Lord Chancellor: Judicial Functions (Hansard, 24 June 1999)

§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, the Government do not intend to bring forward 1061 any proposals to abolish the judicial functions of the office of Lord Chancellor. The value of the office, with all the authority within government which it carries, is that it both upholds judicial independence and mediates between the executive and the judiciary when occasion for controversy arises. The Lord Chancellor is able to perform that function both because of his seniority in Cabinet and because he is head of the judiciary and sits as such from time to time in the chair, on important appeals.

§ Lord Patten
My Lords, I am very grateful to the noble and learned Lord the Lord Chancellor for that Answer. I hope that he will accept that I respect both the office of Lord Chancellor and himself. I hope that he will also understand that as someone who is both politically and constitutionally a Conservative, I sometimes believe that it is necessary in the interests of respecting institutions to promote organic and sensible change and to conserve respect for those institutions in that way. Therefore, does not the noble and learned Lord the Lord Chancellor recognise, as a Minister who is turning his reforming zeal upon this House and turning out so many of my hereditary colleagues, that he may well wish to turn some of that reforming zeal upon himself and the holders of his own office and seek to thoroughly modernise the office of Lord Chancellor, which is unique in the known world in combining legal duties, duties of a senior government Minister, making laws, and sitting in judgment upon people who are before the court under those laws?

§ The Lord Chancellor
My Lords, the fact that some things or institutions call for modernisation does not mean that every one does. As the noble Lord has described himself as one who has affection for tradition, he may be interested to know that the evidence to the Wakeham Commission on House of Lords Reform by the Judges' Council, which represents the whole judiciary of the High Court and the Court of Appeal, is, that the Lord Chancellor's dual position as head of the judiciary and a Cabinet Minister with responsibility for the administration of justice, should not be affected by the outcome of House of Lords reform".

§ Lord Strabolgi
My Lords, perhaps I may ask my noble and learned friend whether the Question of the noble Lord, Lord Patten, is not based on a false premise, as in this country we do not apply strictly the doctrine of the separation of powers. Has not this pragmatic development brought distinct advantages?

§ The Lord Chancellor
My Lords, I agree with my noble friend. Those who advance the argument which lies behind the Question proceed on the basis that the doctrine of the separation of powers between the legislature, the executive and the judiciary either does or should apply strictly in this country. It does not. We fashion our constitutional arrangements pragmatically. If we applied the doctrine of the separation of powers 1062 strictly, no Cabinet Minister would ever sit in a House of Parliament, as in the United States of America. But in Britain, all Cabinet Ministers do, and rightly.

§ Viscount Cranborne
My Lords, will the noble and learned Lord the Lord Chancellor accept my congratulations, which arise from his Answer to my noble friend? It is with the greatest of pleasure that I, for one, welcome him to the ranks of the High Tories.

§ The Lord Chancellor
My Lords, I am a member of the ranks of the rationalists.

§ Lord Borrie
My Lords, does my noble and learned friend agree with me that at least since the beginning of the century the presence of the Lord Chancellor in the judicial proceedings of the House of Lords has been of added value, particularly in the fields of public law, public administration and judicial review? Does he further agree that given that in the latter part of this century far fewer Law Lords have had experience of politics, it is now of even greater value for the Lord Chancellor to be willing to sit on judicial proceedings than may once have been the case?

§ The Lord Chancellor
My Lords, I agree with all of that.

§ Viscount Bridgeman
My Lords, does not the noble and learned Lord accept that, as a result of the Human Rights Act and the devolution legislation, the political pressure on the Judicial Committee, of which the Lord Chancellor is a member, will increase?

§ The Lord Chancellor
My Lords, there are two parts to a proper answer to that question. First, the occasions for controversy between the judiciary and the executive may increase as a result of the implementation of the Human Rights Act and the role of the judiciary in settling disputes under the devolutionary settlements. It is all the more important, therefore, that there should be a strong Lord Chancellor to mediate, to act as a buffer, between the judiciary and the executive. Secondly, the implementation of the Human Rights Act involves only a change of degree and not of kind. The judges in the House of Lords and elsewhere have traditionally handed down judgments which have a strong politically controversial dimension. Your Lordships should think of the landmark cases on civil liberties, trade union immunities, citizens' rights in time of war, natural justice, freedom of expression and the whole modern development of judicial review. The Human Rights Act does not make a difference of kind, only a difference of degree.

Lord Renton
My Lords, does the noble and learned Lord agree that it is a great advantage to have at least one Cabinet Minister responsible for achieving co-operation between the Government, the legislature and the judiciary and that that has been achieved by 1063 Lord Chancellors over the years? Does he further agree that if change is not necessary, it is necessary not to change?

§ The Lord Chancellor
My Lords, I agree with that and do not cast myself in some Burkean role as a High Tory in doing so. I believe in improving our traditions while we transmit them; but if our traditions have got it just about right, in leaving them as they are.

§ Lord Brightman
My Lords, on a lighter note, will the noble and learned Lord the Lord Chancellor allow me to remind him that there is still in the Royal Courts of Justice a court which is called The Lord Chancellor's Court? In my youth, the Lord Chancellor would come to that court and take his seat for a few moments at the beginning of the legal year. Will the noble and learned Lord consider reviving that happy custom?

§ The Lord Chancellor
My Lords, I shall certainly consider it. It is an attractive and beguiling possibility. I shall look at it with care when my workload diminishes.