Constitutional Reform Bill [HL]

Part of the debate – in the House of Lords at 2:30 pm on 13th July 2004.

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Photo of Lord Crickhowell Lord Crickhowell Conservative 2:30 pm, 13th July 2004

My Lords, I want to address two of the principal points made by the noble Lord, Lord Brennan; the role of this House and the particular position of Clause 1.

Members of the Select Committee very soon learnt that my King Charles's head, my obsession, was the question of the enforceability of Clause 1, an issue that had been raised at Second Reading by, among others, the noble and learned Lords, Lord Mackay of Clashfern and Lord Lloyd of Berwick. I raise it again now, partly because it has just been raised by the noble Lord and partly because the alleged "guarantee of continued judicial independence"—that is the heading to Clause 1—has been placed right at the front of the Bill. The worth of that guarantee should be evaluated and fully understood by noble Lords before they decide that the proposed abolition of the office of Lord Chancellor is to be supported or rejected.

The Judges' Council Working Party on the Bill, in its written evidence to be found on page 213 of the evidence volume, stated:

"The protection of the judicial independence is the keystone of the new constitutional arrangements".

Another working party of greatly respected Members of this House, chaired by my noble friend Lord Alexander of Weedon, whose important memorandum to the Select Committee can be found on page 465 of the evidence volume, drew attention to the attempt made in Clause 1 to impose a statutory duty to protect the independence of the judiciary and commented:

"We have the strongest doubts about the effectiveness of those provisions. Their existence demonstrates the dangers that arise from these reforms. We do not understand how such duties can be enforced".

The noble and learned Lord the Lord Chief Justice, giving oral evidence in response to my question on the subject (question 527), said that it was not intended that a clause of this sort should be enforced in the courts. He compared it to the declaratory provisions to be found in education and National Health Service legislation and told the committee that a Minister failing to fulfil the responsibilities set out in the clause,

"will be answerable to Parliament and the public for failure to do so".

With great respect to the Lord Chief Justice, I believe that this clause, which seeks to impose very specific highly important duties, is intended to be of much greater significance than clauses which impose general duties to promote education or to establish a comprehensive health service. And as the Alexander of Weedon working party pointed out in paragraph 61,

"if the proposed statutory duty proves ineffective, it is likely the Lord Chief Justice will be drawn further into political and media controversy in order to defend individual judges".

It identified other equally unfortunate consequences of the same failure.

When Lady Justice Arden, who chaired the Judges' Council Working Party, gave evidence (question 745), I pursued the subject again and asked a number of questions about this

"keystone of the new constitutional arrangements", which is supposed to protect judicial independence and, it is hoped, the rule of law. I argued that the House of Commons, with a large government majority, is not likely to be an effective body to challenge executive action and that this House may not find it easy.

I suggested that if the clause is extended to cover the rule of law and, even more, if Clause 1 is given enhanced status by imposing an interpretive obligation along the lines of Section 3 of the Human Rights Act 1998, as proposed by the Judges' Council,

"surely there will be citizens outside who perhaps do not feel that Parliament is doing its job effectively who will want to take the matter to the courts and to judicial review".

We have got into a sort of circular position because we started with an unenforceable clause, and then we are told that it is okay because Parliament will deal with it; but if Parliament fails to do something about it for the people, the people's only remedy is to go to the courts.

When I put this proposition to Lady Justice Arden, she said that if it was required it should be possible to draft a clause that was enforceable; but that, understandably, she did not wish,

"to express a view either way on whether clause 1 would be capable of being relied upon by the citizen who wishes to take the matter to the courts by judicial review".

It seems to me wildly unlikely that the clause will be redrafted to make it legally enforceable. The last thing that Ministers want is to be pursued in the courts for their failures. And as Professor Jolowicz argued in his written evidence (page 365), although the clause is a fine example of what he called lex imperfecta, it may not be wise to open the door to an application for judicial review. That, he said,

"conjures up a vision to delight the enthusiastic lawyer, but may not be entirely sensible".

So we are left with a declaratory clause unenforceable in the courts and the concordat which, apart from the bland and unsubstantiated statement quoted by the noble Lord, Lord Brennan, that,

"The new arrangements should reinforce the independence of the judiciary", gives little comfort. Like Professor Jolowicz, I believe that there is no adequate substitute for a Lord Chancellor and that it is,

"seriously misguided deliberately to destroy an office whose traditions have succeeded in creating for its holders a remarkable and deserved reputation for trustworthiness".

The Alexander Weedon working party gets to the heart of the question in paragraph 56, when it says:

"we consider that the Lord Chancellor presently holds a strong role in protecting the independence of the judiciary within Government . . . First, he acts as their spokesman in arguing for resources to enable them to do their work properly and to ensure that their position is protected. Secondly, he can remind other members of the cabinet of their role within the justice system. As such, he acts as a counter-balance to the equally important role of the Home Secretary in looking after the interests of public security".

Equally telling is the working party's earlier quotation of Lord Birkenhead's defence of the office, written in 1922, to be found on page 467 of the evidence volume. It firmly deals with the argument of the noble Lord, Lord Goodhart, that all we are talking about is a name. Lord Chancellor Birkenhead wrote:

"it provides a link between two sets of institutions"— the judiciary and the executive—

"if they are totally severed there will disappear with them any controlling or suggestive force exterior to the Judges themselves, and it is difficult to believe that there is no necessity for the existence of such a personality, imbued on the one hand with legal ideas and habits of thought, and aware on the other of the problems which engage the attention of the executive Government. In the absence of such a person the judiciary and executive are likely enough to drift asunder to the point of violent separation, followed by a still more violent and disastrous collision".

We live in a moment of history when that warning seems prescient and apposite.

My final reference is to the Law Lords, who told the Select Committee, as reported at page 116, that they are,

"very greatly concerned that the important constitutional values which the office of Lord Chancellor protected should continue to be effectively protected. In the past the Lord Chancellor's role was to uphold constitutional propriety and champion judicial independence. The constitution would be gravely weakened if that safeguard were removed and not replaced".

The Prime Minister decided to remove that historic safeguard without consultation and, astonishingly, without reference to the Cabinet—so much for the idea that the Cabinet Secretary is to be the proper defender of the independence of the judiciary. It seems unarguable that an unenforceable declaratory clause cannot be an adequate substitute for the historic role of the Lord Chancellor. Furthermore, the authority and influence of the role does not stem simply from his responsibility for what were described in our report as "judicially related matters". The special responsibility as the "constitutional conscience" of government, defending judicial independence and the rule of law in Cabinet goes much wider and springs from the historic character and seniority of the office. That must not be casually put on one side, which is why I strongly support the amendment and the other clauses that go with it.