Select Committee on Constitutional Reform Bill Written Evidence

Memorandum by Edward Garnier QC MP (Harborough, Conservative) made on his own behalf and on behalf of the Society of Conservative Lawyers


  It is undeniably true that the Lord Chancellor's department has taken on a number of new responsibilities since 1997. It now covers the courts and tribunals, freedom of information and data protection, human rights, Lords and other constitutionals reform, judicial appointments, party funding, electoral law and policy, civil and criminal law, legal aid, and royal, church and hereditary issues. It has a budget measured in billions and has been described by Professor Diana Woodhouse in her article in Legal Studies for March 2002, "The office of Lord Chancellor: time to abandon the judicial role—the rest will follow", as a "resource-hungry department at the centre of government, which operates under the same management and value-for-money regime as other industries." The Department has become a significant government department and the balance in the Lord Chancellor's functions has, according to Professor Woodhouse, "moved away from the judicial, towards the executive and political, a shift which means that increasingly executive responsibilities are being carried out by an unelected minister whose territorial boundaries are imprecise and subject to adjustment at his and the Prime Minister's dictate."

  In addition to these criticisms of the present role of the Lord Chancellor a number of Law Lords, most notably Lord Steyn, want him to stop sitting as a judge in the Judicial Committee. "It is no longer acceptable that alone among constitutional democracies our country does not have a supreme court. Public confidence in the administration of justice would be enhanced and the public interest would be advanced if the highest court in the land ceased to be a committee of the legislature. What is required is a proper supreme court as an independent branch of government in our parliamentary democracy in which the final word rests with Parliament." These arguments are perfectly respectable and have certain neatness to them. They are eminently rational. But one of the strengths (and joys) of the British constitution is that it is different from every other constitution and yet wholly capable of protecting the rights and interests of the citizen. We live by what is reasonable, not by what is rational and have seen the common law provide as much, if not more, protection for the individual against the over-mighty state as the judgments of the supreme courts of other countries with written constitutions. No amount of fiddling with the role of the Lord Chancellor will make a worthwhile difference to that.

  The Lord Chancellor untidily bestrides the constitution. We do not have a minister of justice? Is our democracy the feebler for that? Are our judges government stooges who do no more than the bidding of the politician that appointed them? Are they appointed for their political views or their legal expertise? How many times since, let alone before, the enactment of the Human Rights Bill have the courts decided cases against the government? Does not the Home Secretary, David Blunkett, fulminate against the judiciary for applying the very laws his government has passed against it? Do our courts never award damages against the police or government departments? Was not a private citizen not granted £1 million in compensation for nuisance against the Ministry of Defence, whilst the Royal Navy, our troops and the Royal Air Force were engaged in the recent Iraq war, for noisy low flying by RAF fighter jets over his house near Stamford? Is not the right to strike and to demonstrate not protected by the courts? Did Lord Irvine as the Lord Chancellor, or any other one (I accept that Lord Falconer does not sit judicially), given judgment in the House of Lords on political as opposed to strictly legal grounds or ever threatened the legislature that unless it did his party's bidding he would give judgment to redress the matter upstairs?

  To all these questions, and many similar, the last Lord Chancellor, Lord Irvine of Lairg, a man with questionable political and diplomatic skills, can justly claim to have behaved entirely properly. Like him or hate him as a party politician, he was subject to the control of parliament in all that he did as Lord Chancellor. The present office-holder, Lord Falconer of Thoroton, although he prefers a new departmental title and is also a secretary of state, is equally circumscribed by parliament and convention—at least for the present. "We have an omnipotent, omnicompetent and sovereign parliament and, to some extent, it reflects the will of the executive, but we have an independent judiciary and the function of the Lord Chancellor is precisely to maintain the independence of the courts of law and the judges. We have no written constitution and in the absence of a document we must rely on the integrity of a man. It is the function of the Lord Chancellor to fight, to his last gasp if need be, for the independence of the judiciary. He can perform that function only if he has a foot in all three camps." (Lord Hailsham of St Marylebone LC, 1979, Council of Europe).

