Examination of Witnesses (Questions 183
- 199)
WEDNESDAY 24 JANUARY 2007
LORD LLOYD OF BERWICK
Q183 Chairman:
Lord Lloyd, it is very nice to see you here and thank you for
coming to give your evidence to the Committee. This will be televised
so would you be kind enough to just identify yourself for the
cameras.
Lord Lloyd of Berwick: Lord Lloyd of Berwick,
former Law Lord.
Q184 Chairman:
Lord Lloyd, you have been kind enough to supply us with an opening
statement. We have all read it—I checked that before you
came—so would you like briefly to sum up the gist of it
for the Committee?
Lord Lloyd of Berwick: Yes. It is in many ways
early to say what the ultimate result of the 2005 Act is going
to be so far as arrangements are concerned. But one thing which
is already apparent is the enormous additional burden which is
now placed, not just on the Lord Chief Justice but also on other
members of the higher judiciary. I was very interested to hear
what Lord Mackay was saying, that the primary job of a judge is
actually to sit in court. That is the best way in which they can
influence, in the case of the Lord Chief Justice, the criminal
justice system. But the same applies to the other heads of division,
the Chancellor in the Chancery Division and the President in the
Family Division. What worries me is that the burden on all of
them is now so high that they are not able to sit more than two
or three days a week, some even less. For example, I mentioned
the fact that Lord Justice Leverson, who occupies a very important
position as the Senior Presiding Judge, is scarcely able to sit
at all now. He is a very good criminal judge but he cannot sit
as a criminal judge; I find that very depressing. In the long
run, it may be very deleterious to judicial appointments because
it may affect—I have explained this in the paper—those
who are willing to accept these top positions. The best judges
may feel they are not very good as administrators. It is also
affecting recruitment to the High Court bench; these are the points
I tried to make in my opening.
Q185 Chairman:
As you say, it is somewhat complementary to the point that Lord
Mackay made to us a few minutes ago, those of us on the Committee
who are not lucky enough to be lawyers know that the phenomenon
you are describing applies in many spheres of life and many professions—one
hears the same thing, that people are brilliant research scientists
and they end up administering gigantic laboratories, or people
are very able architects and they find themselves chairmen of
architectural firms and associations and so on and so on.
Lord Lloyd of Berwick: That is a very good analogy.
Q186 Chairman:
It is a phenomenon which is not unique to any self-governing profession
really, is it?
Lord Lloyd of Berwick: That is very true, it
is a very good analogy. But the beauty of the old system was that
it was all taken off the shoulders of the judges by the Lord Chancellor's
Department. Now, of course, it is not, because a great deal of
the administration is being transferred to the Lord Chief Justice
and his colleagues. They now have large numbers of civil servants
under their direct command, and I think that is a great pity.
Q187 Chairman:
Point well taken. Are there any other observations you would care
to make on the way the new arrangements are working other than
the important thing you have just said?
Lord Lloyd of Berwick: No, except it
is important to recognise—and this was again recognised
by Lord Mackay—that at the moment relationships between
the Lord Chief Justice and the Lord Chancellor are very close
and very good and I do not see any sign of any problem arising
in that respect.
Chairman: Lord Bledisloe, did
you have a point you wanted to make?
Q188 Viscount Bledisloe:
I just wanted to add a suggestion to Lord Lloyd's point about
not wanting to be involved in administration. Would it be fair
to say that whereas architects and other people may have gone
into professions knowing they might have administrative responsibilities,
those who have gone to the Bar have gone deliberately to a profession
where there is no administration at all?
Lord Lloyd of Berwick: That is a very
fair point, and that puts in one sentence what I have put in two
or three pages in my opening statement. It must not be overlooked.
Q189 Baroness O'Cathain:
The question actually asked for your observations on how the new
arrangements are working, but is it not true that the new arrangements
are still not in place? Although the Act was in 2005 it has not
been finally introduced. Does the Lord Chancellor not still oversee
the appointment of High Court judges, or has that changed recently?
Lord Lloyd of Berwick: No, that has changed.
Q190 Baroness O'Cathain:
It is totally out of his hands now.
Lord Lloyd of Berwick: The Judicial Appointments
Board is already functioning; it has not done a lot yet, as it
happens, but it is certainly functioning. That part is certainly
in force.
Baroness O'Cathain: I just thought that
the Lord Chancellor himself actually did say in his evidence that
he would still have a handle on that for another few months. Am
I wrong?
Q191 Chairman:
Your recollection is right, the Lord Chancellor himself told us
that there were still some appointments in which he would continue
to be involved for the next few months.
Lord Lloyd of Berwick: I do not understand
how that can be. But if he said that it must be true.
Q192 Lord Woolf:
So far as the Law Lords are concerned, the Lord Chancellor says
that the special appointments section does not come in until the
Law Lords move out. We have had a Law Lord appointed very recently
and he was appointed by the old system.
Lord Lloyd of Berwick: That, I think, is the
explanation.
Q193 Baroness O'Cathain:
I did think it was High Court judges actually.
Lord Lloyd of Berwick: No, I am pretty sure
that as far as High Court judges go the system is already operating,
but I will be corrected if I am wrong.
