Examination of Witnesses (Questions 440
- 459)
THURSDAY 11 DECEMBER 2003
RT HON
LORD WOOLF,
RT HON
LORD BINGHAM
OF CORNHILL,
RT HON
LORD NICHOLLS
OF BIRKENHEAD
AND RT
HON LORD
JUSTICE THOMAS
Q440 Chairman: It is our understanding
that these changes, not only a supreme court but also the intended
abolition of the post of Lord Chancellor, were announced without
consultation with anybody, including yourselves. Does that in
itself present serious practical difficulties? If so, how might
that be addressed?
Lord Woolf: In so far as I am
concerned, I regret that there was no consultation beforehand,
but when looking forward, as I feel we must now, it is not necessary
to dwell on how the announcement was made. The only message that
I draw from what happened then is that it did indicate that the
checks and balances we believed we had within our unwritten constitution
are sometimes shown to not have the vigour that perhaps we would
like them to have.
Q441 Chairman: This does suggest, does
it not, Lord Woolf, that reliance on the existence of the Lord
Chancellor is not entirely safe, when the Lord Chancellor upon
whom you relied might disappear in the course of an afternoon
and the interests of the judiciary not be represented in the decision
which is made later the same afternoon?
Lord Woolf: If I may say so, I
agree with what you say and that is why I do feel it is very important
now to look forward and if the Lord Chancellor is to be removed
from the scene, it is very important that we introduce structures
which will provide for the new situation, structures which we
have not felt were necessary in the past, but which I now feel
become very important.
Q442 Chairman: Do you think we have a
clear enough picture of what the functions of a supreme court
would be and what we regard as the functions of the Appellate
Committee of the House of Lords now? Is it sufficiently clearly
defined?
Lord Bingham of Cornhill: Subject
to one qualification, it is completely clearly defined. The one
qualification relates to devolution issues which under the Scotland
Act and the Northern Ireland Act and the Welsh Act were assigned
to the Privy Council. The Scots in particular were keen that these
issues should be resolved by the Privy Council rather than the
House of Lords. It does have the advantage, which we have used
on occasion, of being able to compose a panel which has Scottish
Privy Counsellors in addition to law lords, so there is an extended
eligibility to sit on devolution issues because they are in the
Privy Council. If the devolution issues were assigned to the House
of Lords, in whatever incarnation, it would be—and I think
we are all agreed on this—unsatisfactory to have a court
which was composed in a certain way to deal with this class of
business and composed in a different way to deal with a different
class of business. Despite the untidiness of it in a bureaucratic
sense, there is in fact quite a strong argument for keeping the
devolution issues in the Privy Council and not assigning them
to the House of Lords. Otherwise, and indeed in that respect also,
the jurisdiction and functioning of the supreme court remains
exactly as it is. Everybody has made it plain, on every single
opportunity that the subject has been addressed, that nobody is
proposing that the existing rules so far as criminal appeals in
Scotland are concerned should be altered in any way. They have
always, since 1707, ended in Edinburgh and certainly nobody in
London has ever suggested that rule should be varied in any respect.
Its jurisdiction would remain the same.
Q443 Peter Bottomley: We all understand
that there is a range of views among the law lords. Could I ask
you what the minimal changes would be which would meet most of
your concerns, what would be the smallest changes which would
be necessary to meet your concerns? Most of the debate has been
about the government's proposals. I am more interested in the
simple ways. If the Lord Chancellor said "I will not sit",
does that separate the executive? If they said "We won't
have law lords speaking in debates in the House of Lords"
would that meet your point?
Lord Bingham of Cornhill: If you
introduced a regime under which no serving Law Lord and nobody
sitting in the Appellate Committee in whatever incarnation, played
any part in the House of Lords whatever and it was publicly appreciated
that was the position, that would meet my concerns. The question
would inevitably arise: if these people are going to play no part
in the business of the House at all, then why are they members
of it? My view is that people should think of the law lords, in
whatever body they serve, as being a court and not as being members
of the House of Lords in their spare time. I am bound to say it
does give rise to difficulties. If I pick up a point Lord Woolf
has made, when I was Lord Chief Justice, the government of the
day introduced a Bill and I, in very much the sort of way he has
described, came down to the House of Lords and extended a general
welcome and said it was no doubt a very well crafted Bill which
addressed serious social problems, but I had certain reservations;
about six points, to which I then devoted my speech. On the strength
of those anodyne introductory remarks about offering the Bill
a welcome, in a case which involved that legislation, both leading
counsels signed a letter saying that they considered it entirely
inappropriate that I should sit on the appeal. When one of my
colleagues said "If I received a letter like that I would
not sit", I thought I should not. There are difficulties
here and people are much, much more acutely alive to potential
conflicts than they used to be. I was reading an authority just
the other day, in which a Lord Chancellor was ruling on the vires
of legislation which was challenged in the courts. He was a leading
member of the government which introduced it and there was not
a quiver of objection. I do not think anybody could imagine that
situation pertaining today.
