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Lord Goodhart: My Lords, before the noble Lord concludes, perhaps he could clarify one point. Would he then be happy were a Lord Chancellor to sit as a judge in a case in which the Government were a party or directly interested--for example, a dispute between central government, the executive, and the Scottish Parliament? Would he regard that as an appropriate way in which to deal with the arrangements for the separation of powers?

Lord Renton: My Lords, there have always been cases in which the Lord Chancellor of the day has wisely decided that he should not take part. I am grateful to the noble Lord, because he has given me yet another potential example.

Another answer to the noble Lord is this: that in our constitution we have self-disciplines, conventions--call them what you like--well-established habits, which prevent us from abusing the opportunities that the constitution could give if misused. Bearing in mind that great tradition of behaviour, I would have thought that it is better to stick to the system that we have.

I conclude with a saying which is about 200 years old but it is one which applies particularly to what has been raised in this debate: if change is not necessary, it is necessary not to change.

6.15 p.m.

Lord Annan: My Lords, I am unprepared for this debate because I did not know what the noble Lord, Lord Lester, had in mind. I wondered whether he wanted us to move towards an American-style constitution in which the executive, the legislature and the judiciary are totally separated. I would note only that this unique separation of powers operates only because America has a written constitution which is interpreted by the Supreme Court, and of course we have no written constitution.

In another sense, however, I am prepared. I listened with awe yesterday to the exchanges between noble and learned friends. I noted that the friendship--for which of course the Bar is renowned--they expressed for each other had certain limitations. There was one remark, however, of the noble and learned Lord, Lord Ackner, which struck me. He said that the Lord Chancellor had produced a discussion paper in order to bamboozle--the word he actually used was "premedicate"--


The noble and learned Lord is entirely correct.

I am prepared for this debate, having re-read, while convalescing in Egypt last week, the most famous indictment of the legal profession that was ever written, by England's greatest novelist, Charles Dickens. I re-read Bleak House and his attack on what he called "wigocracy". Despite the efforts of the noble and learned Lord, Lord Mackay of Clashfern, our judges and

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barristers still wear wigs. The House took over two hours to agree to the present Lord Chancellor's request to wear trousers and to de-wig when he is to sit on the Front Bench. It reminds me of "Jarndyce v. Jarndyce"! The noble Lord, Lord Ackner, who I am sorry to see is not in his place tonight, can count me, as fortified by Bleak House, to be among the hostile British public.

When I sat, in Cambridge, at the feet of that great defender of the common law, Professor Hamson, and when I heard him denounce the feeble Mr. Justice McCardie and praise Lord Justice Scrutton, I sensed then that it was next to impossible to reform the law, however unjust, by relying on judicial interpretation alone. The legislature is better at carrying out that task. The legal profession is notorious, of course, in defending not only the common law but its own organisation and procedures. There is a remedy, however. The remedy lies in the presence of the Lord Chancellor in the House of Lords.

The Lord Chancellor is certainly one person who can propose and carry through major reforms of the law. He is not the only Minister who can do this. As the noble Earl, Lord Longford, reminded us, the Home Secretary is also responsible for a major sector of law reform: the criminal law and the law relating to the freedom of the individual. But to deprive the Lord Chancellor of the right to take part in debate and to institute reform would be to cripple those who want to reform the law.

At this point I fear that the noble Lord, Lord Lester, may be looking at me rather quizzically. How many reforming Lord Chancellors have we had during this century? Not many, I would be the first to agree. Perhaps the most famous was a Conservative, Lord Birkenhead. At any rate, I was taught that it was he who reformed the antiquated land law of this country. I can well remember having to learn two kinds of land law: the old land law, which was perfectly incomprehensible, and the new land law which Lord Birkenhead introduced. For the most part, I concede that Lord Chancellors have contented themselves with a little tinkering and persuading the Cabinet to allow them time for some of the less controversial proposals of the Law Commission to be considered. But when we have, as we have now, a Lord Chancellor who is determined to reform the law in many areas, the importance of this office and the essential need to keep the Lord Chancellor as an active Member of the House becomes immediately apparent.

Institutions find great difficulty in reforming themselves. Each generation finds itself in changed conditions and has to adapt to them; but institutions find it difficult to do so. It took three Royal Commissions to transform Oxford and Cambridge from clerical seminaries into modern universities and much government intervention--by no means all of it wise--to provide for mass higher education. It requires a powerful will to bring about changes which have to be made if we are to have, for instance, legal aid available for those who cannot afford to go to law.

It is all the more necessary to have the Lord Chancellor in this House when we are having to redraft our law to adapt it to the law of the European Community. Can anyone doubt the value of the presence

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and ability of the noble and learned Lord the Lord Chancellor when we cast our minds back to the passage of the Human Rights Bill through this House? It could have taken months had it been in the hands of a Minister who was not at the top of the legal profession.

Of course, Lord Chancellors can be misguided, like any other Minister, in insisting on this or that clause in a Bill. I was struck yesterday when two experienced criminal lawyers, the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Hutchinson of Lullington, opposed the establishment of a salaried panel of defence counsel. They are lawyers who are not among the fat cats of the profession and who have often defended the accused for virtually nothing. Yet at the same time I felt it might well be possible to curb the ever-rising cost of legal aid if such a system as that proposed by the noble and learned Lord the Lord Chancellor was set up. I am simply saying that, as always in life, those who want reforms find that at some point their natural allies desert them and they have to think again. The notion that a Lord Chancellor can become a tyrant, however robust his language may be, is absurd.

I have more sympathy for another of the proposals of the noble Lord, Lord Lester. I am not convinced that it is in the public interest that the Lord Chief Justice and the Lords of Appeal in Ordinary should sit in the House and vote. Let them do so when they have retired, by all means. We all in this Chamber know what we owe to those Law Lords who have retired. We need their wisdom. The noble and learned Lord the Lord Chancellor, as he knows only too well after yesterday, should be faced with expert criticism and probing when he tries to move reforms of the law. But it does not seem right to me that those who sit in the highest court of appeal should sit in the legislature.

I remember only too well what happened when the noble Viscount, Lord Runciman, spoke on a particular issue in his report on the reform of criminal procedure. He was followed by the then Lord Chief Justice, the much respected and indeed beloved Lord Taylor, who opposed the Runciman proposal. The conclusion was foregone: if the Lord Chief Justice was against it, no more needed to be said.

There has been talk today of a supreme court. I have some sympathy with that idea, but I do not think that when we talk about a supreme court we need have the American Supreme Court in mind--certainly not. But a supreme court which is distinct from the House of Lords has the following advantage. Very often in the public mind the procedures of this House are confused. It is said, "The Lords have done this". What is meant is that the judicial part of the Lords, the Lords of Appeal in Ordinary, have made a decision, which no doubt may much affect the public. That is very different from the decisions which this House takes as a legislature. I believe that there is some merit in distinguishing openly between the supreme legal body and the legislative functions of this House.

I take the point about the need for the Lord Chancellor to use his natural discretion in deciding whether to sit in cases in which it could be said that he was so politically involved that it would affect the final

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conclusions of a supreme court. But, that having been said, I hope that we will not alter the procedures which allow the Lord Chancellor to be a formidable part of the legislature.

Lord Renton: My Lords, as we have more time than was expected for the speeches in this debate, perhaps I may ask the noble Lord, with whom I agree on nearly everything he said, whether he does not realise that the American constitution, which applies the separation of powers so rigidly, has in fact caused great trouble.


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