Examination of Witness (Questions 40-59)|
Lord Phillips of Worth Matravers
3 MAY 2006
Q40 Lord Carter: If there were a
written reportthis is to Parliament, not to the Executivehow
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
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 appropriatethis is quite
obviousfor 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
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
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 examplesand 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
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 Housejudges 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
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
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 meantand
I do not push that too strongly, but thought we knew what we were
doingwho 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
Lord Phillips of Worth Matravers: No. Nor should
you call me.
Q54 Lord Peston: Then who would we
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 stupidif
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 meand
I cannot say that I am a very good pupilin 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
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.