Examination of Witness (Questions 20-39)
THURSDAY 27 MARCH 2003
MR ERIK
JURGENS
20. When are you going to be looking at the
French Conseil d'etat because recently one of the members
there became the Minister for Europe. A very strange arrangement
where a judge then comes a minister, I would have thought on your
analysis.
(Mr Jurgens) Yes, but once he is a minister
he is not a judge any more.
Peter Bottomley
21. The prospect of being recruited as a minister
might be an inducement to being favourable to government, might
it not?
(Mr Jurgens) This debate is typical,
Chairman. I think Mr Cranston is quite right that all these things
are embedded in tradition. The point is that now our colleagues
from Eastern Europe are looking at us and saying "Is it not
about time that you had a look at your own system? Are there discrepancies
in that system which you should be correcting considering you
are telling other people how to do it?" Here is really the
point that not only should justice be done but should be seen
to be done, therefore the independence of the judge is important.
If you say he is a link between the Cabinet and the judges I think
you are saying something very dangerous. In both directions it
is dangerous. I do not think judges should say anything to the
Cabinet except in public and I do not think the Cabinet should
say anything to the judges except in public because transparency
is just about the most important point of the whole thing. I do
not like the idea of a Lord Chancellor or any other member of
the Cabinet speaking to judges privately and if that is happening
then it should stop immediately.
Mrs Cryer
22. I think there are 44 Member States in the
Council of Europe now and I just wondered how many of those do
have a complete separation of powers or whether there are some
of them who actually have a similar system to our own which compare
with the Lord Chancellor's Department in this country?
(Mr Jurgens) Montesquieu wrote his book
on the basis of what he thought was the situation in England and
then wrote about separation of powers, but it was not describing
the situation in England, as we know. Nowhere is it complete is
the answer. The only point where we are very strict it should
be separate is between the executive and the judiciary because,
as I was saying, the judiciary and parliament are the two institutions
in a democracy which have to control government and if both of
them are in some way linked to government it becomes very difficult.
I have my doubts about your system. I was very interested to see
you just now hearing evidence from the civil servants. That would
never happen in my country without the presence of the minister
himself unless it was very, very technical. Some of the questions
you were asking them were not particularly technical, they were
quite political. I would not want a civil servant to give answers
to that without my being present because afterwards you can hold
the minister to what the civil servant has said. He is a colleague
of yours, the minister, which makes it difficult. In our case
you cannot be a minister and a Member of Parliament at the same
time, so there is more of a dualism between the two. You have
long discussions about traditions of government and, you are quite
right, this is typical of every country, although at a certain
moment you should say "This is the bottom line. Although
you have this tremendous tradition, say the Russians with their
Prokuratura which mixes up prosecution and judgeship in
one institution, although you have been doing this for 100 years,
you should stop immediately." We must be able to say that.
That is the bottom line but we must not be purists. The interesting
thing is both the Privy Council and the House of Lords in judicial
decisions have said—also cited by Lord Steyn in his article
in the Quarterly Law Review 1997-98—in England we have a
separation of powers, the House of Lords says it, while it itself
is an example of non-separation of the powers, and the Privy Council
also says it. I do not know what is understood in England on the
separation of powers.
Chairman
23. I declare an interest as a member of the
Privy Council and the second one is my wife is a Member of the
House of Lords.
(Mr Jurgens) It is very privy.
Dr Whitehead
24. Are you saying essentially that there is
not a separation of powers in the UK?
(Mr Jurgens) Clearly not.
25. And there ought to be, and therefore things
follow from that, or are you saying that the confusion which reigns
in the UK about the separation of powers, and has done for quite
a long time, might be, as it were, slightly de-confused if one
did certain things concerning the relationship of the Lord Chancellor
to the judiciary? For example, you cite paragraph six of the Lord
Chancellor's Department's memorandum where they point out that
the Lord Chancellor is well away from the force of party politics
being in the House of Lords and yet the Lord Chancellor's Department
has been given fairly recently a whole range of new powers which
plunge it straight into the realm of party politics. Do you think
that is a contradiction in its own right or something which simply,
as it were, adds to the load of the non-separation of powers that
you would clearly like to see created?
(Mr Jurgens) In your question you gave an alternative
answer and I would choose the second. The present situation is
confusing, it lacks transparency as to exactly what is going on.
I think the only really important part of the doctrine of separation
of powers, that between the executive and judiciary, suggests
things that my correspondents in discussions have been saying
they do not have but how do I know they do not have them? It is
all arcane, it goes on behind closed doors. As a Cabinet minister
is also a judge, does he decide who sits on matters on which the
government is involved? I am assured that is not the case by Lord
Bingham but if that is not the case, why not show that it is not
the case? Why not take away his prerogative to decide that so
that people cannot have the idea that this is the wrong thing
and to prevent the Court in Strasbourg having to decide in a case
on which the Lord Chancellor has sat—that this fact constitutes
a violation of Article 6 of the European Convention (fair trial).
