rose to move, That this House takes note of the report of the Constitution Committee on Relations Between the Executive, the Judiciary and Parliament (6th Report, Session 2006—07, HL Paper 151).

My Lords, the report sought to assess the evolving constitutional relationships between the Executive, the judiciary and Parliament, and made recommendations both to Government and the judiciary. The follow-up report, published on 10 October 2008, analyses the responses of the Government and the judiciary to the report. The committee was chaired by the late Lord Holme of Cheltenham who is remembered by your Lordships' House and by the committee with respect and gratitude, and in my own case, with great personal affection. Your Lordships' committee was greatly assisted by the specialist advice of Professor Andrew Le Sueur and by the clerks.

I appreciate the Government finding time for this debate in a very busy Session, and I am particularly grateful to the Lord President of the Council for being present to respond to the debate. It was right to hold the debate in the present Session rather than wait for two months for the Government to respond to the follow-up report.

It is a matter for regret that the noble and learned Lord, Lord Woolf, is absent on duties in the Court of Final Appeal in Hong Kong, and that the noble and learned Lord, Lord Lyell of Markyate, is also detained by duties elsewhere. Both noble and learned Lords made distinguished contributions to the reports and would have wished to participate in the debate today. The noble and learned Lord, Lord Goldsmith, is also prevented by other duties from contributing to the debate as he had originally intended.

The report of your Lordships' committee made a series of recommendations to both the Government and the judiciary. It referred to the impact of the Human Rights Act 1998, the Constitutional Reform Act 2005, and the Ministry of Justice, which was created in the course of our inquiry. It also emphasised the importance of the Lord Chancellor fulfilling his or her duty to defend the independence of the judiciary—recognised by Section 3 of the Constitutional Reform Act 2005—by ensuring that Ministers do not impugn individual judges, and restrain and reprimand those who do. It recommended the inclusion in the Ministerial Code of strongly worded guidelines setting out the principles governing public comment by Ministers on individual judges.

Your Lordships' committee was critical of the Government's handling of the creation of the Ministry of Justice and recommended a transparent process for setting the budget of Her Majesty's Courts Service, with appropriate judicial involvement. Other recommendations to the Government included the status of the Lord Chancellor, the involvement of the Law Officers in policy-making and legislative drafting, and the possible use of advisory declarations by the courts to rule on whether recently enacted legislation is compatible with the Human Rights Act.

The report also examined the judiciary's channels of communication with the media and the public, and criticised some of the media for what was seen as irresponsible coverage of judicial decisions. It concluded that the senior judiciary should act more quickly to explain judicial decisions in controversial cases, and that consideration should be given to appointing one or more spokesmen, with appropriate qualifications and legal experience, who would be permitted to speak to the media with the aim of securing coverage that accurately reflects the judgment or sentencing decision. Your Lordships' committee considered the appearance of judges before Select Committees, the role of the Lord Chief Justice and his annual report, and the interaction of individual judges and the media.

In October 2007, the Government published their response to the report, and the Lord Chancellor, Jack Straw, appeared before the committee. The Judiciary also provided a response that month—the first response by the judiciary to a committee of Parliament. The then Lord Chief Justice, the noble and learned Lord, Lord Phillips of Worth Matravers, subsequently gave evidence to the committee on two occasions.

Your Lordships' aim in publishing the follow-up report has been to analyse the responses by the Government and the judiciary, and to assess such progress as has been made since the original report. The report would have been published sooner but the committee wanted to hear the reaction of the noble and learned Lord, Lord Phillips of Worth Matravers, to the framework document for HMCS and to complete the correspondence with the Editors' Code of Practice Committee of the Press Complaints Commission.

In its report, under the heading, "Ministers and Judges", the committee discussed reaction to the Sweeney case. The then Home Secretary, John Reid, attacked the minimum tariff sentence as "unduly lenient". Vera Baird MP, the then Parliamentary Under-Secretary at the DCA, also publicly criticised the sentence. Your Lordships' committee found that the,

"then Lord Chancellor, had failed to fulfil his duty to ensure that ministers do not impugn individual judges and to restrain and reprimand those who do and that the senior judiciary could", and should,

"have acted more quickly to ... the unfair press coverage that followed the sentencing decision".

The committee recommended that the Ministerial Code should be amended,

"so that it gives clear and unambiguous guidance to ministers about how they should or should not comment about judges in public", and has made a commitment to reviewing the issue after the Government next update the code.

I shall not delay your Lordships with further debate about the creation of the Ministry of Justice. It is sufficient to say that lessons have, we hope, been learnt about involving the Lord Chancellor and the Lord Chief Justice at a sufficiently early stage of the policy-making process,

"in the event of constitutional reforms or 'machinery of government' changes impacting ... on the judiciary".

On Her Majesty's Court Service, the noble and learned Lord, Lord Falconer of Thoroton, the then Lord Chancellor, and the noble and learned Lord, Lord Woolf, the then Lord Chief Justice, agreed a concordat in 2004, which set out the division of responsibilities between the Lord Chancellor and the Lord Chief Justice. Your Lordships' committee expressed its concern in the follow-up report that this document had not been amended to reflect the new arrangements for Her Majesty's Court Service. I hope that the Lord President of the Council will find it possible to address this issue in her response. In the view of the committee, a practice should be established to amend the concordat whenever necessary to ensure that it remains a relevant and binding document.

In the follow-up report, the committee recommended:

"The posts of Lord Chancellor and Secretary of State for Justice should continue to be combined in future".

Again, you Lordships will wish to hear the views of the Lord President of the Council, as opinions vary greatly on this point. The follow-up report assesses issues relating to the response by the judiciary to the first report. The response by the judiciary was its first ever given to a parliamentary Select Committee and we are grateful for that.

I turn now to the accountability of the judiciary. The committee sought to ascertain how, under the new constitutional arrangements, the judiciary could remain accountable in what one of our witnesses termed the,

"explanatory role in the sacrificial sense".

The committee concluded that Select Committees have an important role to play through the questioning of senior judges in public and welcomed the decision of the Judicial Executive Board that the Lord Chief Justice should lay an annual report before Parliament. The judiciary's response acknowledged the need for accountability in respect of their administrative duties, but expressed concerns about the frequency of judges' appearances before Select Committees and the topics that should or should not be discussed. The committee understands these concerns, but reserves the right to call judges to give evidence whenever necessary and to ask about issues as appropriate. The position of judges will of course be respected, and speaking personally, I do not envisage any difficulties in the foreseeable future in this area.

Since the publication of the Lord Chief Justice's first annual report, the noble and learned Lord, Lord Phillips of Worth Matravers, and Sir Igor Judge—now the noble and learned Lord, Lord Judge—have suggested that the Lord Chief Justice might not produce a report on a strictly annual basis. The committee believes that such a report would be an effective way for the judiciary to be accountable and hope to see it published on an annual basis.

I turn to communications by the judiciary. The committee assessed the way in which the judiciary communicates with the media and the public, and concluded that the Judicial Communications Office should give consideration to appointing one or more spokesmen with appropriate qualifications and legal experience who would be permitted to speak to the media with the aim of securing media coverage that reflects accurately judgments and sentencing decisions. The judiciary has now appointed five judges to act as spokesmen where appropriate.

I turn to advisory declarations. In the report, the committee considered whether the courts could, in appropriate cases, provide greater guidance on the compatibility or otherwise of proposed or recently enacted legislation with the Human Rights Act. The noble and learned Lord, Lord Phillips of Worth Matravers, told us in oral evidence that he was open to this proposal. I hope that the Government too have an open mind on whether, in appropriate cases, seeking an advisory declaration might be beneficial. Perhaps the noble Baroness will have words to say on this.

