Examination of Witnesses (Questions 120
MONDAY 26 MARCH 2001
Sir Patrick Cormack
120. Do you think that will increase?
(Lord Phillips of Worth Matravers) I think it will
increase. In law you get incremental growth in various areas,
it very seldom shrinks. This is one of the areas where we will
see incremental growth.
121. I would just like to follow this up because
I find it enormously difficult ever to advise when the court will
and when it will not allow third party intervention. Is it time
to reassess whether by the rules of court or by judicial guidance
what the circumstances are where it is helpful and, perhaps, particularly
what the form of that intervention should take, written or oral,
and if so will we have to move, I recognise this goes a long way
beyond human rights, towards the admission of Brandeis briefs
or other statements from interested third parties which set out
the economic or social consequences of particular decisions.
(Lord Woolf of Barnes) There is thought been given
and there have been meetings between academics and judges where
this subject has been discussed. I think we have to see how the
position develops. I agree with Lord Goldsmith, it is unfortunate
that the position is not clearer at the present time. My own belief
is that going forward on a case-by-case basis will provide us
with the experience and guidance we need. Although there can be
benefits, as Lord Bingham said, there can also be disadvantages.
With regard to somebody who wanted to get a quick decision in
their case they do not particularly want to see the case transformed
into a cause célébre by bodies which
have established positions in regard to some closely related issue
debated at, as they see it, their expense, because their costs
are being incurred.
(Lord Phillips of Worth Matravers) I would simply
agree. It is very early days in this area. I think we need to
gain some more experience on a case-by-case basis before we try
to lay down some form of inflexible rule.
122. If I can pursue the point made by our Chairman
about victims and extend it in the context of death on the road
to victims' families. Do you see a place for third party interventions
in those cases, because it is one area where there is a great
deal of dissatisfaction on the parts of the victims' families
about how justice works?
(Lord Woolf of Barnes) We are moving forward. It depends
what role you see for the victims. The courts have now moved to
a stage where they consider it very relevant in determining the
appropriate sentence to know about the impact on the victims.
That clearly can, and I think should, influence the body responsible
for imposing the sentence. What we have not acceptedwhich
I personally think we have correctly not acceptedis any
right of a victim to demand a particular sentence in a particular
case. I would not myself be supportive of making our justice system
one where victims could come and say, "We think the appropriate
punishment for this case is so many years." We have always
been in this jurisdiction cautious about that. Even the Attorney
General on an Attorney General's reference when he is suggesting
that a sentence is too low is very cautious to what extent he
indicates what he would consider is the appropriate sentence,
and I think his caution is right. As you know, we now have an
advisory panel which can give guidance to the courts as to what
should be the range of sentences in particular circumstances and
if the courts feel that there is need for guidance they are now
required by Parliament to give the panel an opportunity for giving
advice to the courts. I feel processes of that sort are a preferable
way in which to take account of victims generally although, as
I have already indicated, the court is prepared to hear, and does
hear now more than used to be the case, the impact on the victim.
Lord Carlisle of Bucklow
123. I suppose in some ways it could be a possible
half-way house. In Jersey, as you know, the Crown does ask for
a particular sentencenot the victim but the Crown. Have
you any comments to make about that?
(Lord Woolf of Barnes) All I can say as an example
of how the situation develops is I can remember when I was a newly
appointed judge where on the question of damages it was quite
wrong for any counsel to suggest to the court what was the appropriate
level of damages. Now the position has been transformed and I
think helpfully transformed. What counsel does now may not be
directly relevant but sometimes it is said, "Your Lordship
might like to know that there has been a guideline judgment on
this which gives the guidance." Speaking for myself, I think
it is helpful for prosecuting counsel in an appropriate case to
do that and, indeed, I would not be surprised if we soon have
a little collection of the guideline judgments brought together
so they are available to judges to make sure that they are aware
of what level of sentencing there should be in particular areas.
Lord Lester of Herne Hill
124. Could I go back to Lord Goldsmith's question
about Brandeis briefs, ie evidence of the social and economic
impact of a legislative or administrative matter, to help the
court decide whether the measure is necessary as an interference
with a basic right or freedom. Would I be right in thinking that
the court will need evidence of economic and social impact as,
for example, is needed and was the case in the Equal Opportunity
Commission part-timers case that went to the House of Lords where
the impact of the employment protection legislation on women had
to be looked at and, if so, is there not a gap in our system without
a body like the Equal Opportunities Commission, such that there
is no body that can provide authoritative, independent material
of that kind and one depends utterly upon the parties to produce
that evidence to the court? I am leaving aside the question as
to whether one needs or does not need a Human Rights Commissioner.
