Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 183 - 199)



  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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