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Lord Ackner: My Lords, I have the correspondence here. With great respect, it does not bear out what the noble Lord says. I am sure other noble Lords who were present will remember that a detailed explanation was provided by the learned judge as to why he was adopting the course that he did. He explained that it was done by all his predecessors, including other distinguished judges such as the noble and learned Lords, Lord Browne-Wilkinson and Lord Slynn of Hadley. He set out in full the reason why he adopted that particular process. I shall read out the letter to which I referred. I am sorry to weary the House but, in view of the intervention, I have no alternative.
Lord Mishcon: My Lords, while the noble and learned Lord looks through his papers perhaps he will kindly resume his seat for one moment. It is not for me in any way to defend the noble and learned Lord the Lord Chancellor, who is more than capable of doing so himself. However, I believe that the noble and learned Lord, Lord Ackner, as one of our outstanding lawyers, would always wish to present fairly both sides of the case. He has presented only what was said by some of the participants in that debate and not by others.
My penultimate example is the exhortation delivered to the public by the chairman of the party at the latest party conference suggesting that they should write to judges where they were dissatisfied with sentences,
My final example relates to the Home Secretary's proposals in relation to minimum sentences and mandatory life sentences, and in particular to the observations made by my noble and learned friend the Lord Chancellor in the debate on Thursday 23rd May which, with great regret, I was unable to attend by reason of being abroad. The essential complaint by the judiciary was that in cases to which these proposals related they, the judges, would be prevented from doing justice. Indeed, they would on occasions be required to do injustice. To this, to my astonishment, the noble and learned Lord the Lord Chancellor replied:
I respectfully submit that there is here a serious confusion of thought. Of course, Parliament, by virtue of being supreme--and that has never been in issue--has the power, subject nowadays to European Community law, to interfere as much as it likes with the independence of the judiciary and, indeed, with the rule of law. It happened thus in the USSR. Hence the "telephone judges" to whom I referred earlier.
I conclude by going back 20 years to the first international conference of appellate judges held in Manila and I end with a quotation from the then Lord President--that is the Chief Justice, Tun Mohamed Suffian, an old friend of mine and a Fellow Bencher of the Middle Temple--who warned delegates present to be on their guard:
Lord Kingsland: My Lords, I rise with the same feeling expressed by the noble and learned Lord, Lord Simon of Glaisdale, when he spoke; that is, that everything one wants to say has already been said. The only difference is that, in his case, it was not true but, in my case, it is. Nevertheless, I cannot resist the temptation to make one or two remarks about the constitution and about the subject of judicial review.
The key factor about our constitution is that it is a common law constitution. The most important relationships are based on the common law. The definition of a statute is a common law definition. The basic principles of judicial review are laid down not by statute but by the common law. Indeed, the doctrine of the sovereignty of Parliament, to which the noble Lord, Lord Irvine of Lairg, referred with such force, is actually a doctrine of the courts, not an assertion of the legislature. It is, indeed, a relatively recent doctrine of the courts. If one goes back to the days of Coke and Hale and even, to some extent, Blackstone, one can see
It was not until, I suppose, the revolution of Bentham, culminating in the writings of Dicey, that the idea of the sovereignty of the legislature became finally dominant in our constitution. Since, as the noble and learned Lord, Lord Woolf, said, the common law evolves, who knows what will be the ultimate destination of the common law in defining our constitutional arrangements?
If I am right about the role which the common law plays in our constitution, it must follow that the judges have a crucial part to play in its development. Although the sovereignty of Parliament was a very important part of the legacy of the great constitutionalist, Dicey, it is often forgotten that he considered an equally important part of our constitution to be the rule of law.
