Memorandum by Lord Nolan
1.My evidence is based on my experience as a barrister
from 1953 to 1982 (Q.C. 1968), a High Court Judge (Queen's Bench
Division) from 1982 to 1990, a Lord Justice in the Court of Appeal
from 1990 to December 1993, a Lord of Appeal in Ordinary from
January 1994 to September 1998 and a retired Law Lord sitting
part-time on Appellate Committees and in the Privy Council from
1998 until my 75th birthday in September 2003.
2.I submit that the Bill calls for the most rigorous
examination by Your Lordships' Committee. It does so first because
it proceeds on the basis of two assumptions, both of which I believe
to be unfounded. One is that the office of Lord Chancellor, and
with it the Lord Chancellor's Department, should be abolished.
3.I can well understand the argument that the Lord
Chancellor, as a member of the Government, should not sit as a
Judge. I can also see the force of the argument that the Department
should be represented by a Minister in the House of Commons, to
account for its expenditure. The principal function of the Lord
Chancellor should, I believe, remain as the person responsible,
under the Queen, for the appointment of Judges, the representative
of the Judiciary in Cabinet, and the supervisor of the Court system—surely
in themselves justification enough for the retention of the office
at its present level of seniority.
4.The Lord Chancellor's Department, throughout my
time at the Bar and on the Bench, enjoyed a very high reputation
for the quality of its advice to successive Lord Chancellors,
particularly in the matter of judicial appointments. If there
is one subject upon which unanimity appears to prevail, at home
and abroad, it is the high standard of the present United Kingdom
Judges. If the mould is now to be broken, and advice on the selection
of Judges entrusted to people largely drawn from outside the legal
profession, it seems to me of paramount importance that the wisdom
of the Department's officials, with their intimate knowledge of
the profession and of the demands of the judicial life, should
be preserved. Is this likely to happen if the Lord Chancellor's
Department is replaced by the Department for Constitutional Affairs?
5.The other assumption, unfounded as it appears to
me, on which the Bill is based is that the Law Lords (and the
Judicial Committee of the Privy Council) should be replaced by
a Supreme Court, whose members would not be members of Your Lordships'
House. This assumption was much criticised in the Take Note and
Second Reading debates, and it will be sufficient for me to register
my agreement with the critics without repeating what they said.
I would simply add these personal observations:
(1)I am in favour of the number of serving Law
Lords (or their equivalent) being limited to twelve, but there
is a danger that such a small number may become inward-looking
and out of touch with the wider world.
(2)As things are at present, this danger can
be largely overcome by the company of their fellow Peers. There
is no shortage of highly intelligent, articulate, interested and
interesting companions, with an enormously wide range of experience,
for the Law Lords to mix with if they so wish. Unhappily, some
Law Lords are not so inclined. The loss is theirs. Certainly I,
for my part, learnt much about people and affairs from my conversations
with other Peers, and this experience was of great value to me,
not only in considering the increasingly wide range of issues
coming before the Appellate Committees but also in carrying out
my non-judicial duties as Chairman of he Committee on Standards
in Public Life and as Commissioner under the Interception of Communications
Act.
(3)If the twelve or so individuals comprising
the Supreme Court are to be housed in a separate building, they
will be largely isolated.
(4)This is not really a point for a Law Lord
to make, but I would hope that between us we are thought to have
contributed usefully to the work of him House, both in debates
and in committees. Speaking as objectively as I can, I would think
that there is something to be said for having a few senior Judges
in a deliberative and revising assembly, provided hat they keep
clear of party political issues and of matters likely to come
before them in their judicial capacity.
(5)The tradition of the independence of the judiciary
is embodied in the Law Lords. I have regarded it as a great honour
to be included n their number. A new Supreme Court would not attain
the same lustre for many years—if ever.
6.Apart from the erroneous assumptions upon which
the Bill is based, there are additional reasons why its provisions
call for the most rigorous scrutiny. First, it is plain that the
effects of the Bill—even the immediate practical effects—were
not considered. The most obvious example is the failure to identify
and prepare a building for the new Supreme Court to occupy. Since
one of the principal reasons advanced for the Law Lords to move
out of the House was their assumed need for better accommodation
again a dubious assumption: the great Law lords of the past did
their work with no better accommodation and far fewer facilities
one would have supposed that the availability of a suitable alternative
building would be a paramount consideration. The suggestion that
the Supreme Court should temporarily (though for an indefinite
period) occupy the same accommodation will not, I hope, be pursued.
It would be embarrassing to the point of humiliation for the members
of the Court.
7.My second and final additional reason for urging
the closest scrutiny of the Bill lies in the substantive amendments
proposed by Lord Falconer at the outset of the Second Reading
debate. The proposed amendments are, of course, to be welcomed
in principle, but they show that the original draft of the Bill
was the product of a mind closed to the concept of a Judiciary
independent of the Executive. This alone is reason enough for
the most careful and vigilant study, not only of the terms of
the substantive amendments themselves, but of every provision
of the Bill. For example, Schedule 1 alone contains 461 paragraphs
of amendments to existing legislation, nearly all of them consequent
upon the proposed abolition of the office of lord Chancellor.
How can one be sure, without careful study in each case, that
all of them have been framed with due regard both for their consequences
and for fundamental constitutional principles?
April 2004
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