Memorandum by Lord Donaldson of Lymington
INTRODUCTIONIt appears
that the primary sources of information for the Committee are
the Bill itself and the written evidence of Lord Falconer which
in some respects foreshadows actual or possible changes in the
thinking of the Government. It therefore seems sensible to base
my comments on these two documents and in large measure to follow
Lord Falconer's order of presentation.
SUMMARY
A. Abolition of the office of Lord Chancellor
This office could have been saved but for the
fact that there is no longer any likelihood that the Prime Minister
and all members of the Cabinet will in future accept his historic
role as protector of the Judiciary and of the Rule of Law as being
of overriding importance. (Paragraphs 1-3)
B. Independence of the Judiciary and support
for the Rule of Law
Clause 1 of the Bill with its support for the
independence of the Judiciary is very welcome, but the Bill contains
no express support for the maintenance of the Rule of Law. (Paragraphs
4-5)
C. Independence and accountability of individual
judges
Neither the Bill nor Lord Falconer's evidence
show any appreciation of the independence of every judge from
every other judge, or at least in the case of the senior judiciary,
that their only accountability is to the law and to their own
conscience. (Paragraphs 6-11)
D. Judicial discipline and the role of the
Ombudsman
Clauses 83 and 84 and paragraph 356 of Schedule
1 are not compatible with the status of senior judges as being
removable only on a joint Address of both Houses of Parliament.
Nor is the proposed role of the Ombudsman. Detailed amendments
are suggested. (Paragraphs 12-19)
E. Separation of the Judiciary from the Legislature
This issue involves two quite distinct issues,
namely, (a) whether the new Supreme Court should operate from
premises outside the Palace of Westminster and (b) whether serving
judges should be disqualified from sitting or voting in the House
of Lords. Lord Falconer's evidence fails to make this distinction
although quite different considerations apply. (Paragraphs 20-34)
F. Independence of the Justices of the new
Supreme Court
Two comparatively minor points arise concerning
compulsory retirement upon medical grounds. (Paragraphs 35-37)
G. Jurisdiction of the new Supreme Court
The Government's proposals amount to adding
a new appellate tier to the courts of each of the three national
jurisdictions rather than creating a new United Kingdom Supreme
Court . . . This results in rights of access to the court differing
according to the court appealed from and in the binding nature
of its judgments affecting the jurisdiction of that court rather
than the system of law giving rise to the issue in the appeal.
(Paragraphs 38-41)
H. Financing of the Court
The Government proposes to save central funds
some £3.6 million per annum and to impose a tax upon litigants
of some £6.6 million. This is a splendid idea from the point
of the Treasury, but will widen the category of those to whom
justice is denied upon grounds of cost. (Paragraphs 42-44)
FULL COMMENTARY
Part One. Abolition of the office of Lord
Chancellor
1. Some of the reasons given for abolishing
the traditional role of the Lord Chancellor hardly bear examination.
Thus whilst it is clearly true that in recent years the department
has expanded greatly in terms of its manpower and budget and to
a lesser extent in the areas of its responsibilities, it can scarcely
compare with the Ministry of Defence or probably with the Home
Office or the Department of Health. Why then has it suddenly become
too large and unwieldy to be headed by the Lord Chancellor, parts
having to be hived off? Similarly with the arguments that (a)
the Lord Chancellor should not sit as a judge when he is a very
active and senior politician and that (b) it is unacceptable that
he should have so unfettered a role in recommending the appointment,
or himself appointing, holders of judicial offices. The answer
to the first objection is for him to announce, as Lord Falconer
has done, that he will not sit as a judge and to the second that
he will undertake the role in the context of appointments that
the Bill and the Concordat foresee for the Secretary of State
for Constitutional Affairs.
2. However the whole system whereby the
Lord Chancellor acted as the link with and protector of the Judiciary
and of the Rule of Law only worked so long as the holder of that
office regarded those duties as his overriding responsibility
and that this priority and his position as the senior member of
the Cabinet after the Prime Minister were accepted not only by
the Prime Minister, but also by all the other members of the Cabinet.
