Examination of Witnesses (Questions 140
- 149)
TUESDAY 18 NOVEMBER 2003
PETER WILLIAMSON,
BARBARA CAHALANE,
MATTHIAS KELLY
QC, RICHARD DRABBLE
QC AND ELIZABETH
GLOSTER QC
Q140 Ross Cranston: In terms of your
unofficial views rather than a party line on this, is the official
line pretending that the Supreme Court—in the present guise
as the House of Lords—makes decisions that do not have any
sort of social and economic ramifications when in fact it does.
Whether it be in terms of pensions or a whole range of issues
through to charter parties these are important decisions. You
could call them small "p" political decisions in some
cases. There is an argument that in terms of an appointment this
is not a neutral process in which it does not really matter because
you are simply looking at the one person.
Mr Drabble: I absolutely agree
that the Court makes important social decisions; I would not dream
of saying the reverse. The question is where on a spectrum of
complete non-executive involvement—which is the line that
one takes if one has the Appointments Commission itself making
the appointment without any imprimatur from the Prime Minister
(if I am allowed to use Latin) to a substantial list or a confirmation
hearing or something like that—does one draw the line? I
suspect there is a kind of common ground that nobody wants the
members of a Court being chosen for their social policy views
although there is a recognition that their judgments will have
social policy consequences.
Q141 Ross Cranston: At least if you
put up three names that gives some recognition to the fact that
these people are going to be making important decisions for society
and not simply making strictly legal decisions.
Ms Gloster: But is that not exactly
where it is important that you should not have executive interference
because, let us say at the Lord Chief Justice level or the Master
of the Rolls level? The Lord Chief Justice is critical in the
determination of sentencing policy. Is one saying that one should
forget about independence of a judiciary and separation of the
powers which this new Commission is meant to bring about? Is one
saying that the minister of the day wants to have a say whether
the new Lord Chief Justice is a hanger or flogger or—
Q142 Ross Cranston: I do not think
it is as crude as that.
Ms Gloster: It is as crude as
that.
Q143 Ross Cranston: No, it is not
as crude as that. I think it is an issue of legitimacy. Unless
there is some sort of political input then there is always the
danger that the politicians are then going to say that since they
really did not have any say in the appointment of this person
they need be less inhibited in criticising the Court or the individual
appointees.
Ms Gloster: But that does not
happen at the moment under the present system, does it? There
may have been criticisms in the past, but certainly the view of
the Bar is that the system so far has worked well in the sense
that the Lord Chancellor has not been traditionally subject to
political interference.
Q144 Ross Cranston: We do not know
whether he had three names or one.
Ms Gloster: We need not go there,
but is it not important, if the whole point of this new Commission—whether
one is talking about the Supreme Court or the Judicial Appointments
Commission—is to underline and preserve independence?
Q145 Ross Cranston: I guess I do
not accept the premise that it will be totally independent; I
think there are other mechanisms to protect independence.
Mr Drabble: The key is legitimacy.
That is the topic that I think divides Elizabeth and myself in
the sense that one needs some overt legitimacy for the members
of the court. What I completely agree with Elizabeth about is
that we do not want the identity of the individual members of
the Supreme Court being a matter for debate within Cabinet. If
you look at the comparative examples—Australia has heavy
executive involvement in the appointment of the members of the
Supreme Court—the academic commentary is that there is partisan
political debate about the identity of the appointments. The conjuring
trick somehow is to replace the role of the Lord Chancellor (who
meets everyone's concerns) with a check and a balance which does
not lead to overt Cabinet and party political involvement.
Q146 Ross Cranston: I am not sure
that Australia was the best example. The United States is your
best example.
Mr Drabble: Yes.
Q147 Keith Vaz: The Select Committee
was away during the appointment of Lady Justice Hale, but the
press cuttings that I saw were extremely positive about her. Although
I agree with you in that I am not in favour of confirmation hearings,
there is nothing wrong with someone who has been appointed coming
before this Select Committee, for example, and being questioned
about their views on a whole range of issues.
Ms Gloster: Why, with respect,
are a Lady Justice's or a Lord Justice's or a Lady Lord's or a
Law Lord's views on social policies relevant to her ability to
be a good judge? Why is it relevant that you know about her views
on fox hunting, for example?
Q148 Keith Vaz: I am not suggesting
that we should question her on foxhunting. What I am saying is
that there is nothing wrong in principle with someone appointed
to the highest levels of the judiciary coming before a Committee
of the House of Commons and answering questions. The Governor
of the Bank of England does this on a regular basis to the Treasury
Select Committee and there is nothing wrong with the a Lord Chief
Justice, after appointment, doing that.
Ms Cahalane: After appointment.
That is the point exactly.
Q149 Chairman: It is the practice
of the Committee to seek, with the cooperation of the senior judiciary,
their advice and input into matters we are considering. That may
be one of the things that would have to be done to fill the gap
if this gap opens up over, for example, draft legislation, being
considered by a select committee, which I gather from what you
said earlier would be an appropriate stage for that intervention
to take place.
Ms Gloster: But that is very different
from cross-examining or examining somebody either before or after
the appointment about their particular views about issues of the
day.
Chairman: I think Mr Vaz's point was
that it depends whether it is before or after the appointment.
Keith Vaz: I would expect it to be after
the appointment.
Chairman: We are very grateful to you
all for coming. We have a number of other witnesses this afternoon
otherwise we could no doubt spend the rest of the afternoon debating
some of these issues with you. Thank you very much.
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