Q194 Viscount Bledisloe:
Can I ask you to remove my uncertainty? I take your position,
Lord Lloyd, as regards the Law Lords; has the Lord Chancellor,
as I understand it, fully got rid of any responsibility for nominating
other members of the judiciary? I am not quite clear; I thought
there was a gap.
Lord Lloyd of Berwick: I think he has: that
was certainly one of his objectives, to hand the whole of that
over to the Judicial Appointments Commission and I thought he
had succeeded in doing that.
Q195 Chairman:
One thing that is beyond debate is that of the responsibilities
left to the Lord Chancellor one is this mighty but somewhat ill-defined
responsibility for the rule of law. It is very interesting to
ask you as a senior judge and lawyer what the rule of law is in
your opinion, over and beyond the independence of the judiciary.
What is his responsibility, for which he has the political and
public responsibility, not just through history but now through
statute? What is it?
Lord Lloyd of Berwick: I will attempt to answer
that question, mainly by referring, if you are not already familiar
with it, to a lecture which was given on this very topic by Lord
Bingham. Could I perhaps just take you up on something you said
in asking that question, which may have suggested that the responsibilities
left to the Lord Chancellor had been very largely diminished.
That is, if I may say so, a misapprehension.
Q196 Chairman:
That was not my intention.
Lord Lloyd of Berwick: The Lord Chancellor's
responsibilities are still, in running the courts system, very
largely as they were. It is only in the more limited spheres of
not acting as a judge and not being responsible for judicial appointments
that his responsibilities have been mitigated. On your question
as to the rule of law, I do recommend the Committee to get hold
of a copy if they were not present at the lecture. If I may be
forgiven I cannot resist mentioning one thing which he says early
in his lecture about the academic view as to what the rule of
law is. One academic said: "It may well have become just
another one of those self-congratulatory rhetorical devices that
grace the public utterances of Anglo-American politicians. No
intellectual effort need therefore be wasted on this bit of ruling-class
chatter." Then a little later he refers to another academic
commenting on the Bush v. Gore case in the Supreme Court
who said that the impression is now recognised that "utterance
of those magic words is little more than `Hooray for our side!'."
Having said that, Lord Bingham does go on to give a very neat
definition of what we mean by "rule of law": "all
persons and authorities within the state, whether public or private,
should be bound by and entitled to the benefit of laws publicly
and prospectively promulgated and publicly administered in the
courts." That is the general statement and he then breaks
that down into eight sub-rules as he calls them. I will not go
through them all at the moment, but they are all the ones that
one might expect and in particular, of course, that ministers,
like everybody else, are subject to the ordinary courts.
Chairman: Thank you, it sounds
as if the Committee would be well-rewarded by studying Lord Bingham.
Thank you very much for that, it is very helpful.
Q197 Baroness O'Cathain:
How effectively is the Lord Chancellor fulfilling his duty to
defend the judiciary and what role do you think the Lord Chief
Justice should play in this regard?
Lord Lloyd of Berwick: When one talks about
defending the independence of the judiciary one has to unpack
that to some extent. The independence of the judiciary arises
in two rather separate ways, one where there is an attempt by
the legislature, if you like, or by Government—to put it
more accurately—to restrict in some way the jurisdiction
of the courts. There the classic example with which we are all
familiar was the recent attempt to oust the jurisdiction of the
courts in the asylum and immigration field. There, it seems to
me, the Lord Chancellor's duty is absolute; he must point out
in Cabinet that this would undermine the independence of the judiciary.
He failed, as it happens, in that case, as we all know. But it
was subsequently drawn to the attention of Parliament in other
ways. There is an entirely separate sense in which the independence
of the judiciary can be attacked—again you discussed this
with Lord Mackay—and that is by ministers attacking the
decisions of individual judges and also, of course, members of
the press attacking the decision of individual judges. What would
worry me would be if there were some sort of split whereby it
was thought that the Lord Chancellor had to deal with ministers
and that the Lord Chief Justice had to deal with the press; that
would be a great mistake. It seems to me that the Lord Chancellor
still has a duty in respect of both these matters. No doubt he
would discuss the performance of that duty with the Lord Chief
Justice, but it certainly is his duty to defend the integrity
of the judges, both when attacked by ministers and when attacked
by the press.
Q198 Lord Peston:
Just very briefly, to make sure I understand what you are saying,
if you take a specific judgment are you saying that it is unacceptable
for anyone in public life, whether a minister or a Member of this
House, to say of a particular judgment "that makes no sense
whatsoever"? Are you saying that should be ruled out, or
are you saying that is allowable but the defender of this nonsensical
judgment would not be the judge but the Lord Chancellor? I am
not very clear. I have a specific case in mind which I am not
going to mention.
Lord Lloyd of Berwick: The Sweeney case?
Q199 Lord Peston:
Well, if you want to know the case it was that poker is a game
of chance and simply no-one who knew any mathematics or probabilities
theory or theory of games could possibly come to that conclusion,
and I am sorry, I did not really want to mention it but since
you press me my point is, were one to write an article and say
that, who is to defend the judge? Since I take it the view is
that the judge himself should not be asked to justify his own—
Lord Lloyd of Berwick: I entirely agree with
what Lord Mackay said about that. I think it is highly undesirable
that judges should be asked to defend their decisions.
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