Examination of Witnesses (Questions 280
- 299)
TUESDAY 2 DECEMBER 2003
RT HON
LORD HOPE
OF CRAIGHEAD
Q280 Mr Soley: Would it be fair to describe
your concern about the change as being on practical grounds rather
than in principle?
Lord Hope of Craighead: I think
that is a fair way of describing it, yes, and I am not convinced
that, at the end of the day, it will be a better court than at
the moment.
Q281 Mr Soley: Obviously, you are aware
of the changes that have taken place not only in our own constitution
but in relation to Europe, so how do you feel about the situation
now, where it is very hard to justify the British position and
the European Convention?
Lord Hope of Craighead: I think
it is easy to misunderstand the position that the Law Lords occupy
in the House of Lords. Certainly it is true that appeals go to
the House as a whole and we are there as a Committee of the House.
In practice, if anybody really explores the way in which we work,
we keep ourselves very separate from the legislative process.
Personally, I enjoy sitting and listening to debates, and quite
often I do that, but I do not speak in debates and certainly I
do not vote. Most of my colleagues are never there at all. I think
the separation from the legislature, if that is important, is
almost complete, in practice. The separation from the Executive
is very clear, because we live in Parliament and we are protected,
as it were, against the Executive. I think there is a problem
if we move out outside because then we would be much more dependent
on the Executive for funding and it is perhaps less easy to see
how we could protect ourselves against Executive action.
Q282 Mr Soley: Presumably you accept
then that there must be a clear distinction between the law and
the legislature? You are describing a situation which, if you
like, is creating a distinction yourself within the same institution,
but the feasibility of that and the reality of it actually is
clouded, is it not?
Lord Hope of Craighead: It could
be clarified, certainly it could be clarified. But it could be
done by a Standing Order of the House of Lords, which declares
simply that Lords of Appeal in Ordinary who are serving do not
speak or vote in matters relating to legislation. I am reasonably
confident that, if anybody were to challenge us as a body on the
ground that there was a lack of independence, something like that,
which was written down, which is advancing a little bit on Lord
Bingham's practice statement, would be enough to satisfy the European
Court of Human Rights that we were independent.
Q283 Mr Soley: Obviously, you are aware
of continuing proposals to reform the Lords, and that process
of reform seems likely to continue. Is it not going to be increasingly
anomalous to have those Law Lords in there, in any shape or form,
in reality?
Lord Hope of Craighead: If the
House were to become a wholly elected House, plainly it would
be anomalous and simply one would have to make some kind of a
change. My view is based on the situation as it is at the moment,
which, leaving aside the hereditary Peers, is one where the House
is appointed. We take our places as appointed Members of the House
for the particular job we are asked to do, so it fits in at the
moment.
Q284 Mr Soley: The final analysis for
you though would be, if you were given your ideal, that you would
want the Law Lords sitting totally separately in the House but
able to sit in on the other debates as now?
Lord Hope of Craighead: I would
prefer to remain in the institution with access to the information
and the library, the ability to take part in committee work, which
I did in the European Committee—which is not to do with
legislation, and in a way adding value to the judicial process.
One has to ask oneself is there a point in having simply an extra
tier of an appeal court, of judges, sitting as judges? If the
court of final appeal is to mean anything, surely it has to add
some value to the judicial process. I think it does that by being
able to bring a different perspective to view on the various issues
that come before it.
Q285 Keith Vaz: Lord Hope, you chaired
the European Committee. Do you think that it is possible for someone
to be involved in controversial issues of that kind, Europe being
now a controversial issue, and sit as a judge?
Lord Hope of Craighead: I think
one has to try to identify where the controversy will arise. In
my case, I did not feel that there was any risk of that kind of
controversy emerging. As you will be aware, the Committee basically
is a scrutiny committee and what it is looking at is proposals
which come from the Commission. We are a long way away from legislation
when we are conducting that kind of exercise, so that I never
felt, I must say, in my three years, that there was any risk of
that kind of confusion. I think, of course, one would be concerned
if there was that kind of risk. But we have had a Law Lord as
Chairman of that Sub-Committee for many years now, and I do not
think it has ever arisen as a problem.