Finally, I wish to address relations between the judiciary and the media. The committee believes that the media, especially the popular tabloid press, all too often indulge in distorted and irresponsible coverage of the judiciary, treating judges as fair game. A responsible press should show greater restraint and desist from blaming judges for their interpretation of legislation which has been promulgated by politicians. If the media object to a judgment or a sentencing decision, the committee suggests that they focus their efforts on persuading the Government to rectify the legal and policy framework. In order to ensure more responsible reporting, the committee recommends that the Editors' Code of Practice, which is enforced "by the Press Complaints Commission" be regularly updated to reflect these developments.

In the follow-up report, the committee published correspondence with the Press Complaints Commission and the Editors' Code of Practice Committee, which reviews the editors' code of practice. Your Lordships' committee does not seek to restrict press criticism of judges, but calls for an end to inflammatory and misleading coverage of specific judgments to which judges are not allowed to respond. In a recent article the distinguished journalist Joshua Rozenberg, whose every word merits study by everyone in Parliament, called, in this context, for the "application of common sense". He did not proceed to say how rare common sense is.

The Select Committee does not believe that the points made in reports are adequately covered by the editors' code of practice and expects to see an outcome to the Editors' Code of Practice Committee's deliberations that will respond to your Lordships' committee's concerns. I have every confidence in the judgment and resolution of Sir Christopher Meyer, the chairman of the Press Complaints Commission, with whom I was at university. The Minister's view on these matters would be very welcome.

If it is the will of the House, the committee will continue to scrutinise these issues, particularly the work of the Ministry of Justice, the Lord Chancellor and the Lord Chief Justice, and the accountability of the judiciary. I beg to move.

Moved, That this House takes note of the Report of the Constitution Committee on Relations between the executive, the judiciary and Parliament (6th Report, Session 2006-07, HL Paper 151).—(Lord Goodlad.)

My Lords, we are grateful to the noble Lord, Lord Goodlad, for introducing this debate on two important reports, the original report chaired by Lord Holme of Cheltenham, whose untimely death has robbed us of a wise constitutional reformer, and the follow-up report of the noble Lord's committee. The Constitution Committee is a significant innovation and I hope it will become a much needed public watchdog and guardian of the British constitution.

It is a special pleasure to take part in a debate in which the noble Lord, Lord Pannick, makes his maiden speech. He is a close personal friend, an outstanding public law advocate and a star of Blackstone Chambers, to which we both belong. He is also a notable Times columnist and has just published a Christmas book, a collection of his articles about the quirks and oddities of unpersuasive advocates, injudicious judges and legal entertainment. His wit, as well as his forensic acumen and refreshing lack of political correctness, will enliven our proceedings. His contribution as a distinguished lawyer will be especially valuable as the Law Lords become judges of the Supreme Court on the other side of Parliament Square.

When I was young in this House I remember being rebuked by the noble Lord, Lord Campbell of Alloway, for making a serious point after the dinner hour. I hope I shall be forgiven, particularly by the Leader of the House, if I do so now. Two weeks ago, I resigned as independent unpaid adviser to the Justice Secretary on aspects of constitutional reform. I did so with regret because it became apparent that I could not agree with what was being proposed for the Constitutional Renewal Bill and a Bill of rights and responsibilities. We must await publication of the Government's proposals, but meanwhile I shall briefly explain where I stand on issues affecting the relations between the three branches of government.

Many of my views were set out in my Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill, which was given a Second Reading in March 2006. With expectations raised by the Governance of Britain Green Paper, I hoped, when agreeing to act as independent adviser, that the thrust of those proposals would find favour in a Government ambitious to move further towards a coherent and enduring constitutional settlement of the relations between the three branches of government and the individual. Instead, I am afraid that what will be offered will be weak measures, tinkering at the edges of much needed constitutional reform.

In brief, my Bill proposed transferring the source of prerogative powers to Parliament; putting the principles governing parliamentary scrutiny of treaties and war powers on a statutory footing; defining the fundamental principles underlying appointments to, and operation of, the Civil Service; preventing special advisers from managing, directing or issuing instructions to a civil servant in the discharge of public functions; providing an express duty for civil servants and special advisers to act with honesty and integrity; giving British citizens the right to a passport and to freedom of movement to and from this country; and creating the office of Commissioner for Public Appointments to advise on appointments to some major public offices, and setting up a Parliamentary Appointments Committee to approve them.

Prerogative powers are a necessary incident of government. However, as the Law Lords held in the Chagos Islanders' case a couple of weeks ago, it is anomalous that the Crown is able, through the Queen's Ministers, to exercise public powers without parliamentary authority. It is an anomaly that could readily have been removed by the forthcoming Bill.

As a result of what happened to the Attorney-General's advice before the invasion of Iraq and the blocking of the BAE inquiry, I also hoped that the Constitutional Renewal Bill would remove the inherent conflict of interest in the office of Attorney-General, so that the chief legal adviser to the Government would not also be a serving politician and Minister. I also hoped that the Justice Secretary would abandon his attempt to seek the power to interfere with the crucial independence of the Judicial Appointments Commission by imposing targets or giving directions. The JAC is an essential guardian of judicial independence and the rule of law, and should not be given directions by the Justice Secretary. I also hoped that the Government would take the opportunity of the Constitutional Renewal Bill to strengthen human rights, at least by overruling the majority ruling of the Law Lords in the YL case that narrows the reach of the Human Rights Act in relation to private bodies exercising functions of a public nature—a matter requiring urgent attention by Parliament; by including a right to good governance and administrative justice; and by including a constitutional principle of equality before the law and the equal protection of the law, codifying a common law principle.

We must await publication of the Government's proposals and the response to the powerful report of the Joint Committee on Human Rights on the Bill of Rights to see how they will face these important constitutional issues. Proposals for a Bill of rights and responsibilities, side by side with the Human Rights Act, would be worth while only if they added real, practical value to existing law and provided reasonable legal certainty.

The Constitution Committee's original report rightly emphasised that:

"The integrity of the legal system depends on it being properly funded ... we do urge the Lord Chancellor to ensure that it receives maximum protection from short-term budgetary pressures upon and within the new Ministry".

The right of access to courts in civil as well as criminal proceedings is a fundamental constitutional right protected by the common law and Article 6 of the convention. The Courts Service has agreed to save £145 million and the tribunal system has agreed to save £73 million in the next three years. These cuts are likely to impair the ability of the courts and tribunals to maintain an effective system, especially as they have a direct effect on levels of staffing and computer systems.

The Government's full-cost recovery policy, unique in the common law world, and changes to the legal aid system do not adequately protect the right of access to justice. Changes in the funding of cases involving children at risk may mean that local authorities will not be able to afford to bring the statutory proceedings needed to protect children. The dramatic increase in fees for such cases has already led to a drop in the number of childcare cases brought by local authorities, and members of the judiciary and family lawyers have warned that this may increase the numbers in danger of suffering domestic abuse. The same applies to effective legal protection against forced marriages threatened by these funding cuts. Legal aid has already been cut for both criminal and family cases and there are rumours of further cuts for civil cases. This also seriously impedes the right of access to the courts, as does the closure of so many community law firms.

The Constitution Committee's original report published the evidence given by the editor of the Daily Mail, Paul Dacre, who is also chair of the Press Complaints Commission's code of practice committee. In his evidence Mr Dacre expressed his and his newspaper's hostility to the Human Rights Act because of the role it gives to the courts to protect the convention right to personal privacy.

