Memorandum by Lord Jauncey of Tullichettle
I am of the view that the creation of a Supreme
Court with the resultant abolition of the Appellate Committee
is unnecessary and would have no practical benefit. It is generally
accepted that the Appellate Committee is "currently a beacon
of legal excellence" and the grounds advanced for its abolition
have been criticised at length in the two debates on 12 February
and 8 March. As your Lordships will have studied the reports of
those debates I do not consider that I would assist the Committee
by merely repeating those criticisms. There are however two matters
to which I should like to draw the attention of the Committee.
Running through the proposals in the Bill is
the so-called principle of separation of powers which is advanced
as a reason for severing all links between the judges of the final
court of appeal and the legislature. Dicey considered this concept
to be alien to an Englishman and to rest on a misunderstanding
by Montesquieu of the principles and practice o the English Constitution
(Laws of the Constitution, 10th edn, p 337). Hood Phillips and
Jackson's Constitutional and Administrative Law, 8th edn para
2-020' expressed the view that there was not and never had been
a strict separation of powers in the English Constitution. Lord
Wilberforce in his written submission to the Wakeham Commission
expressed the view that separation of powers was neither a norm
nor a constitutional principle in this country. He suggested that
there was not the beginning of a case for separating off the Law
Lords. The Wakeham Commission similarly saw no reason why the
Law Lords should not remain in a reformed House. Have they all
got it wrong?
The Government also rely on "perception".
Although the current excellence of the Appellate Committee is
accepted it is suggested that it might be perceived not to be
an "independent and impartial tribunal" for the purposes
of Article 6(1) of the European Convention on Human Rights because
of its location in the Palace of Westminster. It is now over five
years since the Act was passed and if there had been any significant
amount of perception by parties to appeals or the general public
one might have expected that there would have been some evidence
of this. None has been proffered. More significant is the fact
that Lord Irvine of Lairg in June 2002 saw no sufficient reason
for abolishing the Appellate Committee. Since he piloted the Human
Rights Bill through this House he would have been well aware of
the probable effects of Article 6(1). His answer on 10 June in
the House when he stated that there was not a sufficient case
for the abolition of the Appellate Committee imports that he cannot
have seen any problem arising from the Article. Lord Cooke of
Thorndon in a penetrating article "The Law Lords an Endangered
Heritage" (2003) 119 LQR Suggested that it would be the figment
of the imagination of a controversialist casting around for some
plausible reason to change an existing system which he was against
for other reasons—an apt comment. Lord Wilberforce would,
of course, have been aware of any possible impact of the Human
Rights Act when he made his submission to the Wakeham Commission
(supra).
I would commend to your Lordships Lord Cooke's
article which is also available as a pamphlet published by Sweet
and Maxwell and Lord Wilberforce's submission.
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