In my judgment these preconditions are no longer met and it is
clear that in any event their continuance can no longer be anticipated
with any degree of confidence. Nor do I think that it would do
other than cause confusion to apply the historic title of Lord
Chancellor to the President of the new United Kingdom Supreme
Court. I therefore conclude that, so far as this Bill is concerned,
the time has come to say a regretful farewell to an office which
is almost 1,000 years old. In saying this I express no view as
to whether it would be appropriate to retain the title for someone
fulfilling the role of "Speaker of the House of Lords".
3. That said, there are a number of other
matters touched upon in this part of Lord Falconer's evidence
which should not go unchallenged.
Independence of the judiciary
4. I fully accept Lord Bingham's statement
quoted in paragraph 30 of Lord Falconer's evidence that "what
protects it [judicial independence] most is the tradition and
the culture.". Speaking on behalf of the Lords of Appeal
in Ordinary he continued: "I could say, and I feel quite
sure we would all agree, that in over 20 years of holding judicial
office none of us would have experienced any attempt whatever
by anyone in any official position to influence any decisions
which any of us was about to make, no matter how sensitive the
case might be". My own experience, added to his, takes the
matter back for nearly 38 years. Lord Lane of Ippollittis, with
whom I was appointed to the High Court bench in September 1966,
would I am sure provide further confirmation.
Support for the Rule of Law
5. The Bill by clause 1 provides very welcome
support for this independence. What it does not do, at least in
express terms, is to affirm the fundamental obligation of the
Government, and indeed the public in general, to accept and support
the Rule of Law. The need for such an affirmation was demonstrated
very clearly in the light of clause 14 (the ouster clause) in
the Asylum and Immigration (Treatment of Claimants etc) Bill which
was passed by the Commons at the Government's insistence, but
which is to be amended in the light of widespread opposition.
Further the Constitutional Reform Bill fails to recognise that
it is fundamental to the United Kingdom judicial system as we
have so far known it that every judge is independent of every
other judge. This is particularly relevant to the statements in
Lord Falconer's evidence and the provisions of the Bill relating
to discipline which seem to regard the Lord Chancellor, and by
succession, the Secretary of State, together with the Lord Chief
Justice as line managers. My problems with this require more detailed
explanation.
Independence and accountability of individual judges
6. This independence of each individual
judge from any other judge arises in two different contexts, namely
in relation (i) to decision making and (ii) to other conduct both
within and outside court. It may also be that slightly different
considerations apply in the context of (a) those who are defined
as "Senior Judges" in clause 84(5), ie puisne judges
of the High Court and above (but not including Lords of Appeal
in Ordinary because, as such, technically they hold office as
peers rather than judges), and (b) other holders of the judicial
offices listed in Schedule 12. I say that different considerations
may apply because, since these "other holders of judicial
office", eg circuit judges, can be dismissed by the Lord
Chancellor for "incapacity or misbehaviour", clearly
they can, to this extent, be regarded as accountable to him for
their conduct. The same is not true in the case of "Senior
Judges" who can only be dismissed by the Queen in response
to a joint Address by both Houses of Parliament.
7. I write from personal experience only
in relation to the position of a "Senior Judge" since,
apart from a brief spell as a part time Deputy Chairman of Hampshire
Quarter Sessions in 1961-66, I have never served in an other capacity.
My independence and personal responsibility in relation to decision
making was confirmed and emphasised for me within about a month
of my appointment as a High Court Judge. I was due to hear appeals
against refusals of bail and was told that the list included an
application by a very well known entertainer who was charged with
a serious drug offence. In the light of the high profile nature
of the case and my own inexperience, I sought the advice of the
Lord Chief Justice (Lord Parker of Waddington) as to any policy
which he might have. He was quite clear. Bail should not be granted
in such cases. When the very unusual facts of the case were explained
to me and I came, somewhat reluctantly, to the conclusion that
this was indeed a wholly exceptional case in which it would be
unwise and indeed inappropriate to refuse bail. I therefore granted
bail. I went back to see Lord Parker and apologetically told him
that I had departed from his policy. I was at once met with: "Think
nothing of it, John. That is what you are paid for!".
