Examination of Witnesses (Questions 340
TUESDAY 9 DECEMBER 2003
Q340 Mr Soley: Thank you for flagging
that up. Sir Robert, I am not quite clear where you stand on this.
Are you broadly in favour or against?
Sir Robert Carswell: I cannot
speak for my colleagues because it is not a topic we discussed
as it was not part of the consultation paper, and I suspect that
their views might be divided. My own view I think tends towards
that of Lord Cullen; it is a matter of perception. There is no
doubt, I think, that the quality of the work of the Lords has
been highly regarded for many, many years and their independence
and integrity is certainly unchallenged. It is a question of perception
and the possibility of a challenge under Article 6, though frankly
I think it would be a brave person who would undertake it!
Q341 Mr Soley: So you are both confident
that there would not be any challenge to that at all, but again
it goes back to perception, does it not, because we do get as
politicians questions from particularly the emerging Eastern European
countries about why we have a rather muddled approach at times,
on separation of powers. I know that is really the Lord Chancellor,
but there is an element of overlap, is there not?
Sir Robert Carswell: Well, the
whole of our constitution is a little that way. I am inclined
to Lord Cullen's view that if it is functioning satisfactorily
you might make more trouble from changing it just because of perception.
If it were not functioning satisfactorily I would have no hesitation
in supporting a change to have a court that was put on the right
basis, but I have some difficulty in seeing that the case for
changing just because of that is made out. I might be less positive
than Lord Cullen and certainly less positive than Lord Nicholls
as reported in Counsel, but I would hesitate myself, if I may
put it that way.
Q342 Mr Soley: Do you think people in
the street would have a perception of your function now, or would
it be better if it was a Supreme Court, given that that term is
perhaps better understood by people?
Sir Robert Carswell: In the taverns
of Tipperary the talk does be of little else!
Q343 Mr Soley: I would have to say not
in Acton! Nevertheless there is a perception of justice and of
judicial structure, and "Supreme Court" has a precise
meaning in people's minds, even if it is not so precise in actual
terms. They tend to understand that.
Sir Robert Carswell: That I think
is as far as the benefit is likely to gotidiness and people's
idea of their understanding. Advantages in practical terms are
likely to be minimal and there may be problems not appreciated
such as Lord Cullen has dealt with in his response.
Lord Cullen of Whitekirk: You
say everybody knows what a Supreme Court is but if you look at
yesterday's article by Lord Rees-Mogg in The Times he immediately
starts thinking about the American model. If you say "Supreme
Court" to a man in the street he may say, "Oh, yes,
just like America". Now, that is not what is proposed, as
I understand it, so it is not as simple as all that.
Q344 Mr Soley: Finally, you have played
a distinguished role in a number of public inquiries. Do you think
members of the Supreme Court could do that job, or do you think
that would have to revert to someone else?
Lord Cullen of Whitekirk: It depends
whether they were allowed to do so by the President of the Supreme
Court. It has become a regular practice for judges at various
levels to be asked to do these inquiries. I do not see any reason
in principle why not, no. None at all.
Q345 Mr Soley: Although it must be said
in the 19th century Parliament was very good at doing its own
Lord Cullen of Whitekirk: It was
only because of difficulties over that very thing that inquiries
by judges and others began to become more common. I think it was
the Marconi episode in the 1920s which gave rise to the Tribunals
of Inquiry Act 1921. Because of the difficulties then it was necessary
to take the matter out of the political hotbed which tended to
surround parliamentary inquiries at that time.
Q346 Peter Bottomley: Many of us were
astounded that the Government could come up with proposals to
reorganise our court of final appeals without consulting the outgoing
Lord Chancellor, the incoming Lord Chancellor, the present members
of the Judicial Committee of the Lords, and I think we would do
better to discuss this in terms of a court of final appeal and
leave the title to be chosen afterwards for exactly the Rees-Mogg
reasons. Clive Soley was talking about perceptions. What would
be the minimal changes that might meet the perception point?
Lord Cullen of Whitekirk: I am
not sure what you mean by "minimal changes".
Q347 Peter Bottomley: Largely that the
Lord Chancellor should not be able to sit as a law lord. The minimal
change is the Lord Chancellor saying "I will not sit as a
law lord" rather than throwing the whole system in the air.
People argue that having the law lords meeting in the House of
Lords is somehow the executive interfering, forgetting of course
that Parliament is not the executive and that any arrangements
are likely to be more expensive. Could they be cheaper than the
Lord Cullen of Whitekirk: I cannot
say because I do not sit as a Lord of Appeal but my impression
is that it would be cheaper to leave things as they are than to
create something freestanding outside, and there also is the advantage
at the moment, as I understand it, that the Appellate Committee
is funded through the House of Lords whereas if it is to be exported
to some other place it would then be funded by the Department
of Constitutional Affairs, hence you get a closer association
or greater association with the executive which did not previously
exist. Now that itself raises a problem of independence.
