susceptible to pressure. If we removed the provision, the implication would be that it was acceptable to exert pressure on them.
Exactly. It would be perverse to argue that we should respect the judicial independence of judges in this country, but that Ministers should be free to undermine the independence of judges in international courts elsewhere.
The Minister almost persuaded me that he had an argument, but he ruined it with that terrible answer to Mr. Tyler. Until now, nobody ever thought a Lord Chancellor would seek to influence a particular judge, in this country or elsewhere, in the making of a judgment or by use of special or normal access. The clause must go into the Bill because the Government intend to do something different to the nature of the relationship between the appointers of judges and the judiciary. The Minister should not argue that by removing the clause we would be doing something bad. Lord Chancellors have not sought to misconduct themselves in relation to judicial independence—
The hon. and learned Gentleman's argument is ridiculous. The purpose of the clause is to enshrine the protection of judicial independence. I pointed out, as did Mr. Tyler, that it would be perverse to remove the provision and leave a gaping hole in respect of judges in international courts. I am sure that even Mr. Garnier can see that.
To answer an earlier point, in some cases British judges sit on international courts. Are they to have their independence protected when sitting in the UK, but not when sitting on an international court? The credibility of clauses 4 and 5 depends on their covering all judicial decisions affecting the United Kingdom. The same standard needs to apply to the treatment of all judges, regardless of which forum they sit in. It makes no sense to afford less protection to some judges than to others.
Mr. Heathcoat-Amory spoke about how we might in future be able to reconcile concepts of mutual co-operation with concepts such as judicial independence and separation of powers. I do not see any inconsistency between concepts of co-operation and concepts of independence in other legislation.
Is the Minister prepared to say that as he understands it, the positive duty being imposed on Ministers would in no way create a situation in which there was any granting of an assumption that those who were adjudicating in international courts, including the European Court at Strasbourg and the one in Luxembourg—the European Court of Justice—in the interpretation that they place on legislation in the framework of the European Union and the European convention on human rights? Can the Minister give me satisfaction on that point?
In so far as I follow the point, it would be for UK legislation to give the legal basis for judicial decisions affecting domestic law, independent of which court was making those decisions. I do not understand the point that the hon. Gentleman is making.
I do not have the draft European constitution before me, but I am not sure that there are requirements for particular co-operation in specific individual cases. It may be possible for the judiciary, the legislature and the Executive to co-operate in partnership, as we do in this country. We signed up in the concordat to the idea that partnership does not exclude independent judicial decision making in particular cases. That is the fundamental point.
Is it not the case that clauses 4 and 5 impose a duty to uphold the continuing independence of judges individually? That presupposes that judges already are independent. The clauses do not impose a duty to pretend that they are independent if they are not. Therefore, if some international tribunal is clearly not independent in terms of appointments to it, its independence cannot be upheld.
Indeed. Clause 4(8) specifies that any international court established by treaty to which the United Kingdom is a party, or by other organisations in which the United Kingdom takes part, is to be independent. Such courts and tribunals are referred to in the Bill as legitimately organised and established. It would be wrong to allow the amendments to remove respect for and protection of judicial independence in international courts, as set out in the Bill. I hope the Committee will reject the two amendments.
In the light of the discussions that we have had and the arguments that I have heard from the Opposition Benches, I still have grave concerns about the drafting of the clause. However, after careful consideration I have decided that we may be able to fight this battle another day, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
I am pleased to have the opportunity, albeit a brief one, to discuss the guarantee of continued judicial independence in the context of the Lord Chancellor's role, and I start with a quote:
"The Lord Chancellor provides a counter-balance to the judicial branch against the centralised power of government and Parliament. At the same time he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with a full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature."
Those were not the words of a Conservative commentator or an excerpt from an outspoken critic of the Bill. The Minister was trying to remember where they came from—they were the words of the Government when they defended the office of the Lord Chancellor before the Council of Europe in 2002.
While giving evidence to the Select Committee on the Lord Chancellor's Department a year later, the then Lord Chancellor, Lord Irvine, said that
"there is a bit of uniqueness about the Lord Chancellor's Department, which is that its business is dealing with an arm of the state called the judiciary. It is part of the separation of powers. We deal with, as I say, an arm of the state within the separation of the powers and this arm of the state values, and rightly, its judicial independence above all else. It does not want to be bullied by the executive. It believes that its function is to stand between the citizen and the state and to be absolutely robust in deciding when the state has acted contrary to the law."
Yet now, the Government wish abruptly to change the position on the office of Lord Chancellor—albeit that, grudgingly, they will not now change the name—and toss a long-standing part of our Government into the dustbin of history.
It is my belief that the position is too important to be restructured on the basis of a purely political premise masqueraded by the Government under the name of constitutional reform. The position of Lord Chancellor is an ancient one. Some of the most important statesmen in our history have served as Lord Chancellor. Under the Bill, it is now proposed that there will be no requirement that the Lord Chancellor will be a lawyer or have any law experience. Supposedly, according to the Government, a layman has more ability to advise a Prime Minister on legal affairs than a judge who has sat on cases and has training in the law. The Lord Chancellor's unique role in all three branches—Executive, judicial and legislative—gives him a unique opportunity to serve independently and non-politically.
My hon. Friend makes a very important and pertinent point. I have been attempting to lay the ground for a discussion of clause 3 later.
In the short time that remains, I wish to mention that, in addition to clause 3, if there is a single action that could virtually guarantee the independent status of the role of Lord Chancellor it would be the disqualification of the Lord Chancellor from holding any other ministerial office. Perhaps we can deal with that issue when we come to clause 3.
I consider that the Government have paid too little attention to the need to guarantee judicial independence. We will return to these issues when we debate clauses 2 and 3.
Mr. Djanogly has given good reasons why the clause should stand part of the Bill. It is a point of mutual agreement in all parts of the Committee that we want to provide an unequivocal guarantee of continued judicial independence. That guarantee is binding on all Ministers of the Crown and all those with responsibility for matters relating to the judiciary or the administration of justice. Through the clause, we are seeking to embed in statute the principle of judicial independence, which all in the Committee rightly regard as being of paramount importance in our constitution. Clause 4 does exactly that, and it also imposes particular duties for the purpose of upholding continued judicial independence. First, Ministers of the Crown must not seek to influence particular judicial decisions through any special access. Secondly, the Lord Chancellor must consider the need to defend continued independence throughout.
I just want to record that it is a shame—indeed, it is more than a shame—
It being three hours after the commencement of proceedings on the Bill, The Chairman put the Question already proposed from the Chair, pursuant to Order [this day].
Question put and agreed to.
Clause 4, as amended, ordered to stand part of the Bill.
The Chairman then proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour.