Examination of Witnesses (Questions 322
- 334)
TUESDAY 2 DECEMBER 2003
WINSTON RODDICK
QC AND PROFESSOR
TIMOTHY H JONES
Q322 Chairman: Mr Roddick and Professor
Jones, we are very grateful to you for coming to give evidence
to us and for accepting the surprise we sprang on you by having
made faster progress this morning than originally we had timetabled,
which is very helpful to the Committee. First of all, Mr Roddick,
are you still in post at the National Assembly?
Mr Roddick: No, I am not. I am
back at the Bar.
Chairman: Your experience
will be very helpful to us indeed.
Q323 Ross Cranston: Can I ask you about
devolution issues and where they should be handled, in the Privy
Council or in the new supreme court? In your written evidence,
for example, Professor Jones, you have taken a rather robust view.
You said that really it is because of the Scots and their particular
concerns that one would contemplate leaving devolution issues
with the Privy Council and it would be much better to put them
with the supreme court. Could you talk us through that?
Professor Jones: Yes. I think
that there never was a particularly Welsh argument for making
use of the Privy Council, and there is no particular sensitivity
in Wales about cases going to the House of Lords, that is what
we are familiar with, so there is not really a great deal to say
on that particular point. Clearly, there are greater sensitivities
in Scotland, particularly in relation to criminal cases, which
have never gone to the House of Lords.
Q324 Ross Cranston: Let me put the question
negatively. Is there anyone that you know in Wales that takes
the view that it ought to be with the Privy Council?
Professor Jones: Not that I am
aware of, no.
Mr Roddick: I can say that I have
not heard anyone in Wales express the view that devolution issues
should remain anomalously with the Privy Council when all other
legal issues would go to the supreme court.
Q325 Ross Cranston: Can I move on then
to the composition of the supreme court and whether or not there
should be territorial representation, and in particular from Wales.
Clearly, already there are judges, and I am thinking of Lord Justice
Thomas, for example, on the Court of Appeal, who has a very strong
Welsh background, there are others as well, but should there be
a slot for someone with that sort of close identity with Wales
and, if so, what is the argument?
Professor Jones: I think that
is the crucial issue, in a way, from the Welsh point of view.
That is what we are putting forward. First of all, I think there
is a simple argument of equality, that if the other nations of
the United Kingdom are securing representation as of right on
the supreme court of the United Kingdom then the Welsh dimension
should be respected as well.
Q326 Ross Cranston: There are very few
devolution cases. What additional dimension would a "Welsh
judge" bring to the great body of litigation considered by
the court?
Professor Jones: The law of Wales
is not identical in all respects to the law of England. That difference
has increased considerably as a result of devolution, but there
are pre-devolution statutes which would give a different aspect
too. A second issue relates particularly to the Welsh language,
of course. The fact is that within the courts in Wales the Welsh
language has equal status with English, and I think that does
raise particular issues which I think you may want to explore
as well.
Mr Roddick: May I add my own answer
to that, Professor Cranston. Not to compose the supreme court
in the way suggested by Professor Jones would be to ignore and
disregard the principles of devolution and the reasons why there
has been devolution to Scotland, Northern Ireland and Wales. The
wider constitutional background against which these proposals
to set up a supreme court should be looked at and the question
which you pose, from my respectful view, should be considered
against that broader constitutional background changing. Professor
Jones has referred to some of them, but undoubtedly it is the
case that the law in Wales now is becoming significantly different
in a number of respects from the law in England. The best way
to make that point is to refer to just two years. In the year
2003 up to 8 July there were 1,100 statutory instruments made
by the National Assembly for Wales, 700 or so of those were general
statutory instruments, in other words, had general application
throughout Wales. Over 30% of those were peculiar to Wales and
would have been different from the equivalent instrument made
for England. Therefore it cannot be assumed any longer that the
law that runs in England runs also in Wales. The law itself is
different but it is the reasons why the law is different which
I think is the real reason why the composition of the supreme
court, and those who appoint the members of the supreme court,
should contain a Welsh presence. It is not the jurisdiction but
the differences between the four nations, social, economic, cultural,
legal, those are all the reasons from which devolution proceeded,
those differences between the four nations in the United Kingdom.
