The Judiiciary: Independence

HL Deb 27 April 1994 vol 554 cc751-804

9 p.m.

Lord Irvine of Lairg rose to ask Her Majesty's Government whether, given the documents placed by the Lord Chancellor in the Library of the House concerning the differences arising during the period 1991 to 1993 between him and the then President of the Employment Appeal Tribunal, Mr. Justice Wood, on the proper procedures for dealing with notices of appeal to that Tribunal, they are satisfied that the independence of the judiciary has been upheld.

The noble Lord said: My Lords, this debate is not of narrow interest to lawyers and judges alone. It is about the fundamental principle, vital for all, that the courts are wholly independent of the Executive. Our constitution, largely unwritten, is firmly based on the separation of powers. Parliament makes laws; the judiciary interprets and applies them. Thus, the fundamental principle is that the courts must be wholly independent of the Executive. I am confident that the noble and learned Lord would be the firm to affirm that fundamental principal.

For too long there have been murmurings, and much more, that the noble and learned Lord transgressed that principle between late 1991 and 1993, in his dealings with Mr. Justice Wood, a High Court judge and president of the Employment Appeal Tribunal—the EAT. Sir John Wood was president from March 1988 until 30th September 1993. The allegation—I em-phasise allegation—is that the Lord Chancellor put Sir John under pressure by threatening loss of the presidency if he did not depart from the EAT's judicial practice in certain cases of having preliminary oral hearings before deciding whether those cases could go forward to a full appeal.

Perhaps I may give the short background. The EAT was established in 1976. It hears appeals from industrial tribunals only on questions of law, not on questions of fact; for example, whether the tribunal applied statute or case law correctly. However, a contention that the tribunal below arrived at a perverse decision on the facts, one at which no reasonable tribunal could have arrived, is a question of law so the EAT has jurisdiction.

The EAT deals with appeals in cases of unfair dismissal, redundancy, race and sex discrimination and equal pay. Complex questions of statute and case law, as well as European law, often arise.

The EAT is governed by statutory' rules. Rule 3 provides that, where it appears to the Registrar that the grounds of appeal stated in the notice of appeal do not give the EAT jurisdiction the Registrar is to inform the appellant: that the appeal cannot proceed. The appellant can have a second bite of the cherry with a new notice. If the registrar remains of the same view, the appellant can insist on the papers going before the president or judge for his direction.

The real problem arises with doubtful notices where it is unclear whether they do or do not state a point of law. In practice, there are many doubtful notices, not least because many appeals to the EAT are by appellants who do not qualify for legal aid, particularly after the recent eligibility cuts and, therefore, are unrepresented.

Successive eminent presidents of the Employment Appeal Tribunal took the view that there were three categories of notice of appeal: first, those which clearly state a point of law and therefore went forward automatically to a full hearing; secondly, those where the grounds stated were clear and also clearly did not raise a point of law, so that the appeal was stopped dead in its tracks without any preliminary hearing; and, thirdly, the doubtful case in which it was not possible to tell one way or another from the document and a preliminary oral hearing was needed to decide. That was reflected by practice directions of successive presidents over the years prescribing a preliminary oral hearing to decide whether those doubtful cases did or did not disclose a point of law so that the appeal could go forward to a full appeal.

I return to the allegation. On Monday 21st March there was a Starred Question on the subject in your Lordships' House in the name of the noble Lord, Lord Lester of Herne Hill. The relevant correspondence between Sir John and the Lord Chancellor was hot available to the House. Thus, many of your Lordships must have found it difficult, if not impossible, to follow the exchanges.

Plainly, on 3rd April the Observer was not under that disadvantage. On that Sunday it published, on a main news page, a long article quoting extensively from the correspondence covering the period 18th December 1992 until 23rd April 1993. The headline was: Revealed: How Lord Mackay misled Parliament. The allegation was that that correspondence showed that his answers to the Question asked by the noble Lord, Lord Lester, were misleading.

That correspondence was then in the public domain. No denial or rebuttal was made. The Observer did not revert to the allegations on the next Sunday, 10th April, and so, on 12th April, I wrote at length to the noble and learned Lord suggesting that the appropriate course was to put the whole of the correspondence in the Library so that thereafter, the matter could be fully ventilated with knowledge of the correspondence, and hopefully then laid to rest.

He readily agreed, but on the basis that this was a special case. The whole of the relevant documentation, from 13th December 1991 to 5th July 1993, was put in the Library of both Houses and it was the wish of the noble and learned Lord and myself that this debate take place with the least delay so that the air would be cleared.

It is as well that this debate takes place tonight. There appeared in last Friday's New Law Journal a lengthy attack on the noble and learned Lord the Lord Chancellor by Sir Francis Purchas, a retired Lord Justice of the Court of Appeal. The allegation was, as far I am aware, unprecedented against any Lord Chancellor, certainly from such a source. It was that the noble and learned Lord had failed in his attempt to persuade Mr. Justice Wood, to follow a legal course which to the Lord Chancellor's knowledge was contrary to his judicial oath"; with his persuasion backed up by an unconstitutional threat that, if he did not yield, he had to "consider his position", meaning at least as President of the EAT; and with the Lord Chancellor's action said to be inspired by, a Treasury driven policy to achieve savings at any cost. I repeat that it is as well that this debate takes place tonight.

I now turn to the documents placed in the Library. Included with them is documentation between 13th December 1991 and 9th July 1992, of which I had no knowledge when writing to the Lord Chancellor. He appears to have drawn from that material the conclusion that either Rule 3(2) was not being implemented at all or not being fully implemented. I refer to the letters of 11th March and 18th December 1992 with which no doubt the noble and learned Lord will deal.

In my letter I gave the noble and learned Lord full notice of the questions which in my opinion arose from the correspondence commencing with his letter of 18th December 1992. In that letter the noble and learned Lord urged Sir John, to make more use of the filter provided by Rule 3 of your procedural rules; and continued: I wish to ensure that public money is not wasted on preliminary hearings in cases where there is no point of law shown in the notice of appeal. I am disappointed to note that you are still making little use of the power which Rule 3 gives you to reject notices which in your opinion show no point of law to give the tribunal jurisdiction to register the appeal". There was then a meeting between them on Monday, 1st February 1993, followed by a letter from Sir John of 3rd February 1993 recording that the noble and learned Lord the Lord Chancellor was of the opinion that the EAT's "preliminary hearing procedures" were probably ultra vires the Rules. I ask: was that the noble and learned Lord's view at the time?

In his letter of 5th February 1993 the noble and learned Lord said that he did not accept that preliminary hearings should be used as a process to discover whether there was a point of law at issue not disclosed in the notice of appeal. However, that is precisely what preliminary hearings in doubtful cases were and are designed to ascertain. I invite the noble and learned Lord to say whether he accepted at the time, and accepts now, the appropriateness of preliminary hearings in such doubtful cases. Was he saying that a decision had always to be made on paper—yes or no to the question of whether the appeal could go forward—so that there should never be a preliminary hearing? That letter concluded: There is an urgent need to address the growing backlog of cases and I would be grateful if you would write to me with your assurance that you intend implementing Rule 3 in full before the end of this Term". On 5th March 1993 Sir John wrote a detailed letter setting out his view of the correct legal position under Rule 3, after consultation with some senior judicial colleagues who endorsed his view. In his letter, Sir John distinguished three situations. The first is where the grounds stated in the notice of appeal do disclose a point of law; secondly, where the grounds of appeal stated in the notice of appeal do not give the EAT jurisdiction to entertain the appeal, in which case Sir John confirmed that the Registrar applied Rule 3 in accordance with its terms; and, thirdly, where the grounds of appeal are stated in a way which leaves the Registrar uncertain whether they raise grounds of law or not. That analysis corresponds with the practice directions of successive presidents of the EAT over the years.

Sir John explained that the preliminary procedure had been applied by Mr. Justice Phillips, the first president of the EAT, from 1977 to these ambiguous cases (category 3) and that, thereafter, the procedure had been so applied by successive presidents, two of whom are now Law Lords—the noble and learned Lords, Lord Slynn and Lord Browne-Wilkinson. Thus, Sir John was setting out the reasons why he and other presidents were of the view that the EAT was empowered to apply the preliminary procedure as the only fair means of determining whether an ambiguous notice of appeal did or did not disclose an arguable point of law.

The key letter is the reply of the noble and learned Lord of 19th March 1993. It did not challenge Sir John's assurance that the EAT was applying Rule 3, and was rejecting, without preliminary hearing, notices of appeal which were not in the doubtful category because they clearly did not state grounds of law giving the EAT jurisdiction. In other words, the EAT was rejecting, without preliminary hearing, such notices. The letter from the noble and learned Lord said: I was, frankly, disappointed by your reply to my letter of 5th February following our meeting on the first. I did not seek further discussion of Rule 3"—

I emphasise those words but had sought to make it clear to you that I was not prepared to accept preliminary hearings being held where Rule 3 provides a cheap and expeditious procedure for final disposal of a purported appeal.

I ask you again for your immediate assurance that Rule 3 is henceforth to be applied in full and that preliminary hearings are not being used where no jurisdiction is shown in a notice of appeal".

The letter ended with the words: If you do not feel that you can give me that assurance, I must ask you to consider your position".

I emphasise that sentence.

The third and fourth paragraphs of that letter have been read by many as a rejection of the opinion of Sir John Wood and other presidents of the EAT, made in their judicial capacities, that the EAT is entitled to consider at a preliminary hearing whether an ambiguous notice of appeal discloses a ground of law.

It is at that point that the independence of the judiciary arises. For myself, I would be disposed to accept—others may disagree—that a Lord Chancellor is entitled to satisfy himself that any court is having regard to all its powers and duties for the efficient disposal of its business and is applying and fulfilling them in accordance with its own judicial interpretation of them. However, what a Lord Chancellor is not entitled to do is to demand that a judge or court substitute for its own judicial view of the extent of its powers and duties the extra-judicial views of the Lord Chancellor. I invite the noble and learned Lord the Lord Chancellor to say whether he agrees with those propositions; and to make clear the powers he conceives that he has—and had, in relation to Sir John Wood—and how those powers arise.

The noble and learned Lord made it plain in this key letter that he was disappointed by Sir John's reasoned letter of 5th March 1993 and that he had not been seeking further discussion of Rule 3. He concluded, as I said, that if he felt unable to give the assurance that he, the Lord Chancellor, was requiring he, the Lord Chancellor, must ask him to consider his position. What is being said of this letter is that since he had rejected Sir John's letter of 5th March, on the basis that he had not been seeking further discussion of Rule 3, he could not have been inviting just such a discussion by asking him "to consider his position". Yet the explanation the noble and learned Lord gave in the House on 21st March 1994 of that passage in his letter was that he, wished to ascertain on what basis a procedure not applying that rule in full might properly rest".—[Official Report, 21/3/94; col. 498.]

The difficulty that the Observer and others experience with that answer is that the noble and learned Lord already had Sir John's full reasons, explaining the EAT's interpretation of Rule 3 and that it was being fully applied, in his letter of 5th March 1993, of which the Lord Chancellor had written in his reply of 19th March, that he was not seeking further discussion of Rule 3. Thus, the point is made that the key letter reads not as an invitation for further discussion or explanation of his views but rather as a demand that the President of the EAT comply with the Lord Chancellor's interpretation of Rule 3 contrary to his own view, and that of successive presidents of the EAT, in relation to the EAT's powers.

It is clear how seriously Sir John took that insistence that he "consider his position" because in his interim reply of 7th April he wrote: your letter raises a constitutional issue in such stark form that I wish to take time before replying".

When he did reply in full, on 23rd April 1993, he wrote: It is essential to accept the background to our work—we are exercising a difficult and delicate jurisdiction on the fringe of politics. There is a mixed lay and legal input. It is so important that we should at all times seek to achieve the balance between judicial formalism—so easily perceived as arbitrary and arrogant —and the need to allow a degree of flexibility in dealing with the members of the public, who are not familiar with the law or its processes; who are not able to express themselves on paper; who are deeply and emotionally involved in their cases; and whose cases merit investigation. In many cases the appellants are acting in person because they do not fall within the scope of Legal Aid".

Sir John concluded: I have, of course, given the most serious consideration to my position as you required of me. You have demanded that I exercise my judicial function in a way which you regard as best suited to your Executive purposes, but I have to say that in all the circumstances that present themselves to me and in the light of the existing law, I cannot regard compliance with your demand as conducive to justice".

The question that is being asked is whether, by requiring him to "consider his position" if he did not give the assurance required, what was being said was that he should consider his position as president of the EAT.

The private secretary of the noble and Darned Lord acknowledged that letter by a letter of 5th May 1993 stating that the noble and learned Lord was currently considering the issues he had raised and hoped to reply shortly. In the event, no such reply was ever given.

Lastly, there is the issue of fairness to Sir John Wood himself. The noble and learned Lord said in the House on 21st March that he, understood Mr. Justice Wood's position to be that it was undesirable to apply the Rule 3 procedure fully"—[Official Report, 21/3/94; col. 498.] that is, that he was not applying fully one of the statutory rules binding on the EAT, of which he was president, because he thought it undesirable to do so. I am bound to ask in what precise respects did the noble and learned Lord think that Sir John Wood was not applying Rule 3? If the noble and learned Lord was accepting, and accepts, the judicial practice of preliminary hearings in doubtful cases, how could he say that Rule 3 was not being fully applied by Sir John? Sir John had assured him in his letter of 5th March that where the grounds of appeal clearly do not give the EAT jurisdiction to entertain the appeal—that is to say non-doubtful or clear cases—Rule 3 was being applied in accordance with its terms; that is, they were being rejected under Rule 3 without any preliminary oral hearing.

This debate can give pleasure to no one, but it is critical that this issue be fully ventilated and, one hopes, laid to rest.

9.19 p.m.

Lord Lester of Herne Hill

My Lords, the House will be grateful to the noble Lord, Lord Irvine of Lairg, for having initiated this debate which, as he said, is not of narrow interest to lawyers and judges alone. The House will also be grateful to the noble and learned Lord the Lord Chancellor for having placed the relevant correspondence in the Library before this debate. The noble and learned Lord enjoys well-deserved popularity in all parts of the House. As the noble Lord, Lord Irvine, has just said, this debate will give pleasure to no one. But, like the noble Lord, Lord Irvine, I believe that it is in the public interest for the issue to be fully ventilated and, one hopes, laid to rest.

I do not believe that the controversial "consider your position" key letter of 19th March 1993 would generally be understood as written by the noble and learned Lord the Lord Chancellor in his capacity as the most senior judge rather than as a member of the Executive. Nor, with great respect, do I believe that it would be understood by most people, when read in context, merely as a request for Mr. Justice Wood to reconsider his interpretation and application of the relevant procedural rule. Speaking for myself, if I had received such a letter when I sat as a recorder I would have interpreted it as an official and formal invitation for me to consider whether I could properly continue in that office.

That is how, as Mr. Justice Wood explained in his reply of 23rd April 1993, he and senior judicial colleagues interpreted the letter. The letter of the noble and learned Lord the Lord Chancellor was interpreted not as a threat of dismissal from office as a High Court judge, for that could only be done for gross misconduct or inability to perform, and only by resolution of both Houses of Parliament. It was interpreted as the exerting of ministerial pressure upon him as a judge to change his mind or to cease to be President of the Employment Appeal Tribunal, or else to resign. The fact that Sir John did not resign because of that pressure from the highest level is immaterial. It so happened that he was apparently already considering taking early retirement.

I very much hope that the noble and learned Lord the Lord Chancellor will feel able in his reply to this debate to acknowledge that, and to acknowledge that his choice of words was unfortunate. That would be positive and very helpful in clearing the air.

This affair must be as miserable to the noble and learned Lord the Lord Chancellor and his advisers as it must be to Sir John Wood and the judiciary. It painfully illustrates a problem which has recently become much worse. The basic problem was discussed by the noble and learned Lord, Lord Hailsham of Saint Marylebone, in a prophetic lecture given 17 years ago. It is the problem, in the words of the noble and learned Lord, Lord Hailsham, of how to reconcile the divergent, and to some extent inconsistent, requirements of public accountability, judicial independence and efficiency in the administration of justice.

