House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

CONSTITUTIOnAL AFFAIRS COMMITTEE

 

 

JUDICIAL APPOINTMENTS AND A SUPREME COURT

(cOURT OF FINAL APPEAL)

 

 

Thursday 27 November 2003

RT HON LORD LLOYD OF BERWICK DL and PROFESSOR LORD NORTON OF LOUTH

SIR THOMAS LEGG KCB QC, LORD LESTER OF HERNE HILL QC and

PROFESSOR IAN SCOTT

MR LEOLIN PRICE CBE QC and PROFESSOR ANTHONY JOLOWICZ QC

Evidence heard in Public Questions 204 - 277

 

 

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Oral Evidence

Taken before the Constitutional Affairs Committee

on Thursday 27 November 2003

Members present

Mr A J Beith, in the Chair

Peter Bottomley

Mr James Clappison

Ross Cranston

Mrs Ann Cryer

Mr Hilton Dawson

Mr Clive Soley

Keith Vaz

Dr Alan Whitehead

 

________________

 

Examination of Witnesses

 

Witnesses: RT HON LORD LLOYD OF BERWICK DL and PROFESSOR LORD NORTON OF LOUTH, examined.

Chairman: Good morning. Welcome Lord Lloyd and Lord Norton. May I apologise that I have to vacate the Chair to be involved in another Committee later this morning after this part of the evidence session is completed. Dr Alan Whitehead will take over the chair at that point and deal with the next group of witnesses, to whom I give my apologies in advance. Are there any interests that members feel it appropriate to declare at this stage?

Ross Cranston: I am a barrister and recorder.

Mr Clappison: I am a member of the Bar.

Mrs Cryer: I am a JP but I do not sit.

Q204 Chairman: A question to Lord Lloyd. When I was much younger and I took 'O' levels and studied the British constitution, it became apparent to me how important it was to separate powers, the powers of government, of the legislature and of the judiciary. I understand that you think it is important to separate the powers of the judiciary from the executive - you regard that as vital - but you do not regard it as essential that the judiciary should be separate from the legislature. I wondered why that should be.

Lord Lloyd of Berwick: That is, if I may say so, exactly my view. The reason is that we do not in this country have what is often referred to as a separation of powers. We know that exists and is the basis of the American constitution and, indeed, the French constitution, and derives from the French philosophers of the 18^th century, but in England we have never had separation of powers. We have had instead the rule of law. The rule of law is one whereby everybody is under the law, including the executive. Since it is the judges who have to decide whether ministers are breaking the law or exceeding their powers or whatever it may be, it is obviously vital that the judiciary and the executive should be separate and distinct. But there has never been a reason - no one that I can see - why the judges and the legislature should be distinct and separate. For example, if we were going to go the separation of powers route, we would have to start by removing the prime ministerial role from the House of Commons. There we have the executive and the legislature mixed up in one body in a way that could never have happened in the United States, but it has happened here and it has worked here. Whereas there has always been a tension between the judges and government, there has never ever been a tension - none of which I am aware - between the judges and the legislature. There is no reason why there should be.

Q205 Mrs Cryer: When I am in my advice surgeries, I frequently have constituents coming to see me who would love to interfere with the working of the courts because they feel they have been wrongly dealt with. My defence is the separation of powers. I always say that I, as an MP, cannot get involved in the working of the courts due to the fact that we have separation of powers. Do you think that is relevant?

Lord Lloyd of Berwick: I think it is still right so far as relates between the executive and the judges. For the reasons I have said, certainly it would be quite wrong for a member of the government to try to influence the decisions of judges.

Q206 Mrs Cryer: No, I am talking about myself as a member of the legislature, an MP.

Lord Lloyd of Berwick: Yourself as a member of the legislature too. But there is no reason that I can see for any, as I have put it, tension between the two. Yes, you could write to a judge, I am sure, saying you do not think much of some judgment - everybody is free to criticise our judgments. We know there are many judges sitting in the House of Commons, and recorders, and there are many judges also sitting in the House of Lords who are not judges but Law Lords.

Professor Lord Norton of Louth: I think there is a fundamental confusion here. There is a distinction between separation of roles and physical separation of bodies. The two are not to be conflated, as they appear to be in the argument that is being put forward. In the United States you do have a separation of powers, yet for most of its history the United States' Supreme Court was physically located in the Capitol Building, which did not flout(?) the separation of powers between branches of government. You have to separate out the argument of physical separation from separation of roles. By physically separating the Law Lords, you might actually compromise the integrity of their role, which I think is better protected by being within Parliament because I think there is a greater recognition of the role played by the Law Lords than there would be if they were physically separated and a very distinct body which would not be understandable by parliamentarians.

Q207 Is it not also because you have a separate principle of the independence of the judiciary?

Professor Lord Norton of Louth: Absolutely. That is the fundamental principle.

Q208 Ross Cranston: That is the core point I would pry out from your paper.

Professor Lord Norton of Louth: I am sorry I have only just presented it to you but I was appearing at very short notice. Essentially that is the point I tried to develop. I think that is fundamental to the present role of our highest court of appeal.

Lord Lloyd of Berwick: Could I come back on something? There is one exception in what I said to Ann Cryer, and that is that there is of course a rule that Parliament cannot discuss cases that are actually sub judice. No one would object to Parliament saying that some decision which arose in the past was wrong; there would be strong objection from Mr Speaker, however, if you started trying to influence the decision of the Law Lords while they were making a decision.

Q209 Ross Cranston: Again that comes out of the notion of impartiality in respect of the different institutions rather than the separation of powers argument.

Lord Lloyd of Berwick: Absolutely.

Q210 Chairman: Could I take you back to the judiciary argument. You argue when you fill it out in more detail that the judiciary has to be separate from the executive because in some ways it stands between the executive and the citizen.

Lord Lloyd of Berwick: Yes.

Q211 Ross Cranston: Is it not also increasingly the case that the executive stands between the legislature and the citizen? - particularly, in the context of human rights legislation, with the possibility of the legislation being challenged. If you take something like the Hunting Bill, for example, if it passed into law it might be the subject of challenge where aggrieved citizens believed the legislature had gone beyond its proper powers and offended against human rights legislation. For that reason separation is surely increasingly becoming relevant, between the legislature and the judiciary.

Lord Lloyd of Berwick: I think that is the reason it is put forward, but it is not something to which I, I am afraid, pay very little significance. Because all the judges can do, all the House of Lords as a judicial body can do, is to say that an Act of Parliament is inconsistent with another Act of Parliament. Parliament, when it passed the Human Rights Act, made it as clear as it could possibly do that Parliament remains supreme. If Parliament chooses to pass an act which is inconsistent with the Human Rights Act, it can do so. All the judges are doing in any case is saying what a particular Act of Parliament means. They, as it were, take a new act and say, "We think this is inconsistent with the human rights which were enshrined in the Human Rights Act." All we can do is say that. We cannot do any more. We cannot strike down the legislation as can be done in the United States. Our part in that sense is a very small one - and not even a political one. We are simply construing the two Acts of Parliament.

Q212 Mrs Cryer: If you believe the separation of powers between the judiciary and the executive is "absolutely vital" -----

Lord Lloyd of Berwick: Absolutely.

Q213 Mrs Cryer: -- why do you argue there should no change in the existing judicial appointments system?

Lord Lloyd of Berwick: We are now on to who appoints the judges. Inevitably, as I understand the argument, that is going to involve the government in some way or another, because it is subject to "the Queen only acts on the advice of ministers". The duality, if I may put it in that way, of the position of the Lord Chancellor is that he is both a minister and a judge. He has, in a sense, a foot in both camps, so he is in a much better position to give advice to Her Majesty on the appointment of judges than any other minister of the Crown. We have to find some way of appointing the judges, it seems to me. It seems to me there is no better way than the position of the Lord Chancellor, who has, as I say, a foot in both camps. I do not see that as any sort of breach of the separation of powers because what he is doing is advising on the appointment of judges.

Q214 Mr Clappison: Could I just put one point to Lord Norton arising out of that. In your paper you speak very highly of our present system of government. Given the need for independence, are you satisfied that in our present system the judiciary is independent as it has grown up over the years?

Professor Lord Norton of Louth: Yes, I think it is. I think there is a recognition in Parliament of the independence of judges. As a member of the House of Lords I have become very conscious of the quality of integrity of the Law Lords. I think that does help to protect them, because there is a recognition of the role they perform. Therefore, I do see Parliament in a way serving to protect the role, and independence certainly making Parliament less likely to seek to limit the role of the courts by having a proper appreciation of what they do. On the side of the Law Lords, I think they have a very clear appreciation of their role within the system, and, as shown by Lord Bingham's announcement, in terms of their perception and capacity to adapt to make sure the fundamental criteria you expect of judges, in terms of impartiality and any perception of bias, are maintained.

Q215 Mr Clappison: When the Lord Chancellor appeared before the Committee on 30 June, he said he thought "the judiciary should be more diverse in relation to gender, ethnic mix and experience mix". Do you share his views on this point?

Lord Lloyd of Berwick: I would like, obviously, the judiciary to be as diverse as we can get it, but that must not interfere with the fundamental principle that we have got to choose the best man for the job. That is the most important thing. In fact there is a lot of misunderstanding as to how diverse the judiciary is. Of course, in the highest reaches of the judiciary we can all count the number of high court judges who are women judges in the Court of Appeal and the House of Lords, but at the lower end of the judiciary I saw some figures yesterday which showed that of the new appointments to deputy district judge, over 30% are women and 8 - 9% are from ethnic minorities - which is a percentage which is really quite high compared with, for example, the percentage of women in your House or our House.

Q216 Mr Clappison: You are saying that although diversity is desirable in itself, ability must be the main consideration.

Lord Lloyd of Berwick: Must be.