Q444 Mr Soley: May I pursue that a little?
May I put it to you and particularly to Lord Nicholls that the
House of Lords is changing and will continue to change and I suspect
very radically over the coming years? It is already getting much
more overtly political. Is it not true that the more that happens,
the more difficult it is to justify and sustain the law lords
sitting in that chamber?
Lord Nicholls of Birkenhead: The
law lords need to be careful concerning their participation in
the work of the chamber. As long as they take care, no difficulty
ought to arise and has not arisen so far. The separation of the
work is complete, so one just needs to be careful when one participates
in debates that one is not causing possible problems for oneself
in the future.
Q445 Mr Soley: There is an option of
simply saying the law lords do not take any part in the legislative
programme whatsoever but they simply sit in there as law lords
and that would cover separation. One of your concerns, and a difficulty
you identified in answer to the Chairman, was the expense of the
new building. That would obviate that, but would it not leave
you sitting in a rather unsatisfactory situation and being seen
almost as piggy-backing on what will become an increasingly political
second chamber?
Lord Nicholls of Birkenhead: It
has not given rise to difficulties so far. I am not sure one ought
to foresee such a change as will give rise to difficulties beyond
coping with for the future.
Q446 Mr Soley: The point I am putting
to you is that certainly we in the House of Commons would experience
a greater political involvement for the House of Lords and that
has been happening and I do not have a problem with that. It needs
it to reinforce its legitimacy, but if it does that and if it
continues to do it, particularly after the removal of the remaining
hereditaries, it gets increasingly difficult to argue that the
law lords are part of it.
Lord Nicholls of Birkenhead: Obviously
there are matters which are very political and party political
in the House of Lords at the moment, but this has not given rise
to difficulties in practice. Do you have a view Lord Bingham?
Lord Bingham of Cornhill: Yes,
I do have a view. It sounds as though we are being very antagonistic
but we are far from it. The reason why there has been so little
difficulty is because the law lords in recent years have played
virtually no part in the business of the House of Lords at all.
Within an astonishingly short period there has been a great change
of culture. There was an instance some years ago when there was
an issue which was debated in the House and it then became litigious.
There was great difficulty composing a panel of people who had
not already held forth on this particular subject. Because of
this change of culture, in a very short time, people have contributed
less and less to the business of the House. Several of my colleagues
have never made a maiden speech, I myself have not uttered since
I assumed my present office three and a half years ago. The chairman
of Sub-Committee E certainly does participate and contribute on
that subject. Otherwise contributions are extremely few and far
between. I am bound to say that is why there has been so little
trouble.
Q447 Mr Soley: Your argument does lead
to a logical assumption that we have a new building—not
necessarily newly built but a new building—to house the
law lords in a proper way. Is that right?
Lord Bingham of Cornhill: I of
course agree with everything that Lord Nicholls says about housing
this body somewhere which will express, as supreme courts round
the world do, the importance which a liberal society attaches
to the rule of law. It would be the worst possible advertisement
for the values of the government, if they were to try to put us
in some completely inappropriate building, not because we have
delusions of grandeur, but simply because we, like Parliament,
represent a very important democratic value.
Lord Nicholls of Birkenhead: May
I just add that what I would say is that the present system works
and works well as far as I understand the generally accepted view?
My instinct is: why change it unless something fresh has emerged
which makes it now undesirable?
Q448 Mr Soley: What I have been putting
to you is that it is changing, that is the point. The House of
Lords is changing and becoming more overtly political. Whether
you are talking about perception of the separation of powers or
the reality of it, the reality is that the House of Lords is changing
and will go on changing and that makes it difficult. Do you not
accept that argument at all?
Lord Nicholls of Birkenhead: I
do not think at the moment I would accept it is changing in a
way which undermines the existing arrangements regarding the law
lords, no. For example, there are very many more crossbenchers
now than there were and the House is becoming more important.
