THE RULE OF LAW

HL Deb 07 December 2004 vol 667 cc738-49

This Act is not to be construed in a way that would adversely affect—

1. (a) the existing constitutional principle of the rule of law, or
2. (b) the Lord Chancellor's duty (not cognisable in law) to respect that existing principle in the exercise of his functions."

The noble and learned Lord said: My Lords, the House has on several occasions considered how to ensure that reform of the office of Lord Chancellor does not weaken the protection for the rule of law. I hope that today we can move towards a settlement of this most important of issues.

It is trite to say that we have no codified constitution, although we have statutes of particular constitutional significance such as the European Communities Act 1972 and the Human Rights Act 1998. So we have no single source that definitively states what the place of the rule of law is in our constitution. That it has a role is undeniable.

There is a significant measure of agreement in the House about the importance of the rule of law and the Lord Chancellor's role in relation to it. Where we have disagreed, however, is in seeking to translate those shared goals into appropriate statutory language. I completely understand the desire on the part of noble Lords to match the strength of their feelings on the issue with similarly strong language in the Bill. However, in our desire to ensure continued protection for the rule of law, we must be immensely careful that we do not inadvertently disturb other crucial arrangements of our constitution or even undermine the rule of law itself by doing away with one of its most important aspects, legal certainty.

The Government have no problem in accepting that the rule of law must and does guide the actions of Ministers and all public officials. It is also clear that Ministers and other public officials must comply with the law. That obligation is enforceable in the courts. So, if a Minister acted beyond his powers or used them for a purpose other than that for which they were intended, he may have his actions overturned by the courts. It is now settled that Ministers can be required by the courts to take or not to take certain actions, and if the Minister disobeys such an order he can be held in contempt. With that in mind, I shall outline two fundamental issues that need to be addressed in the attempt to legislate with respect to the rule of law.

First, the notion of the rule of law cannot be expressed in the form of an ordinary legal rule. Such a rule cannot itself determine whether the law in general always prevails. There is a paradox in trying to formulate a legal rule that determines the status of the law. Such a rule must be open to the interpretation that it is referring to standards that lie outside—and, in a sense, above—the law. That leaves open the question of which prevails when the two come into conflict.

If we are not careful, we could be taken as seeking to create a special rule with a higher status than that of the law itself, including primary legislation. That would be to limit the sovereignty of Parliament by reference to the rule of law. The question of which prevailed in the event of conflict would have to be resolved by the courts. That is something that we cannot contemplate. A rule of law can never, in our constitution, enable individual cases to be decided by the courts in such a way as to invalidate an Act of Parliament validly passed. Such a radical and fundamental constitutional change surely must not be enacted by Parliament in a Bill devoted to limited reforms relating to the Lord Chancellor and the judiciary.

The second issue is that the success of the rule of law in our system has never been dependent on grand statutory exhortations. That success has been assured by a delicate and gradually evolved institutional balance based on a mixture of convention, practice and law. There is no single or even privileged guardian of the rule of law in our constitution. A statutory statement that singles out one of the major actors risks undermining the position of the others.

I do not regard either of those fundamental issues as necessarily fatal to any provision in the Bill concerning the rule of law, but I think that they need to be extremely carefully thought through and resolved satisfactorily before we can commit to any amendment. We and others have been grappling with the issues for some time now and have come up with what we think is a workable and appropriate solution.

I believe that my Amendment No. 1 would meet the objective of preserving the existing position in relation to the rule of law while avoiding broader constitutional effects, particularly in relation to parliamentary sovereignty. My amendment seeks to maintain the balance in our constitutional arrangements and to preserve the sovereignty of Parliament, while providing the clarity and reassurance that the House has rightly sought with respect to the rule of law.

The obvious way of providing that reassurance, while properly addressing the issues I have outlined, is to keep in mind the specific issue that we are trying to address; namely, the perceived threat to the rule of law from the changes the Bill will bring about, particularly the reform of the office of Lord Chancellor.