Mr Dacre returned to the attack in his recent speech at the Society of Editors' conference. I agree with much of what he said about the abuse of conditional fee agreements by claimants' lawyers in libel cases, unnecessary restrictions on public access to freedom of information and libel tourism, but his attacks on the Human Rights Act are misconceived and unfair.

I have acted for the press in a number of cases where the convention right to free expression—now made part of our law via the Human Rights Act—has been successfully used to combat unnecessary restrictions in English statute and common law. Yet the Daily Mail and some other sections of the British media have been unremitting in their daily attacks on the Human Rights Act because of their opposition to any legal restraints on excessive media intrusion. They do not give credit to the judiciary for the careful way in which it has interpreted and applied convention rights, and they do not accept that a fair balance has to be struck between the right to free expression, the right to a good reputation and the right to personal privacy. They do not recognise that even in the United States—the land of the First Amendment—there are effective legal safeguards of personal privacy, or that the Human Rights Act, and its specific recognition of the paramount importance of freedom of expression, gives them and the public necessary protection. They attack the British judiciary whose decisions are more favourable to free speech than some recent and troubling decisions of the Strasbourg Court. They do not understand that, without the constitutional protection given by the Human Rights Act, the threat to freedom of expression would significantly increase.

I congratulate the noble Baroness, Lady Buscombe, on her appointment as chair of the Press Complaints Commission, and hope that she will be able to convince Mr Dacre and others of the need to make the PCC stronger and independent, and to make self-regulation more effective in deterring abuse and giving effective remedies. If she is unable to do so, a future Parliament will surely intervene and the outcome may not be what Mr Dacre or I would welcome.

My Lords, it is a great honour to speak in this House for the first time. In the two weeks since my introduction, I have spent a lot of time listening, watching and, indeed, eating in this House. I am very grateful to noble Lords for the warmth and the generosity of the welcome that I have received and I am extremely grateful to all members of staff for the considerable help that they have given me.

I am particularly pleased to be speaking in this House on the important subject of the relationship between the Executive, the judiciary and Parliament. I declare an interest. For the past 28 years I have practised as a barrister. My first case was not a success; my client was hanged. He was a drug trafficker from Singapore whose appeal was dismissed by the Judicial Committee of the Privy Council. My record could only improve after that.

I mention that first case because in it, as in many others thereafter, I had the very good fortune to be junior counsel led by the noble Lord, Lord Lester of Herne Hill. Therefore, it is appropriate that I should follow him in this debate. I thank him for his kind words about me. Over the years, I have heard in court almost as many excellent speeches by the noble Lord as have been heard in this House, although the speeches that I have previously heard from him have occurred rather earlier in the day.

In the past 20 years I have frequently appeared in court defending Ministers, sometimes successfully, against allegations that they have acted unlawfully. I want to make four points arising out of the excellent reports of your Lordships' committee that we are debating tonight. The first is that my experience of representing Ministers is that, with very rare exceptions, they respect the independence of the judiciary and recognise the importance of doing nothing to undermine the rule of law. They seek advice on the legality of their conduct, they follow it and they take their legal medicine, even when courts find that they have acted in an unlawful manner. Section 3 of the Constitutional Reform Act imposes a duty on all Ministers of the Crown, not just the Lord Chancellor, to,

"uphold the continued independence of the judiciary".

In my experience, with very rare exceptions, Ministers understand that and comply.

My second point is that there is nevertheless a tension between Ministers and judges. That is inevitable. Judges are deciding the legality of policy issues of great importance and sensitivity. Every Government of recent times have experienced unwelcome defeats in court that have caused disappointment and concern to Ministers; there is nothing new about this. The noble and learned Lord, Lord Woolf, wrote about his experience in the 1970s as Treasury devil, or Crown counsel. Burnt on his heart, as the noble and learned Lord described it, were the names Laker, Tameside and Crossman—a few of his defeats when acting for the Government in politically controversial cases. It is inevitable that these disagreements between judges and Ministers will arise and it is inevitable that they will cause tension. The only societies in which there are no tensions between judges and Ministers are those where the Government always get their way.

Some years ago, I acted for a foreign Government involved in litigation in the English courts. One of its representatives asked me, before the court case, whether it was true that the Government of this country were intervening in the legal proceedings to support my client, the foreign Government. I confirmed that this was so: yes, the British Government were intervening to support the foreign Government. How, then, could it be, I was asked, that I was worried about our chances of success in court?

In a free society, tensions between the judiciary and the Executive are a confirmation of the vibrancy and vigour of the rule of law. Government and judges must, of course, have mutual respect for the distinct and valuable constitutional roles that each of them is performing. However, in a free society, government and judges will not, and cannot, always see eye to eye.

My third point concerns ministerial criticism of judicial decisions. Of course, I agree with the powerful criticisms made by your Lordships' committee of the inappropriate comments made by the then Home Secretary on the Craig Sweeney case. I also agree that Ministers should be slow to comment on judicial decisions, particularly decisions involving government departments. As the noble and learned Lord, Lord Irvine of Lairg, said as Lord Chancellor in 2003:

"Maturity requires that when you get a decision that favours you, you do not clap. And when you get one that goes against you, you don't boo".

Those were wise words, in my view. The noble and learned Lord's comments were widely understood as a well deserved rebuke for the then Home Secretary's criticisms of judges who had ruled against the Government on asylum law.

But noble Lords will not wish to suggest that Ministers may never express a criticism of judicial decisions, however well reasoned and well informed the criticism may be and however moderate the language in which the criticism is expressed. Ministers, by reason of their constitutional position, have a special responsibility to ensure that any criticism by them of judicial decisions is well reasoned and expressed in moderate language, but I do not think that judges should be protected, need to be protected or indeed want to be protected from well informed criticism by politicians or from anyone else. Ministers should not be placed in a special class of disadvantaged persons unable to comment critically on judicial decisions. Indeed, given their responsibilities, Ministers will sometimes need to comment critically on judicial decisions to explain why they are bringing an appeal or considering a change in the law.

My fourth and final point concerns the means by which ill informed criticism of judges should be answered. Good judges welcome constructive criticism, but every so often judges are subjected to unjustified criticism, which may, unless answered, damage the reputation of the judiciary. A recent example was the well publicised speech given last week by Mr Paul Dacre, the editor of the Daily Mail, mentioned by the noble Lord, Lord Lester. Mr Dacre accused Mr Justice Eady of,

"an animus against the popular press".

Mr Dacre suggested that the judge had created a privacy law,

"with a stroke of his pen", by "arrogant and amoral judgments".

Noble Lords will, I am sure, agree that there was no justification whatever for these personalised criticisms of Mr Justice Eady, who was performing his duty to apply the Human Rights Act, which includes a legal right to the protection of private life. Now is not the time to debate the merits of a law protecting privacy. I should declare an interest on that topic, as I act for Mr Max Mosley in relation to a pending application in the European Court of Human Rights. However, the right to privacy has been developed not by Mr Justice Eady, but by the Court of Appeal and by the Appellate Committee of this House in a number of recent cases.

How, then, is the judiciary to respond to ill informed criticism? Most judges are understandably unwilling to enter into a public debate with their detractors, so who is to respond on their behalf? I would welcome the views of Leader of the House on whether the Lord Chancellor and Secretary of State for Justice sees it as his responsibility to respond to criticisms of judges such as those from Mr Dacre.

