Examination of Witnesses (Questions 240
- 259)
THURSDAY 27 NOVEMBER 2003
LORD LESTER
OF HERNE
HILL QC, SIR
THOMAS LEGG
KCB QC AND PROFESSOR
I R SCOTT
Q240 Ross Cranston: I hope none of that
was directed at me.
Lord Lester of Herne Hill: Not
at all.
Q241 Ross Cranston: I am simply trying
to spell out some of the consequences of some of the changes.
Lord Lester of Herne Hill: Of
course, it was not at all directed at you. I thought it important,
though, that you know what you are getting before you ask me a
question and I just tried to explain that. I think the answer
to Mr Cranston's question is that I do not see the slightest reason
why having a properly resourced, strong, independent Supreme Court
of the United Kingdom in a proper building, with proper systems,
with proper facilities for the public, but with all its existing
constitutional roles, should expose it to more virulent press
attacks or attacks from populist ministers. It does not seem to
me that it makes the slightest difference. The judiciary are always
going to have to resist those kinds of attacks. They will have
a Chief Justice or a President of the Supreme Court of the United
Kingdom, who will have enormous authority and it is that person
to whom I would look rather than any minister to defend the judiciary
from that kind of attack—although of course ministers must
also have that important role.
Q242 Mr Soley: Could I turn to this question
of the functions of the Supreme Court, because I think, Sir Tom,
you made it clear that they should stay as they are. One of my
interests in this Inquiry is increasingly the direction of change.
Because so much is changing in our constitution and in other respects,
it is hard to see the ultimate picture and I agree that change
has to happen, and quite dramatic change. But what I cannot quite
work out in my head, with the growth of European law and also
with the Human Rights legislation, is how much this new Supreme
Court would be called on to make increasingly political decisions.
If I could perhaps give an example which has been in my mind for
a couple of weeks now. If, for example, someone challenged in
a lower court the failure of the Government to hold a referendum
on the proposed EU constitution and if that was thrown out, could
that then be decided by the Supreme Court?
Lord Lester of Herne Hill: Could
I have the first stab at answering the question? I think there
is a mistaken view that because judges decide difficult questions
involving legal public policy and have to make constitutional
choices in human rights or European areas, often with social and
political consequences, that those are political decisions. I
do not think they are political decisions. They are constitutional
judges performing a judicial role. In the lecture the other night,
which Mr Cranston was kind enough to refer to, I was trying to
explain how, for example, with the Human Rights Act, even though
Parliament had paid the judiciary an enormous compliment in making
them the first guardians of the rights and freedoms, the judges
have been extremely careful not to usurp the legislative or executive
roles, in my judgment, and they are well aware of the need to
avoid judges being politicians. I cannot think of any case—I
really cannot—in the last three years since the Human Rights
Act came into force, in which one could say that the judges forgot
that they were judges, unelected, and had become politicians.
I know that the tabloids and some grumpy ministers often attack
them in that way but I do not think it is justified.
Q243 Mr Soley: I understand, if you like,
your desire to focus on the issue of you not being political—I
understand and accept that—but I am still unsure as to where
this process takes us, because it does seem to me that someone
could challenge the failure of the Government to hold a referendum
and then you would have to decide it in the Supreme Court. Is
that just wrong?
Lord Lester of Herne Hill: I had
not realised that you were focusing on that particular example.
Q244 Mr Soley: I use it as an example.
Lord Lester of Herne Hill: To
take that example, it would be hard to imagine how anyone could
formulate that as a proper legal issue, the failure to hold a
referendum, because it would be hard to imagine exactly where
any legal principle was that would require that to happen. But,
for example, when a challenge was made to the failure by the Foreign
and Commonwealth Office to protest vigorously enough about the
British detainees in Camp X-Ray, Guantanamo Bay, the court decided
that that was a political question and not a legal a question.
So they do recognise quite properly and rather conservatively
that there are issues which are not fit for judges to decide at
all. I would have thought the issue as to whether there should
be a referendum is a classic example not of a legal question but
of a political question.
Q245 Mr Soley: Do you agree with that?
