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Constitution: Executive, Judiciary and Parliament (Constitution Committee Report)

My Lords, this has been a remarkable debate that has ranged quite widely, as might have been anticipated from the scope of the two reports that we are considering tonight. It has been made a memorable debate by the outstanding maiden speech by the noble Lord, Lord Pannick, whose presence in this House adds not just great experience of the interrelationship of the judiciary and Parliament but great wisdom and sensitivity, which was reflected in the four points he wanted to make in the relatively short time available. The noble Lord was right to say that tension between Ministers and judges is inevitable, as he was right to point out that sometimes criticism of judges is appropriate, provided that it is delivered in a reasoned way with measured language. The tone of his contribution was immensely encouraging and we very much look forward to hearing from him again. The thrust of our interest in this place in constitutional reform and the acceleration of the consideration of such matters is something that will no doubt bring him back on a number of occasions. It is appropriate to express the warmest appreciation to the noble Lord, Lord Goodlad, and his committee and to remember with gratitude the role played by my late friend Lord Holme of Cheltenham. The noble Lord, Lord Goodlad, refreshed our recollection of the outstandingly important points in the report. I would not presume at this hour to rehearse the main issues that it lighted on. Rather, I shall confine my remarks to one or two points of interest. I am grateful to the committee for having raised them; I may have a slightly different emphasis in animadverting about them. One of the greatest achievements of the committee may be to have induced agreement that there should be an annual report from the Lord Chief Justice. There must be—notwithstanding the independence of the judiciary, which Parliament must respect—an interface between Parliament and the judiciary, and that is best handled in this way, with the considered deliberations of the judiciary expressed by the Lord Chief Justice, especially with regard to issues of management and budgetary concerns. Those are entirely proper issues for Parliament to consider. It is also right that they should be discussed in advance of determinations being made. I note the criticisms made about the creation of the Ministry of Justice without much prior deliberation, but these matters have led to the valuable framework document, which will bring together the responsible Minister and the head of the judiciary. Here I slightly disagree with the committee report. That document has to a considerable extent been overtaken by the concordat set out in 2004 during the passage of the Constitutional Reform Act. That document—although an important historical document, and one that set out the understanding of the Minister, the Lord Chancellor of the day, who was responsible for the proposed reform, and of the judiciary as to how it might operate in practice, and some of the fundamental values and principles to be supported by the legislation—is none the less an historical document. It is a document which is of value in that context but I doubt whether it makes sense to treat it as though it were some sort of statutory instrument which needs to be revised if there are changes of political emphasis. If there are such changes, it is of course desirable that they should be made explicit so that they can be discussed, but it should not be seen as a kind of fundamental law governing the relations between the Executive and the judiciary. My noble friend Lord Lester in his comprehensive speech raised a number of extremely important issues, not least his reflections on the prerogative powers. These are matters which, as my noble friend Lord Tyler mentioned, will be reviewed again if the Government bring forward their Constitutional Renewal Bill in anything like the form considered by the Joint Committee prior to the Summer Recess. There will be other opportunities for deliberating on these matters but I wish to say how strongly I support the view of my noble friend that the prerogative powers should be drawn from Parliament and based on statute. There was a clear watering-down of the Prime Minister’s initial statement expressed so eloquently in his Green Paper on the role of Parliament, particularly in respect of the prerogative powers, which was not welcome. I hope that matter has been reviewed in the light of the consideration given by the Joint Committee. The noble Lord, Lord Norton, as we might expect from such a thoughtful Member of the House, raised the remarkably interesting question of the need for an agreed constitutional framework in which the relationships between the Executive, Parliament and the judiciary can be developed. I was not entirely certain that he was suggesting that a written constitution is the answer, though my personal view is that the kind of discussion that he proposed, led by a royal commission, might very well point in that direction. In so far as we have two major constitutional matrices—the European Communities legislation and the Human Rights Act which now cover a major part of our constitutional provision—it would not be such a departure from British tradition to move a few steps further in that direction. One step further which I would not welcome, however, is the proposed Bill on rights and duties to sit beside the Human Rights Act. My noble friend Lord Lester, in a charitable spirit as one would expect, expressed the view that if such a piece of legislation was proposed, it might assist in clarifying areas of uncertainty. I hope I do not misrepresent him. In the sphere of human rights the drafting by those distinguished British lawyers and politicians of the original European convention was very apt. Sir David Maxwell Fyfe, I believe, was one of them—a Member of the Conservative Government and subsequently Lord Chancellor. It is worth saying that these rights are expressed in the broadest and most general terms, and that their effectiveness in protecting the citizen depends on the wise judiciary applying the jurisprudence that has grown over the 50 years of their existence, both in Strasbourg and now more recently in our own country. Parliament would not necessarily find it an easy task to define these matters, the application of the principles of which may well be best left to the judiciary. I fear that the complexities of seeking to embody aspirations for a law of privacy in a separate law might have a contrary effect to the one intended. The balance between freedom of expression and privacy is clearly contained in the convention, and in the Human Rights Act as a result, and no amount of distortion by such witty and amusing writers and speakers as Mr Paul Dacre can or should be allowed to detract from the power of the courts to apply these things. I was grateful to the noble Lord, Lord Pannick, for reminding us of the extent to which the Court of Appeal and others have considered these issues; they have not been decided entirely by one judge, who was the butt of the attack by the editor of the Daily Mail in his speech to the Society of Editors. It is worth putting on to the record of our proceedings two statements made by Paul Dacre in that speech. First, he said that, "““no day is too busy or too short not to find time to tweak the noses of the liberalocracy which effectively run Britain””," Secondly, he drew attention to what he described as, "““the sheer bloody mischief that is the chemistry of any good paper””." I have a sense that that speech was distinctly over the top. There was an element of mischief in it, too. It is also worth noting that Mr Paul Dacre, in his remarks about human rights and about privacy in particular, rather candidly expressed an opinion that may offset some of his criticisms of the judge. After praising the press for its role in public shaming—and, as it were, in setting standards—he went on to say: "““Put another way, if mass-circulation newspapers … don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process””." It seems to me that that consideration was very much at the front of his mind when he delivered that speech, and I am bound to say that I cannot see that all journalists regard the peddling of scandal as a necessary duty to retain the freedom of the press and its role in our democratic processes. This debate has been valuable, not least for giving wider attention to an important and valuable report. Some of its recommendations have already been acted on, and I hope that we will continue to hear more from the Constitution Committee about these matters.