  Politics is a business susceptible to fashion; the names and remits of government departments change as frequently as their political masters. The turf wars between the Home Office, the Office of the Deputy Prime Minister or the Departments of the Environment/Local Government/the Duchy of Lancaster/the Law Officers and the Lord Chancellor's Department will wax and wane, and no doubt the extensive political and executive role of the present Lord Chancellor will be different to that of his successor, be he Labour or Conservative, but the vital and central role of the Lord Chancellor which requires him to tread carefully along the three parallel but invisible lines of the British constitution is justified and justifiable, even in the face of demands from political fashionistas. Whilst there may be room to restructure the remit of the LCD/DCA and to depoliticise the office of the Lord Chancellor, frequently and most usefully held by people of the highest intellect and legal experience who are beyond political ambition and above the hand to hand political fighting that is modern politics, its essential purpose and functions should be maintained. The office of Lord Chancellor is not bad because it is ancient; it is ancient because it is good. An office that has served this country and its constitution well for literally hundreds of years does not need to, and must not, be abolished to answer a seven day political crisis over a Cabinet reshuffle in June 2003.


  The Government's ostensible rationale behind the creation of a Supreme Court is a purist approach to a separation of powers and embarrassment that in the 21st century we do not enjoy that. Judges, it is said, should be entirely separate from the legislature and the executive, and be seen to be so; it is anomalous that the highest court of appeal is situated within one of the chambers of Parliament[66]. But the British constitution is not purist. It has developed incrementally in an intensely practical and pragmatic fashion.

  It would be obviously unacceptable if judges became involved in party politics, and they have not done so. However, the ability of senior judges to represent the views of the judges to the House of Lords as a legislature is invaluable and all the more so at a time when the House of Commons, contrary to popular perception is almost a (practising) lawyer-free zone and when some Ministers adopt an increasingly antagonistic (and often unfair) attitude to the justice system. Equally it is no bad thing for the senior judiciary to have some exposure to party political opinion. They do so by being members of the House of Lords and because they are physically based in Parliament.

  The current system represents very good value for money for the taxpayer. The House of Lords, unlike most other Supreme Courts, costs little more than the Judges' salaries (which are modest by comparison to the earnings of those at the top of the Bar and the Solicitors' profession). There is little administrative back up. The Judges do not have assistants[67] or advocates general and référendaires[68]. So there is no cost of a separate building, let alone a separate secretariat. Perhaps above all, the House of Lords judges write their own judgments, so they reflect their own reasoning and conclusions, as opposed to their assistants'. A Supreme Court will be much more expensive. Some Law Lords have already called for the Government to ensure that the new court will be able to discharge its functions effectively. First there has to be a dignified building, fit for a co-ordinate branch of government. Then there must be sufficient resources for the Supreme Court. This may be justified, but it will be very expensive. That expense will not produce much benefit, tangible or intangible, in attracting business from abroad. By contrast, a new Commercial Court, a project strongly demanded by the City of London, would bring real commercial benefit to the country.

  The quality of the judgments of a Supreme Court will not be better than those delivered by the current House of Lords' Judicial Committee and they may be worse if a new appointments system substitutes political correctness for merit as the basis for appointment.

  So again the starting point with the proposed creation of a Supreme Court must be this: will it be a substantial improvement on the current system? Given the cost of providing new premises and the creation of a new bureaucracy, will it all be worthwhile? Given the other demands in the legal field on a limited budget, for instance for a new Commercial Court, is this the best use of those resources? Unless the answers to these questions are clearly in the affirmative, there is much to be said for retaining the Judicial Committee of the House of Lords as our highest court.

  In the House of Commons on 4 December 2001 the Parliamentary Secretary to the Lord Chancellor's Department, Mr Michael Wills MP announced:

        As we made clear in our White Paper on reform of the House of Lords, published last month, the Government have no plans to alter the current arrangements under which the Law Lords are members of the House of Lords[69].

  Urged by a questioner to consider the merits of a Supreme Court clearly separate from the legislature, the Minister replied:

    We have considered those questions exhaustively and extremely carefully, and we are content with the proposals that we have made; otherwise, we would not have made them.

    The hon Gentleman rightly refers to the separation of powers. That is important, which is why we have that arrangement in this country, and we are keeping it because we believe that it works.

  The Minister offered an equally robust defence of the position of the Lord Chancellor:

    . . . the office is unusual in the way that it combines different roles, but it is also unusually helpful, because through it the judiciary has a representative in the Cabinet and the Cabinet also has a representative in the judiciary.

