SUNDAY TIMES
6
Spectrum
THE LAW C
Cutting, dated 1.9.JUL 1978
19
で
Are the rights of the citizen in danger? Lord Hailsham, the new Lord Chancellor, believes that they are and that they need protection. He makes the case in this exclusive interview with Lewis Chester and Harry Bloom.
The need for a Bill of Rights
HOW HAS THE OFFICE OF Lord Chancellor changed since your father's day?
WELL HE would be astonished by the changes of course. For one
is thing there the enormous increase in the amount of Govern- ment business and administrative work. Lord Chancellors now tend to be used as maids-of-all-work, chairing a wide variety of different Cabinet committees.
But the change that would most astonish him would be the differ- My ence in his judicial role. father would spend up to half of his day sitting in the House of Lords judicially. Since the war, however, Chancellors have found very little time to sit in on cases, I intend, at intervals, to sit on cases but they will, inevitably, have to be of short duration.
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Mr Justice Scarman, the chairman of the Law Commission, is on record with the view that there is 'an overwhelming case jor the administration of our legal system being handled by a Department of State answerable to both Houses of Parliament-in effect, a Ministry of Justice. Do you
think the cusc has been made? THERE'S AN overwhelming case
for the Lord Chancellor's Depart- ment taking over some of the functions carried out by Ministries of Justice in other countries. The ariministration of the courts is one of these, and I shall do this on the lines of Beeching. We already have a com- mitment in the Queen's Speech to take on this task.
On the other hand, I believe there is an overwhelming case against combining the functions of prosecuting offenders and the appointment of judges. This is a terrible defect of some Conti- nental systems. And there are lessons to be learned from our
own history. You may remember the Judge Advocate-General's Department which functioned during the war?
Every effort within the Depart ment was made to segregate the prosecuting function from the administrative one. Yet I am in- formed by a very experienced judge who worked in it that the judicial officers found, in practice, they had to constantly fight off the prosecuting branch.
done. How can we be sure it will be now?
WE WILL MOVE rapidly on this and hope to introduce a Bill in October. We shall follow broadly the Beeching Commission pro- posals, even if there will be some variation in detailed implementa tion. The situation now is that the volume of work has become intolerable and the quality of justice is suffering, There are ghastly delays, for insiance, at the Old Bailey. Last year a man was arrested on а charge of murder and has recently after two laborious triais been acquitted. He was in custody for well over a year. Magna Carta says justice delayed is justice
denied.
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An experienced group of Con- servative lawyers recently came to the conclusion agencies for redress against "mis- thet caisting
carriages of administration by public authorities were unequal Administrative Division of the to the task. They favoured a new Queen's Bench as a solution. How do you react to this proposal? I AGREE that there is a problem, and a grave one. Indeed, we are committed, again by the Queen's Speech, to tackle the very prob-
lem identified by those Conserva- tive lawyers. But I am not, at this stage at least, convinced of the merits of their remedy. in the first place, I don't think they have faced the inherent difficulties of their proposal. What would hap- pen to the Ombudsman? The po- posed administrative division would be bound in some ways to duplicate his function. And there would be the larger problem of mingling justice and politics. The
judges would find themselves con- stantly in conflict with the execu- tive. Is this desirable?
These are practical reserva- tions, but I have a more fungia mental one. I doubt if those who favour this idea are shooting at the right target. People are constantly talking about oppros- sion by the executive when I believe they should be wondering about the oppression of the Parliamentary majority. It is the Parliamentary majority that gives the executive its authority, and an administrative division of the court would, necessarily, be virtu- ally powerless against that majority.
Are you completely happy, then, with the way the "Ombudsman's office works?
On the question of account- ability, there are advantages in a system that does not allow the judicial function to become too easily the subject of direct political controversy in the I THINK it works extremely Commons. I refer particularly to the decisions of the courts and the appointment of judges. The controversies that have occurred, about a sentencing, for example, have not been particularly helpful. There has been talk about speed ing up justice before. As long ago as 1963 the Judicature Com mission politvi out the defects
of the
em. Nothing tons
well, within limits. But there are two large areas where it does not work at all-indeed, cannot work at all. First, in local government. Any MP will tell you that a very high proportion of the complaints
be receives should
more he properly directed to the local authorities-an area beyond the Ombudsmar's competence.
Secondly, and this is o' extreme,
importance to the point I was making about a proposed admini- strative court, the Ombudsman rarely finds on investigation that a Minister or official exceeds the powers conferred on them. What causes the complaint is fre quently action under an order or instrument made within the terms of an Act. The authority for these orders is unquestionable in legal terms. That is why I believe that the administration itself is the wrong target.
It is the Parliamentary majority that has the potential for tyranny. he on, ing the courts cannot protect you against is Parliament
the traditional protector of our Tibe, ties. But Parliament is constantly making mistakes and could, in theory, become the most
in uppressive instrument
the world.
that a new Bill of Rights might In Opposition you once argued
be the method that could buttress citizens' liberties against Parlia other mentary excess and indeed against
unions and massive commercial new tyrannies" by trade
organisations. Do you still hold this radical view?
I AM A VERY conservatively- minded person, and my funda- mental philosophy is perhaps
bourne's-if it works, leave well very much akin to Lord Mel-
alone. But sometimes a stage comes when things cannot be left alone any longer. Very often when that stage is reached the most conservatively-minded per- son turns out to be the most radi- cal in practice.
I thought, and still think, that a Bill of Rights would go a long way towards meeting the prob- lem. This would secure the citi
zen's liberties at least against in- advertent infringements made by the Parliamentary majority. The courts would have the power to decide whether specific orders or regulations were in conflict with entrenched legislated right.
There is a logical difficulty here, of course. Parliament with its sovereign power could deli- berately flout its own Bill of Rights. But this does not render the exercise useless-far from it. It would mean that any deliberate infringements would have to be carefully thought out in advance and made manifest in the legisla tive process. It may be that the Procedure for Hybrid Bills— which allows petitioners to come and object-should be adopted
when interference with en- trenched rights is contemplated. What would go into your ideal Bill of Rights?
THE PROBLEM would be what
to leave out. There is no short-
age of models. Indeed, we have provided them in The Con- stitucions of most of our former territories that have colonia. become independent. There is akan Bis 'niver al Declaration
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