Sir Thomas Legg: I do. I think
the thing one needs to hang onto in this, as the former witnesses
were saying—and I think I saw that you had a similar conversation
with Lady Hale the other day—is that the courts, including
the Supreme Court, can only exercise any jurisdiction which Parliament
gives them. There is no suggestion of which I am aware that we
should depart from that fundamental principle. Parliament has
of course in recent years, as other witnesses have mentioned,
made portentous grants of further jurisdiction to the courts which
have brought in a range of issues, which, as certainly Lord Lester
has said, involve issues which hitherto we would have regarded
as fairly political for the courts to deal with but they remain
a jurisdiction of law which Parliament has granted. I personally,
like your other witnesses, am not aware of any ground on which
the sort of challenge you are making could be made and it would
only be if Parliament decides that they should have that jurisdiction
that they would be able to exercise it.
Dr Whitehead: Perhaps we might turn to
the question of the administrations of the court.
Q246 Ross Cranston: I want to ask Professor
Scott about his argument for a separate corporate entity, as it
were, to run the Supreme Court. We had this debate many years
ago. If you could talk us through it and, in particular, tell
us whether it is an argument based on constitutional principle
in a very broad sense or just a pragmatic argument that this is
going to get more resources into the courts?
Professor Scott: As you say, you
and I had these discussions interminably many, many years ago.
The point is that if you look at the proposal in the consultation
paper about the administration of the new court, it does not seem
to me to be satisfactory because if you are going to be serious
about having a Supreme Court which is independent, it pays to
do everything you can, consistent with good government to make
it safe. My argument simply is that one way of making it so would
be to make it responsible for its own administration. As I say
in my paper—and I suspect you may have read it, because
you are a reader—this is not accomplished entirely in one
bound by arguments based on constitutional principle. You can
argue forever on the basis of the concepts of separation of powers,
rule of law and judicial independence and still not come to any
conclusion as to how the court should be funded or administered.
It is really a matter of good government, and good government
is a matter of sustaining, sometimes just by image as much as
by rules, the independence of the court. I think that is where
the argument has moved on from the years when you and I first
encountered it. In those days it was assumed that there was a
solution to this problem which could somehow necessarily come
out of clear analysis of such concepts of rule of law, judicial
independence and separation of powers. We have now moved on to
say, "That does not get you there; what does get you there
is thinking through those concepts and saying at the end of the
day, `What will work best?'" I am now quite convinced that
what will work best would be allowing the Supreme Court to administer
its own affairs along the lines that the Supreme Court in Canada
is permitted, the Supreme Court of the United States, and the
High Court of Australia—and, perhaps better, the Australian
federal model, the Federal Court and the Family Court in Australia,
which is the one that I know best, for reasons which I think you
all know.
Q247 Ross Cranston: Could I ask the follow-up
question: If the Supreme Court, why not the other courts?
Professor Scott: I would say,
"Why not all courts?"—but then I have had a long
history of disagreeing with people like Sir Tom Legg on this matter.
My feeling is that if there is one court in the land which needs
this kind of independence or needs us to go with this independence,
it would be the highest court in the system. The trouble with
this country is that we have a monolithic attitude towards models
of court administration based on the Beeching model developed
in the 1960s. There are two things to say about that. First of
all, it was a model designed to administer trial courts dealing
with high volume cases, not the small, ultimate Court of Appeal.
Secondly, it was designed pretty much by the best-known businessman
of the day, Lord Beeching. Today, if you focused the equivalent
of Lord Beeching on court administration, he would not come up
with the solutions which Lord Beeching came up with in the 1960s.
Organisation and management thinking has moved on too.
Lord Lester of Herne Hill: I have
not read Professor Scott's paper, but I would just like to say
that not only do I agree with what he is saying but I thought
Lord Browne-Wilkinson put it very well years ago in his famous
and very controversial lecture on the independence of the judiciary,
when he made points about the problems of encroachment by Sir
Thomas Legg's officials into the administration of justice. Having
been attached to the third circuit court of appeals in the United
States and gone to their annual judicial conference and seen how
they managed themselves, I am bound to say that not only the Supreme
Court but the other federal courts manage very well indeed budgets
that have been allocated to them with their own staff. As a serving
judge, sitting both as a deputy High Court judge and as a recorder
for 10 years, I found, for reasons we do not have time to go into,
that it would have been much more satisfactory if court resources
and staff had been under the supervision of a judicial chief executive
who could have allocated them properly . . . perhaps "properly"
is the wrong way of putting it. Differently.