  So one is entitled to ask: what is the justification for the proposed changes? There is a half-hearted attempt to rely on calls from other people, of whom two are mentioned[70]. The first is the present Senior Law Lord, Lord Bingham of Cornhill. Lord Bingham gave evidence to the Wakeham Royal Commission on Reform of the House of Lords expressly urging that the Law Lords should continue to have ex officio membership of any reformed upper house. The Royal Commission broadly accepted that approach, suggesting only that the Law Lords should publish a statement setting out the bases on which they would decide when to speak, and when they would consider any of their number ineligible to sit on an appeal. On 22 June 2000, speaking on behalf of all the Law Lords, Lord Bingham made just such a statement The Government itself interpreted this statement as showing how an adequate separation of powers was attainable under the present structures[71]. The other voice cited in the consultation paper is that of the last Chairman of the Bar, Mathias Kelly QC, in an article in "The Times".

  Perhaps an explanation for the Government's enthusiasm for reform is the European Convention of Human Rights:

    The Human Rights Act, specifically in relation to Article 6 of the European Convention on Human Rights, now require a stricter view to be taken not only of anything which might undermine the independence or impartiality of a judicial tribunal, but even of anything which might appear to do so. (DCA Consultation Paper 2003)

  The relevant wording of article 6(1) of the Convention is:

    . . . everyone is entitled to a fair and public hearing . . . by an independent and impartial tribunal . . .

  The principle enshrined in this article has been fundamental to English law for centuries. "Nemo judex in causa sua" can be traced from canon law, through English ecclesiastical courts[72], through the writings of Bracton[73], through Coke[74], through Lord Hewart CJ[75] to a major House of Lords decision in 1993[76]. This is not some new principle which entered our law for the first time with the Human Rights Act 1998. If the Judicial Committee of the House of Lords and the position of the Lord Chancellor flout this fundamental principle one may enquire why this has never been noticed previously.

  There is a real distinction between:

    (1)  The principle that there should be an independent and impartial tribunal; and

    (2)  The principle that there ought to be a separation between the three powers of executive, legislative and judiciary.

  Principle (1) is long established in English law. Principle (2) is the Montesquieu theory, which has never been any part of the British constitution. This distinction was recognised by A V Dicey. He wrote of the French notion of "separation des pouvoirs":

    It means, in the mouth of a French statesman or lawyer, something different from what we mean in England by the "independence of the judges" or the like expressions. As interpreted by French history, it means neither more nor less than the maintenance of the principle that while the ordinary judges ought to be irremovable and thus independent of the executive, the government and its officials ought (whilst acting officially) to be independent of and to a great extent free from the jurisdiction of the ordinary courts.[77]

  The Government stop short of suggesting that there have been recent developments in the jurisprudence of the European Court of Human Rights which would compel the United Kingdom to alter its constitution. The recent case which has led some observers to claim that the UK could not maintain the Judicial Committee or the position of Lord Chancellor is McGonnell v United Kingdom[78]. McGonnell concerned a challenge to a planning decision in Guernsey. The appeal was presided over by the Bailiff, who had also presided over the passage of the island's development plan. The Court held that there had not been an independent hearing. But the Court expressly rejected any suggestion that the Convention required a member state to adopt a separation of powers in its constitution:

    47.  The [UK] Government recalled that the Convention does not require compliance with any particular doctrine of separation of powers.

    51.  The Court can agree with the Government that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts as such. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position in Guernsey: the Court is faced solely with the question whether the Bailiff had the required "appearance" of independence, or the required "objective" impartiality.

  Therefore, there are no new circumstances to cause Britain to adopt an 18th century theory of separation of powers as a blueprint for a 21st century constitution. It is inaccurate for the Government to say that the Human Rights Act requires a stricter view to be taken towards independence or impartiality. It is hard to imagine a firmer or more determined line being taken by a supreme court anywhere in the world than that taken by the House of Lords in respect of Lord Hoffmann's failure to declare his Amnesty involvement—yet the decision to hold a re-hearing of the Pinochet case was taken in January 1999[79], that is before the Human Rights Act was in force.

  There are, moreover, powerful reasons why in modem circumstances the existing British arrangements should be maintained. A feature of many contemporary societies is loss of public confidence in the courts and the politicisation of the judiciary. In France, there is a degree of public cynicism at the uneven treatment of public officials arraigned on charges of impropriety in public life. In Italy, one has the spectacle of the Prime Minister openly lambasting his judges as politically motivated. In the Republic of Ireland there have been complaints for years at party political influence on judicial appointments. Even in a country with so high a respect for its courts as the USA, there has been the jolt to public confidence caused by the appearance in the Florida election cases of the decision of every judge at every level, up to and including the US Supreme Courts, going according to political adherence.