I am focusing on the fact that the court needs all the help it
can get, not just on the language of a measure but also on what
its real impact is when carrying out the judicial review function
in terms of tests under the European Convention.
(Lord Woolf of Barnes) A court can be helped by information
of that sort, it depends on the circumstances of a particular
125. In our initial work in this Committee we
have been forming a view of our own role and have had to take
account of the certificate of compatibility under Section 19 of
the Act. Lord Chief Justice, in your evidence you indicated that
the court might consider it relevant when interpreting legislation.
I wonder if you would care to indicate in any way how it might
be considered relevant; if it goes beyond in some way what I understand
to be the judicial obligation to construe the legislation as being
compatible with the Human Rights Convention so far as it is possible
to do so? This simply seems to be a sort of nihil obstat from
the government. Is it something more?
(Lord Woolf of Barnes) Again, we have to work out
what real significance it has. I am certainly conscious that different
judges may have different views about it. We now look at background
material more than we did in the past. It seems to me that that
is the background fact that the government has if it is promoting
legislation, and they made a declaration of that nature, and I
would expect the government to take it seriously.
126. And the judiciary to take the government's
assertion any more seriously than the plain language of the statute,
and its legitimacy against the test of the Human Rights Act as
you question it?
(Lord Woolf of Barnes) We are getting on to very delicate
ground here. All I would like to add to what I have said already
is that it does seem to me as part of the background to the creation
of that particular piece of legislation and as part of the background
it does seem to me that it is or could be of some help in seeking
to find out what has put the intent on the legislation. I see
the role of the courts in interpreting legislation as trying to
give effect to the will of Parliament. If one knows that the legislation
has a health statement of that sort then that is part of the background.
127. Lord Bingham, I wonder if I might ask you,
if you in taking the view that you are seeking to give effect
to will of Parliament, how that duty should, in your view, be
discharged if it may appear, but notwithstanding the certificate,
that the piece of legislation in question is running counter to
the Convention as you interpret it?
(Lord Bingham of Cornhill) I would not myself wish
to say anything about how any court will react to or what weight
it would attach to a ministerial declaration of compatibility,
because that is a question which is bound to be litigated and
no doubt will be in due course ruled upon. What I think is absolutely
plain is that the courts will recognise that any act of Parliament
represents a democratic response to what members of Parliament
have recognised as a problem and the Act will represent their
solution to it. Those are not matters to be left out of account
in considering whether there is a breach of the Convention because
questions of proportionality and reasonableness, and so on, arise.
It seems to me the more significant matter is not whether the
minister has declared the matter compatible but the fact that
this is Parliament's response to a perceived mischief.
(Lord Woolf of Barnes) You may have misunderstood
my answer, I was not certainly intending to suggest that if something
was otherwise incompatible with the article in the Convention
the fact that there is a statement by a minister can alter that
result. I was merely indicating that that was part of the background
in trying to find the meaning of the legislation. There is a two-stage
process. First you have got to find the meaning of the legislation
and then you have got to see whether it is compatible or not with
the Articles of the Convention.
Lord Lester of Herne Hill
128. When the Lord Chief Justice referred to
the "intention of Parliament", I am sure the first intention
of Parliament is what is the intention in the Human Rights Act,
if one has got a Human Rights Act case. If the intention of Parliament
there is to decide whether legislation or administrative action
is compatible, one is then looking at impact and questions of
that kind but, as I understand it, the evidence isand speaking
personally I respectfully agreethat what Ministers say
in the House of Commons or the House of Lords or what we say in
this Committee or what is written on the face of the Bill by a
Minister is background, but in the end the question is whether
the measure is or is not compatible with human rights. That is
what I understand is being said.
(Lord Phillips of Worth Matravers) We start with a
statutory duty to interpret the legislation in a way that is compatible
with the Convention if we possibly can.
129. But there is also an obligation, is there
not, that if it is impossible so to interpret it, to issue some
form of declaration of incompatibility? It is not suggesting or
implying, is it, that that duty would be replaced by the declaration
on the face of the legislation?
(Lord Phillips of Worth Matravers) Absolutely not.
It is, "Terribly sorry, but whatever the Minister said we
adjudge this to be incompatible."
