Examination of Witnesses (Questions 40
- 59)
THURSDAY 6 DECEMBER 2007
Lord Phillips of Worth Matravers and Lord Justice
Thomas
Q40 Lord Peston:
But you have not yet made up your minds?
Lord Phillips of Worth Matravers: I think
we have largely made up our minds what is going to go into that
response, and I think it is probably better that we should wait
for the report.
Q41 Lord Peston:
Are you going to tell us now what your response is going to be,
or you would rather we shut up?
Lord Phillips of Worth Matravers: I do
not think I am going to tell you what our response is going to
be. I think what I can say about the suggestion that relates to
the Lord Chancellor's involvement—because the current Lord
Chancellor has made his own attitude quite plain and we are in
the course of implementing that—as a matter statute the
Lord Chancellor is required to approve all appointments. It is
perfectly obvious that the Lord Chancellor himself is not in a
position to make reasoned decisions in relation to hundreds of
appointments, so either he has to have a large staff who are second
guessing what the Judicial Appointments Commission is doing so
that he can make the informed decision on each one, or it is a
rubber stamp. The same is true, to a large extent, of vacancy
notices which have to be given by the Lord Chancellor, usually
on perfectly obvious requirements, and one has to have a mechanism
of going through the Lord Chancellor before the Judicial Appointment
Commission can begin to take steps to fill the vacancy. So these
are areas where I think everybody is in favour of doing away with
requirements of the formalities that do not reflect what has to
happen in practice.
Q42 Lord Peston:
There is one supplementary that I would like to ask, which I hope
you could in this case answer, that there has been the suggestion—which
I may say I am totally opposed to myself—that we should
hold in Parliament, which again includes our House—post-appointment
hearings for the most senior judges. As I say, I regard that as
completely inappropriate but I would certainly like to know your
view.
Lord Phillips of Worth Matravers: My
personal view is that I share your view. I really cannot see a
desirable role for Parliament in such circumstances. I think that
Lord Bingham was asked about this and he said, "What are
they going to ask? They are going to ask political questions;
they are not going to ask, `Do you keep cats?'"
Q43 Lord Peston:
It would be like the American system, would it not, they would
go into your personal background and everything else under the
sun; but it is hardly appropriate if you are talking about a very
senior judicial figure?
Lord Phillips of Worth Matravers: I personally
have yet to see a suggestion of a role that Parliament would play
at that stage, to which I would be attracted.
Q44 Lord Lyell of Markyate:
I am a little worried because in the end the appointment of the
senior judiciary—indeed the judiciary—is not a judicial
function it is an Executive function. But it is a function which,
in my opinion, ultimately the government of the day is responsible
for, and it actually worked in practice very well down the decades
and the centuries—we have a very, very high standard judiciary.
I hope that the Lord Chancellor will retain and take seriously
his overview—rather like the Attorney General's overview
of the prosecuting system—and responsibility for the appointment
of the judiciary, and I should be very reluctant—and I hope
you would agree with me—that the Lord Chancellor should
find himself having withdrawn from that deep responsibility.
Lord Phillips of Worth Matravers: I agree
with those comments, I think. The comments I was making before
were about what I described as rubber stamping appointments where
the Lord Chancellor simply is not in a position himself to make
an informed decision at all. When you reach the top judicial appointments—and
there the judicial appointments system is different, there is
a much greater input from the serving judiciary as to these top
appointments—I have always made it plain that I accept that
it is desirable that there should be executive involvement at
that level because it would be highly unsatisfactory to have,
for instance, a Lord Chief Justice appointed in whom the government
had no confidence.
Lord Lyell of Markyate: I think we are
very close to agreement, but in practice in government you have
to accept responsibility for things in which you do not have time
for personal involvement, but you should have the power because
you should never have responsibility without at least theoretical
power.
Q45 Lord Morris of Aberavon:
Where would you draw the line about involvement of the Executive?
You mentioned, Lord Chief, the appointment of a Lord Chief Justice.
How far would you go on that? And recalling your earlier words,
if it is not going to be rubber stamped the Lord Chancellor has
to have the appropriate staff to advise him.
