§ 3.8 p.m.
§ Lord Irvine of Lairg rose to call attention to the relationship between the judiciary, the legislature and the executive, and to judicial participation in public controversy; and to move for Papers.
§ The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I believe that this debate is timely. It comes when the country must believe that there is unprecedented antagonism between the judges and the Government both over judicial review of ministerial decisions and the restrictions which the Government propose on judicial discretion in sentencing. Certainly, there has been a long string of decisions striking down ministerial actions as unlawful. That has even led to some Conservative politicians calling judicial review itself into question. The public must be perplexed by what they perceive as a major clash over the distinct roles of Parliament, Ministers and the judges.
§ It is time to return to first principles. The British Constitution, largely unwritten, is firmly based upon the separation of powers. Parliament makes the laws, the judiciary interprets them and the judiciary develops the common law. Parliament also confers all manner of powers on the executive and other bodies, and it is for 1255 the courts to ensure that those powers are neither exceeded nor abused but exercised lawfully. Judicial review promotes the rule of law.
§ The separation of powers represents a delicate balance. Its success requires continued public confidence in the political impartiality of the judiciary. It is precisely because of that public confidence that judges are entrusted by government with inquiries into areas of the highest political sensitivity. To attack their reports for party political reasons is to undermine the very purpose of entrusting these inquiries to senior judges.
§ I do not believe that there is any question as to the political impartiality of the judiciary in the 1990s. It is true that in the late 1970s the Court of Appeal, responding to sympathetic withdrawals of labour and secondary blacking, restricted the immunities from liability for industrial action conferred by Parliament. And restricted them (it was said) inconsistently with the intention of Parliament. The unions claimed judicial fouls. But in a landmark case in 1980, Duport v. Sirs, your Lordships' House in its judicial capacity affirmed that it was the judges' duty to apply the statutes, however unpalatable and whatever their own perception of where the public interest lay. Lord Diplock pointed to the risk of judges straying beyond their constitutional role as interpreter of the enacted law and assuming a power to decide at their own discretion whether or not to apply the general law to a particular case.
§ In exercising their powers of judicial review, the judges should never give grounds for the public to believe that they intend to reverse government policies which they dislike. That is why I regard as unwise observations off the Bench by eminent judges that the courts have reacted to the increase in the powers claimed by government by being more active themselves, and adding for good measure that this has become all the more important at a time of one-party government. It suggests to ordinary people a judicial invasion of the legislature's turf.
I regard as equally unwise a number of recent extra-judicial statements by distinguished judges that in exceptional cases the courts may be entitled to hold invalid statutes duly passed by Parliament. This causes ordinary people not only to believe that judges may have got over and above themselves but that perhaps they are exercising a political function in judicial review cases instead of simply upholding the rule of law. The idea that an Act of Parliament could be held invalid by the judges became obsolete when the supremacy of Parliament was finally established by the Revolution of 1688. Lord Reid, one of the greatest Law Lords of our century, who held that office for 26 years from 1948 to 1974, said this:
It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid".
§ I say the same about the present Home Secretary's sentencing proposals if ever Parliament could be persuaded, which I doubt, to put them on the statute book. Your Lordships' House debated these proposals on 23rd May in a debate initiated by the noble and learned Lord, Lord Taylor of Gosforth, the former Lord Chief Justice, whose outstanding occupancy of that office has been tragically abbreviated. I take this opportunity to welcome the appointments of the noble and learned Lords, Lord Bingham as Lord Chief Justice and Lord Woolf as Master of the Rolls, both lawyers of the highest distinction and independence of mind. I share the misgivings expressed by many noble Lords in the debate of the noble and learned Lord, Lord Taylor. The Home Secretary's proposals are ill-judged. To put legislative straitjackets on the judges' discretion to sentence for serious crimes is almost always a mistake. The Home Secretary has already put the prison population up from 40,000 to 55,000. These proposals, if implemented, could easily push the prison population up to 80,000 or more. The present Home Secretary gives every impression of playing politics with the administration of justice.
But if Parliament were to legislate for these proposals it would be neither unconstitutional nor prejudicial to the independence of the judiciary. Parliament is free to fix both minimum and maximum sentences. To claim that judicial independence is as a result threatened is to confuse. As Chief Justice Holt said in the very first year of the 18th century,
an Act of Parliament can do no wrong, though it may do several things that look pretty odd".
§ I take this opportunity to pay tribute to the high quality of judicial review in this country. It has so often rightly held the executive to account and improved the quality of administrative decision making. It promotes the rule of law. Judicial review is not an appellate procedure. The court does not substitute its opinion for that of the decision maker on whom Parliament has conferred the power of decision. The court rules only on the legality of a decision, not its correctness. Courts strike down a discretionary decision, not otherwise unlawful, only if it can be stigmatised in the literal sense as irrational. Of course, there are sophisticated levels of professional disagreement among lawyers whether the judges may in some cases have departed somewhat from these basic principles, which I would describe as judicial self-restraint combined with an acceptance of the sovereignty of Parliament. I drew attention to some of these disagreements in a public lecture last year. But I take this opportunity to make plain that it is for the judges, and ultimately your Lordships' House in its judicial capacity, to define these principles. I would be hostile to any legislative attempt to restrict judicial review, which I believe directly promotes the rule of law.
I turn to judicial participation in public controversy. The 5th June 1996 seems a long way away from the Kilmuir Rules which were designed to ban the judiciary from speaking to the media. These rules were set out in a letter written in 1955 by the then Lord Chancellor, Viscount Kilmuir. He wrote that as a general rule it was
undesirable for members of the judiciary to broadcast on the wireless or to appear on television. Today, Lord Kilmuir's language has a period ring. I quote:
So long as a judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism".
The noble and learned Lord on the Woolsack took office in 1987. He took a different view. In an interview with the Daily Telegraph on 3rd November of that year he said:
If a person has been appointed a judge and that trust has been placed in him. I think he should be able to decide what to do if he is approached by the media".
§ In other words, he is appointed for his judgment and he should be trusted to have the judgment to deal sensibly with the media.
I imagine that the noble and learned Lord would have taken the view—rightly I think—that since the Kilmuir Rules had no statutory basis they ceased to be effective when he gave his interview on 3rd November 1987. At any rate, two years later, on 16th October 1989, in a letter to the then Lord Chief Justice, Lord Lane, which was copied to all judges and full-time judicial officers in England and Wales, the noble and learned Lord replaced the Kilmuir Rules with his own advice to the judges. He wrote that judges themselves should be left to decide whether, and on what conditions, they should give interviews to journalists or appear on radio or television. He recognised that there were cases in which the media in a spirit of inquiry wished to explore matters affecting the legal system so as to secure a wider public understanding of the working of the law, and that the value of such programmes might be enhanced by the participation of judges. He sounded this cautionary note, however:
The nature of their office makes it necessary for judges to be very cautious about their exposure to the media, and they must avoid public statements either on general issues or particular cases which might cast any doubt on their complete impartiality. Above all they should avoid any involvement, either direct or indirect, in issues which are or might become politically controversial".
And he added this further caveat:
As a general principle, if a judge, having considered all the relevant circumstances, including such matters as the reputation of the source of the invitation as well as the subject matter of the interview, has any serious doubts about the wisdom of participating, he or she should decline the invitation".
§ So the judges should follow a principle of "safety first".
He excluded from the new permission, however, "pronouncements by judges on individual cases". He advised:
When a judge has decided a case or imposed a particular sentence, in my opinion it is not appropriate for him, or any of his brother judges, to discuss it publicly out of court, whether or not the matter has finally been disposed of on appeal".
§ In my view, the new advice expresses a right balance for today.
I turn to the role of the Law Lords, both sitting and retired, in your Lordships' House. Their expertise in the administration of justice allows them to make an invaluable contribution to our debates on that subject. And sometimes strong language is used. I well
remember the judicial hostility to the noble and learned Lord's Green Paper of January 1989 under which the Government were claiming to decide who should have rights of audience in the higher courts, so leading to a break in the Bar's monopoly. The noble and learned Lord, Lord Lane, then the Lord Chief Justice, thought that the very foundations of our democracy were being destroyed by this proposal. He observed:
Loss of freedom seldom happens overnight … Oppression does not stand on the doorstep with a toothbrush moustache and a swastika armband. It creeps up insidiously; it creeps up step by step; and all of a sudden the unfortunate citizen realises that it has gone".
§ I am and was a great admirer of the noble and learned Lord, Lord Lane, and I do not question his right to speak in strong terms on a subject about which he felt so strongly. For myself, it certainly had not occurred to me that the Bar's then exclusive rights of audience in the High Court were of quite that constitutional importance.
§ Many judges have criticised the Government's insistence on keeping the mandatory sentence of life imprisonment for murder, notably the noble and learned Lords, Lord Lane, Lord Taylor and Lord Ackner, whom I am pleased to see in his place. I have already mentioned your Lordships' debate on 23rd May on the Home Secretary's White Paper.
I am firmly of the view that in relation to the administration of justice, and in relation to sentencing, where the expertise of the judges is obvious, they are well entitled to express their views and seek to influence Parliament. The judges have been vindicated in their criticisms before. The noble and learned Lord, Lord Taylor, strongly attacked some provisions of the Criminal Justice Act 1991 as,
counter to all principles of good sentencing policy".
§ Again, the issue was the restriction of the discretion of judges in sentencing. The noble and learned Lord was shortly proved right and the legislation was repealed. I repeat that I see no reason at all why judges should not say that statute laws either will not work or are not working. They have a direct, practical experience of the administration of justice day-to-day which makes their contribution to public debate on that subject of high value.
§ However, as I have said, it is important to distinguish between what they can argue is unwise; let it be disastrously unwise; and what they can properly claim to be unconstitutional. Just as Parliament is entitled to fix maximum sentences, so it is entitled to fix minimum sentences. Certainly the latter removes judicial discretion but it does not affect judicial independence. The duty of the judges is to apply the law as determined by Parliament; and what judicial independence means, properly understood, is their right not to be subject to any interference with their independence in carrying out that task.
Moreover, many judges spoke out against the Government's cuts in eligibility for legal aid. Also many judges, including the noble and learned Lords, Lord Bingham and Lord Taylor, have publicly called for incorporation of the European Convention on Human Rights. I am less confident about recent extra-judicial statements that if Parliament does not
legislate a law of privacy, then the judges will invent—or perhaps I should say develop—one. This is a hard question. Judges do make law. As Lord Reid once said—you would believe in fairy tales if you thought otherwise. But what is the boundary between legitimate development of the law by judges and what counts as illegitimate legislation by judges? The general understanding of English law is that it does not recognise a generalised right to privacy. Should the judges make one? Only, I would say, if there were a clear community consensus that way. If there is no such consensus—and I am sure there is none—then I say that if the judges invented a law of privacy, they would seem to be taking sides. The result would be to imperil their major asset: their reputation for impartiality. I agree with Lord Reid:
When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in".
§ I say that judges should think hard before they don the mantle of moral leadership through their judgments according to law.
§ So statements that judges can invent or make a law protecting privacy, where there is no consensus for it, sounds to ordinary people uncomfortably like a judicial threat to legislate. It must be for Parliament to decide whether self-regulation of the press should be replaced by a law of privacy.
Obviously there is a fine line to be drawn between judicial participation in public controversy of a political nature—and the noble and learned Lord's letter of 16th October 1989 advised that,
above all judges should avoid any involvement either direct or indirect in the issues which are or might become politically controversial".
§ There is a distinction between judicial participation in public controversy of a political nature and the judges' participation in public controversy concerning the effective administration of justice. The debates about legal aid, maximum and minimum sentences and the size of the prison population all concern the administration of justice. But at the same time they are issues of deep political controversy. For myself, I think that the judges would be wise to confine themselves to controversy about the administration of justice. If they engage more extensively in political controversy, they risk undermining public confidence in their political impartiality. There is a basic tension between judicial engagement in political controversy and public confidence in the judges' political impartiality in deciding disputes according to law.
§ I hope and believe that today's debate will be significant. I am heartened by the number of your Lordships who have chosen to take part. In these days of high profile judicial review cases and public controversy between Ministers and judges there is understandable public concern. The separation of powers is a crucial but delicate component of our unwritten constitution. Another is the judges' reputation for political impartiality. I have no wish, and see no need, to censor the judges to maintain that reputation. My only plea is for self-restraint by the judges so as to conserve their 1260 reputation for political impartiality in the decisions which they make according to law; and for self-restraint by Ministers when addressing decisions of judges, which have struck down their decisions as unlawful. It is only if that self-restraint is displayed on both sides that the public will have confidence that the separation of powers is alive and well and working. I beg to move for Papers.
§ 3.30 p.m.
§ Lord Renton
My Lords, I am sure that all noble Lords feel indebted to the noble Lord, Lord Irvine of Lairg, for having raised this important constitutional matter. The relationship between the legislature, the executive and the judiciary has been considered by lawyers, especially constitutional lawyers, for hundreds of years. I like to think that in our country we have got it about right.
I am not in a position to answer every point made by the noble Lord because it was only yesterday, when I happened to see him at about this time of day outside your Lordships' Chamber, that he suggested I should put my name down to speak in the debate. I did not expect to be the one immediately to follow him. However, I believe that he hit the crux of the matter in his concluding passages when he referred to the need for restraint. Let there be freedom of expression in matters of public importance but it largely depends on how that is done.
Before going further, I wish to endorse the tribute which the noble Lord paid to the retiring Lord Chief Justice, the noble and learned Lord, Lord Taylor of Gosforth. I sat at his feet when he was Chairman of the Bar many years ago, and I was an ex-officio member of the Bar Council. I acquired the greatest admiration for him, as did all of us at the Bar.
The noble and learned Lord, Lord Bingham, the new Lord Chief Justice, was born some years after I was called to the Bar. That does not prevent me from having learned a bit about him—second hand, of course—and being in a position to congratulate and welcome him. I also congratulate and welcome the noble and learned Lord, Lord Woolf, as Master of the Rolls. Perhaps I may say in passing that I believe the noble and learned Lord, Lord Denning (who, alas, now in advanced old age is so incapacitated that he cannot take part in today's debate) did a most valuable service as Master of the Rolls. Whether or not the noble and learned Lord, Lord Woolf, believes that he is following in his footsteps, I hope that he will not ignore the great contributions which the noble and learned Lord, Lord Denning, made in his time.
The paramount factor in this important debate is the independence of the judiciary coupled with its impartiality. The judges must be not only independent and impartial but must manifestly be seen to be so. Broadly speaking, no one doubts the independence or impartiality of our judiciary.
Your Lordships' House has the immense advantage of having as Members not only Bishops and Law Lords and ex-Cabinet Ministers, but those who have risen to the top of each of the professions, of industry and 1261 commerce, the Armed Forces, the public service, the Civil Service and the arts. In my opinion, none of those eminent people ought to be muzzled when speaking in your Lordships' House.
Members of the higher judiciary in this House are free to give our democracy the benefit of their most valuable experience, in particular when changes in the law are proposed by the executive or are thought by public or judicial opinion to be necessary. Therefore, I did not blame the noble and learned Lord, Lord Taylor of Gosforth, for giving us the benefit of his opinion on the White Paper, whether or not we agreed with him. I do not suggest that we should have a further debate like the valuable short debate on 23rd May to which the noble Lord, Lord Irvine, referred. However, I must mention a feature of the debate which was not touched upon but which is vital to the subject of today's debate. It is not the question of whether judges should be required by Act of Parliament to send to prison perhaps for life offenders who have committed more than two serious offences. The problem is that for years there has been an assumption, even among some members of the judiciary, that prison sentences deter crime; that serious offenders deserve to be sent to prison anyway; that they will benefit from it; and that they may be cured and deterred from committing further offences. Alas, that does not always happen.
I speak having been in the Home Office for four-and-a-half years with the late Lord Butler of Saffron Walden and during much of that time responsible for the prison system. I can say that prisons are universities of crime and we cannot get away from that. They are and for years have been so overcrowded that prison officers find it difficult to practise the art of redemption. As a result, the success rate—that is, the proportion of former prisoners who commit no further crime after release—is still too low. Reconviction rates vary with age; but, even among those who have been in prison a number of times and who one would have thought would have had enough, according to 1994 statistics 45 per cent. come out and commit serious offences.
Therefore, the assumption that some prison sentences should be automatic is, perhaps I may say with deep respect, doubtful and to that extent one sympathised with the noble and learned Lord, Lord Taylor. However, discussions have overlooked the fact that the Home Secretary proposes that in exceptional circumstances judges need not send people to prison after three or more serious offences—sometimes for life—so in that way judicial discretion would be preserved. I hope that I may be forgiven for going over that part of the ground again but it is necessary to bear that fact in mind.
If judges today, with their knowledge of all the circumstances of the offence, the offender's previous record and character and with such knowledge as they manage to acquire of what happens in prisons, decide to keep people out of prison if that can be avoided I should be the last to blame them. The position can be summed up as follows: Parliament must give enough power to the judges to ensure that crime is reduced as well as enough power and discretion to ensure that justice is 1262 done. However, judges must be free—at any rate, those who are Members of your Lordships' House—to make their views known in the light of their experience.
