Memorandum by Dr Stephen Cretney QC (hon)
FBA
WITNESS'S
STATUS
1. I am an academic lawyer, an Emeritus
Fellow of All Souls College Oxford, a Fellow of the British Academy,
and a Queen's Counsel (Honoris Causa). I practised for
some years in the City of London as a Solicitor, and served as
a Law Commissioner between 1978 and 1983. I have a long-standing
interest in the process of law reform. For the past 10 years I
have been engaged in research into the history of English Family
Law, and the archival work done in that context has given a particular
focus to that interest. I write entirely in a personal capacity.
THE OFFICE
OF LORD
CHANCELLOR
2. I believe there is a case to be made
for reform in three areas dealt with in the Bill. I believe that
case to be strongest in respect of judicial appointments, and
least strong in relation to the abolition of the office of Lord
Chancellor (as distinct from altering some of the functions of
that office). If the office is to go, however, I do not understand
why it should be replaced by a "Department for Constitutional
Affairs". Many of the matters dealt with by the Lord Chancellor
relate to the private law (for example, family law, will, trusts,
land law) and are not in any conventional sense of the word "Constitutional".
To adopt that title suggests that the importance of the private
law in the daily lives of many citizens is being undervalued.
I believe that most (if not all) the member states of the European
Union have a Ministry of Justice or a Ministry for Legal Affairs
(headed by a Secretary of State) and it is not clear to me why
this latter title should not be adopted here.
INVOLVEMENT OF
THE JUDICIARY
IN THE
LEGISLATIVE PROCESS
3. My research has convinced me of the very
great value of the contribution made by the Law Lords to the legislative
process by scrutiny of Bills and contributing to debates. Equally,
they have (especially I think in recent years) made important
contributions by serving on Committees. What is in issue are technical
and practical matters. Although it might be possible to find other
sources of this professional expertise it seems to me rash to
deprive the Legislature of it without there being a clear plan
for providing an acceptable alternative. The contribution which
lawyers almost necessarily have to make in the legislative process
seems to be being undervalued.
PROTECTING THE
RULE OF
LAW: THE
LORD CHANCELLOR
IN CABINET
4. I have noted the discussions which have
taken place about the Lord Chancellor's role, as a senior cabinet
minister, in safeguarding the rule of law but am left with a feeling
of unease that this function is in future apparently to be served
by a Secretary of State, possibly comparatively junior, possibly
in future not a lawyer (and, even if a lawyer, probably not having
had a substantial career outside politics comparable to that traditional
for the Lord Chancellor). I appreciate that this matter is complicated
by changes in the career patterns and working practices of Members
of Parliament and equally by changes in the way in which Government
decisions are taken (notably the delegation of many issues away
from Cabinet). But I would have thought there is a case to be
made for a careful examination of the way in which legal insight
is made available in the highest level of executive decision taking:
the role of the Law Officers (the Attorney General not in recent
years having been a member of the Cabinet) and the responsibilities
of the Parliamentary Counsel are relevant. In this context the
argument often used in debate that one no more needs a lawyer
to be responsible for legal matters than one needs a doctor to
be responsible for health services is based on a false analogy.
Governments merely arrange for the provision of health care; but
they actually create law.
5. As stated, I believe there is a strong
case to be made for giving greater formality to the procedures
for judicial appointments. The traditional argument in favour
of the Lord Chancellor's historical role is founded on his personal
knowledge of those concerned, but this is no longer convincing
at a time when (for example) there are as many as 600 circuit
judges. Hence I favour the creation of an Appointments Commission,
but would wish to comment on two (related) matters:
(a) Appointments by the Commission are to
be "on merit": clause 51(3) but there seems to be no
express provision to that effect in respect of appointments to
the Supreme Court. This perhaps provides an opportunity to question
whether "merit" is so objective a matter (particularly
at the appellate level) as seems usually to be assumed. For example,
it would be perfectly possible to identify two people of outstanding
technical ability as lawyers but with markedly differing attitudes
on social issues, perhaps of the kind which arose in the Gillick
case (availability of contraception to young women) and which
seem certain to arise more frequently in deciding issues under
the Human Rights Act. Are those attitudes relevant to a determination
on the candidates' respective "merits"?
(b) I happen to believe that such matters
might properly be taken into account when appointing a judge and
especially an appellate judge: to that extent judicial appointments
are properly "political" in the broad sense. For this
reason, I (unlike most commentators on the Bill) see nothing wrong
in giving the ultimate decision taking power to a Minister. But
equally I wonder whether there is any convincing reason for taking
the formal power of appointing Lords Justices—who play such
a vital part in the development of the law—away from the
Prime Minister and vesting it in the Secretary of State?
6. There seem to me to be a number of problems
about the concept of a United Kingdom Supreme Court. There may
well be questions about such matters as where the Court sits,
and about the number of members required to deal with appeals
on private law matters (given, especially, the fact that the private
law of Scotland is wholly different from that of England and Wales).
But one particular matter which seems strange is the requirement
(clause 21(4)) that a list of Candidates for appointment to the
Supreme Court must be given to (amongst others) the National Assembly
of Wales. Does this mean that the list will become public knowledge?
And is there to be anything to stop public debate in the Assembly
about a particular appointment?
7. Finally I note that the Bill places a
great many duties on the Lord Chief Justice. Perhaps this is inevitable,
but I do not think the transformation of the Head of the Judiciary
into a judicial administrator, with little time for involvement
in the trial and appeal process should pass without comment.
21 April 2004
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