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Constitutional Reform

My Lords, I have had the privilege of being a Member of this House for a little over six years, but I have not until now had occasion to address your Lordships in debate. The reason is simple: I was, until my fairly recent retirement, a member of the Appellate Committee and sat as a Lord of Appeal in Ordinary. We all observed, rightly or wrongly, the self-imposed abstinence from participation in debates. But I am now released from that Trappist-type vow of silence and I hope to be able to make a modest contribution from time to time to the proceedings of the House. I trust that your Lordships will indulge me as I find my way through those proceedings. In the context of this debate, I would echo the views expressed and the advice given by the late Lord Hailsham of St Marylebone. From time to time, proposals were advanced, which related to human rights and, as we know, in due course became the Human Rights Act 1998. But for a long time before that matured, his consistent reaction, his views and advice could be expressed in two words—be careful—which I understand he was fond of uttering. I commend those words to your Lordships as useful advice for anyone proposing constitutional change. I am not like Lord Chancellor Eldon, who was opposed to change of any kind and the danger of anything more or anything less. One of the great advantages of our constitution is its flexibility, its adaptability, its ability to change and develop. In the process, of course, Parliament will pass legislation aimed at that result and has done so many times with many beneficial effects. If wise and constructive proposals for reform are put forward which would modernise and strengthen our long-established and well-tried constitution, I for one would have no hesitation in supporting them. I am not an opponent of change. However, I urge caution in the process because well-intended alterations can, if the results turn out wrongly, make things worse instead of better. In this of all fields of activity, the law of unintended consequences operates with adamantine rigour and scant lack of concern for the frustrations of those who wish for something different. The Human Rights Act is a good example of the point that I wish to make to your Lordships. In saying that, I am not to be taken as either praising or criticising the Act. My point is that the consequence of the Act, unhappily, has been that a number of judicial decisions have been given which were certainly not pleasing to the Government. Some persons in public life have been heard to say that the judges were arrogating power which they did not have and have been frustrating and stultifying the intention of Parliament. Having been in the thick of this in the judicial sphere, I reject that calumny. The judges have had the job of trying to apply legislation conscientiously and, according to my own observations and practice, they have tried to observe that as faithfully as possible. The judges’ own opinions of the legislation are irrelevant and are left out of account. They take the law as enacted by Parliament and apply it, whatever they think of it and whether they think it is good or bad. It is rather like Barry John’s famous remark when Gareth Edwards asked him how he liked his passes—high, low, fast or slow. He just looked at him and said, "You throw them, I’ll catch them". The consequence that the width of judicial power has been increased may have been wholly unintended but it was not sought by any judge of whose opinions I am aware. I have discussed this many times. Indeed, it was foreseen that there might be some such problems, but those who took that view were, like Cassandra, not heard or listened to. No judge to whom I have ever spoken was thirsting for the extension of power; there were no slavering judicial jaws and no longing to stick it to any Government. But there it is: the legislation was passed, the consequence happened and we have to live with it. However, it may serve as a timely warning about the difficulties of constitutional change. Think how difficult it proved to be to abolish the post of Lord Chancellor by a stroke of the pen. I would add only one thing in conclusion: once you reduce something to writing—a Bill of rights, a constitution, things like that—you give rise to an industry among those who look for gaps, loopholes, extended interpretations and ways round. Lawyers in any other country which has a written constitution will tell you just that. My message applies right across the spectrum of constitutional change in all the aspects your Lordships are discussing today: if it is right, consider change and reform and propound it; but—in the words of Lord Hailsham—be careful.