The rule of law depends upon the doctrine of the separation of powers. The reason that our constitution has worked so superbly well is because judges on the one hand, and legislators on the other, have shown great self-restraint towards each other. The courts will never interfere in the internal proceedings of the other place or this House. Equally, it is a great tradition of this Parliament that it will not interfere in the proceedings of the courts. Judges have always been at liberty to look at statutes and interpret them according to the common law in the way they think right. Legislators have never questioned that. It will be a sad day if that tradition is broken. The day on which the tradition of the separation of powers in our constitution is broken will be a real threat to individual freedom in our society.
I should also like to say something about the development of judicial review. The key to the development of judicial review--I was much struck by the speech of the noble Lord, Lord Rodgers, in this respect--lies outside the relationship of the courts and the legislature. It lies within the legislature itself and in particular, another place. The development of judicial review over the past 30 years results from changes in the relationship between the legislature and the executive. I am afraid that it is no longer the legislature which controls the executive but the executive which controls the legislature.
The modern Member of another place is really the representative of an electoral mandate which is received every five years in order to put in place on the statute book certain policies advanced at general elections. That is a long way away from the legislature of the 19th century. Indeed, I believe that the elected Member of another place is put in an impossible constitutional dilemma. On the one hand, he has to keep his party and government in power in order to realise the electoral mandate; on the other hand, he has to keep that same government under control. It is impossible for a single person to fulfil those two mutually contradictory demands at the same time.
With great respect to the noble Lord, Lord Irvine of Lairg, if there was something I found lacking in his speech--I make no criticism of what he said but rather perhaps of what he did not say--it was some indication as to how we could advance on that important front. I
In any judicial review case, the courts have to consider the crucial relationship between the state, seeking to enforce Acts of Parliament which are, by definition, in the general interest, and the citizen. But the general interest in any particular case can act very unfairly for an individual. It is a great principle of our country that when the judges look at the impact of a statute on a particular person, they do their best to see that that impact is fair in the circumstances and that that individual understands that if, at the end of the day, he is disadvantaged he at least knows the reasons why he is being disadvantaged and has an opportunity to say something about the situation.
These are great traditions. It is worth doing everything we can to preserve them. I believe that they will be preserved if legislators on the one hand and judges on the other mutually respect each other's spheres of influence.
Lord Cooke of Thorndon: My Lords, the subject of this debate is defined in its first limb in terms so wide that they are capable of extending to virtually the whole field of the British constitution or at least a catalogue of the shortcomings of its vital organs. It is much easier to grapple with the narrower second limb, about which I wish to make only one point.
Judges who comment extra-judicially on current public controversies are inviting trouble unless, perhaps, what they say is strictly incidental to a professional paper--a kind of exercise increasingly expected of the judiciary today. Except when making that kind of contribution, I have striven, while holding judicial office, to avoid public statements otherwise than in judgments. But a price must be paid for such restraint. There can be allegations that the judge lives in an ivory tower or avoids with fastidious horror what the media see as legitimate questions for holders of public office. On the whole, I must admit to having preferred to pay that price, but I sympathise with judges impelled to a more robust solution. For the objective approach that can come from judicial office-holding free of electoral pressures is a useful element in a balanced democratic process.
On the wide first limb of the subject I would offer two thoughts. First, there is nothing new in judicial review, except the name and the procedural changes that have accompanied its use in roughly the past 40 years. The essential principle that executive and administrative authorities, high or low, must act within the law is unchanged and centuries old, as is its companion principle that it is for the courts to determine the law in cases of doubt.
Secondly, the legislative changes which introduced the modern judicial review procedure began in Ontario and were subsequently developed first in New Zealand, then in Australia, and ultimately, in the later 1970s and early 1980s, in this country. Some major and internationally influential administrative law decisions have been given by United Kingdom courts, such as the decision of the Appellate Committee of your Lordships' House in the 1968 case, Anisminic v. Foreign Compensation Commission reaffirming the duty of the courts to correct errors of law even where a tribunal had jurisdiction to enter into the inquiry in question. The noble and learned Lord, Lord Wilberforce, contributed a decisive speech in that difficult case.