8. It was not until 1971 that I had to think
about my accountability in a broader context. I was the new (and
later the only) President of the ill-fated National Industrial
Relations Court (the "NIRC"). I was showing Mr Robert
Carr (later Lord Carr of Hadley), the Secretary of State for Employment,
round the newly constructed court in Chancery Lane when he suddenly
asked me whether in my new role I was accountable to the Lord
Chief Justice. When I said that I was not, he said that I must
then be accountable to the Lord Chancellor. He was visibly surprised
when I said that I was accountable to no one. Later, whilst never
doubting the accuracy of my answer, I came to the conclusion that
I was likely to be asked the same question again and that I ought
really to formulate a less stark, but equally accurate, answer
to the question and thereafter answered "I am accountable
only to the Law and to my own conscience".
9. In the period between 1971 and 1974,
when I was continually faced with having to take politically sensitive
decisions, the fact that I was not accountable to others coupled
with the fact that I knew that I occupied an irremovable position
short of a joint Address enabled me to take those decisions much
more dispassionately and confidently than would otherwise have
been the case. It was not that I was feather-bedded. Far from
it. I used to try to explain the true situation to those who had
never been there by asking them to imagine that they were standing
on the edge of a cliff with a gusting gale force wind blowing
in their face. In taking up a leaning position designed to counter
the gusts, there was a high degree of likelihood that at some
stage they would overdo it and fall over the cliff or that they
would lean insufficiently far forward and get blown flat on their
backs. No one could stop the gale blowing, but if they could be
largely sheltered from its effects, they could just stand upright
and give complete attention to the real problem in hand.
10. That essential confidence was temporarily
undermined in my case when an Early Day Motion calling for my
dismissal was signed by a record number of members of the House
of Commons. However I was soon told that such motions were a form
of parliamentary graffiti not to be taken too seriously. The next
such motion on the Order Paper somewhat confirmed this view. It
congratulated an airline pilot on having achieved a quiet landing
at Heathrow. However I also learnt that the Government were aiming
to defuse the situation by arranging a debate on the Industrial
Relations Act, as contrasted with one centred on my activities,
and that the Speaker would inform the members that it was not
in order to criticise me in the absence of a substantive motion
seeking my removal from office. That several members nevertheless
felt free to criticise me could be shrugged off as going with
the territory.
11. Consistently with this view of senior
judicial accountability, whenever as Master of the Rolls ("MR")
I was asked for advice, whether in relation to a judicial decision
or otherwise, in giving advice I always stressed that the decision
was not for me but for the colleague seeking that advice. Occasionally
in public speeches I pointed out somewhat wryly that the Court
of Appeal team contained more Privy Councillors than did Mrs Thatcher's
Cabinet, but that, unlike her, neither I nor anyone else could
dismiss any of them! Putting it in another way, I believe that
there is great scope for leadership within the senior judicial
group, but absolutely none for a system of line management where
one judge is either accountable for the actions of another or
accountable for his own actions to another, whether that other
be the Lord Chief Justice, a Head of Division or any other judge
who has a leadership role. Line leadership is what makes the system
work as well as it does. Line management would in time transform
the ethos of the senior judicial group and would be a disaster.
Judicial discipline
12. Against this background I turn to clauses
83 and 84 and paragraph 356 in Schedule 1 of the Bill.
13. I have no problem with a senior judge
being suspended if:
(a)
he is subject to criminal proceedings (clause 83(4)(a)
as defined in clause 84(2)) or
(b)
he is serving a sentence imposed in criminal proceedings
(clause 84(4)(b) as defined in clause 84(6)) or
(c)
he is subject to proceedings for an Address (as defined
in clause 84(3)). Incidentally in the interests of complete clarity,
the word "is" in clause 84(3) at line 33 should perhaps
be amended to read "has been" so as to read: "notice
of motion has been given in each House".
In recognition of the totally independent status
of a senior judge, suspension in any such circumstances should
always be automatic and not subject to any decision by either
the Secretary of State or the Lord Chief Justice.
