Select Committee on Constitution Minutes of Evidence

Examination of Witness (Questions 40-59)

Lord Phillips of Worth Matravers

3 MAY 2006

  Q40  Lord Carter: If there were a written report—this is to Parliament, not to the Executive—how would you expect Parliament to respond? You have just mentioned an appearance before this Committee. How do you see the relationship between a formal right to lay a written representation before Parliament and a more informal invitation to appear before the parliamentary select committees? There was a recommendation in the Select Committee's Report on the Constitutional Reform Bill that there should be a joint select committee of Parliament to relate to the judiciary. Would you see that as being over-burdensome? What would that do, other than you appearing before the Constitutional Committee once a year, for example?

  Lord Phillips of Worth Matravers: It would depend to some extent on the terms of reference of the committee. It is certainly an option that merits consideration. In looking ahead at the relationship between the judiciary and Parliament, one needs to be very careful that one is preserving the independence of the judiciary. At the same time, Parliament is certainly justified in expecting some way of communicating with the judiciary.

  Q41  Lord Carter: Are there areas which you regard as off limits in dialogue between senior members of the judiciary and parliamentary select committees such as this one?

  Lord Phillips of Worth Matravers: There certainly are. Again, we are at the moment considering whether there is some form of guidance I have to give to all the judges as to how they should react if invited to come and appear before a committee of Parliament. It would not be appropriate—this is quite obvious—for you to be asking me or me answering questions about the case I have been sitting on this afternoon. There are a number of other no-go areas where, if a judge should say, "I do not think it is really appropriate that I should comment on that," I would hope that this would be respected. Essentially, you would not expect judges to comment on political policy.

  Q42  Lord Carter: Could we take the example of today, where the Home Secretary has made a statement on this business of foreign nationals and deportation. If a parliamentary select committee asked you for your views on the policy, would you regard that as off-limit?

  Lord Phillips of Worth Matravers: Yes, I think I would. If you are asking me what the implications are for my judges, that would be a different matter.

Lord Carter: Of course. Thank you.

  Q43  Viscount Bledisloe: You have said, in my view understandably, that you would only want to exercise the section 5 power to lay representations in a case about which you felt very strongly. Is it not the case that, if you did have regular appearances, once a year, say, before committees such as this, that would give you an opportunity to indicate topics on which you were less than 100 per cent happy but which in your view were not so ghastly that you felt the need to lay written representations.

  Lord Phillips of Worth Matravers: It would, and I am not rejecting the idea that this might be a good way of conveying these matters but would it necessarily have to be an annual appearance? Might there not be a machinery, if there were a particular topic that I thought it desirable to ventilate, whereby I could let the appropriate committee know that if they were interested in hearing about this I would be happy to discuss it?

  Q44  Viscount Bledisloe: I am certainly not setting annual as being a maximum but maybe setting it as being a minimum.

  Lord Phillips of Worth Matravers: Yes.

  Q45  Lord Peston: Would you regard it as reasonable, if you were appearing before a parliamentary committee, to answer questions about the way the judiciary conduct themselves? I entirely accept what you have said on specific cases. We know there would be no argument but that what you have said is right. May I give you two examples—and I do not want you to comment on them, but they indicate what I have in mind. If we take the judge in the Da Vinci Code case and also the recent Court Martial case, I do not want you to comment at all on what the decisions were but, in both cases, as a layman I would put it to you that I was rather puzzled that that was the way the judiciary thought it was okay to behave. As I have said, I do not want you to comment on them, but, if you were to see examples of the sort where you felt the judiciary were not acting with appropriate gravitas and courtesy, would you feel it was your duty to do something about it? And, if asked by a parliamentary committee, "Did you take note of that?" to answer, "Yes, I did."

  Lord Phillips of Worth Matravers: I would certainly regard it as appropriate for me to take action personally with a judge who behaved in a way in which I felt called for some form of admonition; falling short, obviously, of any kind of disciplinary process. But it might equally be the case where I would think this is something that could be better done by the head of his division rather than by myself. If I then came before this Committee and you asked me what I thought about the way this judge had behaved, I think I would probably say I would prefer not to comment on that.