I turn to one or two issues which were raised by the noble Lord, Lord Irvine of Lairg. I am not sure whether I am right to call him "learned" and perhaps being on this side of the House I do not look forward to having to do so. He is right to say that the public should be confident that judges are not subject to ministerial pressure. I must say that I do not believe that the judges have been so subject.
My noble and learned friend the Lord Chancellor, if I may say so, is a paradoxical denial of the separation of powers. He has judicial duties to perform; as a member of the legislature, he presides over your Lordships' House; and he is a Member of the Cabinet. He manages to combine those duties admirably, as did his predecessors, without giving rise to any conflict of the kind which the noble Lord, Lord Irvine, mentioned.
Reference was made to earlier times when Lord Kilmuir and others tried to lay down a rule that judges should never express their opinions except when giving their decisions in court. That is a good general rule. But the senior members of the judiciary, like the Lord Chief Justice and the Master of the Rolls and noble and learned Lords who are members of the Judicial Committee of your Lordships' House, so long as they exercise restraint and do not appear to be politically motivated, should have a degree of freedom of speech.
§ 3.42 p.m.
§ Lord Rodgers of Quarry Bank
My Lords, I join with the noble Lord, Lord Renton, in welcoming this debate. We are all most grateful to the noble Lord, Lord Irvine of Lairg, for raising matters here which he raised previously last October in a seminar for lawyers.
He is right to bring the issues here, both because this is one of the two Chambers of Parliament and I should like to think because some of us, perhaps very few today, are not lawyers. I speak as somebody with no experience whatever of the law but as one who for 25 years has served in the legislature in one Chamber or another and for a period of 11 years in part of the executive branch as a member of a government.
I listened with very great care to the noble Lord, Lord Irvine. I felt that there was a message of good will towards the judges wrapped round a gentle but clear warning. I hope that he will not mind me saying, because my mind was running very much in the same way as that of the noble Lord, Lord Renton, that he spoke as much today as a member of a government in waiting who hope to be, within a year, sitting on the other side of the Chamber as a distinguished member of the Bar and a distinguished Member of this House.
Looking back and recollecting now in tranquillity those years in government, I must say that I have no doubt whatever that all governments abuse power, either through inadvertence, impatience or arrogance. If the balance of our constitution needs to be redressed, it is against the executive. If the legislature cannot do that or fails to do it, then inevitably, in one way or another, the judiciary will do it.
1263 It is perhaps an axiom that good lawyers almost always make bad politicians. In that respect, the need for judges not to become involved in unnecessary public dispute is one which I support. But as I say, if the balance is to be corrected, it needs to be corrected by both Chambers of Parliament and by the judiciary in their different ways seeking to redress the balance against the executive.
I hope that I shall not upset the noble Lord, Lord Irvine, by reminding him of a debate which we had almost exactly a year ago. It was a debate on the conditional fee agreement order. An amendment was tabled in the name of the noble and learned Lord, Lord Ackner. I had no formed view of the matter and so I listened to an extremely eloquent speech by the noble Lord, Lord Irvine of Lairg. He persuaded me to support the amendment and I went into the Lobby accordingly.
But I must remind the noble Lord that he was not there and nor were most members of the Opposition Front Bench. The amendment was lost by 100 votes to 105. I was extremely concerned about why that should be the case. I learned afterwards that the Opposition were scared that voting for an amendment, an amendment which they strongly supported on its merits, could embarrass them when they were in government if the new Opposition did likewise on a statutory instrument.
I mention that because I believe that there is something in common in the thoughts behind the decision made a year ago and the failure of the noble Lord to vote at that time and his remarks today, though for a very large part, I agree with them. But to fail to vote on that amendment a year ago was irresponsible. First, it is always dangerous to presume that one will be in government because it tempts fate; and secondly—and this is most relevant to our discussion today—it is the duty of us all in this House to judge issues on their merits or according to our loyalties and then to use the procedures properly available to us. If we in this Chamber and those in another place neglect those opportunities, it is inevitable that, in one way or another, the judiciary will fulfil a larger role as a check on the arrogance of the executive which is sometimes the case.
My view is simple: that Britain would be governed better if the legislature and judiciary, in their different ways, exercised their powers to the full, particularly in the protection of the citizen, even if that irritates and angers the government of the day. We may spend a great deal of time debating the shortcomings of the legislature: the extent to which the House of Commons, elected under the present system, is unrepresentative of the opinion of the nation; the case for reforming your Lordships' House while maintaining its diversity and freedom of expression; and particularly the stultifying effect of a rigid party system, especially in another place.
My view is that it would be better for this House and for the noble Lord, Lord Irvine of Lairg, right though it was for him to raise those issues today, to give his mind to how best to reform the legislature as a check on the 1264 actions of the executive rather than worrying too much at this juncture about the actions or words of the judges. The duty of the judiciary is to protect the rule of law. The degree of intervention in what might be seen to be public controversy may ebb and flow. But everything considered, I believe that in recent times—in the past 30 years—it has seldom or much over-reached itself.
The noble Lord, Lord Irvine, referred to judicial review. I understand that in 1976 there were 500 applications for judicial review and that in 1993 there were 3,000. I do not have later figures. Of those 3,000 applications, about one-half go forward and one-quarter of those are allowed; that is, 236 in 1993. That does not seem to me an excessive number, especially as some do not relate to decisions of government or statutory bodies but to other bodies which are performing a public function.
I am chairman, although I do not speak as such today, of the Advertising Standards Authority which is the consumer protection arm of self-regulation in the non-broadcasting advertising media. It operates in the public interest and it is the consumer protection arm of a self-regulating system. It is a small organisation of modest resources and it is non-statutory, but it is subject to judicial review.
There have been times during my tenure of the chairmanship that I have been irritated, even angry, by what seems to me the easy access to judicial review of those who might disagree with the decisions of my authority. But I believe it to be right. If it is right in that sector where some large organisations with greater resources can call on judicial review of the decisions made by my organisation, how much more so is it right that judicial review should not be inhibited in any way in dealing with matters of government?
As the noble Lord, Lord Irvine, said, the judiciary today is a great deal more open than it was once upon a time. We owe much to the noble and learned Lord, Lord Taylor of Gosforth, the former Lord Chief Justice. Much of the unnecessary mystique has gone. We would not pretend—indeed, I would certainly not do so—that judges can do no wrong. They certainly make fools of themselves from time to time and they also show their prejudices. But, on balance, the role of the judiciary at present in relation to the executive is about right. I see no current fear of judicial "supremacism". There is far more to worry about concerning the balance between the legislature and the executive.
As I said, I welcome today's debate. I do not share the view of the noble Lord, Lord Irvine, that judges are losing the public's confidence through their failure to exercise impartiality. But they would lose it if they failed to apply the same rules to the decisions of an incoming government as they have applied to those of the present one. If that is the fear of the noble Lord, Lord Irvine, I do not share it.
§ 3.52 p.m.
§ Lord Wilberforce
My Lords, the noble Lord, Lord Irvine of Lairg, introduced a very large and wide-ranging subject, but also one of great importance. It has been a great opportunity for this House and for 1265 noble Lords to hear his own views on this very important matter which he developed with great expertise, as one would expect, but also, if I may say so, with great moderation.
For my part, I propose to limit my few observations to the less exciting part of the noble Lord's Motion—that is to say, not that relating to controversy with Ministers, but with judicial review. I do so because I wish to concentrate more on what judges are doing rather than on what they are saying. It may be duller, but it is just as important.
The questions that I want to put—and they were really posed by the noble Lord in his opening speech—are: has judicial review of administrative acts by the judges got out of hand? Are the judges straying (to borrow the noble Lord's words) beyond their constitutional role? Are the judges exercising a political function in judicial review, or are they not? Those are the questions that I believe we must face. If, like me, any noble Lords prefer, when reading a novel or detective story, to look to the last page first, perhaps I may tell your Lordships at once that the answer that I shall try to give to those questions is no.
As your Lordships know, judicial review is a developing subject. Indeed, it has been moving all the time and has existed for many hundreds of years. However, in its modern form it dates from the judicial decision of this House in 1968 in Conway v. Rimmer. Ever since then it has been on a path of expansion. There has been a great extension of matters which can be reviewed: from by-laws or decisions of justices to decisions of the biggest enterprises, of administrative organisations, of Ministers and Secretaries of State right up to high profile matters—indeed, not little questions of administrative law.
There has been a great extension of the grounds upon which the courts seek to question administrative acts or to examine them ranging from improper purposes, ultra vires acts to neglect of relevant considerations, irrational decisions, and zealous applications of rules. All that has taken place under judicial decision, without any assistance at all—and I should like your Lordships to register this fact—from Parliament.
There have been a number of reports from the Law Commission on the subject invited by the Lord Chancellor of the day. We had one in 1969 on administrative law generally. There was a debate in this House, although I do not remember the exact date—the noble and learned Lord, Lord Hailsham of Saint Marylebone may remember it because he has a better memory than I do—on the question, partly, of whether there ought to be some statement by Parliament of the substantive grounds for interference with and controlling administrative acts. The noble and learned Lord was against that at the time and, in due course, another line was taken.
The noble Lord, Lord Rodgers of Quarry Bank, signalled the year 1976 as being an important one in the history of judicial review. Indeed, in that year the Law Commission produced another report which resulted in a change in the rules of court. It swept away all sorts of antiquated rules which had tied the hands of 1266 courts for many years. That was a very beneficial reform put before the House by the noble and learned Lord and which was carried. The judges were left to develop the substance of the law without parliamentary admonition or parliamentary control. Little wonder that the judges were a bit enthusiastic at times about that great tool which had been put into their hands. Perhaps I may translate from the Latin: it is the function of a good judge to amplify his jurisdiction. The judges certainly took advantage of that.
I should just like to remind your Lordships that we are not alone in the field. We are not an excrescence, as it were, on a generally acquiescent world of legislative measures. All other countries in Europe have very substantial systems of control of administrative acts and control over the Executive. They all have a body of administrative law and they all have a system of administrative courts. That fact was brought home to me very vividly in 1945 when I went, in uniform, into Berlin to control that great city and the western zone of Germany. Our headquarters were situated in the Supreme Administrative Court—the Oberverwaltungsgericht. It was a most splendid building; indeed, there was nothing like it in this country. It consisted of storey after storey with lifts and every kind of facility. As I said, there was nothing of that sort in this country.
In every other country there is a right to challenge legislation either in formation or after it has been made. Of course, that right to challenge legislation is linked very closely with the existence in every case of a written constitution which sets down the ground rules within which challenges can be made. It is very interesting to note that the only other western country which does not have a constitution, along with us, is Israel. Very much like this country, Israel is experiencing great difficulty in formulating the rules according to which judges ought to supervise and control administrative acts. There is a lesson for us there, or, at any rate, an explanation of what is sometimes thought to be our weakness—the vagueness of the jurisdiction of the courts and the risk of excess—because we do not have a written constitution setting down the ground rules.
There is one other point worth mentioning when one is trying to appraise the value of judicial review in this country; namely, that we have a much better system of examination of administrative acts in process. We have the right to challenge decisions before they take effect to a very great extent. We have the right to challenge a decision at public inquiries. Indeed, that is very extensive as we know to our cost in the Channel Tunnel exercise. We have very extensive consultation of interest groups—almost too much, some may think, at one time. We have very much more powerfully organised interest groups than any other western country. They are given a very strong position of consultation while administration is being formed. We also have very great accessibility to public officials and, in modern times at any rate, some loosening of the constraints of secrecy.
These are all factors which one has to bear in mind when considering the force and effect of judicial control of administrative acts. But given all that, since 1968 there is no doubt—I am entirely in agreement with the 1267 noble Lord on this—that there has been a large expansion of the sphere of judicial interference. There are several clear reasons why that has taken place. First, a mass of legislation now emerges from Parliament, some of it ill thought out, ill phrased and ill digested, and which often gives extensive powers to legislate by regulation. Judges have to cope with that and to criticise it to a greater extent than was ever the case in the 19th century.
Secondly, there are the vacua which are left in legislation which sometimes judges are called upon to fill. On this point, I venture respectfully to differ from the noble Lord. It is the only point on which I differ from him. I think that privacy is one of those areas where it may be appropriate for judges to take a hand, as it were. Parliament has consistently refused or been unable to deal with that matter. It is a consistent and growing difficulty and no doubt with sufficient caution—I say this with great care in the presence of the noble and learned Lord the Master of the Rolls—the courts may find it necessary to define in some way the limits of privacy of an individual in this country, if Parliament will not act.
The third factor which has caused the expansion of judicial review is the considerably greater public demand for limitation of executive powers. The public are much more expressive. They are informed by newspapers of what is taking place, and grievances are much more heavily highlighted in the press. The demand for control, in suitable cases, of executive excesses has grown. I do not hesitate to say that judges have become much more outward looking and much more concerned with social needs and social imperatives. Where are we now, that being the picture? Is there need for corrective action? I was glad to hear the noble Lord say that he was not in favour of legislation constraining the process of judicial review. I am entirely in agreement with him on that.
What else could be done? We could have a written constitution. I do not spend much time on that because it is unrealistic. It is not so unrealistic perhaps to presuppose the introduction of a Bill of Rights, whether the European Bill of Rights or any other. However, we have to face up to the fact that if we bring the European Convention on Human Rights or any Bill of Rights into operation, that will extend the power of judges and not restrain it because judges will be called upon to give interpretation to all sorts of vague expressions which are inevitably used in Bills of Rights, and which are found in the European Convention and which are really policy decisions. Judges will be compelled to decide these questions—for example, questions about the right to life, the right to privacy, freedom of expression and many others that are scattered about us. Judges would have to deal with those questions if that were made part of our law.
What rests apart from that? There is restraint. Everyone would join with the noble Lord in his appeal for judicial restraint. I am entirely in agreement with him on that. I do not take much alarm at some of the excursions—either judicial or extra-judicial—which have occurred in recent times. There have been attempts 1268 to play with Continental ideas such as proportionality or legitimate expectation and others which have not yet taken root in this country. Some judges are perhaps inclined to toy with them, but I believe—and generally in relation to development, and perhaps enthusiasm—that we can safely trust the Court of Appeal and the House of Lords to prohibit any possibly dangerous growths.
Indeed, I think it is right to say that following a period of enthusiastic expansion of judicial review since 1968 there are signs now of a rather more cautious attitude in the higher courts, in the Court of Appeal and in your Lordships' Appellate Committee. They are alive to the wisdom of not letting a valuable instrument of control get out of hand. We need to keep a continuous watch on what is called the standard of review—that is a technical expression which I shall not expand upon—to be applied to administrative acts. We need perhaps to allow ourselves greater comparative studies to see what other countries are doing. Perhaps we need to consider setting up not an administrative court but the enlistment of specialist judges to handle this delicate matter.
As to that other question of the supremacy of Parliament, that is simply another health scare based on exploratory, extra-judicial utterances. As regards the law, what Lord Reid said in Madzimbamuto in 1969—the noble Lord quoted the passage from that judgment—and what Lord Wright said in Liversedge v. Anderson is written in stone. There is no question of that being eroded by anything that judges do or are likely to do. Let us not lose our nerve. Let us keep to the path the judges have shown they can tread in the past.
§ 4.5 p.m.
§ Lord Mishcon
My Lords, from these Back Benches I thank my noble friend Lord Irvine of Lairg for making possible this interesting constitutional debate. I thought his speech was quite outstanding and showed that he had (I thought meritoriously) given a great deal of thought to the matters which might be his responsibility in future years. I can well understand why the noble Lord, Lord Rodgers, did not find it necessary to take the same line!
We are singularly fortunate in our judiciary. If I may say so at once, I thought that that was very much the theme of my noble friend's reference to the judiciary. I apologise for again mentioning the name of the noble Lord, Lord Rodgers, but I did not recognise what was supposed to be a paraphrase of my noble friend's remarks, as I did not find it a paraphrase at all; I found it an inaccurate account. I say that we are fortunate in our judiciary not only for the character of most of our judges but also because of the sacrifice—we often forget this—that a leading Silk makes when he accepts the great honour of judicial appointment.
These days that appointment is usually given to people in their early 40s. Considerations of trying to look after dependants when one is on a full pension, which is only earned after 20 years' service, obviously account for the fact that our judges are now appointed at such an early age. That is the very time when our leading lawyers, whether they be banisters or—at the 1269 better end of the profession—solicitors are at their peak. I repeat that it is with a material sacrifice that so many of our leading lawyers accept judicial appointment.
It has been said many times—not just in this debate but frequently in your Lordships' House—that the independence of the judges is our pride and glory. If we erode it, we are lost. I take the liberty, arising out of that, to ask whether we are sufficiently safeguarding the independence of our judges for future generations. The noble Lord, Lord Renton, in his eloquent speech—delivered, as he told us, almost as a surprise for himself, but it was a pleasant surprise for us—mentioned, as I understand it, that the noble and learned Lord the Lord Chancellor had a dual existence with which he was coping in spite of its difficulties; namely, the Lord Chancellor the politician, and the Lord Chancellor, the head of our judges and our judicial system. It is no empty compliment, but a belief sincerely held by all sections of your Lordships' House, that that duality has been remarkably well served by the noble and learned Lord who sits at present on the Woolsack.