We should start with a proposition about what the Bill is not to be taken as doing. The proposition is that it should not be taken as detracting from the rule of law, as it is currently understood as a principle of the United Kingdom constitution. The amendment acknowledges the rule of law as a principle of the constitution of the United Kingdom. This is, to my knowledge, unique in statutory language in this country and represents a powerful statement of the Government's commitment to the rule of law. It does not, however, create any legal paradox or create ambiguity with respect to other constitutional principles. Most importantly, it does not detract in any way from the principle of parliamentary sovereignty. The reference in the amendment is to the existing principle of the rule of law, which is, and will remain, subject to the sovereignty of Parliament.

The second effect of the amendment is also to state what the Bill is not to be taken as doing, but this time with specific reference to the office of Lord Chancellor. Subsection (2) recognises that the Lord Chancellor has had, and will continue to have, a duty to respect the rule of law in the exercise of his functions, and states that the Bill cannot be interpreted as affecting that duty adversely either.

Members of the Select Committee, many of whom I am glad to see in the Chamber today, and other followers of this debate will note that I have listened to concerns that my previous amendment was too narrowly drawn, in that it related only to those statutory functions conferred on the Lord Chancellor in the Bill. I accept that it is right that the duty should relate to all of the Lord Chancellor's functions, which would include his duty to speak up, if necessary, in Cabinet, and we have so provided in this amendment.

I hope that it will also have been noted that this amendment also refers to the Lord Chancellor's duty to "respect" the rule of law. I have considered carefully our last debate on this issue and I accept that the term "respect" is preferable in this context, as the noble Lord, Lord Goodhart, said.

Throughout the debates we have had on the rule of law, the contention has been that the Lord Chancellor has always had a role with regard to the rule of law and that it is important that we do not inadvertently lose or diminish that role. There has also been general, if perhaps not universal, agreement that such a duty was a political one—that it was not a duty to be enforced in the courts. My amendment seeks to give effect to both these lines of argument: it acknowledges that the Lord Chancellor has a duty with regard to the rule of law and it acknowledges that that duty is not one that is cognisable as a matter of law. It will ensure that the rule of law features in the deliberations of the reformed Lord Chancellor in the same way as it does now with the existing Lord Chancellor. But it does this in a way that does not have wider, unintended effects.

I shall now deal with the two other amendments in this group. First, we have Amendment No. 6, tabled by the noble Viscount, Lord Bledisloe. The noble Viscount made it clear in Committee that he would return to this issue on Report. Although I fully understand his reasons for doing so, I confess to some disappointment that the amendment before us now is identical to that tabled in Committee. I recognise, however, that the noble Viscount will be similarly disappointed to hear that I remain unable to accept this amendment. It fails to engage with either of the fundamental issues that I outlined earlier. It simply assumes that a duty to uphold the rule of law can be inserted into a statute, as if we were operating in a constitutional vacuum. For that reason alone, this House should not accept it.

This is not merely a theoretical issue. The content of the principle of the rule of law is controversial, with opposing views having been expressed over time by different judges, academics and practitioners. Under this amendment, individual Ministers could never know with certainty what was required of them. For example, there are respectable academic arguments to the effect that certain provisions in anti-terrorist legislation could be regarded as impinging upon the rule of law, in accordance with a wide interpretation of the principle. Provisions limiting the rights of terrorist suspects might be said to be within this category. The Government could not accept such an analysis. By bringing the rule of law directly into play as a legal rule in potential conflict with the law itself, the noble Viscount's amendment would create confusion and uncertainty, risk undermining parliamentary sovereignty, and risk impairing the clarity and effectiveness of the law in vital areas such as national security and the prevention of terrorism. For all these reasons, I ask the noble Viscount, Lord Bledisloe, not to move his amendment.

3.15 p.m.

