Written evidence submitted by Lord Norton
of Louth
THE PROPOSAL
FOR A
SUPREME COURT
Our present system of government should be seen in
a positive light and not a negative one. It rests on the different
components fulfilling their respective—and separate—roles
but doing so on the basis of mutual respect and understanding
for one another.[1]
The judicial branch is separate in terms of functions—and
exercising independence of judgement—to that of government.
The fact that the highest domestic court of appeal resides in
the Palace of Westminster does not undermine the independence
of judgement or the integrity of the judicial branch but it does
facilitate respect and understanding between the judiciary and
Parliament. It facilitates co-operation between the judiciary
and the executive branch, not in terms of conduct and judicial
decision making, but in terms of facilitating the administration
of the courts and the judicial system.[2]
That mutual respect and understanding is arguably
all the more important at a time when there is greater judicial
activism and with the constitution acquiring a new judicial dimension
as a consequence of membership of the European Community/Union,
the passage of the Human Rights Act 1998, and the devolution of
powers to elected bodies in different parts of the United Kingdom.
The need is exacerbated by clashes between successive Home Secretaries
and the Courts. There is a problem at the moment in the relationship
between ministers and the courts—the mutual respect and
understanding is under challenge. That problem is likely to be
all the greater if the Law Lords are removed from the House of
Lords and established in a distinct—physically separate—building.
Increasingly, as new appointments to the Court were made—and
those members with previous service in the House of Lords disappear—the
greater the lack of understanding on the part of judges as to
the nature of the parliamentary process. Equally, and perhaps
more importantly, the more exposed they would be, detached from
a body that would be in a position to help protect them when under
pressure from the executive. Paradoxically, therefore one has
the potential for a physical independence of the highest court
to undermine the capacity of that court to remain independent
in the face of challenge from a powerful executive. The presence
of lawyers in the House of Lords may be helpful to the House in
understanding the law. The presence of the Law Lords is significant
in terms of appreciating the role—and the need to protect
the integrity—of the courts. Thus, it is arguable that the
independence of the courts—maintaining their integrity in
the face of executive challenge—is best protected by leaving
the Law Lords in the Palace of Westminster rather than removing
them from it.
There is thus a case for leaving the Law Lords where
they are. What are the arguments for removing them, and creating
a new Supreme Court? The core arguments appear to be those of
(a) maintaining independence and (b) being seen to be independent.
The first argument—that the highest court needs to be independent—is
undermined by the recognition on the part of Government that the
present system has served us well and that the Law Lords have
demonstrated independence of judgement. The second argument is
undermined by the absence of any hard evidence to demonstrate
that the House of Lords in its judicial capacity is not seen as
independent.
Constitutional Affairs minister, Lord Filkin, has
said he does not believe that "because Law Lords have always
acted with integrity and independence that reform should not take
place."[3]
He bases his claim for change on Article 6 of the
European Convention on Human Rights, various case law (as in Findlay
v United Kingdom and Locabail (UK) Ltd v Bayfield
Properties Ltd and others) and on the assertion that "the
general public do not perceive that the Law Lords acted differently
from the other Lords". And perception, he argues, matters
as much as reality.[4]
There are a number of points to be made in response.
First, even if there was a misperception on the part
of the public, that does not necessarily affect the delivery of
a sound and effective system of justice or lead citizens to believe
that there is a problem in such delivery. Lord Filkin appears
to equate confusion (as to the role of the House of Lords) with
doubt (as to impartiality). The fact that people may not grasp
the distinction between the House of Lords in its legislative
capacity and the House in its judicial capacity does not necessarily
raise a doubt as to the capacity, or the perceived capacity, of
the Law Lords to remain unbiased.
Second, the Government's claims as to the public
perceptions themselves rest on presumptions: we are offered the
Government's perception of perception. There are no hard data
presented for its claims as to the public confusion and certainly
none to sustain the claim of any perception of bias. Given the
weight resting on the Government's claims, it is difficult to
see how the Government can proceed with its proposals without
putting some evidence for its assertion in the public domain.
No empirical support can be found in the Consultation Document,
Constitutional reform: A Supreme Court for the United Kingdom
(CP 11/03, July 2003). See, for example, paragraph 3 on page
11 for the nature of unsubstantiated assertions as to perceptions:
"The fact that the Lord Chancellor, as the Head of the Judiciary,
was entitled to site in the Appellate and Judicial Committees
and did so as Chairman, added to the perception that their independence
might be compromised by the arrangements". Whose perception?
It may have added to someone's perception, but we are offered
no evidence for the claim.