I well understand the responsibility of the Lord Chancellor for rebuking any of his colleagues in government who make ill informed or abusive attacks on the judiciary. However, I have concerns about an independent judiciary relying and being seen to rely on a government Minister to defend judges from unjustified criticism. An independent judiciary should, where necessary, be seen to defend itself. I therefore welcome the support given in the report of your Lordships' committee to the role of the Judicial Communications Office in providing judicial spokesmen to respond to criticism. I hope that, when necessary and appropriate, there will be senior members of the judiciary able and willing urgently to communicate a judicial and judicious response to ill informed criticism which may, unless answered, damage the judiciary's reputation.

In conclusion, judges have a very difficult job to perform. It is, of course, not a simple "Strictly Come Dancing" approach of marking a performance and making a few comments of an insulting nature. Judges are all too well aware of the unreliability and inconsistency of the evidence that they hear in court, the lack of clarity in the laws that they apply and the conflict in the competing values that they need to uphold. Judges know above all that people's lives may depend on their judgments. Should this child be taken away from his parents? Should this woman be deported to a country where she fears persecution? What rulings should be made in this criminal trial that may result in the defendant spending years in prison? We are fortunate in this country in the quality of the judiciary that makes these difficult and important decisions. An independent judiciary should not be shy about responding to ill informed and damaging criticism.

My Lords, I am delighted to follow the noble Lord, Lord Pannick, and congratulate him on a splendid maiden speech. This debate is clearly tailor-made for someone with such great experience in the law. We have already heard about some of that experience from the noble Lord, Lord Lester. As the noble Lord, Lord Pannick, touched upon, he was called to the Bar in 1979 and served as a deputy High Court judge. He is well known for appearing in some of the leading cases of recent years, one or two of which he has already alluded to. He is also well known for his erudite and informative column in the law section of the Times. I declare an interest as a regular reader. I speak for the whole House when I say that we look forward immensely to his contributions to future debates.

I add my congratulations to the Constitution Committee on producing this report. I speak as someone who was not a member of the Committee at the time of the main inquiry, although I was a member when it published its follow-up report.

The relationship of the judiciary to the Executive and Parliament has changed dramatically over the past four decades. Our membership of the European communities created a new judicial dimension to our constitutional arrangements. As the Constitution Committee report makes clear, that judicial dimension has been reinforced by the Human Rights Act. These changes have thrust the courts into a new role, one not of their own choosing but imposed upon them by Parliament. I entirely take the point that we should not be criticising the courts for doing the very thing that we, as Parliament, require them to do. To the European Communities Act and the Human Rights Act we must now add the Constitutional Reform Act 2005. That has produced and will produce important changes in how the judiciary operates in this country. We are therefore dealing with a dynamic situation. It is important that we are able to make sense of the complex dynamics at work.

The Constitution Committee addresses the changing landscape from the perspective of the rule of law and the independence of the judiciary. Those it rightly recognises as core constitutional principles. Its recommendations flow from its focus on those principles. Those recommendations are appropriate and, as is clear from the Government's response and developments since the report was published, have helped to shape the debate about the relationship of the judiciary to Parliament and the Executive.

I would pose a broader starting point, which is to identify the constitutional framework that we want for the United Kingdom. Once we have determined that, we can locate the role of the courts within it, otherwise we have a judiciary that is being given new roles as a consequence of implementing disparate policy goals. It is moving in new directions without us being clear as to the eventual destination. We need to be clear as to the intended constitutional end-point, otherwise where we end up is determined by a series of disparate and discrete changes, each justified on its own merits but not related to a wider view of where we should be going. I therefore believe that there is a case for establishing a royal commission on the constitution, to look holistically at our constitutional arrangements. I shall return to that on a later occasion. The report before us will make a significant contribution to such a study.

In analysing and influencing what is happening, the report makes a weighty contribution. In particular, it helps to identify and influence the way in which the judiciary has adapted to implementation of the Human Rights Act and the Constitutional Reform Act. Taken together, those two Acts have placed the judiciary in a difficult and exposed position. The courts are vested with responsibility for interpreting and applying the 1998 Act. The nature of convention rights offers scope for interpretation on important measures of public policy. Cases in which the Act has been engaged have been relatively few in number but some have been extremely high profile and contentious, not least in respect of privacy and anti-terrorist legislation. The courts have been subject to criticism as a result, from both journalists and Ministers, as the noble Lord, Lord Pannick, explained.

The judiciary will be even more exposed as a result of the designation of a Supreme Court and its location away from the Palace of Westminster. The current position is that the Law Lords do not participate in legislative deliberations—there is separation in this House between the judicial and legislative parts—but they observe what goes on. They have an appreciation of the parliamentary process. Conversely, the Members of this House have some appreciation of the work and quality of the Law Lords. The House is able to operate as something of a buffer between the Law Lords and the Executive. Once the court moves across the road and, more especially, in time, as current Law Lords are replaced by judges who have no experience of this House, the advantage will be lost. We may even witness clashes between Parliament and the courts, in part because of the Acts of 1998 and 2005, but also because of the decisions of the courts to look not only at the parliamentary record in case of ambiguity but at why Parliament enacted a measure to determine compatibility with convention rights. I believe the Wilson case in 2003 to be even more important than Pepper v Hart for its implications for the relationship between the courts and Parliament.

The changes thus create the potential for conflict. That is where the report comes into play and has proved extremely valuable. How are the courts to adapt to the new situation? How is a constructive relationship with Parliament to be achieved? The committee has done a valuable job in identifying not only what the responsibilities of Ministers should be, but how judges may be accountable to Parliament without Parliament itself encroaching on judicial independence. One of the findings of the Constitution Committee in its report The Regulatory State: Ensuring its Accountability was that independence and accountability do not necessarily conflict with one another.

I therefore see no insuperable problems deriving from the committee's recommendations covering the relationship of Parliament and the judiciary. The report was published over a year ago, and we already see some of its proposals beginning to bear fruit, not least the recommendations for an annual report and for the Lord Chief Justice to appear each year before the Constitution Committee. Though the noble and learned Lord, Lord Phillips, said, as my noble friend has mentioned, that he did not want to bind his successor by committing to an annual report, he did produce a weighty and informative report earlier this year that sets an admirable standard for his successor to emulate, all being well, on an annual basis.

The noble and learned Lord, Lord Phillips, has appeared before the committee, accompanied on the last occasion by his successor, Sir Igor Judge, now the noble and learned Lord, Lord Judge. Those meetings have established that it is possible to discuss issues of general concern without going into the merits of particular cases, and to do so in a way that is beneficial to the judiciary and to Parliament. I believe that this is apparent from the committee's follow-up report, not only in its content but in the fact that it embodies, as my noble friend mentioned, the first response from the judiciary to a Select Committee report. This form of engagement may serve to indicate to members of the judiciary that appearing before a Select Committee may be appropriate in certain circumstances, in the way suggested in the report.

We are thus seeing a relationship form between Parliament and the judiciary that maintains the independence of the judiciary while allowing it to discuss with Parliament matters affecting the administration of justice. That engagement needs to be measured and transparent. The initial experience is positive, and I pay tribute to the committee both for its report and for pursuing it in the way that it has.

The proposal for written representations from the Lord Chief Justice, under Section 5 of the 2005 Act, to be published in Hansard and then debated, with a response from government as quickly as possible, is a sensible one. It received a welcome from the judiciary, and I note the Government's commitment to endeavour to respond in good time to such representations—though it may have been even better had the words "to endeavour" been omitted.

The only other recommendation I wish to touch upon—and it will come as no surprise to the noble Baroness the Leader of the House—is that concerning post-legislative scrutiny. The report discusses it in the context of judicial interpretation of parliamentary legislation in particular contexts. The Government in their response noted that the courts would be under no obligation to consider a Select Committee's views in relation to interpretation. I accept that, but I doubt if this is what the committee had in mind. Judicial interpretation is relevant where it has an effect on the implementation of legislation and thus can be taken into account in evaluating whether a measure has achieved its intended purpose.