Professor Lord Norton of Louth: I would agree with that. If one is looking to seek to change, it is important to focus not on the top of the hierarchy but on how people work up through the system, on how long it takes to get there. In pinpointing the problem, I do not think it is with the appointment of the judiciary but with how people get into the judicial system in the first place, in terms of lawyers and then being promoted. I think one has to go back, because of the amount of time it takes to work through. If there is a perception of a problem, you have to look at the whole process and not simply at the senior appointments.

Q217 Dr Whitehead: You have suggested, Lord Lloyd, that if there is to be a rigid separation of powers, the best idea might be for the Lord Chief Justice to be given the ultimate responsibility for judicial appointments, with a "commission to carry out the sifting". It may be that the Lord Chief Justice takes the final decision. Baroness Kennedy has criticised that as a "potential for cloning". Do you think that is a valid criticism of the system you suggest?

Lord Lloyd of Berwick: If we are not going to have the Lord Chancellor making the appointments, we have to find some other way of doing it. If the system of the Lord Chancellor is abolished, there are very great difficulties which overweigh the appointment of the judiciary. First of all, you have to decide who is going to choose the people who are going to choose the judges. That in itself is difficult. I see the paper suggests that it should be a civil servant in the Department of Constitutional Affairs. I am not quite sure who. Who is going to choose the chairman of the body which is going to choose the judges? One gets into terrible problems. For example, the Supreme Court is going to have a mixture of the Appointments Commission for Scotland - because there are going to be Scottish judges on the Supreme Court - the Appointments Commission for Northern Ireland and the Appointments Commission for England, more and more appointments commissions, involving inevitably some kind of political bias. Somebody is going to have to decide. In the end, I am afraid, I do not like the idea of a layperson chairing the body that is going to choose the judges who are to serve in the House of Lords and Court of Appeal and as High Court judges. I am really concerned only with the higher judiciary and not the lower judiciary. My ideal model for an Appointments Commission, if we had to have one, is that it would be chaired by the Chief Justice; it would have probably one Law Lord; two more judges; possibly lawyers appointed or nominated by the Bar Council and the Law Society; and perhaps four laymen. Eleven in all I think would be adequate. But I do not think that would be better at achieving diversity or achieving the quality that we want than the present system. If we have to have another system, that would be my choice.

Q218 Dr Whitehead: Do you think that would be susceptible to the criticism that judges appoint judges in perpetuity?

Lord Lloyd of Berwick: At the top level, you almost are bound to think judges, in a sense, appoint judges. In fact, as members of the House of Lords, we read the judgments of the members of the Court of Appeal; we know who are the ones that are the best, frankly. We know the kind who are needed for the Supreme Court. That is the way it works at the moment. The Lord Chancellor takes the advice of the existing Law Lords. He takes the advice of the Lord Chief Justice, Heads of Divisions, but, in the end, at that level it is a profession, and you must really have people who are within profession who can judge who are the best at the job we do.

Q219 Dr Whitehead: Do you think that if the Government adopted your model, the Lord Chief Justice would then both chair the Commission and have the right to reject the nominations that the Commission had come up with - presumably, in perpetuity? How would that be monitored, do you think?

Lord Lloyd of Berwick: I think on my model, bearing in mind that the actual number of the appointments we are talking about are very few and far between, I would have the Chief Justice chairing the Commission, and I think that he would advise the Prime Minister and by convention the Prime Minister would accept their recommendation and so advise the Queen. That would square the circle, in so far as it can be squared.

Q220 Dr Whitehead: This would involve the executive in some way?

Lord Lloyd of Berwick: Yes, because of this convention by which the Queen acts on the advice of her ministers. That works very well with the Lord Chancellor because he is one of her ministers. If one is going to have the Lord Chief Justice chairing it, one has to feed in ... Currently the higher judges are recommended by the Prime Minister and I would recommend that that should continue.

Q221 Dr Whitehead: Do you think that model, following the abolition of the role of Lord Chancellor, is one which would protect the judiciary from undue executive interference?

Lord Lloyd of Berwick: Not as well as the Lord Chancellor does. That is the duty of the Lord Chancellor. Because he is in the Cabinet, he is able to exercise that unique function of protecting the judiciary from political interference.

Q222 Dr Whitehead: Lord Norton, do you think that model is the sort of model that you would advocate according to your views?

Professor Lord Norton of Louth: I would make two points. First, in terms of the present arrangements, I think they resemble Winston Churchill's vision of democracy: "Not particularly good, but the others are far worse." Once one gets away, one starts to see the nature of the problem. I am not sure what the solution is. As Lord Lloyd has said, you are dealing with a profession, so Mr Chairman, Dr Whitehead, if one was appointing to the chair, would you appoint academics or laypeople to decide who should be appointed? You do have that shift on it, but at the same time there is the point about the legitimacy of the process, so it is not seen to be simply judges appointing judges. I think that relates to my earlier point about the nature of the profession itself. It is getting the balance right, so that the professional judgment has come from judges but there is some involvement, some authorisation, if you like, by those outside the judiciary. The key question is getting that balance right. As Lord Lloyd was indicating, so far one has achieved some elements of balance within the existing arrangement. That may not have been planned but that has been the effect. How, therefore, do you substitute the present arrangements with that type of balance? I think getting that balance right is the key issue. It is extraordinarily difficult. I do not have the solution to it. It is merely a case of identifying the problem.

Q223 Mr Clappison: Could I ask Lord Lloyd to take us a little further on what he has said about the two models for the Judicial Appointments Commission. Looking at the alternative model to yours, what reservations would you have in a set-up such as that?

Lord Lloyd of Berwick: At the higher level, I do emphasise, I am talking about a high court judge and then judges, who, once appointed, are irremoveable - because they are doing the very special job, there is no doubt about that. Because they stand between the individual and the executive, they do have to be very good at their jobs. In other words, they have to know about administrative law. They have to know about the matters to which Lord Norton has been referring. A layman coming in from outside would probably have very great difficulty in actually understanding some of the cases which we have to deal with. They are quite difficult, on quite technical questions of administrative law. Yes, it would take a long time for a lay chairman really to understand - just as it would take a long time for me to learn the arts of medicine or whatever it might be.

Q224 Ross Cranston: I do not want to miss this point about the role the Lord Chancellor has about protecting the judiciary at the present time. I going to ask Lord Norton about the converse, because in your paper, which unfortunately we just got this morning, you argue that the more exposed the judges are the more they are not going to protect themselves. From the point of view of political agendas, are you suggesting that this might lead to greater politicisation? - because that was the point put to us by Professor R Stevens.

Professor Lord Norton of Louth: I think perhaps paradoxically that could be a consequence. As I put in the paper, the present system is based on mutual respect and understanding, with the different parts understanding the role of the other and therefore deferring to it. If you separate them out in the way that is proposed, you start to lose that understanding, that respect, because there is no contact - which I think is extremely important. They become detached, divorced from the process and see themselves having a role which could be rather highly specialised. My particular fear, which I think is clear from the paper, is that might invite a degree of conflict between the courts and the other parts of the political system. That will become more pronounced the more you appoint people to the highest court who do not have any experience of the parliamentary process, who will therefore see they have a particular role and be willing, if you like, to take on Parliament. Conversely, the executive and Parliament being detached from the courts, seeing their role, if you like, to take on the courts. There is a problem at the moment in terms of relationships between ministers and the judiciary. My fear is that separating them out further will actually exacerbate that process and not actually be a solution to it.

Q225 Ross Cranston: Certainly in the United States, over the last 30 years, that clash has now led to a complete politicisation of the judiciary.

Professor Lord Norton of Louth: I think this would all be part of process which we need to be wary of because, as I mentioned in the paper and has already been touched upon, the courts are requiring a greater role. There is a much greater judicialisation of our constitution because of membership of the European Union, because of the Human Rights Act, because of devolution. Therefore, the courts are called upon to make decisions which affect public policy - as happens in the United States - then a number of political issues are resolved by judicial means; therefore, politicians become far more interested in who actually serves on the courts; therefore, one has to look very carefully at the appointments process as well as the location of the court both physically and in terms of its role in relation to the parts of the political system. I think what has happened requires much greater sensitivity to that. My argument, therefore, is that it is very important there is an appreciation of the role of the courts in trying to maintain the existing mutual respect and understanding.

Q226 Chairman: I take it that you would both, from what you say, be unhappy with the idea of parliamentary confirmation hearings at which candidates for high judicial office were effectively being measured by MPs as to where they fell on some spectrum of view about the powers of the executive and rights of the citizen.

Professor Lord Norton of Louth: I would in relation to the judiciary. I can see there is a separate argument about the possibility of other public posts, but in terms of the judiciary I would see that as separate from the wider argument of the parliamentary involvement in confirmation of nomination. Just following Mr Cranston's point, I would cite American experience in demonstrating some of the problems attached to that. I do not think Parliament should figure (as, if you like, my response to Dr Whitehead) in terms of forming part of the balance in the appointments process.

Q227 Chairman: May I turn to Lord Lloyd's views on the Supreme Court itself or the Court of Final Appeal - the Government seems to have prejudged what it should be called without much reference to existing names of future functions. Would I be right in assuming that your objection is not really an objection of principle to the creation of a final court of appeal which is outside the legislature but more "It ain't broke, so we don't need to fix it". You argue that the present system works very well and you argue that the facilities available in the House of Lords are in fact adequate for the purpose, despite what some people say. Is the nature of your objection much more the latter than the former?

