Examination of Witnesses (Questions 220-235)
BARONESS HALE
OF RICHMOND
AND LORD
JUSTICE MAURICE
KAY
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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