Q248 Ross Cranston: I think Sir Thomas
Legg should have a right of reply at some point.
Lord Lester of Herne Hill: Yes.
Q249 Mr Clappison: On Lord Beeching,
I have to say that as a railway user I do not regard him with
the same amount of affection which you apparently do, even though
he was appointed by a previous Conservative government. I do not
think his reforms were that longsighted either. Could I ask you,
in the light of what we have heard about the expense of setting
up this Supreme Court, given that there does not seem to be a
great public clamour for it, nor, indeed, a clamour amongst the
Law Lords themselves—most of them seem to be opposed to
it, as we have been told—how do you justify the expense
of setting up this Supreme Court to achieve the improvement in
the image and independence which you have talked about?
Professor Scott: I cannot answer
the question. My starting point is that if you want to have an
independent supreme court this is the way to administer it. I
have no concluded view at all on whether you should have an independent
supreme court or not. I presume that at the moment there is not
the wherewithal for providing the resource and the House of Lords
in its judicial capacity is costing money, and presumably having
an independent supreme court is going to cost more. You are asking
me an impossible question. Either you want to have an independent
supreme court or you do not. If you are going to have an independent
supreme court it is going to cost money. All change costs.
Lord Lester of Herne Hill: Could
I advise Mr Clappison? First of all, I do not think there is much
value in counting Law Lords' heads to see how many are in favour
and how many are against at the moment. I can tell you on the
basis of conversations with the two who are counted as being in
the so-called majority that one of them told me he was not in
the majority at all and the other told me that if the policy is
that there should be a supreme court then there are very sensible
reasons for it. Also, of course, the composition of the Law Lords
is changing right now and if you counted heads in January you
would probably come to a different outcome. The real point is
that there are very pressing practical reasons for having an independent
supreme court. Many of them are to do with resources. If you go
in the judges' corridor or you go and watch what happens in the
Appellate Committee, or you go and argue, as I do, in front of
them, you will see that the whole system is ludicrous. The public
do not have facilities, the back-up for the Law Lords is very
weak, the judicial assistants do not have proper rooms and so
on. The other thing is that if you open the windows and look at
the rest of the world they would be quite astonished by the idea
that you have a supreme court trapped in a bit of the legislative
building without adequate facilities and mixed up with the legislative
process. My colleague, Professor Jeffrey Jowell, who sits on the
Venice Commission for Democracy, tells me of the astonishment
in the new democracies of Europe when he tries to justify the
present system. One of the arguments that has been put forward
by some Law Lords for their continuing in the present circumstances
is so that one of them can chair Sub-Committee E of the Select
Committee of the European Union on which I have served for the
last eight years under four successive Law Lords. They have done
a marvellous job, but so could Lord Alexander or Lord Grabiner
or Lord Brennan or Lord Goodhart or a lot of other distinguished
and senior lawyers. The argument that they need to be there in
order to service a sub-committee of the European Union Committee
again seems to me to be entirely unconvincing. Let judges be judges
and nothing else. Politicians should be politicians and not judges
and judges should not sit in the legislature.
Q250 Mr Clappison: But they are not doing
any harm, are they?
Lord Lester of Herne Hill: They
are doing harm; of course they are doing harm. First of all, they
are harming themselves. There have been cases that probably one
does not want to go into where particular Law Lords have behaved
unfortunately in a rather incautious way in their participation
in the legislative process. The public reputation of the country
outside for separation of powers is damaged and their ability
to function efficiently as a supreme court is impaired by the
lack of proper resources such as one finds in the High Court of
Australia, the Court of Appeal in New Zealand, a little country
with much better resources for their Court of Appeal in my judgment,
or in Canada or in the United States or in the Netherlands or
in any other workable democracy. Our supreme court facilities
are very poor indeed and they are not compensated for by being
members of the wonderful club called the House of Lords.
Dr Whitehead: Sir Thomas, it has been
suggested that you might like to exercise a right of reply before
we move on. Do you want to add anything on that?
Sir Tom Legg: Very briefly on
that, Chairman, because there are so many other issues in play.