When you couple with that the vast changes that are occurring
in the law, it seems to me that to leave out a judge from that
background is to treat Wales differently from, for example, Northern
Ireland.
Q327 Ross Cranston: I am not unsympathetic
with the argument. I think the stronger argument though is the
second one. I think you can draw comfort from other federal systems,
like Canada and Australia, where there is a strong argument that,
say, Victoria ought to have a representative, or Saskatchewan
ought to have a representative, not so much because the law is
different in those jurisdictions, obviously it is, but it is more
the sort of social argument, that if you do have a United Kingdom
with a number of different systems then there should be representation.
The next question is, who? How do you identify a Welsh judge?
I gave the example of Lord Justice Thomas, but we talk about England
and Wales, we admit people to practise in England and Wales, will
they have to attend a kind of law school, or how do you identify
this Welsh judge?
Mr Roddick: Can I give you my
own definition of that. I do not think that identifying a Welsh
judge is likely to be a problem at all. By Welsh judge I would
mean one with a sufficient connection with Wales and sufficient
familiarity and knowledge of it, such that he, or she, would be
sensitive to its different social, cultural, historical, political
and economic circumstances. I can think of a number of judges
who would fit that broad definition, either because they were
born in Wales and fit that wider definition, you yourself have
mentioned one, Lord Justice Thomas, and then there is Lord Justice
Pill, as well, in the Court of Appeal. All the Presiding Judges
of the Wales and Chester Circuit, High Court judges, who have
become presiding judges of the Wales and Chester Circuits in recent
years, fit that description, and they are all serving judges at
the moment. They are Mr Justice Stephen Richards, Mr Justice Pitchford,
Mr Justice Maurice Kay and Mr Justice Roderick Evans. If I had
to go further back into the past to see the treasure trove from
which we can take judges who fit this description, you would have
had Lord Edmund-Davies, Lord Elwyn-Jones, Lord Justice Tasker
Watkins, are names which immediately come to mind. So I do not
think the question of identifying who and what is a Welsh judge
is likely to cause any practical difficulty.
Q328 Chairman: Both of you, in different
ways, have developed the argument that there is growing in Wales
if not a different legal system a different corpus of the law
and therefore something which requires recognition. Although a
moment ago you were concentrating on the social, cultural, economic
arguments for Wales being represented in the supreme court, I
wonder how far you see the secondary legislation of the Welsh
Assembly, for example, overcoming the traditional close ties between
England and Wales in the law? The very large common statutory
inheritance, the fact that even judicial administration boundaries
do not correspond to the national boundary. You referred a moment
ago to the leaders of the Wales and Chester Circuit, and, of course,
in many respects, North Wales has been run legally from Chester
for as long as anyone can remember. Is this really significant
and is it going to change a practice which, since the Tudors,
has amalgamated Welsh and English law, practice and profession?
Professor Jones: I think I would
approach it from the other direction, in that clearly Wales is
a jurisdiction which is emerging from England and Wales at present,
and representation on the supreme court would add impetus to that
process which is already going on. I think it would be a pity
at this particular moment, when the structure of a possible supreme
court is being considered, if the opportunity were lost, because
I am not quite sure that the opportunity is going to come round
again in anything like the short term. I think perhaps the issues
about the differences in the law, and so on, are probably ones
that Mr Roddick is better qualified to answer than I am.
Mr Roddick: The administration
of justice, as you recognise in your question, is not a devolved
function, but the administration of justice is so adapting itself
in Wales as to reflect Wales's post-devolution status, and one
sees more and more these changes gradually taking place. When
Lord Bingham, who was then the Lord Chief Justice of England and
Wales, opened the Mercantile Court in Cardiff in the year 2000,
he said this: "This Court represents the long-overdue recognition
of the need for the Principality of Wales to have its own indigenous
institutions, operating locally and meeting the needs of its citizens
here. This Court is another step towards recognising Wales as
a proud, distinctive and successful nation." The recognition
of the institutional evolution that is taking place now in the
administration of justice in Wales is present within that statement
by the Lord Chief Justice of England and Wales as recently as
2000. There is that shift towards the administration of justice
in Wales being treated differently, though it is not at the moment.
