House of Lords Appointments Commission

Lord Hope of Craighead Excerpts

Thursday 21st April 2016 Lords Chamber

[Baroness Stowell of Beeston]

It is very important that all Peers make a proper contribution to this House in a way that enables us to give the public confidence in the laws that Parliament makes. However, it is absolutely appropriate and proper that the party leaders are responsible for ensuring that those they nominate will make their contribution effectively, and that they are held to account for that. The process and service that HOLAC provides is important. When it makes recommendations, no Prime Minister, whether this one or any before him, has ever ignored that commission’s advice.

[Lord Hope of Craighead (CB)]

My Lords, there is nothing wrong, as the noble Lord, Lord Forsyth, has been indicating, with the powers of the commission as far as the Cross Benches are concerned, but there is an issue about numbers and maintaining a fair balance between the Cross Benches and the other groups in the House. Would the Leader of the House be prepared to give an indication that that balance, which is approximately 20% of the House, will be maintained? Ultimately, the decision on numbers depends upon a communication between the chairman of the commission and the Prime Minister, so the Government do have a part to play in seeing that numbers are maintained.

[Baroness Stowell of Beeston]

And the number of Cross Benchers as a proportion of this House has been pretty stable for about three decades now. There is not actually a specific formula for the number of Cross Benchers, but the noble and learned Lord makes an important point about the importance of the Cross Benches to our work. That is why, alongside other appointments that the Prime Minister has made in recent times, he has made important appointments to the Cross Benches of noble Lords who are making an active contribution to our work, and that is something I know he will continue to do.

Her Majesty the Queen: 90th Birthday

Lord Hope of Craighead Excerpts

Thursday 21st April 2016 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, from these Benches, I am delighted to add our good wishes and congratulations to Her Majesty the Queen on this very special occasion of her 90th birthday. Her Majesty has had, and continues to have, an extraordinary life which she has dedicated in service to our country.

As we have heard, we are living today in a very different society from the one into which Her Majesty was born 90 years ago today. Then, the sufferings and losses of the Great War were still raw. It was less than a decade since the United Kingdom had emerged from the horrors of the First World War, vowing that such devastating conflict should never happen again. And yet, sadly, it did happen again, when Her Majesty, then Princess Elizabeth, was barely a teenager. As we have heard from the Leader of the House and the Leader of the Opposition, during the Second World War Her Majesty not only served in the Auxiliary Territorial Service but brought comfort to many young people by broadcasting a message to evacuees, urging them to have courage.

Thankfully, today the prospect of war breaking out in the heart of Europe is unimaginable. Today, too, we are living in a world which is far more interconnected than it has ever been. Again, the Queen has fully engaged with this changing world. The metamorphosis of empire and colonial rule into the Commonwealth of free nations has in no small way been achieved by the Queen’s strong personal commitment to that unique institution and force for good in the world. She has kept up with technology and the IT revolutions which have transformed our world. In March 1976, when almost 50, and taking part in a network technology demonstration, the Queen was the first Head of State to send an email, although I rather suspect they did not call it that then.

Throughout the huge change that this country has experienced in the past 90 years, Her Majesty has been a constant, standing with her people whether it be in times of tragedy or times of joy. Her unwavering sense of duty, supported for more than 68 years by the Duke of Edinburgh, and her commitment to the service and welfare of the people of this country are surely an inspiration to us all. When speaking in your Lordships’ House on the eve of Her Majesty’s 80th birthday, my noble friend Lord McNally recalled the vow that the then Princess Elizabeth made in Cape Town on her 21st birthday. She said:

“I declare before you all that my whole life, whether it be long or short, shall be devoted to your service”.

Gladly, it has been a long life and surely no vow has been more dutifully honoured.

On behalf of my Liberal Democrat colleagues, I offer my warmest good wishes to Her Majesty the Queen on this most joyous of milestones for a day full of love and affection from family, friends and a grateful nation. Long live our noble Queen!

[Lord Hope of Craighead (CB)]

My Lords, as the House knows, members of the Cross-Bench group whom I represent seldom, if ever, speak with one voice. I am reminded of that feature of our existence almost every day, but this occasion, surely, is quite different. I know that each member of the group would wish me to say how delighted we all are to be associated in every way with what has been said, and that we join together as one in supporting this Motion.

The Cross-Bench group brings to this House Members with a wide range of experience. Many have spent their entire working lives in the public service. Some, by reason of the positions that they have held, have a much greater appreciation than the rest of us of the volume of work with which Her Majesty has lived for so many years, with such a great sense of dedication and commitment. But all of us, in one way or another, have our own memories of her and of the service that she has given. We can all share in the memories of the great occasions.

