Examination of Witness (Questions 20-27)
RT HON
LORD MACKAY
OF CLASHFERN
KT
16 SEPTEMBER 2003
Q20 Ross Cranston: I was going to
ask a supplementary question about the appointment of Scottish
judges to the House of Lords. How did that normally happen? Did
the Lord Chancellor have to rely on the Lord Advocate?
Lord Mackay of Clashfern: Yes.
The Lord Advocate and the President of the Court of Session.
Q21 Ross Cranston: So it was the
Scots really saying, "Look: these are the best people",
as it were?
Lord Mackay of Clashfern: Yes.
Obviously, I have to leave myself out of account but generally
speaking I think it would be fair to say that the Scots thought
that those who went to the House of Lords on the whole were the
people that should be there in the sense that they were the best
of the Scots judiciary available at the time. One of the consequences
of that, of course, was that the Scots tended to lose the services
of these judges in the full sense in which they served Scotland
before because they served Scotland only in connection with appeals
to the House of Lords which were a small proportion of the total
amount of jurisprudence in Scotland.
Q22 Chairman: The Lord Chancellor
is going to tell us later this week what he proposes to do about
the large number of church appointments that he has at his disposal.
As a Free Presbyterian how did you feel about your responsibilities
in that regard?
Lord Mackay of Clashfern: I felt
quite easy about them. As you know, there was a statute passed
that said that if you were a Roman Catholic you could have it
handed over to a Secretary of State but that would not happen
automatically because the Lord Chancellor was not one of the Secretaries
of State. If he had been that would not have been necessary. I
felt no difficulty about it at all. The Prime Minister's Appointments
Unit gave advice to me on these appointments too. As you know,
when the Church of England arrangements were made at the time
of Henry VIII the wealthiest livings went to the appointment of
the Prime Minister, at least ultimately. The Lord Chancellor has
the lower level of appointments, so they are not the most valuable
livings in the country. I had very little difficulty with these
at all. The Prime Minister's Appointments Unit, for which we paid
a certain amount for the services rendered in respect of our appointments,
were very efficient at getting people that seemed acceptable in
the parishes. The only time I ever had to have a meeting with
anybody about any of these was when there was a delay in the filling
of a vacancy on the outskirts of London which was due to problems
arising in getting agreement. That was the only meeting I had
in almost ten years to deal with that particular problem. This
leads me to say that the idea that the Lord Chancellor has so
many formal things to do that he did not have time properly to
devote himself to his other functions, which seems to be advanced
now almost regularly as a reason for changing the whole thing,
seems to me to be utterly wrong. Indeed, in practice, since 1997
the present Prime Minister has loaded on to the Lord Chancellor
more and more functions, so if he thought that he had not time
to do what he had got already it is hard to see how in logic he
could have added all these extra functions to him, data protection
and all the other things that have been added to the department.
You just had to go along to see the density of the private office
as against what it was when I left to see what has happened in
that regard.
Q23 Mrs Cryer: I wonder what you
think about a set retirement age for judges on the Supreme Court?
At the moment the Law Lords have to retire at either 75 or 72
and apparently that depends on the terms on which they were originally
appointed.
Lord Mackay of Clashfern: That
is right. The present system is that if you were appointed to
the judiciary for the first time after a date when the Retirement
Act came into force you retire at 70 but you are eligible to sit
from time to time thereafter until 75, and I passed that boundary
about a year ago. I used to sit a bit; they used to ask me more
than occasionally to come back and sit in the Lords. I retired
at 70 but until the new Act is fully in effect you have the situation
which you have just described. Some people are not required to
retire at all until they are 75, but on attaining 75 they do not
sit again. There is no question of going on until 80 or anything
like that. Seventy-five is an absolute deadline for anyone to
sit as a judge on any case unless it is finishing off something
that you had been doing already.
Q24 Mrs Cryer: So if you are required
to retire at 75 you would not think it would be a very good idea
to have retired members of the Court sitting as and when needed,
say, for a further five years?
Lord Mackay of Clashfern: No,
I would not at all. As I say, I have just had this experience
myself and I think it is right that you come to a definite time.
Lord Denning was referred to earlier. He went on for quite a long
time. It might have been wiser possibly if he had stopped earlier
than he did but that is a matter of judgment. I do think 75 is
a reasonable limit and it was agreed very much by the judiciary
when we put it forward into the Act and I think it should stay.
Q25 Peter Bottomley: The Supreme
Court title may not fit properly. Can you suggest one or two other
expressions which can describe the function the Government has
in mind?
Lord Mackay of Clashfern: I find
this quite difficult. The House of Lords is a good way out of
that. The House of Lords Judicial is another thing that could
be used. There might be scope for confusion, I suppose. High Court
is used in Australia because, of course, they have got Supreme
Courts scattered around, so it is the High Court of Australia.
The difficulty with that is that here in this country we talk
of the High Court in England, and in Scotland the High Court of
Justiciary, and in Northern Ireland also it is a High Court. However,
we have got the Supreme Court here as well in England and Wales,
so you have got to change something anyway. I think it may be
worth considering something that is not so positive about the
jurisdiction of the tribunal as the word "Supreme".
I may say also that I see no reason at all why members of the
new Supreme Court should not be eligible to sit and vote in the
House of Lords. I cannot see how it has anything whatever to do
with their independence and I suspect—but I may be wrong—that
this is a desire to inhibit criticism of Government policy on
executive policy on judicial matters from being aired at the highest
level in Parliament. I do not see any reason why the judges should
be curbed. They do a good deal of work at the moment in the House
of Lords and the committees. The European Committee is mentioned
prominently, but there is another committee that I think is very
important and that is the Consolidation Committee. If our Statute
Book is going to be reasonable to read and use, consolidation
is a very important part of the process of legislation and a Lord
of Appeal in Ordinary has always been, in my experience, the Chairman
of the Consolidation Committee and it is by no means a sinicure.
I took over from Lord Brightman, he was doing it and I watched
him for a while doing it and it is a very time-consuming job.
Somebody who was a lawyer who was not in a full-time salaried
position in the Lords I think would find it difficult to do. Of
course, the more time-consuming in a way, the better, because
the more consolidation there is the better the Statute Book is
as a result. It is a very time-consuming job and I am not sure
who would be thought to take it on. Obviously you can rely on
the staff, but Lord Brightman taught me to check every single
reference myself and, as you can imagine, in a large statute that
is a big job and from time to time one found places where something
did not seem quite right and you had to raise it in the committee.
The committee is a joint one, as you know, but a Lord of Appeal
in Ordinary has normally been the chairman and has had to take
the responsibility of doing the work, which is quite considerable.
Q26 Peter Bottomley: If the Secretary
of State for Constitutional Affairs will not defend the value
of Members of the House of Lords and this Committee being in the
House of Lords, which other minister do you think will?
Lord Mackay of Clashfern: I do
not know. Anyway, I am wanting to state my view about it at the
moment.
Q27 Chairman: Lord Mackay, thank
you very much indeed. You have been very helpful to us and we
look forward to hearing you making your contribution in the Lords
in the future as well.
Lord Mackay of Clashfern: Thank
you very much.
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