Yet, just as the main steps in procedural reform were not initially British, so I think the general verdict of comparative lawyers would be that the English courts have been, on the whole, more conservative in the field of public law than the Canadian, Australian and New Zealand courts. Any concern felt here about what is often, but somewhat misleadingly, called "judicial activism" can be tempered by that consideration.
Again, concern is sometimes voiced--and, indeed, was voiced this afternoon by the noble Lord, Lord Irvine of Lairg--about exploration of the doctrine of parliamentary sovereignty or of the principles governing media freedom, or media intrusion as some would describe it. It may perhaps help to see those quite profound issues in perspective if it is borne in mind that such concepts are ultimately the legal creation of the courts, whose responsibility it is to articulate their true legal scope. On that point, I fully ally myself, and gratefully so, with the tenor of the observations made by the noble Lord, Lord Kingsland, who immediately preceded me.
Lord Borrie: My Lords, in 1987 the Treasury Solicitor's Department produced a modestly sized but remarkable booklet entitled Judge over your shoulder. It was a guide to civil servants, a warning to take care, as the booklet itself said, because of an increased willingness of the judiciary to intervene in the day-to-day business of government and what it called the courts' "imaginative interpretation of statutes". I do not know how it came to be the case, but a few years later there was a revised edition of the booklet within which the word "imaginative" was deleted and replaced by the word "liberal".
The publication appeared because, during the past 30 or 40 years, the courts had considerably developed the scope and thrust of judicial review of administrative action and of government departments and executive agencies of all kinds. In a judgment given in 1982, the late Lord Diplock said that the strengthening of administrative law was,
From the vantage point of 1996, it is even more clear that judicial review of administrative action has been a growth industry. Previous speakers have given the figures and also indicated that fact. I believe that the basic principles of judicial review, the concept that the decision of any public body should be challengeable in the courts on the grounds that it is tainted with "illegality, irrationality or procedural impropriety", to use the words of Lord Diplock again, deserve to be widely accepted and applauded.
If "irrationality" seems to be unduly broad, the same Law Lord made it perfectly clear in the GCHQ case in 1984 that the courts are not entitled to use irrationality as a basis for attacking executive decisions just because they might disagree with those decisions on the merits. He pointed out that irrationality only applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it.
I am happy to be counted among the enthusiasts--of which clearly, from this afternoon's debate, there are many in this House--for the growth of judicial review. As other speakers have said, there need to be checks and balances in the constitution. There also needs to be accountability on the part of government and government departments and agencies of all kinds to an independent judiciary, especially because accountability to Parliament is, to say the least, imperfect. I also welcome the growth of judicial review because it shows that the common law that has come down to us through so many centuries is capable of expansion and development and is sensitive to the needs of the times.
However--I say this with great care in view of the fact that there are so many noble and learned Lords present today--both before judicial review became fashionable, and even since, the courts have sometimes tended to overreach themselves. In particular the courts have not always been careful to maintain the distinction between procedures and merits, on which Lord Diplock rightly placed such emphasis.
Sometimes, to go a stage further, the courts have been so astute in finding a ground for diminishing executive power that they may not have paid as full regard as they should to the positive purposes of the legislation they seek to interpret. Even this House in its judicial capacity has sometimes given a strained interpretation to the legislative powers granted by Parliament, especially to local authorities, for example in the famous--or infamous, as some people would describe it--Poplar Council case in the 1920s in relation to employment policies, and also in the GLC fares case in 1981 regarding the fares on London buses and the Underground. In each of those cases the House of Lords
Unlike my noble friend Lord Monkswell, I am not an opponent, or I do not dislike, the case of Pepper v. Hart which may entitle judges to look at the legislative history of an Act of Parliament, because in my view it is much less likely now that judges would misinterpret the basic purposes of a piece of legislation when they are entitled to look at Hansard. On the face of it, it is difficult to quibble with the right of the courts to review an executive decision on the ground of it being illegal, or that an error of law is contained within a decision. After all, the courts are courts of law and the courts are surely the supreme arbiters of what is the law.