Perhaps one above the others that deserves to be remembered today is Her Majesty’s state visit to Dublin in May 2011. Her remarkable speech at the state dinner in Dublin Castle was surely an extraordinary moment in history, which only she could bring about. Her silent tribute in the garden of remembrance the previous day had done so much to settle memories of the past.

One occasion that stands out in my own memory, because I was there, was her Address to both Houses in Westminster Hall on the occasion of her Golden Jubilee. It is hard to believe, but that was 14 years ago in 2002. The then Speaker, Speaker Martin, and the Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, who I am glad to see is in his place, presented their addresses and handed them to her after reading them. Then it was her turn. She stood up and went forward to the microphones to read her own speech. There was no table; there was no lectern; she held her speech in front of her as she stood alone, I thought with great courage, on the steps in front of a huge audience. Unlike the speeches at a State Opening, that speech was her own creation—full of warmth and perfect for the occasion. She ended with a triumphant sentence assuring us of her resolve to continue to serve us all to the best of her ability. It was faultlessly read, as always, in a firm, clear voice. She then sat down to prolonged applause, which lasted for well over a minute. She seemed not to have expected that, and was greatly moved by that applause, but it was so well deserved.

Later she joined us for a reception in the Royal Gallery. One of the Law Lords who was with me had his back to her as she reached us. He was tapped on the shoulder by the Lord Chancellor. My colleague had the misfortune to be in the process of eating a large biscuit. Something was bound to go wrong and, indeed, it did. When he turned round, he was so astonished to see her standing beside him that he dropped his biscuit onto the floor right in front of Her Majesty’s feet. Her Majesty, who has a great sense of humour, was much amused. Another Law Lord, a judge from New Zealand, was then introduced. Her Majesty said to him, “I hear that you are about to end your appeals to the Privy Council”. He replied that it would not affect him, as he had already reached the retirement age of 75 and would no longer be able to sit. “When was your birthday?”, she asked. When he said that it was in June, she exclaimed, “You are two months younger than I am”. So much hangs on those words—we can all do our own arithmetic—but those words were as clear a demonstration as there could be that retirement was not for Her Majesty, that it is not and it never has been. How blessed we all are that this is so.

On behalf of all of us on the Cross Benches, I join with the rest of the House in supporting the Motion and wishing Her Majesty a very happy birthday. We offer her our warmest congratulations and our profound thanks. I think it is also right to say that we offer our profound thanks to His Royal Highness the Duke of Edinburgh—always there at Her Majesty’s side and with his own unique sense of humour, as has been said. For him, too, surely, this is a very happy day.

[The Archbishop of York]

My Lords, on behalf of the Archbishop of Canterbury and all the Lords Spiritual, I wish to endorse most heartily the proposed message of congratulations to Her Majesty, by divine providence Queen, head of the Commonwealth and defender of the faith.

At her coronation, Archbishop Fisher placed on the Queen’s wrists two newly-made gold bracelets, presented by a number of the overseas realms and territories as a symbol of the Commonwealth. As he did so, he said these words:

“Receive the Bracelets of sincerity and wisdom, both for tokens of the Lord’s protection embracing you on every side; and also for symbols and pledges of that bond which unites you with your Peoples”.

Today we give thanks for the Lord’s protection that has embraced Her Majesty on every side these many years. We also want to pay tribute to the sincerity, wisdom and devotion which she has consistently manifested throughout her long and glorious reign. They have served greatly to strengthen that bond between the Sovereign and all her peoples.

Since 1952, there have been seven Archbishops of Canterbury and seven Archbishops of York. What Her Majesty has made of that richly diverse and eclectic collection of Primates will no doubt never be revealed. All that I can say, from those of the Archbishops whom I have known, is that each has like me valued the support, interest, faithfulness and prayers of our Supreme Governor more than it is possible to describe. There are very few other people to whom an Archbishop can open his heart, knowing that his confidences will go no further and certain that at the end of the conversation he will go away affirmed and encouraged.

And so let this be a day for thanksgiving and much rejoicing on Her Majesty’s birthday. Long live the Queen!