Q286 Keith Vaz: No, but you do draw the
distinction between the committee work and, for example, making
a speech on the floor of the House of Lords about, for example,
the European Constitution and the effects that might have?
Lord Hope of Craighead: I think
then one is into more difficulty there, and one would have to
be extremely careful about what one said about the details of
the Constitution, which might give rise to rights issues in cases
that come before us.
Q287 Keith Vaz: Indeed. Do you think
some of your colleagues may have strayed a little too far in discussions
on legislation?
Lord Hope of Craighead: I am not
in a position to pass comment on them. I have not kept that kind
of eye on what they are doing. Personally, I was very careful
to remain neutral on these issues. I regarded my position as Chairman
to try to draw together ideas and, of course, from time to time,
to speak in debates presenting my Committee's report. I was doing
so as Chairman of the Committee, laying out the report for other
Members of the House to comment on if they wished. Under our procedure,
I was not there to defend the report, I was there simply to present
it.
Q288 Keith Vaz: Your paper that you sent
to us talks about very much the practical implications of the
consultation. Do you think that there should have been better
consultation at the start of this process? For example, were you
informed of what was being proposed by the Government, did you
read about it in The Times, were you surprised? Do you
think that initial process perhaps should have been better prepared?
Lord Hope of Craighead: I saw
it on the news at Heathrow on my way home to Edinburgh one evening.
Certainly I was not consulted, none of us was. There was a Scottish
dimension too, which was overlooked initially, I believe, although
it has been attended to now. My regret is that some very interesting
issues were not being and probably now will not be debated.
Q289 Keith Vaz: Do you think perhaps
that we are legislating too soon? Having made the announcement,
there should be a longer period of consultation to look at the
issues, the very issues you have just raised?
Lord Hope of Craighead: I think
there is quite a lot to be said for that. I accept that the basic
policy is there and I have made it clear in interviews before
now that I do not resist the policy, that is a matter for Government.
I think there are some extremely important issues, particularly
about the Scottish participation in the new arrangements, which
in an ideal world would be debated at Holyrood. Indeed, all Scots
law really is devolved to the Scottish Parliament, and for the
Scottish Parliament not to be able to debate the issues fully
and given proper time to do it I think would be unfortunate.
Q290 Ross Cranston: Mr Vaz raised the
issue about controversial statements, but your colleagues can
stray into that area through public lectures, for example, it
goes without saying. I wanted to ask you specifically about this
point, which I had not appreciated, that the move to, say, Somerset
House would be seen from Scotland as a move towards the English
profession. I could see that the move to Somerset House might
be isolating the Law Lords, but I had not appreciated that point.
Is that view shared widely?
Lord Hope of Craighead: It is
a very Scottish point of view, I am bound to say. The point is
that there is a huge attraction, to be frank, for the English
Members of the House, who are often very senior members of the
Inns, who have grown up and lived there, to move closer to the
Inns so they can go back there for lunch and participate more
fully in the work of the Inns. I am very fortunate to be an honorary
member of an Inn and I happen actually to live there, that is
where I have my flat. I value the fact that there is this separation
and actually we work better as a team because we spend our time
here. It is too far to go back to the Inns for lunch, so that
at lunchtime when we have our brief adjournments everybody stays
here and it is a time when we can speak to each other and get
to know each other. I think there is a worry that if we are closer
to the Inns there would be much greater temptation just to go
back there, and we would be less of a unit distinct from the courts
in The Strand from which the English members come.
Ross Cranston: I think this is
an important point we will have to consider.
Q291 Peter Bottomley: We were reminded
last week that to have a separate supreme court building in the
United States is a relative innovation. Also, I think we are aware
that probably there is no supreme court more politicised than
the United States one, looking at people's politics before they
are appointed, which is not something that happens in this country.