But what about the future? As I understand it—I shall be corrected if I am wrong—the chief judicial appointments are made on the recommendation of the Lord Chancellor, but are submitted to the Prime Minister of the day. The noble and learned Lord, Lord Hailsham, will correct me, as he always does when I go wrong (and that is quite frequently), but in his day it was his habit to submit two or three names to the Prime Minister in order of preference, with a comment which justified that order of preference. It was not always the first preference that was chosen. I believe that I am right in saying that that might be the experience—again I shall be corrected if I am wrong—of the noble and learned Lord the Lord Chancellor. If we are speaking about the separation of powers and the independence of the judiciary, is it right that it is ultimately a Prime Minister who decides who are to be our chief judges? It is a matter which ought to be considered not because of difficulty at this moment but because of the difficulty that future generations may have to face.
As regards appointments, I was pleased to hear, and wish to be associated with, the congratulations extended to the noble and learned Lord, Lord Bingham, and the noble and learned Lord, Lord Woolf. The noble Lord, Lord Renton, uttered the mystical name of the noble and learned Lord, Lord Denning. He hoped that the noble and learned Lord, Lord Woolf, would follow in those masterly footsteps. I hope that he will do it in one respect, and, knowing him as I do, I have no doubts. I refer to the sense of humour of the noble and learned Lord, Lord Denning. It was with the greatest joy and pride that he would tell of the letter he received from an engineer in Pakistan congratulating him on his appointment. The engineer enclosed a curriculum vitae and said, "Now that I know that you are Master of the Rolls, would you please get me a job?" The appointment is an honour to the Bench, but with deep regrets that the noble and learned Lord, Lord Taylor, had to retire early in his period of office. I believe that all of us would 1270 wish to send him our good wishes and tell him how much we miss him from our deliberations at the moment.
§ Lord Mishcon
My Lords, I have discussed whether or not the independence of the judiciary has been preserved for all generations having regard to our method of appointment. Perhaps I may deal with a subject which has been discussed; namely, whether, if a Minister decides to promote a Bill in the House, it is proper for our judges to comment on it, especially if the comments are adverse. In all our affairs, with our unwritten Constitution we rely upon common sense. I know that I shall be forgiven for saying that it is not really common sense for a Minister to promote legislation which limits the discretion of our judges. Having said that, I at once agree with my noble friend Lord Irvine of Lairg that constitutionally it is quite right to do so. Parliament is sovereign. However, when looking up an old debate, I noted that the noble and learned Lord the Lord Chancellor saw fit to read to noble Lords present at that time a letter written by the noble and learned Lord, Lord Taylor, to The Times. At col. 791 of the Official Report of 27th April 1994, the noble and learned Lord said:My noble and learned friend the Lord Chief Justice, in a letter to The Times of 8th May"—that was 8th May, 1993—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 the 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 be cured in the very near future'".The noble and learned Lord the Lord Chancellor goes on to say this: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 fulfill'".I do not think that there can be any doubt, therefore, as to what the noble and learned Lord, Lord Taylor, felt about the sovereignty of Parliament, nor about the right of judges to warn, to criticise, and to plead for liberty 1271 as regards legislation which they regard as being harmful in carrying out their duties in both civil and criminal matters. That liberty is as a rule very carefully and studiously adhered to with propriety.
I repeat that this has been an interesting debate. It has thrown up issues which we have discussed before. Nothing very novel has emerged, but there is one thing which we can conclude. I started with it and I shall finish with it: we are lucky in the judges whom we have.
§ 4.20 p.m.
§ Lord Woolf
My Lords, I was very much in two minds as to the advisability of my taking part in the debate this afternoon, just over 24 hours after donning new clothing—not sheep's but, as noble Lords have heard, as Master of the Rolls. There are two reasons why I decided to do so, although having heard the debate so far this afternoon I fear that my intervention will not be of great assistance to your Lordships.
The first reason is the importance of the question which my noble friend Lord Irvine of Lairg has raised before your Lordships. It is one of constitutional importance and one which calls for great sensitivity on the part of the legislature, the government of the day, and particularly the judiciary. It raises issues on which no doubt the new Lord Chief Justice would have been happy to address the House, if he had not been prevented from doing so since he has not yet had an opportunity to be introduced to your Lordships' House.
The second reason is one which will no doubt interest the noble Lord, Lord Renton. I received a letter of congratulations signed "Tom, 97 and-a-third". The "97 and-a-third" reflected the age of the author. It came from no ordinary Tom, Dick or Harry, but from the noble and learned Lord, Lord Denning, the distinguished past holder of my present office. In that letter, the noble and learned Lord reminded me that we had both made Hamlyn Lectures, but some 40 years apart. The noble and learned Lord gave the first of those lectures, "Freedom under the law". In his letter he referred me to the final paragraph of his lecture, of which I was well aware, which includes these eloquent words:Just as the pick and shovel is no longer suitable for the winning of coal so also the procedure of mandamus, certiorari and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to-date machinery'".In that passage, in 1949, the noble and learned Lord, Lord Denning, was referring to the importance of establishing the present role of the courts on judicial review—a subject to which I shall return briefly later.
In this country we are fortunate in having a constitution which is truly unique. One of its unusual features is that it is unwritten, but, as noble Lords have heard from the noble and learned Lord, Lord Wilberforce, it is not unique in that regard. There is the other jurisdiction to which he referred which is in the same position, and in New Zealand there is a similar situation. But we are unique, first, in relation to the roles of the Lord Chancellor, to which reference has already been made. Secondly, we are unique in that members of our supreme appellate court are able to take part, as I do this afternoon, in the deliberations of your Lordships' 1272 Chamber and, of course, also in your Lordships' Committees. The ability of Law Lords to take part in such deliberations is something which I hope your Lordships value. It continues to exist only because the noble and learned Lords who sit in the Appellate Committee exercise the restraint to which your Lordships have rightly drawn attention as a necessary concomitant to their having that ability.
We have a great advantage in enabling those who have the responsibility for interpreting and applying the law to give advice, to the House when it is appropriate, on matters of which they are knowledgeable as a result of their experience.
Another role which our constitution places upon the judiciary which is not unique but is unusual is the extent to which the judiciary are invited by the government of the day to take part in inquiries on behalf of the Government and usually to conduct those inquiries on the Government's behalf. That is a role which the judiciary do not seek but which is thrust upon them. But they accept the responsibility for doing so because they recognise that it is thought that it is in the public interest that they should do so.
However, the fact that a judge is given that task creates problems for those who have the responsibility of conducting the inquiry. They are sometimes inevitably drawn into positions of public debate. They are sometimes drawn into situations of political debate. That is unfortunate, but we are in the position that either we dispense with what I regard as an important public service by the judiciary or we accept the consequences which flow from it. We cannot have it both ways. I say to your Lordships that restraint needs to be exercised, not only by the judiciary in making comments as a result of such inquiries, but also on the part of those, either in the Executive or in the legislature, who are desirous of criticising the judge who is responsible for making the contribution.
The reference by the noble and learned Lord, Lord Denning, to his Hamlyn Lecture drew attention to the fact that before the Kilmuir rules, indeed, before the statement of the present noble and learned Lord the Lord Chancellor, it had been the long-established practice of members of the judiciary from time to time to give lectures. Again, I suggest that this is a desirable and constructive practice, something from which the public benefits because it contributes to the development of the law. In relation to constitutional issues, it can inform the debate because of the advantage of the judiciary's experience in relation to the subjects in question.
If that practice is to continue—and I suggest we would all be the poorer if it did not—it is very important that what the judiciary say, often to learned audiences and to specialist bodies, should not be taken out of context. If my noble friend Lord Irvine of Lairg will forgive me in this respect, I would say that he was in error in focusing upon one or two lectures and extracting from those lectures a sentence here or there which did not give a true representation of the content of the lecture as a whole. The fact of the matter is that there are areas of the law where it can be genuinely and fairly 1273 said that our laws at present are not serving the public in the way that they should. In that situation it is the strength of the common law that it can develop and extend in a way in which it has in the past, and in which I hope it will continue to do in the future, to make up for those deficiencies.
The Law Lords themselves now have the power to set aside decisions given in the past by which they no longer feel the public are served. If their Lordships can do that in the Appellate Committee, surely it cannot be objectionable in the course of a lecture to identify an area of the law which many would say needs re-examination and suggest that, in the course of the ordinary development of the law on a case-by-case basis, a change might take place. In doing so, the judge is not seeking in any way to interfere with or abrogate the sovereignty of Parliament.
We have been reminded of the words of the noble and learned Lord, Lord Taylor, the former Lord Chief Justice. I venture to say that every judge of whom I am aware on the High Court Bench, the Circuit Bench or in the Appellate Courts would agree with everything that he said. No one would say that any legislation that we can contemplate having been passed by our Parliament would not be honoured both in the letter and in the spirit by the judiciary of today.
The comments that are made in the course of a lecture must be seen in the context in which they are made. When they are seen in that context it is beneficial, not a disadvantage, that a judge should express his views. I dissent from the suggestion that it is only the higher judiciary who can be trusted to make comments of that sort in the course of a lecture.
Finally, I turn to the question of judicial review. We heard from the noble and learned Lord, Lord Wilberforce, a masterly examination as to the way in which that subject has developed extensively over the 40 years or more that have elapsed since the noble and learned Lord, Lord Denning, gave that lecture. Judicial review is the means by which the courts enforce the will of Parliament, not the contrary. What the courts are doing when they hear an application for judicial review on a case brought before them by a member of the public or some institution is ascertaining whether the public body concerned has acted in accordance with the law as laid down by Parliament. If the public body has not performed a duty placed upon it by Parliament, then the courts will intervene and order the public body to perform that duty. If the public body has acted in a way which is beyond the powers given to it by Parliament, the courts will remove the decision that results from that action and quash it, because it has acted unlawfully. If the public body has not gone about the process of reaching its decision in accordance with the requirements of Parliament, again the courts will intervene. In this way the courts do not act inconsistently with the will of Parliament, but support the will of Parliament.
As we heard from the noble and learned Lord, Lord Wilberforce, the law has developed in relation to judicial review without the direct intervention of Parliament. But Parliament has endorsed the machinery 1274 of judicial review; it did so in the Supreme Court Act 1981. Since that time, the Law Commission has looked at the way in which judicial review is working and, on the whole, has reached the conclusion that it deserves a clean bill of health.
Judges do act with restraint in relation to judicial review. Judicial review is a singular procedure, because it is surrounded by safeguards for the Executive to ensure that it can properly perform its function. The courts hesitate before interfering with the decision of the Executive. But if the decision is unlawful they have no alternative. They would be failing in their duty if they did not make use of the powers that Parliament has said they should have; namely, the remedies given to them by the Act of 1981.
Speaking for myself, I hope that the courts will continue to dismiss applications for judicial review where the action concerned is lawful, but that they will not hesitate to intervene, no matter who is the applicant, if a public body has acted unlawfully. I am grateful to your Lordships for hearing me.
§ 4.36 p.m.
§ Lord Kennet
My Lords, I am only the second non-legal Member of the House to speak in the debate. As such, perhaps I may hope that I speak for the whole House in congratulating the noble and learned Lord, Lord Woolf, on the cogency and force of his first intervention in this House as Master of the Rolls. As well as being a Member of this House for 36 years watching life go by, I have served both as an official and a Minister in the executive. But, as I say, I have no legal experience whatever.
Within our sovereign constitutional edifice cohabit the three powers that the French political philosophers of the 18th century saw as such a healthy tripod in this country; namely, the legislative, the judicial and the executive. That is also the separation that the framers of the American constitution sought to produce in written form. Ever since, new or renewing countries have incorporated that separation in their written constitutions, right down to Russia a couple of years ago.
But our constitutional arrangements include many historical idiosyncrasies. Our lower House is democratically elected—more or less; it is many years since the Government had the majority of the voters behind them. Our upper House is, quite unusually, not only part hereditary but gives house room to Bishops of the established Church, leaders of other denominations ennobled for the purpose, the top judges, and nationals of several other countries. So we have the top of the judiciary in this House and the top of the executive in the other House.
Thus, today, the powers are not separated. The executive is not a distinct, free-standing leg of the tripod, as it is for instance in that elective monarchy, the United States. Here, the executive now emerges directly from within the elected Chamber of the legislature where previously it emanated directly from the monarch. That leads to constitutional confusion—the subject of our debate today— because the executive has been 1275 attempting to seize and misuse Parliament's democratic credentials for its own, now often unconstructive, purposes.
That confusion has licensed the repeated and sometimes successful attempts by the present Government to introduce retrospective legislation and Henry VIII clauses and Bills so badly drafted that we spend days examining the Government's hundreds of amendments to their own Bills. The noble and learned Lord, Lord Hailsham, a few years ago famously used the phrase "elective dictatorship" to alert us to the vulnerability of our position and to the scale of the damage we might suffer.
This very day we have that "dictatorship" on full display with the executive's announcement that it intends, regardless of the lawful procedures of this House, to enact the privatisation and commercialisation of the Civil Service Recruitment and Assessment Services. It seems in fact to be tending towards a kind of unicamerality. And all that it is able to do because we have no written constitution. We still seem to be rather proud of that. But any society which chooses to live without the certainty of law can only rightfully do so as long as no harm results. We are now living without a part of that which the rest of decently governed humanity regard as necessary law: the coherent constitutional law that ought to govern all the other parts. Unlike others, we have no administrative court—as the noble and learned Lord, Lord Wilberforce, wisely reminded us—to thwart the executive when it steps outside its role. We have no constitutional court either, to strike down Acts that the executive has succeeded in whipping through the legislature when they conflict with the constitution. The suggestion that we might have such things may strike tenor into untravelled souls. But does anyone who knows France or the United States believe that they are any the worse off for having those elementary precautions against "elective dictatorship"?
We may perhaps already have something to which we could turn to preserve our ancient laws and freedoms. We have the oath the Queen took at her coronation by which she is solemnly bound and from which no one in the United Kingdom has released her. At her coronation the Queen swore to govern us,according to [our] respective laws and customs".Certainly, among our reputed "customs", if not our actual laws, is precisely that invaluable and widely admired tripartite division of the powers.
Since the Queen's Ministers exist to execute the power that was once her predecessors'—power wrested from those predecessors by the people in the 17th century—and since Ministers and the Government constitute her Government, it must follow that they are bound by her oath. I was particularly glad last week to see Sir Frederick Lawton—a much respected and now retired Lord Justice of Appeal—quoting the Queen's coronation oath, though another part of it, to the same effect. He wrote in a letter to The Times that the judges, in their dispute with the Home Secretary,regard themselves as the Queen's delegates to perform the part of her coronation oath whereby she undertook 'to cause law and justice in mercy to he executed in all [her] judgements'".1276 Those are the words in the oath which bind the judiciary. The words in the oath which bind the executive are those with which she promised to govern us,according to our laws and customs".And her Ministers must regard themselves as her delegates to perform that part of her coronation oath.
The question arises: if that oath is, as it surely must be, binding on the executive, who, in the absence of constitutional and administrative courts, is to judge whether and how well it is being kept? The Government today intensely dislike judicial review because, some Ministers claim, it enables the judiciary to restrict the sovereign rights of Parliament. In fact it does not do that, as has become clear in this debate. On the contrary, it is a means whereby the judiciary examines whether the executive—the Ministers themselves—have properly respected the will and the Acts of the legislature and whether or not they are breaking, by their executive acts, the laws which Parliament has, usually at the behest of that same executive and often under threat, made.
The judiciary is part and parcel of our customary system of internal sovereignty—"the Queen in Parliament". It is one of the three separate but symbiotic powers, and it is a capricious and self-serving contention that it should not have the power to preserve the authority of the legislature over the executive.
On executive matters, the Queen is, of course, advised by her Prime Minister who is bound by her oath. On judiciary matters, she is advised by her Lord Chancellor who is also so bound. The press has been telling us—it was alluded to earlier—that not all Ministers were happy with the Lord Chancellor's recent appointments to the judiciary. The possibility therefore arises of the executive Prime Minister and the judicial Chancellor disagreeing about some larger matter. If that were to happen, ought the Queen simply to take her own counsel? I think not, but as this Government increasingly, and quite unprecedentedly, insult our laws and customs, the question deserves examination. Given the division of the powers that our system in theory used to embody, how has the "elective dictatorship" come about and what redress do we have?
It has come about because of the conflation within the House of Commons—a subset of the legislature—of the legislative power with the executive power which now emanates directly from it. The executive now regularly seeks full control of that part of the legislature and often achieves it. But that democratically elected part of the legislature is not only not the Queen's; it is not the executive's either. It is the electorate's, and it alone democratically represents those whose laws and customs the Queen's coronation oath binds her to protect.
The House of Commons' democratic glory today is horribly tarnished. Members of the judiciary have, at the executive's request, made that only too clear. We do not—thank God—have sleaze, as the current mix of corruption and mendacity has come to be called, in the judiciary. But we do have it in the executive, as Scott showed, and in the legislature, as Nolan showed. The electorate does not care for the sleaze which members of the judiciary have uncovered and displayed.
1277 If the Government were to try to prevent or limit judicial review of ministerial executive action or to wriggle away from Scott or Nolan, that would quite specifically be an insult to the electorate and to the House of Commons it elects. The legislature clearly has the right to insist that executive behaviour is properly examined and by now judicial review is customary, even if all its limits are not yet quite hard-edged.