Housing and Planning Bill

Lord Hope of Craighead Excerpts

Wednesday 13th April 2016 Lords Chamber

[Baroness Gardner of Parkes (Con)]

My Lords, I, too, have served on the Delegated Powers and Regulatory Reform Committee for at least two sessions of three years each. What concerns me is the word “regulations”. Does it mean that this will be another regulation that will come to us in a pre-formed state and we will not have any opportunity to consider its implications? I find it very worrying that we are doing more and more by secondary legislation and less by primary legislation, and I should like the Minister to cover that point in her reply.

[Lord Hope of Craighead (CB)]

My point refers more to what the noble Lord, Lord Beecham, said, although I very much sympathise with what has just been said, because I have been criticising the use of Henry VIII clauses, among other things. I am instinctively resistant to the idea of too many regulations, but there are occasions when a ministerial determination may be more protected if it has parliamentary approval—I am thinking of the risk of judicial review. I do not know enough about the field that we are dealing with to see how real the danger is, but it might be worth the Minister considering whether that element of protection would be of value. There is no doubt that, if it comes in the form of regulation, no judge will question its authority or consider whether it is proportionate or whatever else it is, whereas a determination by a Minister is open to review. It is a point that is worth considering, if the Minister is considering the issue at all, as one of the factors that it would be worth our bringing into play to decide whether it would be right to accept the amendment being proposed.

Strathclyde Review

Lord Hope of Craighead Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a very real pleasure for me to congratulate the noble Lord, Lord Darling, on his fascinating—indeed, outstanding—maiden speech. It is, of course, a much easier task for me than it would be for a shadow Chancellor to try to reply at short notice to one of his speeches from the Front Bench in the other place. At least I have that advantage. I can look back over the noble Lord’s career for over 40 years, ever since he joined the Faculty of Advocates, of which I was already a member, in 1984. For a time he was a member of a remarkable group of members of that body, which included the late John Smith, the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lords, Lord Campbell of Pittenweem and Lord Selkirk of Douglas, who sought to combine practice at the Scottish Bar with politics. He was already a member of Lothian Regional Council, if I recall correctly, when he joined the faculty. Not long after that—I think within three years—he became a Member of the other place for an Edinburgh constituency. That led to a decision, for very good reasons as we now all know, to give up a future career in the law and instead move into politics. It is as a result of that that he comes to this House with a remarkable fund of knowledge and experience. We also owe him an immense debt of gratitude for the work he did as leader of the no campaign in Scotland last year. It was an outstanding service to the country, appreciated very much in this House. It is against that background, too, that we all welcome him to our number. I am sure that we all look forward very much to many contributions from him on that subject and others.

I shall say a few things about the review by the noble Lord, Lord Strathclyde, not in my capacity as Convenor, but in my personal capacity. I begin by drawing attention to points made by the noble Lord, Lord Butler of Brockwell, who unfortunately cannot be here to speak himself, on 17 December last year in reply to the Leader’s Statement on the publication of the review. He pointed out that for many years now there has been dissatisfaction in all parts of the House with the binary choice available to us for either accepting or rejecting statutory instruments. He was speaking, after all, with some knowledge, because he was a member of the commission under the noble Lord, Lord Wakeham, which reported on that issue as long ago as 15 years, and of the Leader’s Group under the noble Lord, Lord Goodlad, which reported a year later. For that reason, he encouraged us to look positively at the proposals as pointing the way forward to resolve a problem that has been with us for far too long. He urged us not to be diverted by the circumstances that gave rise to the review, but rather to concentrate on the way forward. He emphasised, as other Members of the House have today, that the problem is one of long standing that needs to be resolved, and the sooner that happens the better.

Of course, a balance has to be struck. I welcome the careful attention that the noble Lord, Lord Strathclyde, gave to the work of the scrutiny committees—both the Joint Committee and the committee of this House—and that work’s importance. It is vital that it should continue. Of course, for that reason, option 1 is not one that anybody in this House can take seriously at all. To add to the point that others have made, I draw attention to a memorandum that the noble and learned Lord, Lord Walker of Gestingthorpe, sent to the noble Lord’s review, in which he drew attention to some important examples of the use of statutory instruments that now have statutory authority. We have moved far away from the primary purpose of delegated legislation, as set out on page 667 of Erskine May, which is to deal with,

“details of an essentially subsidiary or procedural character”.

The noble and learned Lord gave two examples of that, one from the European Communities Act 1972, where, in Section 2 and Schedule 2, provision is made for remedial legislation to cure incompatibility with convention law; and the other from Section 10 of and Schedule 2 to the Human Rights Act 1998, to deal with incompatibility with convention rights. A mechanism is a statutory instrument. It really would be absurd if this House, in dealing with issues of considerable difficulty and, indeed, possibly constitutional importance, could not comment on and examine them.