  Q46  Lord Elton: If I may take a little further what you said about the interface between yourself and your successors in Parliament. At present we have in this House a copious supply of very experienced judicial brains. That is going to dry up unless it is artificially remedied. That being so, do you think the remedy should be the return of the Law Lords into this House—judges of appeal or whatever? If not, does your contemplated annual meeting with a committee or whatever constitute the only way in which you can influence the development of legislation itself? What worries me is that we have a lot of people at the moment who can hold our hands when we laymen rush ahead to do something foolish in a statute and we will be told how it went wrong in 1948 or whatever. How is that loss going to be made up through the system you have in mind?

  Lord Phillips of Worth Matravers: The first thing I would say is that there is going to be a jolly good reservoir of legal brains. My retirement age is 75, but for those who were appointed more recently they have to retire at the age of 70. A lot of those still have a lot to contribute and I would hope that reservoir will be used to replace those available to the House at the moment. So far as legislation is concerned, there are ways in which judges can properly assist with legislation, as, for instance, by protesting that we have much too much of it.

Viscount Bledisloe: Hear, hear.

  Q47  Lord Elton: I quite agree.

  Lord Phillips of Worth Matravers: We can perfectly properly comment on the implications for the running of the judicial system of proposed legislation. There is already a committee in existence, the Rose Committee, named after Sir Christopher Rose, which does this in the criminal field.

  Q48  Lord Elton: Do you see a relationship here between the formal right to lay written representations, which I think you have already said you regard as for grand occasions only, and the more informal invitation to appear before a parliamentary committee. Is there another vehicle for the sort of concern I am asking you about.

  Lord Phillips of Worth Matravers: So far as laying things before Parliament, I feel I need a nuclear option, so that when I adopt it everyone sits up and says, "This must be important." It is difficult and delicate for judges to be involved in the legislative process. It would not be appropriate for a judge to appear before a committee to discuss proposed legislation because it would be very difficult to keep this within the proper boundary. The proper boundary is really saying, "If you are going to do this, you are going to double the number of appeals coming up to the Court of Appeal. We are going to need another 10 judges to deal with it." Or possibly: "If you are thinking of doing that, you want to give careful consideration to the following legal implications it will have."

Chairman: The point of nuclear options is not to use them but to threaten them, I believe!

  Q49  Baroness Hayman: I could continue the metaphor, but I think it may get very tangled. You gave a very clear answer that it would be inappropriate to comment on policy development; for example, in the case we are concerned about at the moment. But could I go back to the issue of the responsibility of upholding the rule of law and whether there is any circumstance where the division seemed in a way, from what you have said earlier, to be the responsibility of the Lord Chancellor to uphold the rule of law in policy development and of the judiciary to ensure it in adjudicating after the event on legislation.

  Lord Phillips of Worth Matravers: Yes.

  Q50  Baroness Hayman: But it is possible for legislation or policy to be proposed that might be considered to go beyond what is normally considered the rule of law? We had an example of the ouster clause, but, equally, there would be Human Rights Act implications in certain of the policy proposals in our discussion at the moment. Do you consider that there is a sort of temporal divide between your responsibility and the Lord Chancellor's on the rule of law? Or might that be one of the situations in which the nuclear option came into play?

  Lord Phillips of Worth Matravers: I think the nuclear option could come into play if something was proposed by way of legislation that was so contrary to the rule of law that judges would feel: "We have got to step in and make plain our objection to this"—rather the kind of situation that Lord Steyn was contemplating. You could reach a crunch situation, where fundamental constitutional principles, such as judicial review, if it was proposed, should be abrogated wholesale, I can conceive that in a situation like that the judiciary would want to make their voice heard.

Baroness Hayman: Thank you.

Chairman: Let us press on. Lord Peston, you have a question you want to ask.

  Q51  Lord Peston: I think you have largely answered the question I had in mind, but, for the record, the broad measure of the question that I am putting to you is whether, if we go, as I think we will, for greater post-legislative scrutiny in due course, parliamentary inquiries will be looking much more precisely at judicial decisions. The example I have been asked to draw to your attention, although I cannot say I fully understand it myself, is the remarks the Joint Committee on Human Rights made about the judgments of the Appeal Court in the matter of functions of a public nature. I cannot tell you of the precise topic.

  Lord Phillips of Worth Matravers: I think I understand .

  Q52  Lord Peston: The general question is one on which I would like your view.