But suppose, as has often happened, Parliament has set up a specialised tribunal or hierarchy of tribunals, as it has done most notably in the fields of social security and of employment, typically with a lawyer as chairman and others representative of lay interests as lay members. Those tribunals are in effect--and have been described officially as such--specialised courts with specialised jurisdiction. They build up considerable expertise in detailed branches of the law containing much technical regulation. It is not obvious to me that in those circumstances the ordinary general courts that administer the general law should assert their right to review, on the ground of illegality, a decision of such a tribunal simply because they have an alternative interpretation of those detailed regulations. Judicial review in those circumstances is really not very different from an appeal. It is, I suggest--it may be regarded as such--an appeal from a relatively expert body to a relatively inexpert body; that is, the general courts.
There is some scope for, or risk of, the courts overreaching themselves under the head of irrationality, although I gave what I hope is the authoritative Diplock explanation of what that word means. However, I have direct experience of the willingness of the Divisional Court in 1989 to interfere with the discretion granted by Parliament to the Secretary of State for Trade and Industry--the noble Lord, Lord Tebbit, as he now is--not to refer the takeover of the House of Fraser by the Fayed brothers to the Monopolies and Mergers Commission. The Secretary of State announced that he had made his decision on my advice under the Fair Trading Act when I was Director General of Fair Trading. But the Secretary of State did not reveal his detailed reasons for the non-referral to the Monopolies and Mergers Commission because to do so would have involved disclosing the contents of the then unpublished report of inspectors appointed under the Companies Act, and the investigation of possible criminal offences might have been hindered at the time by such disclosure. The
For me--and, I think, for the law and judicial review--the story had a happy ending because both the Court of Appeal and this House in its judicial capacity took a different view from the Divisional Court. I particularly welcomed the dictum of the noble and learned Lord, Lord Keith of Kinkel, who said:
I say, with respect, that the dictum I have just quoted is a most helpful corrective--if there needs to be one--to the sort of imaginative or, if you prefer it, unduly liberal interpretation of statutes referred to in the booklet distributed among civil servants from which I quoted at the beginning of my speech. As long as that view prevails, anyone overly concerned about lack of judicial self-restraint has little to fear.
Lord Lowry: My Lords, the later one goes in to bat, the more obvious it becomes that every conceivable stroke has been played and every useful run has been scored. I hope your Lordships will forgive me if I, too, make some reference to judicial review, because in reference to that procedure misunderstandings can so easily arise about the role of the judiciary vis-o-vis the executive. Noble Lords who have mentioned this subject are now too numerous for me to list. While I cannot hope to emulate the felicity of my noble and learned friend Lord Wilberforce in his review, I feel it might--if your Lordships will bear with me--be useful on a lower plane to recount some matters from my own experience.
The term "judicial review" is of recent official use, although no doubt it came from Professor Smith's great book of the early 1950s entitled Judicial Review of Administrative Action. Many of your Lordships will feel grateful that at last a second edition of that work has been published. The noble and learned Lord, Lord Woolf, played a dominant part in bringing it to publication. I wish to take the opportunity of confirming in this House the congratulations and good wishes which I have already ventured to tender to the noble and learned Lord on his new appointment.
To traditional lawyers the new title of Order 53 had therefore a somewhat revolutionary sound and there were others for whom that title was seen to have a revolutionary effect, encouraging judges to review decisions and orders in the sense in which Lord Sumner refused to do so. But in reality, as recent authority confirms, the new order simply reformed procedure but did not alter the substantive law of what could be quashed and on what grounds. I do not step aside to discuss the developments which have continued taking place in this sphere.