It is not now unimaginable that some members of this Government—of the executive and of its friends—should wish to squash this still rather new custom. They might even obtain a majority in the House of Commons. What would the Lord Chancellor then do? I speak entirely hypothetically, and this is not a direct question to the noble and learned Lord who sits on the Woolsack. I am asking what any Lord Chancellor would do. One hopes that he would stand up for the Queen's oath.
But then, with her two principal customary advisers advising differently, what should the Queen herself do? It is worth thinking around all the possibilities. Facing such a dictatorial text, should the Queen obediently declare la Reine le veult? Her Prime Minister might advise her to do so, despite her oath; her Lord Chancellor might tell her that the oath is binding above all else, and advise her not to. She would have no customarily valid individual from whom to obtain formal advice. Previous monarchs since 1688 have not, I believe, faced that specific situation.
One can think of a novel, if quaint, procedure that might answer that not quite unimaginable situation. The Queen might, quite privately—perhaps at Sandringham—invite the Speaker of the House of Commons to join her for tea, and while informally showing her the auriculas in the greenhouse invite her opinion, saying, "This piece of legislation that the Government have whipped through, is it in accordance with our longstanding customs whereby the powers are properly divided and the executive does not take more power than law and custom allow? My Lord Chancellor has already advised me that it is not. What is your view, as the personification of the democratically elected House of Commons?" And if the Speaker were to venture the purely personal opinion, using the words of the Bill of Rights of 1689, "No, I think it seeks to subvert and extirpate … the laws and liberties of this kingdom", the Queen might then signify that she was not minded to vouloir any such thing—La Reine ne le vault pas.
To her Prime Minister the Queen might even quote Winston Churchill, who saw the British constitution as "liberty broadening down from precedent to precedent", and Burke, who recognised the right of a people to throw out a ruler—in this case the elected dictatorship—who like James II subverted its liberties.
But of course the Speaker could not do or say any of this, because she can do nothing except as the House of Commons bids her. And that executive-controlled House would not bid her to undermine its own decision.
And so we are forced back on the question: can we really go much longer without beginning to think of a written constitution? Of course the forthcoming change 1278 of government will no doubt make that seem less urgent, but we may live to regret it if we let the subject drop permanently out of sight.
§ 4.51 p.m.
§ Lord Boyd-Carpenter
My Lords, 57 years ago I was in practice at the Bar when my practice was rather rudely interrupted by the actions of the late unlamented Corporal Schicklgruber. Therefore, for the purposes of this debate, I think I come, together with the last speaker, on the amateur side as opposed to the very distinguished professional representation of the law which we have had the privilege of hearing. I hope I may be allowed very respectfully to thank the noble Lord, Lord Irvine of Lairg, very much indeed both for the debate and for the admirable speech with which he opened it. In his speech he raised a great many of the difficult issues of today without, as I understood it, offering any dogmatic assertions in respect of them. It has been extremely helpful to have his opening speech.
I would say, too, that the debate is a very good indication of the immensely useful role which your Lordships' House can fulfil. A House constituted as your Lordships' House is, with its immense experience and knowledge, with high legal officers like the noble and learned Lord, Lord Woolf, and with people of every kind of experience, can discuss these matters in a way which no other organisation in this country is capable of doing. The debate so far shows that this is one of the many justifications for the House and makes one express very sincere regret at those—there are some outside—who in different political circumstances would like very much to alter it. Your Lordships' House is justifying itself by holding a debate of this kind.
For my own part, I shall for the reason I have given not venture to detain your Lordships for any substantial length of time; but I should like to say that I was intensely interested in what was laid down as being the duty of the judges. As I understand it, the first and main duty of the judge is to interpret the law as it stands, and where it is difficult to understand, where it is complicated, to give the advantage of his ability and experience to working out the application of that particular branch of the law to the case which is before him.
I am not saying for a moment that it is not right separately from the judicial duties for members of the judiciary, particularly senior members of the judiciary, to offer their advice to Parliament as to possible changes in the law. But in the handling of actual cases I would stress very strongly that the judicial duty is simply assessing what the law means in the context of the case that is before it. Of course that is sometimes a matter of very great difficulty and it is sometimes a matter on which opinions may vary. But it is an important aspect of the matter.
Therefore, I suggest that there are two areas for discussion. The first is what the judiciary should do in court. There, I am afraid, there is no doubt that it is the duty of judges, whatever their personal views on the legislation they are construing, to give the best possible 1279 interpretation of what Parliament meant when the particular Act or even the particular section of the Act was under discussion.
I should like to take up a point made by my noble friend Lord Renton in the course of what was, I hope he will allow me to say, a delightful and very adequate speech. As I understood it, my noble friend was against the provision which exists in certain statutes that where a conviction is recorded for certain offences, there is a minimum penalty which cannot be cut back by the court which is handling the case. Personally, I think it is a good safeguard to have a certain number of minimum penalties so that if one gets an aberration by a judge—as occasionally one does—it does not mean that someone guilty of a very serious offence is too lightly treated and indeed does not receive a proper penalty. Therefore, with respect, I differ from my noble friend Lord Renton and I feel that the minimum penalty which exists for only a certain number of offences is a salutary part of our judicial system.
§ Lord Renton
My Lords, my noble friend should remember that I said that, under the Home Secretary's proposals, if there were exceptional circumstances judges would not be required to apply the minimum penalty. I agree with that.
§ Lord Boyd-Carpenter
My Lords, that is a matter of some detail and some discussion. What are exceptional circumstances is a matter where I foresee that legal argument of great length and prolixity could undoubtedly be operated. As I understood my noble friend—I do not think I misrepresented him—he was intending to be critical of the minimum penalty provisions of certain statutes. I understand his view. I am rather in favour of them. Indeed, it might be sensible in certain cases to extend their scope and to apply the minimum penalty rule to a number of other offences which are frequently committed.
Our discussion today has been enormously valuable, and as soon as I sit down, will continue to be valuable. I should like once again to thank the noble Lord, Lord Irvine of Lairg, for introducing the debate and to say that your Lordships' House has shown the great value of its widespread membership and of its capacity to deal with every kind of technical problem that arises. I hope therefore that this debate will succeed in influencing opinion in the right direction and will help us to support a judicial system which is undoubtedly the best in the world.
§ 5 p.m.
§ Lord Simon of Glaisdale
My Lords, I am always glad to follow the noble Lord, Lord Boyd-Carpenter, because I always find that he has said, much better than I could, everything that I wanted to say. I agree with him particularly in what he said about the role of your Lordships' House in the Constitution. I disagree with him on only one matter where I agree with the noble Lord, Lord Renton; namely, on minimum sentences. The noble Lord, Lord Boyd-Carpenter, left out of 1280 account entirely that in the serious cases to which he referred the Attorney-General can refer unduly lenient sentences to the Court of Appeal.
Like the noble Lord and all other noble Lords who preceded me, I congratulate the noble Lord, Lord Irvine of Lairg, on having introduced this important debate. It is the third important constitutional debate that we have had within a comparatively short period of time. The first was in relation to the amendment of the Defamation Bill seeking to amend the Bill of Rights. The second important debate, just before the Recess, was on sentencing and was initiated by the noble and learned Lord, Lord Taylor, to whom the expressions of sympathy today have been so amply due. The third debate is this one. In the three debates perhaps more questions have been asked than answers provided. The fact that this is the third debate must make one regret that the constant plea in Queen's Speech after Queen's Speech for a Royal Commission on the Constitution fell on deaf ears.
Being so much older, the other thing I wish to say about the noble Lord, Lord Irvine, is that he made a statesmanlike speech. He will forgive me for saying that it differed in tone from the lecture he delivered on this subject and which was printed in Public Law. Today he was far less critical of the way in which judicial review has developed and far more muted in his criticism of the judges who are highly qualified to speak and who have given public lectures on the subject. I refer in particular to public lectures questioning the frontiers of judicial review, which I believe should be questioned in two directions; namely, are we doing too much or are we doing too little and is there something more that we can do? In initiating this debate, the noble Lord, Lord Irvine, made a speech which was statesmanlike and illuminating.
There has been much talk today about the division of powers. Even in the United States there is no complete division. In this country we have practically no sign of it, or very little, and certainly no rigid division of powers. The noble Lord, Lord Mishcon, accused my noble and learned friend on the Woolsack of leading a double life. I fear that it is far worse than that. He is presiding today as Speaker in your Lordships' House. He is replying to this debate, I believe, as head of the judiciary. He is head of an important Government department and he is also a member of the Cabinet bound by the collective responsibility of Ministers, as one saw in his reply to the debate just before Whitsun.
So we have no rigid division of powers. We have something which is much more important and vital to the liberty of the individual citizen—that is, the balance of powers, which is a system of checks and balances, as Walter Bagehot put it. What is essential for the liberty of the individual citizen is that no one organ of the Constitution shall exercise to a substantial extent the functions vouchsafed primarily to another organ of the Constitution.
That leads me to ask why judicial review has been such an emerging part of the law in recent years. I believe that there are two reasons. The first is the extensive and increasing power of the Executive and its 1281 all-pervasiveness. The second is that judicial review, in those circumstances, has been found to be useful by the individual citizen who has applied for the review and for some who have been granted it. I said that liberty is threatened and that judicial review is required in so far as the Executive power has increased in pervasiveness and in potency.
As regards Parliament, I need only read something written by an independent political journalist in The House magazine quite recently. He referred to the "alarming loss of influence" of the House of Commons. I agree very much with the way in which the noble Lord, Lord Rodgers, put his point. It is because of that alarming loss of influence by the House of Commons that judicial review has been increasingly called on.
With the House of Commons suffering an alarming loss of influence, the role of your Lordships' House—and I agree so much with what was said by the noble Lord, Lord Boyd-Carpenter—becomes more important. But what does one find? Although lip service is paid to your Lordships as a revising Chamber, in fact it is not recognised that a revising Chamber means nothing if it is not an amending Chamber. It is not sufficient for a revising chamber merely to exist to rubberstamp the after-thoughts of Parliamentary Counsel. What has been dismaying has been the constant reluctance of government business managers to contemplate your Lordships making effective amendments or, if they do, to give your Lordships the opportunity to ask the other place to reconsider the matter. The most important recent example related to the amendment tabled by my noble and learned friend Lord Ackner to the Criminal Appeal Bill.
In view of that, there has inevitably been pressure on the judiciary to make use of the powers that have been vouchsafed to it in the way shown by my noble and learned friends Lord Wilberforce and Lord Woolf. Those powers were vouchsafed by Parliament, endorsed by the Law Commission and were given at least tacit approval by the Government.
So much for judicial review, but I mentioned frontiers. We must remember that in this country, unlike on the Continent, we have no Conseil d'État, as was described by my noble and learned friend Lord Wilberforce. We do not have the powers of judicial review such as exist in the United States of America. Years ago the noble Lord, Lord Renton, collaborated with others in producing a pamphlet called Rule of Law when we were faced with the problem which has faced your Lordships today; namely, administrative potency proceeding seemingly unchecked. Having taken counsel with two senior and experienced former civil servants, we suggested that there should be an administrative division of the High Court with important, newly retired civil servants sitting with the judge as the elder brethren of Trinity House sit with the Admiralty Judge.
I am afraid that much bilge has flowed under the bridges since then, but I think that it might be worth reconsidering that matter in the context of the frontiers of judicial review. Where there is a question of extending the frontiers—I think that it rests mainly in 1282 two directions at the moment, with both of which I must confess that I am in sympathy. The first is the importing of the continental concept of proportionality of administrative remedy, and the other is the concept of reasonable expectation. When the noble Lord, Lord Irvine, gave his lecture he was, I think, chary of both of those developments. If I understood him correctly—the noble Lord will correct me when he replies if I have got him wrong—that was mainly because it was taking judges too much into the realm of administration for which they were not really qualified. However, if we are to advance in those two directions, might it not be useful to revive the idea of having administrative assessors sitting with the judge to provide the necessary expertise, such as was vouchsafed to us who sat in Admiralty by the older brothers of Trinity House?
I come to my final point which relates to the extra-judicial activities of judges. I found little to quarrel with in what was said by the noble Lord, Lord Irvine, and I entirely agree with what was said on the matter by my noble and learned friend Lord Woolf. There is no need for me to repeat what they have said. However, we must be guarded in two directions. I refer first to the danger of judicial populism. Given that popular opinion veers from side to side, judicial populism would lead to judicial decisions veering with similar uncertainty. That would bring about unpredictability in the law.
My second point on this has already been mentioned. Increasingly, when there is a difficult and controversial public issue, such as Hillsborough or the Strangeways riots, a judge is called on to assist by conducting an inquiry. That is because of the first quality that is required of a judge. When the eminent American judge and jurist Felix Frankfurter was asked about the three most important judicial qualities, he said, "First, detachment; secondly, detachment, and thirdly, detachment". Although I would certainly put detachment first, there is also room for intuition, particularly by judges of instant jurisdiction, and for logical rigour, particularly on the part of appellate judges. However, I entirely agree that detachment must come first. That is why judges are called on for such inquiries. However, we must remember that every time that a judge is called to conduct such an inquiry, he is embroiled in a controversial issue and his detachment may be compromised. Indeed, the reputation for detachment of the judiciary as a whole may be compromised. Although, as my noble and learned friend Lord Woolf said, judges have to consider that role as part of their public duty, what I think is a great mistake is if they afterwards campaign for their report, particularly if it has some party political significance, as so many do.
I entirely agree with my noble and learned friend Lord Woolf about the value of judges giving the sort of lectures that were given in the Hamlyn Lectures and the Holdsworth Lectures. Judges can be creative in such work. Shortly after the war my noble and learned friend Lord Denning wrote a seminal article in a Law Quarterly Review on onuses and presumptions. It has been formative in the law. That sort of activity is 1283 valuable and I think that it would be a mistake to consider that that is not a proper activity for a serving judge.
§ 5.20 p.m.
§ Lord Monkswell
My Lords, I, also, pay tribute to my noble friend Lord Irvine of Lairg on the way he introduced this debate and the topic itself. I contribute to the debate with some trepidation, in that I am sandwiched between two eminent noble and learned Lords. In a debate which calls attention to the relationship between the judiciary, legislature and the Executive it is useful to have noble Lords who are neither members of the judiciary nor members of the Executive contributing as lay members of the legislature as it were. One of the great benefits of this debate is that it is almost completely devoid of political partisanship. One is talking of major constitutional matters which cut right across party and belong to no party at all.
It would be easy for Members of your Lordships' House contributing to this debate to criticise either members of the judiciary for exceeding their brief or members of the Executive as a whole for usurping their powers. It is not my intention to do that this afternoon but to engage in a degree of self-criticism. I believe that that can be applied not only to me individually but to all noble Lords collectively as members of the legislature. One of the difficulties we have presented to the judiciary and the Executive is our failure to ensure that the laws that we write and the Acts of Parliament that we determine are clear, concise and easily understood. I believe that that is a major failing. If we do not recognise that and take steps to improve the situation we will create more and more problems for the judiciary and the executive.
One recent event in the justice system is the judgment in Pepper v. Hart. I am not a legal expert; my understanding of that case is that when interpreting an Act of Parliament the judiciary can have regard to the parliamentary record. To assist them in determining what is meant by a particular Act of Parliament they can look at the record and see what the Executive said it should mean. I believe that that is a very dangerous situation. If we allow it to become the norm that an Act of Parliament does not mean what it says and cannot be commonly understood to mean what it says in the words set out on paper but is determined by what the Executive says it shall mean, we are on very dangerous ground. The judiciary will be placed in a position where the Executive tells it what an Act of Parliament means. I hope that before too long there will be a coming together of the legislature, judiciary and Executive to recognise that that is a wholly unfortunate development in our systems and procedures which needs to be tackled.
I intended to speak as a layman on the subject of judicial review, largely on the basis of pronouncements by the Executive that it was the judiciary interfering with the Executive's powers and privileges. I have learnt in this debate, not only from my noble friend Lord Irvine of Lairg but the noble and learned Lord, Lord Woolf, the new Master of the Rolls, that that is not the 1284 way judicial review works and that it is a process by which the law is upheld. I hope that the judiciary continues to ensure that that is the way it goes forward.
I turn to judicial participation in public controversy. In Parliament there is a coming together of the legislature, Executive and the judiciary. I believe it is important that each speaks not only forthrightly but is listened to by the others. It is to be hoped that the judiciary as exemplified by the Law Lords, who have their rightful place in Parliament, will make its contribution clear and unambiguous on the basis of its expertise and knowledge so that other members of the legislature and the Executive, who are also members of the legislature, can hear its views. They may not necessarily agree with them all the time but at least they will have the benefit of the wisdom of those views. I hope that not only retired but also sitting members of the judiciary will contribute and that in any future changes to the constitutional arrangements there is no separation and division of these three essential elements of our lives. It has been suggested that there should be a separation of powers. One of the glories of our unwritten constitution is that all of those powers come together. There is no occasion on which one of those powers is in practice allowed to dominate the other; and there is no occasion on which one of those powers can operate separately and independently and have no regard to the other powers. It is useful to have a mechanism within our system whereby everybody can come together to talk and to listen and over time arrive at an arrangement which benefits everyone in society.