The office of Lord Chancellor carries with it a degree of respect, authority and distinction which transcends the personality of any individual, however distinguished, who may at any time hold it. It is also a constitutionally anomalous office. By uniting in one and the same individual judicial, administrative and legislative responsibility the Lord Chancellor is a standing violation of the pure constitutional doctrine of separation of public powers. The British constitution and the office can only survive in good health, and the system can only operate satisfactorily, if the Lord Chancellor commands the confidence of his judicial colleagues that he will protect the judges' independence from any improper interference, for in the exercise of the judicial function there is obviously no room for pressure by or fear of the Executive or Parliament or any outside body.

But the Lord Chancellor must also enjoy the confidence of his political colleagues that he will loyally give effect to the Government's political programme while remaining democratically responsible to Parliament, administratively as well as financially, for the proper functioning of the courts and the proper performance by the judges of their duties. The demands of the office therefore are formidable because they involve reconciling what are inherently conflicting principles with the Lord Chancellor acting, in the phrase of Lord Birkenhead, both as the buffer and the link between the judiciary and the other two branches of government.

That role of acting as buffer and link could be performed relatively easily in the days when the judicial and legal role was predominant. But especially since the noble and learned Lord took office, it is the political and the administrative functions of the Lord Chancellor and his officials which have become dominant. In another powerful lecture on the independence of the judiciary, the noble and learned Lord, Lord Browne-Wilkinson, said, some six years ago, that he had not heard of a judge who had come under pressure to decide a case in a particular way, but that there is a more insidious threat to the independence of the legal system as opposed to the independence of the judges who operate it. The threat arises by reason of the Executive's control of finance and administration. He drew attention to the very substantial shift in the control of the administration of the courts from judges to civil servants in the Lord Chancellor's Department and to the way in which that process has given rise to stresses between the judiciary and the administrators as to their different functions.

There are many who share the concerns of the noble and learned Lord, Lord Browne-Wilkinson, and his view that justice is not capable of being measured out by an accountant's computer. Like him, we regret the fact that the Lord Chancellor's Department is required to formulate policy and to make determinations as to value for money according to financial yardsticks without for the most part even consulting the judges. The Lord Chancellor's Department is being encouraged by the Government's ever more centralising tendencies and it is being forced by the demands of financial economy to move more and more into areas which the judges have considered their exclusive concern. The Lord Chancellor is now a strongly political Minister. His executive responsibilities have come to dominate his office.

In seeking quite properly to reduce the wholly unacceptable delays in disposing of appeals in the Employment Appeal Tribunal, but without being able or willing to appoint more judges or to introduce amending legislation, I fear that the Lord Chancellor and his department may have in this instance slipped into exerting direct pressure about the exercise of judicial powers by the Employment Appeal Tribunal.

I recognise that the Lord Chancellor has a duty to ensure that the legal system is efficiently administered and that it is financially accountable. I share the view of the noble Lord, Lord Irvine of Lairg, about that. Judicial independence does not mean that judges should be immune from being disciplined when they fail to perform their duties properly; or that the budget for the legal system is to be determined by the judges rather than by Parliament. But what it does mean, I suggest, is that the old system has become, in the office of Lord Chancellor, too institutionally schizophrenic to be able to reconcile the divergent, and to some extent inconsistent, requirements of public accountability, judicial independence and efficiency in the administration of justice. We surely need some new institution, some kind of judicial and legal services commission to protect the independence of the judges and of the legal profession from the pressures which the Lord Chancellor, as a politically active and administratively vigorous Minister of Justice, and his officials are driven to exert.

I believe that there is a real need, for the sake of his great office and of the vital independence of the judiciary, to create a new bulwark between his department and the independence of the judges and legal profession. Whatever the machinery, there is a pressing need to secure confidence between the Lord Chancellor and the judiciary. It cannot be done by the Lord Chancellor alone. If I may respectfully say so, it requires new thinking and greater sensitivity on the part of judges as well as the Lord Chancellor and his officials.

As regards the Wood affair itself, there are three basic questions which I suggest arise. First, why did the Lord Chancellor use the phrase "consider your position" in the context of the previous correspondence? Secondly, since he knew that Mr. Justice Wood interpreted that phrase as an attempt to interfere with his judicial function, contrary to his judicial oath, why did the noble and learned Lord not write to correct that interpretation, if he thought that it was a mistaken one? Thirdly, would the noble and learned Lord the Lord Chancellor accept that his choice of words was regrettable?

I very much hope that the noble and learned Lord will feel able to resolve the great anxieties which the matter has raised.

9.31 p.m.

Lord Donaldson of Lymington

My Lords, as I see it, three separate issues emerge from the correspondence which has been placed in the Library. Together, they seem to have produced an explosive mixture.

The first issue concerns the contrast between the procedures of the Employment Appeal Tribunal sitting in England and its procedures when sitting in Scotland. The EAT, like its predecessor, the National Industrial Relations Court, is unique in being a British court, as contrasted with an English court or a Scottish court. In those circumstances, I find it astonishing that this divergence in procedures was allowed to emerge. I find it even more astonishing that Lord Mayfield, the Scottish judge, does not appear to have been invited to attend the court's annual general meeting in March 1992 or even to have been shown the agenda. He was, after all, as much a judge of the court as was Sir John Wood.

For Sir John to describe the English approach as being "fairer" was deeply offensive to any Scottish judge, including the noble and learned Lord the Lord Chancellor. Furthermore, if the English procedure, the English application of Rule 3 was fairer—and I do not personally think it was—then it was surely Sir John Wood's duty as president to ensure that the English procedure was adopted throughout the court's jurisdiction.

The second issue concerns the tn.te nature of the Employment Appeal Tribunal. Sir John Wood describes it in the correspondence as a "people's court" and clearly takes the view that, save in the clearest cases, disappointed litigants should be entitled to their "day in (that) court". That is why, as I understand it, Rule 3 was used very much more sparingly in England than it was in Scotland.

The alternative view is that the industrial tribunals were intended by Parliament to be the final arbiters in employment disputes and: other matters which are referred to them and that the role of the EAT was and is confined to deciding genuine, as contrasted with contrived, questions of law arising in the course of proceedings before the industrial tribunal.

Unlike Sir John, I believe that the latter is the correct view, and that the EAT is concerned with pure questions of law and should, on the whole, be restricted in its ingenuity in deciding questions of law. That difference of opinion is symptomatic of a difference in philosophy which extends throughout the English judiciary. Both groups are dedicated to achieving justice; but they differ on the price, in terms of delay, which can properly be paid in convincing litigants that they have in fact received justice. That difference of opinion—that difference of philosophy—is something that all heads of divisions simply have to learn to live with.

The third issue concerns the perception of the noble and learned Lord the Lord Chancellor of his dual role as a judge and as a Minister. When in 1971 the NIRC was established, the noble Lord., Lord Carr of Hadley, was the Secretary of State for Employment. I well remember his asking me on a social occasion whether, as president, I was responsible to the Lord Chancellor or to the Lord Chief Justice. I replied that I was responsible to neither. I was responsible solely to the law and to my own conscience. I have no doubt that I was right. That is what the independence of the judiciary is all about. The judiciary as a whole is independent of the Executive. But it must never be forgotten that every judge is independent of every other judge.

The position was, in some ways to my regret, no different 11 years later when I was appointed Master of the Rolls. I could invite; I could advise; I could seek to persuade; I could, if you will, exercise leadership. But I could never require a Lord Justice to do or to refrain from doing anything, and I never sought to do so.

The Lord Chancellor in his capacity as head of the judiciary is in no different a position. He could and did seek to persuade Sir John Wood that Sir John was not making full and proper use of the Rule 3 procedure as required by the law. But if that failed—as it did—there was nothing further that he could do in his judicial capacity. No judge can ask another judge for an undertaking—still less an undertaking in writing which casts doubt upon the validity of an oral undertaking given by the judge—that he will act contrary to the law as that judge sees it. Still less can he be asked to "consider his position" if he refuses.

In his capacity as a Minister, the Lord Chancellor is responsible to Parliament for the administration of justice. That responsibility is not, however, unlimited. It extends only to the extent that Parliament has given him authority to supply or withhold resources or to give directions. If Sir John Wood's view of the true scope of the Rule 3 procedure was unacceptable to the Lord Chancellor in his capacity as a Minister, his only remedy was to secure an amendment of Rule 3 putting his interpretation beyond doubt. Had he done so, I am absolutely certain that Sir John would have given effect to the rule as amended.

This apparent lack of accountability on the part of the judiciary may well seem an odd situation, particularly in this day and age when we hear so much about accountability. Our freedom under the law depends upon it, and I have to say that it has stood the test of time. That it can produce what has been described as constructive friction between the judiciary on the one hand and the Lord Chancellor and his department on the other is not open to doubt. However, given the necessary degree of sensitivity on both sides, the emphasis is usually upon the word "constructive" rather than upon the word "friction".

I for my part would much prefer that this issue had never been raised in a public forum. It is not only in this House that it has been raised. It has been raised outside this House. Therefore it has to be considered; and perhaps at this juncture it is better that it should be considered. In considering it and in conclusion, I have to say that I regard the terms of the letters of 5th February and 19th March 1993 of the noble and learned Lord the Lord Chancellor, particularly the letter of 19th March 1993, as wholly inappropriate, whatever the provocation that he felt about the way in which the EAT was being run.

9.40 p.m.

Lord Campbell of Alloway

My Lords, it is a privilege to follow the noble and learned Lord, Lord Donaldson. I conducted the first case before him in the NIRC and indeed the last case. Perhaps I may say with the greatest respect that his analysis of the three issues is totally sound. Where I disagree with the noble and learned Lord is in his interpretation of the request to Sir John Wood that he in fact consider his position.

The noble Lord, Lord Irvine of Lairg, delivered a trite exposition of the position as regards judicial independence, with which we are all familiar, which we all respect and upon which there is common ground. He then referred to "murmurings" that the Lord Chancellor had put Sir John Wood under pressure—murmurings which were wholly misconceived. Then the noble Lord got on his high horse, so to speak. Like Don Quixote he started tilting at the windmills of those murmurings, none of which can be substantiated in this debate. The fact of the matter, which is simple to see and state on a fair appreciation of the correspondence, is that Sir John, who I may say at once not only was a colleague of mine but is a friend, insisted upon operating a regime which was contrary to the rules (Rule 3) as regards appellate procedure which were observed in Scotland—a departure on the part of Sir John Wood which was deeply resented by the Scottish judiciary.

With regard to the speech of the noble Lord, Lord Lester of Herne Hill, I agree that the letter was read entirely out of context and away from the circumstances, one of which being that it was known to my noble and learned friend the Lord Chancellor at the time that the letter was written that Sir John intended to retire from the judiciary. It is also apparent in that correspondence that that retirement is acknowledged as having nothing to do with the disagreement that appears in the correspondence between Sir John Wood and my noble and learned friend the Lord Chancellor.

It is said by the noble Lord that the Lord Chancellor was acting in an executive capacity (whatever that may be). But on analysis can we test it in one way? The noble and learned Lord the Lord Chief Justice told us on the last occasion when this distressing matter was considered by your Lordships, that he read and approved the letter. Is the Lord Chancellor part of the Executive? Was he acting as part of the Executive? What does the noble Lord mean? The precise words of the noble and learned Lord the Lord Chief Justice, if I remember correctly, were, "I was privy to it".

Like the noble Lord, I deeply regret and resent the activities of many government departments. But I cannot see how that resentment can serve justifiably as a springboard for setting up a Ministry of Justice, a commission for new thinking and so forth, to which the noble Lord referred.

There are few points I wish to make beyond the points I have sought to make in reply. But we must face the fact that this House is concerned with what amounts to a Motion of censure on the conduct of my noble and learned friend the Lord Chancellor in the discharge of his duties, wrapped up in the form of a Question from Her Majesty's Opposition to Her Majesty's Government. Even if there were cause for censure—I do not accept for one moment that there is when one reads "consider your position" in the context of the whole correspondence and the resignation position—and though the Question must be in order because it was accepted by the Table, is your Lordships' House a proper forum for the expression of such censure? It is contrary to the traditions of your Lordships' House to attribute any improper motive to any noble Lord, and assuredly I do not do so. But whatever the motive for tabling the Motion, in the light of this debate it will be assuredly established that the motive was not well conceived.

My noble and learned friend the Lord Chancellor has now, so to speak, been put in the position of being forced into the dock to Answer, and so he shall. Although relations between my noble and learned friend the Lord Chancellor and the judiciary and the legal profession—of which I am still a somewhat active member—have been less than satisfactory (let us face it, that is the position) this situation is not novel. It arose before. I see that my noble and learned friend Lord Hailsham is not in his place. I am sure that he would not object to my saying that it arose as recently as in his day and the relationship between himself and the profession had to be referred to the courts. So, my Lords, whatever the position may be, the one thing that may not be called in question is the integrity of my noble and learned friend the Lord Chancellor; apart from the fact that the documents placed in the Library, read as a whole, speak for themselves.

In conclusion, my personal hope—I speak for myself as usual in this place; I speak for no one else ever—is that the indignity of this unfortunate occasion may not serve as any form of precedent. I have known for many years Sir John Wood, Sir Francis Purchas, the noble and learned Lord, Lord Ackner, and all noble Lords who have spoken and are to speak in this debate. They are all men of the highest integrity. They are all honourable men, some are my personal friends. The same may be said of my noble and learned friend the Lord Chancellor.

9.51 p.m.

Lord Mishcon

My Lords, if I speak a little longer than I usually do in your Lordships' House I pray for your Lordships' forgiveness because the matter we are debating tonight is of a very serious nature. Perhaps I may at once be allowed to differ from the noble Lord, Lord Campbell of Alloway. I was going to thank, as I will do in a moment, my noble friend Lord Irvine of Lairg for doing something which I think is very necessary; namely, attempting to clear the air and to stop what I regard as the completely inaccurate statements and headlines that have appeared in the press. I am deeply grateful to my noble friend, who, certainly as I heard his speech, did not appear to me to be moving a vote of censure or indeed uttering words of censure. I understood him to make a moderate speech in which there were questions raised and not statements made.

Having said that, I know my noble friend will forgive me if I take a line quite different from his. It is because I have stood in your Lordships' House over the years demanding, if you like, from the Lord Chancellor more money for judges, more money for county courts where the staff appear to be underpaid in certain respects, and more money for legal aid, that I cannot be dishonest enough, having made those demands from these Benches, to then say, "But please, if you find that there is wastage; if you find that there are economies that ought to be made, Lord Chancellor, turn your eye away. Don't look, don't worry, it is not within your province to do it".

I am going to take your Lordships, who I know will be patient with me, through correspondence that has not been referred to at all in the debate so far. I start off by referring to the headlines that I mentioned at the outset. "Exclusive" from the Observer on 6th March: Judges outraged by Mackay". From the Observer of 3rd April: Revealed—how Mackay misled Parliament". There is at the very commencement of the documents placed before your Lordships and before the Members of another place a report that was given to Lord Justice Watkins, Deputy Chief Justice, by Sir John. The date of the document is 13th December 1991. The report was on the present problems of the Employment Appeal Tribunal. Page 1 refers to the principles enunciated in the Citizen's Charter: The present delays would be a matter of the gravest concern at any time, but are quite unacceptable in the context of the Citizens' Charter initiative". Page 3 states: Present position. On the 3Ist November"— I did not know that there was a 31st November 1991, but according to Sir John there was— 1991 (eight months into the present Financial Year) there [are] 685 outstanding appeals. This constitutes about two years' work. The projections to 31st March 1992 give a total annual registration of about 750 appeals and the backlog to stand at nearer 800". I move on to Page 5. Not all of your Lordships may have these documents. In 1985 Preliminary Hearings were introduced. A Preliminary Hearing is one at which the Appellant appears ex parte before the full Court, which has before it a complete file of the relevant documents. We allow one hour". That means that on the timetable one hour at least is allowed for a matter which may be completely and absolutely hopeless and where the court has no jurisdiction at all because it is a matter of law. One hour is allowed in the programme for a full court.

