Examination of Witnesses (Questions 80-85)
RT HON
LORD JUSTICE
MAURICE KAY
31 OCTOBER 2006
Q80 James Brokenshire: You used the
word "danger" in response to my initial question, the
subsequent question on clarification. How do you see that manifesting
itself moving forward if this danger that you have identified
that potentially exists? What would the concerns be in terms of
how that might move forward as time rolls on if this confusion
exists?
Lord Justice Kay: These difficult
situations are best approached in an atmosphere of calm rationality,
with mutual understanding of each party's point of view. I am
sure all judges understand that, from a government's point of
view, when something terrible has happened and they want to respond
to it, they may want to go as far as they possibly can in doing
so within the law. One appreciates that. One expects in return
that it is appreciated that it is we who have to decide ultimately
precisely what the law allows and what it does not allow. The
danger is if the calm rationality which ought to be the context
for these developments descends into ill-judged criticisms which
make it sound as if one party or the other is not doing that which
it was put in place to do. I will not personalise it by referring
to particular cases or particular utterances but there have been
occasions on which parliamentarians have expressed themselves
in criticism of a decision of the courts under the Human Rights
Act in a way that suggested that the very fact of the judges making
the decision is somehow of the judges' own invention. I resist
giving examples because it would be invidious to do so but it
is unhelpful if it is made to look as though somehow the judges
are bringing power unto themselves when in fact they are applying
that which Parliament has asked them to apply. To me, as a judge,
it is quite novel to be in a position where one might have to
adjudicate upon whether there is a public emergency threatening
the life of the nation, because one knows historically that is
the sort of decision that judges have never been asked to make,
or when they have been asked, they have said "Thank you but
no thank you." Now it is Parliament, not just accidentally,
as if they did not realise what they were doing, but deliberately
putting in our hands the duty to adjudicate on that very issue.
If you look in the anti-terrorism legislation, it actually confers
upon SIAC initially, and then, of course, on the Court of Appeal
and above if there are appeals, the power to adjudicate upon derogation
issues. For all I know, and in fact, I would expect it to be the
case, Parliament would not have enacted the legislation had it
not contained those safeguards. It is part of the balance of the
legislation that it provides for a response to terrorism but it
does so in terms which then confer on the courts the power to
see, in the first Act, whether a derogation was properly made
and if the derogation was properly made whether whatever is put
in its place, detention without trial, was satisfactory or not.
Similarly, in the second Act, when one is concerned with non-derogating
control orders, Parliament is there saying, "We don't think
we need to derogate for these. These are what we are going to
do," and you actually apply them and you impose restrictions.
It is the courts that are expressly given the task of seeing whether
that is Convention-compliant and concluding no. There is a danger.
The danger is that judges are portrayed as people who have somehow
expanded their own powers, and are then criticised for the exercise
of that power when in fact they are carrying out a duty that has
been imposed upon them by statute quite properly, and doing so
in a way that is built upon an application of the law, because
the law is set out in the Convention, it is set out in the Act,
it is illustrated and developed in the Strasbourg jurisprudence,
and we have the task, as we have in many other areas of legal
operation, of applying that law to the facts. I do not want to
over-exaggerate it. That would be to succumb to the very thing
that I am mildly complaining about, but there is a danger that
democratic checks and balances that are founded on statute and
parliamentary provision will become misunderstood and it should
be in everybody's interests that they are correctly understood
and not misrepresented.
Q81 Mrs Cryer: I wonder if you could
comment on the fact that one of our witnesses this morning, Jonathan
Fisher, QC, felt that it would be useful to rid ourselves of the
Human Rights Act and replace it with a bill of rights and obligations.
I understand that has also been said outside of here. The Attorney-General
is recently quoted as saying that effectively, the Human Rights
Act is a bill of rights and I wondered if you would like to comment
on those two views.
Lord Justice Kay: I am more than
happy to give you a judicial view on the workings of the Human
Rights Act. If you ask me what should happen to it in the future,
whether it should stay or go or be amended, that is something
I should avoid. I will tell you what I think if you ask me elsewhere.
Q82 Mr Beith: We take it from what
you have said already that you regard the Human Rights Act as
having made quite significant changes in the way in which our
system operates.
Lord Justice Kay: Yes, I do.
Q83 Gwyn Prosser: Sir Maurice, you
have told us about your slight disagreement with the Lord Chancellor
over the use of the word "discretion" versus "judgment".
What is your view of the comments of the former Home Secretary,
David Blunkett, who likened bishops and judges to the best politicians
in the world? He said, "I am against the judiciary believing
that they are another form of government and that they can therefore
say they dislike what Parliament has done and overturn it."
Lord Justice Kay: I can only repeat
what I said before. Judges apply the law. Much of the law we apply
is that which is created by Parliament, full stop.
Q84 Gwyn Prosser: In respect of that
apparent disconnect between the judiciary and at least former
Ministers, would it not be a good idea if there were at least
some means of informal communication, for instance, a casual dinner,
so that High Court judges could sit down and talk to Ministers
and find some centre ground and understanding?
Lord Justice Kay: There is a difficulty
about that. I am here today, I am delighted to be here today,
and I will talk to you on the record about these issues. I do
not think it is the job of judges to assist with the development
of legislation before it is enacted. That is not to say that judges
are not sometimes informally asked their views on bills in their
passage through Parliament and sometimes express those views,
but if it were developed further and deeper, there is a real danger
of judges being compromised in their future decision-making as
a result of their involvement in or near the legislative process.
It is, after all, what the argument about the presence of the
law lords in the upper chamber is all about. It is ultimately
a question of separation of powers and I think what we have to
do is respect each other's positions and powers. Ministers have
all the help in the world in formulating legislation. They have
a civil service, they have legal advice, they have constituents,
they have pressure groups, and it is for them to legislate as
they wish to legislate.
Q85 Mr Beith: Would there not also be
a danger in off-the-record exchanges which might be seen or thought
to influence judges?
Lord Justice Kay:
Yes, I think there is a danger.
Mr Beith: We have reached the time when
we said we would bring this session to a close. We are very grateful
to you and we have found it very helpful. Thank you very much
indeed.
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