Lord Lloyd of Berwick: I think my view is that we have a Supreme Court in all but name at the moment. Everybody accepts that the Law Lords are completely independent of politics. . It is sometimes argued, "They may not appear to be independent of the House of Lords as a legislative body to people out there, the ordinary people," to which my answer now is: "If that ever was the case" - which I very much doubt - "it clearly is not the case now." There cannot be anybody in the country that has not heard of the Hutton Inquiry; there cannot be anybody who does not know that Lord Hutton is a Law Lord; and there cannot be anybody who would imagine that his report is going to be "politically motivated" (which are the words used in the Supreme Court paper. If his judgment is not going to be politically motivated in a case of that nature, why should his judgments in the House of Lords be thought to be politically motivated? The argument is really the other way. I at the moment can see no possible advantage of moving the Law Lords out from the House of Lords to some great new building somewhere. They cannot find a building at the moment. There was a suggestion that they might have to build one especially for us - which is an absurd, because heaven knows what that would cost. The latest rumour - I do not know whether one can say this - is that we are actually going to stay in the House of Lords itself - and I talk about we but of course I am no longer a Law Lord - because nowhere else can be found. Of course this brand new body of Supreme Court judges would not be peers, so they would not be able to vote or speak in the House, but they would have to be there because there appears to be nowhere else for them. It is an absurdity.

Q228 Chairman: They might have a dining room, perhaps!

Lord Lloyd of Berwick: I mean, the cost of setting up a brand new Supreme Court is out of all proportion to the sort of non-existent benefit which is purely a theoretical one.

Q229 Chairman: Do you see any practical difficulty in the assimilation of the Judicial Committee of the Privy Council's devolution responsibilities into this new court?

Lord Lloyd of Berwick: There is another thing. There is this grand idea of setting up a new Supreme Court for the United Kingdom; the jurisdiction is going to be exactly the same as the existing jurisdiction of the House of Lords. So far as the Privy Council is concerned, that will have to continue to exist until the Privy Council appeals cease to come from the Caribbean, and there are still a few from New Zealand in the pipeline, as you know. They are not going to want their appeals to come to some other body, so I think everybody accepts the Privy Council will have to continue in the short term. Devolution appeals? Well, they could always actually have come to the House of Lords in the first place but it was thought better for some reason - I think because you could get more Scottish privy counsellors, if necessary, sitting in the Privy Council than sit in the House of Lords. But I have no worry about devolution issues coming to the new Supreme Court. Again, I see no actual advantage over ... It is the same people. It only depends whether we sit in Downing Street or whether we sit in committee room number 1 in the House of Lords.

Q230 Chairman: Do you have anything to add, Lord Norton?

Professor Lord Norton of Louth: Only on the practical point that there would be a cost of shifting it. I do not think that is the fundamental issue. The main one is in terms of what the system delivers. If there is a change, there would be a significant cost. Since the case has not been made for change, I do not see why that cost should be incurred. I would say, in parenthesis, that I can take the moral high ground because if the Law Lords actually expand in the House of Lords my office is one of the ones under threat. So, on that I cannot see that there is a case in practical terms. On the Judicial Committee, I would just make a general observation, which also fits in with the point I made in my paper about separating out the Law Lords. To what extent have we actually checked with anybody, those who are actively affected by the process, that they want these changes or perceive that there is a need for them? So much of the argument seems to be going on the basis of: this should be done and assuming that the people affected want it done.

Q231 Chairman: Who do you mean by "the people affected"?

Professor Lord Norton of Louth: In terms of the Judicial Committee, those overseas bodies that are affected by them. Do we know whether they have an opinion or not? Would they actually like it to be subsumed within the role of the House of Lords in its judicial capacity? It is a general point I make as well in the paper, that one is proceeding on the basis of perceptions of what others think or what others mis-perceive to be the role, and we really have no empirical evidence presented to us for any of the claims that are made.

Chairman: Lord Lloyd, Lord Norton, thank you very much indeed. We will see what our other witnesses can bring is by way of evidence later this morning. Thank you very much.

 

In the absence of the Chairman, Dr Alan Whitehead was called to the Chair

 

Examination of Witnesses

 

Witnesses: Lord Lester of Herne Hill QC, Sir Thomas Legg KCB QC and Professor I R Scott, examined.

Q232 Dr Whitehead: Good morning, Professor Scott, Lord Lester and Sir Thomas Legg. Welcome. I believe, Professor Scott, you have a few brief remarks you wish to address to the Committee.

Professor Scott: Only if it is my turn, Chairman. There are more senior people here than I.

Ross Cranston: We do have Professor Scott's paper.

Q233 Dr Whitehead: Do you want to want to say anything to your paper, Professor Scott?

Professor Scott: I was very concerned that my paper would not make any sense, Chairman, having prepared it rather quickly. The main point I wish to make is that it, in a sense, complements the paper I submitted to the Department, which I think you and the members of the Committee may have seen and which seems to have struck a chord and accounts for the fact that I am here. I was anxious that the two papers be seen as complementing one another rather than being in isolation. Put briefly, my paper to this Committee explains the various systems of court administration known to me, classified in various ways, and urges that we could construct for the new Supreme Court a system of judicial administration which is more judiciary based and executive based, which would have an awful lot of advantages. That is really all I would wish to say, Chairman.

Dr Whitehead: Thank you very much.

Q234 Mr Dawson: I suppose this is a question to Sir Tom Legg. What do you see as the prime functions of the Supreme Court?

Sir Thomas Legg: I see them as very similar to the functions of the present court. With respect to Lord Lloyd, I personally do think it matters that those functions should be seen to be exercised by a court which is separate from the legislature and I personally would welcome, therefore, the Government's proposal, which I think it amounts to, to create a new Supreme Court. One may say it is a matter of perception rather than substance because the jurisdiction will be very similar, but this is an area where I think perception matters.

Q235 Mr Dawson: Do you think the upper House would lose anything if the Law Lords ceased to be members?

Sir Thomas Legg: Yes, it would lose something: It would lose the participation of very senior, in many cases very wise, judges. In the scale of things, I personally think that is a loss which can be accepted because there are other senior lawyers in the House of Lords who will provide much the same contribution.

Q236 Mr Dawson: Can we just look at, therefore, why you think it is so inappropriate for the judges to be part of the legislature. If this is purely a matter of perception, is that such a huge problem? We have not heard any indication that this has presented a real practical problem.

Sir Thomas Legg: As you will know, some of the Law Lords themselves disagree about this. Some think that it does matter and some that it does not. Of course one has to look at this in the historical perspective. The Government is proposing now really unfinished business from the 19^th century, where the Victorian reformers fully intended to remove the courts from the House of Lords. Only at the last minute Disraeli's government decided to keep the jurisdiction of the House and a sort of compromise was constructed in which we had a separate court within the House. I personally think that it does matter. I have heard it said this morning that there cannot be anybody who thinks that the judges in the House of Lords are not separate from it. I have come across numbers of people who think that both in this country - perhaps not so many in this country - but certainly abroad. I have not conducted any surveys but I think it is confusing for our citizens. I believe - though this is more speculative - that it may affect the attitudes of the people concerned. Of course it is true, as other witnesses have pointed out, that we do not have the separation of powers in this country; indeed, our constitution is in many ways founded on a denial of the separation of powers. But there is one power which really does matter a great deal, as others have said to you, and that is the separation of the judicial branch from the legislative and the executive. I belong to the school of thought that every reasonable step should be taken to make that separation clear.

Q237 Mr Dawson: On the other hand, I gather that you argue there is still a case for retired judges to be appointed to the House.

Sir Thomas Legg: I only argue it very faintly. Personally, I would like to see the logic of the Government's proposals on that carried through pretty integrally If the time has come to abolish the post of Lord Chancellor, then I think myself that the time has come to abolish certainly the involvement of serving judges in any part of the legislature. My advice to you and to any government would be not to rule out altogether the possibility of appointing retired judges to the House of Lords, but personally I think it should be done very sparingly. I do not think myself that there should be any presumption that retired judges, even of the Supreme Court, should become peers.

Q238 Mr Dawson: Would there not be a logic in saying that retired judges should not at all come into the House on the basis, as you say, of ensuring that the two branches are seen to be kept firmly apart.

Sir Thomas Legg: Once they are retired, of course, they are just citizens like anybody else, so I do not think one needs to feel that there is a clear and strong principle preventing them from being in the House of Lords. I think there is an element of judgment which would go into it on the lines you have said.

Mr Dawson: Thank you very much.

Q239 Ross Cranston: I wanted to bring Lord Lester in. Mr Dawson asked Sir Tom about what the House would lose. May I ask the converse question: What would be the difficulties with a separate Supreme Court? In your fascinating lecture, where you distil the wisdom of 30 years in the field of human rights, you give the example of the Daily Mail attack on Mr Justice Conlans. But, when you expose the judges more, in a separate Supreme Court, are you not going to get more and more cases of that sort of press campaign against particular judges because of particular decisions and against the institution of the Supreme Court as a whole, as an institution?

Lord Lester of Herne Hill: I wonder whether, before I answer that question, I could just say one or two preliminary things. The first thing I would like to say is that I am a slightly odd character, like the Lord Chancellor, in that I have been in the legislature and the executive and the judiciary and at the Bar for 40 years, so I wear four hats in the way that Lord Falconer or Lord Irving of Laird have done. Secondly, I would like to say that I have always been struck by the fact that my colleagues at the Bar and some on the bench are the worst possible advocates for their own position. This has always been true. When Lord McKay was Lord Chancellor I found the posture adopted by my colleagues at the Bar to be absurd. I am afraid that I still find that some of my colleagues are like that. The third thing I would like to say - and then I will answer the question - is that when I came to the Bar 40 years ago we were utterly sure that we had the best possible system in the world; we were quite sure that you had to have a male voice box in order to be able to be a good advocate and that women had no place at the Bar; and we were quite sure that there was no other country with as good a system as ours. And we were entirely wrong. Forty years later, I have watched an improvement beyond all imagination in my own chambers from being what it was then to now. I say all of that because the arguments now about how perfect the system is and how nothing really should change remind me exactly of that kind of complacency. I can explain that at some point if anyone is interested. The final thing I would say is that the paper I have put in is actually enriched by the fact that my two legal officers, Kate Taylor and Amelia Tchapinska both work as judicial assistants respectively to Lord Steyn and Lord Slim, so they actually have practical experience of the ludicrous working conditions of Law Lords inside the building of the Palace of Westminster and why, from the point of view of just basic practicalities for the public and those who work with them, the situation must change.