But what the new procedure did was to wake people up and alert them to the full range of the supervisory jurisdiction, and in particular the jurisdiction to quash and annul legally objectionable decisions and orders of public authorities, including government Ministers. Indeed, in the past, the courts themselves had occasionally slept on the Crown side. For over 100 years before 1951 it was generally assumed in England (your Lordships will, I hope, forgive the inflexion in my voice) that decisions could be quashed only for want of or excess jurisdiction and not for some other forms of legal error, and as late as 1957 (despite 200 years of history) there was some doubt whether administrative, as distinct from judicial or quasi-judicial, acts could be quashed at all. That is strange, because we have only to go back to 1948 for a classic pronouncement by Lord Greene, the Master of the Rolls, in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, the case which gave birth to the convenient shorthand "Wednesbury unreasonableness", as a ground for quashing an administrative Act. Lord Greene envisaged the situation where,
The supervisory jurisdiction properly exercised is salutary. Its object is protection from power, the power of bureaucracy; and its purpose is not to usurp the decision-making function but to secure fair and lawful treatment. As the title to the proceedings shows, the jurisdiction is exercised by the Queen through her judges against the allegedly offending authority and for the benefit of her subjects.
I suggest that those who report and comment on judicial review decisions should be careful not to depict the quashing of an administrative act as an aggressive difference on policy. I always recoil from the picture of "judges hitting out", or "judges slamming Ministers". And of course judges must be equally careful to ensure that reports and comments of this kind cannot with justification be made.
We should all be grateful to the noble Lord, Lord Irvine of Lairg, for introducing this debate. The number of noble Lords who have signified their wish to speak is an eloquent tribute to his initiative. He cannot know what sweet music it was in my ears to hear him say how unwise it usually is for a judge to make comments on public questions off the Bench. Four-fifths of my judicial experience were spent in another jurisdiction. For 17 of those years I was a Lord Chief Justice. Many things appeared in the press, or were said at random, and I often wondered whether I was wise to hold my peace. But what Lord Irvine said has helped to reassure me that I was probably not wrong.
My noble and learned friend Lord Cooke referred to the risk that one will be accused of residing in an ivory tower. I believe that that risk must be accepted. As I sat here, I wondered on the effects of one's environment on a judge. In the place where I judged for most of my career, there was one cardinal rule: one must be detached and apolitical. That was as important as judging with competence as regards the reputation of the Bench. That was simply a hothouse which made that rule the more obvious and a necessary concomitant of sitting on the Bench. It is a good guideline anywhere, if only because the Book of Proverbs tells us that:
Lord Beloff: My Lords, although coming late in your Lordships' debate, I am much relieved to note that nothing I had proposed to say has so far been said by anyone else. I begin by not joining the normal congratulations to the noble Lord, Lord Irvine of Lairg. Congratulations are easy. I am more moved, in considering his speech and this debate, by the reflection of what one of my heroes, Talleyrand, said, when the death of a foreign statesman was reported to him: "What, I wonder, did he mean by that?"
The noble Lord, Lord Irvine of Lairg, has expounded the views that we have heard this afternoon in public lectures and articles and it is quite interesting to know why he should wish your Lordships to be apprised of them in this more public manner. With that in mind, the point was referred to obliquely by the noble Lord, Lord Rodgers of Quarry Bank, and the name that came to mind was that of Sir Stafford Cripps. That is not the Stafford Cripps whom most noble Lords will remember as the austerity Chancellor of the Attlee Government, but the Stafford Cripps whom I remember from the early 1930s, after the fall of the second Labour Government. He embarked on a campaign urging that a future Labour government should begin by introducing an emergency powers Act which would give the executive the freedom that he believed it needed in order to fulfil what was then the socialist programme of the Labour Party.
No doubt the noble Lord, Lord Williams of Mostyn, when he replies for the official Opposition, will tell me whether I am right when I wonder whether the idea of some kind of conferment of powers on the executive is lurking in one of the think-tanks, fora or wherever it is that Labour party policy is now made.