I shall say nothing about option 2, except to endorse the point that the noble Lord, Lord Jopling, made, that it really would be a recipe for continued argument. We really do not want that any more.

So we are left with option 3, which certainly has its attractions and which I, for my part, would endorse, but certainly there is more work to be done. I shall mention just one or two points. First, I welcome the point that the noble Lord, Lord Strathclyde, made about the need for clarity over what amounts to a denial of approval. We simply do not want to go through the kind of arguments that we had last term on that point. Although there may be difficulties about a fixed period, it is crucial that we have clarity as to what happens next if the thing goes to the other House. We really need to be sure that something proper will be done, that proper scrutiny will be given and, furthermore, that good reasons are given by the Executive if the decision is to reverse the decision of this House.

I endorse the point that others have made, in particular the noble Baroness, Lady Bowles, about amendment. Amendment has a great value. If you make an amendment it focuses the point of dispute. It requires an answer designed to deal with the particular point raised by the amendment. I hope that that point can be taken very seriously.

Lastly, I go back to the point that the noble Lord, Lord Empey, raised. He drew attention to what would happen if the reform takes the form that option 3 suggests. I think that the noble Lord, Lord Strathclyde, has played down the extent to which use would be made of that option. If given legitimacy, I am sure people would begin to use that route. I am not as pessimistic as the noble Lord, Lord Empey. I do not think that it would be overused, but it would be unwise to assume that it would not be used. I suspect that it would be used quite frequently in circumstances where, in the past, quite rightly, we have shrunk back from something that would, in effect, run the risk of contravening a convention of which we were rather uncertain.

English Votes for English Laws

Lord Hope of Craighead Excerpts

Wednesday 21st October 2015 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I should like to contribute a few words in the gap. One or two others may wish to do so as well, so I shall be as brief as I can. I am sure that the Government are right to address the West Lothian question—or the English democratic deficit, as the noble Lord, Lord Foulkes, called it—but what has puzzled me all along is why they seek to do it in this way and not by primary legislation, or at least under the cover of primary legislation. I should be grateful if the Leader of the House would explain why primary legislation is not being resorted to.

It seems to me that if the Government are to step outside the established procedures for legislation, which have the protection of the principle of the sovereignty of Parliament, they will do so at their peril. There are people outside here—we know who they are—who will seek to undermine, by means of judicial review, legislation that does not have the security of the established procedures. The noble Lord, Lord Kerr, hinted at that point a moment ago.

The problem that I see goes back to a point that the noble Lord, Lord Forsyth, raised about taxation. I do not see how a Government can rely on legislation passed by this new procedure, which is subject to the risk of challenge in the courts, until the procedures have worked their way through the courts. I do not say that anybody who seeks to challenge the legislation is bound to succeed; that is not the point. The point is that so long as there is the risk of challenge, and the delay of waiting for the courts to resolve the issue, the legislation cannot be brought into effect, because of the risk of having to unravel everything if, by some mischance, it is declared to be invalid.

Leaving aside the problems of conventions and so forth, it has always seemed to me that if the Government wish to proceed now, and if they want to take the safest course, they should do so by means of primary legislation. I shall not elaborate on that, but it is an absolutely fundamental point. I should be grateful if the noble Baroness would explain why that route has not been taken, in view of the risks to which the present solution seems to give rise.

Those risks were highlighted by what the noble Lord, Lord Reid, said about the problems of certification. I know from sitting in such cases how difficult it sometimes is to determine whether something is a devolved issue or a reserved issue. These are tricky points of law, and to solve the problem in the way that is being proposed seems to increase the risk of challenge, which is the last thing one would want in the case of legislation that the Government wish to pass to enable them to run the country according to the established procedures.

Parliamentary Privilege

Lord Hope of Craighead Excerpts

Thursday 20th March 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, like others who did not have the privilege of serving on the Joint Committee, I congratulate that committee and all its members on an excellent and eminently readable report. I also thank the noble Lord, Lord Brabazon of Tara, for initiating this debate and providing me with the opportunity to contribute to it, which I greatly welcome.

I should like to concentrate simply on the relationship between Parliament and the judiciary. In R v Chaytor, the case to which reference has been made, the late Lord Rodger of Earlsferry said that an invocation of parliamentary privilege is,

“apt to dazzle lawyers and judges outside Parliament”.