Q240 Ross Cranston: I hope none of that was directed at me.

Lord Lester of Herne Hill: Not at all.

Q241 Ross Cranston: I am simply trying to spell out some of the consequences of some of the changes.

Lord Lester of Herne Hill: Of course, it was not at all directed at you. I thought it important, though, that you know what you are getting before you ask me a question and I just tried to explain that. I think the answer to Mr Cranston's question is that I do not see the slightest reason why having a properly resourced, strong, independent Supreme Court of the United Kingdom in a proper building, with proper systems, with proper facilities for the public, but with all its existing constitutional roles, should expose it to more virulent press attacks or attacks from populist ministers. It does not seem to me that it makes the slightest difference. The judiciary are always going to have to resist those kinds of attacks. They will have a Chief Justice or a President of the Supreme Court of the United Kingdom, who will have enormous authority and it is that person to whom I would look rather than any minister to defend the judiciary from that kind of attack - although of course ministers must also have that important role.

Q242 Mr Soley: Could I turn to this question of the functions of the Supreme Court, because I think, Sir Tom, you made it clear that they should stay as they are. One of my interests in this Inquiry is increasingly the direction of change. Because so much is changing in our constitution and in other respects, it is hard to see the ultimate picture and I agree that change has to happen, and quite dramatic change. But what I cannot quite work out in my head, with the growth of European law and also with the Human Rights legislation, is how much this new Supreme Court would be called on to make increasingly political decisions. If I could perhaps give an example which has been in my mind for a couple of weeks now. If, for example, someone challenged in a lower court the failure of the Government to hold a referendum on the proposed EU constitution and if that was thrown out, could that then be decided by the Supreme Court?

Lord Lester of Herne Hill: Could I have the first stab at answering the question? I think there is a mistaken view that because judges decide difficult questions involving legal public policy and have to make constitutional choices in human rights or European areas, often with social and political consequences, that those are political decisions. I do not think they are political decisions. They are constitutional judges performing a judicial role. In the lecture the other night, which Mr Cranston was kind enough to refer to, I was trying to explain how, for example, with the Human Rights Act, even though Parliament had paid the judiciary an enormous compliment in making them the first guardians of the rights and freedoms, the judges have been extremely careful not to usurp the legislative or executive roles, in my judgment, and they are well aware of the need to avoid judges being politicians. I cannot think of any case - I really cannot - in the last three years since the Human Rights Act came into force, in which one could say that the judges forgot that they were judges, unelected, and had become politicians. I know that the tabloids and some grumpy ministers often attack them in that way but I do not think it is justified.

Q243 Mr Soley: I understand, if you like, your desire to focus on the issue of you not being political - I understand and accept that - but I am still unsure as to where this process takes us, because it does seem to me that someone could challenge the failure of the Government to hold a referendum and then you would have to decide it in the Supreme Court. Is that just wrong?

Lord Lester of Herne Hill: I had not realised that you were focusing on that particular example.

Q244 Mr Soley: I use it as an example.

Lord Lester of Herne Hill: To take that example, it would be hard to imagine how anyone could formulate that as a proper legal issue, the failure to hold a referendum, because it would be hard to imagine exactly where any legal principle was that would require that to happen. But, for example, when a challenge was made to the failure by the Foreign and Commonwealth Office to protest vigorously enough about the British detainees in Camp X-Ray, Guantanamo Bay, the court decided that that was a political question and not a legal a question. So they do recognise quite properly and rather conservatively that there are issues which are not fit for judges to decide at all. I would have thought the issue as to whether there should be a referendum is a classic example not of a legal question but of a political question.

Q245 Mr Soley: Do you agree with that?

Sir Thomas Legg: I do. I think the thing one needs to hang onto in this, as the former witnesses were saying - and I think I saw that you had a similar conversation with Lady Hale the other day - is that the courts, including the Supreme Court, can only exercise any jurisdiction which Parliament gives them. There is no suggestion of which I am aware that we should depart from that fundamental principle. Parliament has of course in recent years, as other witnesses have mentioned, made portentous grants of further jurisdiction to the courts which have brought in a range of issues, which, as certainly Lord Lester has said, involve issues which hitherto we would have regarded as fairly political for the courts to deal with but they remain a jurisdiction of law which Parliament has granted. I personally, like your other witnesses, am not aware of any ground on which the sort of challenge you are making could be made and it would only be if Parliament decides that they should have that jurisdiction that they would be able to exercise it.

Dr Whitehead: Perhaps we might turn to the question of the administrations of the court.

Q246 Ross Cranston: I want to ask Professor about his argument for a separate corporate entity, as it were, to run the Supreme Court. We had this debate many years ago. If you could talk us through it and, in particular, tell us whether it is an argument based on constitutional principle in a very broad sense or just a pragmatic argument that this is going to get more resources into the courts?

Professor Scott: As you say, you and I had these discussions interminably many, many years ago. The point is that if you look at the proposal in the consultation paper about the administration of the new court, it does not seem to me to be satisfactory because if you are going to be serious about having a Supreme Court which is independent, it pays to do everything you can, consistent with good government to make it safe. My argument simply is that one way of making it so would be to make it responsible for its own administration. As I say in my paper - and I suspect you may have read it, because you are a reader - this is not accomplished entirely in one bound by arguments based on constitutional principle. You can argue forever on the basis of the concepts of separation of powers, rule of law and judicial independence and still not come to any conclusion as to how the court should be funded or administered. It is really a matter of good government, and good government is a matter of sustaining, sometimes just by image as much as by rules, independence of the court. I think that is where the argument has moved on from the years when you and I first encountered it. In those days it was assumed that there was a solution to this problem which could somehow necessarily come out of clear analysis of concepts of rule of law, judicial independence and separation of powers. We have now moved on to say, "That does not get you there; what does get you there is thinking through those concepts and saying at the end of the day, 'What will work best?'" I am now quite convinced that what will work best would be allowing the Supreme Court to administer its own affairs along the lines that the Supreme Court in Canada is permitted, the Supreme Court of the United States, and the High Court of Australia - and, perhaps better, the Australian federal model, the Federal Court and the Family Court in Australia, which is the one that I know best, for reasons which I think you all know.

Q247 Ross Cranston: Could I ask the follow-up question: If the Supreme Court, why not the other courts?

Professor Scott: I would say, "Why not all courts?" - but then I have had a long history of disagreeing with people like Sir Tom Legg on this matter. My feeling is that if there is one court in the land which needs this kind of independence or needs us to go with this independence, it would be the highest court in the system. The trouble with this country is that we have a monolithic attitude towards models of court administration based on the Beeching model developed in the 1960s. There are two things to say about that. First of all, it was a model designed to administer trial courts dealing with high volume cases, not the small, ultimate Court of Appeal. Secondly, it was designed pretty much by the best-known businessman of the day, Lord Beeching. Today, if you focused the equivalent of Lord Beeching on court administration, he would not come up with the solutions which Lord Beeching came up with in the 1960s. Organisation of managing thinking has moved on too.

Lord Lester of Herne Hill: I have not read Professor Scott's paper, but I would just like to say that not only do I agree with what he is saying but I thought Lord Browne-Wilkinson put it very well years ago in his famous and very controversial lecture on the independence of the judiciary, when he made points about the problems of encroachment by Sir Thomas Legg's officials into the administration of justice. Having been attached to the third circuit court of appeals in the United States and gone to their annual judicial conference and seen how they managed themselves, I am bound to say that not only the Supreme Court but the other federal courts manage very well indeed budgets that have been allocated to them with their own staff. As a serving judge, sitting both as a deputy High Court judge and as a recorder for 10 years, I found, for reasons we do not have time to go into, that it would have been much more satisfactory if court resources and staff had been under the supervision of a judicial chief executive who could have allocated them properly .... perhaps "properly" is the wrong way of putting it. Differently.

Q248 Ross Cranston: I think Sir Thomas Legg should have a right of reply at some point.

Lord Lester of Herne Hill: Yes.

Q249 Mr Clappison: On Lord Beeching, I have to say that as a railway user I do not regard him with the same amount of affection which you apparently do, even though he was appointed by a previous Conservative government. I do not think his reforms were that longsighted either. Could I ask you, in the light of what we have heard about the expense of setting up this Supreme Court, given that there does not seem to be a great public clamour for it, nor, indeed, a clamour amongst the Law Lords themselves - most of them seem to be opposed to it, as we have been told - how do you justify the expense of setting up this Supreme Court to achieve the improvement in the image and independence which you have talked about?

Professor Scott: I cannot answer the question. My starting point is that if you want to have an independent supreme court this is the way to administer it. I have no concluded view at all on whether you should have an independent supreme court or not. I presume that at the moment there is not the wherewithal for providing the resource and the House of Lords in its judicial capacity is costing money, and presumably having an independent supreme court is going to cost more. You are asking me an impossible question. Either you want to have an independent supreme court or you do not. If you are going to have an independent supreme court it is going to cost money. All change costs.

