HL Deb 27 April 2004 vol 660 cc687-90

3.8 p.m.

Lord Lester of Herne Hill asked Her Majesty's Government:

Whether, following comments by the Home Secretary on the release of an Algerian man suspected of having terrorist links, criticism by Ministers of the Crown of decisions of the courts in cases to which they are party is an attack on the rule of law.

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)

My Lords, the rule of law is fundamental to our constitutional democracy and must be safeguarded accordingly. This Government have always strongly defended the rule of law and will continue to do so. Given this responsibility, the Government are not in the same position as other litigants who are entirely free to express views about decisions against them. But the Government are entitled to disagree with particular decisions, both in Parliament and as part of our wider executive responsibilities, without undermining in any way judicial independence and the rule of law. I have discussed the approach that I have set out with my right honourable friend the Home Secretary and the noble and learned Lord the Lord Chief Justice. We all agree that this is the right approach.

Lord Lester of Herne Hill

My Lords. I thank the noble and learned Lord the Lord Chancellor and Secretary of State for that careful, considered and helpful reply. This is not the first occasion on which the present Home Secretary has made an instant and angry attack on a judicial decision without, of course, the judge having any opportunity to reply. He did so in an asylum case early last year. If the noble and learned Lord has further discussions with the Home Secretary, will he bring home to him, in addition to the helpful formula about which he told us, how harmful it is to the rule of law to make such attacks? Would he look favourably on an amendment to Clause I of his Constitutional Reform Bill to make it clear that his duty and that of any successor will be not only to guarantee judicial independence but to secure and maintain the rule of law?

Lord Falconer of Thoroton

My Lords, I think that the line that must be drawn is between legitimate disagreement, which is plainly permissible even for the Government, as long as it is measured, and something that is intemperate and undermines the rule of law. In the light of remarks that have been made, I have closely considered the detail and am quite satisfied that my right honourable friend was measured in what he said. One must be careful to distinguish what he said from what else was said about the issue by other people. As far as I am concerned, he was measured in his response.

Lord Ackner

My Lords, should we not take comfort, however small, from the fact that the Home Secretary seems, if he is correctly reported, to wish to have access to the courts—the Court of Appeal in particular—rather than seeking to oust the jurisdiction of that court, as was attempted in Clause 14 of the recent Bill?

Lord Falconer of Thoroton

My Lords, it is important to stress two things. In all my right honourable friend's remarks, he has made it absolutely clear that the court that made the decision is a superior court of record and we have, as a matter of legislation, decided that it should make the decision. We fully accept that. He quite legitimately raises the issue of whether there should be appeal to a higher court, and that can be considered by this House by way of amendment to a Bill currently before the House. I believe that to be a responsible approach, because it is permissible, as long as it is done in a temperate way, to disagree with the decisions of the court.

Lord Borrie

My Lords, does my noble and learned friend recall that my noble and learned friend the former Lord Chancellor suggested that Ministers should normally refrain from cheering those decisions of which they approve and booing those which they dislike'? But would it not be a counsel of perfection to expect a Minister never to criticise a decision of the courts that seems to him to frustrate the policy for which he is responsible to Parliament and to the people? Surely, that is nothing to do with any attack on the rule of law, as suggested by the noble Lord, Lord Lester.

Lord Falconer of Thoroton

My Lords, I agree with the broad approach proposed by my noble friend Lord Borrie. In the case that we are talking about, quite legitimately, the Home Office made submissions which the court was quite entitled to reject. It is obvious from that that the Home Office took a particular view, but it fully accepts that the decision is ultimately for the courts. It inherently disagrees with the approach taken, but it both accepts the authority of the court— as it must because of the rule of law—and raises the question of whether we should amend an Act of Parliament to allow an appeal. With respect, I believe that to be a perfectly legitimate response.

The Lord Bishop of Worcester

My Lords, does the noble and learned Lord agree that there is an issue here that we all need to consider? It has to do with the culture of public criticism in which we live and in which an absence of restraint has its own dangers. It is perfectly clear that people who hold privileged positions have to have regard to the fact of their position in deciding what to say. Is it not possible that if unrestrained criticism of judgments becomes fashionable, the judiciary may start to arrogate to itself the right of reply? In that case, does not the abyss open up of a society that cannot distinguish between a judgment and a political speech? Does the noble and learned Lord agree that we all have the responsibility to exercise such restraint as will prevent that happening?

Lord Falconer of Thoroton

Yes, my Lords, I agree with what the right reverend Prelate says. As I said in my initial reply, I believe that the Government are in a wholly different position from that of other people. Private citizens are entitled to criticise judgments with less restraint than the Government. The Government have a responsibility, which my right honourable friend the Home Secretary accepts, only to disagree and not to do anything that could undermine the rule of law. That must be the approach, because the dangers identified by the right reverend Prelate plainly exist otherwise.

Lord Kingsland

My Lords, bearing in mind the importance of the principle of the separation of powers, to which the Government attach great importance in their current proposals for constitutional reform; and bearing in mind the concordat recently achieved between the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Chief Justice, restraining the intrusion of the judiciary into legislative and executive matters; does the noble and learned Lord not think that the time has come for him to conclude a similar concordat with the Home Secretary, restraining the Home Secretary from intruding into matters that are properly the province of the judiciary?

Lord Falconer of Thoroton

My Lords, I am glad that the noble Lord said that, because, as I said., the approach I set out, which is the right approach for the Government to take in commenting on decisions, is agreed between me, my right honourable friend the Home Secretary and the noble and learned Lord the Lord Chief Justice. So there is agreement, the noble Lord will be glad to hear.