Can you remind us just why we ought to have a court of correcting
errors and final appeals at all?
Lord Hope of Craighead: It goes
back a very long way into history. The Scottish position, if I
can pick you up by following that, is that under the Claim of
Right, which is a pre-Union statute, there was always a final
right of appeal to the King and Parliament, a final right of appeal
over the judges who sat in the Court of Session. That was preserved
after the Union by coming to Parliament as a final place for appeals
in civil cases. I think there was just a feeling that there were
instances where the judges, for one reason or another, might produce
an answer which was not entirely fair to the individual, who would
be better off by having a different view taken by a body looking
at the case from a different perspective. I think that is the
historical background to it. Under modern circumstances, I think
it is true that the body to which I belong is able to take a slightly
different view from the court below. We have more time to consider
individual cases because the caseload is lighter, although the
cases themselves are heavy. We can explore more fully the comparative
aspects of a case than the court of appeal can have time to do
because of the huge volume of material they have to deal with.
There is room, in a select band of cases of general public importance,
for taking a more detached view, as I said earlier, adding value
to the judicial process, because we have a team which is combining
in one team a variety of backgrounds and expertise to produce
a result.
Q292 Peter Bottomley: We are in a situation
which was not of the Law Lords' choosing or necessarily this Committee's,
where the Government came forward with proposals, and I think
we have established they did not consult the outgoing Lord Chancellor,
they did not consult the incoming Lord Chancellor and apparently
they did not consult anybody. If we take it as one part of the
separation proposed, do you think that the Government will be
more shocked more often by ex cathedra statements by Law
Lords from somewhere else than they are by the possibility of
a Law Lord contributing to a debate in the House of Lords?
Lord Hope of Craighead: I doubt
very much whether we are going to change our practices simply
because we move to some other location. As I am sure that you
appreciate, we are asked to give lectures from time to time, and
inevitably the subject matter may raise controversial issues.
Those who give the lectures are aware that if they speak out on
a particular issue they may disqualify themselves from sitting
in a case which raises that same issue, and that is just something
that one has to live with. The practice today is that we do not
say things on the floor of the House, and if we are moved away
that simply will preserve the present practice. The amount of
lectures that we give and what we say in lectures I do not think
will change either. I cannot imagine myself feeling freer to say
things simply because I worked in Somerset House, or wherever
else it will be, than I am at the moment.
Q293 Peter Bottomley: Lord Steyn and
Lord Bingham might be disqualified from hearing a final appeal
over the Guantanamo Bay people, for example, having seen their
views on the law and imprisonment?
Lord Hope of Craighead: I think
Lord Steyn has made it clear that he is well aware that he has
put himself into baulk on that particular issue. He had to make
a choice and he felt it was better, I am sure, to express his
views and make them known, bearing in mind that he could not actually
sit on the case. I think we are a big enough team to be able to
absorb that kind of unusual situation.
Q294 Peter Bottomley: I think those who
claim the Law Lords are out of touch have not seen people like
you and your colleagues having lunch in the staff canteen, at
Bellamy's or the Terrace canteen?
Lord Hope of Craighead: It is
part of belonging to a larger unit and I find it very useful,
walking around. I have got to know Scots MPs much better by being
in the building and we meet each other. I pass the time of day
with them from time to time, and it is quite useful to me to know
them in that way, which certainly I would not be able to do if
I were elsewhere.
Q295 Chairman: Turning to Scottish issues,
is there a danger that, if the supreme court is seen in any respect
to be an English court, even, for example, if it were administered
by the Court Service of England and Wales, it would fail to comply
with Article 19 of the Act of Union?
Lord Hope of Craighead: The Article
is quite clear that what must not happen is for Scots cases to
go to a court like the court that used to be here at Westminster
Hall, and one can never rule out the possibility of a challenge
from somebody if there is a court which is apparently a court
run through the English court system. I cast my mind back to the
poll tax time, when I was sitting as Lord President, and it was
quite interesting that a number of people did come forward with
Act of Union points, because they felt that for Scotland to have
to bear a tax one year earlier than England was contrary to the
Act of Union. They do not get very far, these points. But there
is an undercurrent of disaffection that might be stirred up by
it.
