Examination of Witness (Questions 1-19)
THURSDAY 27 MARCH 2003
MR ERIK
JURGENS
1. We welcome Erik Jurgens, Rapporteur of the Council
of Europe Parliamentary Assembly Legal Affairs and Human Rights
Committee. One or two of us have experience of the Council of
Europe Parliamentary Assembly; some past, some current. I am not
going to ask anyone to declare any more interests. We are very
glad to welcome you. We are intrigued that your Committee is very
interested in British constitutional matters, and we look forward
to questioning you in order to find out how you have arrived at
the views and proposals that you have. This Committee has not
formed any view about these constitutional issues. As you know,
we have only been in existence for a matter of weeks, but we have
begun taking evidence on these issues, and we will expect that
evidence to contribute to quite a lively public debate in this
country, to which your report, when it is finally approved, will
also contribute. Could I ask you just by way of introduction whether
this work on the Lord Chancellor in the United Kingdom is part
of an ongoing interest in the compliance of signatory states with
ECHR, the European Convention on Human Rights, and that other
countries are coming into your sights on either this or other
aspects of their constitutional system, or is this a one-off exercise?
(Mr Jurgens) Certainly not, Chairman.
It is a privilege for me to be attending a committee meeting of
my British colleagues. I used to be a member of the second chamber
in Holland, and in the British expression, I was "kicked
upstairs" to the first chamber. I have been a member for
eight years now, and I hope to continue. We are elected to our
first chamber though by regional assemblies, which may be an idea
for you. The point of the Parliamentary Assembly is that we try
to do this work together with our colleagues from the countries
concerned. In the Parliamentary Assembly delegations from the
national parliaments meet, and if there is criticism of what is
going on in one of our member states, the first thing we do is
contact the national delegation of the state concerned. As to
your question, I am the Rapporteur also for the execution of decisions
of the Court. Quite a lot of the decisions are not being implemented,
and my task is to try to make the national delegations put pressure
on their governments to implement those decisions, because if
they are not, it is very bad for the authority of the Court. That
is quite clear. This is a small part. I was drawn to it because
of an article in The Economist two or three years ago,
which said something scathing about the situation of the Lord
Chancellor. Every day in my Council of Europe work I am in confrontation
with new democracies from central and eastern Europe, who I tell
they should not do certain things, and they say, "What about
the British? They have these appointed Members of Parliament in
the upper House. They have a Lord Chancellor. They used to have
terrible laws against homosexuals"—all things I tell
them they should not have. This may be a reason to try to convince
our colleague co-inhabitants of the North Sea coasts that being
old democracies, there are things that should be changed even
in our systems. Last week the people of Liechtenstein, that great
nation of 22,000 inhabitants, also a Member of the Council of
Europe, decided to change their constitution in a reactionary
way. They have given the Prince of Liechtenstein the power to
appoint judges. There was a report by the Venice Commission, which
is a committee of the Council of Europe composed of constitutional
lawyers especially, for instance Geoffrey Jowell is a member from
Britain, I am the observer from the Assembly, and we appointed
three members of the Venice Commission to advise on that, one
from Denmark, one from Holland and one from Norway just to show
that there are other possibilities for constitutional government
with a monarchy. We will probably, I think, make a monitoring
report on Liechtenstein. Not just because of that but he has a
right to veto bills from the parliament. I do not know what is
happening in that part of Central Europe but it is peculiar. That
was the second reason that I took this matter up. I think it would
be very good to show we are not only making remarks about the
new democracies from Eastern Europe but also willing to look at
our own systems and see if they really are functioning in a proper
way. That is a long answer to a short question. Sorry, Chairman.
Mrs Cryer
2. So really the reason that you launched into
this report was from your own interest, having read this piece
in the Economist, rather than a widespread concern from
other member countries about the position of the Lord Chancellor's
Department in this country? It was your own idea.
(Mr Jurgens) It was my own idea. I am
a constitutional lawyer by profession.
3. Yes, I am aware of that. There was no pressure
from other countries?
(Mr Jurgens) No, just these remarks which I have been
getting: "Why are you making remarks about us while your
own colleagues' democracies have certain deficiencies in their
own systems?" That is the reason for following this up and
showing that we are quite willing to take it up even if it is
a matter of one of the older democracies.
4. It is 50 years since the Convention was first
signed by King George VI at St James' Palace, not far from here,
and the Council of Europe came into being as the parent body of
that Convention. Over those 50 years no-one has questioned the
role of the Lord Chancellor's Department. Is it because the Council
of Europe is taking a different role than it did over those 50
years, or what?