Third, it is not clear why the existing arrangements
do not meet the criteria enunciated in recent case law. In Findlay.
the Court held that any element of doubt as to the impartiality
of any tribunal must be eradicated, otherwise there may be the
possibility of perceived bias. The Court said "In order to
establish whether a tribunal can be considered `independent',
regard must be had inter alia to the manner of appointment of
its members and their term of office, the existence of guarantees
against outside pressures and the question of whether the body
presents an appearance of independence". It went on to say
that there were two aspects to the question of impartiality: the
tribunal must be subjectively free of personal prejudice or bias,
and it must also be impartial from an objective viewpoint, that
is, it must offer sufficient guarantees to exclude any legitimate
doubt. In Locabail, the Court of Appeal held that when a judge
has to consider whether to exclude himself from sitting, apparent
bias was as important as real bias. It held that "The most
effective protection of the right is in practice afforded by a
rule which provides for the disqualification of a judge, and the
setting aside of a decision, if on examination of all the relevant
circumstances the court concludes that there was a real danger
(or possibility) of bias".
These extracts are supplied, in correspondence, by
Lord Filkin.[5]
He also cites the words of Sir William McPherson in his Report
of the Inquiry into the death of Stephen Lawrence: "Just
as justice needs to be `seen to be done', so fairness must be
`seen to be demonstrated'". Lord Filkin concluded: "If
an institution is not perceived to be independent, impartial and
fair, then trust in that institution will falter no matter what
internal procedures are put in place to ensure that it is impartial
and independent."[6]
I quote from my response to Lord Filkin:
As for the "independence"
of the Law Lords, I cannot see in what respect they do not fulfill
the criteria detailed in Findlay v United Kingdom.
Any doubt would arguably have been eradicated by the decision
of the Law Lords conveyed in the House in June 2000 by Lord Bingham.
Sir William MacPherson was obviously right to state that "just
as justice needs to be `seen to be done', so fairness must be
`seen to be demonstrated'." His statement can only be adduced
in support of your case if you can show that the House of Lords
is neither seen to dispense justice nor seen to demonstrate fairness.
It would be interesting to know on what basis you are claiming
that the Law Lords are not seen to demonstrate fairness. I also
revert to my previous letter in asking what is the evidence for
claiming that the Law Lords are not perceived to be "independent,
impartial and fair"? Judicial assertions that they must be
seen to be independent, impartial and fair is not evidence that
the House of Lords is not perceived in those terms.
The assertion that the Law Lords need
to limit their participation in debates in the House in order
to avoid perceptions of bias is hardly a basis for saying that
it will be increasingly hard to meet the tests set out in Findlay.
What is the evidence for saying it will be increasingly hard?
And what is the evidence that the "general public" do
not make a distinction between the Law Lords as judges and the
Law Lords as members of the legislature? You say that the Government's
approach is one of principle. To proceed, you need to demonstrate
that the principle is not being met by the existing arrangements.
A plurality of Law Lords clearly believes that current arrangements
do meet the principle.
One might add that, if there was a perception that
the Law Lords were not independent, impartial and fair then—on
Lord Filkin's own argument—trust in the House of Lords as
the highest court would have faltered by now. The logic of the
Government's case rests on such trust faltering—not in the
future, but now. Lord Filkin believes there is a problem of trust
faltering in the future but rests his claim on existing—not
future—public perceptions. That position is simply not tenable.
In my most recent (and so far unanswered) letter
to Lord Filkin, I conclude:
In short, where is the evidence? Recounting
what is said by jurists, be it in reports or judicial proceedings,
serves merely to reinforce a principle that is not in dispute.
As I said in my letter, the Government's consultation paper embodies
no hard evidence. Neither, I fear, does your letter. I venture
to suggest that you need not only to produce evidence but to be
seen to do so.
There is a persuasive case to be made for existing
arrangements. The case for doing away with those arrangements
is based largely on supposition. Furthermore, part of the Government's
proposals for change may themselves fall foul of the very case
law they cite in their support. In Findlay, it was held that in
determining "independence", regard had to be had, inter
alia, to "the manner of appointment" of members.
Are the Government's proposals for the appointment of judges (Constitutional
reform: a new way of appointing judges, CP 10/03, July 2003,
p 9) demonstrably Findlay-proof? There would appear to be doubt
on the part of judges as to whether they are.
In short, what we are presently presented with is
no basis for undertaking significant constitutional change. The
onus is on those advocating change to make their case and they
have not done so.
Lord Norton of Louth
26 November 2003
1 See P Norton, "Governing Alone", Parliamentary
Affairs, September 2003 Back
2
The importance of co-operation was stressed in a debate in the
House of Lords earlier this year by both the Lord Chief Justice,
Lord Woolf, and Law Lord, Lord Hope of Craighead Back
3
Lord Filkin to Lord Norton of Louth, 26 September 2003 Back
4
Ibid Back
5
Lord Filkin to Lord Norton of Louth, 27 October 2003 Back
6
Ibid Back
|