Since the Government's response to the report was published, they have published their paper on post-legislative scrutiny, which is very welcome and a great step forward, although I believe that a dedicated committee on the subject is needed, as recommended by the Law Commission. As the noble Baroness the Leader of the House will be aware, I think it is desirable for the House to debate the Government's paper and, indeed, the Law Commission's recommendation.

I revert to my earlier observation. There is a need to look at our constitutional arrangements holistically. The role of the judiciary has to be set within a clear view of what we expect it to do within our constitution. We need to look at this from the top down and not simply from the bottom up. This report is extremely welcome; I believe it has already proved its worth. We need to build on it in looking at the type of constitutional framework we think is appropriate for the United Kingdom.

My Lords, I am delighted to echo the congratulations to the noble Lord, Lord Pannick, on his extremely powerful maiden speech. Clearly we are in the presence of someone who, I suspect, will contribute regularly to the proceedings of your Lordships' House.

Looking round the House this evening, I feel as though I am the Daniel in a den of legal minds, which puts me in the embarrassing position of being the novice or the lay man. In that capacity, I shall do my best to pick up one or two points that seem to me, as the non-expert, to be important and I shall reflect some of the points made by the noble Lord, Lord Norton, about the need for a more holistic approach to questions raised by the committee in its reports. In doing so, I pay tribute to the noble Lord, Lord Goodlad, and his colleagues on the Constitution Committee. I was delighted that he made mention of our late and much lamented friend Richard Holme.

This debate comes at a salient moment, because we are due to consider a constitutional renewal Bill in the new Session. The noble Lord, Lord Norton, my noble friend Lord Maclennan and I have been sitting on a Joint Committee conducting pre-legislative scrutiny on that Bill. It is significant that some of the issues that have been raised this evening have reappeared already in draft form, but perhaps not in as satisfactory a form as we had hoped. A number of colleagues on that committee and I filed a minority report on the role of the Attorney-General, to which I shall refer.

The reports before us this evening touch on the ministerial code. I certainly agree that Ministers should keep their sabre-rattling to a more muted tone than they have in the recent past. Frankly, irresponsible, headline-grabbing soundbites such as those made by Dr Reid or Mr Blunkett, designed to play to the Murdoch media gallery, should be consigned to the previous era of spin over substance.

In evidence to the committee, the Lord Chancellor pointed out how important that restraint was for him. The fact that he recognised that is very healthy, given that he is the first Lord Chancellor to sit in the Commons. As the noble Lord, Lord Pannick, said, his discipline is shared with other Ministers. Section 3(1) of the Constitutional Reform Act states:

"The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary".

There is also the broader question of how the ministerial code is determined and enforced. Again, the committee has given us helpful advice. It surely cannot be satisfactory that the code under which Ministers of the Crown conduct themselves is solely in the gift of the Prime Minister, like a sort of headmaster's rule book, and that Parliament has no role in scrutinising its principles or agreeing its content.

A separate but related issue is not just how Ministers conduct themselves, but how Prime Ministers behave when they decide, at a stroke, to reorganise the way in which government works. That was true with the Ministry of Justice, but that was not the first occasion on which there was a dramatic change to the architecture of Whitehall without any reference to Parliament. It is important that, in future, we should consider carefully how major changes to the responsibilities of government departments are put in place and ensure that they are justified and scrutinised here in Westminster. Frankly, Friday afternoon changes by press release, sometimes even during recess, are no substitute for effective parliamentary scrutiny. It is clear that new mechanisms to make the process more rational would not just be an unhelpful roadblock for the Prime Minister of the day but might help him to get the changes right at first attempt.

No one can seriously believe that the Lord Chief Justice and the Lord Chancellor would have been left in the dark about the creation of the Ministry of Justice if those matters were not drawn up on the back of Downing Street envelopes. Very often, I fear, the architecture of governance has become a game of musical chairs—how do we move individuals around within the Cabinet?—rather than about ensuring that the way in which departments are given responsibilities is logical, rational and well examined by Parliament. You cannot knock down a terraced house without other houses in the row being affected and Prime Ministers cannot simply demolish the operation of one department without it fundamentally affecting others.

Similarly, as the reports have indicated, the fundamentally important relationship between the Executive and the judiciary should not be the exclusive province of either or both together to agree. There is a role for Parliament here, just as there is in endorsing the ministerial code. The committee's report uses fairly typical "committee-ese" in recommending,

"that consideration be given to introducing a formal mechanism for laying revised versions of the Concordat before Parliament".

I hope that the Leader of the House will this evening be able to respond rather more formidably and forcefully to that recommendation.

The committee repeats and endorses the view of the Lord Chief Justice, who has warm words for our present Lord Chancellor. Indeed, I think that this House and another place believe that Jack Straw has proved himself a deft—and even rather crafty—political operator in respect of constitutional reform. His evidence to the committee shows that he takes his role in that respect, and in relation to the judiciary, very seriously. The combination of his responsibilities with those of the Secretary of State for Justice—again covered by the work of the committee—appears to work well with him. Whether it would always work well, with another individual of less capacity or experience, is something that we should be concerned about.

Paragraph 20 of the follow-up report raises the important issue of whether judges should appear before Select Committees and how they should do so. There is an important issue here about the separation of powers. I am not sure that the noble Lord, Lord Norton, and I entirely agree about the need for a written constitution, but if we were writing a constitution for anywhere else in the world—as, indeed, British jurists have—the separation of powers between the judiciary, the legislature and the Executive would be an absolutely fundamental principle. Making judges in any way answerable to a Select Committee seems a step too far. I think that the balance is right in the committee's report, but it is still something that we should be careful about.

Similarly, I note the comments about the code of practice for editors in paragraph 33. I would regret Parliament going too far down the road of instructing how editors should regulate themselves. That seems to be the sort of censorship that other countries have suffered from and to which, perhaps, the noble Lord, Lord Pannick, was referring. I have been a journalist and, frankly, what editor is not going to use a quote like that given by David Blunkett when he was Home Secretary? He said:

"I just want judges that live in the same real world as the rest of us".

By legitimising that sort of wording, Home Secretaries and other Ministers are giving the media, particularly the tabloid media, opportunities that they will inevitably take. There are plenty of other examples. If it were not so late, I could report several such instances involving previous Home Secretaries. Dr John Reid learnt much at the feet of his predecessors.

Where do we go from here? The Joint Committee on the Draft Constitutional Renewal Bill, on which I sat with my noble friend Lord Maclennan and the noble Lord, Lord Norton of Louth, was clear in chapter 8 of its report that the draft Bill did not meet the expectations raised by the Prime Minister's Statement in July 2007, the Green Paper that followed it and even the White Paper that followed that. Although it would not be appropriate at this hour to quote in extenso from chapter 8, I hope that the Leader of the House will be prepared to take back to her colleagues the strong view of the Joint Committee that the very narrow scope of the draft Bill did not fulfil the hope and expectations that the Prime Minister raised in his original Statement on constitutional reform. Uniquely, I think, both Houses and Members of all parties were unanimous in this. Specifically, The Prime Minister said that it was necessary for Parliament to be given a much wider role in controlling the work of the Executive and holding Ministers to account. Frankly, the draft Bill does not do that. There are strong comments to that effect not only in chapter 8 but throughout the report.