14. There should be no power under clause
83(5)(a) for anyone to suspend a senior judge who has been convicted
of a "criminal offence", as this could of course include
a minor motoring or other regulatory offence. On the other hand
if such a conviction were to lead to his serving a "sentence"
as defined in clause 84(6), namely " any sentence other than
a fine" then suspension should prima facie be automatic,
although it may be that the definition should also exclude suspension
of a driving licence.
15. Turning to clause 83(3), there is no
need for any statutory power to enable the Lord Chief Justice
to give advice to another senior judge. He could do so anyway.
But he should not be entitled to give such a judge formal advice,
a warning or a formal reprimand. The Lord Chief Justice should
also be unable to suspend a senior judge under clause 83(5)(c)
on the ground that he and the Minister consider this course desirable
in order to maintain confidence in the Judiciary. The only disciplinary
sanction in the case of the senior judiciary is, and always has
been, a joint Address of both Houses of Parliament. Incidentally
it is not clear why this clause 83(5)(c) power is specifically
subject to the agreement of the Minister when clause 83(2) provides
that all the clause 83 powers are subject to such agreement.
The role of the Ombudsman
16. According to what view the Committee
takes of the position of the senior judiciary, it may be necessary
to take a look at clauses 89 to 91 of the Bill which concern investigations
by the Ombudsman relating to conduct. I have no doubt that the
Ombudsman should be the first port of call for all complainants,
not least because I would expect that most will be found really
to amount to a complaint that the court or judge reached the wrong
decision. This is an inadmissible category of complaint which
is better dismissed by the Ombudsman than by a judge.
17. For the rest I would in principle prefer
that the facts should be found by the Ombudsman. However at least
in the case of complaints against senior judges I think that he
should make a purely factual report to the Lord Chief Justice.
He should express no view as to whether, on the facts so found,
the complaint should be upheld or as to what action should be
taken. What happens then would be a matter for the Lord Chief
Justice and the senior judge who was the subject of the complaint.
If the facts as found by the Ombudsman justified the complaint,
honour would usually be satisfied by an apology from the judge
concerned, even if privately he did not agree with the Ombudsman's
findings. In more serious cases, which would be a great rarity,
the senior judge concerned would have to give consideration to
resigning and in that situation would, I hope, give some thought
to the damage which would be done both to his reputation and to
that of the senior judiciary if, instead of quietly resigning,
he forced the Lord Chief Justice and the Minister into supporting
a joint Address.
18. Some members of the Committee may think
that my views on the individuality and lack of accountability
of one judge to another do not square with the strict rules of
seniority which exist within the profession. Judicial seniority
depends solely upon the level of appointment held and the date
of being apppointed. The reconciliation is to be found in the
fact that seniority is of minimal importance in judicial life
against the background of the deep seated individualistic culture
and ethos of the judiciary. In the case of judges drawn from the
Bar this is inculcated in them from pupillage. The sole function
of judicial seniority is to determine who walks in front of whom
in formal processions, who presides in a multi-judge court and
who sits on the left and who on the right of the presider. In
my time it also determined who was the "housekeeping judge"
where more than one judge was in the Lodgings. It also enabled
the senior judge to claim the right at meal times to sit with
his back to the fire or, as the case might be, to the night store
heater!
Sentencing Guidelines Council
19. One last point. Paragraph 356 of Schedule
1 of the Bill amends section 168 of the Criminal Justice Act 2003
to enable the Secretary of State with the concurrence of the Lord
Chief Justice to suspend from office a "judicial member"
of the Sentencing Guidelines Council "on the grounds of incapacity
or misbehaviour". Contrary to principle, no distinction is
made between a judicial member who is a senior judge and one who
is in the Schedule 12 category. I imagine that this is an oversight.
Part Two. The new Supreme Court
Separation from the legislature
20. This aspect of the Bill is addressed
in paragraphs 50-55 of Lord Falconer's written eveidence. In studying
this evidence it is important to bear in mind that these paragraphs
address two quite separate questions, namely, (a) should we have
a new supreme court which operates from premises outside the Palace
of Westminster and has some name other than "House of Lords"
and (b) should the justices of the new court be prevented from
performing even an advisory function in the upper House of Parliament?