There is an Administrative Court for Wales, set up post-devolution,
the Court of Appeal Civil Division and Criminal Division sit regularly
in Cardiff since devolution. There has been appointed to the High
Court a judge so fluent in the Welsh language that he can conduct
a trial in Welsh or English without translation, according to
the wishes of the parties, since devolution. The Employment Appeal
Tribunal now has said it will not hear its cases concerning Wales
out of Wales, again in the future, so that the Welsh Language
Act can run in all its cases. Those are some of the changes which
are occurring in the institutions of the administration of justice
in Wales very gradually. It is true that the boundaries of the
Wales and Chester Circuits do not correspond to the boundaries
of Wales, but post-devolution I am sure that will be looked at
again, because it is the only anomaly in the administration of
justice in the whole of England and Wales, in that it does not
correspond to the police areas. Therefore, you have government
being administered for one purpose according to one set of boundaries,
and administered for another purpose according to a separate set
of boundaries, and that makes for, some would argue, poor governance.
There is that trend to develop towards a more distinct administration
of justice in Wales and, if I may echo the words of Professor
Jones, it will be a pity if the opportunity is not taken to address
that when setting up the supreme court.
Q329 Chairman: Should the First Minister
to the National Assembly for Wales have a consultation role in
appointments to the supreme court, or indeed to any other?
Mr Roddick: In my view, most certainly.
According to what I have read coming out of the Lord Chancellor's
Department and the Secretary of State for Constitutional Affairs
Department recently, it is envisaged there would be that consultation.
It would be odd in the extreme, if I might suggest, if the First
Minister to the National Assembly for Wales were not consulted,
if the proposal is that the equivalents within Northern Ireland
and Scotland are to be consulted. The consultation would have
to be with the Assembly but the Assembly would keep to delegate
that to the First Minister.
Chairman: We will turn
to the Welsh Language Act. I had better declare an interest as
a not very fluent Welsh-speaker.
Q330 Dr Whitehead: I have no interests
to declare since I know not a word of Welsh, I am afraid. The
Welsh Language Act allows both counsel and litigants, I think,
to address courts in Welsh, if they are sitting in Wales. Logically,
if a case then went to the new supreme court the person addressing
that court conceivably could address that in Welsh, assuming the
origin of the case had been in Wales. Is that something, Professor
Jones, you would advocate? If so, how might such a measure be
accommodated?
Professor Jones: I think the logic
is there, in that, if the Welsh language is being used in the
case in Wales, if that case proceeds to the supreme court of the
United Kingdom then they should be able to speak in the language
of their first choice. I think that specific legislative provision
would be necessary to that end, because at the moment the Welsh
Courts Act, and of course the Welsh Language Act, apply only to
courts sitting in Wales, so there would have to be specific provision
in the arrangements for the supreme court.
Q331 Dr Whitehead: I am trying to puzzle
out though what those arrangements might look like and the extent
to which a litigant might consider that they had been adequately
or well dealt with until the case left Wales and not dealt with
well thereafter. My first thought on this is that it would be
very difficult to dispel that possible perception entirely, bearing
in mind, of course, that, although, as you said, there is an increasing
suggestion that judges in Wales ought to be bilingual, it would
be very difficult to conceive of an idea where, in order to accommodate
the possibility of a case coming before the supreme court from
Wales, all the judges in the supreme court should have similar
facilities?
Mr Roddick: I agree that if the
case is held out of Wales the Welsh Language Act does not run.
