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The Lord Chancellor: My Lords, with that I profoundly disagree.

I turn now to the issue to which the noble Lord, Lord Lester, also called attention as to the circumstances in which the Lord Chancellor should sit in the Chair in the House of Lords. Both my predecessors, the noble and learned Lords, Lord Mackay and Lord Hailsham, attached real importance to the Lord Chancellor sitting in the Chair. So do I. Sitting gives the Lord Chancellor a practical awareness of the development of the common law at the highest level. It enables him to assess the quality of the most senior advocates. And it is just possible that the Lord Chancellor may himself have a contribution to make. Many Lord Chancellors across the centuries have done so. Though I doubt that many would go as far as my noble and learned predecessor, Lord Hailsham. Characteristically trenchantly, he said that regular sitting for the Lord Chancellor was,


The only problem is: in what cases would the Lord Chancellor be wise not to sit? In common with the noble Lord, Lord Renton, and the noble and learned Lord, Lord Simon of Glaisdale, I am unwilling to lay down any detailed rules because it is ever a question of judgment combined with a need to ensure that no party to an appeal could reasonably believe or suspect that the Lord Chancellor might, because of his other roles, have an interest in a specific outcome. Examples might be where the lawfulness of a decision or action by any Minister or department might be at issue. In my view, however, there is no category of cases that could be labelled "constitutional" which should be "no-go areas" for the Lord Chancellor.

I part company with the noble Lord, Lord Goodhart, because Lord Chancellors have traditionally sat on criminal appeals which may give rise to issues which could be given that label. The furthest I would go is to say, "any appeal where the Government might reasonably appear to have a stake in a particular outcome"; apart from that, the issue should be addressed case by case.

The extent of sittings by Lord Chancellors in recent years has been remarkably variable. The House may be interested to know the facts. Lord Gardiner, who was Lord Chancellor from 1964 to 1970, sat very little; only four days. The noble and learned Lord, Lord Hailsham,

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was a prodigious sitter. From 1970 to 1974 he sat for 28 days, but when he came to his second period in office--from 1979 to 1987--he sat for 53 days. Lord Elwyn-Jones, Lord Chancellor from 1974 to 1979, was not a great sitter; he sat for eight days. Lord Havers, who was sadly in this office for so short a period in 1987, was not able to sit at all. The noble and learned Lord, Lord Mackay, throughout his Lord Chancellorship from 1987 to 1997, counts as a prodigious sitter too; he sat for as many as 60 days. I tell your Lordships that because I had the curiosity to inquire and, having done so, I thought I should share the information with your Lordships.

In the debate to which I referred and which I initiated on 5th June 1996 the noble Earl, Lord Russell, who unfortunately is not with us today and therefore has not contributed to this debate as well he might, said this, with which a number of your Lordships who contributed today may agree:


    "It is impossible to distinguish vires from origins. All three branches, judiciary, legislature and executive, are emanations of the King's Great Council. So it is a relationship in which the balance ... is a key feature. I see it as having been over many centuries a creative tension ... That balance is the balance of a see-saw--and the day it stops moving, it is defunct. So if there is a tension from time to time, there are uses as well as dangers in it".--[Official Report, 5/6/96; col. 1301.]

The noble and learned Lord, Lord Simon of Glaisdale, echoed that approach. He said that it is ever a matter of balance and not iron rules. That is essentially what the noble Lord, Lord Renton, was saying too. So we have had a good debate, none the worse for its brevity, and your Lordships will be grateful to the noble Lord, Lord Lester, for providing us with the opportunity to discuss these interesting issues.

Lord Renton: My Lords, before the noble and learned Lord sits down, he may be interested to know that this afternoon I visited my noble and learned friend Lord Hailsham who, alas, is not at all well physically, though his mind is as alert as ever. I told him of the debate that we were going to have and his only comment was, "Do be careful"!

The Lord Chancellor: My Lords, I hope that in everything I have said I have unwittingly--not knowing what the noble and learned Lord said--heeded his injunction.

7.7 p.m.

Lord Lester of Herne Hill: My Lords, I too tried to do so and especially because I am proud to have got my red bag from the noble and learned Lord, Lord Hailsham, in his last case at the Bar. I have great affection for him and am very sorry that he is not in good health and recently suffered a bereavement.