The second point is that I am sure that there should always be the word "congratulations" in any debate. My congratulations would go to the United Kingdom because of the degree to which, by international comparisons, our judges enjoy independence. A year ago there was a conference of European judges and magistrates on the problems of corruption and international crime connected with corruption. From what was said by representatives of a number of important countries--France, Italy, Spain--it is clear that if they had been discussing the subject of the relation between the executive on the one hand and the judiciary on the other, they would have been concerned about the ability of the executive to prevent or to abort judicial inquiries into evidence of ministerial and parliamentary corruption.
In considering the independence of our judiciary, it is interesting that we cannot point to anything so dramatic and dangerous to the body politic. We have a high degree of judicial independence, even though some noble and learned Lords would occasionally wish it to be even greater.
The other point which struck me about the interesting and in many respects convincing speech of the noble Lord, Lord Irvine, is that he left out an important part of his now famous article, in Public Law. In the last pages of the article, he points out that although judicial review, in terms of United Kingdom law, has been fairly restricted and should not worry a law-abiding government, a quite different aspect now exists in relation to our involvement in two bodies of European law and two European courts: the European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg. If we consider their insistence upon that judicial interpretation of Acts of Parliament and subordinate legislation one must conclude--although I do not believe that the noble Lord, Lord Irvine, came to that conclusion--that the self-restraint which he believes is essential for a judiciary which exercises judicial review is hardly the most evident characteristic of either of those courts or their judges. To find self-restraint among the judges of the two European courts is as improbable as to find alcoholic self-restraint among the practitioners of association football.
There is a serious issue which I am surprised no noble and learned Lord has brought to our attention this afternoon. After all, it is the cases which have involved the intervention of European courts that have been the most important in restricting the sovereignty of our Parliament.
When we come to the final point about whether the judges should pronounce in public, I am again surprised that although so many references have been made to the noble and learned Lord, Lord Denning, not much attention has been paid to the fact that he was one of the few senior members of the judiciary who pointed out early on that the whole British judicial and legal system would now be seriously altered in ways which had perhaps not been foreseen when the country acceded to the Treaty of Rome. If I had a complaint about the judiciary, it would not be that judges do not say enough in public about controversial issues; it would be that on an issue of this kind which is fundamental to our constitutional way of being, they have on the whole been very reticent.
That explains why, although I have found the debate interesting, illuminating and instructive, I also found it, as occasionally with matters in your Lordships' House, a little cosy and parochial. When we consider matters which should preoccupy us and which, in the light of history, are likely to seem characteristic of the age in which we live, their echo in your Lordships' House is rather muffled.
Lord Hacking: My Lords, yesterday the noble Lord, Lord Irvine of Lairg, very kindly encouraged me to participate in this debate. I was concerned that I should be absent from a meeting of Sub-Committee E; but I decided I should like to take the noble Lord's encouragement and in the normal course of events my name would have appeared on the list of speakers.
I have personal knowledge of two constitutions, the constitution of the United Kingdom and that of the United States of America, where I remain a member of the Bar of the State of New York. In the United States there is a written constitution and a complete separation of powers. In the United Kingdom, as we know, there is no written constitution and no separation of powers. The former has disadvantages in terms of the political appointments of members of the judiciary, which goes right up to the Supreme Court. There is a very clear tendency for a Republican President during his period of office to appoint members of the Supreme Court who favour the Republican Party, and vice versa when a Democratic President is in power. As the noble and learned Lord, Lord Woolf, observed, there are definite advantages in our mixture of powers and in judges participating, both inside and outside this House and outside Parliament, in the legislative process. In my very short intervention I shall focus on that point.
I have not had the opportunity of attending or reading the lecture of the noble and learned Lord the new Lord Chief Justice. I therefore have no personal knowledge of what he did or did not say on the issue of privacy. However, I do know that judges over many years have played a vital role in the development of our law. There are a host of examples. To refer to just one, the noble Lord, Lord Irvine of Lairg, may recall the High Trees case in early 1951. I believe the noble Lord was instructed in English law at about the same time as myself. The noble Lord seems to be searching his memory on that case.
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