In conclusion, I take issue with one phrase which I believe I heard the noble and learned Lord, Lord Woolf, utter. He referred to the judiciary acting in the public interest in interpreting, or reinterpreting, the common law. One of the most difficult issues is who is to determine the public interest. I believe that the judiciary needs to be wary that it is not seen to be interpreting the public interest but rather as interpreting the law as determined by the legislature in the hope that the Executive is kept in check, if that is necessary.
§ 5.30 p.m.
§ Lord Ackner
My Lords, nearly 10 years ago, at the fourth international appellate judges conference held in Kuala Lumpur, I met the most senior Judge of the USSR. He was Chief Justice Terebilov. I have no doubt that he lived up to his name. Some five years later, shortly after the collapse of communism, I attended a seminar in Moscow arranged by the Council of Europe. Chief Justice Terebilov was no longer in evidence. It so happened that on the very first day of our meeting, the President approved a new law on the status of judges, recognising that the judiciary was a separate power and guaranteeing the judge's independence.
I learnt during the seminar that many judges were, during the Terebilov days, known as "telephone judges". Either before a trial took place, or, exceptionally, part way through the trial, they were rung up by the prosecuting authorities and told what their decision should be. A few years later I raised that with the chief prosecutor from Moscow who confirmed with approval the existence of that practice, saying that after all the 1285 work they had spent on building up the prosecution case, whatever that might mean, they were not going to run the risk of a judge making a mess of it.
Those were no doubt extreme cases of interfering with the independence of the judiciary, totally at variance with our concept of the rule of law. Indeed, in the Government's Green Papers of 1989 entitled The Work and Organisation of the Legal Profession, which foreshadowed the radical provisions of the Courts and Legal Services Act 1990, it was stated: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".In the White Paper issued by the Home Office in 1990—a strong contrast to that issued in 1996—and entitled Crime, Justice, and Protecting the Public it is stated:No Government should try to influence the decisions of the courts in individual cases. The independence of the judiciary is rightly regarded as a cornerstone of our liberties".Thus it seems that everyone supports judicial independence. It is after all the judge, and the judge alone, who stands between the power of the state and the freedom of the individual under the law. But does everyone support judicial independence? That very question was answered in a lecture given by my noble and learned friend Lord Hailsham in 1989, in these terms:Certainly not the public or the back-benchers in the House of Commons, who constantly revile, frequently from inconsistent standpoints, individual judges on particular decisions, or what they imagine to be judicial qualities, and daily demand the individual judges be directed or rebuked (presumably by the Executive Government) to move in this direction or that or even that they should be removed from office. Certainly not the Opposition, whichever party happens to be on the Speaker's left. Certainly not Party Conferences of any hue. And least of all, I reassure you, individual Members of the Cabinet whose Departmental interests from time to time basically conflict, not only with the views of the judiciary, where they are entitled to differ, but in provision of the means necessary to enable the courts to discharge their functions".In the opening words of the leading article in The Times on Saturday 25th May, commenting upon relations between the judiciary and executive, it was stated, and in my view rightly stated:In any democracy there will always be a measure of tension between the Judiciary and the Executive".However, I submit that currently, and indeed for the past few years, that measure of tension has proved excessive. I believe that that is due largely to the fact that the Government fail properly to understand, and therefore properly to protect, judicial independence—a vital ingredient in our system of justice.
There are many examples I could provide to support that thesis, but the time limitation on our speeches permits me to refer to only a very few. It goes back to the 1989 Green Papers produced by my noble and learned friend the Lord Chancellor at the behest of a sub-committee of the Cabinet's Economic Committee, chaired by the then Chancellor of the Exchequer, Mr. Nigel Lawson. He was warned by the Lord Chancellor that his proposals would be, "bitterly opposed by the judges" (page 619 et seq. of the noble Lord's biography entitled View from Number Eleven).
1286 Indeed, the Green Papers were described by the noble Lord, Lord Beloff, in the debate on 7th April 1989 as another attempt by the Civil Service to establish its control of what had hitherto been an independent and separate part of our national life. With the deepest respect, my noble friend Lord Irvine of Lairg is totally wrong in thinking the Green Papers were limited to the question of rights of audience. That was far from the case.
One of their central proposals, which the Government were later obliged somewhat to modify, was the so-called Lord Chancellor's Advisory Committee—a lay-dominated committee staffed by civil servants of the Lord Chancellor's Department of which all the members were or are appointed at the sole discretion of the Lord Chancellor. "An instrument", said my noble and learned friend Lord Oliver of Aylmerton:by which the Executive can in very large measure control a legal profession which was previously self-regulated and by which it can, by the creation of new classes of practitioners in the courts, secure an even greater control than it enjoys at the moment over the composition and, of course ultimately the conduct of the judiciary at all levels".In the same debate, my noble and learned friend Lord Lane, the then Lord Chief Justice, referring to the totality of the proposals in the Green Papers, warned in trenchant terms that the growth of the powers of the executive and therefore of the Government over the administration of justice had steadily increased in recent years. He said:The signs are that it will extend still further. and one asks whether we are now seeing tools being fashioned which by some future, perhaps less scrupulous, government, may be used to weaken the independent administration of justice".—[0fficial Report, 7/4/89; col. 133.]Some may view those observations as highly prophetic.
Some two years ago I attended, at the invitation of the British Council, a series of meetings and discussions with the Mauritian judiciary. One of the problems which confronted it was the rather too early retiring age which denuded the Bench of experienced judges. To mitigate that, the Government had suggested that the Prime Minister should have the statutory power to retain in office up to a given number of years, judges after they had reached retiring age. That suggestion was quickly rejected by the judiciary, appreciating the danger to judicial independence of judges being placed on short-term contracts. Indeed, unbeknown to them, some 60 years earlier, a Royal Commission (the Peel Commission) for the same reasons firmly rejected a similar suggestion when judicial retirement was being first considered.
The then permanent secretary to the Lord Chancellor's Department (Sir George Shuster, later Lord Shuster) spoke firmly against the proposal. Yet when the Judicial Pensions and Retirement Bill was introduced into this House in 1992, it was specifically proposed in one of the clauses that the Lord Chancellor, without the obligation to consult anyone, should have that very power. How did that come about? It was only at a very late stage in the Bill that the Government bowed to the criticism and withdrew the proposed section, not without my noble and learned friend 1287 Lord Simon of Glaisdale expressing his astonishment that this unconstitutional provision ever appeared in the Bill.
The Police and Magistrates' Courts Bill 1994, when first introduced into this House—it later had to be substantially amended—provided for a structure of control covering not only the administration of magistrates' courts but the selection and employment of magistrates and their clerks which in the view of many, including the former Lord Chief Justice the noble and learned Lord, Lord Taylor, would have provided a means in the hands of the Lord Chancellor or his department of directly influencing the magistrates or their clerks in the discharge of their judicial duties. Indeed, that necessitated for the first time, to my knowledge, the need to insert in the Bill a specific clause purporting to safeguard their independence.
While the Bill was being presented to Parliament the Observer disclosed letters, copies of which were later deposited in your Lordships' Library, from my noble and learned friend the Lord Chancellor to Mr. Justice Wood, the then President of the Employment Appeal Tribunal. In substance they stated that, if that judge did not apply certain statutory rules to the tribunal in the manner in which the Lord Chancellor thought appropriate, he should consider his position. That led to Questions in the House and subsequently to a debate at the instigation of the noble Lord, Lord Irvine of Lairg, on 27th April 1994.
In a fully considered reply quoted in the debate, Mr. Justice Wood concluded his letter to the Lord Chancellor in the following terms: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 … 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 made of me".No reply came. There was merely a civil servant's acknowledgment on 5th May stating:The Lord Chancellor is … considering the issues you raise and hopes to reply shortly".In the course of that debate, which ended shortly before 1 a.m., my noble and learned friend Lord Oliver was moved to say: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".He observed: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"—[Official Report; 27/4/94, col. 779.]
§ Lord Mishcon
My Lords, will the noble and learned Lord give way? I happened to participate in the debate 1288 to which he has referred and was able to present to the House correspondence which showed an aspect of the matter which was entirely different from that quoted by the noble and learned Lord. If I remember correctly, and I am sure that I do, I also pointed out to the House, which was subsequently confirmed, that the request made of Mr. Justice Wood was in accordance with the regulation passed by this House and was therefore a parliamentary matter and not a legal matter.
§ Lord Ackner
My Lords, I have the correspondence here. With great respect, it does not bear out what the noble Lord says. I am sure other noble Lords who were present will remember that a detailed explanation was provided by the learned judge as to why he was adopting the course that he did. He explained that it was done by all his predecessors, including other distinguished judges such as the noble and learned Lords, Lord Browne-Wilkinson and Lord Slynn of Hadley. He set out in full the reason why he adopted that particular process. I shall read out the letter to which I referred. I am sorry to weary the House but, in view of the intervention, I have no alternative.
§ Lord Mishcon
My Lords, while the noble and learned Lord looks through his papers perhaps he will kindly resume his seat for one moment. It is not for me in any way to defend the noble and learned Lord the Lord Chancellor, who is more than capable of doing so himself. However, I believe that the noble and learned Lord, Lord Ackner, as one of our outstanding lawyers, would always wish to present fairly both sides of the case. He has presented only what was said by some of the participants in that debate and not by others.
§ Lord Ackner
My Lords, I have found the letter and I shall read it out because it is short. It is the letter to which the reply that I mentioned was made. It states:I was, frankly, disappointed by your reply to my letter of 5 February following our meeting on the first.I did not seek further discussions 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 provided 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 final sentence reads:If you do not feel you can give me that assurance, I must ask you to consider your position".The reply, the final paragraphs of which I quoted, set out in full further submissions.
I shall complete what was said by my noble and learned friend Lord Oliver in the debate. It was: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".—[Official Report, 27/4/94; col. 779.]My penultimate example is the exhortation delivered to the public by the chairman of the party at the latest party conference suggesting that they should write to judges where they were dissatisfied with sentences, 1289 thereby clearly seeking to influence or pressurise the judges to adopt the tougher line which was then to be the view of the Government.
My final example relates to the Home Secretary's proposals in relation to minimum sentences and mandatory life sentences, and in particular to the observations made by my noble and learned friend the Lord Chancellor in the debate on Thursday 23rd May which, with great regret, I was unable to attend by reason of being abroad. The essential complaint by the judiciary was that in cases to which these proposals related they, the judges, would be prevented from doing justice. Indeed, they would on occasions be required to do injustice. To this, to my astonishment, the noble and learned Lord the Lord Chancellor replied:The structure that he [the Home Secretary] proposes in no way interferes with the independence of the judiciary. It of course limits the discretion of the judiciary in relation to particular cases; but it does not in any way interfere with the independence of the judiciary to reach the appropriate sentence within the structure of law laid down by Parliament".—[0fficial Report, 23/5/96; col. 1074.]I respectfully submit that there is here a serious confusion of thought. Of course, Parliament, by virtue of being supreme—and that has never been in issue—has the power, subject nowadays to European Community law, to interfere as much as it likes with the independence of the judiciary and, indeed, with the rule of law. It happened thus in the USSR. Hence the "telephone judges" to whom I referred earlier.
I conclude by going back 20 years to the first international conference of appellate judges held in Manila and I end with a quotation from the then Lord President—that is the Chief Justice, Tun Mohamed Suffian, an old friend of mine and a Fellow Bencher of the Middle Temple—who warned delegates present to be on their guard:Because … while all governments publicly endorse the principle, some quietly work to undermine it, and it behoves judges of the world to be on their guard against the erosion of their independence".Thus, I submit, we have the current tension.
§ 5.51 p.m.
§ Lord Kingsland
My Lords, I rise with the same feeling expressed by the noble and learned Lord, Lord Simon of Glaisdale, when he spoke; that is, that everything one wants to say has already been said. The only difference is that, in his case, it was not true but, in my case, it is. Nevertheless, I cannot resist the temptation to make one or two remarks about the constitution and about the subject of judicial review.
The key factor about our constitution is that it is a common law constitution. The most important relationships are based on the common law. The definition of a statute is a common law definition. The basic principles of judicial review are laid down not by statute but by the common law. Indeed, the doctrine of the sovereignty of Parliament, to which the noble Lord, Lord Irvine of Lairg, referred with such force, is actually a doctrine of the courts, not an assertion of the legislature. It is, indeed, a relatively recent doctrine of the courts. If one goes back to the days of Coke and Hale and even, to some extent, Blackstone, one can see 1290 that statutes were tempered by the "sweet reason of the common law" although one cannot be certain whether that was an attempt to disapply statutes or simply to interpret them in a certain way.
It was not until, I suppose, the revolution of Bentham, culminating in the writings of Dicey, that the idea of the sovereignty of the legislature became finally dominant in our constitution. Since, as the noble and learned Lord, Lord Woolf, said, the common law evolves, who knows what will be the ultimate destination of the common law in defining our constitutional arrangements?
If I am right about the role which the common law plays in our constitution, it must follow that the judges have a crucial part to play in its development. Although the sovereignty of Parliament was a very important part of the legacy of the great constitutionalist, Dicey, it is often forgotten that he considered an equally important part of our constitution to be the rule of law.
The rule of law depends upon the doctrine of the separation of powers. The reason that our constitution has worked so superbly well is because judges on the one hand, and legislators on the other, have shown great self-restraint towards each other. The courts will never interfere in the internal proceedings of the other place or this House. Equally, it is a great tradition of this Parliament that it will not interfere in the proceedings of the courts. Judges have always been at liberty to look at statutes and interpret them according to the common law in the way they think right. Legislators have never questioned that. It will be a sad day if that tradition is broken. The day on which the tradition of the separation of powers in our constitution is broken will be a real threat to individual freedom in our society.
I should also like to say something about the development of judicial review. The key to the development of judicial review—I was much struck by the speech of the noble Lord, Lord Rodgers, in this respect—lies outside the relationship of the courts and the legislature. It lies within the legislature itself and in particular, another place. The development of judicial review over the past 30 years results from changes in the relationship between the legislature and the executive. I am afraid that it is no longer the legislature which controls the executive but the executive which controls the legislature.
The modern Member of another place is really the representative of an electoral mandate which is received every five years in order to put in place on the statute book certain policies advanced at general elections. That is a long way away from the legislature of the 19th century. Indeed, I believe that the elected Member of another place is put in an impossible constitutional dilemma. On the one hand, he has to keep his party and government in power in order to realise the electoral mandate; on the other hand, he has to keep that same government under control. It is impossible for a single person to fulfil those two mutually contradictory demands at the same time.
With great respect to the noble Lord, Lord Irvine of Lairg, if there was something I found lacking in his speech—I make no criticism of what he said but rather perhaps of what he did not say—it was some indication as to how we could advance on that important front.I 1291 believe that if the legislature could in some way redress that balance, the huge responsibility that has now fallen upon the shoulders of judges in dealing with any conflict between the citizen and the state would be at least to some extent lifted. I believe that they would be glad about that.
In any judicial review case, the courts have to consider the crucial relationship between the state, seeking to enforce Acts of Parliament which are, by definition, in the general interest, and the citizen. But the general interest in any particular case can act very unfairly for an individual. It is a great principle of our country that when the judges look at the impact of a statute on a particular person, they do their best td see that that impact is fair in the circumstances and that that individual understands that if, at the end of the day, he is disadvantaged he at least knows the reasons why he is being disadvantaged and has an opportunity to say something about the situation.
These are great traditions. It is worth doing everything we can to preserve them. I believe that they will be preserved if legislators on the one hand and judges on the other mutually respect each other's spheres of influence.
§ 5.58 p.m.
§ Lord Cooke of Thorndon
My Lords, the subject of this debate is defined in its first limb in terms so wide that they are capable of extending to virtually the whole field of the British constitution or at least a catalogue of the shortcomings of its vital organs. It is much easier to grapple with the narrower second limb, about which I wish to make only one point.
Judges who comment extra-judicially on current public controversies are inviting trouble unless, perhaps, what they say is strictly incidental to a professional paper—a kind of exercise increasingly expected of the judiciary today. Except when making that kind of contribution, I have striven, while holding judicial office, to avoid public statements otherwise than in judgments. But a price must be paid for such restraint. There can be allegations that the judge lives in an ivory tower or avoids with fastidious horror what the media see as legitimate questions for holders of public office. On the whole, I must admit to having preferred to pay that price, but I sympathise with judges impelled to a more robust solution. For the objective approach that can come from judicial office-holding free of electoral pressures is a useful element in a balanced democratic process.
On the wide first limb of the subject I would offer two thoughts. First, there is nothing new in judicial review, except the name and the procedural changes that have accompanied its use in roughly the past 40 years. The essential principle that executive and administrative authorities, high or low, must act within the law is unchanged and centuries old, as is its companion principle that it is for the courts to determine the law in cases of doubt.