Although Lord Falconer's eveidence is presented in such a way
as to give the impression that he is addressing the first question
he is in reality addressing the second.
21. Personally I have no problem with the
establishment of a new independent Supreme Court operating from
suitable premises outside the Palace of Westminster and replacing
the old independent final court of appeal operating from within
the House of Lords. As the latter was in no real sense a part
of the House of Lords as a legislative body, this is not a monumental
change. Such a move would quite clearly provide added value in
terms of the considerably improved facilities which could be provided.
It would also give the new court a higher profile and draw attention
to the operation of the rule of law at the highest level. It might
more easily enable the public to observe the court in action,
although departing observers might wonder whether "action"
was quite the right word.
22. However where I have very considerable
problems is with clause 94(2) and (3) of the Bill which, while
permitting judicial officers of any level to receive a writ of
summons to attend the House, prevents them from sitting or voting
thus reducing their status to that of social members. There are
to be no exceptions. Not even the Lord Chief Justice with his
pivotal role under the "Concordat" is to be excepted.
This would indeed be a monumental change which needs to be justified
and I do not think that Lord Falconer's evidence achieves this.
23. When I was appointed to the High Court
bench Lord Gardiner, the then Lord Chancellor, presented me with
my patent of appointment, rather disappointingly attested only
by the Clerk to the Crown in Chancery whereas my previous appointment
as Deputy Chairman of Quarter Sessons had been signed by the Queen
personally, together with a copy of the famous "Kilmuir letter"
and a Writ of Summons. The writ was in these terms: "We strictly
enjoining command you that all other things laid aside you be
personally present at Our said Parliament with Us and others of
Our Council to treat of the aforesaid affairs and to give your
advice (emphasis supplied) and this you may in nowise omit".
Lord Gardiner explained that it was customary not to take the
writ too literally, but it does emphasise that one of the historic
functions of the Higher Judiciary was to advise the legislature.
So long as there were sufficient members of the House who held
or had held "High Judicial Office", it was understandable
that the writ should be treated as a formality, but the fact that
I and all others in the same position continued to receive such
a summons at the beginning of every succeeding Parliament until,
in my case, I was appointed a member of the House, is perhaps
not without significance.
24. In paragraph 51 of his written evidence
Lord Falconer delivers himself of the platitude that "judges
are not legislators". He might have added that "Archbishops
and Bishops are not legislators", but all that this amounts
to saying is that neither Judges, Archbishops or Bishops are appointed
to their respective offices because of their skills as legislators.
But there is no reason whatsoever why they should not perform
both roles. My recollection is that Lord Falconer in giving oral
evidence accepted that there was no reason why an elected member
of the House of Commons, who must be regarded as an architypal
legislator, should not combine this with being a judge, albeit
on a part time basis.
25. In paragraph 52 Lord Falconer prays
in aid the European Convention on Human Rights, but as far as
I know the only objections to the present system on this basis
have been to members of the Executive appointing judges or sitting
as judges, not to judges advising the legislature.
26. In paragraph 53 Lord Falconer says that
the Government's case for the creation of a Suptreme Court does
not rest solely upon the theory of the separation of powers. If
it did, it would have extremely shaky foundations since this theory
has never been accepted in this country's constitutional history.
Furthermore if this is now to change the first step must be to
prevent members of the Cabinet and all other members of the Government
from sitting or voting in either House of Parliament, although
they could, following the precedent of clause 94, receive writs
of summons and remain social members of either House.
27. The same paragraph goes on to allege
that there have been a number of very practical examples where
the dual role of the Law Lords as members of the Appellate Committee
and of the Upper Chamber have raised questions about their ability
to sit on specific cases. Leaving aside the position of the Lord
Chancellor of which this is undoubtedly true, the Committee may
wish to ask for details of such cases where the dual role has
created problems. Problems can always arise out of personal connections
which create an appearance of bias and therefore call for the
judge to recuse himself, but that is a different matter.
