Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 220-235)


4 MARCH 2008

  Q220  Lord Morris of Handsworth: Taking a neutral dispassionate view some would argue that the Commission's way of operating is more about process and the pool from which it draws has not been widened at all. Would you share that view and, if you do, would you wish to see the pool widened?

  Baroness Hale of Richmond: I definitely want to see the pool widened but I would not want to cast any aspersions on the Commission at this early stage of its operation. I would be saying things for which I do not have the evidence and it would be unfair.

  Q221  Lord Morris of Handsworth: My invitation is still open to you, Lord Justice Kay.

  Lord Justice Kay: Your invitation is appreciated. I am not forthcoming on this subject for a number of reasons. One is I am not a member of the Judicial Appointments Commission; two, in spite of that, I am, in the very near future, going to be involved in the selection process for the next round of High Court appointments and I would rather not say anything about it in public at this stage.

  Q222  Lord Morris of Handsworth: We respect your reasons entirely.

  Lord Justice Kay: The third is, with respect, I am not sure how this subject fits into this Committee's jurisdiction. That is your concern rather than mine.

  Q223  Chairman: I will try to be a little enlightening. This question comes from the South African experience where we saw, in relation to the new constitutional court in South Africa, a very different approach to finding where new able judges come from to try and break the mould of the hierarchical promotion of the judiciary from the lower courts to try and inject some new blood. The way you, Lady Hale, come from the academic world.

  Baroness Hale of Richmond: Lord Justice Kay was also a very distinguished academic but he went to the bar thereafter, whereas I started at the bar and then became an academic which is the other way around.

  Q224  Chairman: I use that as an example. Can I put to you a couple of my hobby horses about this? This is an area where we overlook the potential of widening the pool and the question is how do you think the pool could be widened. One thing which would be good to look at would be the pool of tribunal chairs who are much more reflective in terms of ethnic minorities and women who are often judging quite complex areas of the law and quite complex factual disputes as well. It seems to me that by looking solely at the traditional judicial tree we are overlooking some very competent people, who are judging quite complex cases, from the judicial selection process.

  Baroness Hale of Richmond: Could I say that the UK Association of Women Judges, which of course has members from all branches of the judiciary, takes the view that you have expressed and thinks that, although we are not talking about a career judiciary on the Continental model, there is much to be said for being much more explicit about the possibility of good people moving from one section of the judiciary to a different section of the judiciary, that there should be a more recognised way of bringing on good district judges to become circuit judges, good circuit judges to become High Court judges and the like, and similarly that the pool for appointment to all levels of the court judiciary should include people who have judicial experience in the areas of jurisdiction outside the ordinary courts. I quite agree with you.

  Q225  Chairman: That was a bit of a digression. The real issue here is, looking at the South African model, whether you see any merit in looking at a completely different way if we are trying to create a new constitutional court arrangement? Do you think we simply look at the existing House of Lords and rename it the Supreme Court or do we look at something somewhat separate to judge the more difficult constitutional issues?

  Baroness Hale of Richmond: It is a start to have a Supreme Court. That is a move that has already been done and one which I am very glad to see happen. The idea of having a constitutional court that is separate from the ordinary courts of the land I am not so keen on. It is not the common law way of doing things. Most common law jurisdictions have a hierarchy through the ordinary courts ending up at whatever the apex court is, but that court has jurisdiction in things other than constitutional questions. Of course one's experience of judging ordinary questions feeds into one's experience of judging constitutional questions. We do that in the Privy Council. We do that in the House of Lords at the moment. Just to be landed with constitutional questions, it is not always easy to find out when they are going to come up. Human Rights Act questions come up in any sort of case. In my own former jurisdiction of the family court, human rights were involved in any decision where you were going to take a child away from her parents. That involved Article 8 automatically so one was into Article 8 as well as the domestic law and that can happen in other areas of the law as well. To hive them off to be dealt with by a separate institution that only dealt with that does not seem to me to be practical.

  Q226  Earl of Onslow: I have heard said among some of my judicial friends that the move from the Judicial Committee of the House of Lords to a new Supreme Court will give the judges, in the old fashioned language, ideas above their station and they will start acting much more as a Supreme Court in the way we know it in possibly the United States or Germany or Canada and not in the way that the House of Lords Judicial Committee did. Do you agree with that judgment or am I getting the wrong end of the stick? Is there some substance in it?

  Baroness Hale of Richmond: With respect, I do not agree. I think that we will continue to do the jobs that we think parliament and the common law have given us to do. I do not see us becoming more adventurous just because we are in a different building.

  Q227  Earl of Onslow: You will do exactly what the old Judiciary Committee of the House of Lords did at twenty times the cost, is that right?

  Baroness Hale of Richmond: Pass.

  Chairman: That is not a fair question. That is a resources question.

  Q228  Mr Sharma: In principle, should it be a relatively simple matter for parliament to legislate to reinstate what you consider to be clearly its original intention about the meaning of public function when passing the Human Rights Act?

  Baroness Hale of Richmond: Thank you for asking me that. I do not think there is any case I have been involved in since I was in the House of Lords that has caused me more grief, because I like to try and respect Judge Learned Hand's advice, which is that "the spirit of liberty is that spirit which is not too sure that it is right". As a judge I try not to be too sure that I am right. But I was absolutely sure that Lord Bingham and I were right in that case.

