Examination of Witnesses (Questions 100
MONDAY 26 MARCH 2001
Baroness Perry of Southwark
100. Lord Chief Justice, I have two questions.
We understand that you have advocated that judges should adopt
a very pragmatic approach to Convention arguments and you have
also encouraged advocates to be sparing in their use of such arguments.
Could you explain to us the thinking behind your approach here?
Could you also comment on whether you think the courts have adopted
(Lord Woolf of Barnes) The remarks that you refer
to were said in the context of a case which was actually decided
before the European Convention became part of our domestic law.
What it was saying to people was, "Do not take bad points".
101. That is unarguable. Can I move on to my
second question? We fully understand your desire to discourage
hopeless claims; is there a danger that we might lean too far
the other way and deprive somebody of the opportunity to air arguments
which will have real merit?
(Lord Woolf of Barnes) I hope not.
Baroness Perry of Southwark: Thank you.
Lord Carlisle of Bucklow
102. As somebody who has been Chairman of a
tribunal which is regularly judicially reviewed one gets the impression
that judicial review was going up very fast before the implementation
and was another spin-off effect with greater public awareness
and public discussion of rights. It is still growing, is it not,
irrespective of the actual implementation of the human rights
(Lord Woolf of Barnes) I think that the public have
become much more sensitive, quite apart from legislation, of their
rights and there is no doubt that the volume of cases of judicial
review is expanding all of the time. As a result of that case
law developed and the ability to rely on judicial review increased.
Sir Patrick Cormack
103. I would like to direct my question to Lord
Bingham if I could. There is much talk about Article 6 and the
right to appear before an independent tribunal and some people
assert that this really makes it difficult to see the survival
of the dual roles of the Law Lords as judges in the courts of
last resort and also members of the legislature. What are your
views on that?
(Lord Bingham of Cornhill) I am afraid I see this
as a question that will become litigious at some point and therefore
I would not like to give any answer to the question here and now.
104. I think you have given a very interesting
answer, if I may say so. Would any of your colleagues like to
comment on that?
(Lord Phillips of Worth Matravers) No, thank you.
Chairman: That is short and sweet.
Lord Lester of Herne Hill
105. Might I ask a less difficult question in
terms of the obvious problems of dealing with this. As I understand
it, under Lord Bingham a statement was made last autumn clarifying
the current position with regards to the Law Lords. I think it
would be helpful if in broad terms the Committee could have that
explained to them.
(Lord Bingham of Cornhill) I am afraid that I am in
a position to do it in very narrow terms because I have got a
copy of the document in front of me. The statement says: "As
full members of the House of Lords, Lords of Appeal in Ordinary
have a right to participate in the business of the House."
In other words, they have not taken any kind of vow to behave
as if they are not members of the House. "However,"the
statement continues"mindful of their judicial role,
they consider themselves bound by two general principles when
deciding whether to participate in a particular matter or to vote.
First, they do not think it appropriate to engage in matters where
there is a strong element of party political controversy. Secondly,
they bear in mind that they might render themselves ineligible
to sit judicially if were they to express an opinion on a matter
which might later go to an appeal to the House." The statement
says that the Lords of Appeal in Ordinary will continue to be
guided by those broad principles and they regard it as impossible
to frame rules which will cover every eventuality. I think it
is right to say, in fairness to them, that I do not think either
Lord Woolf or Lord Phillips were consulted about the terms of
that statement but perhaps they were.
(Lord Phillips of Worth Matravers) I was.