In modern times most of the relevant law is enacted by Parliament, although in a few fields the scope of the prerogative is in issue. It is the quantity of legislation 1292 that accounts for the greater impact of judicial review, rather than any change in the true constitutional role of the judges. Because the United Kingdom system is one of the separation of powers, it is a necessary and probably inseparable function of the courts to interpret Acts of Parliament. Inevitably they will not always do so correctly, at least in the eyes of the losing side. And in the comparatively rare cases, for they are comparatively rare, when a government are the losing side, there may be strong complaints as well as disappointment. But the alternative of no judicial review is in the end surely unthinkable.
Secondly, the legislative changes which introduced the modern judicial review procedure began in Ontario and were subsequently developed first in New Zealand, then in Australia, and ultimately, in the later 1970s and early 1980s, in this country. Some major and internationally influential administrative law decisions have been given by United Kingdom courts, such as the decision of the Appellate Committee of your Lordships' House in the 1968 case, Anisminic v. Foreign Compensation Commission reaffirming the duty of the courts to correct errors of law even where a tribunal had jurisdiction to enter into the inquiry in question. The noble and learned Lord, Lord Wilberforce, contributed a decisive speech in that difficult case.
Yet, just as the main steps in procedural reform were not initially British, so I think the general verdict of comparative lawyers would be that the English courts have been, on the whole, more conservative in the field of public law than the Canadian, Australian and New Zealand courts. Any concern felt here about what is often, but somewhat misleadingly, called "judicial activism" can be tempered by that consideration.
Again, concern is sometimes voiced—and, indeed, was voiced this afternoon by the noble Lord, Lord Irvine of Lairg—about exploration of the doctrine of parliamentary sovereignty or of the principles governing media freedom, or media intrusion as some would describe it. It may perhaps help to see those quite profound issues in perspective if it is borne in mind that such concepts are ultimately the legal creation of the courts, whose responsibility it is to articulate their true legal scope. On that point, I fully ally myself, and gratefully so, with the tenor of the observations made by the noble Lord, Lord Kingsland, who immediately preceded me.
§ 6.5 p.m.
§ Lord Borrie
My Lords, in 1987 the Treasury Solicitor's Department produced a modestly sized but remarkable booklet entitled Judge over your shoulder. It was a guide to civil servants, a warning to take care, as the booklet itself said, because of an increased willingness of the judiciary to intervene in the day-to-day business of government and what it called the courts' "imaginative interpretation of statutes". I do not know how it came to be the case, but a few years later there was a revised edition of the booklet within which the word "imaginative" was deleted and replaced by the word "liberal".
1293 The publication appeared because, during the past 30 or 40 years, the courts had considerably developed the scope and thrust of judicial review of administrative action and of government departments and executive agencies of all kinds. In a judgment given in 1982, the late Lord Diplock said that the strengthening of administrative law was,the greatest achievement of the English courts in my judicial lifetime".From the vantage point of 1996, it is even more clear that judicial review of administrative action has been a growth industry. Previous speakers have given the figures and also indicated that fact. I believe that the basic principles of judicial review, the concept that the decision of any public body should be challengeable in the courts on the grounds that it is tainted with "illegality, irrationality or procedural impropriety", to use the words of Lord Diplock again, deserve to be widely accepted and applauded.
If "irrationality" seems to be unduly broad, the same Law Lord made it perfectly clear in the GCHQ case in 1984 that the courts are not entitled to use irrationality as a basis for attacking executive decisions just because they might disagree with those decisions on the merits. He pointed out that irrationality only applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it.
I am happy to be counted among the enthusiasts—of which clearly, from this afternoon's debate, there are many in this House—for the growth of judicial review. As other speakers have said, there need to be checks and balances in the constitution. There also needs to be accountability on the part of government and government departments and agencies of all kinds to an independent judiciary, especially because accountability to Parliament is, to say the least, imperfect. I also welcome the growth of judicial review because it shows that the common law that has come down to us through so many centuries is capable of expansion and development and is sensitive to the needs of the times.
However—I say this with great care in view of the fact that there are so many noble and learned Lords present today—both before judicial review became fashionable, and even since, the courts have sometimes tended to overreach themselves. In particular the courts have not always been careful to maintain the distinction between procedures and merits, on which Lord Diplock rightly placed such emphasis.
Sometimes, to go a stage further, the courts have been so astute in finding a ground for diminishing executive power that they may not have paid as full regard as they should to the positive purposes of the legislation they seek to interpret. Even this House in its judicial capacity has sometimes given a strained interpretation to the legislative powers granted by Parliament, especially to local authorities, for example in the famous—or infamous, as some people would describe it—Poplar Council case in the 1920s in relation to employment policies, and also in the GLC fares case in 1981 regarding the fares on London buses and the Underground. In each of those cases the House of Lords 1294 in its judicial capacity overturned—interfered with, if you will—the policy decision of a democratically elected local authority in the name of keeping a balance between the interests of the ratepayers on the one hand and the interests of employees or travelling customers respectively in those two different cases. But this so-called balance—which may also be expressed in terms of a fiduciary duty which a local authority owes to its ratepayers—was of course a gloss which the Law Lords themselves put upon the wording of the Act. It is not a duty which is found in either of those pieces of legislation from this House.
Unlike my noble friend Lord Monkswell, I am not an opponent, or I do not dislike, the case of Pepper v. Hart which may entitle judges to look at the legislative history of an Act of Parliament, because in my view it is much less likely now that judges would misinterpret the basic purposes of a piece of legislation when they are entitled to look at Hansard. On the face of it, it is difficult to quibble with the right of the courts to review an executive decision on the ground of it being illegal, or that an error of law is contained within a decision. After all, the courts are courts of law and the courts are surely the supreme arbiters of what is the law.
But suppose, as has often happened, Parliament has set up a specialised tribunal or hierarchy of tribunals, as it has done most notably in the fields of social security and of employment, typically with a lawyer as chairman and others representative of lay interests as lay members. Those tribunals are in effect—and have been described officially as such—specialised courts with specialised jurisdiction. They build up considerable expertise in detailed branches of the law containing much technical regulation. It is not obvious to me that in those circumstances the ordinary general courts that administer the general law should assert their right to review, on the ground of illegality, a decision of such a tribunal simply because they have an alternative interpretation of those detailed regulations. Judicial review in those circumstances is really not very different from an appeal. It is, I suggest—it may be regarded as such—an appeal from a relatively expert body to a relatively inexpert body; that is, the general courts.
There is some scope for, or risk of, the courts overreaching themselves under the head of irrationality, although I gave what I hope is the authoritative Diplock explanation of what that word means. However, I have direct experience of the willingness of the Divisional Court in 1989 to interfere with the discretion granted by Parliament to the Secretary of State for Trade and Industry—the noble Lord, Lord Tebbit, as he now is—not to refer the takeover of the House of Fraser by the Fayed brothers to the Monopolies and Mergers Commission. The Secretary of State announced that he had made his decision on my advice under the Fair Trading Act when I was Director General of Fair Trading. But the Secretary of State did not reveal his detailed reasons for the non-referral to the Monopolies and Mergers Commission because to do so would have involved disclosing the contents of the then unpublished report of inspectors appointed under the Companies Act, and the investigation of possible criminal offences might have been hindered at the time by such disclosure. The 1295 Divisional Court ruled that the Secretary of State's decision must be quashed as irrational because he had given no reasons for the decision. In fact the Secretary of State's decision had been based on confidential advice from myself which ran, as I recall, to some 12,000 words and which I hope included a certain element of rationality.
For me—and, I think, for the law and judicial review—the story had a happy ending because both the Court of Appeal and this House in its judicial capacity took a different view from the Divisional Court. I particularly welcomed the dictum of the noble and learned Lord, Lord Keith of Kinkel, who said:The judgments of the Divisional Court illustrate the danger of judges wrongly though unconsciously substituting their own views for the views of the decision-maker who alone is charged and authorised by Parliament to exercise a discretion".The judgment of the noble and learned Lord, Lord Keith of Kinkel, was concurred in by a number of noble and learned Lords—I see three of them here today, who include one who has spoken, the noble and learned Lord, Lord Ackner, and one who is about to speak, the noble and learned Lord, Lord Lowry.
I say, with respect, that the dictum I have just quoted is a most helpful corrective—if there needs to be one—to the sort of imaginative or, if you prefer it, unduly liberal interpretation of statutes referred to in the booklet distributed among civil servants from which I quoted at the beginning of my speech. As long as that view prevails, anyone overly concerned about lack of judicial self-restraint has little to fear.
§ 6.17 p.m.
§ Lord Lowry
My Lords, the later one goes in to bat, the more obvious it becomes that every conceivable stroke has been played and every useful run has been scored. I hope your Lordships will forgive me if I, too, make some reference to judicial review, because in reference to that procedure misunderstandings can so easily arise about the role of the judiciary vis-à-vis the executive. Noble Lords who have mentioned this subject are now too numerous for me to list. While I cannot hope to emulate the felicity of my noble and learned friend Lord Wilberforce in his review, I feel it might—if your Lordships will bear with me—be useful on a lower plane to recount some matters from my own experience.
The term "judicial review" is of recent official use, although no doubt it came from Professor Smith's great book of the early 1950s entitled Judicial Review of Administrative Action. Many of your Lordships will feel grateful that at last a second edition of that work has been published. The noble and learned Lord, Lord Woolf, played a dominant part in bringing it to publication. I wish to take the opportunity of confirming in this House the congratulations and good wishes which I have already ventured to tender to the noble and learned Lord on his new appointment.
"Judicial review" was the title given in 1977 to a new Order 53 of the Rules of the Supreme Court, but the supervisory jurisdiction of the High Court over inferior 1296 courts and public authorities in proceedings on the Crown side of the court is an historic part of the common law. That jurisdiction was not, and is not now, appellate. It should be exercised not in order to interfere with decisions on their merit but to ensure that lower courts and public authorities act within their powers and according to law. In Rex v. Nat Bell Liquors Ltd., in 1922, Lord Sumner, delivering the judgment of the Judicial Committee of the Privy Council said (it is now a slight irony) that the superior court's jurisdiction was one "of supervision, not of review".
To traditional lawyers the new title of Order 53 had therefore a somewhat revolutionary sound and there were others for whom that title was seen to have a revolutionary effect, encouraging judges to review decisions and orders in the sense in which Lord Sumner refused to do so. But in reality, as recent authority confirms, the new order simply reformed procedure but did not alter the substantive law of what could be quashed and on what grounds. I do not step aside to discuss the developments which have continued taking place in this sphere.
But what the new procedure did was to wake people up and alert them to the full range of the supervisory jurisdiction, and in particular the jurisdiction to quash and annul legally objectionable decisions and orders of public authorities, including government Ministers. Indeed, in the past, the courts themselves had occasionally slept on the Crown side. For over 100 years before 1951 it was generally assumed in England (your Lordships will, I hope, forgive the inflexion in my voice) that decisions could be quashed only for want of or excess jurisdiction and not for some other forms of legal error, and as late as 1957 (despite 200 years of history) there was some doubt whether administrative, as distinct from judicial or quasi-judicial, acts could be quashed at all. That is strange, because we have only to go back to 1948 for a classic pronouncement by Lord Greene, the Master of the Rolls, in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, the case which gave birth to the convenient shorthand "Wednesbury unreasonableness", as a ground for quashing an administrative Act. Lord Greene envisaged the situation where,although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere".He went on:The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them".Note, my Lords, that Lord Greene classifies Wednesbury unreasonableness as a form of legal error which invalidates the decision. It is not the only flaw which can invalidate a ministerial decision, but it is distinguished by the fact that a Minister or other public authority can appear to be acting within his powers and yet turn out to have exceeded them. There is therefore a large subjective element in the court's decision when Wednesbury unreasonableness is relied on and for that 1297 reason the court must be scrupulously careful to ensure that it is not simply substituting its own view for that of the authority. The judges will often be reminded of the appeal in your Lordships' House in 1985 in which Lord Diplock, having used the word "irrationality"—the noble Lord, Lord Borrie, has referred to it—said that,it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at itThe supervisory jurisdiction properly exercised is salutary. Its object is protection from power, the power of bureaucracy; and its purpose is not to usurp the decision-making function but to secure fair and lawful treatment. As the title to the proceedings shows, the jurisdiction is exercised by the Queen through her judges against the allegedly offending authority and for the benefit of her subjects.
I suggest that those who report and comment on judicial review decisions should be careful not to depict the quashing of an administrative act as an aggressive difference on policy. I always recoil from the picture of "judges hitting out", or "judges slamming Ministers". And of course judges must be equally careful to ensure that reports and comments of this kind cannot with justification be made.
We should all be grateful to the noble Lord, Lord Irvine of Lairg, for introducing this debate. The number of noble Lords who have signified their wish to speak is an eloquent tribute to his initiative. He cannot know what sweet music it was in my ears to hear him say how unwise it usually is for a judge to make comments on public questions off the Bench. Four-fifths of my judicial experience were spent in another jurisdiction. For 17 of those years I was a Lord Chief Justice. Many things appeared in the press, or were said at random, and I often wondered whether I was wise to hold my peace. But what Lord Irvine said has helped to reassure me that I was probably not wrong.
My noble and learned friend Lord Cooke referred to the risk that one will be accused of residing in an ivory tower. I believe that that risk must be accepted. As I sat here, I wondered on the effects of one's environment on a judge. In the place where I judged for most of my career, there was one cardinal rule: one must be detached and apolitical. That was as important as judging with competence as regards the reputation of the Bench. That was simply a hothouse which made that rule the more obvious and a necessary concomitant of sitting on the Bench. It is a good guideline anywhere, if only because the Book of Proverbs tells us that:Even a fool, if he holdeth his peace, is deemed a man of understanding".About 60 years ago I purported to apply that saying to Pompey, that rather brainless member of the great triumvirate. For one thing, if you launch some even rather carefully considered observation, you never know when you will sit on a case during which the issue you addressed will come before you.
1298 Judges should be independent, but that does not mean that they should be independent to do and say what they please. Some degree of self-denial must be accepted as a necessary burden of office.
§ 6.30 p.m.
§ Lord Beloff
My Lords, although coming late in your Lordships' debate, I am much relieved to note that nothing I had proposed to say has so far been said by anyone else. I begin by not joining the normal congratulations to the noble Lord, Lord Irvine of Lairg. Congratulations are easy. I am more moved, in considering his speech and this debate, by the reflection of what one of my heroes, Talleyrand, said, when the death of a foreign statesman was reported to him: "What, I wonder, did he mean by that?" The noble Lord, Lord Irvine of Lairg, has expounded the views that we have heard this afternoon in public lectures and articles and it is quite interesting to know why he should wish your Lordships to be apprised of them in this more public manner. With that in mind, the point was referred to obliquely by the noble Lord, Lord Rodgers of Quarry Bank, and the name that came to mind was that of Sir Stafford Cripps. That is not the Stafford Cripps whom most noble Lords will remember as the austerity Chancellor of the Attlee Government, but the Stafford Cripps whom I remember from the early 1930s, after the fall of the second Labour Government. He embarked on a campaign urging that a future Labour government should begin by introducing an emergency powers Act which would give the executive the freedom that he believed it needed in order to fulfil what was then the socialist programme of the Labour Party.
No doubt the noble Lord, Lord Williams of Mostyn, when he replies for the official Opposition, will tell me whether I am right when I wonder whether the idea of some kind of conferment of powers on the executive is lurking in one of the think-tanks, fora or wherever it is that Labour party policy is now made.
The second point is that I am sure that there should always be the word "congratulations" in any debate. My congratulations would go to the United Kingdom because of the degree to which, by international comparisons, our judges enjoy independence. A year ago there was a conference of European judges and magistrates on the problems of corruption and international crime connected with corruption. From what was said by representatives of a number of important countries—France, Italy, Spain—it is clear that if they had been discussing the subject of the relation between the executive on the one hand and the judiciary on the other, they would have been concerned about the ability of the executive to prevent or to abort judicial inquiries into evidence of ministerial and parliamentary corruption.
In considering the independence of our judiciary, it is interesting that we cannot point to anything so dramatic and dangerous to the body politic. We have a high degree of judicial independence, even though some noble and learned Lords would occasionally wish it to be even greater.
1299 The other point which struck me about the interesting and in many respects convincing speech of the noble Lord, Lord Irvine, is that he left out an important part of his now famous article, in Public Law. In the last pages of the article, he points out that although judicial review, in terms of United Kingdom law, has been fairly restricted and should not worry a law-abiding government, a quite different aspect now exists in relation to our involvement in two bodies of European law and two European courts: the European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg. If we consider their insistence upon that judicial interpretation of Acts of Parliament and subordinate legislation one must conclude—although I do not believe that the noble Lord, Lord Irvine, came to that conclusion—that the self-restraint which he believes is essential for a judiciary which exercises judicial review is hardly the most evident characteristic of either of those courts or their judges. To find self-restraint among the judges of the two European courts is as improbable as to find alcoholic self-restraint among the practitioners of association football.
There is a serious issue which I am surprised no noble and learned Lord has brought to our attention this afternoon. After all, it is the cases which have involved the intervention of European courts that have been the most important in restricting the sovereignty of our Parliament.
When we come to the final point about whether the judges should pronounce in public, I am again surprised that although so many references have been made to the noble and learned Lord, Lord Denning, not much attention has been paid to the fact that he was one of the few senior members of the judiciary who pointed out early on that the whole British judicial and legal system would now be seriously altered in ways which had perhaps not been foreseen when the country acceded to the Treaty of Rome. If I had a complaint about the judiciary, it would not be that judges do not say enough in public about controversial issues; it would be that on an issue of this kind which is fundamental to our constitutional way of being, they have on the whole been very reticent.