I think that his point was sometimes simply that the invocation of the words is regarded as a sort of red light—“Keep off the parliamentary lawn”. However, as Lord Rodger noted, Lord Brougham, when he was Lord Chancellor, cautioned against that approach. His advice was that the courts should not accede to claims of privilege,

“the instant they hear that once magical word pronounced”.

The issue requires to be addressed with more care than that and with a greater regard to the context. Article 9 of the Bill of Rights must, of course, be respected. However, as Lord Brougham said, it cannot have been intended to apply to a matter for which Parliament, especially its individual Members, cannot validly claim the privilege of exclusive cognisance at all. That was indeed what Chaytor was about.

I have to confess that I was surprised to read in paragraph 32 of the Joint Committee’s report the proposition that the courts can only interpret and apply the law, and that making law is for Parliament alone. That, with great respect, is not entirely accurate. There are many areas of the common law that have been developed by the judges with which Parliament has not dealt at all. In those areas, as was explained by the then senior Law Lord, Lord Reid, in 1972, the judges do indeed make law. It is true that they do not have the last word. It is always open to Parliament to reverse the position if it thinks that the judges have got the law wrong, or if the law declared by the judges is not something with which it agrees. However, as the Lord Chief Justice, the noble and learned Lord, Lord Judge, said, ultimately it is Parliament that is sovereign. However, much of the law that is applied day and daily in our courts is law made by the judges. That is one of the great strengths of our legal system. After all, legislation is inevitably a rather blunt instrument. The virtue of our common law is that it can be adapted to fit precisely to the facts of each case.

Leaving that minor criticism aside, however, I welcome the way in which the report deals in chapter 5 with the important issue of judicial questioning of proceedings in Parliament. The Government refer in their response to what they describe as the continuing good relations between the judiciary and Parliament. The relationship is indeed a good one. I agree with the noble Lord, Lord Norton of Louth, that the atmosphere is one of comity rather than conflict. In my experience, both sides are careful to respect the boundaries between what is and what is not permissible. That is certainly so of the judges.

The case of R v Chaytor obviously helped a great deal in clearing the air on this subject, which was causing concern when the idea was promoted of engaging in this report in the first place. I had the advantage of sitting in the court, together with my noble and learned friend Lord Brown of Eaton-under-Heywood. We and, indeed, all members of the court were very conscious of the need to respect the privileges of Parliament, which the appellants—parliamentarians all of them—had invoked. In the event, it was relatively easy for the court to conclude that there was nothing in the allegations against the appellants that related in any way to the legislative or deliberative processes of either House or their Members. As the noble Baroness, Lady Healy, said, a crime is a crime. It was relatively easy to reach that conclusion and the court held that the prosecution in the ordinary courts for the parliamentarians’ crimes of dishonesty was not precluded by Article 9. It is worth noting, as my noble and learned friend Lord Brown said, that nine justices rather than the usual five sat in that case. That was in itself recognition by the court of the importance of the issue that it had to address.

Like my noble and learned friend, I believe that the Joint Committee was right, in a later part of its report at paragraph 229, to criticise the decision in Rost v Edwards. It is worth remembering that that case was decided as long ago as 1990. The judge in that case allowed questions to be put to the Member as to his reasons for not registering an interest in the Register of Members’ Interests. However, I agree with my noble and learned friend Lord Brown that this was simply an aberration. Quite a lot of water has flowed under the bridge since then, and I should have thought that it was now clear and beyond dispute that all questions as to a Member’s reasons for declaring, or failing to declare, an interest for the purpose of proceedings in either House must be a matter within the exclusive cognisance of Parliament.

It is worth noting that in paragraph 23 the Joint Committee says that it would expect the two Houses to intervene should such a case arise in the future. I should add a footnote to that important point. The absence of such an intervention was noted in the Chaytor case. It was also noted much more recently in the HS2 case, on which the UK Supreme Court delivered judgment on 22 January this year. The point was picked up by both the president, the noble and learned Lord, Lord Neuberger, and by Lord Reed. There would be no difficulty in making an intervention should the Houses wish to do so. The rules of the court enable any person with a sufficient interest to intervene in an appeal. The court itself, if so minded, can ask for submissions to be made, and it might take that step itself if it felt that it needed to know what Parliament’s position was if it was in doubt. However, it would be best, as the report suggests, if Parliament itself were to take the initiative.