Lord Lester of Herne Hill: Could I advise Mr Clappison? First of all, I do not think there is much value in counting Law Lords' heads to see how many are in favour and how many are against at the moment. I can tell you on the basis of conversations with the two who are counted as being in the so-called majority that one of them told me he was not in the majority at all and the other told me that if the policy is that there should be a supreme court then there are very sensible reasons for it. Also, of course, the composition of the Law Lords is changing right now and if you counted heads in January you would probably come to a different outcome. The real point is that there are very pressing practical reasons for having an independent supreme court. Many of them are to do with resources. If you go in the judges' corridor or you go and watch what happens in the Appellate Committee, or you go and argue, as I do, in front of them, you will see that the whole system is ludicrous. The public do not have facilities, the back-up for the Law Lords is very weak, the judicial assistants do not have proper rooms and so on. The other thing is that if you open the windows and look at the rest of the world they would be quite astonished by the idea that you have a supreme court trapped in a bit of the legislative building without adequate facilities and mixed up with the legislative process. My colleague, Professor Geoffrey Jowell, who sits on the Venice Commission for Democracy, tells me of the astonishment in the new democracies of Europe when he tries to justify the present system. One of the arguments that has been put forward by some Law Lords for their continuing in the present circumstances is so that one of them can chair Sub-Committee E of the Select Committee of the European Union on which I have served for the last eight years under four successive Law Lords. They have done a marvellous job, but so could Lord Alexander or Lord Grabiner or Lord Brennan or Lord Goodhart or a lot of other distinguished and senior lawyers. The argument that they need to be there in order to service a sub-committee of the European Union Committee again seems to me to be entirely unconvincing. Let judges be judges and nothing else. Politicians should be politicians and not judges and judges should not sit in the legislature.

Q250 Mr Clappison: But they are not doing any harm, are they?

Lord Lester of Herne Hill: They are doing harm; of course they are doing harm. First of all, they are harming themselves. There have been cases that probably one does not want to go into where particular Law Lords have behaved unfortunately in a rather incautious way in their participation in the legislative process. The public reputation of the country outside for separation of powers is damaged and their ability to function efficiently as a supreme court is impaired by the lack of proper resources such as one finds in the High Court of Australia, the Court of Appeal in New Zealand, a little country with much better resources for their Court of Appeal in my judgment, or in Canada or in the United States or in the Netherlands or in any other workable democracy. Our supreme court facilities are very poor indeed and they are not compensated for by being members of the wonderful club called the House of Lords.

Dr Whitehead: Sir Thomas, it has been suggested that you might like to exercise a right of reply before we move on. Do you want to add anything on that?

Sir Tom Legg: Very briefly on that, Chairman, because there are so many other issues in play. There is a long-standing issue about how far the judges should be allowed to be in charge of the resources which are voted for the courts. Obviously, it is one which I have had to argue and think about over many years. My concern, like those of the other participants in this discussion, is for the independence of the judiciary. You have to balance at least two things here. One is, yes, the judges should certainly have a large say in how the courts are administered and how the resources are used. For my part, now that we are going to have a supreme court of the United Kingdom, hopefully quite separate from the legislature, the nearer we can go towards giving them something like a one-line budget the better. I am not against that at all. The balancing factor, which I think one always has to bear in mind, or at least which I see as something which has to be borne in mind, is that resources come from the House of Commons. It is they - you - who vote them to the judicial branch of government just as you do to every other branch of government. Historically, for good reasons, I think, the House of Commons has never been willing to vote significant resources to the stewardship of people that it cannot in the last resort dismiss. Judges cannot be dismissible by the legislature except for good grounds, which one hopes will have nothing to do with disagreements about the way resources are used. Therefore, for the protection of the judges and not for any other reason I have always thought that we ought to be very cautious about entrusting significant resources to the judges alone. I think they should be in the hands of a minister accountable to Parliament. That is what I see as the issue here.

Professor Scott: I will just add a little bit on that because Thomas has touched on a point raised in my paper. Various jurisdictions around the world which have allowed their ultimate courts of appeal to have a more judiciary based administration system than an executive based administration system have all dealt with the issue that Sir Thomas has just raised. They deal with it in a myriad of different ways. I have brought with me, but I am sure you would not want me to explain to you, the budget cycle mechanism for the Family Court of Australia, all of its reporting and the budgets prepared by the court with the assistance of the Department of Finance. There is no mediating minister. It goes straight to the Treasury. There are public hearings. The Chief Justice himself reports. They are responsible for the money. All kinds of little mechanisms are put in place to try and get the legislature to live with that anxiety that Sir Thomas has highlighted. It works and it means that the staff do not have the divided loyalties that they have under our system. They work through the court by being at budget hearings where the Chief Justice and his Chief Budget Officer, who works with the Chief, sit shoulder to shoulder discussing things with chairmen of select committees and senate committees responsible for appropriations. It is all very public. If the court does not get the money that it wants the legislature gives a reasoned response and the public will know whether or not the legislature and the executive are discharging their duty to support the independent court. That is the way that in all these little ways the accountability concerns can be assuaged. It is quite sophisticated, it works, it gives the courts the independence they need and the independence that the legislature wants the courts to have because the legislature is forever enacting legislation for the courts to implement. An independent court enhances the legitimacy both of Parliament and of the executive.

Lord Lester of Herne Hill: I find it very hard as a parliamentarian under our opaque system to discover exactly what is happening in terms of funding of the court service. The so-called Modernisation of Courts Programme has had its budget slashed recently and I have put down question after question asking what are the negative effects of the cuts in the crucial expenditure needed to modernise the lower courts and I have not been able to receive any satisfactory answer at all. All that I get is the positive side of the modernisation programme. It does not seem to me desirable that one should have such an opaque system and I for my part would prefer something like the system that Professor Scott has been referring to. The other thing I would say, as someone who has sat as a judge, is that it is very difficult when you are sitting as a criminal judge or a recorder and you no longer have anyone, as you used to have, say, 15 or 20 years ago, in each criminal court to tell judges like me that we are about to make crass mistakes. When you find that the court staff are withdrawn for cost-cutting reasons the judges have no real say or control to try to redress that and that is one of the reasons why Lord Browne-Wilkinson in that marvellous lecture published in Public Law sounded a warning note that we could not go on with the tension that was developing, I suppose, 15-20 years ago and has got much worse since.

Professor Scott: Lord Browne-Wilkinson will not mind me saying that vast tracts of that lecture were written by me.

Lord Lester of Herne Hill: I did not know that.

Q251 Mrs Cryer: I wonder if you would all give us your views on methods of appointment to the judiciary, especially to the supreme court? Can I also ask Sir Thomas Legg why should the Secretary of State be free to reject a list of more than one candidate? Is the existence of more than one candidate for a post not sufficient safeguard of quality?

Sir Tom Legg: To answer that I have to go back a stage or two to explain that, at least in my own view, the appointment of judges, and particularly of senior judges, is a political act in the broadest sense of the term, and I think myself that at least one other branch of the three branches of government should be involved. I do not think it is an accident that nearly every other English-speaking country locates the power of judicial appointment primarily in the executive. I believe that the judges should play an important part in the appointment of judges but it should not be a predominant part because if it were that would mean that the judges became a self-selecting corporation and none of the branches of government should be that. I personally believe that the power of appointment should be primarily located in an accountable minister. Of course, how that minister is advised is a different question. I personally accept that the time has come almost certainly to create a Judicial Appointments Commission. Indeed, if the office of Lord Chancellor is to be abolished, I am sure there should be a Judicial Appointments Commission. It is very important what the rules of engagement are between the commission and the minister, but I believe that judges should be recommended to the Queen for appointment by an accountable minister who exercises a real choice and therefore has real accountability. I do not myself see how putting a single candidate to the minister gives him or her a sufficient choice. I know you have a choice, yes or no, will you accept that one candidate, and it is a matter of judgment but in mine I think that the minister ought to have a choice between at least two candidates. That is how I would arrive at that point.

Q252 Mrs Cryer: Can I ask you all two questions? In what circumstances should a minister be able to exercise a power of veto and would he always be expected to give reasons for rejecting a candidate? Also, if a minister were able to veto either a list or a candidate, would he not be open to charges of political motivation?

Lord Lester of Herne Hill: I wonder if I could add to what Sir Thomas said. What we are trying to do when we ask and answer these questions is to find ways of strengthening the independence of the judges, making sure that the quality of the judiciary is, if anything, improved but certainly not diminished, making the appointment legitimate in a broad political sense so that the public have confidence in it, and keeping political interference in a bad sense to the minimum. It seems to me that in doing that it is very important that the appointing commissions should be broad based because one way of making wise decisions is to have not only judges but other wise people, like the first Civil Service Commissioner, Baroness Prashar, to take my classic example, with them. Experience of mixed commissions in other countries, like the Netherlands, or in Scotland of the Scottish one, is that judges get on perfectly well with senior lay people and they work well together and they produce, I think, wise decisions. By having a strong lay element you avoid the problem of Parliament or the House of Commons having oppressive approval hearings of the United States Senate kind. One of the reasons why that is very important is that you want good people to apply to be judges and if they are going to be threatened with coercive questioning by parliamentarians, for example, they are not going to be very keen to apply. I very much support the idea of the judges not having a monopoly of appointment and certainly I do not like the idea of the Bar and the Law Society having nominees rather than Nolan appointees. I think everyone on these commissions should be selected on their individual merits and not otherwise. I also think that when one comes to the question that Sir Thomas was dealing with, how much discretion for the minister, providing you have got a broad-based commission the discretion should be kept to the bare minimum, but I do not agree with the extreme views of some who say that the minister should not come into it at all but that the commission should simply nominate and it goes straight to the sovereign and that is that. That does not seem to me to give legitimacy in a political sense. You need at least a symbolic role for the Prime Minister or whoever else. In terms of the choice I think it should be very narrow. The commission should recommend one candidate. If the minister does not like that candidate then he or she should give their private reasons for rejection and ask the commission to think again with another name. That should be the maximum discretion. The moment you put forward three names or two names you then get the danger of political interference which one wants to avoid.

Q253 Mrs Cryer: I wonder if all of you (if you want to) could comment on the role of Parliament. Do you see any role for Parliament in the process of appointing judges to the supreme court and would any political involvement in the selection of judges be in conflict with the need for judicial independence?

Lord Lester of Herne Hill: I think this Committee should be able to interrogate each of the Judicial Appointments Commissions subject to the devolution issues. I think that there should be an annual reporting mechanism to Parliament so that you as parliamentarians have oversight of the system as a whole and I think that there should be a minister who is himself responsible for not only promoting independence, as they all should be, but also justifying the system that has been set up and the way that it is operated, and I think that the chairs of those commissions should come to this committee to account in general terms for the way they carry out their work, including the criteria under which they operate and exactly how they go about their work. I do not think any individual appointment should be the subject of parliamentary scrutiny.