That explains why, although I have found the debate interesting, illuminating and instructive, I also found it, as occasionally with matters in your Lordships' House, a little cosy and parochial. When we consider matters which should preoccupy us and which, in the light of history, are likely to seem characteristic of the age in which we live, their echo in your Lordships' House is rather muffled.
§ 6.40 p.m.
§ Lord Hacking
My Lords, yesterday the noble Lord, Lord Irvine of Lairg, very kindly encouraged me to participate in this debate. I was concerned that I should be absent from a meeting of Sub-Committee E; but I decided I should like to take the noble Lord's encouragement and in the normal course of events my name would have appeared on the list of speakers.
1300 However, unfortunately there was a misunderstanding between me and my office for which I am entirely responsible. I knew that I should not be able to get to the House until late this morning. I therefore asked if an advance telephone call could be made. That telephone call should have been made to the office of the Government Chief Whip. It was made to Black Rod's office. Upon my office expressing my wish to participate in the debate, my office was quite correctly told by Black Rod's office: "Lord Hacking is absolutely entitled to participate in this debate but he does not require our permission". There, I am afraid, matters rested, and that is why I must apologise to the House for intervening at this stage of the debate.
I have personal knowledge of two constitutions, the constitution of the United Kingdom and that of the United States of America, where I remain a member of the Bar of the State of New York. In the United States there is a written constitution and a complete separation of powers. In the United Kingdom, as we know, there is no written constitution and no separation of powers. The former has disadvantages in terms of the political appointments of members of the judiciary, which goes right up to the Supreme Court. There is a very clear tendency for a Republican President during his period of office to appoint members of the Supreme Court who favour the Republican Party, and vice versa when a Democratic President is in power. As the noble and learned Lord, Lord Woolf, observed, there are definite advantages in our mixture of powers and in judges participating, both inside and outside this House and outside Parliament, in the legislative process. In my very short intervention I shall focus on that point.
I have not had the opportunity of attending or reading the lecture of the noble and learned Lord the new Lord Chief Justice. I therefore have no personal knowledge of what he did or did not say on the issue of privacy. However, I do know that judges over many years have played a vital role in the development of our law. There are a host of examples. To refer to just one, the noble Lord, Lord Irvine of Lairg, may recall the High Trees case in early 1951. I believe the noble Lord was instructed in English law at about the same time as myself. The noble Lord seems to be searching his memory on that case.
§ Lord Hacking
My Lords, I am so glad he remembers it clearly. That established the doctrine of estoppel. The vital role that judges have played in the development of law should be encouraged. I refer therefore to the importance of judicial review. I greatly regret that the European Court is not nearly so effective in matters of judicial review in the application of Article 175 and in its approach to such cases. That is of particular importance when judicial review cases are referred from our courts to the European Court of Justice.
I conclude with some remarks from my side of the profession. The noble Lord, Lord Mishcon, referred to our side of the profession as being the "better end" of the profession. The noble Lord has so much seniority 1301 that he can get away with a comment like that. However, I certainly join with him in saying how lucky we are with our judiciary. Without a written constitution, the debate introduced by the noble Lord, Lord Irvine, becomes all the more important. While we should be aware of the interaction of the powers of judiciary, legislature and executive, I believe that each of those powers should continue to be active.
§ 6.45 p.m.
§ Earl Russell
My Lords, I have on occasion felt some regret that it has not proved possible to include in the national curriculum a basic citizen's education in law. I formed that opinion when listening to a first-year undergraduate reading an essay on the writ of "alias" corpus. There is confusion between statute and common law. Clearing up that confusion for the laity is quite important.
I am grateful to the noble Lord, Lord Irvine of Lairg, for introducing a subject that has shown this House at its best. I agree with a very large part of what he said. However, I do not altogether agree that the tension at present between the judges and the executive is unprecedented. In 1388, all the judges were impeached. In 1641, two-thirds of the judges were impeached. Once, when browsing in the Public Record Office, I came across the accounts for the diets of Judge Jeffreys in the Tower many years after he had been sent there. All were judges who had allowed themselves to get too close to the executive. So judges may take comfort from the fact that it could have been worse.
Another matter on which I do not wholly agree with the noble Lord is the idea of the separation of powers. The noble and learned Lord, Lord Simon of Glaisdale, expressed views much closer to my position. It is impossible to distinguish vires from origins. All three branches, judiciary, legislature and executive, are emanations of the King's Great Council. So it is a relationship in which the balance that the noble and learned Lord invoked is a key feature. I see it as having been over many centuries a creative tension. I am reminded of a remark by Machiavelli:Those who condemn the tension between the Senate and the people of Rome condemn that which was the very origin of liberty".That balance is the balance of a see-saw—and the day it stops moving, it is defunct. So if there is a tension from time to time, there are uses as well as dangers in it.
Occasionally, there were some quite acute confusions, which show in the early yearbooks. I believe it was Chief Justice Hengham who, in addressing counsel, once said: "Do not presume to gloss the statute to us. We understand it far better than you do, for we made it". His successor, Chief Justice Bereford was listening to counsel arguing whether something was logically implied in the Act and therefore covered, or not in the Act and therefore excluded. Chief Justice Bereford said, "He that drew the statute intended to put it in, and only left it out through inadvertence. It shall therefore be construed to be in the statute." Those are not remarks that come from a tradition of separation of powers. Nor, taking the other two powers of legislative and executive, is the example of the 1302 Select Committee of another place in the reign of Elizabeth I which, when considering a Bill on the organisation of the Exchequer, met in the private house of the Chancellor of the Exchequer. When teaching in the United States I found that producing that example opened a great many doors which otherwise took some opening. "Separation of powers" is not quite the right term. The noble Lord, Lord Renton, used the example of the noble and learned Lord on the Woolsack. It is a positively Athanasian example of the mingling of the three powers with each other.
In the division of function but not the separation of powers, there is a need for restraint. I think we should get it wrong were we to think that it was only a need for judicial restraint. The noble Lord, Lord Borrie, referred to judges having on occasion overreached themselves. No doubt that has happened. Every power overreaches the boundaries of its authority. But the executive also overreaches itself. Of the two dangers, I know which, over the centuries—for one executive is very like another—worries me more. My greatest anxiety is not focused on the judiciary.
The noble Lord, Lord Irvine of Lairg, stated that Parliament makes the law. That is an incomplete enumeration. It has been clear at least since the middle of the 15th century and, for all I know, possibly longer that a parliamentary statute is the highest form of law there is; it trumps anything else. But statute is not the only form of law. I believe, subject to correction—I have been unable to confirm it in the time at my disposal—that the first statutory prohibition of murder was the homicide Act 1956 whence legislation was necessary in order to restrict the application of the death penalty. Therefore, subject to correction, murder was simply a crime at common law. The authority of the common law cannot come from an Act of Parliament because it pre-dates the existence of Parliament. The limit of legal memory is 1189, and that is a good century before Parliament was in any significant sense a fact.
Whoever wrote Glanville and Bracton—I realise that question is disputed—they were people who did most of their work before parliaments existed. The noble and learned Lord, Lord Scarman, once said that the common law was like Topsy: it just "growed". So the basic authority of the common law must derive from prescription.
A great deal of the development of the law has been through common law cases where there is a general principle which is interpreted by the judge in the light of precedents. The noble Lord, Lord Irvine, has many times praised the late Lord Reid. I recall more years ago than I care to remember reading a Times Law Report of a judgment by Lord Reid about a case where a council had dug a hole in the pavement—as councils do from day to day—and a blind man had fallen into it and broken his leg. The governing legal principle which was agreed well enough was that the council was bound to take reasonable care to make sure that people did not fall into the hole. The point at issue was whether reasonable care included the need to take care in case there should be a blind man passing. There was a previous judgment of the Appellate Committee of this House that it was not required. Lord Reid, after very 1303 careful argument, decided otherwise. That seems to me typical of the way the common law has developed to meet new situations; to meet in that case a change in society's attitude to disabled people.
Without needing to clutter up this House with endless new statutes and regulations, we should be grateful to the lawyers that they do it that way. There is nothing new about that either. In 1632 my ancestor—my ancestors have been unlucky in being on the receiving end of test cases—the one who developed Covent Garden, was hauled into Star Chamber for creating a nuisance because he had built Covent Garden without putting in any sewers. The case first established that it was to create a nuisance to build an area of housing without putting in sewers. In that situation the common law was reacting to a growing population density. There again I think the law was reacting sensibly to change. Whether or not judgments of that sort are making new law is a matter of immense philosophical argument into which I am certain the House will not wish me to enter.
Judicial review, about which we have argued so much, rests, before the 1981 statute, on common law principles. I agree with the noble and learned Lords, Lord Cooke of Thorndon and Lord Wilberforce, that those principles go back for centuries. I once had the privilege of reading the argument of the noble and learned Lord, Lord Ackner, as he became, in the case of Ridge v. Baldwin. His earliest case cited came from the reports of Sir Edward Coke. I traced it back to source and found it was one of a sequence of very similar cases exercising a jurisdiction which seems to me to have great similarity to judicial review as it is presently constituted. But that is something which I have yet to publish and before it is taken seriously it needs peer review of another sort than that readily available in this House. However, that is my opinion for the time being. Therefore there is nothing particularly new about judicial review.
Sir Edward Coke's judgment in Bonham's case, quoted by the noble Lord, Lord Irvine of Lairg, in his lecture and to which much reference has been made, is sometimes misunderstood. As I understand it, all he was saying is what was said by Blackstone in a passage quoted by the noble and learned Lord, Lord Woolf, in his article to which reference has also been made, namely, that Acts of Parliament impossible to be performed are of no validity. If one reads the statute on which Sir Edward Coke was judging one will take the point. It is the most abominably drafted statute that it has ever been my misfortune to read.
If Parliament were to follow the example of an old lady making her will in an Agatha Christie novel and passed an Act dividing something into four equal thirds, the judges would not be guilty of any contempt of Parliament were they to fail to divide the thing in question into four equal thirds. That is all Sir Edward Coke was after.
On many occasions judgments are necessary because of the bad drafting of the original statute. The noble and learned Lord, Lord Slynn of Hadley, in the case of 1304 Bate v. The Chief Adjudication Officer—decided in the Appellate Committee of your Lordships' House a couple of weeks ago—had this to say:It is deplorable that legislation which affects some of the most disadvantaged people in society should be couched in language which is so difficult for even a lawyer trained and practised in this field to understand".I declare an interest in agreeing with that view. The clause in what became the 1990 Social Security Act, to which the noble and learned Lord referred, was one where I put myself into the doghouse by getting the House counted out dividing against it at 10 minutes to 12 at night. When the Court of Appeal held otherwise I was reminded of that famous story of the judge's children seeing crate after crate of champagne borne into the house and being told by their mother, "Daddy's been upheld in the appeal court". Alas, I was not upheld in the Appellate Committee of this House.
What that illustrates is that the clause was a last minute government amendment tabled very late on the day it was put to the vote. I wonder whether a slightly more leisurely drafting would perhaps have produced a slightly better statute. I agree profoundly with what the noble Lord, Lord Irvine of Lairg, said in his article in the lecture; that is, that one of the reasons why judges needed to do what they did is what he called the "democratic deficit"—the inability of the legislature to provide a sufficient check on the power of the executive.
When the phrase, "the intention of Parliament", is used, I sometimes wonder exactly whose intention we are talking about. I remember one occasion when we were debating the Child Support Act 1995. We were discussing Section 2 of the 1991 Act, which was introduced as a consequence of an amendment in this House. The Minister told me with great authority what had been the intention of Parliament in 1991. He was not then a Member of either House. Three people who spoke to that amendment were in the Chamber. None of us believed that our intention had been what the Minister was describing but we did think that the Minister was describing with complete accuracy the intention of the noble and learned Lord on the Woolsack in accepting what we were saying.
So when we talk about the intention of Parliament, are we actually talking about the intention of Parliament, or are we talking about the intention of the responsible Minister? So long as we have that confusion in our mouths, we are leaving the judges rather more work to do than is fair. We need to take our share of the work; and until we do, we are not entitled to complain.
§ 7 p.m.
§ Lord Williams of Mostyn
My Lords, in the very dark hours before the dawn, sometimes a shaft of light sets itself upon you and gives you infinite uncovenanted pleasure. That happened to me just about half an hour ago in your Lordships' Chamber when the noble Lord, Lord Beloff, invited me to say yes or no to whether the noble Lord was right or wrong. The noble Lord, Lord Beloff, was wrong, though he provided me with an interesting historical, nostalgic memory. I had not heard the name of the late Sir Stafford Cripps used as a bogey man since I was a small child in north Wales. My 1305 mother used to hasten me up to bed if I was slow by telling me that if I did not hurry off to bed soon Sir Stafford Cripps would come and take my thruppenny savings away from me. Sir Stafford Cripps never did and so perhaps we can leave him where he rightly belongs—in mythology and grave.
It is worth reminding ourselves of what my noble friend Lord Irvine of Lairg actually said. He began by saying in effect that the political incorruptibility of the present judiciary is not in question. He affirmed that on a number of occasions in different ways. That was manifest in every speech that was put before your Lordships today. As the noble and learned Lord, Lord Cooke of Thorndon, rightly said, the ground encompassed in the terms of this Motion is panoramic. There are deep questions about the nature of our constitutional arrangements as well as the nature, scope and quality of judicial office and judicial power. We are a fortunate regime indeed, legally speaking, to be able to have two such towering figures as the noble and learned Lords, Lord Woolf and Lord Bingham, to occupy their new positions. I say without disrespect to either of them that there were a number of other candidates who were well-qualified in a Court of Appeal that has probably never been exceeded in the quality of its intellect and judicial authority.
I would suggest that we should define some issues of principle. First, it is not possible precisely to delimit the respective powers of judges, Parliament and executive. Secondly, it is not desirable to attempt such precision, for at least three reasons. First, as the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Kingsland, pointed out, we do not have an overarching written constitution. Secondly, the modern history of this country—this was alluded to by the noble and learned Lord, Lord Ackner, in his reference to less fortunate countries in the east of Europe—shows that we are fundamentally, rightly and deeply an anti-authoritarian country. We believe in the rule of law, which, as the noble and learned Lord, Lord Lowry, said on an earlier occasion, is not a synonym for law and order but encompasses and describes a much more fundamental and nobler concept. Thirdly, changing circumstances demand changing remedies if a legal system is not to ossify and therefore become of no value.
I would further suggest that each party—Parliament, executive and judiciary—needs to have a decent reflective consideration for the claims made by the others. It is always bound to be a dynamic competition because nothing remains the same. Therefore, the answers to the questions will never be the same. They will be infinitely variable.
Part of the purpose of this debate of course arises by virtue of the insistence by some Secretaries of State recently on the exercise of unbridled, and therefore illegitimate, power. It is normally the Home Secretary but, in fairness to him, not always. This debate should not remain lodged in a period when public debate is rather febrile because we are in the expiring months of a government who are about to fall. The tensions which have been described in various ways will undoubtedly continue after the next election. There will be angry words from Labour Ministers and about Labour 1306 Ministers. I feel like an aboriginal in Australia. I have just thrown the boomerang. Next year it will come back and hit me on the back of the head. But it matters because the principles must endure, whatever the complexion of the government in power, or the struggle is valueless. If a principle obtains in June of 1996, it must obtain thereafter—in June of 1997 and following.
It is interesting to see what contribution the judiciary has made to the modern life of this country. Virtually the whole of the modern law of negligence is judge-made—compensation for individuals wronged by the illegal acts of others. There would be no system effectively of employee compensation for the negligent acts of the employer without judicial intervention. Parliament did not give proper rights. The judges provided them. The noble Earl, Lord Russell, touched on this point in his reference to Lord Reid's judgment. On the other hand, it could be said that the judges have not discharged their duty fully in keeping personal injury awards up to an appropriate level. If that is so, the remedy is available to Parliament and Parliament has not chosen to take that remedy.
The common law, it is said, can grow organically. It does not always do so. The noble and learned Lord, Lord Bingham, as I understood his lecture, was pointing to the fact that a discrete right of privacy does not exist in this country. I did not understand my noble friend Lord Irvine of Lairg to dispute the right of the noble and learned Lord, Lord Bingham, to put that forward as a proposition. What I understood him to be saying was that there are different complexions; that the question of privacy impinges on the freedom of the press; it subtly interrelates with the question of freedom of information; it also has to do with the reform of the defamation laws. Therefore, it is not always the courts which must attend to these very difficult questions. There may be occasions, particularly at a time when there is a promise from the present Government that a White Paper will be produced, when it is better for Parliament to reform than for the judges to create. I submit that that is a perfectly legitimate point of view for anyone conscientiously to hold.
The noble and learned Lord, Lord Bingham, himself in 1992 made a noteworthy speech at the Bar conference about incorporation of the European Convention on Human Rights. I believe that he was perfectly within his legitimate authority to do that. It is an expression of judicial view which he was entitled to hold and publicly express. It is right that judges should give academic lectures. It is right that senior judges—I mention three: the noble and learned Lords, Lord Woolf, Lord Nolan and Lord Templeman, over the years—should be able to discuss law reform and change on a philosophical jurisprudential basis with colleagues; for instance, in other jurisdictions like India.