To treat it now as having become more party political and therefore
less suitable for law lords to be there is not something I would,
with respect, accept.
Q449 Ross Cranston: I want to move onto
some of the practicalities if there is a new supreme court or
the court of final appeal. Some of the practicalities are: will
the court have a separate corporate identity? Lord Bingham referred
to the High Court of Australia and alluded to the centennial celebrations.
Would the employees of the court be employed by the Department
of Constitutional Affairs, or would they be employed by the court
itself, by the corporate body? What about the budget? Would the
senior Law Lord, if he or she is still called that, come along
before the Committee of Public Accounts and talk about the budget
or come before this Committee? What are the practicalities if
we move in that direction?
Lord Bingham of Cornhill: These
matters have been the subject of discussion, constructive and
on the whole rather encouraging discussion, but of course we can
only propose and God disposes. We have urged that the supreme
court, which is not of course an English and Welsh court and therefore
cannot be and should not be administered by the Court Service
of England and Wales, should have its own staff and employees
and should have its own budget. We have had discussion as to how
this would be done. You will be very well aware that in Australia
the chief executive of the High Court of Australia goes and sees
the permanent secretary at the ministry of finance or something
and routinely agrees a one-line budget that the High Court of
Australia then disburses. It is allowed to keep any unspent money
from one year to the next and of course it is accountable and
reports on how the money has been spent. We would very much like
to get as close to that model as we can because we think it reflects
the independence that the courts should enjoy to a greater extent
than it would if it were dependent upon the bounty of any particular
department which had a lot of other responsibilities and temptations.
Q450 Ross Cranston: The argument used
by Lord Hobhouse is that at present there is independence because
you are funded by Parliament and that gives you a greater independence
than you would have if you were dependent on the executive.
Lord Bingham of Cornhill: Yes.
The point has been made, and it is a point that is worthy of consideration
whether one accepts it or not, that a Cabinet Minister with a
reputation to make is going to be more successful at extracting
money from the Treasury than the chief executive of a court or
the senior member of that court. Inasmuch as the reputation of
ministers tends to stand or fall according to their success in
getting money for their department, the point has been made that
the Secretary of State for Constitutional Affairs would have a
real interest in trying to do well for the supreme court. Of course
he would have a lot of other demands on his time. At the moment
we are pressing for a solution.
Q451 Ross Cranston: I never thought of
Lord Falconer as God by the way. I wonder whether Lord Nicholls
or Lord Woolf have any thoughts on the actual structure, if we
do move towards that model?
Lord Nicholls of Birkenhead: It
is certainly desirable that if at all possible the budget should
be one which is not coming through the executive.
Q452 Ross Cranston: What about coming
before a parliamentary committee, coming before the Committee
of Public Accounts or something like that?
Lord Bingham of Cornhill: I would
assume that it would be the registrar, the chief executive or
somebody who would do that rather than myself, not least because
he or she would be much better at it.
Q453 Ross Cranston: May I ask you about
accommodation? Lord Bingham has touched on that and has actually
written about the importance of architecture to the administration
of justice. I think you said you would want a prestigious location
symbolising the importance of the rule of law. We have had evidence,
for example Lord Hope was very concerned about the threat to collegiality
if there should be a court on The Strand or Somerset House or
wherever, because those from an England and Wales background would
gravitate towards the Inns of Court and the Scots might be left
out. There are several implications of the architecture. Could
you just talk about the guiding principles you would want in terms
of accommodation?
Lord Bingham of Cornhill: My own
view—and I think we are at one on this—is that it
is desirable in an ideal world that the court should not be on
top of or at all close to the Royal Courts of Justice because
it is separate and has a United-Kingdom-wide jurisdiction which,
through no fault of their own, the Royal Courts of Justice do
not. I attach very considerable importance in whatever building
we are housed—and I am quite confident that I speak for
all my colleagues in this and I would hope for a lot of litigants
as well when I say I would certainly want to preserve the ambiance
of our existing hearings. In other words I would not want a court
which sat half way up the wall with litigants in pews way below,
as is the normal pattern of courts. I would want to preserve the
horseshoe table with counsel very close and on the same level
and a lack of formality, in dress at any rate, on our part, because
I think it is an extraordinarily good medium for discussion. By
the time cases come to us, unless somebody has made a mistake,
they are always difficult. They are not cases where the answer
is obvious and at its best the discussion takes on the form of
a seminar with which you will be very familiar yourself. It is
a sort of discussion, an exchange of opinions, "What about
this? What about that?" and everything is tried for size.
