Examination of Witnesses (Questions 220
- 231)
THURSDAY 27 NOVEMBER 2003
RT HON
LORD LLOYD
OF BERWICK
AND PROFESSOR
LORD NORTON
OF LOUTH
Q220 Dr Whitehead: This would involve
the executive in some way?
Lord Lloyd of Berwick: Yes, because
of this convention by which the Queen acts on the advice of her
ministers. That works very well with the Lord Chancellor because
he is one of her ministers. If one is going to have the Lord Chief
Justice chairing it, one has to feed in the Prime Minister as
head of the executive. Currently the highest judges are recommended
by the Prime Minister and I would hope that that would continue.
Q221 Dr Whitehead: Do you think that
model, following the abolition of the role of Lord Chancellor,
is one which would protect the judiciary from undue executive
interference?
Lord Lloyd of Berwick: Not as
well as the Lord Chancellor does. That is the beauty of the office
of Lord Chancellor. Because he is in the Cabinet, he is able to
exercise that unique function of protecting the judiciary from
political interference.
Q222 Dr Whitehead: Lord Norton, do you
think that model is the sort of model that you would advocate
according to your views?
Professor Lord Norton of Louth:
I would make two points. First, in terms of the present arrangements,
I think they resemble Winston Churchill's vision of democracy:
"Not particularly good, but the others are far worse."
Once one gets away, one starts to see the nature of the problem.
I am not sure what the solution is. As Lord Lloyd has said, you
are dealing with a profession, so Mr Chairman, Dr Whitehead, if
one was appointing to a chair, would you appoint academics or
laypeople to decide who should be appointed? You do have that
shift on it, but at the same time there is the point about the
legitimacy of the process, so it is not seen to be simply judges
appointing judges. I think that relates to my earlier point about
the nature of the profession itself. It is getting the balance
right, so that the professional judgment has come from judges
but there is some involvement, some authorisation, if you like,
by those outside the judiciary. The key question is getting that
balance right. As Lord Lloyd was indicating, so far one has achieved
some elements of balance within the existing arrangement. That
may not have been planned but that has been the effect. How, therefore,
do you substitute the present arrangements with that type of balance?
I think getting that balance right is the key issue. It is extraordinarily
difficult. I do not have the solution to it. It is merely a case
of identifying the problem.
Q223 Mr Clappison: Could I ask Lord Lloyd
to take us a little further on what he has said about the two
models for the Judicial Appointments Commission. Looking at the
alternative model to yours, what reservations would you have in
a set-up such as that?
Lord Lloyd of Berwick: At the
highest level, I am talking about High Court judges and above,
who, once appointed, are irremoveable. Because they stand between
the individual and the executive, they do have to be very good
at their jobs. In other words, they have to know about administrative
law. They have to know about the matters to which Lord Norton
has been referring. A layman coming in from outside would probably
have very great difficulty in actually understanding some of the
cases which we have to deal with. They are quite difficult, on
quite technical questions of administrative law. Yes, it would
take a long time for a lay chairman really to understand—just
as it would take a long time for me to learn the arts of medicine
or whatever it might be.
Q224 Ross Cranston: I do not want to
miss this point about the role the Lord Chancellor has in protecting
the judiciary at the present time. I was going to ask Lord Norton
about the converse, because in your paper, which unfortunately
we just got this morning, you argue that the more exposed the
judges are the more they are not going to be able to protect themselves.
From the point of view of political agendas, are you suggesting
that this might lead to greater politicisation?—because
that was the point put to us by Professor R Stevens.
Professor Lord Norton of Louth:
I think perhaps paradoxically that could be a consequence. As
I put in the paper, the present system is based on mutual respect
and understanding, with the different parts understanding the
role of the other and therefore deferring to it. If you separate
them out in the way that is proposed, you start to lose that understanding,
that respect, because there is no contact—which I think
is extremely important. They become detached, divorced from the
process and see themselves having a role which could be rather
highly specialised. My particular fear, which I think is clear
from the paper, is that might invite a degree of conflict between
the courts and the other parts of the political system. That will
become more pronounced the more you appoint people to the highest
court who do not have any experience of the parliamentary process,
who will therefore see they have a particular role and be willing,
if you like, to take on Parliament. Conversely, the executive
and Parliament being detached from the courts, seeing their role,
if you like, to take on the courts. There is a problem at the
moment in terms of relationships between ministers and the judiciary.
My fear is that separating them out further will actually exacerbate
that process and not actually be a solution to it.
Q225 Ross Cranston: Certainly in the
United States, over the last 30 years, that clash has now led
to a complete politicisation of the judiciary.
Professor Lord Norton of Louth:
I think this would all be part of process which we need to be
wary of because, as I mentioned in the paper and has already been
touched upon, the courts are acquiring a greater role. There is
a much greater judicialisation of our constitution because of
membership of the European Union, because of the Human Rights
Act, because of devolution. Therefore, the courts are called upon
to make decisions which affect public policy—as happens
in the United States—then a number of political issues are
resolved by judicial means; therefore, politicians become far
more interested in who actually serves on the courts; therefore,
one has to look very carefully at the appointments process as
well as the location of the court both physically and in terms
of its role in relation to the parts of the political system.
I think what has happened requires much greater sensitivity to
that. My argument, therefore, is that it is very important there
is an appreciation of the role of the courts in trying to maintain
the existing mutual respect and understanding.