Finally, we have Amendment No. 2, tabled by the noble Lords, Lord Kingsland and Lord Goodhart. Let me first acknowledge that the terms of this amendment represent a genuine attempt to seek consensus and to get to grips with the very important and difficult issues that I outlined earlier. I am genuinely grateful for the efforts that the noble Lords, Lord Kingsland and Lord Goodhart, have made to move the debate forward in a positive manner. It is, therefore, a bit disappointing that the Government are unable to accept Amendment No. 2 as it stands. We do, however, recognise that it contains at least a partial solution to the fundamental issues.

But in several important respects, the amendment fails to address the concerns that I have already outlined. First, although I initially thought that a reference to parliamentary sovereignty was a good idea, I have now come to the view that such a reference would be dangerous. The problem is the need to ensure that parliamentary sovereignty remains the overriding principle. Simply mentioning it as an additional principle "together with" the rule of law would not be enough. The reference in the amendment to the rule of law and parliamentary sovereignty as central principles does not remove this problem. It says nothing about the relationship between the principles, which is the crucial issue. The amendment would leave the status of parliamentary sovereignty vis-à-vis the rule of law ambiguous, and as such would not be acceptable or clear.

Secondly, I am concerned about the precise meaning of the "best endeavours" test in subsection (2), and how it might interact with constitutional conventions such as the Lord Chancellor's role as a Cabinet Minister. I think subsection (2) also engages the very difficult issue that I mentioned earlier about the paradox of a legal duty to ensure that others respect the rule of law. This amendment also quite seriously mis-states the current duty of the Lord Chancellor. The Lord Chancellor has never been responsible for enforcing the law against others; this amendment states that he is. It is not confined by reference to the Lord Chancellor's functions; nor does it state by whom the rule of law is to be respected.

Lastly, I understand the intention behind subsection (3) to be to render the amendment declaratory, as we all intend. But subsection (3) implies that the Lord Chancellor's duty is to some extent currently enforceable as such. That implication must surely be inaccurate.

This amendment is a carefully crafted and well thought-out suggestion that seriously engages with the very difficult issues we are facing here. But I think the problems I have identified must be fatal to the text as it stands.

To conclude, I have sought to listen very carefully to the views of your Lordships' House, as expressed in previous debates and in the debates in Committee, and have brought forward an amendment that seeks to give effect to all of the views that have been expressed. I believe that it gives effect to those views. I submit that Amendment No. 6 goes too far and should be rejected by the House as it would undermine parliamentary sovereignty and create confusion and uncertainty, which is surely contrary to the very rule of law that the amendment seeks to uphold. While Amendment No. 9 has much to recommend it, I cannot see that it satisfactorily resolves the issues before us. I believe that Amendment No. 1 has that effect.

I have spoken with noble Lords about the terms of my amendment. As I have indicated, I believe that my amendment achieves what we are all seeking to achieve. I have gone through it in some detail, as it is a very important amendment. A number of noble Lords have asked me to discuss the content of my amendment with them further. I believe that it achieves what we want to do. I am happy to wait until Third Reading before I put my amendment to give effect to those further conversations, but I hope I have set out as fully as I can the reasons why I think my amendment achieves that which we all wish to achieve. I beg to move.

Lord Kingsland

My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his explanation of Amendment No. 1. I particularly welcome his statement that he is prepared to wait until Third Reading before putting forward whatever new amendment he tables at that time. I think that there is a clear difference between Amendment Nos. 1 and 2, but I do not think that, in the interim period, it will prove unbridgeable. Let me, very telegraphically, explain why I think that there is still a difference of importance.

I agree with the noble and learned Lord the Lord Chancellor that any rule of law clause in the Bill should not be justiciable. That reflects the constitutional tradition. The rule of law is a term that is not explained in any detailed measure in our constitution; and to make it justiciable would give the judges too wide a scope to determine what our constitutional law should be. In that respect, we are ad idem.

