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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