(Mr Jurgens) First of all, for a long time the Convention
was not applicable in England in a direct way until two or three
years ago. In other countries, of course, we have already been
confronted, and the British in an indirect way, if a case reached
the court in Strasbourg. That was exactly the same problem that
the people of Luxembourg had in the Procola case in which
the fact that the council of state, according to the French tradition
of the Conseil d'etat, is the highest administrative judge
and also gives advice on pending legislation to the government
and members of the Conseil d'etat of Luxembourg, had been
giving advice on a certain law and later on pronouncing judgments
about the same law and the court in Strasbourg said in the Procola
case, that is I think four years old, that is not a good thing
to have because it does not give a very good impression if you
first advise the government to accept a bill, or not to accept
it, and take a different decision when you are a judge. That is
comparable to the situation we have here. It is often not the
fact that something wrong is happening but it is not transparent,
you cannot see what is going on, and things should not only be
democratically correct according to the rule of law but should
be seen to be so. That last point in the Procola case and
in this one is about the same problem.
Peter Bottomley
5. Is it conceivable that someone like you might
at some stage be invited to come here and explain why a draft
report would recommend we do not have a hereditary monarchy?
(Mr Jurgens) It is conceivable, if there
are good reasons for doing so. My country has one also and we
do not have a big problem with that considering that in both cases
the monarch has no powers outside the powers of the minister,
who is accountable. In the Dutch case at least the Dutch monarch
has no powers. You can defend it but it is a case in point.
6. You made reference to the Lord Chancellor
being in the Cabinet. First of all can I say I think your draft
report is an excellent one, it would be a very good text for young
citizens and old citizens in this country to understand more of
our own system. I congratulate you and I am grateful to you. You
referred to the Lord Chancellor being in the Cabinet. The Attorney-General
is not a member of the Cabinet but attends Cabinet meetings. Are
there similar difficulties in that role given that the Attorney-General
has the power to discontinue cases, take over private prosecutions
and do various other things?
(Mr Jurgens) I would not think so because in most
countries prosecution is a government matter. It is the government,
in fact, which prosecutes criminals or takes up a case for the
government. It is perfectly normal for a government to instruct
them to prosecute certain cases. I think it would not be good
if a government said to the Attorney-General "Do not prosecute
such and such a case". I do not know exactly what the situation
is in this country but that would be a big problem in my country
if the government tried to stop the prosecutor from prosecuting
because they did not like the prosecution taking place. There
is a problem there also, of course. That is why I made a very
short report. If I went into all the ramifications of the judicial
and justice systems of the different countries I would find quite
a few things.
7. I was trying to illuminate the points you
are making.
(Mr Jurgens) The Home Secretary taking decisions on
the length of life sentences which are not mandatory, the other
sort—the word eludes me—would be impossible in my
country. A minister would never take a decision on the length
of sentencing, always a judge. There are lots of small points
like that which need correcting, I think. It surprised me that
your Committee has only existed for a short time, it should have
been here for a long time already exactly to look into these sorts
of matters and, in fact, to prevent the court in Strasbourg taking
decisions over a judge in England on the basis of the Convention
taking decisions. Quite possibly a British judge would say an
appeal is not acceptable because of the background involved.
8. So, in essence, someone who has legislative
or government responsibility can be trusted to be partial, partisan,
to be a prosecutor or even a persecutor—prosecutor is probably
the right word—but they cannot be trusted to be impartial
or would not necessarily be seen to be impartial by those involved
in the justice system?
(Mr Jurgens) No.
9. Can we turn to the Law Lords because you
make a proper reference to the fact that senior Law Lords are
also in Parliament and can contribute to legislative debate and
to vote. That is an obvious advantage, that people who are expert
and actually in practice make the law by their judgments just
as much as they have to apply the law in their role, but should
it in some way be seen as not right that they should take part
in the parliamentary debates as well?
(Mr Jurgens) It is comparable to the Procola
situation because there the argument also in the Conseil d'etat
situation is very good for the administrative judges to take part
in advising on legislation because then they know what legislating
is about, it is very practical. I noticed in December 2001 the
Parliamentary Secretary to the Lord Chancellor's Department, Mr
Wills, made the argument that we should keep it because it works.
That is what my Russian colleagues say for keeping the Prokuratura.
"Because it works" does not say anything about if it
works properly or not. There is an excellent article by Lord Steyn
on the whole matter which I would ask all of you to read because
he says it much better than I could ever say it. He cites Mr Wills:
"The only answer is that it works". That is the point
in question, does it work?
10. It may be a summary.
(Mr Jurgens) No, it is a citation. It is rather good
to read: "We have an arrangement in this country and we are
keeping it because we believe it works". That is the sentence.
11. I am not challenging that it is a direct
quotation, I am saying it is not the argument.
(Mr Jurgens) I gather you are a member of the opposition
here.