  Against such a gloomy canvass the British judiciary shines out as an unqualified success. Nobody believes, or even suggests, that judicial appointments at any level in Britain have been influenced by party political considerations. Not only are appointments to the higher levels of the judiciary of uniformly high quality, but they are also free of partisan bias. Lord Mackay of Clashfern promoted people of known left wing views; and Lord Irvine of Lairg promoted people of known conservative disposition. The world-wide reputation of the House of Lords as a judicial tribunal has never been higher. Its judgments are cited as persuasive authority internationally.

  In the Government's DCA consultation papers they admit that there is not a shred of evidence of any of the supposed problems:

    . . . no criticism is intended of the way in which the members of [the House of Lords] have discharged their functions. Nor have there been any accusations of actual bias in either the appointments to either body or their judgments arising from their membership of the legislature. The arrangements have served us well in the past."

  Yet, in a delightful but apparent non sequitur, the very next sentence reads: "Nonetheless, the Government has come to the conclusion that the present system is no longer sustainable" Constitutional Reform: A Supreme Court for the United Kingdom, para 1.

  The constitutional upheaval presaged by this Bill will destroy two institutions of proven worth, the off ice of the Lord Chancellor and the Judicial Committee of the House of Lords, of whose work there has been no hint of criticism but which, on the contrary, stand at the head of a judicial system that commands international and domestic respect.

  The Law Lords are very good value for money indeed. The total expenditure of the Appellate Committee in 2001-02 was £623,548 (excluding judicial salaries), before fees charged on civil appeals and for assessments of lawyers' fees of £499,715[80]. No doubt there are some costs to be added to reflect their use of two large committee rooms on the House of Lords' corridor and the small offices allocated to the Law Lords but the overheads remain low. The administrative support, whilst efficient and effective, is lean.

  It is inevitable that a Supreme Court will be much more expensive. Freed from the physical restraints of Westminster, expense will shoot up. Lord Steyn has argued[81] that the Supreme Court must be "accommodated in a dignified building fit for a co-ordinate branch of government" (sic). "The new building must have sufficient space for the members of the court, secretaries, judicial assistants, law reporters, an information bureau to serve the public, a press office to serve the media, as well as accommodation for the Registrar and staff answerable to the Court. It is also an indispensable requirement that the new Supreme Court must be properly equipped and resourced in every way[82]. Its budget must be an independent one, structured so that any suspicion of political pressure is avoided".

  This all sounds very expensive indeed. But it will not produce better justice. It will not bring in new business to the United Kingdom. International business is satisfied with the House of Lords as a final court of appeal.

  Resources are scarce. If big money is to be spent on a Supreme Court, it will not be available for other important legal projects. The City of London sees a new Commercial Court as an important priority, as do the commercial law firms in the City and the commercial bar, which directly and indirectly bring in so much business to the United Kingdom. The Commercial Court is a real magnet for international legal business. It is the apex of the system for the resolution of commercial disputes. The City believes that an efficient system for the resolution of commercial disputes is an essential foundation for the services that the City offers internationally. It is a matter of great concern that a new Supreme Court will be likely to deny resources for a new Commercial Court, which is of far more importance to the development of international business in the UK.

  The Law Lords have provided a unique and valuable service by participating in committees of the House of Lords considering European legislation. Their involvement has ensured that Community legislation has undergone a thorough legal review of a quality and intensity (and effectiveness) unsurpassed by any other legislature in the EU. Using ex-Supreme Court justices, who have retired on the grounds of old age but given life peerages, is no substitute. The involvement of the Law Lords has consistently ensured better legislation and that UK interests are better protected. The House of Commons, Secretaries of State and the Civil Service have not fulfilled this important role.

  The Law Lords have been able to promote law reform which has tended to be low down on any Government agenda. Most recently the Arbitration Act 1996, an important reform of arbitral law designed to bring international arbitration to the City of London, was promoted by Lord Saville. The earlier Arbitration Act 1979 was similarly promoted.

  A Supreme Court would have to offer very considerable advantages for the administration of justice if it were to be worthwhile. The Government's proposals amount to little more than moving the current law lords out of Parliament—both physically and as members of the legislature—and giving them a new name which already exists to describe the higher courts—see the Supreme Court Act 1981. I question the name "Supreme Court". In other jurisdictions—especially the United States—the Supreme Court has immense powers under the Constitution to strike down primary legislation. In this country, we have no similar constitution, and no-one suggests the Supreme Court should have conferred on it powers to override Parliament. So the title Supreme Court carries with it an extremely powerful connotation—that the new court has power to override parliament and to pronounce on the lawfulness of legislation. But it is not a Supreme Court. Parliament will remain supreme. I can see no point in giving a confusing title to a new Court.


