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Lord Annan: My Lords, yes, indeed. It caused great trouble to President Roosevelt, who tried to pack the Supreme Court in order to get the New Deal legislation through. I am very much in favour of what the noble Lord, Lord Renton, has said.

6.26 p.m.

Lord Goodhart: My Lords, I start by noting the interesting fact that the previous five speakers have all been over the age of 80 and two of them over 90. While I do not entirely agree with everything they said, the quality of their speeches is a good reason for not imposing a retiring age on Members of your Lordships' House.

Noble Lords: Hear, hear!

Lord Goodhart: My Lords, in the United Kingdom we pay lip service to the separation of powers but we rarely give it serious thought. There is no separation of powers between the executive and the legislature. In theory, the legislature controls the executive; in practice, the executive, backed by a working majority in the other place, controls the legislature.

There is separation of powers between the legislature and the judiciary. In practice they rarely come into conflict. The legislature has no power to appoint judges. It can remove them but has only attempted to do so once, in the case of an Irish High Court judge early in the 19th century. The judiciary has no power to declare Acts void or unconstitutional except, as the Factortame case showed a few years ago, for a very limited power in respect of inconsistency with legislation of the European Community. The main exception to the separation is the fact that Law Lords are Members of your Lordships' House.

There is also separation of powers between the executive and the judiciary. Here the Lord Chancellor plays a pivotal role as a member of the Cabinet, as de facto Minister of justice, as the person who appoints the judiciary and as the head of the judiciary in England and Wales.

The conflicts in the case of the executive and the judiciary are more serious. The judges can exercise, and for the last 30 years or so increasingly have exercised, control over the executive through judicial review. Conversely, successive Lord Chancellors have also, with greater or less success, tried to influence the judiciary.

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I have read with great interest an as yet unpublished article by Professor Robert Stevens, to whom my noble friend Lord Lester referred earlier, in which he gives a number of examples of where Lord Chancellors, from Lord Jowitt to the noble and learned Lord, Lord Mackay of Clashfern, have intervened with judges in relation to the exercise of their judicial functions.

The central position of the Lord Chancellor has been defended--and not only by your Lordships today. In a lecture given at Oxford in 1997 the noble and learned Lord, Lord Woolf, said of the office of the Lord Chancellor:

    "On behalf of the Government [the Lord Chancellor] can explain to the judiciary the realities of the political situation and the constraints on the resources which they must inevitably accept. As long as the Lord Chancellor is punctilious in keeping his separate roles distinct, the separation of powers is not undermined and the justice system benefits immeasurably".
I do not find that argument persuasive. To my mind, it makes the Government and the judiciary sound too much like common members of a ruling elite--a group of platonic guardians or (what is perhaps much the same thing) a group of members of the Garrick Club, of which my noble friend is a member but I am not.

Lord Lester of Herne Hill: No. I resigned.

Lord Goodhart: I believe that the Lord Chancellor should not sit as a judge. I agree entirely with the noble Lord, Lord Annan, that the Lord Chancellor should continue to sit in this House and introduce legislation here. I believe that the noble Lord misunderstood the point made by my noble friend. It is his ministerial role on which the Lord Chancellor should concentrate. The Lord Chancellor could certainly not be seen as impartial in any case where the Government had a direct interest. That would include Revenue cases. I agree with my noble friend Lord Lester that the noble and learned Lord, Lord Mackay of Clashfern, was wrong to sit in Pepper v. Hart.

I believe that the Lord Chancellor could not sit in a judicial review case involving a government department, in many cases under the Human Rights Act and certainly not in a devolution case. Plainly, it would have been wrong for him to have sat in the Pinochet case. It is strongly arguable that he should not sit in a criminal case. Maybe a Lord Chancellor would be seen as impartial in a commercial case involving two independent corporate bodies but, frankly, in my view, sitting in such a case would be a waste of his time. The problems of having a senior member of the Government sitting as a judge are so serious that I believe it is much better for the Lord Chancellor not to sit at all.