I continue: There are remarkably few cases which are clearly frivolous on the face of the documentation. This is really a case of 'de minimis'. In Scotland an HEO (unqualified) sends an appeal back to the appellant as disclosing no point of law if he so thinks. There is an appeal from him to the Judge". At the moment I am going into the orders, why they were made and what they say, and with your Lordships having the patience to allow me to do so. The report continues: Having considered this rather different procedure I do not consider it desirable, here in England and Wales nor do I like it particularly". I now turn to Page 7: In approximate terms some 30% of cases registered before Industrial Tribunals are in fact heard and of those heard approximately 6% become registered appeals". Then, It will be seen from a perusal of the figures for preliminary hearings that a fairly regular proportion of one third are sent to a full hearing". In other words, for a full court at least one hour is allowed for each case, however hopeless on the face of it that appeal may be. I shall go into that. Then we have the result of these preliminary hearings, where only about one-third go forward to a full appeal. I move on to Page 9. The EAT is a politically sensitive Court and the backlog has been unacceptable for a very substantial length of time". There is a summary on page 13: The present backlog at the EAT is unacceptable by any standards and in the light of the Citizens' Charter is proving most embarrassing. The volume of work is certain to increase substantially in the very near future and to reach levels which have been unknown in the past". He then goes on to say that three courts are available with the staff to administer them and that he would rather like an increase in the courts.

The conclusion is: Looked at only from along the 'judicial route' there is an immediate need for two more Courts. I would hope that with two more Courts we could within 2 years, diminish the backlog to a reasonable period of waiting time, which I would assess at six months. I would also hope that we would be able to cope with the anticipated influx". I emphasise the last sentence: The latter I cannot possibly promise but without at least two further Courts calamity faces us". I pause for a moment before continuing with the document to consider, in the light of the debate, what is the constitutional position of the Lord Chancellor. I shall quote the noble and learned Lord himself in a lecture that he gave to London University about three years ago. I do not intend to mention the circumstances except that I was there. The noble and learned Lord said: The Lord Chancellor is responsible to Parliament for the delivery of a fair effective and efficient overall system for the administration of justice within the constraints of the monies voted to him for these purposes by the House of Commons. I am not answerable for the determination by the Judges of individual cases within the system. This is the sole responsibility of the independent judiciary: no Judge can be directed to decide a case in a particular way. I have particular responsibilities in relation to the jurisdiction and procedure of the civil and higher criminal courts in England and Wales. When necessary it falls to me to promote legislation to make improvements in the constitution, jurisdiction, procedures and so on of those courts". I do not think that anybody participating in this debate —nor, I believe, any judge outside your Lordships' House—would quarrel with one word of that definition of the Lord Chancellor's duties in regard to the administration of justice and of courts.

I turn now to what a Lord Chancellor has to look at by way of procedure—not by way of decision in a court and not by way of indicating to a judge how he should decide. I shall give your Lordships the history—very briefly, I promise —and the history starts off in 1976 in the terms of the rules of the Employment Appeal Tribunal. The famous paragraph (3) occurs in that order. It is very clear. Parliament provided it and it is the duty, I submit, of judges to obey the orders of Parliament when the orders are in regard to the procedures which those judges ought to carry out in order that they can reach justice at the end of any particular case or hearing.

The following (in 1976) stated what the procedure was to be. A registrar would have a look at an appeal notice. He would make a decision and would have to give his reasons. There would be an opportunity for the appellant to put in another notice. But in 1980 your Lordships reconsidered the position and thought that that possibly was not good enough. So your Lordships allowed to be passed the Employment Appeal Tribunal Rules 1980, which added something to Rule 3 under "Institution of appeal". What it says—this has not yet been quoted—is: Where an appellant expresses dissatisfaction in writing with the reasons given by the Registrar, under paragraph (2) of this rule, for his opinion that the grounds of appeal stated in a notice of appeal do not give the Appeal Tribunal jurisdiction to entertain the appeal, the Registrar shall place the papers before the President or a judge for his direction as to whether any further action should be taken on the appeal". Your Lordships may think that that is a good and just procedure. It is not just for the registrar to decide, but, if the appellant is dissatisfied, the matter has to go before the President or a judge to decide whether there is a point of law.

What did the noble and learned Lord the Lord Chancellor find? He does not need me to defend him, but I am trying to see what anyone trying to look at the matter would find. First, there is the question of the huge delays which had occurred—a terrible amount of delay. Secondly, the noble and learned Lord is asked for money all over the place by people like me and my noble friends Lord Irvine of Lairg and Lord Williams, because we have so much at heart that which is needed in the judicial system, and for which every penny is needed. What would any one of your Lordships do but look at the backlog, look at the waste of money, and look to see whether there is a procedure which is not being carried out? Preliminary judicial hearings are taking place before a full court for an absolutely hopeless case, and one hour is allotted to find that out.

One thing has been said here—I have looked at the documents—which I must make clear. I have found nothing in the documents other than that the noble and learned Lord the Lord Chancellor and his department have said, "Where there is no merit shown in the application, then Rule 3 must apply, but if there is a good case, or a doubtful case, then by all means have your preliminary hearings". It is especially helpful if directions can be given at the preliminary hearings which allow the case to go through more speedily.

I could go on taking your Lordships through the correspondence. Will those of your Lordships who do not have the documents accept from me that letters are sent patiently to the learned judge? I pay tribute to his learning and to the years during which he sat on the Bench. But there are, and I say this frankly, delays in the correspondence. Weeks and weeks go by without a reply. And the whole time the arrears are building up. There is no straight answer to this: "There is something laid down by Parliament for the expeditious arrange-ment of your tribunal, please accept it". In the end there is no acceptance and a whole year goes by. I believe that the letter which has been read out had a couple of words in it to which reference has been made which are possibly capable of a different meaning. They are, "Consider your position". All I can say in answer to that is that the judge (the President of the tribunal) in answering that letter did not say, "Does this mean that you are asking for my resignation?" He does not take that attitude at all. He says—and I paraphrase—"I have considered my position and I still take the same view, that you put me in a very great difficulty constitutionally".

The difficulty was not justice in his tribunal. The difficulty was the accumulated delays and the accumulated expenditure, which, quite honestly, was not an economic use of money. I can only say that I wish that this debate had never taken place except, as I say, in order to stop newspapers from printing things which are not accurate about the noble and learned Lord's conduct and what happened.

I can only say in honesty that if I had been in that position—and I hope that your Lordships will not think this a pompous remark—save for an ambiguous phrase, I should have lost my temper by the end of last year, and I should certainly have hoped that somehow or other that backlog and wastage would cease.

10.11 p.m.

Lord Ackner

My Lords, during the past three or four years, at the instance of the British Council or the Council of Europe, I have addressed judges in Hungary, Poland, the Czech Republic, the Slovak Republic, Estonia, Lithuania, Moscow and Slovenia. On some of those occasions I was among other senior judges from Western Europe who spoke, but on behalf of the United Kingdom I was always asked to speak on the subject of the independence of the judiciary. No doubt that was because it was thought that the common law system particularly protected that fundamental feature of justice.

The leitmotiv of my speeches was that a strong and independent judiciary is one of the central supports upon which our liberties are based and upon which the rule of law depends. That statement of that vital constitutional principle is not derived from my own words. Those words are to be found in the Lord Chancellor's Green Paper in 1989 on the work and organisation of the legal profession.

I find that it is deeply depressing that last month almost 100 of your Lordships sought unsuccessfully, losing by some 17 votes, radically to strengthen Clause 70 of the Police andMagistrates' Courts Bill in order to achieve the stated purpose of that clause; namely, to safeguard the independence of the legal advisers of the lay judges—the justices—something which the Government, in their wording, were so signally failing to do.

Here we are, a month later, debating at the instance of the Shadow Lord Chancellor the serious questions: first, whether the noble and learned Lord the Lord Chancellor acted unconstitutionally by pressuring the president of the Employment Appeal Tribunal, a High Court judge, to follow a legal course which the judge considered contrary to his judicial oath; and, secondly, whether the Lord Chancellor's defence to that accusation as provided by him to the House on 21st November was factually inaccurate.

Perhaps l may respectfully submit that we are not concerned with what was so much at the centre of the speech made by the noble Lord, Lord Mishcon, as to who was right—the Scots or the English—as regards the preliminary inquiry. What we know is that Mr. Justice Wood, in writing the detailed letter in March setting out his basis for following that procedure, did so after consulting his senior brethren and said in terms in that letter: I am following a course which Mr. Justice Phillips"— a greatly respected judge— commenced in I977'". The usefulness of that procedure is attested by the fact that Gordon Slynn (now a Lord of Appeal in Ordinary), Nicholas Browne-Wilkinson (again, now a Lord of Appeal in Ordinary), Lord Justice Waite and Mr. Justice Oliver Popplewell also followed it.

Just to bring the matter up to date, I recently had the privilege of meeting Mr. Justice Mummery at a dinner in his Inn, a matter of some weeks ago. He is now the president of the Employment Appeal Tribunal and following exactly the same procedure which was so critically mentioned by the noble Lord, Lord Mishcon. He said in terms: I have not altered and do not intend to alter the present well-established procedure of preliminary hearings. They are a fair and reasonable way of sifting appeals and protecting respondents to hopeless appeals from having to attend a full hearing and incur irrecoverable costs. The present procedure for establishing whether an appeal raises a point of law or not is legally sound and, I understand, good practice from the point of view of industrial relations". He told me that the backlog is about as bad as it was in the time of Mr. Justice Wood; namely, a wait of two years. The reason for that is, essentially, a shortage of judge power. As a result of the judiciary being somewhat diluted on that score by the provision of circuit judges sitting as High Court Judges rather than High Court Judges doing so, he hopes to be provided with four tribunals. He says that, if he is, he hopes to be able to bring the two-year period down to one year by the end of the year.

I submit that all of that is a total irrelevance. What Mr. Justice Wood did was to set out in detail how he justified his position. He did so after taking further advice and quoted his predecessors, and have quoted his successors, as considering the system to be quite sound. My noble and learned friend the Lord Chancellor would have been at liberty to alter the rule if he was so minded by now, but it has remained unaltered.

Lord Mishcon

My Lords, how does the noble and learned Lord think that it should be altered? Further, how does it alter the circumstances with which we are dealing?

Lord Ackner

My Lords, I am not suggesting for a moment that it should be altered. I am submitting, first, that it is not a matter that we need to go into. The strongest possible prima facie case was made out by Mr. Justice Wood that, in order to deal with ambiguous cases emanating from litigants in person, one should have a preliminary enquiry in order to discover whether or not there was a good point. Moreover, 30 per cent. of the cases which were ambiguous went forward to a hearing and Mr. Justice Mummery has confirmed that the same thing occurs at present and that it takes about half an hour for the tribunal, having read the papers, to deal with the appeal.

Up to a point, I have sympathy with my noble and learned friend the Lord Chancellor. He is required to wear too many hats—the hat of a Member of the Cabinet, that of the Speaker of the House of Lords and that of the head of the judiciary. If one wears too many hats at once one runs the risk of at least one of them falling over one's eyes so that one is not able to see straight. With respect, I submit that that is what. happened in this case.

Secondly, the expeditious hearings required by the Government's Citizen's Charter could not be achieved without more judicial manpower. At that period—and, indeed, for some years previously—the Lord Chancellor. had been pressed by the former Lord Chief Justice, my noble and learned friend Lord Lane and by the current Lord Chief Justice, my noble and learned friend Lord Taylor, for more judges. The pressure had been such that the system had not operated so speeches were made at judges' banquets in the City saying that the situation had been reached where it was becoming, a national disgrace and justice was imperilled. The noble Lord, Lord Mishcon, was sufficiently anxious about it that he may remember that in July 1992 he raised a Starred Question on that very subject, on which my noble and learned friend Lord Oliver spoke and ventured to suggest that the noble and learned Lord the Lord Chancellor was abusing his powers under Section 9(4) of the Supreme Court Act 1981 by the overuse of deputies. It therefore was a question of manpower which was causing all this difficulty.

I do not spend any time on the letters but I do spend a little time on the explanation for the letters. We have learnt—those of us who have read it—from the lengthy article in the most recent publication of the New Law Journal that in January 1994 the home affairs correspondent, Mr. Rose, asked the Lord Chancellor's Department about the correspondence of which he had heard. He was told, according to the quotation in the article: There was no question of changing the rules or ending or limiting the ex parte hearings. They were merely discussing the existing rules. The Lord Chancellor was acting in his capacity as the most senior judge not as a member of the Executive". The reference to his capacity as the most senior judge has no longer been persisted in, and rightly so, because as recently as 22nd February of this year, on the fourth day of the Committee stage of the Police and Magistrates' Courts Bill, in dealing with the position of a chief justice, my noble and learned friend said, The fact that somebody is chief does not necessarily mean that that person has a right in all matters to overrule his brethren. I am sure that in the judicial field all understand well that the chief justice is not entitled to give directions in judicial matters to his brethren except in so far as he may from time to time sit in a court which is superior to them, and by virtue of whose decisions they may be bound".—[Official Report, 22/2/94; col. 574.] It is difficult to know quite in what capacity my noble and learned friend required—demanded indeed—that Mr. Justice Wood should consider his position.

I come now to the Answer which my noble and learned friend gave to the House in answering the Starred Question on 21st March. In dealing with whether the Government were satisfied that he had acted constitutionally, he said, the short Answer is yes".—[Official Report, 21/3/94; col. 498.] Then he read out a fairly detailed statement dealing with the matter. In the course of that he dealt with the words "consider your position". He also said: That meant that I wished to ascertain on what basis a procedure not applying that rule in full might properly rest". That elicited the immediate reaction from the noble Lord, Lord Lester of Herne Hill, in these terms: Am I not right in saying that the letter from the noble and learned Lord the Lord Chancellor was written only after he had received a full and carefully considered letter from Mr. Justice Wood, written after he had consulted senior legal colleagues, explaining why Mr. Justice Wood, and his predecessors, regarded the long-standing practice of the Employment Appeal Tribunal as expeditious, economical and conducive to the interests of justice, and why he could not see any alternative way of fairly resolving the problem in the manner demanded by the noble and learned Lord the Lord Chancellor? Did not the noble and learned Lord the Lord Chancellor in his letter say in terms that he wished no further discussion of the rule, despite Mr. Justice Wood's full and reasoned earlier letter? To that there came an answer which contained at least one strange sentence. My noble and learned friend said: I was not disputing his interpretation of the rule; I was asking that the rule should be applied".—[Col. 498.] He went on to say: If Mr. Justice Wood was not prepared to give that assurance I wished him to state the basis upon which a procedure, which was not fully applying the rule, could properly rest".—[Col. 499.] That is the sequence, which is exactly the wrong way around.

The point was then taken up immediately by my noble and learned friend Lord Oliver, who asked this question: Is it the fact that an assurance was demanded of the judge that he exercise his judicial discretion by adopting a procedure that he had already indicated on carefully reasoned grounds he regarded as inappropriate and contrary to the established practice of the Employment Appeal Tribunal ?"—[Col. 499.] That question was not answered at all.

Finally, on the question of the error, three days later, during the Third Reading of the Police and Magistrates' Courts Bill on 24th March, on the Motion that the Bill do now pass, I addressed to the House observations about the failure in that Bill properly to protect the independence of the justices' clerks. I went on to make a passing reference, carefully saying that I was not dealing with the merits of the question, to the allegation that had been made in the Observer. I said: I have checked against a copy of the correspondence the validity of the correction which the noble and learned Lord, Lord Lester, unsuccessfully invited the noble and learned Lord the Lord Chancellor to make to his detailed answer as to the sequence of events—which came first, the judge's detailed justification of the procedure he was adopting or the letter from the noble and learned Lord the Lord Chancellor telling the judge, as is accepted, 'to consider his position' ? Having made that check, it is quite clear that the sequence suggested by the noble and learned Lord, Lord Lester, was correct. Out of fairness to Sir John, I am sure that my noble and learned friend the Lord Chancellor will take the earliest opportunity to correct the error". —[Official Report, 24/3/94; Col. 805.] I am sorry to say that that correction has still to be made.