Q226 Chairman: I take it that you would
both, from what you say, be unhappy with the idea of parliamentary
confirmation hearings at which candidates for high judicial office
were effectively being measured by MPs as to where they fell on
some spectrum of view about the powers of the executive and rights
of the citizen.
Professor Lord Norton of Louth:
I would in relation to the judiciary. I can see there is a separate
argument about the possibility of other public posts, but in terms
of the judiciary I would see that as separate from the wider argument
of the parliamentary involvement in confirmation of nomination.
Just following Mr Cranston's point, I would cite American experience
in demonstrating some of the problems attached to that. I do not
think Parliament should figure (as, if you like, my response to
Dr Whitehead) in terms of forming part of the balance in the appointments
process.
Q227 Chairman: May I turn to Lord Lloyd's
views on the Supreme Court itself or the Court of Final Appeal—the
Government seems to have prejudged what it should be called without
much reference to existing names of future functions. Would I
be right in assuming that your objection is not really an objection
of principle to the creation of a final court of appeal which
is outside the legislature but more "It ain't broke, so we
don't need to fix it". You argue that the present system
works very well and you argue that the facilities available in
the House of Lords are in fact adequate for the purpose, despite
what some people say. Is the nature of your objection much more
the latter than the former?
Lord Lloyd of Berwick: I think
my view is that we have a Supreme Court in all but name at the
moment. Everybody accepts that the Law Lords are completely independent
of politics. It is sometimes argued, "They may not appear
to be independent of the House of Lords as a legislative body
to people out there, the ordinary people," to which my answer
now is: "If that ever was the case"—which I very
much doubt—"it clearly is not the case now." There
cannot be anybody in the country that has not heard of the Hutton
Inquiry; there cannot be anybody who does not know that Lord Hutton
is a Law Lord; and there cannot be anybody who would imagine that
his report is going to be "politically motivated" (which
are the words used in the Supreme Court paper. If his judgment
is not going to be politically motivated in a case of that nature,
why should his judgments in the House of Lords be thought to be
politically motivated? The argument is really the other way. I
at the moment can see no possible advantage of moving the Law
Lords out from the House of Lords to some great new building somewhere.
They cannot find a building at the moment. There was a suggestion
that they might have to build one especially for us—which
is an absurd, because heaven knows what that would cost. The latest
rumour is that we are actually going to stay in the House of Lords
itself—and I talk about we but of course I am no longer
a Law Lord—because nowhere else can be found. Of course
this brand new body of Supreme Court judges would not be peers,
so they would not be able to vote or speak in the House, but they
would have to be there because there appears to be nowhere else
for them. It is an absurdity.
Q228 Chairman: They might have a dining
room, perhaps!
Lord Lloyd of Berwick: I mean,
the cost of setting up a brand new Supreme Court is out of all
proportion to the non-existent benefit which is purely a theoretical
one.
Q229 Chairman: Do you see any practical
difficulty in the assimilation of the Judicial Committee of the
Privy Council's devolution responsibilities into this new court?
Lord Lloyd of Berwick: There is
another thing. There is this grand idea of setting up a new Supreme
Court for the United Kingdom; the jurisdiction is going to be
exactly the same as the existing jurisdiction of the House of
Lords. So far as the Privy Council is concerned, that will have
to continue to exist until the Privy Council appeals cease to
come from the Caribbean, and there are still a few from New Zealand
in the pipeline, as you know. They are not going to want their
appeals to come to some other body. So I think everybody accepts
the Privy Council will have to continue in the short term. Devolution
appeals? Well, they could always actually have come to the House
of Lords in the first place but it was thought better for some
reason—I think because you could get more Scottish Privy
Counsellors, if necessary, sitting in the Privy Council than sit
in the House of Lords. But I have no worry about devolution issues
coming to the new Supreme Court. Again, I see no actual advantage
over the existing arrangements. It is the same people. It only
depends whether we sit in Downing Street or whether we sit in
Committee Room number 1 in the House of Lords.
Q230 Chairman: Do you have anything to
add, Lord Norton?
Professor Lord Norton of Louth:
Only on the practical point that there would be a cost of shifting
it. I do not think that is the fundamental issue. The main one
is in terms of what the system delivers. If there is a change,
there would be a significant cost. Since the case has not been
made for change, I do not see why that cost should be incurred.
I would say, in parenthesis, that I can take the moral high ground
because if the Law Lords actually expand in the House of Lords
my office is one of the ones under threat. So, on that I cannot
see that there is a case in practical terms. On the Judicial Committee,
I would just make a general observation, which also fits in with
the point I made in my paper about separating out the Law Lords.
To what extent have we actually checked with anybody, those who
are actively affected by the process, that they want these changes
or perceive that there is a need for them? So much of the argument
seems to be going on the basis of: this should be done and assuming
that the people affected want it done.
Q231 Chairman: Who do you mean by "the
people affected"?
Professor Lord Norton of Louth:
In terms of the Judicial Committee, those overseas bodies that
are affected by them. Do we know whether they have an opinion
or not? Would they actually like it to be subsumed within the
role of the House of Lords in its judicial capacity? It is a general
point I make as well in the paper, that one is proceeding on the
basis of perceptions of what others think or what others mis-perceive
to be the role, and we really have no empirical evidence presented
to us for any of the claims that are made.
Chairman: Lord Lloyd, Lord Norton, thank
you very much indeed. We will see what our other witnesses can
bring is by way of evidence later this morning. Thank you very
much.
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