The question is where the line is to be drawn. If the courts and the prisons become clogged with petty offenders who have not paid their fines for their television licences, are the senior judges entitled to complain? I believe that they are. If legislation is tortuous, confused and plain wrong, is the 1307 Lord Chief Justice entitled to say so in your Lordships' House? I believe that he is. I believe that it is part of his duty on his oath to do that.
One looks at what the judges have done in the field of crime. The protection of the illiterate, uneducated and largely unrepresented defendant was entirely brought about by the judges and not by Parliament. It was the judges who in fact erected and perfected the Judges' Rules to protect the weak defendant. Parliament did not do that: it closed its eyes. It is the judges who have taken to themselves the power, which may not always be appropriately exercised, for striking out criminal cases for abuse of power or for abuse of the system. Parliament gave them no such right. The judges have taken it to themselves and many would say that in a free society they have rightly done so.
There must be a much more subtle interplay between the judges and the legislature than some speeches have implied. Many of the judges and many practising lawyers colluded, as we all know to our shame, in a system which produced many miscarriages of justice. Eventually, that meant legislative intervention in the form of the Police and Criminal Evidence Act. On another occasion, following headline miscarriages, the executive intervened. The then Home Secretary directed the setting up of a Royal Commission nobly chaired, if I may say so, by the noble Viscount, Lord Runciman. Following that report Parliament re-intervened by passing some of the appropriate legislation. So the dynamic which I earlier described is capable of working without the embattled judiciary, the envious legislature or the overweening executive, each settling into its respective trench thinking that there is no good in this partnership which is capable of being alive and valuable.
I turn very briefly to public controversy. I respectfully agree with what the noble and learned Lords, Lord Cooke of Thorndon, and Lord Lowry, said. For instance, it would be wrong for a practising judge, however senior, to conduct a public campaign on something as controversial perhaps as abortion. However, senior judges now have to deal with questions which I take almost at random: when is it lawfully allowable to cut off a life support system from a patient who has been in a coma for many years? When is it appropriate in law for a conscientious doctor to carry out a sterilisation operation on a mentally defective young woman who is sexually active? This is a judicial power which no judge that I have ever spoken to is greedy to take. They are obliged to take those powers because Parliament has been too busy, too supine or too fearful to define the limits of those activities.
The noble and learned Lord, Lord Simon of Glaisdale, mentioned the use of judges in inquiries. I believe that there are significant dangers there. There are enormous benefits in having the independence of the noble and learned Lord, Lord Nolan, Sir Richard Scott, the noble and learned Lords, Lord Woolf and Lord Taylor, and, just a few years ago after Aberfan, Lord Edmund-Davies. But it was a very wrong consequence of Sir Richard Scott's report that there was an officially orchestrated, mischievous, wilful campaign to undermine the judge who had done no more than his 1308 public duty. When people suggest, quite improperly, by misrepresentation of what he said, they might care to re-read the debate which your Lordships had at some length to see who supported Sir Richard Scott and who did their best to undermine him.
The Law Commission does extremely important work. We shall not be able to look to High Court judges to chair that commission if the sort of unscrupulous campaigns that we have recently seen continue. I refer to Mrs. Justice Hale and now Lord Justice Brooke. I shall say nothing about judicial review because I cannot improve on the masterly exposition which the noble Lord, Lord Borrie, gave. I simply wish to offer this as a proposal: all we can hope for in a civil society bound by law is a decent, honourable understanding that there are competing claims. Each of those claims may be of apparent legitimacy; not all of them can always be perfectly reconciled. If we understand that, the problem sets itself in appropriate proportion.
§ 7.15 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I certainly wish to thank the noble Lord, Lord Irvine of Lairg, for introducing this debate. I do not follow my noble friend Lord Beloff into particular speculations, but I am indebted to the noble Earl, Lord Russell, for the remark of Mr. Enoch Powell that the amateur in politics is the one who predicts the result of the next general election. Accordingly, it would not at all surprise me to find the noble Lord, Lord Williams of Mostyn, still sitting comfortably where he is this time next year.
As the noble and learned Lord, Lord Cooke of Thorndon, said, the subject matters in this debate are extremely wide. I do not believe that your Lordships would thank me if I were to try to encompass all that has been said. I wish to start by reference to the judiciary. We are extremely fortunate in this country in the quality of our judiciary. I was very glad to hear that said from a number of parts of the House and perhaps particularly what the noble Lord, Lord Williams of Mostyn, said about the standard of, among others, the Court of Appeal at the present time. I agree with the view that there were a number of very worthy candidates for the highest offices in our judiciary. That is a great tribute to the judiciary. As the noble Lord, Lord Mischon, said, there is an element of sacrifice for many in joining the judiciary. In my experience it is a sacrifice which is very willingly made. It is embraced as an honour by those who receive these offers, and for that I am extremely grateful.
We also have a judiciary whose independence, as individual judges from one another and from any improper influence, is also superb and complete. I certainly do not know of anyone who has successfully attempted—or indeed has attempted without success—to influence the decisions of the judges in the cases committed to them. The essence of judicial independence is that the judge trying the case is free to decide it according to his judgment in the light of the existing law. That applies to the individual case and that is the essence of judicial independence.
1309 The independence of the judiciary—in agreement, for example, with my noble and learned friend Lord Simon of Glaisdale—is an important part of the checks and balances of our constitution. The jurisdiction which the judges exercise right across the board is fundamental to the rule of law. I agree with the view that the rule of law is a deeper concept than just that of law and order.
I, too, very much support the view that judges have developed the law over the centuries. The extent to which that is permissible for them is not easy to formulate. I have seen various attempts in recent times to define the boundary between what is a proper development and what is not. Like some of my noble and learned friends in the Judicial Committee in recent times, I find it difficult to enunciate what that boundary is. That can sometimes be seen in the difference of views between my colleagues as to whether that boundary has been passed. If the boundary were clear, one would not expect such a difference of opinion. In my submission, that development of the law is part of the traditional role of the judges over the years under our system. It has been a healthy and a powerful influence on the law and on the development of the law and the protection of our people in the various centuries when it has been done, and it continues with complete health and robustness at the present time.
Judicial review is a particular part of that judicial function. My noble and learned friend Lord Wilberforce, who has played a vitally important part in the development of the jurisdiction in the years during which he has served particularly in your Lordships' House, gave an exposition which I would not seek to modify in any way.
The noble Lord, Lord Borrie, was involved almost as a litigant. He was an adviser, whose advice underlay a decision that was called into question in the Divisional Court. His reaction to that decision by the Divisional Court is not an uncommon reaction among litigants who find that a court has in some way differed from them. His reaction was to say that the court had in some way overreached itself or gone wrong. That feeling is quite common among litigants. It sometimes affects even Ministers of the Crown who happen to be overruled. The noble Lord, Lord Borne, is fortunate in this respect: the Court of Appeal and ultimately the House of Lords agreed with his point of view. He was therefore able to have a comfort which some litigants are not able to attain.
On that aspect of the matter, the important point to underline is the impartiality of the judiciary. I do not believe that the impartiality of our judiciary in this country is in doubt and I did not understand the noble Lord, Lord Irvine of Lairg, to suggest that. I may have misunderstood what the noble Lord, Lord Rodgers of Quarry Bank, said, but whatever the position with regard to his remarks, I do not believe that there is any question about those of the noble Lord, Lord Irvine.
Some questions have been raised about developments in the law. I refer, for example, to Pepper v. Hart. That matter was raised by the noble Lord, Lord Monkswell. As the lone dissenter in the Judicial Committee on Pepper v. Hart, I would be glad to have the noble Lord's 1310 support for the view that that decision was not correct. Unfortunately, however, I do not feel that I can embrace that support because I do not for a moment take the view that the decision of the majority had the effect that the court would take what the Minister said was the meaning of an Act of Parliament as binding it. With great respect to the noble Lord, I think that that is a misreading of Pepper v. Hart. Your Lordships may remember that among the majority on Pepper v. Hart was my noble and learned friend Lord Ackner and he would be unlikely to subscribe to the view that a Minister could tell the court what to do even in that indirect manner.
The next point which I think is important in relation to the position of the judiciary is the supremacy of Parliament. A good deal has been said about that and I do not propose to elaborate upon it. I had intended to quote the passage from the letter to The Times by my noble and learned friend Lord Taylor of Gosforth. However, as it was quoted by the noble Lord, Lord Mishcon, I do not need to repeat it. It is a most clear, succinct and authoritative modern statement of the position and has lost none of its authority by the sad fact that my noble and learned friend has now resigned his office as Lord Chief Justice of England. I believe that the supremacy of an Act of Parliament, and the giving of effect to an Act of Parliament according to the meaning which a judge concludes that it has, is the basis on which courts exercise jurisdiction and give full effect to Acts of Parliament.
Some points have been made about the difficulties which give rise to judicial review, to which I shall return later, arising from the nature of the legislative process. Comments have been made about the effectiveness or otherwise of the other Chamber of Parliament. I would not wish to cast any aspersion whatever on the work of either House of Parliament. It is worth remembering, particularly in view of what the noble Lord, Lord Kennet, said, that this Government instituted the system of Select Committees in Parliament to oversee the activities of particular departments. That is a new and effective method of supervision of the executive by the legislature. I believe that it is a considerable change, enhancing the method by which the legislature can call the executive to account.
The position of the judiciary in relation to the conduct of inquiries has been mentioned. I entirely agree with the view that that has benefits as well as risks. However, I consider that it is a high tribute to the general esteem in which members of our judiciary are held by the public that when a difficult matter has required resolution successive governments have taken the view that the inquiry should be in judicial hands—although not necessarily in judicial hands only. There is sometimes a judicial chairman but sometimes the judge sits alone. I believe that that has advantages from time to time. Of course, there are dangers in that but, on balance, I consider that our practice of using judges rather sparingly for that purpose attains the correct balance.
I come now to the question of the relationship between judges and the public in relation to lectures and other public utterances. I agree strongly with my noble and learned friend Lord Woolf that it is absolutely 1311 fundamental that judges and other lawyers should be able to participate in discussion of developments in the law. Public lectures have been a well authenticated way of doing that over many years.
There is a risk these days that what the judge says may be taken out of context because it is unusual for the press to quote fully from such a lecture. To some extent, quotations are likely to be selective and may be interspersed with comments which the ordinary reader may find difficult to dissociate from the actual text of the lecture. Therefore, it is possible for statements made by the lecturer to appear in the public press in a way which would not strike the hearer of the lecturer as exactly in accordance with what he heard when attending the lecture. One example of this is the matter to which the noble Lord, Lord Irvine of Lairg, referred. My noble and learned friend Lord Bingham recently gave a lecture about the law of privacy. In the very last paragraph he said:The lecturer who asks himself a question must answer it".I am sure that your Lordships applaud that idea. He continues:So I do. Should there be a law to protect rights of personal privacy? To a very large extent the law already does protect personal privacy; but to the extent that it does not, it should. The right must be narrowly drawn, to give full effect to the right of free speech and the public's right to know. It should strike only at significant infringements, such as would cause substantial distress to an ordinarily phlegmatic person. My preference would be for legislation, which would mean that the rules which the courts applied would carry the imprimatur of democratic approval. But if, for whatever reason, legislation is not forthcoming, I think it almost inevitable that cases will arise in the courts in which the need to give relief is obvious and pressing; and when such cases do arise, I do not think the courts will be found wanting".I do not regard that as an indication on the part of my noble and learned friend that judges would create legislation. As I understand it, he says that if a particular case arises in which a remedy is obviously required as a pressing matter the courts will not be found wanting in granting it.
Apart from matters such as lectures, my noble and learned friends Lord Cooke of Thorndon and Lord Lowry counselled caution. I am sure that those counsels are wise. Reference was also made to the risks to those who keep quiet. As my noble and learned friend Lord Lowry reminds us, Proverbs tells us that there is considerable benefit in keeping quiet, because even if a fool keeps quiet he will be accounted wise. I believe that that was substantially the basis of the Kilmuir Rules. However, I felt that on the whole judges could be credited with judgment in this matter and therefore I adopted the course described, which I hope your Lordships will regard as wise in the circumstances. I do not believe that it has been subjected to criticism by any of your Lordships, and for that I am glad.
My noble friend Lord Beloff raised the question of Europe. The judges of the European Court of Justice are judges who, by virtue of an Act of our Parliament, give judgments which may be effective in this country, in the sense that our courts may be obliged to give effect to them. That arises by virtue of Acts of Parliament of the United Kingdom: the European Communities Act 1972 1312 and Acts which amend it. These judges are surely entitled to the same kind of independence as those who sit in the United Kingdom. They have to construe texts which are less precise for the most part than those which judges are required to construe in the United Kingdom. Those are matters that one has to bear in mind in considering the European Court of Justice. Of course, the European Court of Human Rights is a different tribunal. Its judgments are not directly binding in domestic law in this country. They are binding in international law as a convention commitment and Parliament considers what should be done. It may or may not alter the law according to what it considers is required in the light of the judgments of that particular court.
My noble and learned friend Lord Ackner referred to a number of matters. I believe that most of them are fully dealt with in the passages in Hansard to which he referred. I do not believe that your Lordships would expect me to read them out now. My reply to the last case to which he referred took about an hour. I imagine that your Lordships would not find it convenient if I read that now.
This has been a valuable debate. I believe that the relationships between Parliament, the executive and the judiciary and the extent to which the judiciary should participate in public debate are important matters. Further, I believe that there is a large degree of consensus in the speeches that your Lordships have kindly contributed on the proper role of each of these institutions and their inter-relationship. For that I am extremely grateful.
§ 7.35 p.m.
§ Lord Irvine of Lairg
My Lords, I am grateful to all noble Lords and noble and learned Lords who have participated in this debate. I believe these issues to be of great public concern. Contrary to what the noble Lord, Lord Rodgers of Quarry Bank, appeared to suggest, I emphatically did not express or imply any lack of public confidence in the political impartiality of judges. I said in terms, as Hansard tomorrow will show, that in my judgment there was no question today about the political impartiality of judges. I do believe, however, that there is much public perplexity about the current issues that have arisen between judges and Ministers and that this debate will go a good way to meet that perplexity.
These issues are not to be passed by in embarrassed silence; they are for discussion in Parliament. I am convinced by the many contributions to this debate that it was right to move this Motion. I was particularly appreciative of the observations to that effect by one of the most senior and respected Members of your Lordships' House, the noble Lord, Lord Boyd-Carpenter. Likewise, I am appreciative of the observations to that effect of the noble and learned Lord, Lord Simon of Glaisdale. The noble and learned Lord thought that on the basis of a public lecture that I had delivered, to which he was kind enough to refer, I had modified my views in this debate. If in future anyone chooses to read my lecture and my opening of 1313 this debate he will find that my views are wholly consistent. But I would say that, would I not? That is for others to judge.
I take this opportunity to agree with the noble and learned Lords, Lord Simon of Glaisdale and Lord Woolf, that lectures by sitting judges are to be welcomed. I have listened to many to great advantage, and I encourage them to go on giving such lectures as long as there are audiences for them. I am confident that that will always be so as long as the lectures are of the quality of the lectures of the noble and learned Lord, Lord Woolf. However, in his speech the noble and learned Lord took issue with my questioning in a public lecture something that he had said in a public lecture in 1994. We share an affection for public lectures and, I am sure, for fair and rational controversy. I do not accept that I quoted him out of context. I will not take the argument further but leave both lectures to be read and judged for themselves.
I was heartened to hear the noble and learned Lord, Lord Wilberforce, bring into play the heavy force of his opinion in asserting as strongly as he did that Lords Wright and Reid were absolutely correct to declare that the courts would never question, and could never question, the validity of an Act of Parliament.
I repeat my personal hostility to any legislative attempt to restrict judicial review which I believe directly promotes the rule of law. I enjoyed the first half, if I may say so, of the contribution of the noble and learned Lord, Lord Ackner. I am sure we were all delighted to learn that he has been so widely travelled in recent years. I did not, however, suggest that the 1989 Green Paper exclusively concerned rights of audience. I dare say that he might himself recall that I spoke out against any abolition of the Lord Chancellor's Legal Aid Advisory Committee.
I am sorry that the debate disappointed the noble Lord, Lord Beloff. He has such high standards, and as he told us himself his own speech broke entirely new ground. But deep cynicism, worthy indeed of Talleyrand whom he invoked, must have taken hold of the noble Lord's vitals before he could suspect that the Labour Party harboured any intention to restrict the judiciary. It does not. The role and independence of the judiciary will be vigorously upheld by the next Labour government which, I can assure the noble and learned Lord on the Woolsack, there will be.
I shall just put the rather jaundiced observation—if he will forgive me—of the noble Lord, Lord Beloff, down as an early harbinger of the scaremongering to which some in the next general election campaign may feel increasingly driven to resort. I believe that the debate will stand for some considerable time as the major source of contemporary opinion and judgment on these issues. I repeat my thanks to all noble Lords who chose to participate. I beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.