Mackay put on defensive by leaked 'warning'

PATRICIA WYNN DAVIES

and STEPHEN WARD

Brian Mawhinney, the Tory party chairman, was at the centre of a political storm last night after the Lord Chancellor, Lord Mackay, was forced to deny a press report that he was intending to warn judges not to overstep their powers in judicial review cases against ministers.

Lord Mackay had planned to lay out the constitutional ground in a speech stressing that as long as ministers followed the law, Parliament was supreme. But extracts from a draft were fed to the Daily Telegraph, forcing him to distance himself from the interpretation that he was criticising judges.

While the paper was briefed by a Conservative Central Office press officer, Sheila Gunn, the leak would have originated at Cabinet level.

Donald Dewar, Labour's Chief Whip, seized on the affair in a letter to Dr Mawhinney, a Cabinet member, calling it an "extraordinary abuse of Government by Central Office". He accused Central Office of "crass behaviour which has embarrassed the Lord Chancellor and which amounts to a foolish and dangerous intervention into sensitive constitutional issues".

In a highly unusual move, the full text of a letter to the paper's editor from the Lord Chancellor was released through the Central Office of Information.

Lord Mackay wrote: "I should like to take this opportunity to emphasise to you and your readers that I would never warn the judiciary 'not to overstep their powers by using judicial review to challenge ministerial decisions'."

He continued: "It is ultimately for Parliament to decide what the law should be and, so long as ministers have fulfilled their legal obligations, the decisions of Parliament, in the form of legislation duly passed, must prevail . . .

"But it must also be understood that judges act, and must be allowed to continue to act, independently - of Parliament, of the Government, of the Lord Chancellor and of each other."

The leaked story in Thursday's Telegraph comes amid government concern over a growing number of decisions being overturned by judicial review and interventions by judges over sentencing policy.

In one such instance, Lord Taylor, the Lord Chief Justice, declared his opposition to the Home Secretary's announcement to the Conservative Party conference in September that he intended to remove judges' sentencing discretion by introducing mandatory terms for persistent burglars and drug dealers.

Lord Mackay had hoped to try to bring the two sides together, but his draft for a speech was leaked after he consulted another minister.

He takes the view that judges have not exceeded their proper role in with their judicial reviews of ministerial decisions.

He believes they have not yet crossed the line from reviewing the way rules have been followed, to stray into criticising the policies themselves, but there is a risk that they might. Judges are only allowed to criticise government policy if it is clearly irrational.