There is a long-standing issue about how far the judges should
be allowed to be in charge of the resources which are voted for
the courts. Obviously, it is one which I have had to argue and
think about over many years. My concern, like those of the other
participants in this discussion, is for the independence of the
judiciary. You have to balance at least two things here. One is,
yes, the judges should certainly have a large say in how the courts
are administered and how the resources are used. For my part,
now that we are going to have a supreme court of the United Kingdom,
hopefully quite separate from the legislature, the nearer we can
go towards giving them something like a one-line budget the better.
I am not against that at all. The balancing factor, which I think
one always has to bear in mind, or at least which I see as something
which has to be borne in mind, is that resources come from the
House of Commons. It is they—you—who vote them to
the judicial branch of government just as you do to every other
branch of government. Historically, for good reasons, I think,
the House of Commons has never been willing to vote significant
resources to the stewardship of people that it cannot in the last
resort dismiss. Judges cannot be dismissible by the legislature
except for good grounds, which one hopes will have nothing to
do with disagreements about the way resources are used. Therefore,
for the protection of the judges and not for any other reason
I have always thought that we ought to be very cautious about
entrusting significant resources to the judges alone. I think
they should be in the hands of a minister accountable to Parliament.
That is what I see as the issue here.
Professor Scott: I will just add
a little bit on that because Sir Thomas has touched on a point
raised in my paper. Various jurisdictions around the world which
have allowed their ultimate courts of appeal to have a more judiciary
based administration system than an executive based administration
system have all dealt with the issue that Sir Thomas has just
raised. They deal with it in a myriad of different ways. I have
brought with me, but I am sure you would not want me to explain
to you, the budget cycle mechanism for the Family Court of Australia,
all of its reporting and the budgets prepared by the court with
the assistance of the Department of Finance. There is no mediating
minister. It goes straight to the Treasury. There are public hearings.
The Chief Justice himself reports. They are responsible for the
money. All kinds of little mechanisms are put in place to try
and get the legislature to live with the anxiety that Sir Thomas
has highlighted. It works and it means that the staff do not have
the divided loyalties that they have under our system. They work
through the court by being at budget hearings where the Chief
Justice and his Chief Budget Officer, who works with the Chief,
sit shoulder to shoulder discussing things with chairmen of select
committees and senate committees responsible for appropriations.
It is all very public. If the court does not get the money that
it wants the legislature gives a reasoned response and the public
will know whether or not the legislature and the executive are
discharging their duty to support the independent court. That
is the way that in all these little ways the accountability concerns
can be assuaged. It is quite sophisticated, it works, it gives
the courts the independence they need and the independence that
the legislature wants the courts to have because the legislature
is forever enacting legislation for the courts to implement. An
independent court enhances the legitimacy both of Parliament and
of the executive.[1]
Lord Lester of Herne Hill: I find
it very hard as a parliamentarian under our opaque system to discover
exactly what is happening in terms of funding of the court service.
The so-called Modernisation of Courts Programme has had its budget
slashed recently and I have put down question after question asking
what are the negative effects of the cuts in the crucial expenditure
needed to modernise the lower courts and I have not been able
to receive any satisfactory answer at all. All that I get is the
positive side of the modernisation programme. It does not seem
to me desirable that one should have such an opaque system and
I for my part would prefer something like the system that Professor
Scott has been referring to. The other thing I would say, as someone
who has sat as a judge, is that it is very difficult when you
are sitting as a criminal judge or a recorder and you no longer
have anyone, as you used to have, say, 15 or 20 years ago, in
each criminal court to tell judges like me that we are about to
make crass mistakes. When you find that the court staff are withdrawn
for cost-cutting reasons the judges have no real say or control
to try to redress that and that is one of the reasons why Lord
Browne-Wilkinson in that marvellous lecture published in Public
Law sounded a warning note that we could not go on with the
tension that was developing, I suppose, 15-20 years ago and has
got much worse since.
Professor Scott: Lord Browne-Wilkinson
will not mind me saying that vast tracts of that lecture were
written by me.
Lord Lester of Herne Hill: I did
not know that.
Q251 Mrs Cryer: I wonder if you would
all give us your views on methods of appointment to the judiciary,
especially to the supreme court? Can I also ask Sir Thomas Legg
why should the Secretary of State be free to reject a list of
more than one candidate? Is the existence of more than one candidate
for a post not sufficient safeguard of quality?