Sir Tom Legg: This is a point on which perhaps I am a bit more radical than Lord Lester. I agree with what he says about the accountability of the commission's department. I think that is right. Over the years, as Parliament has successively extended the jurisdiction of the courts into these very sensitive and important areas which you have been talking about before, I have come to believe that, at least at the highest level (and I am talking here about the new supreme court) Parliament should play a role in the confirmation of individual appointments. I am trying to choose my words carefully about that. I recognise of course that comparisons, for example, with the United States, must be handled very carefully. We are dealing with a very different constitutional and judicial culture. I have been very interested over the years to talk to US Supreme Court judges of very different backgrounds, but they have all had a similar view of this, at least the ones I have talked to, and that is that they did not like the confirmation process and did not particularly enjoy appearing before the Senate Judiciary Committee but, having done so and having been confirmed, they feel enormously strengthened in their office as justices of the US Supreme Court because they have been not just appointed by the President, the head of the executive, but also confirmed by the legislature. I think there is a real need here to reinforce the legitimacy of the judiciary. On balance, although of course there are drawbacks and disadvantages and risks, I think the risks are somewhat overstated. I think people have tended to concentrate, if you look at the US, on a couple of very notorious hearings over the last 25 years where things did not go well, and they tend to ignore the hundreds of hearings where things have gone right. I accept that there are problems in this but on balance, towards the really fundamental aim of building up the political and constitutional legitimacy of our highest courts, I would like to see Parliament involved, as I say, in confirming individual appointments.

Lord Lester of Herne Hill: I would argue for the contrary, that the reason why the Supreme Court of the United States is now so illegitimate in the eyes of so many citizens of the United States is precisely because of the highly politicised nature of appointments and the oppressive senatorial scrutiny which I think in many cases over the last ten or 15 years has worked extremely divisively and deterred good people from either applying for or being approved as senior judges. I think that to invite parliamentarians to quiz candidates essentially about their record and their political views --- may I give one good example of the problem, and I am sure I am not going to cause embarrassment by mentioning this? Sir Nicholas Bratza is the British judge on the European Court of Human Rights. There is no finer judge there. He was my opponent for many years. He represented the Conservative Government. I used to represent the individual. He was nominated under a transparent system here to be that British judge. Lord Irvine of Lairg behaved impeccably. When it got to the Parliamentary Assembly the British politicians, I am sorry to say, said that Bratza represented Thatcher; therefore they were not going to support him as the British judge, and he was only saved from not being elected by the members of the Parliamentary Assembly from other countries. That is a classic example, a very extreme one, of what can happen when you get political considerations coming into a judicial appointment. I very much hope that we do not go down that road at all.

Sir Tom Legg: If you will allow me a postscript on that, of course, this is a matter of judgment and different people can take different views. I was inevitably heavily involved in the appointment of Sir Nicholas Bratza. I was on the panel which recommended him to the ministers concerned for appointment, and I remember well the incidents to which Lord Lester referred and they were indeed lamentable. The parliamentarians behaved in my opinion very badly. On the other hand, if Sir Nicholas Bratza had had the opportunity to appear before them and explain the background I suspect that it might have all gone away very quickly.

Lord Lester of Herne Hill: He did have the opportunity. He came before a committee which gave him a 15-minute interview and that was it.

Dr Whitehead: I think we have a clear delineation of views here.

Q254 Mr Clappison: As somebody who shares the concerns of Lord Lester can I put to Sir Tom two concerns that I have about what he has proposed by way of confirmation hearings? First, is it unrealistic to expect parliamentarians to do other than have their own political axes to grind when it comes to those confirmation hearings and, secondly, is it not going to be damaging to the apparent independence and legitimacy of the candidate concerned if political issues become unravelled in the course of those hearings?

Sir Tom Legg: To take the two issues in reverse order, what I think we are talking about here is a balance of risk and advantage. Yes, there is some risk of those things happening, of Members of Parliament grinding political axes, and of the process being seen to become somewhat politicised. On the other hand, you are now dealing with a court at the highest level, whether it remains the House of Lords or whether it becomes a supreme court, which is dealing with jurisdictions which are of enormous political importance. We have travelled down the road over the last generation away from a world in which what courts did, though important to individual citizens, was typically of very little importance to the public interest in a wider sense. We have travelled at least some of the way down the road towards the American situation. We have not reached that point and we probably never will, but what the supreme court does is often now of very great public and political importance. It is a matter of judgment but my own judgment is that we have reached the point where the views and attitudes - and, I must add, the balance of composition - of our highest court have become a matter of wider public and political concern. Mostly, in the appointment of judges, you are really appointing professionals to do a professional job, and the analogy was made earlier with senior surgeons and that sort of thing, but at the highest levels it is not really quite like that any more and I think this needs to be recognised.

Q255 Mrs Cryer: I just wanted to mention, further to your comments on the unsatisfactory nature of the voting for judges to go on to the European Court of Human Rights, that I was a member of the Council of Europe for six years and I participated in one of these votes. I do agree, it is a bit chaotic, because now there are, I think, 52 countries and I believe each of the 52 has three judges and the Members of Parliament who are voting know very little about the calibre of those judges.

Lord Lester of Herne Hill: There is a very good report by INTERIGHT looking at this issue and there is a meeting in Brussels on 10 December about the other European courts where the judges on those two courts are desperately worried about what is now happening in terms of political interference. I simply mention that as a cautionary point. Poor old Lady Hale has been on the receiving end of so much vituperative and unfair prejudiced tabloid attention and personal attack. If she came before a committee like yours, even if you were all, as you would be, wise and impeccable and non-political in questioning her, can you imagine what the tabloids would do in advance in order to try to persuade you not to recommend that her name go forward? It is a horrific prospect. There are already a lot of very able barristers, for example, who have not accepted appointments to the High Court Bench, for all kinds of reasons, nothing to do with pay, I hasten to add, or not mainly to do with pay, and I am very worried that there will be a real problem of getting able practitioners, barristers, solicitors or whoever, applying for these jobs if they think they are going to be oppressed in the process. You have to have a private, rational, fair system which encourages them to apply and to give up their freedom as practitioners for the considerable restraints of having to be a judge for the rest of their lives.

Dr Whitehead: Can we now move on to the question of diversity and consultation?

Q256 Keith Vaz: Lord Lester, one of the reasons the Lord Chancellor suggested that the system should change was that he wanted a more diverse judiciary. Is this going to happen under the new system?

Lord Lester of Herne Hill: I think so. I have read the evidence given by my colleagues from the Bar Council, Matthias Kelly and Elizabeth Gloster QC. I am bound to say that I found their evidence, with great affection and respect, complacent.

Q257 Keith Vaz: You are not the only one.

Lord Lester of Herne Hill: I think there are still serious problems for women and ethnic minorities in particular in having access to really good chambers and law firms.

Q258 Keith Vaz: Tell us about your chambers. You head the chambers, do you not?

Lord Lester of Herne Hill: I do not head them. We have Presiley Baxendale and Charles Flint who co-head the chambers.

Q259 Keith Vaz: How many black and Asian people do you have in your chambers?

Lord Lester of Herne Hill: We have one Muslim, Shaheed Fatima, and we have one Sikh, Pushpinder Saini, out of 65.

Q260 Keith Vaz: That is not a very good record, is it?

Lord Lester of Herne Hill: We have 16 women, 49 men, four women QCs, 24 men QCs and a woman as our chambers practice manager.

Q261 Keith Vaz: As far as ethnic minorities are concerned, that is a pretty bad record, is it not, for a libertarian chambers like yours?

Lord Lester of Herne Hill: Obviously, we would like to be as diverse as we can. Our selection procedures in our chambers are more thorough than those of Oxford and Cambridge. You cannot imagine the efforts that are made. I quite agree that it would be excellent if we could increase our ethnic diversity.

Q262 Keith Vaz: One of the problems we have, do we not, is that we always come up against the merit principle? Can I say to Sir Tom that his paper Cambridge University is the first time I have seen the merit principle being discussed in a the way in which you have discussed it. You talk about the minimal merit system and the maximal merit system. You have been at the heart of these decision-making processes over the last 20 years. What is the problem? Are we just not getting these black and Asian people up to sufficient standard? Where are all these people of talent that we are talking about? Why do we not have black and Asian judges under the current system?

Lord Lester of Herne Hill: Before Tom answers, can I say one more thing? Mr Vaz is asking questions about ethnicity, but to get a complete picture may I also say, for example, that we have a disabled wheelchair tenant. The figures I have given may seem to you not as good as you would like but they are much better than those of any comparable set of chambers I know, and the feminisation of my chambers has been one of the great changes in the 40 years I have been there. It has come from leadership. The point I want to try to make is that it needs constant leadership from the top within an organisation and we had to hire somebody, a woman solicitor, to make quite sure that we would change the system and it is monitored all the time.

Q263 Keith Vaz: I accept that you are trying to do your best. Sir Tom, you have looked at all the files. You alone in this room have probably read more files of people going up for judicial appointment than anybody in history. Where are these black and Asian people under the system and how are we going to get them under the new system?

Sir Tom Legg: It is certainly true that I spend a lot of time reading people's files. I must add that I departed this particular scene five years ago and I cannot pretend to be entirely up to date. Where are the people is indeed the question we have asked ourselves a good deal. Up to now, broadly speaking, judges, and especially senior judges, have been appointed on the basis of two fundamental principles. One could argue about those principles; one could say the time has come to change them, but these have been the principles up to now. One is that we have appointed people who have established themselves as among the most eminent practising advocates of their day. There are a few individual exceptions to that but that has been the norm. Actually, although I have never seen it written down, that has been the number one provision in the job description. It has been supposed that that is the primary formation for a senior judge. Secondly, we have tried to appoint people (and it is not always easy to do) on the basis of what I have called (and you have referred to this) maximal merit, that is to say, there is only one candidate who is appointable and that is the best one who is available, if you can identify the person. Perhaps I should add a further principle, that is, that it is not the function of the judiciary to represent or reflect any particular group in the community. Against that background we have felt that it was right for us to encourage people to apply who we felt were not applying when they should, and that has particularly applied to women and members of the ethnic minorities. In recent years, as I am sure you know, considerable efforts have been made by my old firm to involve particularly the groups in the law who represent those particular lawyers and try to encourage them to apply. We have not felt that it was right to go further than that.