That was the very reason which led to the case of Cowell v
Williams and which caused the Employment Appeal Tribunal to
change its practice by now sitting in Wales. Now, if the High
Court can sit in Wales, the Court of Appeal can sit in Wales and
the Employment Appeal Tribunal can sit in Wales, why cannot the
supreme court sit in Wales every now and then? If it were to do
so, it would be a matter of right to use the Welsh language in
the case, and I would not think for a moment that the members
of the supreme court would say, "No, we won't sit in Wales,
as a matter of principle." If it were to sit in Wales there
would be no difficulty at all in making arrangements for the proceedings,
or such part of them as the witness or the party wishes, to be
heard in Welsh, just as they have the right now if the Court of
Appeal were to sit in Wales. If such provision is not made or
there is not that flexibility in the supreme court that it cannot
sit outside of England then primary legislation would be required.
I enable parties and witnesses to use the Welsh language in the
proceedings.
Q332 Dr Whitehead: I take the point in
terms of the possibility geographically that a court could sit
in Wales and thereby, as it were, accommodate itself to the legislation.
I was rather thinking of the points that Professor Jones has made,
in terms of the nature of the judiciary in Wales, or, shall we
say, the prospective nature of the judiciary in Wales, the emerging
nature of the judiciary in Wales, there being an increasing desideratum
that Welsh judges should be bilingual. Of course, even there,
a supreme court to take itself to Wales, then still it would not
be comprehending, as it were, what was going on, other than through
translation. I imagine that there could be an argument that was
not as good as hearing a case where the person listening to the
case was fully conversant with the point that was being made.
Certainly I think we can recall a number of famous international
incidents where translators have guided international statesmen
and stateswomen into conclusions that otherwise they might not
have drawn. Jimmy Carter, for example, springs to mind?
Mr Roddick: The quality of the
translation service in Wales is excellent and I am sure there
would be no scandals of that sort, of witnesses and the court
being misled by the interpreter inputting his own views or evidence.
It is right that the quality of the testimony loses something
when you have to translate, but it is something with which the
courts of England and Wales are long used to, because a number
of people who are not good in English give evidence, day in, day
out, and the court has to rely on translators, juries have to
rely on it. There are certain instances, but more at first instance,
where you have a jury, for example, where the court can be placed
at a very serious disadvantage, if the evidence is given through
a translator. If you have a very young child, for example, giving
evidence of molestation, and many of the young children in Wales
go to Welsh primary schools and have not yet developed the maturity
to speak English because they have not been out in the English
environment, and therefore their first language is Welsh. This
has happened, these are not hypothetical cases. A child tells
her story in Welsh and needs to be able to tell that story in
Welsh in court, otherwise the prosecution is seriously disadvantaged
in having to rely on an adult telling the child's story. The demeanour
of the child is an all-important part of the prosecution's case
on credibility, and if you do not have that facility you are seriously
disadvantaging the prosecution, and it happens.
Q333 Chairman: Do you think there should
be built into this system, within the supreme court, a right to
insist on either a hearing in Wales, in order to secure the availability
of the Welsh language facilities, or simply a right comparable
to that which exists within Wales under the Welsh Language Act?
Mr Roddick: The legislation setting
up the supreme court should contain sufficient flexibility to
enable the supreme court to sit in Wales, in circumstances where
there is a call for the use of the Welsh language.
Q334 Chairman: Does that not give the
party who is concerned about the Welsh language, whether it is
the defence or the principal prosecution witness, too little say
in the matter? The supreme court might find it inconvenient to
sit in Wales on this particular case, even though it was of considerable
importance to one party or the other that they could choose the
language?
Mr Roddick: Essentially, this
is a political question, and I approach it with some trepidation,
therefore, because it is a political question. I express an entirely
personal view and not one as the civil servant which I was previously,
as the Counsel General, so it is an entirely personal view. It
is that there, ought to be, a right to insist, from one or other
or both parties who wish to have a case heard before the Supreme
Court, a requirement for it to sit in Wales, so that they may
use the Welsh language in the course of the proceedings, as a
matter of right.
Chairman: Thank you very
much. We are very grateful to you both and hope to take advantage
of the things you have told us as we prepare our report. Many
thanks.
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