I referred earlier to the role of Attorney-General. Colleagues from all parties and I submitted what was, effectively, a minority report. Again, I am not going to quote from it at length, as that would not be appropriate. We started from the premise that the Prime Minister was right when he said:

"The role of Attorney-General, which combines legal and ministerial functions, needs to change".—[Hansard, Commons, 3/7/07; col. 817.]

He said that, not the committee. It was in his first Statement on the important issue of constitutional renewal. The primary colours in those bold words had faded to a murky grey by the time we reached the draft Bill.

Anyone who thinks that this problem has gone away should read the comments made by the noble and learned Lord, Lord Bingham, about the advice given by the then Attorney-General on the war in Iraq. I regret that it was not possible for the noble and learned Lord, Lord Goldsmith, to be with us this evening; I was not aware of that until the debate started. The noble and learned Lord, Lord Bingham, said:

"If I am right that the invasion of Iraq by the US, the UK and some other states was unauthorised by the Security Council, there was, of course, a serious violation of international law and of the rule of law".

The reports are extremely interesting, but the interrogation of the present Lord Chancellor by the committee on 23 October 2007 was even more interesting. I read it again this evening; one of the advantages of starting rather late is that one gets an opportunity to read all the evidence. In his evidence in that appearance before the committee, Mr Jack Straw said that,

"the Prime Minister thought—and so did Baroness Scotland—that it was sensible to try to ensure that there was stronger protection for that role"— the role of Attorney-General—

"and maybe in some respects to separate the role or to make it clearer".

That is strong stuff, but the fact is that, as the draft Bill is constituted, that is not likely to happen.

When the Queen's Speech takes place in a couple of weeks' time and when, in due course, the Government publish their Bill, I hope that they will look carefully at the recommendations of the Joint Committee, but I hope that they will also think carefully about what Mr Straw said to the committee at that hearing. I refer to his answer to question 10, in which he said that,

"fundamental to the operation of the Rule of Law within a democracy is that there should be an understanding about the separation of powers and particularly the separation between the Executive and the Legislature on the one hand and the Judiciary on the other hand, and a mutual respect about the different roles that each has. That therefore requires there to be a responsibility on politicians, those in the Executive and Legislature—and of course in our system we are all mixed up—to respect the role of the courts".

The Joint Committee strongly recommended broadening the Long Title of the draft Bill, and it seems that Mr Straw intended that all along. I hope that the noble Baroness the Leader of the House will be able to give us an undertaking that some of the concerns expressed in this House, by our committee and during this debate, as well as by the Joint Committee, will be taken into account.

Lord Holme, who was then in the chair, said to Mr Straw:

"So you see it as a positive advantage that it is a portmanteau Bill and people can put other things in the portmanteau?".

Mr Straw replied simply: "I do". It is not often that a senior Minister gives an answer as specific or as brief as that. I hope that the Government will now respond not just to the Constitutional Committee's reports but to that of the Joint Committee looking at the draft Bill.

My noble friend Lord Lester, who has done such pioneering work on the royal prerogative, will have a great deal to contribute to that portmanteau. So will other Members of your Lordships' House, not least the noble Lords, Lord Pannick and Lord Norton, who have made such sensible contributions to this debate. If we do not take that opportunity, not just the work of our committee but all the preparations since the very moment that the Prime Minister indicated the priority that he was going to give to constitutional renewal will be wasted.

My Lords, this has been a remarkable debate that has ranged quite widely, as might have been anticipated from the scope of the two reports that we are considering tonight. It has been made a memorable debate by the outstanding maiden speech by the noble Lord, Lord Pannick, whose presence in this House adds not just great experience of the interrelationship of the judiciary and Parliament but great wisdom and sensitivity, which was reflected in the four points he wanted to make in the relatively short time available.

The noble Lord was right to say that tension between Ministers and judges is inevitable, as he was right to point out that sometimes criticism of judges is appropriate, provided that it is delivered in a reasoned way with measured language. The tone of his contribution was immensely encouraging and we very much look forward to hearing from him again. The thrust of our interest in this place in constitutional reform and the acceleration of the consideration of such matters is something that will no doubt bring him back on a number of occasions.

It is appropriate to express the warmest appreciation to the noble Lord, Lord Goodlad, and his committee and to remember with gratitude the role played by my late friend Lord Holme of Cheltenham. The noble Lord, Lord Goodlad, refreshed our recollection of the outstandingly important points in the report. I would not presume at this hour to rehearse the main issues that it lighted on. Rather, I shall confine my remarks to one or two points of interest. I am grateful to the committee for having raised them; I may have a slightly different emphasis in animadverting about them.

One of the greatest achievements of the committee may be to have induced agreement that there should be an annual report from the Lord Chief Justice. There must be—notwithstanding the independence of the judiciary, which Parliament must respect—an interface between Parliament and the judiciary, and that is best handled in this way, with the considered deliberations of the judiciary expressed by the Lord Chief Justice, especially with regard to issues of management and budgetary concerns. Those are entirely proper issues for Parliament to consider. It is also right that they should be discussed in advance of determinations being made.

I note the criticisms made about the creation of the Ministry of Justice without much prior deliberation, but these matters have led to the valuable framework document, which will bring together the responsible Minister and the head of the judiciary. Here I slightly disagree with the committee report. That document has to a considerable extent been overtaken by the concordat set out in 2004 during the passage of the Constitutional Reform Act. That document—although an important historical document, and one that set out the understanding of the Minister, the Lord Chancellor of the day, who was responsible for the proposed reform, and of the judiciary as to how it might operate in practice, and some of the fundamental values and principles to be supported by the legislation—is none the less an historical document. It is a document which is of value in that context but I doubt whether it makes sense to treat it as though it were some sort of statutory instrument which needs to be revised if there are changes of political emphasis. If there are such changes, it is of course desirable that they should be made explicit so that they can be discussed, but it should not be seen as a kind of fundamental law governing the relations between the Executive and the judiciary.

My noble friend Lord Lester in his comprehensive speech raised a number of extremely important issues, not least his reflections on the prerogative powers. These are matters which, as my noble friend Lord Tyler mentioned, will be reviewed again if the Government bring forward their Constitutional Renewal Bill in anything like the form considered by the Joint Committee prior to the Summer Recess. There will be other opportunities for deliberating on these matters but I wish to say how strongly I support the view of my noble friend that the prerogative powers should be drawn from Parliament and based on statute. There was a clear watering-down of the Prime Minister's initial statement expressed so eloquently in his Green Paper on the role of Parliament, particularly in respect of the prerogative powers, which was not welcome. I hope that matter has been reviewed in the light of the consideration given by the Joint Committee.

The noble Lord, Lord Norton, as we might expect from such a thoughtful Member of the House, raised the remarkably interesting question of the need for an agreed constitutional framework in which the relationships between the Executive, Parliament and the judiciary can be developed. I was not entirely certain that he was suggesting that a written constitution is the answer, though my personal view is that the kind of discussion that he proposed, led by a royal commission, might very well point in that direction. In so far as we have two major constitutional matrices—the European Communities legislation and the Human Rights Act which now cover a major part of our constitutional provision—it would not be such a departure from British tradition to move a few steps further in that direction.

One step further which I would not welcome, however, is the proposed Bill on rights and duties to sit beside the Human Rights Act. My noble friend Lord Lester, in a charitable spirit as one would expect, expressed the view that if such a piece of legislation was proposed, it might assist in clarifying areas of uncertainty. I hope I do not misrepresent him. In the sphere of human rights the drafting by those distinguished British lawyers and politicians of the original European convention was very apt. Sir David Maxwell Fyfe, I believe, was one of them—a Member of the Conservative Government and subsequently Lord Chancellor. It is worth saying that these rights are expressed in the broadest and most general terms, and that their effectiveness in protecting the citizen depends on the wise judiciary applying the jurisprudence that has grown over the 50 years of their existence, both in Strasbourg and now more recently in our own country. Parliament would not necessarily find it an easy task to define these matters, the application of the principles of which may well be best left to the judiciary.

