Memorandum by Edward Garnier QC MP (Harborough,
Conservative) made on his own behalf and on behalf of the Society
of Conservative Lawyers
THE OFFICE
OF LORD
CHANCELLOR
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 CREATION
OF A
SUPREME COURT
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.
JUDICIAL APPOINTMENTS
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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