Q296 Chairman: Is it more than that,
is there actually a danger that a case might go in a different
way, or be open to very serious challenge, because of failure
to comply with the Act of Union in respect of the Englishness
of the court?
Lord Hope of Craighead: I think
my concern is a slightly different one, although it is very much
related to the point you raise. Scots private law is markedly
different from English private law, and indeed it is a devolved
issue under the Scotland Act which it has its own definition as
to what private law contains. The problem is, I think, if you
describe the court as a supreme court of the United Kingdom, it
tends to suggest that there is a body of United Kingdom law. In
a court which inevitably is filled with a majority of English
judges there may be a temptation to say, "Well, we see differences
between Scots law and English law on issues relating to property
or other matters, what's the point of having a difference when
we're sitting as a United Kingdom court?" The Scots may well
feel that would introduce a drift away from their system of law
into an English system, and there are signs in case law, even
now, that there is a temptation along that line. I think Scots
are anxious that anything that will tend to dilute the present
system, which maintains a distinctive Scottish appellate structure,
will give rise to the risk of losing the separate identity of
Scots law.
Q297 Chairman: In that respect, why should
a new supreme court be any different from the House of Lords,
which hears private law matters, civil matters, coming from Scotland,
presumably disposes of them by interpreting Scots law, and the
new court would be expected, would it not, to do the same?
Lord Hope of Craighead: I would
hope it would do the same, and it is partly in order to maintain
the existing position that I am in favour of maintaining the existing
rules about access to the court. Under the English system, cases
come to the House with leave. Under the Scottish system, because
of the way the Claim of Right is worded, leave is not required.
What you need is a certificate from counsel that the case is suitable
for appeal, but you do not need leave. Some of my colleagues are
saying, "Well, why don't we have the same system for both
jurisdictions now?" My own view is that, partly as a matter
of symbolic separation but also to preserve the position under
the Claim of Right, we should stick to what we have at the moment,
so that the system, indeed, as much as possible, is a reproduction
of what we have at present.
Q298 Chairman: Why should any cases have
to go outwith Scotland at all, leaving aside transport? Criminal
cases do not, civil cases can. Is there not an argument which
says either all of them ought to be capable of going to the new
supreme court, or court of final appeal, or neither should?
Lord Hope of Craighead: Yes, that
is very much the debate in Scotland. There is a very big debate
going on in the academic community in which all sorts of permutations
are being raised. There are some who say that at least some criminal
cases should come to London, cases that raise issues of statutory
interpretation. Misuse of drugs, after all, is the same legislation,
road traffic is the same. They say, "Why shouldn't issues
about statutory interpretation in criminal cases come south?"
There are others who say, "Why should all the civil cases
come south when some of them raise purely Scots law issues? There
are others which are statutory." That is one of the points
behind my comment earlier, that, as Mr Vaz was putting to me,
given more time, one would wish to explore these issues, particularly
with the voice of the Scottish Parliament, to see what they thought
was appropriate.
Q299 Chairman: Is there any reason why
the Scottish Parliament and indeed the Scottish professional view
should not be brought to bear, admittedly in a very tight timescale
but brought to bear, effectively, in the course of the Government's
consultation process?
Lord Hope of Craighead: I do not
know what time we have. I would hope that there would be an opportunity
for debate about this as the Bill goes through Parliament. My
understanding was that the Bill would come before the House of
Commons in January, and one knows how difficult it is, if there
is a timetable to meet, to undergo a radical rethinking of the
structure of the Bill once it has been published. I do not know
just how the matter is going. If it is to go before the Scottish
Parliament and not to be dealt with on a Sewell motion then time
would have to be found there for it to work its way through that
structure. I rather doubt whether that can be fitted into the
timetable that is being envisaged.
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