The important point in all of this is that in answer to a Starred Question the noble and learned Lord the Lord Chancellor sought to give his justification of the use of the words "consider your position", and the only justification he gave—and therefore I assume that it is the only justification made—was that that was in a letter in which he was seeking to elicit from the learned judge the basis for his applying the rule in a different manner from that which he wished.

But the judge had given that reason fully in a two page letter. He had cited other judges who had followed the same procedure. There is no question of any lengthy delay of the kind referred to by the noble Lord, Lord Mishcon. On page 2 of the letter he gave a very detailed reference to the sections, the powers of the tribunal and the extent to which he was perfectly entitled to apply that rule.

I shall not take up any more of your Lordships' time. I respectfully submit that however unwitting the noble and learned Lord the Lord Chancellor may have been in the expression which he used, this clearly was, in the circumstances, an unconstitutional way of applying pressure to a judge. I hope that the sequence of events as indicated by my noble and learned friend the Lord Chancellor, which redounds to the discredit of the learned judge who is not here to defend himself, will at least be corrected today.

10.30 p.m.

Baroness Elles

My Lords, it might seem that the replies to the Question tabled by the noble Lord, Lord Irvine of Lairg, are to be found on the face of the correspondence deposited in the Library. Indeed, my noble and learned friend the Lord Chancellor should be thanked for having deposited those papers in the Library, making them available not only to those who are taking part in the debate today but to anyone who has had an interest in the matter.

As noble Lords heard, when the matter was first raised in this House on 21st March as a result of a Starred Question tabled by the noble Lord, Lord Lester of Herne Hill, the letter which then aroused criticism, and more specifically certain wording, had been seen by the noble and learned Lord, the Lord Chief Justice. I wish to quote this passage since the noble and learned Lord is not taking part in the debate. In the Official Report of 21st March, at col. 499, the noble and learned Lord, Lord Taylor of Gosforth, said: ''My Lords, is the noble and learned Lord the Lord Chancellor aware that I was privy to this matter at the time, that I did not consider there to be any question of suggesting to the judge that he ought to resign his judicial office and that if I had felt any anxiety about any encroachment on judicial independence I would have raised the matter with him? That is clearly put by the Lord Chief Justice.

Having regard to those two comments, in the circumstances one might have thought that the debate was misconceived. But, due to media interest—unlike the noble Lord, Lord Lester, I do not equate that with public interest—that does not allow the matter to remain without solution. Like the noble Lord Lord Mishcon, I am grateful to the noble Lord, Lord Irvine of Lairg, for having raised the matter tonight. I hope, too, that the debate will clear the air, that it will terminate the question, and that there will be no further mention of this case. I do not think that the issue redounds to the credit either of this House or indeed of many of the personalities who have been involved in the publicity which has been given to this affair. Indeed, if I may say so as an outside observer, I should have thought that the judiciary could have handled its affairs rather better between its members than dragging all this into the open.

However, issues arise from this matter which can also be of general interest and concern and are in no way attached to the person of the Lord Chancellor, whose personal integrity is without doubt. There are bound to be increasing tensions between the Executive and the judiciary as indeed was evident in dealing with the Police and Magistrates' Courts Bill. That was touched upon by the noble and learned Lord, Lord Ackner. If more tribunals—such as a tribunal dealing with immigrants—are established, there will be a further increase in tension as the Executive seeks to restrain open ended expense while ensuring at the same time fair, speedy and efficient service to the citizen. At the same time, understandably, in accordance with the traditions of this country, the members of the judiciary, be they High Court judges, magistrates, or at whatever level of the judicial system, will insist on their independence.

As has been mentioned by other noble Lords, the conflict becomes more acute under the. British constitution, where the Executive, legislature and head of the judiciary are encapsulated in the one person of the Lord Chancellor. As the growth of legislation increases and more and more people are involved in laws they cannot and certainly do not understand, it might be worth reconsidering the often mentioned proposal of establishing a Ministry of Justice. But, of course, as so often, the solution of one problem leads to more problems and all one would see would be a proliferation of civil servants. I believe that many of us would not wish to see that.

In studying the correspondence before the House, three overriding duties face the Lord Chancellor. I do not state them in order of priority. The first is to protect the taxpayer from excessive and unnecessary expenditure; the second is to ensure that the laws and rules adopted by Parliament or by statute are observed; and the third ensures that the rights of the citizen are protected by a fair, efficient and, in so far as is concomitant with that, speedy procedural system.

The issues are broadly two. First, there is the right of the president of the EAT to be free to interpret the Acts and rules and to continue the practice of allowing preliminary hearings for appellants even where there is no obvious question of law on the face of the appeal, which is not set out in the EAT rules of 1980. Understandably, the President's comment in his paper to the AGM of the Employment Appeal Tribunal in March last year, as stated in the letter to Sir John Wood from Lord Mayfield, was not conducive to good relations with other parts of the United Kingdom. In document 4, which has been referred to, Sir John Wood stated that the non-use of preliminary hearings in Scotland: means that the members of the public in England/Wales have what is seen to be a 'fairer system' under the same Act than their counterparts who … live in Scotland". Surely that was an injudicious remark, to say the least. It was vigorously denied by Lord Mayfield in his letter of 6th March, document 5, in which he comments that he regards the English system "as wasteful of time". He does not recollect any criticism of the procedure followed in Scotland in relation to potential appeals.

Sir John Wood apologised to Lord Mayfielcl for his comment, but to the outside observer it must be regretted that, with a system that works well in Scotland under rules which were meant to apply to the whole of Great Britain, a more lengthy system introduced into England and Wales does not speed the course of justice.

Certainly, recent statistics show a great difference in the number of cases and a discrepancy in the backlog of cases building up. I received statistics this morning from the Employment Appeal Tribunal. The noble Lord, Lord Mishcon rightly referred to the correspondence and a report of Sir John Wood in which he referred to the possibility of a backlog of 800 cases projected for 1992. In the Employment Appeals Tribunal statistics for the year ending 1993, which include appeals set down and disposed of, just for England and Wales, outstanding at the end of the year are 1,068 cases. That is well over 200 more than the figure which was quoted in the projected view.

In the Employment Appeal Tribunal statistics for the month ending March 1994, 74 cases were set down; 44 were disposed of. These are preliminary hearings and there are still 283 preliminary hearings outstanding for the month ending March 1994. So I find it difficult when certain noble and learned Lords say that the holding of preliminary hearings has no effect on the length and speed at which tribunals are working. It is quite clear that the preliminary hearings are one of the great drawbacks to getting on with such cases. In England and Wales, the backlog is increasing every year, as opposed to Scotland where there is always a minus figure. The waiting time now in England and Wales is anything between 18 and 24 months.

As an ordinary citizen, I believe that in view of the kind of cases involved—and it has been said that there are people who are not able to understand the law, who need assistance with their cases—it is surely intolerable and certainly not in the interests of citizens who, with appeals which may fall within the jurisdiction of the tribunal, have to wait because of what appears to be a cumbersome process. Nor does it help those who have no justification for carrying on with their appeal.

The rules were drawn up by the late Lord Elwyn Jones—a compassionate man, if ever there was one—and people were satisfied that the rules would operate in a fair as well as speedy manner. It is regrettable that they should have been questioned more recently. Not only is it necessary that justice should be seen to be done, but most importantly, one of the oldest principles in English law—

Earl Russell

My Lords, I am grateful to the noble Baroness. Can she tell me whether anyone has questioned the rules, or do people disagree about their interpretation?

Baroness Elks

My Lords, no one has questioned the rules, but what is questioned is whether a judge in the case has the right to introduce different procedures which are not within the rules. Rules 3(2) and Rule 3(5) are laid down and they deal with appeals which may be considered hopeless. A person can put in an appeal under Rule 3(2) and, if the applicant is not satisfied after a certain number of days, he can apply again under Rule 3(5).

What is not within the rules is the method of preliminary hearings, where, even in an appeal which is clearly on the face of it not raising a question of law, there is an hour which is given to an appellant in case a question of law might emanate from the preliminary hearing. There is no mention of a preliminary hearing in the rules of the EAT, nor is there in the employment protection consolidated measure from which the rules stem. I am sure that the noble and learned Lord the Lord Chancellor will be able to give a fuller reply if I do not have my facts right, but I believe that I have. I think that that gives the answer to the noble Earl.

The oldest principle in English law, which I was just coming to, and which as a historian I know the noble Earl will appreciate, is that "justice delayed is justice denied". That point has not been mentioned and must surely be taken into consideration in this particular situation. It is surely right to expect the judiciary to seek to observe such a first principle when so many people suffer as a result of its not being observed.

The second question which arose in relation to interpretation is the use by my noble and learned friend the Lord Chancellor in his letter of 19th March 1993, of the words which were the subject of a Question in this House on 21st March—and many noble and learned Lords have referred to this I must ask you to consider your position". The noble and learned Lord has already spoken on this matter; he spoke at the time and has given his answer. I have already quoted what the noble and learned Lord the Lord Chief Justice said in relation to that particular sentence. But those words could in no way have been construed as meaning a possible request for resignation.

In his letter of 23rd April Sir John Wood makes it quite clear that he regards the interpretation of those words—so far as I can see, correctly—as relating to his view of the exercise of his judicial function. He also makes it quite clear in his letter of 21st June 1993 that he had made known his desire to retire to heads of division, and in one case to a head of division, at the beginning of the year. So there is no question that he could have assumed that this was an implication by my noble and learned friend that he should consider his position in relation to resignation. In my view, that simply does not hold up. And indeed, in submitting his resignation to my noble and learned friend on the same date, 21st June, Sir John Wood in his letter very correctly says: as you will see, [this] is unconnected with our recent correspondence". In conclusion, noble and learned Lords will analyse much more acutely than I can, the correspondence in relation to protection of the independence of the judiciary. As in law, different interpretations can be placed on its contents. But I maintain that my noble and learned friend the Lord Chancellor, in seeking to protect the rights of the citizens against a proceeding which results in long delays could, with respect, look for better co-operation among the judiciary with his role, which we on these Benches believe he fulfils with integrity and distinction.

Noble Lords

Hear, hear.

10.42 p.m.

Lord Glenamara

My Lords, first, perhaps I may agree with the noble Lord, Lord Lester, when he said that this was a debate which gave nobody any pleasure —I might add, because of the high regard and indeed affection that we all have for the noble and learned Lord the Lord Chancellor.

Secondly, in reply to the noble Lord, Lord Campbell of Alloway, perhaps I may make is absolutely clear that this is not in any sense a Motion of censure. We disagree with the noble and learned Lord the Lord Chancellor about something that he has done. But we disagree with Ministers every day of the week without it being a Motion of censure.

I intervene briefly because I believe that legal matters, especially those that involve the rights of the citizen, ought not to be left entirely to lawyers. I believe that I am the first layman to speak in the debate. I speak as a layman, and not as a lawyer.

I believe, and many of us believe, that the core of the matter that is being debated is quite fundamental to individual liberty, which to a considerable extent depends upon a judiciary which is free to function without any interference from the Executive, as the noble and learned Lord, Lord Ackner, said.

My noble and learned friend Lord Irvine referred to the separation of powers. In this country we do not have a proper separation of powers in the rigid sense in which a country like America does. There are a number of deviations from a proper separation of powers. For example, we have three law officers who all sit in the legislature and all sit in the executive. But they also have functions within the legal system. The Lord Chancellor is a Conservative Minister, who speaks and votes for his party in this House in Parliament. I do not object to that. He is perfectly entitled to do so. But also, in the words of his own press office, he is "the most senior judge" in the judicial system.

That odd feature of our constitution—there are many odd features of our constitution—works reasonably well because law officers have always leaned over backwards to keep their two functions, the political and the legal functions, separate from each other and not let one interfere with the other.

But in the matter under discussion, as I see it the two side; of the office of Lord Chancellor have at any rate converged, if not coalesced, in this matter. The nub of that aspect of the matter is the letter, which has been quoted by many speakers, from the Lord Chancellor to Mr. Justice Wood dated 19th March last year. There was a statement from the Lord Chancellor's press office on 27th January this year which said that, in his correspondence with Mr Justice Wood, the Lord Chancellor was acting in his capacity as: the most senior judge and not as a member of the Cabinet". I find that extremely difficult and indeed almost impossible to accept. I am unable to accept it for two reasons.

The first reason is the Lord Chancellor's frequent references to money. I do not object to them, but throughout the whole correspondence he refers to wasting money and saving money. Indeed, in the letter of 19th March he referred to: a cheap and expeditious procedure". I have been a Minister and I fully understand the pressures to which Ministers are subjected by the Treasury. I can well imagine what those pressures are like at present with the over-ambitious Chief Secretary that we have at the moment. But when those pressures are transmitted by the Minister to a judge in the performance of his judicial functions, surely it is the Minister who transmits them and not the senior judge.

The second reason why I find those words difficult to accept is the refusal of the Lord Chancellor to set up more courts —even one additional judge in one additional court. There is a considerable backlog. I checked it with a practitioner in the tribunals today. It is up to and sometimes over two years.

I believe that there are two causes of that backlog, rather than the cause given by the Lord Chancellor. The first cause is the Government's industrial policy of complete non-intervention when large scale industrial redundancies occur. Unemployment and unfair dismis-sal are the biggest source of cases to the tribunals. Secondly, there has been a great increase in the number of appellants who conduct their own cases. I believe —and it has been said by others—that that is because of the cut in legal aid. Unemployed men cannot afford to employ lawyers and are doing the job themselves. I believe that those are the two causes of the backlog. They both flow from government policy and not so much from Mr Justice Wood's insistence on giving a fair deal to appellants whose appeals may not be worded in a way which makes the ground of appeal as clear as it should be.

We should also bear in mind the sensitivity of the appeal tribunal, and indeed the whole system, in dealing as it does with such evocative subjects as employment, unemployment, racial discrimination, sexual discrimi-nation and so on. As Sir Francis Purchas said in the article in the New Law Journal, and indeed as the judge said, "It operates on the fringe of politics". Therefore, I would add, it should be handled with the utmost sensitivity.

The letter of the noble and learned Lord the Lord Chancellor dated 19th March fills me with alarm. I read the noble and learned Lord's explanation of it in your Lordships' House on 21st March this year. Surely the important point is not so much the actual word; in the letter and not so much what the noble and learned Lord intended, but what meaning a reasonable reader—and that includes Mr. Justice Wood—would give to it? I, as a layman, would paraphrase its meaning quite simply, and say that it means, "Do exactly what], a Member of the Cabinet, want you to do in carrying out your judicial functions, or else". That is how I would paraphrase the letter. The "or else", of course, is contained in the words, If you do not feel you can give me that assurance, I must ask you to consider your position". Perhaps I can mention something which nobody else has pointed out. Had that phrase meant, "Consider the position you have taken on the matter at issue between us", it would be more appropriate to say, "reconsider your position". Clearly Mr. Justice Wood had considered the matter meticulously for many months previously. Surely it would have said, "reconsider". It did not say that. It said he should "consider" his position —that is, consider something he had not considered before. I think any reasonable person, including Mr. Justice Wood, would assume that those words meant that he should consider his presidency of the EAT or, alternatively, consider voluntarily resigning from the High Court Bench.

It is a matter of some disappointment to me, indeed of some anxiety, that neither the noble and learned Lord the Lord Chancellor nor the noble and learned Lord the Lord Chief Justice—I am sorry he is not in his place but he did intervene in your Lordships' House on this matter —accepted that the words used in the letter are at least capable of that construction. But whatever the words mean or do not mean, it was overall a sharp letter. Indeed, it was a harsh letter, and it had an overtone of menace. It is a letter which I believe a political Minister ought not to have written to a High Court Judge about the way in which he was exercising his judicial function. It was therefore, in my view, wholly unconstitutional.

10.53 p.m.

Lord Oliver of Aylmerton

My Lords, I confess to a very great dislike for dissension and confrontation. I speak tonight—I want to make it quite clear—not for the purpose of heaping further coals of fire upon the already overheated head of the noble and learned Lord the Lord Chancellor, but because, for good or ill, the Question raised in this debate involves an important point of principle in which it would be clearly embarrassing for any member of the serving judiciary to become involved.