Q348 Peter Bottomley: And without commenting
on the personal qualities or merits of the present serving Lord
Chancellor, would either of you take the view that you would prefer
to have the judiciary so to speak led by a middle-ranking minister
who might want preferment, or would you prefer the present system
we have had of having someone who is so grand that they do not
expect to go on to another job after being Lord Chancellor?
Lord Cullen of Whitekirk: I will
leave Sir Robert to deal with that question because the Lord Chancellor
has no sway in Scotland.
Sir Robert Carswell: That is known
in rugby terms as a hospital pass! I certainly have had experience
of working with three Lord Chancellors
Q349 Chairman: Who all happen to be Scots?
Sir Robert Carswell: Yes, and
it was wholly favourable. I found that they did support the judiciary
extremely well and that they had the standingI leave out
the present one because he is in a slightly different position
but Lords Irvine and Mackay had the standingto be able
to put their case, if there was a case to be made, very effectively.
To have a person in the position of the Lord Chancellor with the
independence and the standing rather than, as Mr Bottomley said,
a politician who may be looking for other posts in due courseI
could see that the latter would give less support and independence
to the judicial point of view because judicial independence is
so crucial, not because it is terribly important that they be
left alone to do their own thing but because independence is a
necessary condition of impartiality.
Q350 Ross Cranston: I want to come back
to this public inquiries point because there is a purist view,
which I do not share, that judges should not conduct public inquiries.
I guess the difference with a parliamentary inquiry is we might
do policy but judges can do factual inquiries that we cannot do.
But I think the argument is first a practical argumentthat
judges simply do not have time if they are on the Supreme Courtbut
also there is a constitutional argument and I think it is the
view taken, say, by the Victorians in the common law world and
possibly shared that it is just wrong for judges to become involved
outside judicial functions. As I say, I do not share that but
it is an argument that if you take this purist Article 6 view
of the worldwhich I think is totally wrong but if you take
that viewit might well be said it is wrong for judges to
participate in public inquiries.
Lord Cullen of Whitekirk: It is
certainly the case that in some other countries it would be unthinkable
for a judge to take a public inquiry but there never seems to
be a problem here. What has happened over the decades is governments
have used judicial independence and judicial talent in order to
cope with matters that could not be resolved in some other way.
Q351 Ross Cranston: I think the argument
might sometimes be that politicians are trying to avoid issues
or kick them into the long grass or whatever, and are exploiting
Lord Cullen of Whitekirk: It is
an out-tray way of dealing with matters but it is important also
to bear in mind that you do not have inquiries unless there is
some cause for public concern, and thus it is that judges who
are otherwise liable to be treated as elderly and out of date
suddenly become popular for this sort of purpose.
Mr Soley: Young and in date!
Q352 Chairman: Turning, Lord Cullen,
to the Scottish aspects of this, are the Government's proposals
compatible with the Act of Union, Article 19 and the claim of
right and, if not, what would have to be done to them to make
Lord Cullen of Whitekirk: I adverted
to this matter in my response really in order to make the point
that this aspect ought to be considered by the Government. Before
the Act of Union there is the Claim of Right, which was a Scottish
provision at the time when the monarchy was returning to Scotland
in 1689 and there was then a declaration by the Scottish Parliament
as to the right of subjects to protest for remeid of law to the
King and Parliament and that is the ancestor, so far as Scotland
is concerned, of the hearing of civil appeals from the Court of
Session to the House of Lords. The Act of Union was silent on
the question of appeal from the Court of Session or, indeed, the
High Court of Justiciary, but it was later, much later, interpreted
in such a way as to indicate that the Court of Session and its
decisions should be subject to review whereas the High Court,
the criminal court, would sit with its decisions to be regarded
as final and conclusive. So what you have, firstly, is an interpretation
of the Act of Union. The second point is that, until now, it has
been recognised that there are some situations, not easy to define,
where certain elements in our constitution may be unalterablethat
is a possible view. It arises from time to time, most recently
in the case involving Lord Gray's Motion where certain members
of the Committee for Privileges reserved their view on that matter.
So however strange it may seem there is an argument that Parliament
might not be able to alter or undo certain elements of a constitutional
nature. That is a sketch of the argument: whether it is good or
not I do not propose to advance, but simply say it is there to
Q353 Chairman: Are you proposing any
way in which the Government's proposals might be modified to avoid
collision with that argument?
Lord Cullen of Whitekirk: I am
inclined to think that it may very well be that so far as civil
appeals are concerned there is not a problem, but it is simply
something that ought to be looked at. Therefore my answer to that
is probably that no alteration is, in fact, required.
Q354 Chairman: Do you agree that legislative
competence so far as any changes to leave to appeal and things
of that kind are concerned does not lie with Westminster under
the devolution settlement but with the Scottish Parliament?