I fear that the complexities of seeking to embody aspirations for a law of privacy in a separate law might have a contrary effect to the one intended. The balance between freedom of expression and privacy is clearly contained in the convention, and in the Human Rights Act as a result, and no amount of distortion by such witty and amusing writers and speakers as Mr Paul Dacre can or should be allowed to detract from the power of the courts to apply these things. I was grateful to the noble Lord, Lord Pannick, for reminding us of the extent to which the Court of Appeal and others have considered these issues; they have not been decided entirely by one judge, who was the butt of the attack by the editor of the Daily Mail in his speech to the Society of Editors.

It is worth putting on to the record of our proceedings two statements made by Paul Dacre in that speech. First, he said that,

"no day is too busy or too short not to find time to tweak the noses of the liberalocracy which effectively run Britain",

Secondly, he drew attention to what he described as,

"the sheer bloody mischief that is the chemistry of any good paper".

I have a sense that that speech was distinctly over the top. There was an element of mischief in it, too.

It is also worth noting that Mr Paul Dacre, in his remarks about human rights and about privacy in particular, rather candidly expressed an opinion that may offset some of his criticisms of the judge. After praising the press for its role in public shaming—and, as it were, in setting standards—he went on to say:

"Put another way, if mass-circulation newspapers ... don't have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process".

It seems to me that that consideration was very much at the front of his mind when he delivered that speech, and I am bound to say that I cannot see that all journalists regard the peddling of scandal as a necessary duty to retain the freedom of the press and its role in our democratic processes.

This debate has been valuable, not least for giving wider attention to an important and valuable report. Some of its recommendations have already been acted on, and I hope that we will continue to hear more from the Constitution Committee about these matters.

My Lords, first, I should like to thank my noble friend Lord Goodlad for his excellent report and his opening speech. Equally, I congratulate the noble Lord, Lord Pannick, on his memorable maiden speech and echo everything that has been said about it by other noble Lords. The noble Lord, Lord Pannick, is a practising barrister of colossal distinction and a journalist of wit and perspicacity. He will undoubtedly adorn the Cross Benches and we look forward to hearing a great deal from him.

Three initiatives have influenced the relationship between the Executive, the judiciary and the legislature since the Government came to power in 1997: the passage of the Human Rights Act 1998 and the Constitutional Reform Act 2005, and the amalgamation of the office of the Lord Chancellor with that of the newly created Secretary of State for Justice in 2007.

I do not propose to say very much about the impact of the Human Rights Act, partly because we are very late and partly because your Lordships will have an opportunity to consider precisely that matter in the debate scheduled for next Monday. I will simply underline the importance of two generally accepted, indeed obvious, features. First, there is little doubt that the courts are making more searching analyses of the exercise of executive discretion than hitherto as a consequence of applying convention principles to government decision-making. Secondly, judicial reasoning by reference to the articles of the convention gives the impression that the judges are acting independently of, and above, Parliament. Hitherto, whenever a court quashed a judicial decision, it always did so by construing an Act of Parliament and concluding that their judgment was what Parliament really intended. For both those reasons, the courts are often described as encroaching on territory hitherto occupied by the Executive and Parliament, thus justifying, according to the fourth estate, their heightened profile in the media. That is a fact that the judiciary will have to accept.

The decision to abolish the office of Lord Chancellor in June 2003 and, having failed to achieve that objective, the decision to amalgamate it with a newly established Ministry of Justice in June 2007, were made without any prior consultation with Parliament or the judiciary. The Select Committee is rightly scathing about this.

Neither change, I should add, was inspired or foreshadowed by any form of constitutional analysis in government. Just as the removal of the Lord Chancellor was motivated by the desire to get rid of someone— Mr Blair did not have the courage to fire the noble and learned Lord, Lord Irvine, so he sought to make him redundant—so the creation of the Ministry of Justice in 2007 was motivated by Mr Reid's desire to get rid of something, a responsibility he no longer wished to face up to; namely, the appalling state of prisons and the Prison Service.

In its subsequent legislative quest to abolish the office of Lord Chancellor, the Government totally failed. Some of the changes proposed in the Bill they advanced were long accepted as necessary, such as removing the right of the Lord Chancellor to sit as a judge and making the judicial selection process more transparent. Of much more significance is the way in which the legislature extended and strengthened the Lord Chancellor's role in protecting our judges and preserving the rule of law. As a result, the Lord Chancellor emerges as, at least potentially, a more powerful figure constitutionally than hitherto.

Before the Act, the only protection for judges lay in the centuries-old statutory provision that High Court judges and above could be dismissed only by an Address of both Houses of Parliament. This guaranteed the independence of individual judges against arbitrary dismissal by the Executive; however, it did no more than that. Since 2005, however, the Lord Chancellor has been responsible for protecting the independence of the judiciary as a whole from any form of political interference, including from within the Cabinet itself, and he is provided with statutory powers to do so. Moreover, the constitutional convention, hitherto applied unevenly by successive Lord Chancellors, that the Lord Chancellor is the guardian of the rule of law, is now enshrined in the 2005 Act. Accordingly, the Lord Chancellor is now under a statutory duty to ensure that draft parliamentary legislation and executive decision-making in Cabinet reflect the rule of law. These new statutory duties are now expressly enshrined by Section 17 of the 2005 Act in the text of the oath that the Lord Chancellor is required to take before assuming office. In the light of these powers and responsibilities, it is hard to understand how the events surrounding the Sweeney case were allowed to develop in the way they did.

Since June 2007, the office of Lord Chancellor has been merged with the newly established Ministry of Justice. The present incumbent, the right honourable gentleman Mr Jack Straw, enjoys good relations with the judiciary and, as the committee observes, some progress is being made in immunising the courts budget from the depredations of other spending departments. However, I wonder whether such an amalgamation is constitutionally desirable.

Criminal justice decision-making is highly sensitive to popular opinion. As the policy-making Minister, the Lord Chancellor is subject to myriad, often inconsistent spending, sentencing and legislative demands to which he must respond, and all of which are themselves capable of conflicting with his duties under the Constitutional Reform Act 2005. For example, in the design and application of criminal justice legislation, legislation which is at the intersection of state power and individual rights, the Lord Chancellor is the target of many judicial reviews, bringing him into conflict with the judiciary, with whom he has a legion of obligations to co-operate, and undermining his status as the individual with responsibility for upholding the rule of law by constantly being sued for the alleged breach of it.

The responsibilities of a Lord Chancellor, I suggest, are not those of a policy-maker. Policy-making is essentially majoritarian, reflecting the mood of the nation. Justice is, among other things, about ensuring that the structures and processes are in place which guarantee that the conversion of policy into law conforms with constitutional principle. There is inevitably conflict between these two roles. They simply do not mix.

My Lords, I begin by thanking the noble Lord, Lord Goodlad, for moving this debate and for drawing the attention of the House to the reports of the Constitution Committee on relations between the Executive, the judiciary and Parliament. The noble Lord, Lord Norton of Louth, rightly pointed out that progress has already been made on some of the conclusions, including on post-legislative scrutiny. It is clear from today's debate that a healthy relationship between the judiciary, the Executive and Parliament is one that respects that the independence of the judiciary is fundamental to the effective working of our constitution and judicial system.