I take issue with the noble and learned Lord the Lord Chancellor on his explanation of the relationship between the sovereignty of Parliament and the rule of law. The doctrine of the sovereignty of Parliament is a doctrine of the courts. Parliament is sovereign only because the courts say that it should be so. Until the middle of the 18th century, it was the view, widely held by common law judges, that the sovereignty of Parliament was subordinate to the wisdom of the common law. That doctrine fell away in the 19th century, and we all readily admit now that Parliament is sovereign. Nevertheless, that sovereignty is an expression of the courts; it is not an assertion of Parliament. So, with great respect to the noble and learned Lord the Lord Chancellor, I submit that the two match happily in the first of the three clauses of Amendment No. 2, in the name of the noble Lord, Lord Goodhart, and myself.

The real difficulty lies in the difference between paragraph (b) in the noble and learned Lord's amendment and our proposed subsection (2). As I understand it, the noble and learned Lord's paragraph (b) binds the Lord Chancellor in relation to his own functions. Our proposed subsection (2) requires the Lord Chancellor to use his best endeavours to ensure that the rule of law is respected by Ministers other than himself. That is my understanding of what a Lord Chancellor does in Cabinet. If a Minister makes a proposal for a draft legislative measure which, in the Lord Chancellor's opinion, is about to impinge on the rule of law, it is his constitutional duty to speak up in Cabinet and say so. That is what the proposed subsection (2) of Amendment No. 2 would do. In my respectful submission, paragraph (b) of the amendment tabled by the noble and learned Lord the Lord Chancellor does not say that.

If, in the interim period between now and Third Reading, the noble and learned Lord the Lord Chancellor can convince me that that is what his paragraph (b) says, or if there is some movement from the noble and learned Lord between now and Third Reading, then we shall happily coalesce around an agreed amendment at that time.

Lord Goodhart

My Lords, my position is much the same as that of the noble Lord, Lord Kingsland. We have both put our names to Amendment No. 2.

I believe that our objectives and those of the noble and learned Lord the Lord Chancellor are, in substance, identical. We both aim to preserve the Lord Chancellor's existing duties in respect of the rule of law and, in particular, to ensure that the change in the more general duties of the office of Lord Chancellor does not alter his duty—a duty not enforceable at law—to bring to the attention of other members of the Government any proposed action that may offend against the rule of law. Therefore, it is simply a question of drafting the most effective and accurate way of achieving that aim.

It is desirable to take some further time on this. Although I am well aware that detailed discussions have been taking place with the parliamentary draftsmen and in the Department for Constitutional Affairs, the first time that the noble Lord, Lord Kingsland, and I saw the amendment was last Friday. It needs time for further consideration, and there are aspects of the Government's draft, which the noble Lord has drawn to the attention of your Lordships' House, with which we are not entirely happy.

I can also see some justice in the criticisms that the noble and learned Lord made of our draft. It would be appropriate to try to reach agreement between now and Third Reading, so that we could come back with an amendment that we could all recommend to the House as a whole and would achieve the result for which we are aiming. I therefore hope that it will not be necessary to move either of the amendments today and that they can be carried over until Third Reading.

Viscount Bledisloe

My Lords, it was somewhat less than gracious or charitable of the noble and learned Lord to chide me for putting down the same amendment as I put down last time. The rule of law has been under debate since your Lordships' Select Committee started meeting. The noble and learned Lord's theme has continuously been, "I will come forward with an amendment to deal with the rule of law". At one stage in the Select Committee, without giving us the draft in advance, he produced a draft that was subjected to criticism from all sides. He withdrew it in haste and almost with apology. Since then, we have seen nothing from him until, as the noble Lord, Lord Goodhart, said, last Friday.

It was therefore hardly surprising, since there was nothing on the topic, that I put down an amendment to raise the topic. It may be somewhat unkind to say so, but I have a nasty suspicion that if neither I nor anyone else had done so, we would not have seen anything from the noble and learned Lord the Lord Chancellor even now.

