Select Committee on Lord Chancellor's Department Minutes of Evidence


Examination of Witnesses (Questions 40-59)

RT HON LORD IRVINE AND SIR HAYDEN PHILLIPS GCB

WEDNESDAY 2 APRIL 2003

  40. It is so mysterious that it is difficult to get hold of. Can I raise just one further issue because Lord Irvine stressed the distinction between elected and non-elected ministers. I think you are extremely well represented by two ministers in the House of Commons, but they plainly have their own particular responsibilities. I regard it as a problem as a Member of Parliament that you are the only Secretary of State who is not there in the House of Commons to answer particular questions and I would be interested in how you see that.
  (Lord Irvine of Lairg) First of all, I am accountable to Parliament as a whole. Before the Department came of age and merited an LCD Select Committee, I did appear in front of the Home Affairs Select Committee, in front of the Public Administration Committee, in front of the Joint Committee on Human Rights, and my Permanent Secretary appears regularly, and it gives him great pleasure, in front of the Public Accounts Committee, so there is a high level of accountability. Also this new Committee, if I may say so, will increase the visibility and the accountability of the Lord Chancellor's Department. To take your point directly, I entirely accept that the office is a unique one and it must be justified or not in the terms in which I have tried to justify it. Now, of course under our system there are many ministers in the House of Lords and they are ministers of the Crown and they are regarded entirely as valid ministers. I have one excellent minister myself, Patricia Scotland, and it was not so long ago that there was a Secretary of State for Trade, David Young, and Lord Carrington as Foreign Secretary in the House of Lords, but more traditionally the Lord Chancellor and the Leader of the House of Lords have been in the Cabinet and that is that. Today there is a practical reason for the Lord Chancellor sitting in the House of Lords. But it relates to my point that it is an integral part of the office, that the office holder is head of the judiciary and that that is accepted and desired by the judiciary in this country. The truth is that lawyers of sufficient standing to occupy the office are more likely to come through a Lords route than a Commons route. That is no criticism whatever of the House of Commons. Of course, it is no criticism whatever of the eminent Lord Chancellors like Quentin Hogg, whom I have mentioned, who came via the House of Commons route. As we all know, the truth is that membership of the House of Commons today has become basically a full-time job for professional politicians, leaving very little time—I do not say no time—for a professional career outside. If you want to maintain the office of Lord Chancellor, an integral part of which is being head of the judiciary and accepted as such, it is inherently likely that the office holder will come via a Lords route rather than a Commons route. What about accountability to the House of Commons? As you know from the debates that there have been about House of Lords reform, there has been the strongest support from me of the primacy of the House of Commons and the need to keep it that way. I think that the Lord Chancellor with two Ministers in the Commons and with his liability to be called in front of a Select Committee such as this, is sufficiently accountable to Parliament. That is for you to consider.

  Mr Cunningham

  41. Commenting on your role as a judge and Lord Chancellor, how often have you sat as a judge over the past two years?

  (Lord Irvine of Lairg) I cannot remember, but I probably have not sat much in the past two years. I have probably sat about nine times in all. I would have to look up the figure. I have been involved in some fairly major cases—three lead judgments. I am anxious to get across to you that a lot of this debate has taken place on the basis that sitting as a judge is a problem. I have been trying to get across the fact that sitting as a judge is but one aspect of the head of the judiciary. Being head of the judiciary is integral to the whole office. If you want to know whether I would like to sit more than I do, the answer is yes. But there has been a huge expansion, as you know, in the responsibilities of the department since the last election. There was then the break up of the DTLR leading to a further expansion of responsibilities so it is quite a big job.

  42. If you are not able to perform your role as a judge, why do you retain that role?
  (Lord Irvine of Lairg) I am trying to explain that being head of the judiciary does not merely entail sitting as a judge. Sitting as a judge is but one aspect of it. I intend to sit as opportunity arises. I do not think that the question is so much how often I sit but whether one is entitled to sit.

  43. Perhaps I may put the question another way. Do you think that it is important that you sit?
  (Lord Irvine of Lairg) Yes, I do. I think it is important that the Lord Chancellor, from time to time, sits, yes.

  44. If you are not able to sit, with all due respect, why did you take the job?
  (Lord Irvine of Lairg) I could sit tomorrow. I can give you more detail if you like. Obviously, if any case concerned directly or indirectly in a significant way what may be perceived as the interest of the Government one would not sit. The kind of cases where there would be no conceivable objection to a Lord Chancellor sitting are the long commercial cases between private parties, the kind of cases that I did extensively when I practised, and they can take three or four days. I readily acknowledge that that is too long a period to take away from my other duties in order to sit. There are practical problems. I have difficulty in seeing why this issue is so important. That is why I wanted to begin by emphasising that it is an aspect of being head of the judiciary.