I also thank the members of the Constitution Committee for their careful consideration of how we might best protect and enhance that relationship. I congratulate the noble Lord, Lord Pannick, on his excellent maiden speech. He is right that the tensions between the Government and the judiciary that he cited are healthy. I pay tribute to the work of Lord Holme of Cheltenham. I also take this opportunity to thank the noble Lord, Lord Lester, for the invaluable contribution he has made as an adviser to the Government. It would not be appropriate for me to comment on this occasion on the views expressed about the Constitutional Renewal Bill. I shall merely say that the Government are now considering the Joint Committee's recommendations, but I note the strong views expressed in the House today and I will bring them to the attention of my colleagues.

The noble Lord rightly said that citizens have a fundamental right of access to the courts, but he then added that the cuts to the Ministry of Justice undermine that right. I agree that access to justice is a fundamental right, but the Government are acutely aware of the need to balance responsible management of the public purse with ensuring that those who require access to the courts are able to do so, especially the vulnerable.

The Government have taken, and continue to take, active steps to reinforce the independence of the judiciary by the establishment of the Supreme Court and the Judicial Appointments Commission; bringing forward the Constitutional Reform Act 2005, which reinforced the obligation on Ministers to uphold the continued independence of the judiciary and clarified the respective roles of the Lord Chancellor and the Lord Chief Justice of England and Wales; making the Lord Chief Justice the head of the judiciary in that jurisdiction, with equivalent provisions applying in Northern Ireland; and taking practical steps to improve the way in which the judiciary is consulted and involved in key decisions in the operation of the justice system, such as through the concordat and the framework document now in place that defines the partnership approach agreed between the Lord Chancellor and the Lord Chief Justice with respect to the operation of Her Majesty's Courts Service.

I shall refer today specifically to the issues raised in the committee's follow-up report, as they represent areas where the committee had some continuing concerns. The committee is concerned that the independence of the judiciary is effectively protected. On that point, we are in full agreement. The Government recognise, too, that the role of the Lord Chancellor is of central importance in this regard. As stated by the Lord Chancellor in his evidence to the committee, there are no plans to separate the roles of Lord Chancellor and the Secretary of State for Justice at this time.

Lord Chancellors have always been mindful of the respective responsibilities of the judiciary and the Executive. The Constitutional Reform Act 2005 obliges Ministers to uphold the continued independence of the judiciary and reinforces the separation of powers. It also clarifies the respective responsibilities of the Lord Chancellor and the Lord Chief Justice, with the Lord Chief Justice having responsibility for the welfare, guidance, training and employment of the judiciary and for representing the views of the judiciary to Parliament and Ministers. The establishment of the Supreme Court will contribute further, creating a separate and visible final court of appeal.

There can be no disagreement between us on the principle that Ministers should not undermine the rule of law through inaccurate or ill-considered comment with respect to the actions of any individual judge. The committee was concerned that there should be clear and unambiguous guidance to Minister generally setting out the principles governing public comment by Ministers on individual judges. Section 1 of the Ministerial Code specifies that it should be read against the background of the overarching duty on Ministers to comply with the law, including international law and treaty obligations, and to uphold the administration of justice and protect the integrity of public life. The Government will further consider the committee's recommendations when the code is next revised.

We also agree that the responsibilities of Ministers should extend to consulting the judiciary as early as possible on issues that affect it. As the committee identified, there are issues where the Executive and the judiciary must work in partnership in the interests of justice. This is an area where both have made significant efforts to make that relationship work effectively. The noble Lords, Lord Tyler and Lord Goodlad, expressed concern that the concordat had not been updated, and I noted the views expressed by the noble Lord, Lord Maclennan of Rogart.

I agree that any fundamental change in the nature of the relationship between the Executive and the judiciary is a matter for Parliament. I also agree that, while the concordat is not statutory, it is important that the principles underpinning the relationship between the judiciary and the Executive are kept under review. The framework document sets out in detail how the relationship between the Executive and the judiciary should work in practice with regard to Her Majesty's Courts Service. The Government will consult and work with the judiciary to ensure that the concordat remains live and relevant, and that changes to both the framework document and the concordat are properly put before this House.

The framework document agreed in April 2008 between the Lord Chancellor and the then Lord Chief Justice sets out in detail how the partnership approach agreed between them should work in practice. The Government welcome the evidence given to the committee by the noble and learned Lord that this resolved perceived tensions in the relationship between the judiciary and the Executive. Clearly, the committee's recommendations in relation to the judiciary must be a matter for the judiciary, although the Government will obviously work with the judiciary if requested to do so, and will consider carefully any proposals put forward for parliamentary scrutiny in this area.

Another matter raised by the committee was the possibility of the courts, in appropriate cases, giving advisory declarations on the compatibility or otherwise of proposed or recently enacted legislation with the Human Rights Act. As we stated in the Government's response to the committee's recommendations, we are not convinced of the utility of advisory declarations at this stage. The Government attach considerable importance to the grounding of cases before the courts in real and substantial factual situations. This assists the courts in considering the compatibility of the law with convention rights, by enabling them to consider not only the strict words of any given statute, but also the legal and practical framework and the context in which it is given effect. I must add, however, that the Government are prepared to keep an open mind upon this issue.

The noble Lord, Lord Goodlad, asked for the Government's view on the committee's recommendations on a responsible press. We all wish to see accurate and responsible reporting, and any assistance that the Press Complaints Commission can give in this regard is of course welcome. I join other noble Lords in wishing the noble Baroness, Lady Buscombe, well in her new position.

The noble Lord, Lord Pannick, asked if the Lord Chancellor should speak on behalf of the judiciary. The noble Lord, Lord Kingsland, rightly pointed out that it is the Lord Chancellor's responsibility to uphold judicial independence. While it must be right that an independent judiciary can speak for itself, the Lord Chancellor has a role in so far as this is consistent with his responsibilities to uphold judicial independence.

The hour is late. In conclusion, I thank the noble Lord, Lord Goodlad, and all noble Lords who have spoken for their invaluable contributions to the debate. I hope that all will be reassured that the Government both recognise the fundamental importance of the relationship between the judiciary, the Executive and Parliament, and are prepared to act to support the effective working of that relationship. However, we cannot afford to be complacent in this area. Therefore, I thank the committee for all that they are doing to ensure that we keep this relationship under continual review. I end by thanking the staff of the House for unexpectedly being here at this late hour.

My Lords, I thank the noble Baroness the Lord President for her reply, and echo her thanks to the staff of the House for being with us until such a very late hour. I also acknowledge the continuous presence not only of the noble Baroness the Lord President, but also of the noble and learned Lord the Advocate-General for Scotland throughout the debate, the Whip on duty the noble Lord, Lord Patel, and, for most of the debate, the Convenor of the Cross Benches, the noble Baroness, Lady D'Souza.

We have had extremely important contributions from the noble Lords, Lord Lester of Herne Hill and Lord Pannick. Convention prohibits me from seeking to echo the tribute that the noble Lord, Lord Norton, paid to the noble Lord, Lord Pannick. I merely confine myself to saying that I hope that he will make further contributions to our debates. I thank the noble Lord, Lord Tyler, for his contribution. I also thank the noble Lord, Lord Maclennan of Rogart, who echoed the committee's sentiments about updating the concordat. I thank the noble Lord, Lord Kingsland, who brought, as always, great wisdom and questions to our debate. Above all, I thank the noble Baroness, who has stayed to a very late hour. The committee will scrutinise with great care all that has been said in this extremely analytical debate. I detect a confluence of views about most things, but I also detect a determination on the part of your Lordships that we should continue to scrutinise these matters with very great care.

On Question, Motion agreed to.