The noble Lord, Lord Waddington, supported by a number of other noble Lords, attacked the decision in McGonnell. That appears to me correct given that the Government of Guernsey was itself an interested party in the action. My belief in the correctness of that decision is reinforced by the fact that Sir Nicolas Bratza, who was then the British member of the commission and is now a most distinguished judge of the European Court of Human Rights, wrote an opinion that concurred in the decision. I also believe that the Lord Chancellor

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should hand over his power to appoint judges to a judicial appointments commission. In recent years we have grown used to impartial appointments being made. I have previously criticised the noble and learned Lord, Lord Mackay of Clashfern, but he was outstanding in the impartial way in which he made appointments. I believe that his successor is likely to prove the same. But in the earlier part of the century political appointments were common. Even in more recent years it is widely believed that the noble and learned Lord, Lord Donaldson of Lymington, was denied promotion to the Court of Appeal by the Labour Government of 1974 to 1979 because of his previous association with the Industrial Relations Court. The bad old days could return. The increased importance of judicial decisions on devolution issues and convention rights makes this a serious risk.

I turn now to the other element of the separation of powers: the presence of the Law Lords in your Lordships' House. I find this a more difficult issue. It is an issue that is being debated by my noble friends on these Benches as we prepare our submissions to the forthcoming Royal Commission on the House of Lords. Therefore, I am not today in a position to speak for my party. Speaking for myself, I have no doubt that Law Lords, especially retired ones, contribute much to debates in your Lordships' House. In debates on the Access to Justice Bill we have had very valuable contributions from the noble and learned Lords, Lord Lloyd of Berwick, Lord Ackner and Lord Simon of Glaisdale and also from others. The Lord Chief Justice has made powerful speeches on the Youth Justice and Criminal Evidence Bill. Going back some two years, the noble and learned Lord, Lord Browne-Wilkinson, played a leading role in removing from the Police Bill in early 1997 the quite improper power for chief constables to authorise their own forces to carry out bugging and other forms of surveillance.

But there are increasing problems. The Pinochet case is a warning to Law Lords that they must not speak on issues that may come before them in future. This will limit the usefulness in future of serving Law Lords in your Lordships' House. Even retired Law Lords under the age of 75 who may wish to make themselves available to make up the numbers on the Appellate Committee may find themselves somewhat constrained in what they can say in the course of debates.

Devolution cases present what appears to be an intractable problem. Most of them will involve questions to do with the powers transferred to the Scottish Parliament or the Welsh or Northern Ireland assemblies and the powers reserved to the United Kingdom Parliament. How can Members of one of the Houses of Parliament of the United Kingdom be regarded as impartial for this purpose? Technically, the decision will be that of the Judicial Committee of the Privy Council rather than the House of Lords, but all or most of the judges who sit on the Judicial Committee that makes such a decision will plainly be Members of your Lordships' House. That raises the question of whether, when devolution issues become more prominent in litigation, it will be possible for serving Law Lords to remain as Members of your Lordships' House.

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As the United Kingdom faces up to unprecedented constitutional change the question of the separation of powers becomes increasingly important. I have expressed my views. I believe that the debate, in drawing out many other views, including quite contrary ones, has made a valuable contribution to the discussion of the separation of powers in the future, and I am most grateful to my noble friend Lord Lester of Herne Hill for having initiated it.

6.37 p.m.

Lord Kingsland: My Lords, I also congratulate the noble Lord, Lord Lester, on initiating this timely debate. I hope he agrees with me that the quality of the speeches on the balloted Motion fully justifies his initial speculation.

It has been said that our unwritten constitution does not contain within it the principle of the separation of powers. In my view, the separation of powers under our constitution is at the same time the most invisible and the most important part of it. Without it we would have no rule of law. As my noble friend Lord Renton rightly said, the essence of the principle is that, on the one hand, the judges do not interfere in the procedures of Parliament and, on the other hand, Parliament respects the rule of sub judice.

