Memorandum by Lord Cooke of Thorndon
1. Being unable to be in England on 25 May 2004,
I cannot accept the Committee's invitation to give oral evidence
and must beg to submit this writing.
2. From first-hand experience of both the British
and the New Zealand legal systems, I can see nothing in the New
Zealand system or its history which could be relevant to the proposals
in the Bill for a separate Supreme Court or for abolishing the
office of Lord Chancellor.
3. New Zealand has never had a House of Lords
or a Lord Chancellor. The highest court for New Zealand was until
recently the Judicial Committee of the Privy Council. Its replacement
by a new local Supreme Court has been occasioned by a sense that
the country is now sufficiently mature to take responsibility
for its own national legal identity, rather than submitting to
a tribunal on the other side of the world with little knowledge
or experience of New Zealand conditions. None of this applies
to the judicial functions of the House of Lords for the United
Kingdom.
4. My views about the proposals in question are,
in short, that the Supreme Court one would represent a needless
sacrifice of the judicial functions of the House of Lords, and
a corresponding downgrading of the Law Lords. It would not have
the slightest effect on their independence. A unique British institution,
admired as such world-wide, would be abandoned in the name of
a doctrine—the separation of powers— which has never
been part of the constitution of the United Kingdom.
5. As to the Lord Chancellor, which is a separate
issue, all that was needed was a convention that he should no
longer sit as a Judge. Such a convention was beginning to develop.
6. These views are more fully stated in a lecture
for the Chancery Bar Association entitled The Law Lords: An
Endangered Heritage, delivered in June 2002 and published
as an article in The Law Quarterly Review for January 2003. I
understand that this has been or is to be circulated to the Committee.
The content of the article is not adequately represented by the
present brief paper.
7. The article was not motivated by any political
considerations. It was published before the proposals in the Bill
became political issues. Perhaps it is not out of place to add
that, as far as I am aware, no one has sought to challenge specifically
any of the points made in the article.
8. I am not totally against the proposed constitutional
changes, recognising that there is a case for a Judicial Appointments
Commission.
Robin Cooke
Wellington, New Zealand
18 May 2004
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