If the noble and learned Lord tells us that he will take the matter away, think about it and come back, in decent time, with a draft that we can consider, I am happy not to move my amendment. Indeed, I prefer Amendment No. 2, in the names of the noble Lords, Lord Kingsland and Lord Goodhart. The noble and learned Lord has criticised that, but could he answer two simple questions? First, does he, as Lord Chancellor, regard the rule of law as a central principle of our constitution? Secondly, does he, in fact, use his best endeavours to ensure that the rule of law is respected? I shall ask him a third question: if his answer to either of those is "No", when will he resign?

The noble and learned Lord's amendment is inadequate. First, it starts off, very undesirably, on a negative basis, saying: This Act is not to be construed in a way that would adversely affect", the rule of law and the Lord Chancellor's duty. It does not put the matter positively; it merely puts it negatively. Secondly, in paragraph (b), the Lord Chancellor's duty is qualified by the phrase, in the exercise of his functions". What limitation, if any, do those words put upon it? Is it part of the Lord Chancellor's functions to advise his colleagues that their proposed measures may infringe the rule of law? If so, what do those words add? Is there not a nasty risk that it would be suggested that the exercise of his functions is merely the performance of his departmental duties? Would it not be much better to remove those words?

If I get satisfactory answers to those questions, I would be content that this matter stood over till Third Reading.

3.30 p.m.

The Earl of Onslow

My Lords, I hesitate to intervene in the incestuous squabbles between two members of the Fountain Court Chambers, amusing though that may be. Have we not come to a rather pathetic pass when we actually have to consider putting into law that the Lord Chancellor should obey the law? To me that is horrifying. I have assumed that every Lord Chancellor whom I have ever seen, of whom Lord Simon was the first, in Churchill's Cabinet—right through from the great Lord Elwyn-Jones and Lord Hailsham, even to the present Lord Chancellor, the noble and learned Lord, Lord Falconer—was there to uphold the law. It is awful that we have even come to think of imposing, in an Act of Parliament, that the Lord Chancellor should be so bound. That is the result of mucking about with the constitution, without thinking, to which this Government are so prone.

Baroness Carnegy of Lour

My Lords, I want to ask a question to which I am sure that I should know the answer, but other noble Lords who are not lawyers may be puzzled about it, too. Amendment No. 1 states: This Act is not to be construed in a way that would adversely affect…the existing constitutional principle of the rule of law". Why does it say, "the existing constitutional principle"? Is that principle going to change in the next few years? Obviously, the law changes—but does the principle change? If it does not, why does it say "existing"?

Lord Lester of Herne Hill

My Lords, I was not going to intervene until I heard the remarks of the noble Earl, Lord Onslow. I think that he was suggesting that there was something bad about the amendment, in that it suggests that the Lord Chancellor would otherwise be above the rule of law. My understanding is that the amendment is simply not designed to deal with the liability of the Lord Chancellor, like every other Minister of the Crown, to obey the law. If the Lord Chancellor were, for example, to fetter the right of access to courts, as has happened before, and was challenged by way of judicial review, as I understand the matter the amendment would not touch that situation. The Lord Chancellor would be liable, as would any other Minister, under the rule of law, in accordance with the law.

Finally, I agree with the noble Lord, Lord Kingsland, that common law antecedes and defines the sovereignty of Parliament.

Lord Donaldson of Lymington

My Lords, I wish briefly to raise a question about the statement by the noble and learned Lord that Parliament is always supreme. I would have agreed with him five years ago. However, the ouster clause passed by the Commons in relation to the then asylum Bill caused me to give a great deal of thought to what would have happened if it had become law. It would have excluded the right of the courts to intervene under any circumstances. Its width was quite breathtaking, and I am confident that if it had been passed, the judges would have said, "We're not having this".