Sir Tom Legg: To answer that I
have to go back a stage or two to explain that, at least in my
own view, the appointment of judges, and particularly of senior
judges, is a political act in the broadest sense of the term,
and I think myself that at least one other branch of the three
branches of government should be involved. I do not think it is
an accident that nearly every other English-speaking country locates
the power of judicial appointment primarily in the executive.
I believe that the judges should play an important part in the
appointment of judges but it should not be a predominant part
because if it were that would mean that the judges became a self-selecting
corporation and none of the branches of government should be that.
I personally believe that the power of appointment should be primarily
located in an accountable minister. Of course, how that minister
is advised is a different question. I personally accept that the
time has come almost certainly to create a Judicial Appointments
Commission. Indeed, if the office of Lord Chancellor is to be
abolished, I am sure there should be a Judicial Appointments Commission.
It is very important what the rules of engagement are between
the commission and the minister, but I believe that judges should
be recommended to the Queen for appointment by an accountable
minister who exercises a real choice and therefore has real accountability.
I do not myself see how putting a single candidate to the minister
gives him or her a sufficient choice. I know you have a choice,
yes or no, will you accept that one candidate, and it is a matter
of judgment but in mine I think that the minister ought to have
a choice between at least two candidates. That is how I would
arrive at that point.
Q252 Mrs Cryer: Can I ask you all two
questions? In what circumstances should a minister be able to
exercise a power of veto and would he always be expected to give
reasons for rejecting a candidate? Also, if a minister were able
to veto either a list or a candidate, would he not be open to
charges of political motivation?
Lord Lester of Herne Hill: I wonder
if I could add to what Sir Thomas said. What we are trying to
do when we ask and answer these questions is to find ways of strengthening
the independence of the judges, making sure that the quality of
the judiciary is, if anything, improved but certainly not diminished,
making the appointment legitimate in a broad political sense so
that the public have confidence in it, and keeping political interference
in a bad sense to the minimum. It seems to me that in doing that
it is very important that the appointing commissions should be
broad based because one way of making wise decisions is to have
not only judges but other wise people, like the first Civil Service
Commissioner, Baroness Prashar, to take my classic example, with
them. Experience of mixed commissions in other countries, like
the Netherlands, or in Scotland, is that judges get on perfectly
well with senior lay people and they work well together and they
produce, I think, wise decisions. By having a strong lay element
you avoid the problem of Parliament or the House of Commons having
oppressive approval hearings of the United States Senate kind.
One of the reasons why that is very important is that you want
good people to apply to be judges and if they are going to be
threatened with coercive questioning by parliamentarians, for
example, they are not going to be very keen to apply. I very much
support the idea of the judges not having a monopoly of appointment
and certainly I do not like the idea of the Bar and the Law Society
having nominees rather than Nolan appointees. I think everyone
on these commissions should be selected on their individual merits
and not otherwise. I also think that when one comes to the question
that Sir Thomas was dealing with, how much discretion for the
minister, providing you have got a broad-based commission the
discretion should be kept to the bare minimum, but I do not agree
with the extreme views of some who say that the minister should
not come into it at all but that the commission should simply
nominate and it goes straight to the sovereign and that is that.
That does not seem to me to give legitimacy in a political sense.
You need at least a symbolic role for the Prime Minister or whoever
else. In terms of the choice I think it should be very narrow.
The commission should recommend one candidate. If the minister
does not like that candidate then he or she should give their
private reasons for rejection and ask the commission to think
again with another name. That should be the maximum discretion.
The moment you put forward three names or two names you then get
the danger of political interference which one wants to avoid.
Q253 Mrs Cryer: I wonder if all of you
(if you want to) could comment on the role of Parliament. Do you
see any role for Parliament in the process of appointing judges
to the supreme court and would any political involvement in the
selection of judges be in conflict with the need for judicial
independence?
Lord Lester of Herne Hill: I think
this Committee should be able to interrogate each of the Judicial
Appointments Commissions subject to the devolution issues. I think
that there should be an annual reporting mechanism to Parliament
so that you as parliamentarians have oversight of the system as
a whole and I think that there should be a minister who is himself
responsible for not only promoting independence, as they all should
be, but also justifying the system that has been set up and the
way that it is operated, and I think that the chairs of those
commissions should come to this committee to account in general
terms for the way they carry out their work, including the criteria
under which they operate and exactly how they go about their work.
