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Lord Lloyd of Berwick: Before the noble and learned Lord the Lord Chancellor sits down, let us take his own example. Suppose, for example, that the Chancellor of the Exchequer were to propose to appropriate my property without compensation. Does the noble and learned Lord suggest that that ought not to be capable of being judged by the courts in a straightforward example of judicial review?
As the noble and learned Lord the Lord Chancellor describes it, two other Trojan horses have been coupled with Amendment No. 15. However, we must not lose sight of the fact that each amendment is separate and has a different purpose, and that they do not need to be cumulative.
Amendment No. 15 says that, wherever possible, a judge considering any Act other than this shall try to assume that that Act does not interfere with the independence of the judiciary. If, notwithstanding that effort, there is only one meaning which the judge can give to the Act that has been passed, he gives effect to it, notwithstanding the fact that it interferes with the independence of the judiciary. The amendment does not in any way require the courts to strike down anything that Parliament has said; it merely imputes to Parliament a keen desire not to interfere with the independence of the judiciary if it can.
Amendment No. 16A goes somewhat further. It says that if, notwithstanding that exercise, the court has to say that this Act has an effect on the independence of the judiciary, then it can declare so. That is a position further down the line, and it may or may not be a good proposition. But the invalidity of No. 2 does not in any way strike down No. 1. At that point, it extends even further, to Amendment No. 16 itself, which says that actions which are incompatible with the rule of law are unlawful.
Lord Falconer of Thoroton: I am not accusing Lady Justice Arden of any iniquity in this. Her position was completely clear throughoutit is not Lady Justice Arden I am contesting but the propositions that underlie the three amendments.
Viscount Bledisloe: What I am objecting to is the noble and learned Lord tarring Amendment No. 15 with the same points he makes against Amendments
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Nos. 16 and 16A. The fact that he does not like Amendments Nos. 16 or 16A and has advanced arguments against them is no argument whatever against the validity of Amendment No. 15. That is the only point that I am making.
because we have not yet got them on the face of the Bill. None the less, the speech of the noble Lord, Lord Maclennan, dealt largely with the fact that one could not have this amendment related to the rule of law. In further answer to the noble Lord, I have no interest in the geography of the proposal. If it is, as I want, put on the face of the Bill, it can be on the face of the Bill anywhere the noble Lord, as a cartographer, wishes to put it.
Lord Maclennan of Rogart: I am grateful to the noble Viscount for giving way. I defer to his very much greater experience of following how canons of interpretation are applied by the judiciary. My failure to deal with the point he has just madenot about geography but about the effect of Amendment No. 15was to do with the fact that it seemed otiose in that it dealt with precisely how the judiciary would address a provision that appeared to have that effect. It would follow the plain meaning but would presume that it was not Parliament's intention to repeal such an important provision of law.
Viscount Bledisloe: I was just coming to that. I can quite see that the noble Lord, Lord Maclennan, may regard the amendment as otiose. But it seems rather surprising, if it is otiose, that it was advanced by Lady Justice Arden on behalf of the whole Judges' Council. It is sometimes the case that an Act, in its more natural interpretation, would interfere with the principle of the independence of the judiciary. Assisted by this, Lady Justice Arden and the judges appear to think that it will help them, and who are the noble Lord and I to say that it will not?
On the points made by the noble Lord, Lord Brennan, of course Clause 1 is declaratory. In it the Government set out a constitutional principle about the independence of the judiciary. The Government think that that means something, presumably. Therefore, it is not very difficult to say that the judges shall take that into account when considering statutes.
Finally, on a slightly more frivolous note, the noble Lord, Lord Brennan, raised the question of the effect of a proposal to reduce judicial salaries by 30 per cent in times of stress. Surely he is not unaware of the very important decision in the case called, I think, Board of Inland Revenue v Haddock. It decided that when such a proposal has been made, it is impossible for the judiciary to try any claim by the Inland Revenue or any other claim by a government department, because it
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then has a personal interest in it. That very important decision is of course only reported in Misleading Cases by AP Herbert.
Lord Falconer of Thoroton: The issue about judicial salaries is interesting. As everyone knows, in the national emergency in the 1930s such a proposal was made. It involved all public servants including judges having their salaries reduced by a particular percentage. The judges objected on the basis that that would interfere with judicial independence. The Government refused to comply with their demands that their salary not be reduced. There was a stand-off, which lasted until an Act of Parliament was produced that would have reduced their salaries but with which the Government did not then proceed.
"GUARANTEE OF CONTINUED JUDICIAL INDEPENDENCE: NORTHERN IRELAND
(1) For section 1 of the Justice (Northern Ireland) Act 2002 (c. 26) (guarantee of continued judicial independence) substitute
"1 GUARANTEE OF CONTINUED JUDICIAL INDEPENDENCE
(1) The following persons must uphold the continued independence of the judiciary
(a) the First Minister,
(b) the deputy First Minister,
(c) Northern Ireland Ministers, and
(d) all with responsibility for matters relating to the judiciary or otherwise to the administration of justice, where that responsibility is to be discharged only in or as regards Northern Ireland.
(2) The following particular duty is imposed for the purpose of upholding that independence.
(3) The First Minister, the deputy First Minister and Northern Ireland Ministers must not seek to influence particular judicial decisions through any special access to the judiciary.
(4) In this section "the judiciary" includes the judiciary of any of the following
(a) the Supreme Court;
(b) any other court established under the law of any part of the United Kingdom;
(c) any international court.
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(5) In subsection (4) "international court" means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of
(a) an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or
(b) a resolution of the Security Council or General Assembly of the United Nations."
(2) In section 91(2) of that Act (extent: provisions not restricted to Northern Ireland), before paragraph (a) insert
"(za) section 1,"."
The noble and learned Lord said: These amendments to the Justice (Northern Ireland) Act 2002 will ensure that the provision made by that Act in relation to the guarantee of judicial independence is consistent with the provision to be made by Clause 1 of the Bill.
Section 1 of the 2002 Act, which has not yet been commenced, already contains provisions designed to place those with responsibility for the administration of justice in Northern Ireland under a duty to uphold the continued independence of the judiciary.
In light of the provision to be made by Clause 1 of the Bill, Amendment No. 17 will substitute a new Section 1 of the Justice (Northern Ireland) Act to specify and extend the range of persons upon whom the duty is imposed. Under the new Section 1, the First Minister, the Deputy First Minister, the Northern Ireland Ministers and anyone with responsibility for the judiciary or the administration of justice specific to Northern Ireland will be subject to the duty to uphold continued judicial independence.
Amendment No. 17 also amends Sections 1 and 91 of the Justice (Northern Ireland) Act respectively to define the judiciary in the same terms as Clause 1 and to provide that Section 1 shall have UK-wide territorial extent. This is to ensure that the object of the duties to be imposed by Section 1 of the Justice (Northern Ireland) Act is the judiciary throughout the United Kingdom.
Finally, Amendments Nos. 99 and 100 amend the commencement provisions of the Bill to provide that the clause substituting the new Section 1 of the Justice (Northern Ireland) Act contained in the Bill may be commenced by order by the Secretary of State for Northern Ireland, in line with the commencement arrangements under the Justice (Northern Ireland) Act.
I have previously indicated to the House that I plan to bring forward amendments related to the Lord Chancellor's role in Northern Ireland. I plan to introduce such amendments on Report. I beg to move.
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