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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