Lord Phillips of Worth Matravers: That
is certainly true but it depends how many members of the judiciary
are going to be involved in a meaningful process of consideration
by the Lord Chancellor. If he were to be meaningfully involved
in relation to the entirety of the judiciary then you need a very
large staff for simply second guessing the Judicial Appointments
Commission. But when you get to the top I think I would be reluctant
just off the cuff to attempt to draw the line, thinking about
the heads of division, those members of the judiciary who have
necessarily to work quite closely with government, as we do at
the moment in the partnership of the administration of justice.
Q46 Lord Woolf:
The way that the Constitutional Reform Act was drawn was to substantially
reduce the involvement of the Lord Chancellor, but to give him
an involvement, namely he could refuse in very limited circumstances.
An attempt of that sort to give him an involvement but a limited
involvement, in principle are you against it?
Lord Phillips of Worth Matravers: No,
I am in favour of it.
Q47 Lord Woolf:
Of course, how the Lord Chancellor exercises his discretion and
what information he needs is very much a matter for him, but as
I understand what you are saying—and correct me if I am
wrong—is that with regard to appointments where, quite frankly,
the Lord Chancellors in the past have entirely relied upon their
officials because they would not be personally involved, is merely
a mockery to think that he has to second guess the appointment
machinery that we now have in place.
Lord Phillips of Worth Matravers: It
is a mockery unless he has a huge body of people in his department
who are in effect second guessing the job that the Judicial Appointments
Commission has done in order to give him informed advice as to
whether they have done a good job. I do not believe in that because
I think if you have a Judicial Appointments Commission you let
them get on with it.
Q48 Lord Lyell of Markyate:
Just very quickly—and again I think we are extremely close—Parliament
is an enormous information gathering machine, and supposing out
in some distant county it becomes known that somebody who, for
reasons, is thoroughly unsuitable is about to be appointed to
what in the locality is a very important position, and that comes,
say, through a Member of Parliament to the Lord Chancellor, that
residual power which effectively would be used by saying to the
Judicial Appointments Commission, "If you appoint this person
I will ask you to think again," is a valuable power, and
it is a valuable power in the cohesion of this country. Would
you agree with that?
Lord Phillips of Worth Matravers: I think
I would agree with it and it is reflected to some extent in statutory
consultation which takes place with statutory consultees—and
I am very often one of them—which give an opportunity to
say, "Wait a minute, there is something you ought to know
about this particular candidate."
Q49 Lord Rowlands:
We are now less than two years away from the date on which the
Supreme Court is going to be set up. Do you think that there are
broader implications for the legal system in the actual transfer
from an Appellate Committee here to a separate Supreme Court?
Lord Phillips of Worth Matravers: The
change I think is much more one of form than substance. It is
bringing our system transparently into the system that in practice
already exists. The Supreme Court will be there for all to see
as an independent Supreme Court. At the moment the man in the
street is totally bemused, I think, when he or she hears that
this case is going to the House of Lords—they have no idea
what that means. I myself think that the standing of the Supreme
Court is going to be enhanced above that of the Law Lords. Some
of the Law Lords take a completely different view, but that is
my own personal view. I think essentially the changes are going
to be changes of form rather than substance. The same Law Lords
will be doing the same job in new premises with new labels.
Q50 Viscount Bledisloe:
Eighteen months ago we asked you about the split of your time
between judicial work and administrative and you said that ideally
you would like to sit judicially three days a week and do admin
for two days, but that your recent six months had had a particularly
heavy burden. Has the burden in fact lightened and have you achieved
your aim?
Lord Phillips of Worth Matravers: I have
not quite achieved sitting on average three days a week. I think
more or less I sit about half my theoretical working time. Essentially
I find that I am doing at least one and a half jobs, and so I
am under very great pressure of time. I have been sitting three
days this week and because I did not have the time I would have
liked before the sittings I now have reserved judgments that I
have to find time to do, whereas if I had had the time that most
judges have to prepare for their cases I anticipate I would have
been able to deliver judgments as soon as those cases were completed.
So I am under a great pressure but I am still succeeding in sitting,
I hope enough to satisfy what I consider are the requirements
of any Lord Chief Justice.
Q51 Viscount Bledisloe:
Are you going to be able to improve the situation yet further
or is this administrative burden going to be inevitable? And I
go back to a previous question, is that going to discourage the
best people from succeeding to your job?
Lord Phillips of Worth Matravers: I hope
it will not because when I talk to people I tell them that I am
enormously enjoying the job, despite the pressure. But I do not
think the pressure is going to lessen, no.
