Select Committee on Constitutional Affairs Minutes of Evidence


Examination of Witnesses (Questions 340 - 359)

TUESDAY 9 DECEMBER 2003

RT HON LORD CULLEN OF WHITEKIRK AND RT HON SIR ROBERT CARSWELL

  Q340 Mr Soley: Thank you for flagging that up. Sir Robert, I am not quite clear where you stand on this. Are you broadly in favour or against?

  Sir Robert Carswell: I cannot speak for my colleagues because it is not a topic we discussed as it was not part of the consultation paper, and I suspect that their views might be divided. My own view I think tends towards that of Lord Cullen; it is a matter of perception. There is no doubt, I think, that the quality of the work of the Lords has been highly regarded for many, many years and their independence and integrity is certainly unchallenged. It is a question of perception and the possibility of a challenge under Article 6, though frankly I think it would be a brave person who would undertake it!

  Q341 Mr Soley: So you are both confident that there would not be any challenge to that at all, but again it goes back to perception, does it not, because we do get as politicians questions from particularly the emerging Eastern European countries about why we have a rather muddled approach at times, on separation of powers. I know that is really the Lord Chancellor, but there is an element of overlap, is there not?

  Sir Robert Carswell: Well, the whole of our constitution is a little that way. I am inclined to Lord Cullen's view that if it is functioning satisfactorily you might make more trouble from changing it just because of perception. If it were not functioning satisfactorily I would have no hesitation in supporting a change to have a court that was put on the right basis, but I have some difficulty in seeing that the case for changing just because of that is made out. I might be less positive than Lord Cullen and certainly less positive than Lord Nicholls as reported in Counsel, but I would hesitate myself, if I may put it that way.

  Q342 Mr Soley: Do you think people in the street would have a perception of your function now, or would it be better if it was a Supreme Court, given that that term is perhaps better understood by people?

  Sir Robert Carswell: In the taverns of Tipperary the talk does be of little else!

  Q343 Mr Soley: I would have to say not in Acton! Nevertheless there is a perception of justice and of judicial structure, and "Supreme Court" has a precise meaning in people's minds, even if it is not so precise in actual terms. They tend to understand that.

  Sir Robert Carswell: That I think is as far as the benefit is likely to go—tidiness and people's idea of their understanding. Advantages in practical terms are likely to be minimal and there may be problems not appreciated such as Lord Cullen has dealt with in his response.

  Lord Cullen of Whitekirk: You say everybody knows what a Supreme Court is but if you look at yesterday's article by Lord Rees-Mogg in The Times he immediately starts thinking about the American model. If you say "Supreme Court" to a man in the street he may say, "Oh, yes, just like America". Now, that is not what is proposed, as I understand it, so it is not as simple as all that.

  Q344 Mr Soley: Finally, you have played a distinguished role in a number of public inquiries. Do you think members of the Supreme Court could do that job, or do you think that would have to revert to someone else?

  Lord Cullen of Whitekirk: It depends whether they were allowed to do so by the President of the Supreme Court. It has become a regular practice for judges at various levels to be asked to do these inquiries. I do not see any reason in principle why not, no. None at all.

  Q345 Mr Soley: Although it must be said in the 19th century Parliament was very good at doing its own inquiries.

  Lord Cullen of Whitekirk: It was only because of difficulties over that very thing that inquiries by judges and others began to become more common. I think it was the Marconi episode in the 1920s which gave rise to the Tribunals of Inquiry Act 1921. Because of the difficulties then it was necessary to take the matter out of the political hotbed which tended to surround parliamentary inquiries at that time.

  Q346 Peter Bottomley: Many of us were astounded that the Government could come up with proposals to reorganise our court of final appeals without consulting the outgoing Lord Chancellor, the incoming Lord Chancellor, the present members of the Judicial Committee of the Lords, and I think we would do better to discuss this in terms of a court of final appeal and leave the title to be chosen afterwards for exactly the Rees-Mogg reasons. Clive Soley was talking about perceptions. What would be the minimal changes that might meet the perception point?

  Lord Cullen of Whitekirk: I am not sure what you mean by "minimal changes".

  Q347 Peter Bottomley: Largely that the Lord Chancellor should not be able to sit as a law lord. The minimal change is the Lord Chancellor saying "I will not sit as a law lord" rather than throwing the whole system in the air. People argue that having the law lords meeting in the House of Lords is somehow the executive interfering, forgetting of course that Parliament is not the executive and that any arrangements are likely to be more expensive. Could they be cheaper than the present arrangements?