It is like the Freedom of Information Act, which I gather has
also become part of the Lord Chancellor's remit, the reason in
all modern democracies we are pushing through Freedom of Information
Acts is to make things transparent and to make sure that people
do not get wrong ideas of what is going on which are not true.
Keith Vaz
26. Can I first declare an interest, my wife
holds a judicial appointment. Have you met the Lord Chancellor?
(Mr Jurgens) I was received by his Permanent
Secretary. I asked to see him.
27. Are you planning to see him in the near
future?
(Mr Jurgens) My request was declined once, I do not
want it to be declined a second time by a Member of the House
of Lords.
28. How much of the controversy surrounding
the dual or the triple purposes, functions, of the Lord Chancellor
do you think are dependent on the personality of the incumbent
or the predecessor of that post?
(Mr Jurgens) If I was a civil servant I would say
you should ask this question of my minister.
29. I am asking you.
(Mr Jurgens) I do not think I should involve myself
in that part of British politics. The person who is Lord Chancellor
at the moment, I gather that it is of influence, of general discussion,
about his position but I am speaking solely about the matter of
principle.
30. I understand that but the personality of
whoever is the Lord Chancellor does have a bearing on the profile
of the office and, therefore, a more political Lord Chancellor,
someone who is seen to be more involved in party politics, brings
into question the way in which these functions operate. Is that
not the case? Personalities do matter.
(Mr Jurgens) I have been reading up on former Lord
Chancellors and exactly what their role has been politically and
some had very strong political roles, some less. That is a matter
of how his colleagues allow him to have them. If you give him
such a strong position in the Cabinet in a sense the protocol
is he is the first minister after the Prime Minister and, in fact,
in protocol he has a special position, he even has his office
in the House of Lords.
Chairman
31. He is paid more as well.
(Mr Jurgens) Sorry?
32. He is paid more as well.
(Mr Jurgens) So I gather. What must the public think
of what is going on in the House of Lords?
Keith Vaz
33. On judicial appointments, do you have any
evidence to suggest that any of the appointments that have been
made by any of the Lord Chancellors and particularly, obviously
because we are more familiar with what is happening at the moment,
the present Lord Chancellor, that were not achieved on merit but
influenced by political decisions?
(Mr Jurgens) No, not at all. I have been
reading the first report of the special committee which was appointed
to look into appeals on the matter of appointments to Queen's
Counsel and judge. That is an excellent way of doing it. We have
gone one step further in Holland and made a separate organisation
with judges in the majority taking the decisions.
34. So the triple functions that we have, in
your view, have not affected the quality of the appointments made?
(Mr Jurgens) I cannot say that. You asked me if I
had evidence and as lawyers amongst each other I have not seen
such evidence but that is not to say it does not happen, I do
not know.
35. Your belief is that it might do?
(Mr Jurgens) From what I have been able to read and
from colleagues and others I have been able to speak to, there
is general confidence in the impartiality of what goes on at that
level of appointing judges which has been strengthened by the
Commission because if funny things have been going on you can
appeal to that Commission and they can look into it. In the sense
of transparency that is a step in the direction I meant but further
steps should be taken, that was why I made my report.
36. Which would mean the removal of those powers
of appointment from the Lord Chancellor?
(Mr Jurgens) No, that again is something that within
the cultural and political tradition a country must decide for
themselves. The general move in modern democracies is to appoint
a separate body which appoints judges in which judges themselves
are very preponderant, to take it as far away as possible from
the executive and also, again, to make it transparent. "Was
Mr or Mrs so-and-so made a judge because he was nice to the Prime
Minister or has he been made a judge because he has very high
merit?" I would assume that the last is the case but that
should be shown to the case.
37. You quoted Michael Wills and you said that
he said it worked and, therefore, that is a good reason for not
changing it.
(Mr Jurgens) It is the typically British answer you
often get for many things—even for British railways!
38. Do you have any evidence that it does not
work? Apart from the transparency point, is there any glaring
event or position over the last 20 years, say, where it has shown
that it does not work?
(Mr Jurgens) The argument "it works" only
means to say the machinery operates but if it operates to a good
end or not—The machinery of a car driving 200 miles an hour
on the M1 is working excellently only it is not allowed to drive
200 miles an hour on the M1.
39. If we remove the Lord Chancellor's power
to be Speaker of the House of Lords, for example, we take away
his judicial appointment powers but leave him in the Cabinet,
we can still have senior members of the judiciary sitting in the
Cabinet?
(Mr Jurgens) I would say not. He could be a former
senior member of the judiciary who had become a Cabinet minister.
| 