Q52 Lord Norton of Louth:
Just going back to the point about the move to the Supreme Court.
You mentioned that people did not understand the current system
basically because of the nomenclature of it, and I am not sure
that there is much evidence for that, but if we go on the basis
that the name itself was misleading, if it moved to the Supreme
Court—and you are saying that the change is really one of
form—do you think that there is the danger that people will
misunderstand what the role of the Supreme Court is, given the
name that is attached to it?
Lord Phillips of Worth Matravers: Undoubtedly
they do all the time when I talk to them. They imagine that our
new Supreme Court is going to be like the American Supreme Court,
which will be able to overhaul Parliamentary legislation on the
ground that it is not constitutional. But I hope that in time
the public will recognise the true nature of the new Supreme Court.
Q53 Lord Norton of Louth:
Would it have been perhaps an alternative of another name that
would reflect more accurately what happens?
Lord Phillips of Worth Matravers: I do
not think I would be in favour of that; I think the Supreme Court
is rather a good name, and it is only a question of a short period
before people understand the nature of that Supreme Court.
Q54 Baroness O'Cathain:
Are you going to have a great publicity campaign to try and inform
people about it, because your point is an extremely valid one?
If you talk about the Supreme Court all they think is American
movies.
Lord Phillips of Worth Matravers: I hope
there will be adequate publicity that will inform the public as
to the nature of the new Supreme Court. Of course the public basically
reads about these things in the newspapers, so we must rely upon
the media to give them that information.
Q55 Baroness O'Cathain:
There is another method but I hesitate to suggest it to you, because
the Lord Speaker here has an outreach programme at the moment
to inform young people, sixth formers who are doing politics or
will do in university, and a number of us are going from school
to school with a very good power point presentation, and a lot
of good information which comes from the information office, and
it is a very worthwhile thing. But of course I guess that the
judges just do not have that sort of time, or indeed resources
to do it. But it might be worth thinking about it, and indeed
even talking to the Lord Speaker about the results that are coming
in on this, because it is the young we need to get to.
Lord Phillips of Worth Matravers: This
raises a much wider issue than understanding in the Supreme Court.
It would be very useful if the young understood the difference
between criminal and civil jurisdiction, which they do not. I
am very enthusiastic about teaching children in schools about
our legal system, the basics of our legal system, including of
course the Supreme Court. And judges do involve themselves on
an individual basis in this as much as they have power to.
Lord Justice Thomas: The Magistrates'
Association does a lot of good work in this respect as well. There
has been for some time a programme, both for the full the judiciary
to help, but the magistracy have done a great deal of help, going
to schools on a very regular basis.
Q56 Viscount Bledisloe:
Could you not recruit some of the retired judiciary to do some
of this education?
Lord Phillips of Worth Matravers: One
could try. We try to recruit the retired judiciary to do all sorts
of things and we do not always find they are enthusiastic.
Q57 Lord Woolf:
Could I just say that I know of one retired judge who goes to
a number of schools to give talks.
Lord Phillips of Worth Matravers: I am
sure there are lots who do.
Q58 Lord Lyell of Markyate:
You are an enthusiast for the Supreme Court but you rightly said
that it will be misunderstood as having American powers. Are there
not other possible unintended consequences? You will be aware
that the European Court of Justice and the European Court of Human
Rights both reached their conclusions by a much, much wider sense
of research and input and diplomatic input and positive lobbying
and lunches with Advocates General and all that sort of thing.
Are we going to see that kind of change in our Supreme Court or
are we going to remain very purist as we have been in the House
of Lords, where the idea of anybody having lunch or working with
a law clerk would be regarded as extraordinary?
Lord Phillips of Worth Matravers: I hope
the latter. We do not find in the Court of Appeal that we are
being lobbied are our clerks are being invited out to lunch by
those who would like to interest us, and I do not anticipate that
if anyone attempts this with the Supreme Court that they will
get a very favourable response.
Q59 Lord Lyell of Markyate:
But you do recognise that it happens in Europe and the United
States?
Lord Phillips of Worth Matravers: I do
not have personal knowledge of either but I am perfectly prepared
to take your word for it, the fact that it does.
Chairman: Lord Chief Justice, Lord Justice Thomas,
can I thank you both on behalf of the Committee very much indeed
for your attendance and indeed for your evidence, which is greatly
appreciated. Thank you very much indeed.
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