Sir Patrick Cormack
130. Strasbourg has been mentioned only once
by Lord Bingham when he was answering the question about things
consequential upon devolution. Would you like to say anything
about relations with Strasbourg and how you think these are going
(Lord Bingham of Cornhill) We started off on dialogue
and I do myself think that one of the great advantages of having
incorporated the Convention is that it makes it possible to have
a dialogue with the Court in Strasbourg. Of course, we have a
lot to learn from them but I venture to suggest they have a great
deal to learn from us, not least in the areas which are unfamiliar
to most Continental jurists, of which jury trial is the most pre-eminent
example. It seemed to me in the past a grave weakness that all
these questions from the United Kingdom were being argued in Strasbourg
without any judgment from the United Kingdom court for the judges
there to look at and say, "That makes moderately good sense,
considering". That has changed and they now are, for better
or worse, getting our views on these questions and one would hope
that they would treat those with the same serious respect with
which we treat their judgements, even though of course we have
a duty ultimately to take account of their jurisprudence whereas
they have no duty to take account of ours. But they do, as one
sees if one looks at the jurisprudence of the Strasbourg Court,
deal with these things on a case-by-case basis. They do not, contrary
to some beliefs, formulate huge, far-reaching, abstract principles
and then apply them blindly. They are very attentive to the particular
case and the facts. So I do see a two-way process here initiated
by incorporation which, if sensibly handled on both sides, can
be productive and work to the benefit of the people.
131. So you would feel comfortable about that?
(Lord Bingham of Cornhill) I never feel entirely comfortable
132. At this point may I thank you for coming,
Lord Woolf. You did have the courtesy to tell the Committee that
you must go to a function because you are hosting it and you must
leave by 6 o'clock. Thank you very much for your attendance today.
(Lord Woolf of Barnes) Thank you very much, Madam
Chairman, I hope you will forgive me.
133. May I ask if Lord Bingham and Lord Phillips
are available to stay for another question?
(Lord Bingham of Cornhill) Yes, provided we are there
in time. We have a similar motive for leaving.
Chairman: We will let the host go ahead. Baroness
Perry wanted to ask a question.
Baroness Perry of Southwark
134. Mine is really rather a general question
and very much a layman's question. You have just given, Lord Bingham,
a very cogent argument for having a Human Rights Act in our relationship
with Strasbourg. I also note that all three of you have referred
in one way or another, as have our previous witnesses, to the
fact that we already had in the common law in this country all
of the rights which the Convention bestows. Could you tell me
whether you think the Convention has added anything to the rights
of individuals in law and, perhaps, can you also tell me whether
you think in any sense there are cases where the Convention's
language restricts something that might perhaps have existed in
common law before?
(Lord Bingham of Cornhill) I would not myself accept
that we had all these rights before. I very firmly believe that
we have a noble tradition of developing rights second to none
anywhere in the world. I also think that there are areas in which
we have been shown to be deficient. There are certain people in
society who have no great appeal to those who might have taken
up the issues on their behalf who one can now recognise were being
treated otherwise than as they should have been, prisoners are
one obvious example, mental patients are another. These are cases
that went to Strasbourg and the law was changed, and most people
think changed for the better. I yield to nobody in my regard for
the common law, but nothing is perfect. I think that the Convention
has improved the position rather than otherwise.
135. You do not think there are any contrary
(Lord Bingham of Cornhill) I do not see why there
should be because the Convention prescribes a minimum and one
can always do better than the minimum if one wants to. You have
to, for example, bring somebody to trial within a reasonable time,
but you can bring them very, very quickly provided it is fair
to. You do not have to take advantage of, as it were, the worst
you can get away with. No, I do not think it should be a restriction.
I would just add that all courts err sometimes, all courts get
things wrong. In my view they have got it wrong sometimes, but
they are human and they are no different from any other court
in that respect.
(Lord Phillips of Worth Matravers) I would agree.
To suggest that the Human Rights Act has not made any difference
at all would be quite wrong. I think it has, sharpened-up is,
perhaps, not quite the right expression, focused attention on
rights which were always part of our common law rights. Now one
really looks very carefully to identify the rights in a particular
Sir Patrick Cormack
136. Would you describe it as major advance
or minor adjustment?
(Lord Phillips of Worth Matravers) I would say the
former rather than the latter, but I am not sure that either is
really an appropriate description.
137. Would you describe it as bringing rights
(Lord Bingham of Cornhill) I would regard it as a
major advance but not for the reasons that would be obvious. It
seems to me highly destructive of popular confidence in our system
of justice that people believe they have to go somewhere else
outside our own jurisdiction in order to get their rights protected.
If these are rights which should be protected then they should
be protected here. Therefore, I think there was an insidious corruption,
really, of popular confidence in the justice system, which one
could not imagine existing in the United States, for example,
a feeling that you would have to go somewhere else outside the
United States in order to get a judge to listen to your complaint.
I think myself in that respect it is a great advance, yes.
Chairman: That is a very appropriate point at
which to stop and thank both of our witnesses, Lord Bingham and
Lord Phillips for appearing before us today. I am sure the Committee
found it very enlightening and I hope you enjoyed your session.
Thank you very much.