Lord Cullen of Whitekirk: That
is quite a difficult matter. If you look at the Scotland Act you
will find that what is reserved is the continued existence of
the Court of Session and the High Court of Justiciary. The way
that the Scotland Act is constructed certain matters are specifically
reserved: the rest is not, and therefore it appears on the face
of it that matters other than the continued existence of these
courts is a matter for the Scottish Parliament. Nobody is entirely
clear as to that being the case but that seems to be the position,
in which case there seems to be a role here for the Scottish Parliament.
Now I would hope that the matter was not, so to speak, nodded
through in Scotland but given serious consideration, but that
is the position, as I understand it.
Q355 Chairman: Lord Hope expressed the
view that the Scottish Parliament would need time to deal with
this matter before it proceeded at Westminster?
Lord Cullen of Whitekirk: I would
agree with that and the consultation paper, whereas it makes clear
what the executive's attitude is and we have seen the executive's
response since then, so far as I know as yet there has not been
a considered discussion in the Scottish Parliament.
Q356 Chairman: There is a phrase which
I think you may have challenged already which the Government use
in respect of constitutional issues where they say that the establishment
of the new court "accordingly gives us the opportunity to
restore a single apex to the United Kingdom's judicial system
where all the constitutional issues can be considered". That
is in the consultation paper. Is it your view that, leaving aside
the devolution issues, there ever was or should be a single apex
which combines the judicial systems of England and Scotland?
Lord Cullen of Whitekirk: I do
not think that is correct. The position until now is that the
Appellate Committee functions sometimes as an English court and
sometimes as a Scottish court, and I say that because what is
binding in England is not binding in Scotland. You have two completely
separate jurisdictions so that whatever decision the House of
Lords reaches in regard to an English civil matter it does not
bind in Scotland, and vice versa, so you really have two apices
rather than one apex and, if the position is that that is to be
taken over by the Supreme Court, it will have those two high points,
whereas the paper tends to talk as if this is the opportunity
for the United Kingdom court. Well, I say that is obscuring the
point: that you have two separate jurisdictions each with its
own head happening to be administered under one device, namely
the Appellate Committee. That is what we have: it is a result
of the separate growth of two legal systems, and it is preserved,
of course, by the Act of Union.
Q357 Chairman: Do you think that the
Scotsman who holds the position of Lord Chancellor in England
that is driving this reform has now perhaps become more familiar
with this point?
Lord Cullen of Whitekirk: I certainly
have had the opportunity of making it to him and I have also pointed
out that there is nothing in the consultation paper that would
prevent this Supreme Court in an English case determining what
Scots law was or vice versa, and I think for the protection of
Scots law that needs to be in any legislation for a Supreme Court,
as well as more general provisions safeguarding the separate existence
and entity of Scots law.
Q358 Ross Cranston: Just quickly, if
one started with a blank sheet one could look, say, at jurisdictions
like Canada, where the Supreme Court operates and still preserves
a quite distinct judicial system in Quebec, quite different in
terms of the civil law background and in terms of the substance
of the law. Starting with a blank sheet, therefore, do you think
you would take a different view?
Lord Cullen of Whitekirk: I think
it would not be impossible for a Supreme Court here to preserve
that clear distinction, and if one was setting up something now
and had not got the benefit of decades and hundreds of years"
operation of the House of Lords and the Appellate Committee, yes,
it could be done but all I am saying is that the safeguards are
not spelled out and I think the safeguards are essential. The
present consultation paper seems never to come to terms with any
of that, which is rather worrying.
Q359 Dr Whitehead: Could we perhaps move
to who would like to be on the new Supreme Court? Do you have
any views about the convention of the numbers of judges from Scotland
who might be appointed to the Supreme Court? Do you believe that
the convention should simply continue, or do you believe there
should be rather more places available?
Lord Cullen of Whitekirk: The
proposition is that the number of twelve should be carried over
from the Appellate Committee. One of the points that we did consider
was whether and to what extent the new Supreme Court should rely
on ad hoc members brought in from the various jurisdictions,
and we tended to the view that it should, so far as possible,
operate within its permanent establishment. Now, that cannot be
done without increasing the establishment and that brings in its
train the question of whether it should remain as two members
from Scotland or whether it should be three. It is really an incidental
effect of that. If one compares that with the present arrangement
under which the Judicial Committee of the Privy Council can call
on Scots men and women ad hoc to sit in, it is a very flexible
arrangement and quite a beneficial arrangement from the point
of view of making sure that you have adequate Scottish representation
when required. These are broadly my views. Now, I appreciate that
to increase the number of Scots may not necessarily be wholly
popular and it also creates difficulties in Scotland because at
the moment to have two distinguished Scottish judges serving in
England and for the most part looking at English cases is in a
sense bad enough, but to take three away is a greater drain so
there are pluses and minuses here. It is a difficult matter and
it may be at the end of the day one of the arguments for leaving
matters as they are.