You try to reach the right solution and it does not have the sort
of gladiatorial adversarial sort of atmosphere which is inevitable
in trials. I am not suggesting there is anything wrong with that;
it is just undesirable in our hearings. I would certainly want
to keep that and I am sure that Donald would agree completely.
Lord Nicholls of Birkenhead: Absolutely;
absolutely.
Q454 Chairman: You do not fancy the Middlesex
Guildhall then.
Lord Bingham of Cornhill: I do
not fancy the Middlesex Guildhall at all for a number of reasons,
but one of them would be that I think English Heritage would want
to keep the design of the existing court and I would be implacably
against that.
Lord Nicholls of Birkenhead: We
are at the moment housed of course in highly prestigious accommodation
which symbolises the importance that we as a community attach
to the judicial function. Finding something equivalent is in fact
proving very difficult, as one might expect in the centre of London.
Q455 Chairman: Is there not a risk in
fact that you end up continuing to sit there even if you are turned
into a new body, a new supreme court, simply because they have
not found anywhere else to put you? You will finish up sitting
in the House of Lords while pretending you are somewhere else?
Lord Nicholls of Birkenhead: If
the House will accept it.
Q456 Ross Cranston: A final question
on the building. Lord Bingham mentioned the High Court of Australia.
An argument could be made—and this goes back to the argument
about the influence of architecture—that the Australian
High Court became much more intrusive on government once it had
that prestigious building on the shores of the lake in Canberra.
There is that old quip about the Supreme Court of the United States,
when it was in the basement of the Capitol, having a deferential
approach and then once it got out into its new building it started
to spread its wings. There may be a truth to some of these arguments.
Lord Bingham of Cornhill: Well
it does not really work, does it? Although the High Court of Australia
had a rather activist phase a few years ago, the pendulum has
now rather swung and everybody is now in a rather cautious and
conservative phase. They are still in the same building.
Q457 Ross Cranston: Touché.
Lord Bingham of Cornhill: There
are cycles in judicial fashion.
Q458 Ross Cranston: It depends very much
on personalities.
Lord Bingham of Cornhill: Very
much in that particular instance and you could demonstrate this
more generally.
Q459 Peter Bottomley: What basically
protects judicial independence and strength?
Lord Bingham of Cornhill: What
protects it most is the tradition and the culture. I could say,
and I feel quite sure we would all agree, that in over 20 years
of holding judicial office none of us would ever have experienced
any attempt whatever by anyone in any official position to influence
any decision which any of us was about to make no matter how sensitive
the case might be. The general public have no conception of the
degree of fastidiousness which on the whole governments and officials
show in this particular respect and sometimes go to almost unnecessary
lengths to avoid anything which could even be construed as an
attempt to influence the thing, otherwise of course than by argument
in open court when the government itself is a litigant. This is
after all a culture which we have enjoyed for some time now. I
think we all take it more or less for granted, but we certainly
should not assume that these traditions will necessarily be fully
honoured for ever and a day and no matter what the pressures outside.
Therefore I would entirely agree with what the Lord Chief Justice
said. We have in the new environment to do everything we possibly
can to ensure that the safeguards are as effective as they possibly
can be. One cannot assume the weather will always be as fine as
it is at the moment.
Lord Woolf: The Chairman mentioned
the original announcement of the changes. So far as I am concerned,
I have suggested that this was a wake-up call for the judiciary.
We have been too complacent about the strength of the independence
of the judiciary in this jurisdiction because of the very matters
to which Lord Bingham has just referred. In the new environment
which we are now, it is a responsibility of the judiciary and
a responsibility of the government and the legislature to ensure
that we put in place the proper structures which will protect
the judiciary. As a member of the Committee indicated, there has
perhaps been a change of atmosphere in the Lords of late. The
same thing might be said with regard to the activities in the
political arena generally. We cannot assume that the reticence
which three arms of government have shown in the past to respect
each other's position and interests will necessarily be maintained.
I am very keen now, and I hope we will bring about a situation
as a result of the changes which are now being discussed and I
am sure this Committee will play a part in assisting this, that
we come to a situation where we put in place structures which
perhaps we should have put in place before, but which were apparently
not necessary, but which are necessary now.
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