  Chairman

  45. May it become important if you had a decision challenged under Article 6 of the European Convention on Human Rights?

  (Lord Irvine of Lairg) Obviously, I would not want to sit and I would be absolutely sure that I would never sit in a case in which my sitting would infringe Article 6 of the Human Rights Act. Article 6 is not concerned with the way in which our constitutional arrangements are made in the European Court of Human Rights. Article 6 is not a means by a side-wind to change our constitutional arrangements. It merely ensures that there is a fair hearing. I would not sit in any appeal where it could be thought that I represented some governmental interest that would cause someone to consider that it was not a fair hearing because the Lord Chancellor was sitting. I would astutely ensure that that would not happen. I do not believe that it has happened. I would choose with care the cases where the law was being developed significantly, probably in areas that affected private persons or corporations and did not engage the interest of the state directly.

  Mr Soley

  46. If you were advising a country that was newly emerging from a period of authoritarian rule on its constitution, would you recommend the way in which we do things or a more traditional administration of justice?

  (Lord Irvine of Lairg) I have visited all the accession countries, or the majority of them: Poland, Hungary, the Czech Republic, Slovakia and so on. I have discussed the need for judicial independence and the rule of law. They have all emerged from authoritarianism and from cultures that did not respect the rule of law or judicial independence. I would not prescribe the office of the Lord Chancellor to them. The more all the elements of a democratic government, the rule of law and the independence of the judiciary are accepted, with courts standing between citizens and the state, the better. I would say that for countries emerging for the first time and trying to gain the attributes of a mature democracy, a much stricter doctrine of separation of powers would be appropriate than is appropriate for us who represent a very old and well-founded democracy in which those values are well understood and upheld. Before we propose any change to fundamental arrangements of this kind, I think that we are entitled to ask whether the world and Britain would be better if we made those changes. We do not want to make changes for the sake of it or for academic reasons or to conform to some kind of universal paradigm of how we manage our affairs, but we should look to see what works. A few years ago in Ireland, there were major articles in the Irish newspapers saying that they wished they had a Lord Chancellor who would sort out everything. I accept that that is a view.

  47. Let me make it clear that I am not convinced in my own mind that we need a supreme court, but I am interested in why the Law Lords should sit in the legislature. When they become Law Lords why do they take any further part in the proceedings except in their judicial role? In effect, you would then have a form of supreme court without all the trappings.
  (Lord Irvine of Lairg) The answer to all these questions is that that could be the case. The question is whether the present system is a good system. It was considered by the Wakeham Royal Commission, the most recent authoritative consideration of the issue. That concluded that the Law Lords make a positive contribution to the work of the House of Lords; they chair and serve on committees. The report sets out the committees on which they make a huge contribution and it goes on. Recommendation 57 was that they should continue to be Members of the House of Lords in the fullest sense. There is no doubt that they make a major professional contribution to some of the specialist work of the House of Lords in its legislative capacity.

  48. Is it not more likely that they will be called into conflict with Article 6?
  (Lord Irvine of Lairg) Lord Bingham, the senior Law Lord, made a statement in the Chamber setting out the principles that the Law Lords will apply in deciding to which debates in the Lords that they would contribute. He said that he did not think it appropriate for them to engage in matters where there is a strong element of party political controversy and he said that they bear in mind that they might render themselves ineligible to speak if they were to express an opinion that may later become relevant in an appeal to the House of Lords in its judicial capacity. They have that well in mind. Another point is this business about a new supreme court. A new supreme court means a building. That would be highly desirable if the funds were available and priority could be given to it. We could have a fine supreme court building somewhere in the heart of London of major architectural merit. I dare say we would all applaud that idea. But the judges have been very careful to say—they said it in the evidence to the Wakeham Commission—that in their judgment it would not make a bit of difference to the role of the Lord Chancellor because the Lord Chancellor would still be the president of the new supreme court.

  49. I am not convinced of the need for a supreme court and a separate building.
  (Lord Irvine of Lairg) I am convinced of the need for other court buildings up and down the country.