12. My last question is: you made reference
to court decisions which have not been implemented and it would
be very helpful if either directly or by guiding us to a list
of ones which have not been implemented we could have those and
we could make further inquiries.
(Mr Jurgens) Yes, certainly. The delegation of Commons
and Lords to the Parliamentary Assembly would be quite willing
to pass that on.
Ross Cranston
13. We met, of course, and we had a very stimulating
discussion. I think the point that I tried to argue with you was
that you cannot look at these matters simply as a question of
human rights in the abstract, you have to look at history and
culture and, of course, you do take that into account in your
report. In this country we never adopted Montesquieu in pure form,
we never had the strict separation of powers. We take the independence
of the judiciary very seriously but we underpin that with a whole
range of historic and cultural factors. For example, our judges
in the main come from the independent Bar, so that brings an attitude
of independence. We now have all sorts of ethical rules which
the Lord Chancellor's Department in recent years has codified
as to how judges should act, how they should continue with friendships
at the Bar, for example, who they should contact, how they should
behave.
(Mr Jurgens) Rules made by the Lord Chancellor?
14. Yes, there is a document about how judges
should behave and, in fact, Lord Bingham gave a very interesting
lecture about ten years ago where he set out a number of these
behavioural ethics. My argument to you was that this is not a
question of the application of these rules of human rights, you
cannot consider the issue in the abstract, you have to consider
it in terms of particular societies. The fact that the Lord Chancellor
very occasionally sits on cases has nothing to do with the issue
of the independence of the judiciary in this country, the fact
that the Law Lords occasionally attend debates in the Upper House
has nothing to do with independence, you have to look at how these
judges are appointed, how they operate and so on. There may well
be an argument for a Supreme Court but that would be an argument
that it would operate more effectively, one might appoint different
people to it, it might be better resourced. I do not think it
is an argument such as you have set out in paragraph 20 of your
report that: "Nevertheless, it could be argued that being
a legislator is not compatible with the function of a judge"
and then you come to a recommendation that there ought to be a
Supreme Court—
Chairman: Let the witness have an opportunity
to answer the question.
Ross Cranston: This is not a question,
this is a statement.
Chairman: Here we have questions.
(Mr Jurgens) I observe the argument, Chairman.
Ross Cranston
15. You have got the argument and I think you
told me you studied at Cambridge, so you have a deep knowledge
of the way we operate in this country.
(Mr Jurgens) I did not get as far as
Cambridge.
16. Ah, I thought you told me that. The question
is can you just take these issues in the abstract and say, "Look,
the convention demands that there be certain institutional arrangements"
by taking them out of the culture and the history?
(Mr Jurgens) No, I do not think you can. It is the
arguments which are used to defend continuing with the present
system which make me queasy. If you look at the excellent note
that was sent to me after I had spoken to Sir Hayden Phillips,
the Permanent Secretary, which is the appendix of the report,
paragraphs six and seven: ". . . the Lord Chancellor provides
a counterbalance for the judicial branch against the centralised
power of government and Parliament". According to me that
is what judges should do, not a minister. The centralised power
of government and Parliament in the rule of law, the biggest controller
of them is the judge and that is why the judge has to be independent.
Then it goes on: "His tripartite role enables him to act
both as a link and bulwark between the judiciary and the executive
and the legislature." The next sentence in seven is "The
Lord Chancellor is thus the judges' guardian and representative
in the Cabinet and Parliament and, as necessary, vice versa"
which suggests that if in the Cabinet a point is raised about
the functioning of judges, about decisions being taken, the Lord
Chancellor would confer with his fellow judges as to that matter.
I presume that is not the case. I hope that is not the case because
that would be completely against the independence of the judiciary.
What a minister can do is to discuss with judges decisions being
taken.
17. I think one practical example of that might
be that there are criticisms of judges and, in fact, we have had
examples in recent times where the Home Secretary has criticised
particular decisions made and who then defends the judges? It
is very difficult for the judges themselves to—
(Mr Jurgens) The Minister of Justice in all our constitutional
democracies does that without having to be a judge himself.
18. No, not necessarily. I could cite you examples
where because Ministers of Justice are actually part of the government
they are rather reluctant to criticise their fellow ministers
and protect the judges.
(Mr Jurgens) There will always be weak ministers and
there will always be weak Members of Parliament, Chairman.
Chairman
19. Mr Jurgens, did you get the impression when
you talked to the senior judiciary in Britain that they felt they
depended on the presence of the Lord Chancellor in the Cabinet
to act as a bulwark on their behalf, or was this not a subject
which—
(Mr Jurgens) I would not have dared to
ask such a question. Considering the level of intellect of people
I was speaking to I would not like to suggest to them that they
were dependent upon the fact that the Lord Chancellor was a minister.
I certainly would not have liked to have said that to Lord Steyn.
Ross Cranston
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