How the judges could have done that is a different matter. One possibility would be that they might have grounded their opposition, and based their insistence on taking jurisdiction, on the rule of law. We have a tripartite constitution, unwritten though it may be, under which it is not open to any two of the three components simply to close down the third. I make that point because I would not like the statement to go uncontradicted that in all circumstances Parliament is superior to the rule of law. It is in 99 out of 100 cases, yes, but not in all circumstances.

Lord Mackay of Clashfern

My Lords, I should like to follow up the remarks of the noble Lord, Lord Lester of Herne Hill. I am not clear, although the noble and learned Lord the Lord Chancellor may help me to become clear, that paragraph (b) in his amendment is not sufficiently general to exclude attempts to challenge the Lord Chancellor's actions—based, for example, on the rule of the law in its principle that the access to the courts should not be unduly fettered. The noble and learned Lord the Lord Chancellor will know that a Lord Chancellor was successfully challenged on that, notwithstanding the fact that others supported him. When that happened, the Lord Chancellor of the day immediately accepted the judgment of the court and altered the arrangements that had been challenged.

Grateful as I am to my noble friend Lord Onslow for believing that Lord Chancellors always obey the law, inadvertently it may happen that something goes wrong and the courts have the function to correct it. The principle on which that case was decided was the constitutional principle as part of the rule of law that access to the courts was not to be impeded. There was a particular case, and it was generally thought that legal aid would cover the point—but there was no legal aid for defamation, and therefore there was a loophole. A litigant seeking a defamation action was thought by the divisional court to have been wrongly excluded from the court by the necessity to pay fees.

It is not clear to me that the Lord Chancellor's duty, said not to be "cognisable in law", is sufficiently constrained not to be put at jeopardy with regard to that particular type of action. I would be grateful to the noble and learned Lord the Lord Chancellor for dealing with that matter. Perhaps he will satisfy me that the provision does not deal with that kind of situation, as the noble Lord, Lord Lester, said. For my part, I feel grateful that the noble and learned Lord has considered the matter and introduced the amendment. My only difficulty with it so far is the one that I mentioned.

I agree that this is a difficult area and that we are trying to replace what was very much a matter of convention and understanding. That is because of the way in which the Government have chosen to legislate about the office of the Lord Chancellor. We are now, in view of those changes, trying to legislate for what was a delicate and important position in the past, which rested on convention and understanding.

Lord Falconer of Thoroton

My Lords, I am grateful for all the interventions. First, I agree with the noble Lord, Lord Kingsland, that the history of how parliamentary sovereignty came to be sovereign is a matter of interest. However, I did not understand him to say that he disputed the principle that Parliament was sovereign in relation to what it did, so I believe that we start from the same proposition.

Secondly, in relation to functions, I hope that in the remarks I made in introducing the amendment I put the noble Lord's mind at rest. I want to make it absolutely clear that the functions of the Lord Chancellor in relation to the rule of law do not just stop at his departmental functions, but include dealing with other Cabinet Ministers who put forward proposals that in his view offend against the rule of law, and offend against the rule of law in relation to areas which do not relate to his own departmental responsibilities. I believe that that deals to some extent with the point made by the noble Lord, Lord Goodhart.

The point that has to be made, on which I believe that noble Lords agree, is that the Lord Chancellor does not traditionally have a roving, proactive brief to go to each individual Minister, see each piece of legislation and express a view on whether that legislation is sufficiently certain to comply with some people's concepts of the rule of law. The distinction that I seek to draw is that the Lord Chancellor is not like the German Minister of Justice, who has to approve every piece of legislation and every government Act in accordance with that provision. I believe that we are agreed with regard to that matter. My view is that paragraph (b) in my amendment, which the noble Lord, Lord Kingsland, believes does not deal with that point, does in fact deal with it. It is my intention that it should. My hope is that between now and the next stage, I shall be able to persuade him on that matter.