I do not think any individual appointment should be the subject
of parliamentary scrutiny.
Sir Tom Legg: This is a point
on which perhaps I am a bit more radical than Lord Lester. I agree
with what he says about the accountability of the commission's
department. I think that is right. Over the years, as Parliament
has successively extended the jurisdiction of the courts into
these very sensitive and important areas which you have been talking
about before, I have come to believe that, at least at the highest
level (and I am talking here about the new supreme court) Parliament
should play a role in the confirmation of individual appointments.
I am trying to choose my words carefully about that. I recognise
of course that comparisons, for example, with the United States,
must be handled very carefully. We are dealing with a very different
constitutional and judicial culture. I have been very interested
over the years to talk to US Supreme Court judges of very different
backgrounds, but they have all had a similar view of this, at
least the ones I have talked to, and that is that they did not
like the confirmation process and did not particularly enjoy appearing
before the Senate Judiciary Committee but, having done so and
having been confirmed, they feel enormously strengthened in their
office as justices of the US Supreme Court because they have been
not just appointed by the President, the head of the executive,
but also confirmed by the legislature. I think there is a real
need here to reinforce the legitimacy of the judiciary. On balance,
although of course there are drawbacks and disadvantages and risks,
I think the risks are somewhat overstated. I think people have
tended to concentrate, if you look at the US, on a couple of very
notorious hearings over the last 25 years where things did not
go well, and they tend to ignore the hundreds of hearings where
things have gone right. I accept that there are problems in this
but on balance, towards the really fundamental aim of building
up the political and constitutional legitimacy of our highest
courts, I would like to see Parliament involved, as I say, in
confirming individual appointments.
Lord Lester of Herne Hill: I would
argue for the contrary, that the reason why the Supreme Court
of the United States is now so illegitimate in the eyes of so
many citizens of the United States is precisely because of the
highly politicised nature of appointments and the oppressive senatorial
scrutiny which I think in many cases over the last ten or 15 years
has worked extremely divisively and deterred good people from
either applying for or being approved as senior judges. I think
that to invite parliamentarians to quiz candidates essentially
about their record and their political views—may I give
one good example of the problem, and I am sure I am not going
to cause embarrassment by mentioning this? Sir Nicholas Bratza
is the British Judge on the European Court of Human Rights. There
is no finer judge there. He was my opponent for many years. He
represented the Conservative Government. I used to represent the
individual. He was nominated under a transparent system here to
be that British judge. Lord Irvine of Lairg behaved impeccably.
When it got to the Parliamentary Assembly the British politicians,
I am sorry to say, said that Bratza represented Thatcher; therefore
they were not going to support him as the British judge, and he
was only saved from not being elected by the members of the Parliamentary
Assembly from other countries. That is a classic example, a very
extreme one, of what can happen when you get political considerations
coming into a judicial appointment. I very much hope that we do
not go down that road at all.
Sir Tom Legg: If you will allow
me a postscript on that, of course, this is a matter of judgment
and different people can take different views. I was inevitably
heavily involved in the appointment of Sir Nicholas Bratza. I
was on the panel which recommended him to the ministers concerned
for appointment, and I remember well the incidents to which Lord
Lester referred and they were indeed lamentable. The parliamentarians
behaved in my opinion very badly. On the other hand, if Sir Nicholas
Bratza had had the opportunity to appear before them and explain
the background I suspect that it might have all gone away very
quickly.
Lord Lester of Herne Hill: He
did have the opportunity. He came before a committee which gave
him a 15-minute interview and that was it.
Dr Whitehead: I think we have a clear
delineation of views here.
Q254 Mr Clappison: As somebody who shares
the concerns of Lord Lester can I put to Sir Tom two concerns
that I have about what he has proposed by way of confirmation
hearings? First, is it unrealistic to expect parliamentarians
to do other than have their own political axes to grind when it
comes to those confirmation hearings and, secondly, is it not
going to be damaging to the apparent independence and legitimacy
of the candidate concerned if political issues become unravelled
in the course of those hearings?