For 300 years that principle has served this nation very well; and is still respected as such. The difficulty is that its spirit is beginning to fray at the edges because an increasing amount of litigation upon which judges must adjudicate has a political content. An increasing amount of litigation involves conflicts between citizen and state, and often issues which relate to the content of legislation.

I believe that the judiciary is being asked to bear too heavy a political burden. The reason for that is the failure of the political part of our constitution to do its job in controlling the executive. One looks in vain at the programme of constitutional reform of the Government for anything which increases the power of members of the legislature to control members of the executive. That is as true in your Lordships' House as in another place. So it is no wonder that one reads increasing vituperation in the press about the decisions of the judiciary.

In some respects, the single most important constitutional reform that the country needs is not devolution. It is not the incorporation of the European Convention on Human Rights. It is increasing the power of the ordinary MP to control the executive. I see no sign of any serious thought being given to that issue. As long as no serious thought is given to it, judges will continue to be in great difficulty.

Quite rightly, judges are unelected. They have to deal with political issues, in particular in the Crown Office and the Appeal Courts, almost every day of the year and, at the same time, retain their legitimacy in the eyes of the nation. That is the real challenge the separation of powers has to face.

Until now the judiciary has managed to survive because, in taking sometimes highly courageous decisions about controlling the acts of the executive, it

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has been able to disguise them under the myth of interpreting the intention of Parliament. That has been the basis of the development of judicial review, beginning with the genius of the late Lord Reid and continuing through to so many able judges in your Lordships' House today. But the great difficulty is that, with the introduction of legislation on devolution and the incorporation of the European Convention on Human Rights, the fig leaf of interpreting the intention of Parliament will no longer be available to the judges. In future they will have to take decisions which will quite clearly be their own decisions. Thereafter they will have to bear the full limelight of responsibility for having so judged. It is in that context that your Lordships have to consider whether anything needs to be done about the principle of separation of powers.

The noble Lord, Lord Lester, offered two solutions: one in relation to the noble and learned Lord the Lord Chancellor; and the other in relation to noble and learned Lords who sit on the Judicial Committee of the House of Lords. I believe that it was the noble and learned Lord, Lord Woolf, who said not so long ago in your Lordships' House that the Lord Chancellor wears three hats, and as long as he remembers which one he is wearing when he is doing whatever he is doing the principle of separation of powers is safeguarded. I have a great deal of sympathy with that. Indeed, I can think of only one occasion since the noble and learned Lord has been Lord Chancellor when he forgot to put on the right hat; and that was in his drafting of Part III of Schedule 5 to the Access to Justice Bill. I shall say no more about that because he has heard me speak about it on so many occasions.

I agree, and I suspect that the noble and learned Lord agrees too, that there are certain cases before the Judicial Committee which it would be inappropriate for him to hear. I think that common sense dictates which those are. I do not believe for a moment that it would be necessary to have those written down or stipulated in some constitutional agreement.

It would be a shame if we were denied the wisdom in parliamentary debate of the noble and learned Lords who sit on the Judicial Committee of your Lordships' House. However, I take note of what the noble Lord, Lord Lester, said about the dangers of their having to sit in future on cases which gave rise to matters upon which they had already spoken. That is not an easy matter to deal with, but it will depend on the individual wisdom of each of the noble and learned Lords to apply the appropriate restraint to himself, or herself, when considering whether or not to intervene in a debate.

Only one noble Lord has addressed the issue of the selection of our senior judiciary. I take the view that the legitimacy of the senior judiciary, who are unelected, will be enhanced if they undergo some kind of public parliamentary procedure, not necessarily before they are appointed but as a part of the appointment. I believe that that will give them greater security in office in future

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and greater protection from the kind of criticism that we read in the tabloid press and sometimes hear in another place.

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