  Lord Phillips of Worth Matravers: It is perfectly appropriate, obviously, for Parliament to consider decisions being reached by judges and to express perhaps disappointment that the judges are interpreting the law in this way, and it is open to Parliament, if judges are interpreting the law in this way, to change the law. Ultimately, of course, it is the House of Lords rather than the Court of Appeal that has the last say so far as important principles of law are concerned. It has to get up to them, but, if Parliament is disappointed with the way in which laws are being interpreted by the judiciary, of course they are entitled to say so and to consider whether the law needs to be changed. What would become less satisfactory is if the thing becomes very personalised, because the judges are actually doing their best to apply the law objectively.

  Q53  Lord Peston: Assuming it was this Committee and assuming some of us had been involved in the legislation and thought we knew what the law we had passed meant—and I do not push that too strongly, but thought we knew what we were doing—who would we then call before us if we were scrutinising the legislation? Would we call you and say, "Can you at least explain to us how your judges came to this different interpretation?" I take it you are not suggesting that we should call the judge in question.

  Lord Phillips of Worth Matravers: No. Nor should you call me.

  Q54  Lord Peston: Then who would we ask?

  Lord Phillips of Worth Matravers: It ought to be clear from the judgments in question the process of reason that has led the judge or the judges to reach their conclusions. We have to give our reasons. We do our best to explain as clearly as we can what those reasons are and it would not be appropriate for those who have given the judgment or, indeed, for me to go beyond that. I could possibly help with a bit of identification of legal principles if there was puzzlement.

  Q55  Lord Peston: I am still a little bit lost. As you probably realise, on a committee like this we get a majority of people who are not lawyers but who are not stupid—if I may dare say that. Sometimes it is impossible. Certainly I take a great interest. When I read law reports, though I try, I cannot follow the logic of what is being said at all. Happily I have friends here and I say, "How in heaven's name did he ever get to that answer" and they try to explain it to me—and I cannot say that I am a very good pupil—in a way that I can understand. I do not see how we, doing pre-legislative scrutiny, could do it without some very senior legal advice as to how the logic worked in that case. As you know, I am an economist, and there are lots of unwritten things that the layman does not understand, which is how one earns a living, because we are the only ones who know what it really means. That is how lawyers earn their living as well, I imagine.

  Lord Phillips of Worth Matravers: There are plenty of lawyers who are not serving judges who could perform that function, and they busily do in the universities in commenting on the important decisions and very often commenting adversely, saying, "This does not make sense at all."

  Q56  Lord Peston: Your view would be that in the case of the scrutiny committee we have to have our own lawyer.

  Lord Phillips of Worth Matravers: Yes.

  Q57  Lord Carter: If I could give you an example of the situation that Lord Peston referred to. The report of the Joint Committee on Human Rights was critical of the judgments of the Court of Appeal in which the term "public authority" was given a narrow meaning. The Disability Discrimination Act 2005 placed a duty on public authorities to prevent discrimination against disabled people. That judgment presumably would be relied upon by a public authority if it moved just outside of the narrow definition that had been given by the Court of Appeal. Will they have to go to the House of Lords to get that sorted out?

  Lord Phillips of Worth Matravers: If the facts were fairly and squarely within the decision of the Court of Appeal, and you could say, "Applying this decision of the Court of Appeal, this particular body would not be considered to be a public authority and therefore not within the scope of the Act," I think the answer probably would be yes. This is judicial precedent. But the case in question did not go to the House of Lords.

  Q58  Lord Elton: An increasing amount of legislation has become justiceable as a result of European legislation and the Human Rights Act. How is that developing? How do you think it may affect relations between Parliament and the legislature in the coming years?

  Lord Phillips of Worth Matravers: Parliament and the judiciary.

Lord Elton: Parliament as the legislature and the judiciary.

  Q59  Baroness O'Cathain: And the Executive.

  Lord Phillips of Worth Matravers: It is quite simple to state the judges' task, which is simply to apply the law. If there are areas of the law where the United Kingdom Parliament is no longer supreme, the court has to face that fact, and if it reaches the conclusion that an Act of Parliament is incompatible with European legislation, it has to say so. So far as the Human Rights Act is concerned, it cannot say that the Act of Parliament is incompatible and is trumped by European law, but it simply makes a declaration that a particular Act of Parliament is not compatible with convention. That should not, in an ideal world, alter the relationship between the judiciary and Parliament. The judges are doing their job. It is a rather different job. The effect of what the judges are deciding is more dramatic. But many people make the mistake of personalising it and thinking this gives the judge carte blanche to overrule Parliament; it is undemocratic. It is not. The judge is just doing his job of applying the law and enforcing the rule of law. It is the law that is changed.

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