28. Lord Falconer also raises the spectre
of a Law Lord being "lobbied in the corridors of Parliament
whilst hearing a case". Quite apart from the fact that fellow
peers would be the most unlikely group to try to do anything of
the sort because of their acute awareness of the constitutional
proprieties, why does he think that this could not equally happen
outside "the corridors of Parliament" in one of the
Inns of Court, in a club or in 101 other different social environments?
29. In paragraph 54 Lord Falconer seems
to suggest that it was as a result of the risk that a Law Lord
might have to withdraw from hearing a particular case because
of comments which he had made in the House when the legislation
was being considered that, in June 2000, the Senior Law Lord made
the much relied upon Statement as to the circumstances in which
the Law Lords would feel inhibited from speaking in the House.
I have no idea why the statement was made at that time, but two
things need to be said about it.
30. The first is that it does do no more
than emphasise the need for Law Lords to exercise caution when
speaking or voting in the House. It in no way supports the total
ban proposed under the Bill. Indeed it is wholly inconsistent
with it. Second it states or restates what I have always understood
to be the position since I first entered the House, namely, that
not only Law Lords, but retired Law Lords and senior judges such
as myself who have never been Law Lords, should in general avoid
becoming involved in matters of strong party political controversy.
The reason for this is that it is of the utmost importance not
to risk damaging the reputation of the judges as independent non-political
servants of the state. This damage can be done whether the member
of the House is a serving or retired judge. If he celebrates retirement
by becoming an enthusiastic party supporter the obvious inference
would be that whilst in office he was a closet party politician.
An important exception exists where intervention is necessary
in the interest of supporting the Rule of Law or expressing expert
views upon issues relating to the administration of justice.
31. As to the second part of the statement,
judges are well used to administering the law as they believe
it to be, rather than as they think that it should be, and it
is quite difficult to think of a situation in which they would
have a discretion the exercise of which might be thought to be
influenced by their personal predelictions. In any event this
risk is not confined to views expressed in Parliament but extends
to all public utterances whether in the form of lectures or learned
articles both of which have alwsays been regarded as acceptable
vehicles for the propogation of a judge's views. On one occasion
after giving judgment in the commercial court I detected considerable
surprise at my conclusion as to a point of law. It transpired
that the solicitors for the losing side held an opinion which
I had written for other clients some time before on the basis
of which they expected to win. I expressed my sympathy, but said
that the point no longer seemed to me now as it had seemed to
me then.
32. My recollection of the Kilmuir letter
is that it bad judges to keep their mouths firmly shut at all
times lest by opening them they might harm the reputation for
wisdom which it said was attached to the judicial office. I thought
that it was daft when I first read it and I am sure that the Senior
Law Lord would not support it. Nor, I would hope, would Lord Falconer.
I prefer the view of Lord Nichols of Birkenhead who has stated
in forthright terms that both Parliament and the Judiciary have
much to gain by each learning more about the other and that this
process need in no way undermine the independence of the Judiciary
or exert undue influence on Parliament. For my part I would be
quite happy for judges to refrain from voting in proceedings in
the House or, if necessary being debarred from doing so, but they
above all people should be capable of using discretion in deciding
when to tender advice and as to the terms in which it should be
expressed. I see no reason why the one place where they should
be unable to do so should be Parliament. If judges were only able
to express their views through the media, it would reduce their
contribution to that of just another lobby group.
33. In paragraph 55 Lord Falconer suggests
that "a fault line is beginning to open up in our constitutional
arrangements" and suggests that the growth of judicial review
cases over the last 50 years (actually 30 years) makes this fault
line more apparent. I know of no such fault line. Whatever the
Home Secretary may think and say, judicial review decisions depend
solely upon the extent of the powers and duties conferred upon
the authority whose conduct is being reviewed. On the other hand
this Government is following a well trodden path taken by governments
of both political persuasions when it deplores the growth of judicial
review as it affects central government and, if it were a practical
option, would prefer to be be rid of it.
