§ 3.15 p.m.
§ Lord Desai asked Her Majesty's Government:
§ What is their response to the McGonnell judgment of the European Court of Human Rights in relation to the position of the Lord Chancellor.
§ The Lord ChancellorMy Lords, the position of the Lord Chancellor is unaffected by this decision. It is confined to the special position of the Bailiff of Guernsey and to his role in that particular case.
While this decision was awaited, there was a great deal of excitable speculation that Article 6 of the ECHR, which guarantees a fair trial, would set aside some of our basic constitutional arrangements. I have always said that that would be proved wrong; it would be extraordinary if it were not. The question in every case is whether Article 6 is complied with on the facts. The European court confirmed that, saying:
the question is whether, in a given case, the requirements of the Convention are met".656 The court also accepted the Government's submission that neither Article 6 nor any other provision of the convention required,States to comply with any theoretical concepts as such".That, too, is what I have said.There are some absolutists (I hasten to say that my noble friend is not among them) on the doctrine of the separation of the powers—as distinct from British pragmatists—but they get no comfort at all from McGonnell.
§ Lord WaddingtonMy Lords, will the noble and learned Lord the Lord Chancellor bear in mind the conclusion of the Wakeham commission which pointed out the usefulness of having the Law Lords continue to sit in the second Chamber? The report also mentioned that it was important that the Lord Chancellor should continue to exercise the same functions in the second Chamber. However, having said that, perhaps I may say that I welcome enormously the remarks made by the noble and learned Lord the Lord Chancellor. We have had a great deal of constitutional upheaval and I am glad that we shall be spared yet more upheaval over this issue given that the present system works very well.
§ The Lord ChancellorMy Lords, I shall attempt a short answer to the noble Lord's question. I welcome the Wakeham commission's comments on the Law Lords, as does the noble Lord. They have direct, high quality, practical experience of the administration of justice. That is what makes their contributions so valuable to your Lordships' debates on this subject. The quality of what they say enhances our debates. They are much appreciated and I am glad to say that this ruling does not begin to compromise their independence or impartiality.
§ Lord Lester of Herne HillMy Lords, speaking as a non-absolutist pragmatist—as is the noble and learned Lord the Lord Chancellor—does he also agree with the Wakeham commission recommendation that it would be wise for the Lords of Appeal to publish an up-to-date statement of current constitutional practice so as to ensure that those who wear two hats—one legislative and one judicial—or even three, as in the case of the noble and learned Lord the Lord Chancellor, are able to explain the new principles to be applied to ensure that there is no future case like McGonnell ill which Article 6 must be relied upon?
§ The Lord ChancellorMy Lords, I believe that McGonnell usefully reinforces the circumspection required of the Law Lords when they participate in the legislative process. When they participate in your Lordships' debates, it would, of course, be prudent for them to abstain from concluded views of a judicial character on issues which might later disqualify them from adjudicating should those issues come before them. The Wakeham commission recommended in Recommendation 59 that the Lords of Appeal should set out in writing and publish a statement of the principles that they intend to observe. The noble Lord, 657 Lord Lester, drew attention to that. The senior Law Lord has informed me that the Law Lords will discuss that matter at their next meeting later this month.
§ Lord BorrieMy Lords, given that a very wide range of cases comes before the House of Lords in its judicial capacity, is it not better that the Lord Chancellor and future Lord Chancellors use their discretion to ensure that they comply with Article 6, rather than that there should be any general ban forbidding the Lord Chancellor dealing with, and gaining experience of, judicial cases?
§ The Lord ChancellorMy Lords, I agree. Noble Lords will appreciate that there are very many appeals—a multitude of appeals—in which on no conceivable reading of McGonnell could there be any objection to the Lord Chancellor sitting; for example, in cases arising under the common law where there is no issue concerning any statute arising. Your Lordships can rest assured that I shall take care to ensure that I do not sit in cases where to do so would infringe Article 6.
Lord RentonMy Lords, bearing in mind that under our constitution the separation of powers has been ignored for centuries, does the noble and learned Lord agree that there is some advantage in having him preside over your Lordships' legislative Chamber as responsible for the legal system and as a member of the Cabinet, and that that co-ordination of powers under his responsibility is an advantage within our constitution?
§ The Lord ChancellorMy Lords, I clearly believe that the role of the Lord Chancellor in upholding the independence of the judiciary—an important unwritten article of our constitution—is vital. The noble and learned Lords who have held this office previously have said—I must agree with them—that the office acts as a strong buffer between the judiciary and the executive. The office will be the more necessary in that regard as decisions come forward under the Human Rights Act which inevitably will not give pleasure to all and may sometimes give displeasure to government.