The circumstances out of which the Question arises must be a matter of great regret to us all. They disclose a deep and fundamental difference of opinion between our respected and popular Lord Chancellor, on the one hand, and a popular, respected and experienced judge, on the other, as to the way in which that judge should perform his judicial duties.

Four questions come out of all this. First, what is all this about, because I think a layman looking at this correspondence would be bewildered? Secondly, what is the constitutional position? Thirdly, did what occurred here overstep the limits of permissible Executive action? Fourthly, since all this happened a fairly long time ago, does it really now matter? On one view, you might, reading through all this correspondence, come to the conclusion that this was a storm in a not very significant teacup. Indeed, I think the position is probably a good deal simpler than might appear when one sweeps aside all the obfuscation that has taken place by contentions raised here and there.

With very great respect to him, I do not find the position nearly so clear as does the noble Lord, Lord Mishcon. Paragraph 16 of Schedule 11 to the Act requires an appeal to be heard by a tribunal. That is a tribunal consisting of a judge and two members. Rule 3, about which we have heard so much, is expressed in somewhat Delphic terms. It provides in effect that if a notice of appeal appears to be defective, then ultimately, and after going through various hoops, the registrar may place the matter before the judge for his directions whether any further action shall be taken in the appeal. What it does not do in terms is to empower the judge to hear and dismiss an appeal on paper—I refer back to paragraph 16 of Schedule 11—but what Mr. Justice Wood and the registrar had done was to devise and have up and running a perfectly sensible procedure for dealing with the obvious and frivolous and hopeless case. That simply involved giving the appellant a limited time either to get his notice in order or to ask for the matter to be referred to the judge under sub-rule (3) of Rule 3. If he did not do that, the appeal was deemed to have been withdrawn. So one had got out of the difficulty of having to put the matter before a tribunal to have it dismissed.

What that did not do, of course, was to deal with the case, for instance, of the monoglot Welshman who would not know the difference between a point of law and a mountain goat but had served an ambiguous notice of appeal indicating, for instance, that he considered the industrial tribunal's verdict to be perverse, which might on investigation be a real point of law or it might mean simply that the industrial tribunal had not believed his evidence.

Lord Mishcon

My Lords, I wonder whether the noble and learned Lord would allow me to intervene. Does he realise that he is in danger of coming before this tribunal for a remark of grave racial discrimination against the Welsh?

Lord Oliver of Aylmerton

My Lords, I am much obliged to the noble Lord for that intervention.

So what the EAT had evolved over the years was a system of preliminary hearings for ambiguous notices to determine at the outset whether or not the appellant had a justiciable point. If he did not, the appeal could be dismissed out of hand because it was before the tribunal. If he did, it could be set down and come on for hearing in the ordinary way.

But it then seems to have occurred to someone in the Lord Chancellor's Department what a lot of tribunal man-time could be saved if one did not give the litigant the chance to explain himself. If he has not the wit, the education or the good luck to show clearly and on the face of his notice that he has an arguable point of law, let the notice be referred to the judge under Rule 3 and let the judge dismiss it under his power under Rule 3(5), presuming he has that power, to direct what further action shall be taken on the appeal. That way, the argument runs, and it may well be right, you can stifle a number of pending appeals in limine without troubling the tribunal, however briefly, and thus reduce the backlog.

That is where the battle lines were drawn. The learned judge thought that what he was being urged to do was not only less than fair to litigants but was not open to him on the terms of the statute; and, as the correspondence shows, he urged that there be proposed a small amendment to the Employment Bill then before Parliament to confer upon him the power to dismiss appeals on his own. But for some reason or another that was not done.

The noble and learned Lord the Lord Chancellor took a different view and was insistent that his view must prevail. The pity of it all, it seems to me, is that if the affair ever has to be looked at in statistical terms, it will be found that there was not, and is not, anything like as much involved in all this as those in the noble and learned Lord's department may have supposed and that there really was not any need for this storm in the proverbial teacup to blow up into a tempest. But there it is.

This is not the occasion on which it would be appropriate to debate whose view was right in law and whose view was wrong, although I point out in passing that the learned judge's view had the support of his predecessors in office with practical experience of the EAT over a number of years and also the support of senior members of the judiciary.

The important point is the constitutional one of whether it was proper that the noble and learned Lord the Lord Chancellor, whether in his capacity as a senior judge or as an Executive officer, or in any other capacity, should seek to compel the judge to exercise his judicial function in a manner which, on reasoned grounds, he conscientiously thought to be wrong and contrary to the interests of justice —if, that is, the correspondence which we have seen amounts to such an attempt.

So it is to that constitutional question that I now turn. We have no written constitution, but the concept of judicial independence, which goes back to the Act of Settlement, is one with which we have all grown up. It is a concept of no very certain content and there is concern both in the judiciary and in the legal profession now that in recent years, under pressure from government, from civil servants and particularly from the Treasury, it is being more and more narrowly construed with an eye more to what is boasted to be "value for money" than to fairness and impartiality in our system of justice.

In his presidential address to the Holdsworth Club in 1950, Lord Justice Denning, as he then was, said this: No member of the Government, no Member of Parliament and no official of any government department has any right whatever to direct or influence or to interfere with the decisions of any of the judges. It is the sure knowledge of this that gives the people their confidence in judges … The critical test which they must pass if they are to receive the confidence of the people is that they must be independent of the executive". I draw attention to the words, direct or influence or to interfere". I would have hoped that what my noble and learned friend Lord Denning said was so well entrenched in our constitution that it could not be challenged. Recent pronouncements in this House have seemed to indicate that the noble and learned Lord the Lord Chancellor and his department interpret the principle of judicial independence in a very much more restricted sense and as meaning simply this: that judicial independence is infringed only if an attempt is made to dictate or influence the decision in a particular individual case. I hope very much that I am wrong about that because one has only to think about it to see where the logical train then. leads. On that analysis, a direction in the 1930s by the German Ministry of Justice that judges were not to decide disputes in favour of members of the Jewish faith or against party members would have been no infringement of their judicial independence - and that, of course, is palpably absurd.

I turn to my third question. Was the constitutional principle of judicial independence infringed by what occurred in this case? The noble and learned Lord the Lord Chancellor did not, I feel quite sure, have any intention whatever to overstep the bounds of his constitutional authority, but I am bound to say that it seems to me that on any analysis at all the pressure which was applied in this case, for whatever reason, constituted an attempt by the Executive - no doubt in the praiseworthy interests of economy and expedition - to overbear the conscience of a judge in the way in which he was to exercise his judicial duty and his judicial discretion - not, it is true, in an individual case but in the case generally of those individuals who are not sufficiently articulate to make it clear beyond any doubt that they are within the jurisdiction which they seek to invoke. And in the case of a court many of whose clientele are without legal aid, without legal assistance, some of them ill-educated perhaps and some perhaps belonging to ethnic minorities without a full command of the English language, that is a matter of very grave public concern.

I recognise that there are a lot of people - I dare say that there are perhaps some noble Lords among them who regard Her Majesty's judges as unduly sensitive about their independence from Executive interference, equiperating that with a claim to be immune from control and from any criticism. I do not, for my part. think that that is true or fair - but then I would say that, wouldn't I? But we are not talking about criticism. We are talking about interference with the judicial function —about dictation. I would remind the House that whatever failings there may be perceived to be in the judiciary, it is the judge and the judge alone who stands between the power of the state and the freedom of the individual under the law.

I also recognise - indeed, we must all recognise - the very real difficulties which confront the noble and learned Lord the Lord Chancellor in fulfilling his responsibilities for overseeing the administration of justice and in steering a course dictated by the multiplicity of hats which his office compels him to wear. Judges are, after all, human beings and they are susceptible to ordinary human frailty. If the noble and learned Lord forms the opinion that a judge is not doing his job properly - if, for instance, he spends more time on the golf course than in court, or if he does The Times crossword on the Bench, or brings discredit on his office by his private life - then it is, of course, his duty to take him to task, even, if necessary, to the extent of urging him to resign his office.

So we must all recognise the noble and learned Lord's difficulties and accept that he is right to be concerned with the proper deployment of judicial resources. It is he who has to answer for the perceived shortcomings in the administration of the courts and it is his right and his duty to counsel, to persuade and, if necessary, to criticise. But the question, as always, is: Where do you draw the line ?

Advice, counsel, persuasion, criticism and, if need be, yes, protest fall on one side of the line. But Parliament has established an appellate hierarchy to correct judicial errors of law; and direct Executive interference or attempted interference in the way in which a judge conscientiously seeks to comply with his judicial oath is a different matter altogether. I have to say—and I say it with regret and with the utmost deference to the noble and learned Lord—that it is, I think, very difficult for anyone who has read this correspondence to accept that it did not fall on the wrong side of the line. It cannot be construed otherwise —and I know that the learned judge did so construe it —than as an attempt to coerce a judge to carry out his judicial function and exercise his judicial discretion in a manner contrary to the reasoned dictates of his own conscience.

The peremptory rejection of further discussion, the demand for an "immediate assurance", hardly leave any room for doubt. The significance of the expression, I must ask you to consider your position", has a well-known conventional meaning, and I cannot believe that it has any different meaning north of the Tweed. What it emphatically cannot mean is, "Please let me have your reasons". It means, "Do as I demand, or else".

I have to say that my first reaction when I saw the letter —and I believe that it was a reaction that I shared with a number of others—was to say, "My goodness, we haven't seen anything like this since the reign of King James I". If there were any doubt about that, what further confirmation can be needed beyond the judge's agonised response in which he spoke of the constitutional issue being raised in such a stark form —which remained unanswered and uncontested—and the fact that his final, reasoned letter of protest remained inexplicably unanswered apart from a bare secretarial acknowledgement.

If the learned judge's construction of the letter of 19th March as a threat was wrong, the least that one would have expected was a reply saying, in effect, "What constitutional issue? What on earth are you talking about?" But the matter was simply left. The judge retired, and I would be the first to confirm from my personal knowledge—I have known the judge for many years—that that was a decision that he had made before any of this blew up—and exactly the same procedure for preliminary hearings in doubtful cases still continues, I am told, to this day under his successor in office, and is, I understand, regarded by that successor as essential to the proper working of the tribunal.

Well, now, that all occurred over a year ago and on one view of the matter might be thought to be something of a stale bun. Does it really matter now? It may be said that no great harm has been done. After all, the judge resisted the pressure under which he was put, and the preliminary hearings are continuing just as they were before. But I am bound to say that I believe that harm was done, and in three respects.

In the first place, Executive interference of that sort necessarily saps public confidence in the integrity and impartiality of our judicial system. The litigant expects, and is entitled to expect, that his rights will be decided by a properly constituted court, not by the diktat of some civil servant in the department of the noble and learned Lord the Lord Chancellor or any other department.

Secondly, and particularly in the context of a court which is designed to be, to used the judge's phrase, a "people's court", it leads to a public perception that the interests of the citizen—the little man, if you like—are being overborne in the endless quest for what is called "value for money".

Thirdly—and I believe that this is most important —one of the many measures introduced—and I am sure rightly introduced—by the noble and learned Lord the Lord Chancellor for refashioning the administration of justice is the appointment of younger, and, by definition, less experienced judges who may not all have the same fortitude as Sir John Wood. The correspondence which we have seen must necessarily sap their confidence that they will not be subjected to similar departmental pressure in other directions.

For my part, I commend the noble Lord, Lord Irvine of Lairg, for having brought this matter to the House for debate. Judicial independence is one of the essential pillars of the rule of law. I hope very much that if this debate has done nothing else, it will have made it clear that that must be preserved for, if we once allow it to be lost or eroded, we lose also with it the freedom of us all under the law.

11.15 p.m.

Lord Cocks of Hartcliffe

My Lords, in their introductory remarks, my noble friend Lord Irvine of Lairg and the noble Lord, Lord Lester, mentioned that there was a wider interest in this matter. I must confess that that wider interest had eluded me when I first saw this item on the Order Paper last week. But thanks to our campaigning press, I was alerted on Sunday, 24th April, when I read the Observer, and I saw an article headed: Parliament to grill Lord Chancellor over law cutbacks". I then realised that that was something which was of some interest to me. Indeed, the article in the New Law Journal, which I must confess to your Lordships is not my normal reading, mentions Sir Francis Purchas saying that this demonstrated all the attributes of a Treasury-driven policy to achieve savings at any cost". The noble Lord, Lord Lester, mentioned the need for economy. The noble and learned Lord, Lord Donaldson, raised the question of resources. The noble Baroness, Lady Elles, mentioned the question of expenses. And, indeed, the noble and learned Lord, Lord Oliver, who has just spoken, also mentioned financial aspects. My noble friend Lord Mishcon was extremely frank with the House in detailing the various occasions on which he had been among those pressing for more money for various legal purposes.

A number of your Lordships who are legally qualified have appreciated that problem of resources, but I have yet to hear anybody say that one of the cardinal reasons why the noble and learned Lord the Lord Chancellor is under such great financial pressure is the fault of the legal profession itself.

Because of the lateness of the hour, I shall confine my examples to those drawn from the proceedings of an Appeal Committee in your Lordships' House on Wednesday, 1st September, 1993 before the noble and learned Lords, Lord Goff of Chieveley, Lord Keith of Kinkel and Lord Templeman. That concerned two cases where counsel were appealing and both the appeals were rejected.

In one case, Regina v. Reid, the fees claimed by counsel and a junior were £107,355 for four days in court on appeal in the House of Lords. That was reduced by the Lords' taxing officer to £32,400 for the four days' work. That was the subject of the appeal.

In the course of the proceedings the noble and learned Lord, Lord Templeman, said: The amount of fees you and your leader were claiming for a four day case would have hired three very competent headmasters for a year". He goes on to mention the question of public interest and says further: These fees would have been unheard of even three or four years ago. The whole thing has come across from America and it has just gone up and up and up. On an annual basis this must run into millions". I am prepared to give way to anyone who can tell me that those two counsel in the case of Regina v. Reid were quite exceptional; but, failing that, I must assume that that sort of thing is now not uncommon in the proceedings of the law in this country.

When consideration of what could actually be done about such inflated fees became a matter of discussion, the noble and learned Lord, Lord Templeman, (at page 18 of the proceedings) said: This is a matter for the Bar Council at the end of the day, whether they are going to let the profession get out of hand like this or whether there will be some guidance on proportionality". One would like to think that, here, the Bar Council would be a bastion of the public interest, trying to maintain a balance between a fair reward for work carried out and the need for the public interest and that of the taxpayer to be protected. How, in fact, do we find that the Bar Council has shaped up? One of the other appellants in the other case was asked (at page 34 of the proceedings) whether he felt that he had a grievance. The answer was yes. His claim had actually been for £25,000 and that had finally been settled by the taxing officer at £9,000, so a certain amount of pruning was involved. He went on to say: We did consult with the Bar Council, the appropriate committees and the chairman and deputy chairman of the appropriate committee on the Bar Council, giving them the details, and received their opinions that we should go forward". I hope that the Bar Council will take a little notice of such matters and that it will try to get itself into some sort of shape. It should realise that a balance must be stnick between the legitimate earnings of lawyers and the needs of the general public and the taxpayer. As a very quick aside, I thought that one of the choicest parts of the proceedings occurred at the end of the hearing when one of the appellants said: My Lords, I have been asked by those instructing me … that if it is appropriate … for us to have our costs for today, whether we win or lose, then I would ask for them". The noble and learned Lord, Lord Keith of Kinkel, asked, "Against whom?" to which the reply was: 'Well, my Lord, they must come out of the Legal Aid Fund". It really is pretty choice—is it not?—that even such an appeal has to be funded by the taxpayer. It is time that the legal profession put its own house in order. It is not easy for people who are laymen in such matters to follow the arguments, although I would say to the noble and learned Lord, Lord Oliver, that I have read the correspondence which has been placed in the Library. Difficult though I found it, I do not quite see the indictment which other speakers have seen.