34. In my view none of the reasons put forward
as a justification for clause 94 achieve this objective. However
the explanation for the clause being included in the Bill is not
difficult to detect. Critical judicial advice expressed in Parliament
is far more influential than any such advice expressed elsewhere.
Independence of the justices
35. Clause 24 provides that justices of
the new court shall hold office during good behaviour , subject
only to removal on an Address of both Houses of Parliament. This
will bring them into line with the senior judges of England and
Wales. At present the Lords of Appeal in Ordinary are not, I think,
subject to the possibility of such removal because their status
is parliamentary rather than judicial. Their status would become
judicial under clause 17 of the Bill, whether or not they happened
to be peers. Hence clause 24.
Medical retirement
36. This is the subject of clause 27 and
is clearly based upon sub-clauses (8) and (9) of section 11 of
the Supreme Court Act, 1981, which applies to all senior judges
of the English and Welsh judiciary. So far as I am aware it has
never been used and I think it most unlikely that it will ever
be used. I say this because not only is it a rare occurrence for
a senior judge to be disabled by permanent infirmity from the
performance of the duties of his office, but the clause only applies
if for the time being he is incapacitated from resigning his office.
It was enacted in the light of a case in which a senior judge
became the victim of mental illness of such severity that he had
to be certified and confined to a mental hospital. In that situation
he clearly did not have the capacity to resign. This power did
not exist at the time and, faute de mieux, it was simply
announced that he had resigned. As I have said, I think it most
unlikely that its very restrictive condition as to the lack of
capacity to resign will ever again be met but its inclusion in
the Bill does no harm.
37. However there might be a case for a
new statutory power for compulsory retirement on medical grounds
in a case where the judge was disabled by permanent infirmity
from performing the duties of his office was capable of forming
the intention of retiring, but did not readily see the necessity
for doing so. Of course there are problems in defining the degree
of disability which should trigger the power to compell retirement.
Such very small experience as there has been of such a situation
suggests that pressure from fellow judges would in the end resolve
the problem. If however this were to be put on a statutory basis
and applied to justices of the Supreme Court and to senior judges
in England and Wales, I doubt whether a single medical certificate
should suffice. I think that the incapacity should attested by
the opinions of two medical practitioners of appropriate consultant
status. I also think that in the case of all senior judges in
England and Wales the concurrence of at least two Heads of Division
should be required and that the precedent of clause 11(9) of the
Supreme Court Act 1981 which requires only the concurrence of
the Master of the Rolls in the case of a Lord Justice of Appeal
and that of the relevant Head of Division in the case of a puisne
judge should not be followed.
Jurisdiction
38. I do not understand why the draftsman
has included clause 31(2) giving an express right of appeal to
the Supreme Court from any order or judgment of the Court of Appeal
in civil proceedings, instead of simply substituting Supreme Court
for House of Lords in the appropriate existing statutes. However
I fully accept that I have probably overlooked something.
39. Clause 31(3) in effect provides that
those aggrieved by a Scottish decision in criminal law shall have
no right of appeal, but in the case of a decision in civil proceedings
need only obtain a certificate of approval from two leading counsel.
Paragraph 60 of Lord Falconer's evidence explains the Government's
more general approach: ". . . we intend the Supreme Court
. . . to be a UK institution but applying English, Scottish or
Northern Ireland law according to the jurisdiction from which
the appeal originated. This means that as with the House of Lords
when exercising the same jurisdiction, its decisions are to be
binding only in the jurisdiction from whence the case has come,
in each of the other jurisdictions its value as precedent would
be persuasive only". Rather than providing a supreme court
for the United Kingdom, this approach just adds a new separate
top floor level to each of the three national jurisdictions.
40. There are a number of alleged justifications
for this approach:
(a)
Justice is a devolved matter. But United Kingdom
Parliament is being asked to legislate for a new United Kingdom
Supreme Court and it is difficult to see how a prior decision
to devolve the then existing jurisdiction of the Scottish courts
can stand in the way. Parliament can never bind its successor.
(b)
There has been no demand from the people of Scotland.
