Examination of Witnesses (Questions 40
- 58)
WEDNESDAY 9 JULY 2008
Lord Phillips of Worth Matravers and Sir Igor Judge
QC
Q40 Lord Peston:
So the first question is, when will you cease to be Lord Chief
Justice?
Lord Phillips of Worth Matravers: On
1 October, or 30 September more accurately.
Q41 Lord Peston:
This year?
Lord Phillips of Worth Matravers: Yes.
Q42 Lord Peston:
And then you will become the Senior Lord of Appeal in Ordinary?
Lord Phillips of Worth Matravers: Yes.
Q43 Lord Peston:
Do we know, I have forgotten, when the Supreme Court will come
into operation?
Lord Phillips of Worth Matravers: We
know that the Supreme Court is intended to come into operation
on 1 October next year.
Q44 Lord Peston:
So that gives us the progression?
Lord Phillips of Worth Matravers: Yes
and the change is automatic under the statute. The senior Law
Lord automatically becomes President of the Supreme Court.
Q45 Lord Peston:
Nonetheless your appointment is historic in a sense, because we
have never had a Supreme Court before, but you have been given
both this job and told you will be the President?
Lord Phillips of Worth Matravers: It
is the statute which says that providing I am still the senior
Law Lord when the Supreme Court comes into existence I will turn
into the President.
Q46 Lord Peston:
The process of getting you appointed in the first place involved
this committee you told us about and you also referred, I thought
at first apropos of other appointments, to the relevant criteria
being in statute for those appointments. Are the criteria for
your appointment written in statute?
Lord Phillips of Worth Matravers: The
statutory requirements as far as appointing judges is concerned
are pretty simple. The appointment has to be on merit and that
is what I was referring to when I was talking about the Judicial
Appointments Commission having a statutory mandate or criteria
in relation to their appointments. It is spelt out absolutely
clearly, you appoint on merit, you cannot have a requirement that
X per cent of those you appoint are criminal for instance.
Q47 Lord Peston:
I understand that, but there is nothing more in the legislation
other than "merit"? It does not say "by merit we
mean"?
Lord Phillips of Worth Matravers: No,
there is not.
Q48 Lord Peston:
Does that apply to Sir Igor as well? Are you also there on merit,
end of story?
Sir Igor Judge: I hope so!
Lord Phillips of Worth Matravers: Yes,
it does. Could I just add a cedilla, my appointment as a senior
Law Lord was by the process which the statute lays down for appointing
the President of the Supreme Court. Now as a matter of strict
law, that does not come into effect until we have a Supreme Court,
but there was agreement between Lord Bingham and the Lord Chancellor
that it would be appropriate that that machinery should be used
to appoint his successor.
Q49 Lord Peston:
Just before I come to you, Sir Igor, just to clarify it to a total
lay person, is there a legal literature on what the word "merit"
means? As a layman I can think of at least two concepts. One is
the person is a brilliant lawyer but the other is the person has
very sound judgment, and the two do not seem to me to be the same.
In other words, if I were the lay person on one of these committees,
I might well say that X is the better candidate, if that is what
we are doing, because he, she seems to show sound judgment even
though Y seems to know more about the law.
Lord Phillips of Worth Matravers: There
is no statutory definition of merit, it is really a matter for
the relevant body, which would normally be the Appointments Commission,
as to the elements which go into make a meritorious candidate.
At the same time for a particular vacancy there may also be other
specific requirements for a particular expertise in a particular
area which have to be considered.
Chairman: The seminal work on the rise of the
meritocracy says that merit is IQ plus effort.
Q50 Lord Peston:
Sir Igor, was your experience pretty much the same?
Sir Igor Judge: There was what I would
describe as a job description provided both for those who were
consulted and of course for the Judicial Appointments Commission
panel which undertook the process. There is a job description
currently available for the President of the Queen's Bench Division
who will replace me. That job description has been at least partly
drawn up in the light of the fact that I am now moving to be Lord
Chief Justice and I will take some of my own current responsibilities
with me as Lord Chief Justice so we will need a different job
description. But there is a job description available—I
do not know whether it is common knowledge but anyway there is
one and there was one—and there is one for the President
of the Queen's Bench Division.
Q51 Lord Peston:
Are you interviewed as well?
Sir Igor Judge: I was.
Q52 Lord Peston:
You were?
Sir Igor Judge: Yes.
Lord Phillips of Worth Matravers: I was
not.
Q53 Lord Peston:
What is lying at the back of my mind, which you can probably guess,
is the extraordinary contrast between your experiences and what
happens when a member of the US Supreme Court gets chosen. Much
as I admire the American constitutional system the contrast, again
speaking as a layman, just seems to me to be entirely right on
our side as opposed to theirs.
Lord Phillips of Worth Matravers: I think
we would both agree with that!
Chairman: Counter-Terrorism. Lord Morris?
