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Baroness Hollis of Heigham: My Lords, he cannot.

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NATO: Enlargement

3 p.m.

Lord Wallace of Saltaire asked Her Majesty's Government:

    What are their current expectations as to the timetable for the enlargement of the North Atlantic Treaty Organisation, which countries they expect to accede, and how they intend to involve Parliament in the process of negotiation and ratification.

Lord Chesham: My Lords, NATO has yet to decide which countries to invite to join the Alliance and when. NATO Foreign Ministers decided in December 1995 to consider the way forward at their meeting this coming December. Many of the details of the process of negotiating enlargement and ratifying any enlargement document have yet to be decided by NATO. The Government will, however, keep Parliament informed as appropriate.

Lord Wallace of Saltaire: My Lords, I thank the noble Lord for that Answer, but may I ask him whether the Government are worried that the process of ratification through the US Senate, which will be a great deal more open than the process of ratification through these Houses of Parliament, may lead to another situation in which we have marched all the way up the hill only to find that the US Senate is deeply reluctant to enlarge NATO security across Eastern Europe?

I have been impressed by some of the papers that are already available to the US Senate--in stark contrast to what has not yet been provided to this House. One of the papers which I have just seen, from the Rand Corporation, suggests that there must be a clear link between NATO enlargement and the enlargement of the European Union. Do the British Government also see a link? If so, how does that affect the likely timetable for NATO enlargement?

Lord Chesham: My Lords, there is not necessarily a link between the enlargement of the EU and that of NATO. They are complementary processes with similar objectives, but all the allies agreed that there should be no formal link. Both organisations are autonomous and decisions on NATO enlargement must be based on defence criteria.

We cannot be responsible for the information that is available in the United States or for any decisions that are made there. However, in September 1995 the Alliance produced an extensive study into the hows and whys of enlargement. A copy of that has been in the Library of the House for some time. All interested Partnership for Peace partners have received full briefing on it.

Lord Carver: My Lords, does the noble Lord agree that if the membership of the North Atlantic Alliance is to be expanded in the way that is envisaged at present, it will be essential to modify Article 5 of the North Atlantic Treaty, which ensures that, to quote the words of the previous Foreign Secretary in April of last year,

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    "if a member of the Alliance is attacked in the morning, Britain is at war in the afternoon"?

Lord Chesham: My Lords, I thank the noble and gallant Lord for that question. Under Article 5 of the Washington Treaty, NATO allies agreed that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and that if such an armed attack occurs, each ally will assist the ally or allies so attacked by taking such action as is deemed necessary, including the use of armed force, to restore and maintain security in the North Atlantic area. I do not believe that that should be changed.

Lord Carver: My Lords, will the noble Lord admit that he has left out one important word, the word "forthwith"?

Lord Chesham: My Lords, I do not have the word "forthwith" on my brief.

Baroness Blackstone: My Lords, does the noble Lord who is speaking for the Government agree that it is important to reassure Russia if there is to be enlargement to the east? In that context, can the noble Lord tell the House what plans the Government and their Western allies have for developing the special relationship with Russia that has been promised beyond the Partnership for Peace?

Lord Chesham: My Lords, I thank the noble Baroness, Lady Blackstone, for that question. There was a meeting yesterday between NATO and Foreign Minister Primakov, after which Foreign Minister Primakov made positive statements and the Russians appear to be more willing to accept the fact that enlargement will happen. We particularly welcome Primakov's emphasis on the need to develop a closer NATO-Russia relationship. The UK has been at the forefront of efforts to improve Russia's relations with the Alliance. We are pleased with the practical co-operation between Russia and NATO which has developed in IFOR.

Lord Kennet: My Lords, what is the point of pushing the frontiers of NATO up against the Russian frontier and saying that it threatens no one when the Russians insist that they feel threatened by it? Is it not likely that they know best about that and that they will rearm and once again adopt a more military stance towards us in response to that feeling of being threatened? If that happens, what happens to the reduced threat, which was adduced a moment ago by the noble Earl, Lord Howe, as the reason for the reduced numbers in the British Army?

Lord Chesham: My Lords, we believe that enlargement will be a further step towards the Alliance's goal of enhancing security and stability throughout the Euro-Atlantic area within the context of a broad European security architecture based on true co-operation. That will also extend to new members the benefits of common defence and greater integration into European and Euro-Atlantic institutions and will help to protect their further democratic development. We do not believe that that is a threat to Russia. As I have already

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said, we are having great discussions with Russia, which now appears to accept that an expanded NATO will be a fact.

Lord Callaghan of Cardiff: My Lords, although many of us agree with the noble Lord that the expansion of NATO does not constitute a threat to Russia, nevertheless it is important to secure at least its acquiescence if we are to avoid increasing tension in Europe. In those circumstances, what is the Government's reaction to what I believe was expressed by Marshal Grachev recently; namely, that there might be room for agreement between NATO and Russia provided that, while accepting those countries into membership, we did not put NATO troops at this stage on Russia's borders with Poland and Hungary?

Lord Chesham: My Lords, we shall, of course, take full account of Russian concerns and do everything possible to reassure Russia. There is no intention at this stage of stationing any NATO troops or equipment into any new members of NATO unless there is a threat such that it is appropriate to do so.

Lord Tebbit: My Lords, can my noble friend say whether the prospective new entrants will bring with them a military capability which will balance the increase in the responsibilities and commitments of the other NATO partners?

Lord Chesham: My Lords, that very point is being discussed at the moment. Obviously, we shall have to consider such matters not only from the budgetary point of view but also in terms of compatibility with existing equipment.

Judiciary, Legislature and the Executive

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

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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".

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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 barristers or--at the

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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

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wish to send him our good wishes and tell him how much we miss him from our deliberations at the moment.

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