Q264 Keith Vaz: But is not the benefit of the system we have at the moment, with a political commitment from successive Lord Chancellors, from Lord Hailsham to Lord Falconer, that we want to see a more diverse judiciary? Is not the benefit of the system that we have at the moment that the Lord Chancellor sits in a room with you, you have the file in front of you prepared by your officials and you can discuss the issue of merit in a way which you cannot do in a committee?

Sir Tom Legg: Yes.

Q265 Keith Vaz: You can have a confidential chat and you can make a decision. Under the new system, if you look at who might sit on this Judicial Appointments Commission, it is probably going to be chaired by someone like you, is it not, the good and the great?

Sir Tom Legg: You may think it a small point but I would rephrase that. The policy objective in the past has not actually been to have a more diverse judiciary. It has been to make sure that we are getting the very best candidates from every section of the community and to make sure as far as we can that there is a level playing field. Of course, given the way that we have appointed judges up to now, which typically has required them to be in mid or late career, we have been very dependent on the way that the profession has recruited and promoted people.

Q266 Keith Vaz: But soundings have been important. The file has to go through you.

Sir Tom Legg: Oh yes, that is true.

Q267 Keith Vaz: My worry about the inquiry and what is being proposed by the Government is that we are talking about the overall vision that we must have more involvement in appointments, but the process still lacks the kind of clarity that we need. I wonder whether we could have a note from Sir Tom as to ways in which he thinks that the process, the gathering of information, the assembling of the file, the taking of soundings, the taking of references, could be improved because I am sure that with his unique insight into what has happened over the last 20 years he would be able to point out --- what I do not want is one set of officials just transferring from your old department to the new commission with the same people doing the recommendations and the process being virtually the same.

Sir Tom Legg: Of course, I will gladly provide the committee with a note to give it the best guidance I can. There is just one point in this connection that I would want to make. Those of us who are involved with the present system of appointments from earliest days, which really is the late seventies and early eighties, have never pretended that this process was complete or perfect. It has always been an evolving and developing process and there are some aspects of what is happening now that I think will happen (and which I hope will happen) which I very much welcome, and that is the involvement of more sophisticated human resources techniques for judicial appointments. There is great scope for modernisation here. None of us who were doing this work is for or against that at all. We have been trying to advance this process and if the commission can do that, that is absolutely fine from my point of view. I mention this because, as I said, I am happy to provide a note on my best thoughts on this, but I am not here to say that there is some cut-off point at which the system suddenly becomes perfect.

Lord Lester of Herne Hill: I think the premise of Mr Vaz's question is somehow that the present system is doing rather well for ethnic minorities and it will get worse. My view is that the system has not done well either for women or for ethnic minority candidates. The first reason it has not done well is because of the way that merit has been measured. I speak from five years' experience of selecting assistant recorders under Lord Mackie's regime when I sat with one of Tom's officials, who was extremely enlightening, and we used to interrogate would-be barrister and solicitor candidates in the Lord Chancellor's Tower. I got a lot of experience there and I never saw the secret soundings - and, by the way, I am dead against the secret soundings, but -----

Q268 Keith Vaz: But you have been sounded. People must have rung you up.

Lord Lester of Herne Hill: I have been sounded, especially for QCs, and nothing is more arbitrary, I promise, than being able in confidence to put down your views about colleagues with no come-back. My Lord Chancellor colleague, who has never shown me the secret soundings because it would be quite improper, I could tell was himself shocked by some of the comments that judges were making about would-be candidates and that is why the Scottish Commission were right, in my view, to take a pure line, that they were not going to look at secret soundings. One of the qualifications for being a judge is not that you have been a barrister or that you have been an advocate, certainly not in the appellate or supreme court. Bertha Wilson in the Canadian Supreme Court, Michael Kirby in the Australian Supreme Court, Ken Keith in the New Zealand Court of Appeal were either academics who went straight away or solicitors without any trial practice. Judge Pollock, in the Third Circuit in the States, was an academic dean of two law schools. All of them have been outstanding judges, so the first thing to say is how you define merit is critical. There is no reason why you have to be white or male or a barrister, but a kind of latent assumption was, in chambers and in appointments, that that should be so. I think that women and ethnic minority candidates bring, not just because of their gender or ethnicity, something really important to the judging process. I have found in my practical experience in trying to persuade women to accept judicial appointments that many of them will not apply because they hate the idea of being in male-dominated judges' lodgings. One way in which you can get more women on the bench, and I mean talented, able, outstanding women, is to change the judges' lodgings system where it is still true, and I speak from experience of women judges now serving, that they feel they are in an entirely male atmosphere where the only women they meet are the maids.

Dr Whitehead: I am afraid on that point we are going to have to conclude this particular session. Professor Scott, Lord Lester and Sir Tom Legg, thank you very much for your evidence which has been of great help to our inquiry.

 

Examination of Witnesses

 

Witnesses: LEOLIN PRICE CBE QC and PROFESSOR ANTHONY JOLOWICZ QC, examined.

Dr Whitehead: Professor Jolowicz and Leolin Price, good morning and welcome. Thank you for agreeing to come and give your evidence to this committee. Perhaps I can start with the question of the desirability of an Appointments Commission on judicial appointments.

Q269 Ross Cranston: You heard Lord Lester. What are your reactions?

Professor Jolowicz: May I go back a little in my own thinking? I come to this committee with great respect and with a great deal of surprise also. I have no experience in this field whatever. I have been an academic with occasional forays into practice but I have not got any full time experience of practice. I wrote a series of papers for the department in response to two or three consultation papers and for some reason which escapes me I was invited to come before you, which I was very happy to do. I will start from a proposition which is probably unpopular. I regret greatly the abolition of the post of Lord Chancellor and I have perhaps a particular reason for saying that. To the best of my understanding the Lord Chancellor has for decades held an office which is part political and part not, recognised universally, dare I say, as having this kind of split personality, and certainly in my lifetime no-one has ever suggested that a Lord Chancellor in his appointment role was influenced by party political considerations. We have lost that office, if I may say so with the greatest of respect, to office holders in the present Government or any other. All other ministers are recognised to be political from the Prime Minister downwards. The Prime Minister is the head of the Government. He is in any case the leader of his political party. His role is inevitably, and rightly, political. We have lost an office which seemed to me to be extremely valuable. If that is to go then it seems to me that the only way forward is by the kind of commission that is being suggested, but with the minimum of involvement with the Government. Here, if I may make a rather academic point, the two pillars of the constitution which are permanent are, of course, Parliament and the judiciary. We speak of the Government. We speak of the executive. Of course, there is always a government and an executive but it is not unchangeable; it is not the same; it is not always there in its recognisable shape that it happens to have at this time. I believe in the papers there is a kind of confusion about the use of the word "government". For me the government means the executive of the day headed by the Prime Minister, who is essentially both. The Government is not the state. It is a political body which changes, charged temporarily with running the country, and it is subject to two kinds of control. The first, of course, is parliamentary control and the second is judicial control. That is second but not a bad second in my view. They are permanent; the Government is not. The higher judiciary is appointed by the Queen, in the past on the advice of, if I may say of this office, her Lord Chancellor. The Lord Chancellor was appointed by the Prime Minister. Nonetheless he serves directly in that role. I have never been quite happy with the role of the Prime Minister in judicial appointments but I think there is confusion and confusion in my view comes out most clearly in the consultation paper with which this Committee is not concerned, namely, the appointment of QCs. There is a paragraph in that, paragraph 81, which states that the Government's involvement in the appointment of QCs needs strong justification. With the greatest respect, the Government is not involved in the appointment of QCs. The Lord Chancellor, of course, is involved. The Lord Chancellor recommends to her Majesty. The Government is not involved and never has been. The other question I would like to put - not to the Committee, of course; it is a rhetorical question - is that we are told often (and we heard it this morning) that the public does not understand. It is not transparent that the House of Lords, the Appellate Committee, is not sitting as a part of the legislature, as it looks like, but I wonder how far public misunderstanding of a system which I happen to admire should be allowed to remove that system, just because people do not really understand it. It seems to me that one has to have a reason for changing it other than that it is not perfectly clear. Having said all that, and this is the position from where I start, having removed the Lord Chancellor I see no alternative to a Judicial Appointments Commission which is as apolitical as possible. I did not make much in my responses about political answerability. I have not really worked that out but I am not happy to have the involvement of a minister, with all respect to present and future holders of the office, in charge who has not got this immensely long tradition of split personality, to put it like that. He is part political, as is the Lord Chancellor. I feel that we have here, with great respect to Lord Falconer, a new office which is a political office. There is no tradition behind it. Therefore, I am worried about the control of the Commission.

Q270 Ross Cranston: The Home Secretary, of course, does exercise some quasi-judicial powers, does he not, so he has that split personality, but I can see the argument about the judiciary because the Home Secretary occupies an office that has gone back a considerable period.

Professor Jolowicz: That is perfectly true. My general worry remains about that: the loss of this, I think, valuable tradition.

Q271 Ross Cranston: We had better let Mr Price have an answer as well. Perhaps you could focus in particular, because Professor Jolowicz has raised this question about the answerability to Parliament, on this notion of whether or not the Commission should put more than one name before the minister? I think Professor Jolowicz would say probably one name but I would like to get your reaction to that.