However, there is a serious point here. Lay people must have some sort of protection from the growing greed of the legal profession. As I said, it must put its house in order. I fear that my experience in another place led me to observe from time to time that, when legally qualified people were sat on the opposite sides of the House, especially in Committee, their mutual interest in the law very often seemed to override their party political differences. That was not to the general advantage of either the House or the public outside. I hope that what, I suppose, has been called the strongest closed shop left in the country will think very seriously about the matter. It is no good pasting the Lord Chancellor time after time because he has a limited budget and the taxpayer, as well as the legal profession, has rights. Something should be done to put the whole thing in order.

11.23 p.m.

Lord Colnbrook

My Lords, I agree with the noble Lord who has just spoken and with the noble Lord, Lord Lester. Both of them said that tonight's discussion covers wider interests than simply those concerned with the law. I am yet another layman joining in the debate; but I have a point to make. I believe it to be a valid point and it has not been made yet. I am happy to be able to tell your Lordships that it will not take me very long to make it.

This discussion tonight is ostensibly a Question—in fact that is how it appears on the Order Paper—although I think it is a slightly odd Question, if I may say so, when there are no fewer than two speakers from the Opposition Front Bench, but let us leave that aside. In reality, however one dresses it up, it is an attack upon my noble and learned friend the Lord Chancellor and it has been here and in other places for some weeks now, That is perfectly reasonable. The noble Lord, Lord Glenamara, said, quite rightly, that Ministers are. attacked regularly. Yes they are; but this is not an attack on government policy. That is something that Oppositions do all the time, and quite rightly. I did it myself when I sat on the Opposition Benches in another place. That is wholly understandable and it is, in my view, entirely proper, indeed it is necessary for the proper conduct of democracy in this country.

But this is of a totally different order. This is a personal attack upon an individual Minister. It is not suggested that he is incompetent, or lazy or that what he is doing seems to the attacker to be against the public interest. But, it is suggested, as the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Glenamara, said, that he is doing something; that is wholly unconstitutional; namely, seeking to undermine the independence of a High Court judge by a thinly veiled threat to remove him from the office which he holds. Let us leave aside for a moment the question of whether any Minister has a power to remove any judge from any office without consulting Parliament, and concentrate, if we may, for a moment upon the likelihood that this Lord Chancellor of all people should seek to do something that he knows he cannot do, and that by dubious means.

Members of another place are called honourable Members. Some (of whom I was privileged and fortunate enough to be one) are called right honourable Members, and that prefix of course can attain to every Member of your Lordships' House. The fact that I believe we have to take into account, when considering the validity of the allegations made against my noble and learned friend is simply this—can anyone here tonight think of anyone less likely to do anything dubious or underhand or in excess of his powers than my noble and learned friend the Lord Chancellor? Many of your Lordships, I am sure, know him better than I do; and certainly many know far more than I about the details of, for example, Rule 3, of which I freely confess I had never heard until a few days ago. But I must tell your Lordships that I for one have yet to meet anyone more honourable, more upright, more scrupulous and more meticulous in the performance of his duties according to law than my noble and learned friend.

I know, of course, that some of the things that my noble and learned friend has done in pursuance of government policy have not been wholly acceptable to the legal profession; but I am a layman wholly outside what I must call the closed circle of the legal profession and I think that many of those things have been to the benefit of ordinary people. Furthermore, to me the idea that he of all people could seek improperly to interfere with the course of justice and undermine the independence of the judiciary is quite ludicrous and should not be entertained for a single moment.

11.29 p.m.

Baroness Seear

My Lords, I also am a layman and rise with a good deal of diffidence following so many extremely distinguished lawyers. I should like to say, however, to the layman who has just spoken before me that I think it is a very great pity to personalise this debate which, although it is about a particular incident and a particular event, also raises issues of much wider importance. That has been brought out repeatedly during the debate.

Although the debate was launched by a Front Bench Labour spokesman, surely it has been obvious that this has not been in any sense a party debate. Nor have any partisan issues been raised. That is something of which we must all be extremely glad. Most of us would wish that this debate had not happened. But, given the circumstances, it is inevitable that it has arisen. It will be useful that it has been conducted this evening in the manner in which it has.

If the 20th century has taught us anything surely it is that the independence of the judiciary is the absolute foundation of individual freedom and that if that is undermined in any way then we are indeed on a slippery slope. For my part., if my party in a moment of madness —which I am quite certain will never arise, at least on this subject—were to abandon the principle of the independent judiciary, I would promptly abandon my party. It is of fundamental importance and has to be protected at all times. That is, primarily, what this debate is about and why the issue has arisen.

It must surely be obvious to a layman, as it is to me, that the unfortunate sentence in the letter calling upon Mr. Justice Wood to consider his position has only one meaning. In common parlance it is used to mean "You had better get out". I find it very difficult to understand how that phrase could have been written and that letter signed by the noble and learned Lord the Lord Chancellor without seeing that implication. I accept, as has been pointed out, that Mr. Justice Wood had made up his mind that he was going to leave in any case, but surely there were so many other ways in which the point could have been made: "Would Mr. Justice Wood not reconsider the way in which he was interpreting Rule 3 ?" or "Would he not consider his attitude?" rather than his position. It is the phrase "consider his position" that surely means only one thing to the ordinary member of the public. It is that which has drawn so much attention to this unfortunate incident.

f was most impressed by the speech of the noble and learned Lord, Lord Oliver, in which he pointed out that the pressure to conduct his affairs in the Employment Appeal Tribunal in a rather different way from the way in which Mr. Justice Wood wished to conduct them was also a form of pressure.

That said, and that is undoubtedly the most unsatisfactory aspect of the case, the whole issue raises other points that require consideration. Of course it is right that the noble and learned Lord the Lord Chancellor should have been concerned and should continue to be concerned by the backlog of cases in the EAT. A delay of two years is totally unacceptable, and it is right that the Lord Chancellor should be deeply concerned. The people who go to an employment appeal tribunal are largely involved in cases of unfair dismissal or redundancy. A two-year delay is intolerable. It is right that that should be changed.

However, listening to this evening's debate, it is clear that the accusation against the noble and learned Lord the Lord Chancellor is that he is influenced by the Treasury, and we all know that the Treasury is "enemy number one" of all of us. But earlier this week we were talking about spending £30 million to lock up youngsters between the age of 12 and 16. I suggest to the noble and learned Lord the Lord Chancellor that £30 million would be very useful indeed to the Employment Appeal Tribunal to obtain those extra judges and courts, which could then take the cases which need to be taken and deal with this backlog. We cannot accept that that backlog should continue and the Lord Chancellor was obviously right to be deeply concerned that the delay was so long and damaging.

The second point of public interest goes even wider. It is true that there is a conflict of interest built into the very nature of the Lord Chancellor's job. We do not have a written constitution in this country. We pay lip service to the idea of the separation of the powers. But the position of the Lord Chancellor, imposed on him not of his choosing, is a denial of the separation of the powers, as other speakers have said. He is a political Member of the Cabinet, he has administrative and executive duties in the running of the judicial system, and he is head of the judicial system.

Those duties can conflict and have conflicted. My noble friend Lord Lester is right to say that we have to look at some way of altering the situation. Whatever may have been right in the past, it is no longer satisfactory that one person should carry those conflicting responsibilities. It may be—my party has put this forward, although I do not wish to put party points forward this evening—that a Ministry of Justice is what is required. But if not, some other body is needed which can deal with the administrative duties that are involved and which can reduce the conflict that inevitably arises from the position of the Lord Chancellor as it is defined today.

The noble Baroness, Lady Elles, said that there might be something to be said for a Ministry of Justice but that. it would mean too many more civil servants. I am no great enthusiast for an increase in the number of civil servants. However, I would regard even that as a rather small price to pay if we could get rid of the inconsistency and the conflict which are, inevitably built into the present position of the Lord Chancellor. The situation may have been all right in the past; it is no longer all right today. If serious consideration of how we deal with that issue comes out of today's debate, as I hope it will, along with a more serious attack on the delay in the Employment Appeal Tribunal., then this in many ways unhappy debate will nonetheless have been worthwhile.

11.37 p.m.

Lord Williams of Mosityn

My Lords, this is a gloomy day and I take no pleasure in it. If I had not read the correspondence placed n the Library, in particular the letter of 19th March stating "consider your position", I would not have been prepared to believe that it had been written. This is not a Motion of censure on the noble and learned Lord the Lord Chancellor dressed up as a Question, as the noble Lord, Lord Glenamara, rightly observed.

Mr. David Rose of the Observer has done a notable public service, even if it is an unpopular one. He has brought out into the open what is very widely believed to have been illegitimate pressure on a serving High Court judge. The tone of the noble and learned Lord, Lord Oliver, was gentle as always. But the phrase that he used was that there had been an attempt to overbear the conscience of a judge. If the circumstances in which our discussion proceeds are as serious as that, it would have been derelict for my noble friend Lord Irvine of Lairg, as Shadow Chancellor, not to have raised this Question in this form and so promptly, in particular bearing in mind that the noble Lord, Lord Lester of Herne Hill, had, rightly in my view, quite recently raised the issue as a Question, upon which there was limited opportunity for discussion, as a matter of relative urgency.

Perhaps I may put what I want to say in context. The noble and learned Lord the Lord Chancellor knows that he and I had close dealings in 1992 when I was Chairman of the Bar. To me and to others, he was always the soul of courtesy and consideration. We disagreed quite often, sometimes quite fundamentally, but he knows, I believe, that on every public occasion when we disagreed, I stressed my personal regard for him and his qualities. So it is tonight.

Sometimes criticism on these occasions comes from spite or spleen or a desire to settle old scores. That is not my case. What drives me tonight is, I am sorry to say, a sense of disappointment and a sense of having been let down. May I say why just for a moment? I have lived my entire adult life as a Member of the Bar of England and Wales. I was taught when I started to revere judicial standards and judicial independence and I believe I learnt and remembered that lesson. Tonight and in particular on reading the correspondence, I regret to say that my feeling was of trust misplaced.

If one simply looks and listens to the speeches of the noble and learned Lords, Lord Donaldson, Lord Ackner and Lord Oliver—a rollcall of honour in judicial service, if I may say so—one realises the deep concern which has nothing to do with selfish partisan advantage. None of them has a selfish interest in these matters. I do not know whether those three noble and learned Lords share any views in common with me. I rather doubt it, apart from one. That one is the one that matters to us all. It is the fierce certainty that will never go away that the independent judge is central to our nation and the quality of its life. If that stands, there is hope for us; if it withers, we are done for. That is the importance of this occasion, which no one on our side will demean.

The noble and learned Lord, Lord Hailsham, is not speaking this evening, but I shall quote his well-known words: I always regarded my prime duty as Lord Chancellor [as being] to safeguard and maintain the independence of the Judiciary". On a fair review of this correspondence and the lack of it, has that been done in this case? I regret to say that it has not. What those words mean, I believe, as a matter of fundamental importance, is that we can never tolerate any interference with judicial discretion, judicial view or judicial conclusion except by judicial means which have been referred to particularly in the speech of the noble and learned Lord, Lord Donaldson of Lymington. Nor should there be any appearance of an attempt to interfere with judicial independence.

I shall not deal with a particular speech which, although of interest, I dare say, was not of relevance, about whether lawyers charge too much. What Mr. Justice Wood was doing here was not attending to those who had expensive or even moderately priced lawyers. He was attending to those who had no lawyers at all.

So, if for a moment I may concentrate on what is relevant, Mr. Justice Wood may have been right in his interpretation, or he may have been wrong. That is not the point. What he was right about—and this is the point that will inure—was his refusal to succumb. Those letters of 19th March 1993, 7th April 1993, and the last paragraph (document 18 for the reference, should anyone want it) of the letter of 23rd April 1993 will deserve and receive rather more than a footnote's attention in the history of the judiciary in this country in the late 20th century.

I shall pause for a moment, if I may, as I am not sure that the full citation has been given, on the response of Mr. Justice Wood to the Lord Chancellor, in a fully considered letter: You have demanded that I exercise my judicial function in a way which you regard as best suited to your Executive purposes, but I have to say that in all the circumstances that present themselves to me and in the light of the existing law, I cannot regard compliance with your demand as conducive to justice". I never thought to hear those words, You have demanded that I exercise my judicial function in a way which you regard as best suited to your Executive purpose", from a serving judge in this country. I have heard them in totalitarian regimes elsewhere, some of which were mentioned by the noble and learned Lord, Lord Ackner.

Perhaps I may cite again the last paragraph of that letter, because it rounds off the correspondence rather surprisingly: You express disappointment. I express profound regret that it has ever been the uncomfortable duty of a judge in this country, in compliance with his Judicial Oath, to write to a Lord Chancellor refusing a demand such as the one you have made of me". No reply came, or ever saw the light of day. There was a civil servant's acknowledgment of 5th May: The Lord Chancellor is … considering the issues you raise and hopes to reply shortly". There never was such a reply. The next letter in sequence (document 20) is a letter from a civil servant, saying to Mr. Justice Wood that he (the civil servant) understood that Mr. Justice Wood was intending to retire.

I repeat that this is not a question of personal attack. It is not a question of partisan recrimination. It is bigger, greater and wider than all of us. I would suggest, if I may, as earnestly and solemnly as I can, that the Lord Chancellor should reflect; that he should conclude and acknowledge that the language of that letter of 19th March, with hindsight, was mischosen and mistaken, and that it will never again recur; that even at this late stage a graceful word of apology and regret would be appropriate. For our part, that would end the matter and redeem what we all recognise has been a very gloomy occasion for us all.

11.47 p.m.

The Lord Chancellor (Lord Mackay of Ciashfern)

My Lords, I begin by registering my thanks to the noble Lord, Lord Irvine of Lairg, for initiating this debate in the form of the Question which he set down, and also for giving me the opportunity of placing the whole of the correspondence in this matter in the Library, with the approval of Mr. Justice Wood. I have said before that it would be quite wrong of me normally to place correspondence with the judiciary in the public domain, and I have not done so on any previous occasion except with the consent of the particular person with whom I was corresponding. I believe that it is vitally important that members of the judiciary should be able to correspond with the Lord Chancellor in full confidence that the confidentiality of their correspondence will be respected.

I personally believe very strongly and fundamentally in the independence of the judiciary. I also believe that it is vitally important for the Lord Chancellor to do all that he can to preserve the independence of the judiciary.

Judicial independence does not mean that judges are above the law. The rule of law applies to them and to their work. When Parliament in a statute provides rules to which a tribunal is subject, the judges who are members of that tribunal are, in my view, bound to apply those rules. My noble and learned friend the Lord Chief Justice, in a letter to The Times of 8th May, put that in a way which I should like to refer to. It was in connection with a sentence that had been before the court. The letter is dated 8th May 1993. The Lord Chief Justice is the writer. Sir, You print today an account of a case in the Court of Appeal yesterday in which the Attorney General's application to have an unduly lenient sentence reviewed was granted and the sentence was increased. The headline read, 'LORD TAYLOR ignores act to increase jail sentence'. The report went on to say: 'The Lord Chief Justice over-ruled the sentencing provisions of the Criminal Justice Act yesterday when he increased a jail term on a motor cyclist …' Those assertions were wholly wrong. The judgment of the court, as anyone who listened to it would readily have realised, explained how and why it was possible and appropriate for the court, within the terms of section 29 (2) of that act, to take into account the circumstances of previous offences because they showed an aggravating factor in the instant case. I do not ignore acts of Parliament. To suggest the contrary is not only wrong but a gross libel. I am therefore glad that you have agreed to publish forthwith a retraction and apology as well as this letter. It is true that I have made it clear I consider the 1991 act to be flawed in a number of respects. I support the broad philosophy which inspired it that a custodial sentence should be imposed only where the seriousness of the offending merits it or the protection of the public demands it. But a number of provisions in the act place arbitrary and unworkable restrictions on the discretion of the judge to deal with each case on its merits. I hope that these defects can he cured in the very near future". But this is the quotation which I wish to emphasise, and with which the noble and learned Lord the Lord Chief Justice concludes the letter: However, until they are, it is my duty and that of all the judges to apply the law as Parliament has enacted it. That duty we will fulfil". What I asked Mr Justice Wood, then president of the EAT, in my letter of 19th March 1993, to do was to assure me that he would apply one of these rules as laid down for the EAT. This rule had been made, as the noble Lord, Lord Mishcon, said, as long ago as 1976, was modified in 1980 and was still in force in the form then modified in 1991, 1992 and 1993 - that is, in the whole period to which the correspondence referred to in the question of the noble Lord, Lord Irvine of Lairg, relates. I did not ask Mr Justice Wood to adopt my reading of the rule. Contrary to what has been suggested, I had no quarrel with his reading of the rule, as given in his lengthy letter, which preceded the letter of 19th March.