Well I would not expect them to demand a new limitation on the
right of appeal in civil cases and I doubt whether anyone has
sought the views of dissatisfied Scottish criminals.
(c)
That Scottish law is so different that we must have
a system whereby decisions on appeal from the courts of the three
national jurisdictions are, in effect, the decisions of separate
Supreme Courts, the decisions being binding on the courts of the
jurisdiction appealed from but only persuasive in the case of
the courts of the other jurisdictions. This seems to be bound
up with the fears expressed by Lords Cullen of Whitekirk and Hope
of Craighead that the thoroughbred character of Scottish law may
be damaged by some, perhaps subconscious, interbreeding with the
other two systems (see paragraph 62 of Lord Falconer's evidence).
41. There are three comments which need
to be made:
(a)
The first is to question whether it would be such
a bad thing if rights of appeal were the same throughout the United
Kingdom, particularly in relation to criminal law. Leaving aside
regulatory provisions, can it really be desirable that what is
or is not a crime or that the elements of a criminal offence shall
be different on either side of a land border?
(b)
The second is to enquire over what areas of law these,
no doubt considerable, differences exist. Do they extend beyond
personal status and personal and real property, ie matters of
an essentially local character, although none the less important
for that. It would be a disincentive to trade if they extended
to commercial law but no one would wish to interfere with local
law which meets the needs of the inhabitants.
(c)
The third is to suggest that there exists a fundamental
confusion of thought over the difference between on the one hand
jurisdictions, which are normally geographical and related to
where judgments can be enforced, and national systems of law which
may need to be considered by courts of "foreign" countries
either as a result of the application of the objective rules relating
to the conflict of laws or by the election of the parties. The
result of proceedings against an English resident in an English
court may turn, at least in part, upon the application of Scottish
law and vice versa. Suppose that an English court was faced
with a dispute under a contract to sell land in Scotland, which
the parties had specifically provided should be governed by English
law. Surely on an appeal to the new United Kingdom Supreme Court
that court should be capable of giving binding rulings as to issues
of both English and Scots law which had arisen in the case and
not only the English law issues.
Financing of the Court
42. In paragraph 84 of his written evidence
Lord Falconer records that it is the Government's intention in
the next financial year to set fees for litigants at a level which,
excluding those fees which are remitted, exempted or subsidised,
will recover 100 per cent of the cost of the civil courts in England
and Wales. I am not sure whether this exclusion means that the
whole cost will be recovered from fees which are not excluded
or that what is to be recovered is the whole cost less an amount
equal to the excluded fees. Either way the burden which will fall
upon those who are forced to litigate will be huge and for many
this approach will amount to a denial of access to justice leaving
fewer to contribute towards this recovery of costs.
43. It may be appropriate to remind the
Government that in under developed societies, in which the government
provides assistance with neither education, health nor housing,
there is nevertheless likely to be some state provided rudimentary
system for resolving disputes between citizens. Whilst this priority
is probably dictated in part by the need not to allow dispute
resolution to result in the death or wounding of a high proportion
of the population and clearly that is not a consideration in the
United Kingdom, it remains the fact that the provision of assistance
with access to civil justice should be regarded as a major central
government responsibility.
44. In the context of a new Supreme Court
it is regrettable that the Government should seek to recover the
costs by a surcharge or tax on fees charged in national courts
rather than meeting these costs itself. Whatever the benefits
to be derived from the creation of the new court, they are not
likely to be discernible by the average litigant in a national
court. On the figures given in paragraphs 87-89 of Lord Falconer's
written evidence it appears that the Government proposes to relieve
itself of expenditure amounting to £3.6 million per annum
and to impose a new burden of £6.6 million on the unfortunate
litigants. This is a splendid idea from the point of view of the
Treasury and the taxpayer, but will widen the, already too wide,
category to whom access to justice is denied upon grounds of cost.
April 2004
Note. This written evidence is submitted
by Lord Donaldson on an individual basis. He became a judge of
the High Court in 1966, of the Court of Appeal in 1979 and was
Master of the Rolls from 1982 until 1992. He has been an independent
crossbench member of the House of Lords since 1988.
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