Q54 Lord Morris of Aberavon:
Some of us have come hot foot from discussing the Second Reading
of the Counter-Terrorism Bill last night. I am not going to ask
you about the merits, as that is the word we are talking about,
of the 42-day period which has been proposed, but what I want
to know is the implication of having a parliamentary debate during
the course of an investigation and the fears attached to that.
I am not asking you about how a judge will decide in a particular
case but in this unprecedented situation of a parliamentary debate,
which would be very wide ranging according to the indications
given by the Home Secretary, could that cause as a general matter
problems about a fair trial and an abuse of process argument?
Lord Phillips of Worth Matravers: Less
frequently now than used to be but there is quite often an application
made to a judge on behalf of a defendant that it is impossible
to have a fair trial because it would be impossible to get a jury
which has not been biased by what they will have read or seen
in the media. It is very rare that a judge accedes to such an
application. Judicial experience tells judges first of all that
if there has been a significant period of time between something
being in the newspapers and the trial the likelihood is that the
jury will have forgotten all about it. Secondly, experience tells
us that juries are very good at putting out of their minds, or
out of consideration, matters they may have read in the papers
some months before. The first thing which happens in any criminal
trial is that counsel for the prosecution gets up with all the
majesty of the law and tells the jury what the prosecution case
is about the defendant, and nobody has suggested that this is
unfair prejudice as far as the jury is concerned. The trial then
proceeds. So it would only be in an extreme situation that facts
which might have been stated in debate in the House subsequently
reported by the press could lead to an application that it is
no longer possible to have a fair trial. I imagine there would
be precautions anyway taken by way of anonymising names and so
on in debate but I am not conversant with the details of what
is proposed.
Q55 Lord Morris of Aberavon:
I appreciate, Lord Phillips, the issue of delay between a particular
press reporting and an actual trial, and when I was Attorney one
had issues of contempt to consider, sometimes happy and sometimes
unhappy experiences in applications to the Court of Appeal. There
it is. Is there any parallel you can think of where in the middle
of an investigation there is a parliamentary debate, whatever
the guidelines, which was triggered off by a specific case and
sought to be justified by the Home Secretary and inevitably there
would be not only publicity but the whole atmosphere that this
is an extraordinary situation calling for special measures and
that in turn would make it difficult to have a fair trial?
Lord Phillips of Worth Matravers: I do
not think that I am really competent to give an answer to that
question; it would call for quite a lot of historical research.
I did preside over a trial in which two of the defendants were
alleged to have conspired with the late Robert Maxwell; it was
after his death. I have not researched what may have been said
in Parliament about Robert Maxwell but I suspect he was the subject
of some parliamentary discussion which may well have been reported.
Q56 Viscount Bledisloe:
I would like to ask you a question of which I am afraid you have
received no warning, and that is about the funding of civil litigation.
First of all, is it right that the funding of criminal legal aid
and the funding of civil legal aid comes from the same source
and that, as the criminal legal aid consumption goes up, so only
the residue is left for civil legal aid? When the amount needed
for criminal litigation is really a product of the activities
of the Government and the police, is it right that civil legal
aid should be eroded by that? Slightly related, what is your general
view of the desirability and efficacy of contingency fees?
Lord Phillips of Worth Matravers: On
the first one, I think all legal aid comes out of the Ministry's
budget. I am not aware of any instance of the Ministry saying,
"We have to cut back on civil legal aid because we have had
an overspend on criminal legal aid." There has been an instance
when the Ministry has said they have to make economies—they
call them "efficiency measures"—because of the
expenditure which has taken place on criminal legal aid. There
has however been a cut-back on civil legal aid, particularly in
the area of personal injuries, on the basis that this is replaced
by the conditional fee system. The conditional fee system is not
a perfect replacement for civil legal aid, you can get up to double
what would be the appropriate fee as an enhancement for success
if you agree to act on a basis you will get paid nothing if you
lose. You are not going to be prepared to accept instructions
on that basis unless the prospects of winning look pretty rosy.
That means that cases where there is a very strong case are likely
to go for trial because there will be lawyers who are prepared
to act, but sometimes you will have a case which ought to go to
trial which is not all that strong but it does raise an important
issue of principle. The conditional fee system does not cover
that. I know the Master of the Rolls at the moment is very concerned
about the whole area of fees and at the moment he is conducting
an inquiry into it but we have not got a perfect system of public
funding of civil litigation.
Q57 Viscount Bledisloe:
It can only be anecdotal but are you saying that contingency fees
in certain circumstances lead to abuses of process by the contingency
fee lawyer?
Lord Phillips of Worth Matravers: There
is a concern about this and this is why it would have been unlawful
to have such a system in the past. I have not come across any
case where it is suggested that because the lawyer was only going
to get paid if he won, he has behaved in an improper or objectionable
fashion.
Sir Igor Judge: My position is exactly
the same. Suspicious but no evidence.
Q58 Chairman:
Lord Chief Justice and Sir Igor, can I thank you very much on
behalf of the Committee for joining us this morning and for the
evidence you have given us. Thank you very much indeed.
Lord Phillips of Worth Matravers: Thank
you.
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