  Q229  Chairman: We were sure you were right as well.

  Baroness Hale of Richmond: How to put it right? One of the problems is that putting it right is not straight forward because the object of the provision was to be capable of applying to a wide range of functions rather than having a little list. Of course, one way of putting it right is to have a little list but you will always miss something of a little list, or possibly sometimes put something on that should not be there, but there is a much greater risk of leaving something off. It can be put right in relation to the particular context of that decision but even that is not particularly straight forward. How to legislate is a matter for parliamentarians and not for judges. Going back to when I was a Law Commissioner and did recommend legislation, I wonder whether it would be possible to do it by reference to a list of factors which had to be taken into account in deciding whether something was a function of a public nature. The factors are fairly clearly listed in the opinions of Lord Bingham and myself in that case. If it says if you tick enough of those factors that is a public function, that might be a way of putting it but I merely put that on the table as a possibility. Parliamentary Counsel will no doubt rubbish it.

  Chairman: I will bear that in mind for my Private Member's Bill.

  Q230  Mr Sharma: If there were to be a British Bill of Rights with the same intended scope of application as the HRA, how could parliament ensure that the courts do not do the same as they have done to the scope of the HRA.?

  Baroness Hale of Richmond: I have made a suggestion and that may be the best way of doing it.

  Q231  Mr Sharma: How revolutionary would it be to follow South Africa's example and provide for some rights to have a degree of application to private parties according to the nature of the rights.

  Baroness Hale of Richmond: It would not be tremendously revolutionary because we have already, in a sense, applied concepts from the Human Rights Commission in situations between private parties, the Naomi Campbell case being one of them, in which we obviously balanced her right to respect for her private life against the newspaper's freedom of expression. We did that explicitly by reference to the two Convention rights involved. Our reason for doing that was that we, as courts, are public authorities and we, therefore, have to act compliantly with the Convention rights. We cannot make orders that are incompatible with the Convention rights of either party so in that way we introduce obligations on private individuals and companies to respect the rights of others. It is not that revolutionary. Again, the way the South African constitution does it is rather neat, is it not? It is quite vague but it provides a mechanism for saying we will do it in appropriate cases and not in inappropriate ones.

  Q232  Chairman: This is an issue of quite general concern to the public. You get people who come into your constituency surgery and they bang the table and say "I know my rights" and that is the last thing they usually do and most of the things that people think are human rights are not at all. The real issue is when you tell people, take the YL case, even if you were right in your interpretation of that, and we think you are but you are in the minority, even then private funders would still be excluded from the Human Rights Act as against their carer potentially people are horrified at that concept. What is quite interesting is the consequence and the fall-out as to how this debate has actually broadened out beyond the narrow confines of what parliament intended into this wider social question. I suppose what we are at looking is horizontality in a more general way. If we were to look at things like what has become known as third generation rights, such as rights to a clean environment, they would not have any meaning if you had that horizontality approach beyond the State. There is going to be the kind of case you referred to where you are effectively balancing up two conflicting rights and trying to find where the fair balance between the two lies. I am not sure there is a question there.

  Baroness Hale of Richmond: I was trying to work out the question.

  Q233  Chairman: It was more of a comment from me and I do not know if you want to say what you think of that as a proposition.

  Baroness Hale of Richmond: My shopping list did not include environmental rights. That is one reaction to your question, largely because I think the British way is to do things in small stages, is it not, and not to leap from a Convention which is mostly along the lines of the ones we were talking about into these very third generation rights which would be a huge leap. Of course if parliament wants to take it, we will do our best with it. But using the existing ones to balance two individuals or private parties' rights in the existing ones or in slightly developed ones would not be a huge leap forward I do not think.

  Lord Justice Kay: I have nothing to add. I agree with that.

  Q234  Chairman: That last question is the issue of responsibilities and whether you feel responsibilities should be included in a Bill of Rights. When we were in South Africa we kept asking the judges there what responsibilities meant, and although responsibilities, or an equivalent phrase, are in the South African constitution nobody had the faintest idea what it meant. I do not whether (a) you think it is a good idea or (b) what you think it might mean.

  Baroness Hale of Richmond: I am very reluctant to say anything that trespasses on issues that might appear to be different as between different political parties. I get a slight sense that they might be. What we have just been talking about, the balancing of rights between different individuals, there are obviously responsibilities involved in that. There are responsibilities involved in a free press not to trespass on certain people's privacy rights. There are responsibilities involved in having a family not to do harm to your children. There are responsibilities inherent in quite a few of the rights as they are and that seems uncontroversial and not difficult. The approach to horizontality that we talked about, is uncontroversial and not any more difficult than any other bit of judging is, but going further than that would be quite difficult. I say no more.

  Q235  Chairman: Do either of you want to add anything to what you have said?

  Lord Justice Kay: I would agree with what Lady Hale has said about responsibilities. It seems to me to be a difficult area. I think it is probably an area that comes within the scope of what I was saying before about aspirations and generalities. I do not think anybody has suggested that fundamental rights should be dependent upon a discharge of personal responsibility and once one goes beyond that one may be getting outside the area of justiciability. I do not think there is anything I want to add.

  Chairman: Thank you both for your time. I know you are both very busy people and we appreciate you coming to talk to us today.

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