106. In the evidence the Lord Chancellor gave
last week when he was questioned about what I call the "neuralgic"
question, which is his role as a Law Lord and as a Minister, I
think what he said was of course he had to make his own mind up
as a judge but he would take the advice of his colleagues as Law
Lords about whether one should or should not sit in a particular
case. I think that is what he said. I wonder whether it is possible
to explain to the Committee that in practice (as I believe is
the practice) Law Lords will not sit if they have taken a very
active legislative role on the matter and that will include him
(Lord Bingham of Cornhill) I think there is no doubt
that to some extent the climate has changed in this particular
area within the last decade or so. It used to be accepted by their
colleagues and, I think, by the public that people were perfectly
capable of expressing an opinion in one capacity and acting with
complete objectivity and impartiality in another. For a number
of reasons that we could discuss there is less ready and less
widespread acceptance of that proposition and that inevitably
means that those who sit judicially have to take greater care
than was once perhaps taken to not only to consider what is always
the first question of whether they themselves feel embarrassed
in any way but whether it might look wrong. One cannot lay down
general rules. One simply has to approach this on a case-by-case
Sir Patrick Cormack
107. Do you regret that development?
(Lord Bingham of Cornhill) Yes, I suppose I do inasmuch
as it portrays a lack of confidence in the integrity of public
men and I would wish confidence in the integrity of public men
to be as great a possibleand of course women.
Sir Patrick Cormack: Of course.
108. In your experience is that fear on the
part of the public or whoever justified?
(Lord Bingham of Cornhill) No, I do not think it is
justified. I think throughout my judicial career and indeed at
the Bar judges have always been astute to disqualify themselves
if they perceive any grounds upon which they might be thought
to be incapable of bringing an objective judgment to bear.
Sir Patrick Cormack
109. I think these developments have diminished
the quality of public life generally. Do you agree?
(Lord Bingham of Cornhill) I do not think this is
directed just to judges, it is across the board. There is a great
tendency for commentators to say, "He would do that wouldn't
Mr Miller: This of course is a function of instant
communication where everything you say is around the world immediately.
Lord Lester of Herne Hill
110. Could I ask a different kind of question
about Law Lords. I realise this is a political question but you
have now two final courts, the Judicial Committee of the Privy
Council dealing with devolution issues, with or without a human
rights dimension, and the Judicial Committee of the House of Lords
dealing with human rights and other issues as the final court
as well. I hope that this is not an improper question to ask and
if so I will certainly be told straight away that it is. I wonder
whether the judges at senior level have been consulted as to whether
it is desirable to have a single court rather than two apex courts
dealing with human rights and other constitutional issues?
(Lord Bingham of Cornhill) I think it is a political
question and I would answer it with a certain measure of reserve.
On the factual question you ask, whether the judges have been
consulted, the answer is, so far as I know, not. I think one has
to bear in mind the whole context here. When Scotland was united
with England and Wales in 1707 it was clearly implicit in the
Act of Union that there was no criminal appeal from Scotland to
London, and of course there was no criminal appeal in England
and Wales either. There was originally a doubt as to whether there
was even a civil appeal from Edinburgh to London, but it was very
quickly established that there was and indeed extensive use of
it was made to such an extent that there was very little time
to hear English appeals! But what is important is that the Scots
criminal system has always been self-contained and has had no
English input at all. One of the anomalous, and to me surprising
and unexpected, results of devolution is that for the first time
one does have judges, Scots prominently among them but nonetheless
judges, sitting in London ruling on questions relating to Scots
criminal trials. The reason why the Privy Council is doing that
is because, as I understand, it was politically unacceptable in
Scotland for the Appellate Committee of the House of Lords to
be doing that. To say would it not be better to have one court
without paying very, very close attention to the sensitivities
of the Scots in this matter would be a recipe for disaster in
my opinion. I end where I beganthat this is a political
question and certainly not a human rights question.
111. Is there not a possibility of a conflict
(in theory if not in practice) between a judgment by the Privy
Council on a human rights question and a judgment by the Judicial
Committee of the House of Lords, with the problem of which one
is going to be determinative?
(Lord Bingham of Cornhill) There clearly is scope
for conflict and they will have great fun in Strasbourg.
112. The other question that the Committee would
be grateful for your help on is whether one is satisfied that
procedural arrangements are adequately in place to make sure that
the courts are helped with full arguments on all types of litigation
involving Convention rights. For example, is enough opportunity
being taken to appoint an amicus curiae or to allow third
party intervention in litigation to ensure that the relevant interests
are properly represented and all the relevant arguments are heard?