In response to the questions asked, very tellingly, by the noble Viscount, Lord Bledisloe, I say that the rule of law is a central principle of our constitution and that I regard my role as seeking to uphold it. However, I do not regard my role in relation to the rule of law as being, for example, always to support an increase in expenditure on the police in counties where crime is going up and the number of police is going down. I believe that that would be the effect of the amendment in the name of the noble Lords, Lord Kingsland and Lord Goodhart. It is important to define what we mean in that regard.

I am very grateful to the noble Viscount, Lord Bledisloe, for having tabled his amendment. No doubt, it suitably chides us all into action. I hope that he will participate actively in any discussions which we have on it. As regards what the noble Earl, Lord Onslow, said. I do not think it has ever been in question that the Lord Chancellor and, indeed. every other Minister in the Government, would seek to comply with the law. The issue that we seek to deal with is the extent to which the Lord Chancellor has a particular role in government to see that the rule of law is enforced.

In relation to the point made by the noble and learned Lord, Lord Mackay of Clashfern, I refer to the Witham case, which concerns access to justice, although I stray very diffidently into it. I had absolutely no intention of excluding—nor do I think that I have done so—the court from reaching a conclusion that what the Lord Chancellor had done inadvertently in the Witham case was to, as it were, break the law by illegally fettering access to justice. It was certainly not my intention—nor do I believe that it would be the effect of my amendment—to prevent a subsequent Lord Chancellor who did precisely the same thing being sued in the future. However, I shall certainly consider the matter in the light of what the noble and learned Lord said.

The noble and learned Lord, Lord Donaldson of Lymington, referred to the ouster of judicial review. Assuming that an ouster of judicial review had been passed and assuming that the court concluded that it applied to the particular circumstances before it, in my view if it had been passed by Parliament it would determine what the position would be. Given the principles of parliamentary sovereignty, there would be no basis on which the courts could say, "We think this is going too far even though Parliament intended to pass it, and we can strike it down because we do not like it".

In the light of what has been said, I do not intend to press my amendment. I hope that we can bring it back—

Viscount Bledisloe

My Lords, before the noble and learned Lord sits down, I remind him that, no doubt inadvertently but perhaps somewhat Freudianly, he has not yet replied to my request for undertaking that his new proposal will be brought forward in good time to enable us to discuss it, rather than having it bounced upon us at the last moment.

Lord Falconer of Thoroton

My Lords, my proposal is contained in Amendment No. 1.

Lord Renton

My Lords, could the noble and learned Lord explain what he considers to be the legal effect of the words "not cognisable in law" in paragraph (b) of Amendment No. 1?

Lord Falconer of Thoroton

My Lords, by that I mean that the court should not be able to say, "This is the stance that the Lord Chancellor should take in Cabinet on a particular position". 1 apologise to the noble Baroness, Lady Carnegy of Lour, for not having answered her question; namely, why use the word "existing"? I think that we are all agreed that what we are seeking to do through this provision is to preserve the Lord Chancellor's existing duty, rather than to create any new one. That is why we use the word "existing". We do not intend in any way to restrict the development of the law. The duty of the Lord Chancellor that we are discussing is a general duty to seek to ensure that government complies with the rule of law.

3.45 p.m.

Lord Goodhart

My Lords, would the noble and learned Lord be willing to arrange meetings involving himself, the noble Lord, Lord Kingsland, the noble Viscount, Lord Bledisloe, and myself to discuss the issues, on the basis that at that stage none of us produced a new draft? We could examine the existing draft to determine what each of us regarded as the problems and whether we could work out a solution to those problems. I suggest that that might be an appropriate way to deal with the matter, rather than inviting the noble and learned Lord to come forward with a redraft before we have started discussion.

Lord Falconer of Thoroton

My Lords, I accept that suggestion with enthusiasm. I say to the noble Viscount, Lord Bledisloe, that I would very much welcome further discussions with everyone with whom I have already had so many enjoyable discussions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Lord Lloyd of Berwick moved Amendment No. 3: Before Clause 1, insert the following new clause—