  The present system of judicial appointments is in substance, if not in form, apolitical. Judicial appointments in general command the respect of the legal profession and of society at large. Inevitably there is occasional debate within parts of the profession of individual appointments, and there is occasional ridicule (sometimes fair) in the media when a judge appears to be "out of touch". But there is no recent instance where there has been criticism of a judicial appointment on the basis that it was politically motivated. Successive Lord Chancellors have made appointments from across the political spectrum and on merit. At High Court level and above the track record of appointing able candidates able to do an important job well has been good. At Circuit Judge and District judge level there has been a huge improvement in quality in our professional lifetime, probably because the number of candidates now greatly exceeds the number of posts.

  Since the only possible justification for abolishing the traditional role of the Lord Chancellor is to create a clearer separation of powers, which of course I do not accept, it would be nonsensical to replace the present system of judicial appointments with a system in which there were greater political involvement or politicisation of the process, or with a system which failed to choose the most able candidate.

  The sole criterion for judicial appointment should be merit, irrespective of gender, race, sexual orientation, religion or political affiliation. It is regrettable that there are not more women or ethnic minority judges, particularly in senior positions. But this is changing—for instance Lady Hale has recently been appointed the first female Law Lord—and the pace of change is likely to increase. Being a judge is a very public position—nothing could be more damaging to the cause of equal opportunities than the appointment of candidates who were perceived by the profession to have been appointed because of their gender or ethnicity, rather than solely on merit.

  Whatever system is adopted should encourage applicants from the widest range of backgrounds: but no one should be given preferential treatment in an attempt to engineer a judiciary which meets preconceived notions of how "representative" the judiciary should be.

  Accordingly there should be a judicial appointments system which satisfies the following criteria:

    1.1.  it appoints judges solely and strictly on merit;

    1.2.  it is free from political interference or political bias;

    1.3.  it has the confidence of society at large and of the legal profession.

  Merit has many aspects which combine in the ability to deal with cases justly and in accordance with the law, but chief amongst them are good judgment, legal expertise, authority, independence, and impartiality. At the risk of sounding complacent (I am not), Lord Chancellors have on the evidence of appointments at all levels to the full time bench in my adult life and, I am confident for many years before that, created a bench that can confidently stand international comparison. Despite the recommendation, interviewing and selection of candidates being done privately and in an "unmodern" way the exercise is and has been carried out to the credit of the country, the bench and to justice as a whole—and for the benefit of those who use and appear in our courts. The burden of proof for the proposed change and the creation of a JAC is on the Government.

April 2004

66   See above, n2. Back

67   cf the US Supreme Court where each Justice has many assistants. Back

68   as in the European Court of Justice. The Advocate General always writes the first judgment. The court produces its judgment later; it is not bound by the A-G's judgment but it usually follows it. The judgments of the Judges of the ECJ are, I respectfully suggest, not always of the quality we have come to expect of the House of Lords; many are too dependent on their re«fe«rendaires to write the judgment. Back

69   Hansard House of Commons 4th December 2001, col 153. Back

70   "Constitutional Reform: a Supreme Court for the United Kingdom" para 1. Back

71   House of Commons Hansard 4th December 2001 col 155. Back

72   F W Maitland "Roman Canon Law in the Church of England" (1898) 114. Back

73   See De Smith, Woolf and Jowell "Judicial Review of Administrative Action" (1995) 5th ed. 522. Back

74   Dr Bonham's case (1610) 8 Co Rep 113b, 118. Back

75   ". . . Justice should not only be done, but should manifestly and undoubtedly be seen to be done": R v Sussex JJ ex p McCarthy [1924] 1 KB 256, 259. Back

76   R v Gough [1993] AC 646. Back

77   "Introduction to the Study of the Law of the Constitution" A V Dicey (1885). Back

78   Application 00028488/95, judgment 8 February 2000. Back

79   R v Bow Street Magistrate ex p Pinochet [1999] 2 WLR 272. Back

80   Consultation Paper 63. Back

81   Counsel Magazine October 2003. Back

82   my emphasis. Back

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