Examination of Witnesses (Questions 165
- 179)
TUESDAY 18 NOVEMBER 2003
RT HON
LADY JUSTICE
HALE DBE
Q165 Chairman: Lady Justice Hale,
welcome. Congratulations. We are delighted to see you here in
this capacity and this is definitely not a confirmation hearing.
We are here to take advantage of your knowledge and to draw on
some of the points you have already made in public discussion
on the Supreme Court itself, on judicial appointments and these
matters, and we hope you will not be inhibited by being the new
member of the body which we are discussing. You drew something
of a distinction in some of the things you have said publicly
between the kind of knowledge that is required for an appeal court
generally and the kind of knowledge that is required for a Supreme
Court which is deciding broad general principles arising out of
cases rather than merely checking the accuracy of process or revisiting
the way in which a case has been handled. Have we really got so
clear a picture of the proposed Supreme Court—or Final Court
of Appeal as it might be—that you can draw such a distinction
and draw conclusions from it about being able to appoint a different
kind of person to it because it is not like other appeal courts?
Is the picture really as clear as that?
Lady Justice Hale: Thank you very
much for inviting me to come, Mr Chairman. I am delighted to be
here. It does not feel at all like a confirmation hearing; it
feels a bit more like a public examination. There is, as you quite
rightly say, a connection between what the jurisdiction and the
role of the new Supreme Court will be and the necessary qualities
to serve on it. However, even as things are at the moment the
House of Lords is always a second tier appeal and it has always
taken a particular type of case of general importance. In those
sorts of case the necessity to have the feel for how things were
in the court room, across that battleground that a court room
is—which may be useful in my present job—is nothing
like as important when you are on a second tier of appeal and
you are third guessing the case. That is my first point. The other
point that I was trying to make is that one hopes that most of
the cases that the Supreme Court would take would be ones of considerable
seriousness where there were policy issues, social issues, small
"p" political issues involved. The experience of just
being in the courts in the ordinary way does not make you any
better qualified to judge those sorts of policy issues than do
all sorts of other ranges of legal experience.
Q166 Chairman: We are not thinking
here about a Supreme Court which operates as a Bench as a whole
and reaches conclusions on wide social issues by majority decision
and therefore it becomes an issue as to what the balance of views
on it is: conservative judges, strict constructionist judges,
liberal judges and so forth. Are you opening a door to that if
you start talking about drawing people from very different
backgrounds—perhaps academic backgrounds—straight
onto the Supreme Court Bench.
Lady Justice Hale: Do not let
us say that they are very different. Academic lawyers are lawyers
too; rather expert lawyers. They have often had a much wider range
of experience of people and society than have the people who have
spent all their lives in the Temple and the Royal Courts of Justice.
My 18 years teaching 18 to 21 year olds at Manchester University
gave me a very considerable experience of the real world and I
found it extremely useful as a judge. Also, the thing that people
from a different range of experience have got is a knowledge of
how things fit into the bigger picture. When I was in the Law
Commission making proposals for the reform of the law one did
tend to find that it was the academic members who had a much firmer
grasp of how changing that might or might not affect this, that
or the other. In other words, they could see the bigger picture.
Practitioners are often so focussed on the bit of the law they
know a lot about that they can sometimes find it hard to translate
that knowledge across fields.
Q167 Mr Soley: I would like to pursue
a little more this question of the functions of a Supreme Court
because you drew, I think, on the views of President Barak of
the Supreme Court in Israel who thinks it is there to defend democracy
and to bridge the gap between law and society. There are a few
of us around this neck of the woods who might say it is like a
politician's job. I am trying to get from you a clearer view of
what you mean by the defensive democracy and bridging the gap
between law and society. What do you actually want the Supreme
Court to do?
Lady Justice Hale: I quoted President
Barak in the context of a comment that the consultation paper
has not really asked itself: whether the Supreme Court might think
a little more deeply about the sorts of cases it took. That is
my point. Is it simply correcting the errors of the appeal courts
in England, Wales, Scotland and Northern Ireland? Or has it got
a more strategic role in the development of the law and the preserving
of certain principles.
Q168 Mr Soley: You take the latter
view.
Lady Justice Hale: I would like
to see us moving in that direction.
Q169 Mr Soley: So would I. Can you
tell me where it will get to if it moves in that direction? What
would a Supreme Court look like? What would it do?
Lady Justice Hale: We have an
unwritten constitution so it would not be anything like the Supreme
Court in the United States or the Constitutional Courts because
it would not have as its role the measuring of the activities
in other parts of government against the entrenched values in
the constitution. It would not have that role, but it might move
much more towards concentrating on the big international cases,
human rights cases, the big public law cases and the big criminal
law cases; not doing cases just because there was a lot of money
involved.
Q170 Mr Soley: For example, if someone
challenged the human rights implications of being forced to carry
an ID card it might look at that. Is that what you mean?
Lady Justice Hale: That, of course,
is quite likely if this happens. That would already be the sort
of issue.
Q171 Mr Soley: It is unlikely we
will go down the road of enforced carrying, but I am using that
as an example.
Lady Justice Hale: It is a good
example.
Q172 Mr Soley: Another example, when
you are talking about international relations, what are you saying?