Sir Tom Legg: To take the two
issues in reverse order, what I think we are talking about here
is a balance of risk and advantage. Yes, there is some risk of
those things happening, of Members of Parliament grinding political
axes, and of the process being seen to become somewhat politicised.
On the other hand, you are now dealing with a court at the highest
level, whether it remains the House of Lords or whether it becomes
a supreme court, which is dealing with jurisdictions which are
of enormous political importance. We have travelled down the road
over the last generation away from a world in which what courts
did, though important to individual citizens, was typically of
very little importance to the public interest in a wider sense.
We have travelled at least some of the way down the road towards
the American situation. We have not reached that point and we
probably never will, but what the supreme court does is often
now of very great public and political importance. It is a matter
of judgment but my own judgment is that we have reached the point
where the views and attitudes—and, I must add, the balance
of composition—of our highest court have become a matter
of wider public and political concern. Mostly, in the appointment
of judges, you are really appointing professionals to do a professional
job, and the analogy was made earlier with senior surgeons and
that sort of thing, but at the highest levels it is not really
quite like that any more and I think this needs to be recognised.
Q255 Mrs Cryer: I just wanted to mention,
further to your comments on the unsatisfactory nature of the voting
for judges to go on to the European Court of Human Rights, that
I was a member of the Council of Europe for six years and I participated
in one of these votes. I do agree, it is a bit chaotic, because
now there are, I think, 52 countries and I believe each of the
52 has three judges and the Members of Parliament who are voting
know very little about the calibre of those judges.
Lord Lester of Herne Hill: There
is a very good report by INTERIGHTS looking at this issue and
there is a meeting in Brussels on 10 December about the other
European courts where the judges on those two courts are desperately
worried about what is now happening in terms of political interference.
I simply mention that as a cautionary point. Poor old Lady Hale
has been on the receiving end of so much vituperative and unfair
prejudiced tabloid attention and personal attack. If she came
before a committee like yours, even if you were all, as you would
be, wise and impeccable and non-political in questioning her,
can you imagine what the tabloids would do in advance in order
to try to persuade you not to recommend that her name go forward?
It is a horrific prospect. There are already a lot of very able
barristers, for example, who have not accepted appointments to
the High Court Bench, for all kinds of reasons, nothing to do
with pay, I hasten to add, or not mainly to do with pay, and I
am very worried that there will be a real problem of getting able
practitioners, barristers, solicitors or whoever, applying for
these jobs if they think they are going to be oppressed in the
process. You have to have a private, rational, fair system which
encourages them to apply and to give up their freedom as practitioners
for the considerable restraints of having to be a judge for the
rest of their lives.
Dr Whitehead: Can we now move on to the
question of diversity and consultation?
Q256 Keith Vaz: Lord Lester, one of the
reasons the Lord Chancellor suggested that the system should change
was that he wanted a more diverse judiciary. Is this going to
happen under the new system?
Lord Lester of Herne Hill: I think
so. I have read the evidence given by my colleagues from the Bar
Council, Matthias Kelly and Elizabeth Gloster QC. I am bound to
say that I found their evidence, with great affection and respect,
complacent.
Q257 Keith Vaz: You are not the only
one.
Lord Lester of Herne Hill: I think
there are still serious problems for women and ethnic minorities
in particular in having access to really good chambers and law
firms.
Q258 Keith Vaz: Tell us about your chambers.
You head the chambers, do you not?
Lord Lester of Herne Hill: I do
not head them. We have Presiley Baxendale and Charles Flint who
co-head the chambers.
Q259 Keith Vaz: How many black and Asian
people do you have in your chambers?
Lord Lester of Herne Hill: We
have one Muslim, Shaheed Fatima, and we have one Sikh, Pushpinder
Saini, out of 65.
1 Note by witness: The thrust of my answer
was that it is possible to devise a budget cycle system where
the court budget is drawn up by the court and submitted to the
Treasury without any mediating ministry being able to fiddle with
it, and that the exchanges between the court and the executive
about the budget (which may involve the Chief Justice playing
a leading role at particular parts of the process) are made public
so that everyone knows (1) what the court is asking for, (2) why
it is asking for what, (3) what the government says the court
can have and (4) why the government says that the court cannot
have all that it is asking for. Back
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