In this case the Lord Chancellor, after consultation with the Lord President of the Court of Session in Scotland, is the rule-making authority under the Act of Parliament. I considered, in view of that fact, that I was entitled to ask Mr. Justice Wood for the assurance I sought. I had already asked for it once in the earlier letter. It was not forthcoming. I asked for it again, and I asked that if he was not prepared to give me this assurance, he should consider his position. That position I had set out in the very first letter I wrote in the correspondence—Letter 7.

At the end of that letter there was a question about Rule 3 —I will come back to this in a moment—and what I was saying in the letter dated 11th March 1992 was this: When I met the Deputy Chief Justice on 11 February we agreed that Rule 3(2) should be implemented as soon as possible in order to remove those appeals which clearly have no merit and which do not require a preliminary hearing—a procedure, incidentally, which is not provided for in the statutory provisions. I know you recognise the quality and talents of your Registrar and implementation of Rule 3(2) would, it seems to me, provide an excellent opportunity to utilise her abilities. Of course I value the views of your membership on matters on which they have particular expertise but, in this instance, what is required is that you should implement Rule 3(2) as soon as possible, in accordance with the statutory rules under which you operate". That is what I was asking at the very beginning of this correspondence. Your Lordships may ask why I should ask that. I think I can answer. The noble Lord, Lord Mishcon, has already read a part of the first memorandum with which this correspondence begins. In that excerpt Mr. Justice Wood is considering whether that rule is appropriate for England and Wales, and considers that it is not appropriate for reasons which he gives—that is the rule which was introduced under the authority of Parliament as long ago as 1976.

I pass now to the next document in the history. It is the one that Mr. Justice Wood sent out as Paper 5 for the agenda of the meeting of 11th March 1992, to which my noble and learned friend Lord Donaldson of Lymington and others referred. He said: When the EAT was set up in 1976 many Notices of Appeal raised no arguable question of law and many such cases were rejected by the Registrar under Rule 3 of the Employment Appeal Tribunal Rules 1976. However this power was exercised very carefully and at the outset only in the plainest case was an Appeal rejected". So there were many such cases, but plain cases, where the appeal was rejected. The history continues and I will refer your Lordships to it in detail. I do not want to take up your Lordships' time reading it in full, but it is important that your Lordships should have it in mind because I do not accept the fundamental premise on which the speeches of my noble and learned friends Lord Ackner and Lord Oliver of Aylmerton are based, for reasons which I shall indicate as I proceed. This document, History of Preliminary Hearings System, goes on to say: It was felt by the majority of members in both countries"— that is, Scotland and England; Wales must be included with England for this purpose— that the introduction of preliminary hearings for all appeals which either contained no question of law or where it was doubtful, would ensure that justice was seen to be done by allowing each man to 'have his day in court', a good thing—providing that it would not prove to be too time consuming. This was not a view shared by Lord McDonald". He was the Scottish judge at that time on the Employment Appeal Tribunal.

It is an interesting fact, if I may pause to make an aside, that Mr. Justice Wood, the President of the Employment Appeal Tribunal in England, and the two Scottish judges who figure in this correspondence, Lord McDonald and Lord Mayfield, the Scottish members of the Employment Appeal Tribunal, were all holders of the Military Cross.

What happened? Refusals by the Registrar fell away with the introduction of doubtful appeals, on 1 October 1985". In some of the earlier speeches to which your Lordships have been privileged to listen the suggestion was made that the whole procedure of the Employment Appeal Tribunal has been pretty well the same for quite a long period. This is an indication that a very considerable change was made in that procedure on 1st October 1985. What happened was that preliminary hearings—I am going according to what Mr. Justice Wood said—were introduced for all cases. Perhaps I should read the sentence after the one I stopped at so that your Lordships may have a complete view, as this is fundamentally important to my approach to the whole problem. He said: Initially both parties were required to attend but time proved that the Respondent was so rarely called to answer that the hearings were made 'ex parte' in 1987". So it was not a long established procedure. The system was introduced in England/Wales for an experimental period with the full intention that if the experiment should succeed it would be considered for Scotland"— an experiment against a background of statutory rules which required the registrar to consider these matters. The experiment did succeed and was shown not only to be faster than the Special Procedure"— I have not bothered your Lordships with that. It was an intermediate experimental procedure— but also to be 'problem free'. It is unfortunate that at the end of the experimental period the many changes in staff at that time meant that the introduction of the PH system into Scotland did not take place. This means that members of the public in England/Wales have what is seen to be 'a fairer system' under the same Act than their counterparts who happen to live in Scotland". The reason it was fairer was that everyone who applied to the Employment Appeal Tribunal in England and Wales got a preliminary hearing, whether or not they had a case in law, whereas in Scotland Rule 3 was being observed and that did not happen. Your Lordships have to ask yourselves the question: if Parliament has set up a statutory system of statutory rules, is it right that in one part of the Employment Appeal Tribunal's jurisdiction that rule should be observed and in the rest of the jurisdiction it should not? The result of that is undoubtedly differences in public perception of the treatment they are getting in the same tribunal. We all know that different judges deal with matters differently. But this is much more fundamental. This is a fundamental difference in procedure between the two parts of the same tribunal, of which Mr. Justice Wood was the president of the whole tribunal. He was the president for Scotland as well as England and Wales.

It seems to be remarkable to suggest that it was so contrary to the conscience of a judge and his judicial oath that as president of a tribunal he was prepared to allow an unjust procedure to operate within his tribunal, of which he was president in Scotland, if he could not tolerate it in England. This matter is narrated at some length. I do not think that I need to refer your Lordships to the rest of that document. But, not surprisingly, it arrived in Scotland. I refer to the letter No. 5, the letter from Lord Mayfield to Mr. Justice Wood dated 6th March 1992, which says: One of our Members who intends to be present at the Annual General Meeting on Wednesday, 11th March, has passed to me the Agenda for that Meeting. I was surprised, putting it mildly, to read the terms of Item 5 of the Agenda which deals, as you know, with the procedure for Preliminary Hearings. Furthermore, I am not able to accept some of the statements and conclusions referred to in the paper headed, History of Preliminary Hearings System. I have basically two objections to that document. Firstly, as far as Scotland is concerned it does not accurately set out the position and, secondly, I certainly do not agree with the conclusions you have reached, including the sentence about a fairer system in England". The letter goes on: As you know, we have never operated the Preliminary Hearing procedure in Scotland. The procedure in Scotland is (and always has been, under the two judges appointed as the Scottish Judge—Lord McDonald and myself) to follow the Employment Appeal Tribunal Rules 1980". Those rules are set out and the letter explains that they have always done that. It is an interesting fact that on the second page of the letter he says: Up to 1988 the system was that the Registrar in England/Wales dealt with those applications to appeal in Scotland which were being considered for rejection under Rule 3(2)". Therefore, according to Lord Mayfield, up to 1988 the Registrar was considering under Rule 3(2) whether or not to reject appeals. He did it not only for England and Wales but also for Scotland. In 1988 there had to be a separate provision for Scotland, the reason being that it was taking so long to get an answer from England and they needed to get on. He said: I have always been concerned that there should be no backlog of cases awaiting hearing. The system we employ in Scotland has worked very well, and I do not intend to change it. It seems to me that both Lord McDonald and I have been acting under the Rules, and certainly there have been no complaints in Scotland". It is quite clear that Lord McDonald never agreed that it should be instituted in Scotland. The letter from Lord Mayfield was acknowledged in document No. 6 and a handsome apology given by Mr. Justice Wood for what had taken place.

I want to cite one paragraph from that letter. Mr. Justice Wood said: As far as I am aware there is no intention whatsoever to suggest any changes in your procedures in Scotland". These are the procedures under Rule 3(2) to which I have referred. I find it extremely difficult to see how the judge who wrote that, being the president of the tribunal, could consider that the procedures were inconsistent with his judicial oath, having regard to the fact that he was president of that tribunal.

I have already mentioned my letter of 11th March 1992, which is my entry into this correspondence. I mentioned the point that what was wanted was to return to the procedures provided by Parliament; namely, to apply Rule 3(2). A whole year before that I said: What is required is that you should implement Rule 3(2) as soon as possible in accordance with the statutory rules under which you operate". My situation is that all through this correspondence I was concerned to ensure that the rules laid down by Parliament were being operated by Mr. Justice Wood and the Employment Appeal Tribunal as a whole. I was not substituting my reading of the rules for his reading or anything of that kind. I was anxious that he should apply the rules as he understood them.

Earl Russell

My Lords, I am grateful to the noble and learned Lord for giving way, but could he say whether Mr. Justice Wood ever failed to observe the rules as he, Mr. Justice Wood, understood them?

The Lord Chancellor

My Lords, it is as clear as a pikestaff. I thought that I had made it clear; but obviously I have failed. I shall try to make it clear now. Mr. Justice Wood was not applying the rule at all at the beginning of this correspondence. He made it perfectly plain, as I understand it, that he did not think that that rule was suitable for use in England and Wales. That is the passage that I read from the very first document. I do not know whether the noble Earl has the document. I regard this as extremely important because it is fundamental to my whole approach to the situation, and I should not like the noble Earl to be in any difficulty about it. On page 5 of the first document he states: There are remarkably few cases which are clearly frivolous on the face of the documentation. This is really a case of de minimis. In Scotland an HEO (unqualified) sends an appeal back to the appellant as disclosing no point of law if he so thinks. There is an appeal from him to the Judge. Having considered this rather different procedure I do not consider it desirable here in England and Wales nor do I like it particularly". The procedure to which he refers is Rule 3 of the employment appeal rules—

Earl Russell

My Lords, I am sorry to intervene again, but can the noble and learned Lord show us that Mr. Justice Wood was contravening Rule 3(2) as he understood it?

The Lord Chancellor

My Lords, he was not applying it at all. There is no question of a difficulty of interpretation: he was just not applying the rule at all. He thought it was unsuitable. He did not consider the procedure under the rule, desirable here in England and Wales nor do I like it particularly". He was declining to apply it altogether. It was not a question of the rule as he understood it; he was not applying it at all. That is a much more fundamental point. I hope that I have made it clear now.

That was the position that I encountered. It has been said more than once that I was seeking to rule out the use of the procedures of preliminary hearings in cases that were doubtful. That is not my position and never has. been. What I asked from Mr. Justice Wood in the ultimate letter was, as I said, an assurance that he was. fully applying the rule. If he was not prepared to give me that assurance, he should consider his position.

Your Lordships can read this correspondence from end to end and you will not find any justification offered by Mr. Justice Wood, before I wrote to him on 19th March 1993, for not applying the rules laid down by Parliament that takes any account of his position in relation to the rule.

The waiting time in the EAT had by this time reached up to two years. The effect of failure to apply Rule 3 was that preliminary hearings involving the judge and two lay members were being used where the notice of application disclosed no jurisdiction in the tribunal to entertain the appeal, while people who had undoubted grounds of appeal were kept waiting for the attention of the judge and those members for an unacceptably long time. The rules approved by Parliament had provided a mechanism to hasten matters that was not, so far as I could tell, being fully used.

On 21st March I answered a Starred Question from the noble Lord, Lord Lester of Herne Hill, on an alleged instruction that I had issued to the then President of the Employment Appeal Tribunal. I was also asked to place the documentation in the Library. This I have done. As I have said, the Employment Appeal Tribunal, originally established under Section 87 of the Employment Protection Act 1975, is a tribunal set up to deal with appeals on questions of law arising from any decision of, or in any proceedings before, an industrial tribunal under a number of statutes.

The judges of the tribunal from England and Wales are nominated from time to time by the Lord Chancellor, and the judges from Scotland are appointed by the Lord President of the Court of Session. If I had wished to remove Mr. justice Wood from the presidency of the EAT, I could have done so simply by nominating others than he to be judges of the EAT. I had no intention of doing anything of the kind. In addition, non-judicial members are appointed by Her Majesty on the joint recommendation of the Lord Chancellor and the Secretary of State for Employment. The Lord Chancellor, after consultation with the Lord President of the Court of Session, appoints one of the judges as President of the Appeal Tribunal. I had appointed Mr. Justice Wood in 1988, and in fact he had served all that time as the President.

The Lord Chancellor again consults the Lord President of the Court Session—the Lord President of the Court of Session is undoubtedly a judicial officer; he is a full-time judge —so far as concerns Scotland when the Lord Chancellor makes rules with respect to proceedings before the appeal tribunal. My function as Lord Chancellor in approving those rules is the fundamental position which entitles me to inquire and seek an assurance, if I have any doubt about it, that the rules are being applied.

Subject to those rules—this is also important—the tribunal has power to regulate its own procedures. The tribunal is subject to the rules. It is not a question of the tribunal being able to dispense with the rules. The tribunal has power to regulate its own procedures, but only subject to those rules. The statutory provisions—the primary legislation and the rules—apply in England, Wales and Scotland.

As has been already said, the rules were made in 1976 by Lord Elwyn-Jones. I think that your Lordships will agree that there could be no fairer person or person more concerned with the rights of the uninitiated, unre-presented litigant than he. The rules were modified by my noble and learned friend Lord Hailsham in the way that the noble Lord, Lord Mishcon, described. Those rules were re-enacted by me in November 1993 in consolidated form. On each of those occasions, the rules were laid before Parliament and were made without objection.

The effect of the rules has been expressed, but as it is important for me that your Lordships understand them, perhaps I should say that Rule 3 provides that, where it appears to the registrar that a notice of appeal does not give the appeal tribunal jurisdiction to entertain the appeal, then, subject to the opportunity for the appellant to revise the notice and to express dissatisfaction with the reasons given by the registrar, no further action should be taken on the appeal. The rules are plain on that: no further action should be taken on the appeal. Where the appellant expresses his dissatisfaction in writing, the rules further provide that the papers should be placed before the President or a judge for his direction as to whether any further action should be taken on the appeal.

I have already mentioned the beginning of the correspondence by me. I go on to mention a letter of 24th January 1992 from Raymond Potter, the head of the court service in my department, which he wrote to Sir John on my behalf pointing to the clear intention in the rules that Rule 3 should be operated as a mechanism for filtering out notices of appeal which failed to establish the EAT's jurisdiction. That letter also makes quite clear the view that preliminary hearings can serve a useful purpose. It said: This is not meant to imply that preliminary hearings serve no useful purpose. It is clear from your [Mr. Justice Wood's] paper that, when an appeal is to go forward, the preliminary hearing provides an ideal forum for giving directions for the progress of the appeal and identifying 'fast lane' cases. Such hearings would also be useful where the Registrar was in some doubt as to the merits of a case". I have never suggested that it is not appropriate to use preliminary hearings in a doubtful case. What I have suggested, and what I think Mr. Justice Wood agreed, was that it was not appropriate for preliminary hearings to be used in a case in which it was clear that there was no jurisdiction in the tribunal.

The paragraph concludes: Use of Rule 3 in conjunction with Preliminary Hearings might result in the best of both worlds". In my view, that is a perfectly reasonable procedure, although it is not the procedure in Scotland where they do not have preliminary hearings at all. But in England and Wales, in my view, that was a perfectly proper suggestion.

Sir John replied on 27th January saying that he intended to raise the issue at the forthcoming annual general meeting. Your Lordships have the paper to which I have referred.

As I have already explained, the Lord Chancellor has a responsibility for making those procedural rules. I found it difficult, therefore, to accept that a single tribunal controlled by a single president should adopt such widely different attitudes to the practical implementation of the same rules as matters of practice of the tribunal.