Are you saying that it might actually consider looking at some
of the laws we have signed up to within Europe or, for that matter,
a decision to take military action in Iraq?
Lady Justice Hale: Forgive me,
I probably have not made myself clear. What I was talking about
was looking more closely at the selection within the existing
jurisdiction of the sorts of cases it takes. I was not saying
expand the existing role.
Q173 Mr Soley: But you specifically
mentioned international relations. What do you mean by that?
Lady Justice Hale: I meant international
treaties and the application of international treaties.
Q174 Mr Soley: And whether they are
legitimate or not.
Lady Justice Hale: No. Not at
all. What I was talking about was that certain types of case within
the existing powers of the courts are obviously of such significance
that it would be right for a Supreme Court to be looking at them.
One of the examples I gave were things with a significant European
Union dimension. The question of sovereign immunity which came
up in the Pinochet case. That sort of thing; anything that raised
an important question relating to the interpretation and application
of our international obligations. That is the sort of thing I
was getting at. I am not in any way suggesting at this stage that
one enhances the jurisdiction of the courts generally beyond that
which they already have.
Q175 Mr Soley: I understand the Pinochet
case and that fits with my understanding of one of the things
the Supreme Court would do. What I am trying to get at—it
may be my lack of understanding because I am not a lawyer—is
that it seems to me that you could not help but expand on that.
Would it, for example, say that there must be a referendum under
the new European Constitution?
Lady Justice Hale: I cannot for
the moment, off the top of my head, see any way in which that
Court could do that.
Q176 Mr Soley: Even if it is said
that it was a right that should be expected by the British people
because it is a fundamental provision of the Constitution?
Lady Justice Hale: There is no
legal provision under which that would give any sort of jurisdiction
to any sort of court, that I can think of.
Q177 Mr Soley: Why is this judgment
by Barak so important as the link between democracy and politics
and bridging the gap between law and society if it cannot actually
reach out to it?
Lady Justice Hale: The Human Rights
Act, for example, is aimed at preserving certain key principles
of democracy and we have a role in relation to the Human Rights
Act. Bridging the gap between law and society, as I understood
it so far as President Barak was concerned—but I am less
sure about this myself—is in the development of those principles
of the common law so as to keep up with changes in society. That
was one of the reasons why I answered the Chairman by saying that
if that is indeed—and it is—an existing role for the
House of Lords, giving recognition to the importance of some understanding
of policy issues in that, there could be a good dimension in developing
that role. There has been a recent case in the House of Lords
about whether a woman who has been negligently sterilised is able
to make a claim for damages if she becomes pregnant when did not
want to. I hope Mr Cranston would agree with me, on general principles
of the law of negligence she would be able to make a claim for
damages, but in a case called MacFarlane v Tayside Health Board
not very long ago the House of Lords held that that would be contrary
to legal policy to allow her to claim more than damages for the
pain and suffering of pregnancy and childbirth. That was a social
policy and legal policy decision. We can all argue whether it
was right or wrong, but that was a decision and it was about the
development of the common law. They have since revisited that
decision and reached a slightly different conclusion because they
have had presented to them rather more of the legal policy arguments
than they had had previously. That is the sort of thing I am talking
about.
Q178 Chairman: You referred to the
democratic accountability in the judicial appointment process
in one of your articles and I was not quite clear how you saw
that that could be manifested if it was not to be in the form
of any democratic Parliamentary accountability for individual
appointments. What form could it take?
Lady Justice Hale: That is a very
good question to which I do not know the answer. I have been very
interested this afternoon listening to your questions about that.
As I understand the position—and you are the Parliamentarians
and will know better than I—I do not believe by convention
anybody from the Lord Chancellor's Department as was (or the Department
for Constitutional Affairs as now is) is questioned in Parliament
about individual appointments, in other words the Lord Chancellor
has not been questioned about individual appointments; the ministers
are not questioned about individual appointments. At the moment
there is no democratic accountability for individual appointments
but there is increasingly democratic accountability for the policies,
the practices, the approach, which is what this Committee is all
about at the moment. I would see the start being made in that
and retaining that element of democratic accountability for the
policies, the practices, the general approach, rather than going
over to what will be much more radical which is democratic accountability
for individual appointments.
The Committee suspended from 4.16 pm to
4.55 pm for divisions in the House of Commons.
Q179 Ross Cranston: The issue I raised
with some of the others was—and it came down to whether
you have three or one in terms of the recommendation—that
at the present time I think six but one of the last appointments
to the House of Lords have been of Chancery lawyers. One might
well think one wants a wider representation and I think that would
resonate with what you have been saying about an appreciation
of the social issues. Do you think democratic accountability means
that the minister is presented with a list of three rather than
one? The one might be the Chancery judge whereas the three might
have a range of backgrounds.
Lady Justice Hale: I am not sure
that I see the necessary connection between those two points.
If the appointments are being made by an appointing commission
that commission might be expected to ask what sort of range of
skills and experience is needed in the Supreme Court and take
that into account when deciding to make a recommendation. I think
it is a separate issue. You will have picked up that I have considerable
reservations about my future colleagues' proposals for who should
be recommending appointments to the Supreme Court because it does
seem to me that it should not be the existing members of the Court
with two token lay people who do that. It should be a much more
broadly based appointing commission which would ask itself just
that.
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