  50. I am interested in the blurring of the role of the Law Lords. It seems to me that because they take such an active role in the second chamber that their role becomes more blurred than is healthy. In a way, you had examples of that in the Pinochet case. I suspect that the problem for one member in that case, which had to be reheard, was because he had links with Amnesty. I suspect that he would not have such a role with Amnesty if he acted purely in a judicial role as opposed to being seen asa legislator in the House of Lords. Often organisations such as Amnesty want a Member of the Lords to take a wider role and they would not necessarily if they were Law Lords per se.
  (Lord Irvine of Lairg) Firstly, Law Lords do not take an active role in the House of Lords in the sense that you have expressed. They speak very rarely, and usually in debates that concern the administration of justice where they have a unique and specialist contribution to make. They also carry out terrific work on specialist committees. There is no doubt that they add to the quality of the service that the second chamber provides. They sit on the Joint Committee on Consolidation Bills, the Ecclesiastical Committee and they do a very important job on Sub-Committee E which deals with the law and institutions of the European Union. They bring to the work of that committee inestimable skills and experience. I note what you say about the Pinochet case. My belief is that Law Lords, because of the prestige that attracts to the supreme court judge in any country, would be very likely to be invited to be a trustee of a charity or whatever, even if not a Member of a legislative chamber. I have forgotten the facts about the Law Lord in question, but I do not believe that he was even a trustee. I think he had an association through his wife with Amnesty International. No one thought of that Law Lord that he was in any way biassed. It was simply that there may have been a perception of unfairness as the Law Lords decided in the course of the case to allow certain civil liberty organisations like Amnesty to address them. It was an unfortunate affair, but I do not think that there are any permanent lessons to be learned from it, other than that you have to be very careful not to sit in an appeal where there may be a perception of unfairness, although no unfairness would take place in fact.

  51. The fact that you have to spell it out in some detail like that suggests that the blurring between the role of the Law Lords as law officers and their role as legislators is actually prone to accidents, and probably more so than your role.
  (Lord Irvine of Lairg) In a whole century, that never happened. What happened in relation to the Pinochet case was an absolute one off. Of course one has to draw a lesson from it. A system that produced one remediable mistake at the highest level in 100 years is, in my book, a pretty good system. I also urge on you that the product of the system is our judges. They are internationally regarded. They are of the very highest quality. They are regarded as incorruptible and you cannot cite any example of a bribe to a judge in this country in 100 years. We have a very, very high quality system which rests on customs, conventions and traditions that are special to us. You should only interfere with them if you are absolutely sure that you can produce a better product as a result.

  Chairman

  52. A distinguished Law Lord expressed an interesting view on some of the subjects of today. (Lord Irvine of Lairg) That was Lord Steyn.

  53. Yes.

  (Lord Irvine of Lairg) Yes. There are many, many views to the contrary.

  54. I thought that the expression of unanimity in your comments could be corrected.
  (Lord Irvine of Lairg) The Council of Judges speaks on behalf of them. We must not convert a one-person minority into a majority.

  Peter Bottomley

  55. Lord Chancellor, when judges sit together to deliver their judgments, they do not have to agree. No one would assume that any other Law Lord would ever vote for something that he thought was wrong. You, as a Cabinet Minister, like Cabinet Ministers in the Commons, have to vote in the way that the Cabinet decides. I do not ask you for examples as I do not want to personalise the matter. Does someone in your position, as the leader of the judiciary, occasionally have to vote for things that one knows are wrong and against things that one knows are right?

  (Lord Irvine of Lairg) Do you mean in my capacity as a Cabinet Minister or as a judge or a Member of the House of Lords?

  56. As a Member of the House of Lords.
  (Lord Irvine of Lairg) Anyone who is a politician, who is a Member of the Houses of Parliament and who abides by a party whip has to accept all the compromises that are associated with not being a single individual, but with being a member of a party. Of course, that is true. I would not like you to think that when judges come to a judgment that there are not necessarily intellectual compromises as well in order to arrive at a single judgment. Of course there are majority judgments and minority dissenting judgments, but often we have unanimous judgments. You believe in fairy tales if you believe that there are not compromises lying behind a single judgment arrived at by a court of three or five judges.

  Ross Cranston

  57. I am interested in some of the practical issues rather than the highfaluting constitutional issues. That's why I wanted to ask you about access to justice. Perhaps I can ask a practical question about the Law Lords in terms of their facilities. They are on the Judicial Corridor; they do not have a separate library, although there is a library. Would a separate building provide them with better resources?

  (Lord Irvine of Lairg) Of course, a separate, well-appointed, supreme court building would make them very much happier and it would be a public building of great importance in the heart of London.

  Mr Soley

  58. It would add to your supplementary estimates.

  (Sir Hayden Phillips) I was with Lord Bingham in Washington and we went to the Supreme Court and he was quite taken with it.

  Ross Cranston

  59. Is there any future for a separate building?

  (Lord Irvine of Lairg) There is a future for anything, but there are no present plans for a new supreme court building.

  Mr Field


 
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