There followed an exchange of correspondence and a series of meetings between Sir John Wood and me. Some changes in practice were made in England and Wales in May 1992, but in reviewing the statistics of the EAT at the end of 1992, I remained doubtful that the rule was being fully applied. There is no doubt that on 1st May 1992, new systems were introduced by Sir John Wood, the precise detail of which he did not describe to me but they were closer to the Rule 3 procedure than he was operating at the beginning of this correspondence, when he was not using it at all.

The fact that I remained doubtful that the rule was being fully applied led to my letter of 19th March 1993 to Sir John. In that letter, as I said, I asked Sir John, once again, to give me his assurance that he would implement Rule 3 as required by Parliament.

As I believe this is important, I should like to refer your Lordships to the precise context. The letter from Sir John Wood, to which the noble Lord, Lord Irvine of Lairg, referred, is document No. 15 of 5th March 1993. Before I deal with that document in any detail, I should refer to my letter of 5th February in which I conclude by saying: There is an urgent need to address the growing backlog of cases and I would be grateful if you would write to me with your assurance that you intend implementing Rule 3 in full before the end of this term". There is no question of interpretation or anything of that sort in that paragraph. I am asking him to implement Rule 3, not as I understand it but as it is set down under the authority of Parliament.

In response to that, I received what the noble Lord, Lord Lester, described as the long and careful letter of 5th March 1993. Mr. Justice Wood says: I have given the legal issues which you discussed on 1 February very careful consideration, and have taken the opportunity to discuss them with some of my senior colleagues. I will set out the legal position as I (and, as I understand, they) see it Then follows a description of three possible outcomes: 'The first is that the grounds stated in the notice of appeal disclose a point of law. Then, clearly, the appeal proceeds under the Rules. The second is that the grounds of appeal stated in the notice of appeal do not give the EAT jurisdiction to entertain the appeal. The Registrar then takes the action prescribed by Rule 3(2), which may result in no further action being taken on the appeal. But the appellant may try again. If he then shows grounds giving the EAT jurisdiction, the appeal will go ahead. If the Registrar maintains the view originally held, the appellant will be so informed and if the appellant expresses dissatisfaction in writing, the Registrar is to place the papers before the President or a judge for directions whether any further action should be taken. If the President or judge shares the Registrar's judgment of the notice of appeal, the order can be made that no further action will be taken on the appeal. The Rules do not empower the President or judge to dismiss the appeal, and the language of the Rules shows that there is an appeal in existence even though defective". I do not think it matters whether or not that is so. But that is not a problem. The appeal can either remain on the file in limbo or steps can be taken to dispose of it by dismissal before the Appeal Tribunal. This latter seems to me to be the tidier course, and will not take up time"— that is to say, a straightforward dismissal by the tribunal on the papers. However, your Lordships will notice that Mr. Justice Wood gives me no undertaking in that respect that preliminary hearings are not used on the second outcome. The third possible outcome is that the grounds of appeal are stated in a way which leaves the Registrar (and if consulted, the President or a judge) uncertain whether the appellant's grounds are grounds of law or not". Mr. Justice Wood then goes on to explain that in some detail. For example, a complaint that the Industrial Tribunal should not have made a certain finding may relate to the weight of the evidence … or to the existence of any evidence", and so on. It was in this class of case (numerically very much larger than the second class … which led Raymond Phillips in 1977 to introduce the preliminary procedure to decide whether in one of these ambiguous cases an appellant had grounds which gave the EAT jurisdiction or not". I accept that that is an entirely appropriate thing to do; indeed, I have never doubted its appropriateness. Your Lordships will read the letter from end to end without finding any assurance that Mr. Justice Wood intends fully to apply the nile. My response (on 19th March) was to say that I was disappointed by his reply. I said: I did not seek further discussion of Rule 3"— in other words, I was not asking, and never did ask, for further description of the effect of Rule 3— but had sought to make it clear to you that I was not prepared to accept preliminary hearings being held where Rule 3 provides a cheap and expeditious procedure for final disposal of a purported appeal"— and only in that case. I continued: I ask you again for your immediate assurance that Rule 3 is henceforth to be applied in full and that preliminary hearings are not being used where no jurisdiction is shown in a notice of appeal". That is the phrase used in Rule 3(2). It is also the test used for the second outcome in the letter from Mr. Justice Wood of 5th March 1993. I was asking Mr. Justice Wood not to apply the rule as I had understood it. I was asking him to give me the assurance that he was applying the rule which Parliament had laid down to regulate the affairs of the Employment Appeal Tribunal. I see that my noble and learned friend wishes to intervene. I give way.

Lord Ackner

My Lords, I am much obliged. Can my noble and learned friend tell the House exactly what are his criticisms of the letter from Mr. Justice Wood of 5th March 1993?

The Lord Chancellor

My Lords, I have no particular criticism of the letter. I am saying that the letter sets out Mr. Justice Wood's understanding of the rule. I have no quarrel with that. However, what I did find absent from the letter was an undertaking by Mr. Justice Wood that he would apply the rule. That is an important difference—that he would apply the rule. Your Lordships may think that that distinction is not important, but I believe that I will be able to show the House that it is.

Lord Callaghan of Cardiff

My Lords, I am struggling to try to get to the truth of the matter. I just do not understand—and I apologise to all the other distinguished Members here who do—the status of such rules of Parliament. Is the Lord Chancellor the final arbiter of their meaning? Alternatively. is there some other body which is able to determine how the rules should be applied if there is a difference between a judge and the Lord Chancellor? For example, is there any appeal available?

The Lord Chancellor

My Lords, if there is a question of the meaning of the rule between myself and somebody else, I could have that determined in the court, if it were necessary. But this was not a question of the meaning of the rule. He was setting out the meaning of the rule at great length but I had not asked for that. What I had asked him for was an assurance that he was applying the rule, because your Lordships will remember that this correspondence started with an analysis by Mr. Justice Wood in which he said this rule was not appropriate for England and Wales for reasons which he gave.

Parliament, or at least the Lord Chancellor under the authority of Parliament, had enacted the rule for England and Wales and had done so, in its form then in operation, in 1980. Therefore the opinion of Mr. Justice Wood as to whether or not it was a good rule was of absolutely no consequence. So far as I was concerned, there was no dispute whatever between me and Mr. Justice Wood about the meaning of the rule. What I wanted to know was whether he was applying the rule, and if he was applying the rule there was no problem about him saying so. He could give me that undertaking perfectly well. But if he was not applying the rule, why not—not or else. Why not? "What is your position? You are a statutory tribunal operating statutory rules. If you are not able to give me an assurance that you are applying the rules applicable to the tribunal, what is your explanation? What is your position? Consider it very carefully", because it must be quite wrong for a judge, subject to rules laid down by Parliament, not to apply them. That is the crux of this matter.

The response from Mr. Justice Wood to my letter makes no reference whatever to terminating his position either as the President of the Employment Appeal Tribunal or as a judge. None whatever. I am not directing this correspondence to anyone except Mr. Justice Wood; and he certainly did not in this letter of reply make any reference whatsoever to his entitlement to office as a judge, or as the President of the Appeal Tribunal. What he says, in effect, is "I am not giving this undertaking because it is contrary to my judicial oath".

I summarise as your Lordships have heard the whole letter. The point I make about that is that the judicial oath is that, "I would write to all manner of persons according to the laws and usages of this realm". So far as this is concerned, one of these laws was Rule 3 of the Employment Appeal Tribunal rules. I still do not understand why that undertaking was not given, but there was hope in his letter of 23rd April 1993 which states at the foot of page 1: In May 1992, in anticipation of the vast increase in the number of appeals, we introduced a new system under Rule 3". That is when he began to move from his original position as stated at the beginning of the document to the operation of Rule 3. The letter continues: We would not claim that it is perfect, and with experience it is being refined". So Mr. Justice Wood was telling me that procedures in his EAT were moving, and I was delighted with that and anxious to see that that would happen. That is the reason I gave no further response to Mr. Justice Wood, because I had seen before that he reacted quite strongly in his paper that went round the EAT to pressure being put on him to apply the rules as Parliament had enacted them. But then after a while, in May 1992, he did in fact make a move. I had hoped that the corresponding thing would happen after April 1993 and that he would fully apply the rule.

He states further in his letter: The Preliminary Hearing Procedures are not ultra vires". I have never said that they were, and it is quite clear from my letter that I was only objecting to their use, or asking that they be not used, in the case where no jurisdiction was revealed on the face of the notice, which was the second outcome in Mr. Justice Wood's particular enunciation. That was the second outcome in Mr. Justice Wood's enunciation.

As has been said, shortly afterwards Mr. Justice Wood intimated his formal resignation, for reasons unconnected with this matter.

In my submission, what I was doing was well within the branch that the noble Lord, Lord Irvine of Lairg, set out in opening this debate: namely, that there were statutory rules applying to the Employment Appeal Tribunal and that the Lord Chancellor was the authority to make those rules. I believed that I was entitled to have an assurance from Mr. Justice Wood that he was applying those rules.

The noble Lord, Lord Irvine of Lairg, said in his exposition of the long letter that Mr. Justice Wood had written that in that letter he had said that he was applying the rules. But your Lordships will recall that in his article in the New Law Journal Sir Francis Purchas tells us that there was a full and useful discussion at the AGM as a result of which a new form of procedure was introduced in London as from 1st May 1992.

Therefore, the idea that this was an established system of procedure that had been working in the EAT for years is certainly not in accordance with that statement. He continued that this was in use during the summer and autumn of 1992 without, so far as Mr. Justice Wood was concerned, any apparently adverse reaction from the Lord Chancellor.

Earl Russell

My Lords, while I was looking for something, I found in Mr. Justice Wood's letter of 30th June 1992 these words: In order to eliminate the present differences of view about the proper understanding of Rule 3 which undoubtedly exist". I find it hard to reconcile those words with the view that Mr. Justice Wood was refusing to apply the rule as he understood it.

The Lord Chancellor

My Lords, all I can tell your Lordships is that I was perfectly content with the rule as he understood it. The meaning of the rule as he understood it is set out in great detail in that long letter which preceded mine. The differences of view about the rule to which Mr. Justice Wood referred in the letter to which the noble Earl has just referred are differences of view which were being considered at the time he was initiating his new procedure on 1st May 1992. Once he had set that up, so far as I was concerned, there was no question about the meaning of the rule. I was not arguing about the meaning of the rule. I was arguing that the rule should be applied and asking him for an assurance that the rule would be applied.

I had been setting out the new procedure set up in May 1992, namely: On receipt the notice of appeal was examined by the Registrar. If a clear point of law was raised by the notice the appeal would be set down in the full hearing list. If the notice was not clear or was otherwise unsatisfactory the Registrar sent a proforma letter asking the appellant to reconsider and, if necessary, to amend his notice. It was also made clear that if no reply was received within 28 days the appeal would be deemed to have been withdrawn. If the notice of appeal, whether amended or not, was re-served, the Registrar could help an appellant in person to rephrase some aspects, but usually the file was submitted to the judge directly". These are the important parts: The judge had three options: first, he could send the appeal forward to a full hearing". There is no difficulty about that. Secondly, if he considered that justice required some further investigation in the presence of the appellant he could direct that it was to be listed for a preliminary hearing". That was the third option in his long letter. The third option in this catalogue is the second option in the letter. Thirdly, if he took the view that the proposed appeal was hopeless the appeal would be dismissed by the tribunal on the papers without a hearing". That accords exactly with Rule 3(2). However any order made in this way expressly provided that application could be made within 28 days for an oral hearing ex parte. This procedure was adopted in London from 1st May 1992". If that is correct—and I have no reason to suppose that it is incorrect—then in cases where the appeal had been decided by the judge to be clearly hopeless, raising no jurisdiction point, and where the rule then required that no further steps would be taken, the tribunal in London was always adding that an application could be made for an oral hearing within 28 days.

I can understand in the light of that why Mr Justice Wood was reluctant to give me the undertaking that I sought because in fact he was allowing for oral preliminary hearings to take place in a case which he regarded as plainly hopeless on the papers. In my submission, Rule 3 required that no further steps should be taken in that case in the way of any kind of oral hearing.

That is the situation so far as I am concerned. I consider that in the exercise of my office as Lord Chancellor I was entitled to seek an assurance from Mr. Justice Wood that he apply the rules which Parliament had provided; and that if he were not to give me such assurance, the position that he took up should be explained. Of course if I wished to take the matter further, I would need to resort to judicial proceedings by way of a judicial review.

Lord Donaldson of Lymington

My Lords, is the noble and learned Lord the Lord Chancellor aware that the EAT is a superior court of record and not susceptible to judicial review?

The Lord Chancellor

My Lords, I understand that it is a superior court of record. However, I believe that the question of judicial review in respect of it would have been a matter for consideration in relation to the procedure that was adopted. I did not, of course, take this further. I said that I would have to consider what else I could do about it. But I believe that if I wished to take the matter further, I would have had to consider further procedure.

I, of course, know that the Employment Appeal Tribunal is a superior court of record. That is made plain in the statutory provisions. But obviously I was anxious that the matter would be resolved. I said, and I adhere to the view, that there was hope for me in the fact that Mr. Justice Wood said in his letter that the procedures were being refined. I hoped—and hoped most fervently—that the result would be that he would be able to give me the undertaking which I sought: that the rules enacted by Parliament affecting his tribunal would be fully applied by him.

Many noble Lords have said that this has been a most unhappy debate. Your Lordships will understand that it has been a most unhappy matter for me ever since this matter arose. I certainly very greatly regret that this arose between me and Mr. Justice Wood; and certainly looking back on it now with hindsight I wish that I had expressed myself more plainly. But I am absolutely satisfied that the basic matter that I was seeking is a matter to which I was well entitled under the law of this land and was in no way prejudicial to the proper judicial independence of the judge. I am a strong believer in the independence of the judiciary individually and as a whole; and so long as I have the privilege of holding the office which I do, I shall do everything in my power to uphold that. But it is part of the principle that that independence is exercised according to and under the rule of law and I have responsibility for that also.

Some wider matters have been raised in the debate, going beyond what was mentioned in the Question. The office of the Lord Chancellor is a difficult one: I can attest to that. However, I do not think that it is easy to work out, against the background of our system, a good alternative that would protect, as this office does, the independence of the judiciary. I believe that it is important that in this country the Supply for the Crown is voted by the House of Commons. Therefore it is necessary that there be some person accountable to Parliament who has responsibility for the courts. I believe that the arrangement under which the Lord Chancellor, as head of the judiciary, is also responsible to Parliament for the administration of the courts is probably as good an arrangement as we can achieve. I am open to detailed suggestions as to how this might be done. I know that some of my noble and learned friends in previous incarnations have been asked to provide me with some detail of their thoughts on these matters. However, I know that it is so difficult that the thoughts in writing are still awaited.

As I said at the outset, I am extremely grateful to the noble Lord, Lord Irvine of Lairg, for raising the matter, and also for the manner in which he raised it. It was put forward in a fair manner, giving me an opportunity to explain the matter fully. I greatly regret that I have taken much longer in doing so than I should normally have liked to, but I regard the matter as of fundamental importance, as your Lordships have done. It is important that your Lordships should understand that I was not telling this judge how to do his work. All I was telling him was that I wished him to give me the assurance that he was applying the rules which had been enacted under the authority of Parliament by my predecessors as Lord Chancellor.

I utterly repudiate any suggestion that I have wrongfully interfered with the independence of the judiciary or that I have in any way misled your Lordships at any time in the answers that I have given. I thoroughly believe that my answer was as truthful and as full as I could possibly give in the circumstances of an oral Question.

I also take the view that these are matters of importance about which we need continually to be on our guard. I am extremely sorry if I have caused any offence whatever to Mr Justice Wood. If I could have thought of better language, with hindsight I would have used it. But I was thinking entirely of the position which he had as a judge in a statutory tribunal with statutory rules. That is what I had in mind, nothing else. The letter was directed to him and not to anyone else.

I am grateful to your Lordships for your patience in listening to this, I do not wish to trespass on that patience any longer.

House adjourned at twelve minutes before one o'clock.