When the noble and learned Lord the Lord Chancellor referred to Lord Elwyn-Jones, I was reminded of a conversation that I had with Lord Elwyn-Jones in 1973 just before the Labour Government won a narrow victory. We were travelling back together from Morocco and I asked him what he would do if he became Lord Chancellor. He said, "Well, the one thing I would do is make sure that I was not the last Lord Chancellor".

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I said, "Surely there must be other things" and he said, "No, that is the most important thing. I must make quite sure that I am not the last Lord Chancellor".

I want to make quite clear, if it is not evident already, that nothing that I have said or done was intended to make the present powerful and eminent holder of that office the last Lord Chancellor. The debate is concerned with a much more narrow but still important issue; that is, the appearance of independence and impartiality in our final court and the arrangements in this House for strengthening rather than sacking judicial independence.

I am grateful to all noble Lords who participated. I am glad that I was lucky enough to win the balloted Motion because it gave me an opportunity of hearing a wide range of speeches, some of which gave me particular pleasure and all of which were educational in a broad sense. Perhaps I may be permitted to deal with one or two matters.

First, the enemies of the European Convention on Human Rights were fulminating about the McGonnell case and Article 6. They might be interested to know that Article 6 was drafted by Home Office lawyers. In Europe it is regarded as one of the British articles; it is regarded as reflecting Blackstone's great principles. When Lord Chancellor Jowitt was considering his advice to the Government as to whether or not we should ratify the convention, he foresaw that, if we did so, we might need to make changes about separation of powers. He was worried, for example, about the peremptory powers of the judge to commit for a contempt of court on the spot knowing that it might breach Article 6. It is no surprise, it seems to me, if in the McGonnell case the European Commission and, I dare say, the European Court would be deeply troubled by the notion of a political officer, an administrator, presiding in the Royal Court on Guernsey. If we need to amend our arrangements to give effect to the convention, I regard that as beneficial and not the end of civilisation as the British know it.

I have only one or two other points to make. I am not in favour, and nor is my noble friend Lord Goodhart, of a United States Supreme Court or a United States straight separation of powers. We are in favour of the dewigging of barristers and we hope that the Lord Chancellor, having changed his own costume successfully, will be able to change ours, but that is beyond the terms of the Motion.

We agree that the Lord Chancellor plays a key role in law reform and hope that that will continue and that he or she will always continue to be a Member of this House. The noble Lord, Lord Annan, was absolutely right in pointing to the confusion about the role of the Law Lords, not only in this country, but across the world. I have been astonished by the ignorance of many people in high places abroad--for example, in a friendly foreign government--who still think that the Law Lords are not proper lawyers and that we do not have a proper supreme court. One of the reasons for moving the Motion is that I believe, in the interests of the judiciary and our system, that we should eventually have a proper supreme court.

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No one has drawn attention to the oddity of our situation. Across the Commonwealth--whether in Australia, Canada, New Zealand, India or any other part of the Commonwealth--there is no other country in which the minister of justice, the key law reformer in government, also reserves the right to exercise a judicial role. I continue to believe, at any rate in certain classes of case--I think that the Lord Chancellor by implication agrees with me--that it would be unwise for him to exercise that right because of the appearance of a conflict of interest were he to do so.

One has only to think of the situation that might arise with another powerful Minister--say, the Minister of State at the Home Office, the noble Lord, Lord Williams of Mostyn, who sat as a judge before becoming a Minister. It would be unthinkable for him to sit as a recorder or a deputy high court judge while serving as a Minister. I believe the same is true of the Lord Chancellor who sat as a judge before he became Lord Chancellor. I can see no good reason why, when he becomes the Lord Chancellor, he should continue to sit judicially, at any rate in the kind of cases that have been debated this evening.

Unlike the noble and learned Lord the Lord Chancellor, I believe that we need some criteria and some principles. They do not have to be iron laws--of course not--and they do not have to be rigid or immutable. However, I believe that if we are to proceed by convention, the conventions should be much clearer than they are at present. The Lord Chancellor--I agree with him--gave guidance before he became Lord Chancellor to the Law Lords and other judges about self-restraint in giving lectures. This evening he has given guidance again about Law Lords making speeches in your Lordships' House. I say, with great respect to him and affection for him, that I believe similar guidance needs to apply to the Lord Chancellor himself. Basically it is, "trust me". Of course, we all trust the Lord Chancellor as an individual personality, but this evening we are debating the system itself and the institution itself.

Those are the points that I wanted to deal with briefly. I thank all noble Lords who participated in the debate. I beg leave to withdraw my Motion for Papers.

Motion for Papers, by leave, withdrawn.


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