I know it is early days but is that kind of problem being sensitively
addressed by judges at every level?
(Lord Woolf of Barnes) If I can deal with the level
below the House of Lords, we have always had the ability to have
third party interventions, it has not been used to a great extent
because hitherto it has not been found to be necessary. We have
always had the right to hear argument from whoever we wish to
hear argument. If we want an amicus somebody has to pay
for the amicus and the procedure which is laid down is
that you ask the attorney general to make an amicus available.
I know of no specific case where he has ever declined. I am sure
if we were to look at the records we would find a case, but I
do not know of such a case. When there is a problem which clearly
needs argument we will not hesitate to seek it. In human rights
issues often central government is involved in any event. So far
as providing argument as to how the legislation can or should
work in the new situation you do get quite considerable assistance
from counsel instructed by the government department itself. I
know of at least one case where the argument for the government
or the Crown was to the effect that if the court thought that
the legislation, read in its literal manner, would not be compliant
then the argument would be it would be preferable to treat it
as incompatible rather than try and use the powers within the
Act to construe it rather more forcefully so as to comply. One
can understand that there are situations where it would be better
to relegislate rather than have a single case interpreting the
legislation in a way which it could possibly be done to make it
compatible. The courts have to apply the Act and the Act provides
guidance as to approach. That is what I would expect the courts
113. Can I ask Lord Bingham, I had the impression
that the House of Lords is very generous in allowing third party
intervention not only in cases like Pinochet but much more
recently NGOs being allowed to intervene, JUSTICE, for example,
in the Brown case. I wonder whether Lord Bingham can tell
us whether that is right?
(Lord Bingham of Cornhill) I think the practice of
the House of Lords would be to allow an amicus to appear
or to ask for one to be appointed if those who were hearing the
case would therefore contribute to a just decision of the case.
The risk, of course, is that you simply multiply parties, all
with the same interest, arguing the same aspect of the matter.
114. I was thinking of third party interventions
by NGOs, like JUSTICE and Liberty, when they are allowed to put
in written comments and sometimes brief oral comments as well.
(Lord Bingham of Cornhill) Yes.
115. My understanding is that that has been
generously interpreted in the recent past.
(Lord Bingham of Cornhill) Yes. I think that is fair,
Lord Carlisle of Bucklow
116. Surely the role for an amicus or
for third party intervention of any kind in criminal cases must
be very limited indeed. Presumably if it is an appeal by the defendant
the prosecution are putting the case generally of the Crown, and
now that the prosecution have the right to appeal themselves presumably
the only issue of when it might arise is if for some reason the
defendant did not wish to contest the Crown's appeal, in which
case there might be a role for an amicus. Other than that I cannot
see how you would get one in easily.
(Lord Woolf of Barnes) I am not conscious of any applications
with regard to criminal cases at the Court of Appeal Criminal
Division level. There have been cases at a civil level and the
Master of the Rolls could tell you about those. For the very reason
that you indicate, I could see cases where there could be a request.
117. The defendant might not wish, for some
reason, to pursue or to take part in the appeal and therefore
you might wish to hear argument from the other side.
(Lord Woolf of Barnes) Or the defendant may feel that
information is capable of being provided to the court by some
third party which the defendant would not be in a position to
Lord Carlisle of Bucklow: Yes.
118. There is a question too of the separate
rights of victims, does that arise?
(Lord Woolf of Barnes) As you know the courts are
adopting a broader approach to the position of victims than hitherto.
This is an area where there are developments.
Sir Patrick Cormack
119. Do you think we could invite Lord Phillips
to comment on this point?
(Lord Phillips of Worth Matravers) We do not have
a party line in the Divisional Court, it is up to the individual
courts to consider an application to intervene by a third party
organisation. It happens and applications are acceded to. Liberty
recently intervened both in writing and in short oral submissions
in a case.
Chairman: Thank you.