Chapter 5 dwells on the question of whether reference to proceedings in Parliament for the purpose of judicial review of governmental proceedings could be damaging. The suggestion is that this could lead to a blurring of the constitutional separation between the courts and Parliament because it would seek to question what was said. That point is made in paragraph 132. I agree with a great deal of what the noble Lord, Lord Davies of Stamford, said. I see great force in the objection that he put forward because the risk of the courts going astray on this point is less acute than this part of the report suggests, although I should make it clear that I agree with the conclusion in paragraph 136 that legislation prohibiting the use of such material is not required. I agree with the noble Baroness, Lady Healy, that that should be resorted to only when absolutely necessary; and that situation has not arisen.

Perhaps I may say a little more about the HS2 case, which, because the judgment was delivered this year, was not dealt with at all in the report. Your Lordships may like to know that one of the questions raised in that application for judicial review was whether the Government’s decision to obtain development consent for HS2 by means of the hybrid Bill procedure in Parliament was compatible with the requirements for a strategic environmental assessment under the EU’s SEA directive. The Supreme Court asked itself whether it was appropriate for it to consider that question at all, as it would require an assessment of the effectiveness of the parliamentary procedure. Lord Reed, who delivered the leading judgment on this point, said that he was conscious of the importance of refraining from trespassing upon the province of Parliament, or of even suggesting that he should do so. The president, the noble and learned Lord, Lord Neuberger, too, was careful to say that he recognised the importance of the principle. As it happened, the court was able, in the performance of its ordinary duty of construing the legislation, to hold that it could and should decide the compatibility issue itself. It rejected the invitation that it should evaluate the quality of the consideration that Parliament was likely to give to the relevant issues under the procedure selected by the Government. That was because the directive, properly construed, did not require that particular evaluation to be carried out. I dwell on the point because I suggest that one sees in that very recent decision the system working as it should, as well as the respect due to Parliament and its procedures being properly accorded by the Supreme Court.

It is worth noting just a little more about what was said in the case of Wilson v First County Trust, in addition to the passage from the speech of the noble and learned Lord, Lord Nicholls of Birkenhead, quoted in paragraph 126 of the report. That case was decided in the early days of the development of our jurisprudence on the effect of the Human Rights Act 1998, and what was said in that case has never since been questioned. One of the questions was whether it was proper for a court to be referred to proceedings in Parliament when it had to decide a question of proportionality in relation to the convention rights. I take the liberty of referring to what I said, which was expressly agreed to by Lord Hobhouse of Woodborough. In my own speech, I said that a cautious approach was needed and that particular care must be taken not to stray beyond the search for material that will simply inform the court into the forbidden territory of questioning the proceedings in Parliament. As I put it:

“It is for Parliament alone to decide what reasons, if any, need to be given for the legislation that it enacts. The quality or sufficiency of reasons given by the promoter of the legislation is a matter for Parliament to determine, not the court”.

On the other hand, as I pointed out, proceedings in Parliament are replete with information from a whole variety of sources which are on public record, as the noble Lord, Lord Davies, said. The court would be unduly inhibited if it were to be disabled from obtaining and using this information for the strictly limited purpose of considering whether the legislation was compatible with the convention rights—that being a task which the Human Rights Act itself has given to the judges. The European court in Strasbourg might wish to do that, so our courts should feel able to do so when performing the task entrusted to them by Parliament, observing the boundary set by the case of Wilson.

I agree that questioning the conclusions of a Select Committee—that is, evaluating the quality of its conclusions or suggesting that they were in error—would be wrong. However, that is not what the passages in Wilson were contemplating. I suggest that, carefully read, that decision strikes the balance in the right place. I should add also for the avoidance of any doubt that the fact that the courts do not pay any attention to ministerial statements that the provisions of a Bill that they present to Parliament are compatible with the convention rights does not involve any infringement of parliamentary privilege. These statements in themselves are not questioned by the courts, nor is the extent to which, if at all, they are relied on in either House. They are simply disregarded as irrelevant to the task that the courts have to perform. The fact is that Ministers and the courts are performing entirely different functions, and it would be constitutionally improper for the courts to be told by the Executive what their decision on the compatibility issue should be.

For all those reasons, I welcome the Joint Committee’s conclusion that the problem is not sufficiently acute to require legislation. Of course, it is right that the freedom of speech in Parliament should be protected from judicial questioning, but I think that the risk of that happening is very slight. I think, too, that I can assure the noble Lord the Leader of the House that the justices in the Supreme Court are as anxious as anyone in Parliament that that should not happen. As for the Motion in the name of the Leader of the House, I endorse entirely what the noble Lord, Lord Brabazon, said about it.