Mr Price: Of course, my principal evidence in my paper starts with the proposition that we should not be considering new ways of appointing High Court or superior court judges. If there is to be a commission, I nevertheless put myself in the position of all would-be politicians or ex-would-be politicians who have studied our constitution and understood it and understand that our system is one of government in Parliament, that is to say, no separation of powers. As soon as you start to apply the miscast view of separation of powers applicable to our method of parliamentary government in Parliament you arrive logically at a point of time and development perverse and contrary to our traditions in which the Government, that is to say, the executive arm of government, is wholly divorced from Parliament; members of the Government no longer sit in Parliament. That would be so totally contrary to everything we have inherited that I would be the enemy of it. It is elaborated in my paper about the supreme court. If those views and those infinitely dangerous possibilities of iconoclastic and wanton change in our traditional arrangements are to be adopted perversely by policies evolved by people who do not command in voting anything like a majority of the electors who are able to elect, that is to say of us, then, of course, the matter of who chooses judges has to be addressed. I would nevertheless prefer and emphatically prefer that the form of government in Parliament shall be maintained. For that purpose there must be left from the commission, any appointments commission, in making recommendations something of parliamentary accountability by somebody, perhaps only in extremely odd and unusual circumstances. After all, we have the Lord Chancellor, a member of government in Parliament who is responsible for advising the Queen about the appointment of High Court judges, the appointment being then made by the Queen. The reality is that the member of the Government who in the last resort (very unusual last resort in practice) and in desirability must answer in Parliament for what is done is currently the Lord Chancellor and must eventually, if the Lord Chancellor sadly is no longer to be there, be the Secretary of State for Constitutional Affairs, but some of you may have read my comments in answer to question 17 of The New Way of Appointing Judges. The way in which that is framed in this consultation paper is infected by many deplorable characteristics in my opinion. As I put it, the whole question is linked to the assumption that the Secretary of State for Constitutional Affairs can be a more normal Cabinet minister than the Lord Chancellor, or is it somewhere put that he be freed up to be a more normal Cabinet minister or political animal? Whoever is responsible for the independence of the judiciary at government in Parliament level with ultimate answerability cannot be a man who does not in his position exercise the sort of discretion which I describe in my answer to question 17 that "because of these responsibilities, some restriction upon engaging in the whole range of 'normal' political activities" is inevitably demanded, not by writing it down but of anyone who occupies that office of our government in Parliament with that measure of responsibility. He must be seen in relation to those responsibilities for the judiciary and those answerabilities for the judiciary to be "sufficiently impartial, independent and detached".

Q272 Ross Cranston: Mr Price, I am going to get into trouble with my colleagues because they have got questions. Could I cut you short? We have obviously got the submission. Could I quickly move on to this other question that I was going to ask you about, and I will ask the two of you about, the career judiciary, and I think Professor Jolowicz said something about this. I think you argue against that. Can I put the point that we already have a a career judiciary in the sense that people are appointed as recorders, they might then go to the High Court Bench, they then go to the Court of Appeal, they then go to the House of Lords. They expect promotion. The old assumption was that you could never expect promotion because that would affect your decisions but we already in a way have a career judiciary.

Professor Jolowicz: I do not dissent from that. What I understand by the career judiciary is young people who set out to be judges. This is very much the continental system. When you graduate from university you go to the judges' school or magistrates' school and you progress from there. That, I think, is quite contrary to our tradition and would be quite wrong for this country. It also involves questions of the numbers of judges. The French have thousands where we have tens of young judges. It also involves multiple judge courts to a large extent. This is the kind of reason why I say I am against a career judiciary.

Of course I understand that people may progress from relatively junior judicial appointments up to the highest court of the land, I do not see that as entering upon and pursuing a career. I do not believe ‑ we may come on to this later ‑ because I am advocate of maximum merit, a judge, that we should cater for people who need special conditions. In my opinion people who wish to be judges should not have it made easy for them to be made judges. We must look at the maximum. A career structure seems different from a progression that may be possible for the better people to go all of the way up to the top, I do not really see that as a career judiciary.

Mr Price: The question about a career path is not a general question. What Ross Cranston is referring to is a different career path from what is suggested in the relevant paragraphs of the White Paper, that is a career path not for all the members of the judiciary but for some members of the judiciary, and what is involved in that career path means you look to see some members of the judiciary who have been selected to follow a special career path. That is part of the whole process of seeking diversity in the judiciary.

Dr Whitehead: I think Hilton Dawson has particular questions about that.

Q273 Mr Dawson: I am very interested in what you are saying there, I do not really understand the opposition to career paths or to the idea that people should take different and perhaps simpler routes to judicial office. Surely the key thing is the quality of judicial decision‑making.

Mr Price: The quality of judicial decision‑making is what matters. As soon as you talk about a career path for some people, not all people, towards the judiciary what you are talking about is, as I interpret the consultation paper, there are people who should be encouraged to follow a career path. Those who have read my papers will know that I favour the possibility of their being academics who becoming judges. I do not believe that that possibility should happen often. I do not believe that an academic who may eventually become a judge should follow any career path, he should be of such manifest quality that in spite of not following a career path to the High Court or probably, in my view, to the Court of Appeal or the House of Lords or its replacement, if there is to be a replacement, he should simply be a man recognised by those who are intimately involved in judicial affairs. He should self‑select and that will not be achieved by having a career path for him, for example to make him a recorder.

Q274 Mr Dawson: I think it is instructive the way that you have constantly referred to "he". I think the argument would be that the system that you propose would surely enable more men to carry on progressing to these higher levels than others. I am just interested if both of you feel that there is any case at all for the judiciary being seen to represent a wider mix of society in terms of gender, in term of ethnic background and whether you see any purpose for that?

Professor Jolowicz: I have grave difficulty with this. I think the connection of this with a career relates primarily to woman and family, and the obvious family problems. The basic question, as it seems to me, is do we want to fix a system for selection of judiciary? Do we want to aim at giving opportunities to people overcoming the difficulties that they might otherwise experience or do we want to find the best judges we can find? The idea of diversity in the professions is, in my opinion, of supreme importance. I am less clear this is so in relation to the judiciary. If I may be allowed to repeat a story I have heard more than once from Sir Sydney Kendrick, it is said that in some obscure state in the United States where a committee were considering appointments to the judiciary they had a report to say that a particular person was distinctly mediocre and the argument that was put forward was, there are an awful lot of mediocre people out there they deserve representation. I think there are dangers in this representation idea. The judiciary is not representative. There should be opportunities for ethnic minorities, for women, for disabled people, as Lord Lester mentioned, it is supremely important, but not at the cost of finding the best people.

Q275 Mr Dawson: Surely the argument is that some of the best people, who may well be women for instance, are deterred or disabled from being members of the judiciary because they have family responsibilities, because of other factors in our society but if you enable a career path which fits in with those other aspects of their lives that can enable those people who in every other respect would be just as good members of the judiciary as males who had spent their entire careers doing what males have done to get forward.

Professor Jolowicz: The career break of a woman in the interests of the family, if there is a break in her work, whether it be as a judge or a barrister ‑ and I speak without experience ‑ if you have a period not in practice, not being busy at it either as an advocate or a judge or a solicitor you are out of the game and that in itself is an automatic disadvantage.

Mr Price: Can I add to that? I noticed the acoustics in this room are not as good as they should be, just as they are not in the High Court of Australia. I noticed that Lord Lester referred to Dyson Hayden - a judge of the High Court of Australia - as an academic who has become a judge. Yes, Dyson Hayden was an academic but he became a full‑time practising barrister at a relatively early age. When I was called to the bar in Australia and made a Silk there in 1987 I was talking to him and he was then acting as a junior. That is not the sort of academic appointment with which we are concerned or with which I am concerned. Diversity in relation to women: Barbara Mills, first organiser of the Serious Fraud Office and then Director of Public Prosecutions, was one of my protégés; I was appointed her sponsor in the Middle Temple when she was still an undergraduate in Oxford. To her discomfort I once produced a letter by accident which I had found which she had written to me years before and I quoted it when welcoming her to the bench of the Middle Temple, that is to say to be a master of the governing body of that inn. She had a career at the bar without more than modest breaks, she did not take ten years off, she took periods off during and after the birth of each of her four children but she was not the sort of person you are referring to or Jolowicz has referred to as somebody who has taken a life break when she is out of the game. I, a member of that oppressed minority, when I was younger was one of the golden haired Celts ‑ and still of course of that ethnic minority ‑ and I was always terrified of any time away from practice because of what might happen, my practice would disappear, my career might be destroyed.

Mr Dawson: Thank you very much.

Dr Whitehead: Could we dwell on the issue of the presence of judges in the House of Lords.

Q276 Mr Clappison: Could I ask both witnesses what they see as the advantages and disadvantage of having judges under the present arrangements in the House of Lords?

Mr Price: Splendid advantages. The advantages of having judges in the House of Lords is this, they are then available in the House of Lords as members of that body in its legislative and monitoring of government functions. While there of course as active members of the judiciary there is a necessary reticence imposed on the matters upon which they can speak, and that discretion is conspicuously obvious in Law Lords when they sit in the House of Lords not as judges but as part of that body. By that means we have at that level of government in Parliament the skills and experiences of the judges, the remarkable skills and experience of those ^ imminent men at that level of the judiciary available for the information and enlightenment of the other legislators with whom they sit as fellow members of the House of Lords.

Q277 Mr Clappison: Do you feel it is in the public interest because it is in the interest of a high quality and well‑informed debate with the Lords?

Mr Price: It also has a two‑way function, at the highest level of the judiciary there is a public interest in seeing that they absorb some of the remarkable expertise of the people appointed, for example life peers from positions of great imminence outside the judiciary.

Dr Whitehead: I am afraid we have to draw our business to a close this morning because the Chamber is now sitting. Can I thank both Professor Jolowicz and Mr Price for your very trenchant evidence this morning. That concludes our business. Thank you.