Select Committee on Constitutional Reform Bill Written Evidence

Memorandum by Michael Shrimpton

1.  I gratefully adopt the recently reported remarks of His Grace the Archbishop of Canterbury, a distinguished member of your Lordships' House, on the decline of public trust in the government and our institutions, a decline which I submit will be accelerated by this constitutionally dangerous bill.

2.  The ancient Office of Lord Chancellor is a vital as well as venerable part of the Constitution and an important guarantee of the independence of the judiciary. It should be retained in its present form.

3.  Considerations of the separation of powers have no place in this debate, for two reasons: firstly successive Lord Chancellors have not allowed their judicial decisions to be influenced by party political considerations and in practice have exercised their executive, judicial and legislative functions independently, ie there is separation of powers in practice if not in theory. I am not a member of his party, but I can think of no Lord Chancellor in modern times who commanded greater respect and affection than the late Lord Elwyn-Jones, who would surely have recoiled from these proposals and regarded them as destructive.

4.  Secondly, we do not have a formal separation of powers in this country as understood in the United States and elsewhere, although even in the United States the Vice-President is an officer of the Senate and a member of the legislature, a point recently brought home to me when I had the privilege of observing the Senate in session.

5.  Our Lie"ge Sovereign Lady HM the Queen sits at the Apex of the Constitution and both the judicial and executive functions are exercised in Her name. The Queen is not only a vital part of the legislature but is entitled to sit in your Lordships' House in Her capacity as Duke of Normandy.

6.  Considerations derived from treaty arrangements should have no part in determining our Constitution, which is a matter for us and the Commonwealth. Treaties such as the ECHR should yield to constitutional principle not viceversa. There is no reason at all, for example, why the Lord Chancellor should not sit in your Lordships' House. It is not just that the Lord Chancellor is entitled to sit—it is desirable that he should. I think back to the Boddington case, for example, where the leading speech, given by Lord Irvine of Lairg LC, showed with respect a deeper understanding of constitutional principle than those of the "professional judges."

8.  Turning now to the so-called "Supreme Court", four observations may be made, putting entirely to one side practical concerns about where it should sit (I was amused to see St. Dunstan's House mooted in the Times—St. Dunstan's House is for taxing appeals!). Firstly we already have a Supreme Court of Judicature, so-called because some notion was current when it was mooted that there should be only one tier of appeal from the High Court. I have heard of countries with one supreme court, but two might thought be to excessive, not least since we shall have appeals from the Supreme Court to the Supreme Court. What we are we to call the Supreme Court of Judicature? The "Not-so Supreme Court of Judicature"? I daresay someone has come up with a new title and I am sure it is an obscure part of the bill, but I cannot think why a new name is necessary at all.

8.  Secondly it cannot be supreme—the highest court in the land will remain the High Court of Parliament, which may not only repeal the arrangements setting up the "Supreme" Court at any time, in its legislative capacity, but could try the judges of the court in its judicial capacity, eg by Bill of Attainder. Curiously the nominally highest court in the land will have no power to hand down or confirm a death sentence, but the penalty remains available to the High Court of Parliament under the Attainder procedure, although I daresay a Bill of Attainder with provision for the execution of some miscreant minister would have a note about a possible conflict with the Human Rights Act.

9.  Thirdly, desirable convergence between British and Commonwealth jurisprudence will in practice be more difficult than it is under the present arrangements, which allow judges to move freely between the Appellate Committee and the Judicial Committee of the Privy Council. It would still be possible of course, but little thought seems to have been given to the position of the Privy Council vis a vis the new court and I am unaware of any meaningful consultation amongst the Commonwealth of Nations, a community of nations far more important to us in times future as well as past than the European Community.

10.  Fourthly, the mishandling of the so-called concept of supremacy of community law and serious constitutional errors such as the heretical suggestion in Factortame (No 1), reversed in M v Home Office, that ministers cannot be called to account and restrained from illegality in our courts, seriously call into question the constitutional competence and literacy of our senior professional judiciary. I speak as counsel who recently had the experience of hearing a Divisional Court (in Thoburn v Sunderland City Council) tell me in all solemnity that a court of law in England was not bound by and considered itself free to depart from plainly expressed words in an Act of Parliament. The court did not express itself in that way of course, but that is what it did.

11.  Perhaps I should explain. My late lay client was observed selling a pound of bananas to one of his customers, who turned out upon inquiry to be an undercover trading standards officer engaged on a mission of metric espionage. Since he was wont to shout out at the top of his voice "best bananas 25 pence a pound" the necessity for this subterfuge was not immediately apparent. The court accepted that an Act of this Parliament passed in 1985 permitted the use of Imperial measures alongside metric, with no preference for one over the other. An earlier EEC Directive was to the contrary, but it did not have direct effect and was incorporated under a delegated power granted in an earlier Act, passed in 1972. It was with respect as plain as a pikestaff that the court was duty bound to obey the will of Parliament and give effect to the later Act. The Appeals Committee not only agreed with the decision of the lower court, but thought the contrary unarguable.

12.  The public of this country cannot be expected to have confidence in a new supreme court if this is the quality of decision making that the judges, with great respect, can come up with. Overall there has been a supine response from the professional judiciary to the constitutional challenges posed by our membership of the European Community/Union. Having failed this admittedly stern test the judges cannot be heard to call for greater power, greater isolation from the Parliament whose statutes they have disregarded or "set aside" and reduced accountability to the High Court of Parliament.

13.  These proposals with respect are anathema and unworkable and the Bill should be rejected although that is of course entirely a matter for your Lordship's House and another place.

22 April 2004

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