  Lord Cullen of Whitekirk: I cannot say because I do not sit as a Lord of Appeal but my impression is that it would be cheaper to leave things as they are than to create something freestanding outside, and there also is the advantage at the moment, as I understand it, that the Appellate Committee is funded through the House of Lords whereas if it is to be exported to some other place it would then be funded by the Department of Constitutional Affairs, hence you get a closer association or greater association with the executive which did not previously exist. Now that itself raises a problem of independence.

  Q348 Peter Bottomley: And without commenting on the personal qualities or merits of the present serving Lord Chancellor, would either of you take the view that you would prefer to have the judiciary so to speak led by a middle-ranking minister who might want preferment, or would you prefer the present system we have had of having someone who is so grand that they do not expect to go on to another job after being Lord Chancellor?

  Lord Cullen of Whitekirk: I will leave Sir Robert to deal with that question because the Lord Chancellor has no sway in Scotland.

  Sir Robert Carswell: That is known in rugby terms as a hospital pass! I certainly have had experience of working with three Lord Chancellors—

  Q349 Chairman: Who all happen to be Scots?

  Sir Robert Carswell: Yes, and it was wholly favourable. I found that they did support the judiciary extremely well and that they had the standing—I leave out the present one because he is in a slightly different position but Lords Irvine and Mackay had the standing—to be able to put their case, if there was a case to be made, very effectively. To have a person in the position of the Lord Chancellor with the independence and the standing rather than, as Mr Bottomley said, a politician who may be looking for other posts in due course—I could see that the latter would give less support and independence to the judicial point of view because judicial independence is so crucial, not because it is terribly important that they be left alone to do their own thing but because independence is a necessary condition of impartiality.

  Q350 Ross Cranston: I want to come back to this public inquiries point because there is a purist view, which I do not share, that judges should not conduct public inquiries. I guess the difference with a parliamentary inquiry is we might do policy but judges can do factual inquiries that we cannot do. But I think the argument is first a practical argument—that judges simply do not have time if they are on the Supreme Court—but also there is a constitutional argument and I think it is the view taken, say, by the Victorians in the common law world and possibly shared that it is just wrong for judges to become involved outside judicial functions. As I say, I do not share that but it is an argument that if you take this purist Article 6 view of the world—which I think is totally wrong but if you take that view—it might well be said it is wrong for judges to participate in public inquiries.

  Lord Cullen of Whitekirk: It is certainly the case that in some other countries it would be unthinkable for a judge to take a public inquiry but there never seems to be a problem here. What has happened over the decades is governments have used judicial independence and judicial talent in order to cope with matters that could not be resolved in some other way.

  Q351 Ross Cranston: I think the argument might sometimes be that politicians are trying to avoid issues or kick them into the long grass or whatever, and are exploiting the judiciary.

  Lord Cullen of Whitekirk: It is an out-tray way of dealing with matters but it is important also to bear in mind that you do not have inquiries unless there is some cause for public concern, and thus it is that judges who are otherwise liable to be treated as elderly and out of date suddenly become popular for this sort of purpose.

  Mr Soley: Young and in date!

  Q352 Chairman: Turning, Lord Cullen, to the Scottish aspects of this, are the Government's proposals compatible with the Act of Union, Article 19 and the claim of right and, if not, what would have to be done to them to make them compatible?

  Lord Cullen of Whitekirk: I adverted to this matter in my response really in order to make the point that this aspect ought to be considered by the Government. Before the Act of Union there is the Claim of Right, which was a Scottish provision at the time when the monarchy was returning to Scotland in 1689 and there was then a declaration by the Scottish Parliament as to the right of subjects to protest for remeid of law to the King and Parliament and that is the ancestor, so far as Scotland is concerned, of the hearing of civil appeals from the Court of Session to the House of Lords. The Act of Union was silent on the question of appeal from the Court of Session or, indeed, the High Court of Justiciary, but it was later, much later, interpreted in such a way as to indicate that the Court of Session and its decisions should be subject to review whereas the High Court, the criminal court, would sit with its decisions to be regarded as final and conclusive. So what you have, firstly, is an interpretation of the Act of Union. The second point is that, until now, it has been recognised that there are some situations, not easy to define, where certain elements in our constitution may be unalterable—that is a possible view. It arises from time to time, most recently in the case involving Lord Gray's Motion where certain members of the Committee for Privileges reserved their view on that matter. So however strange it may seem there is an argument that Parliament might not be able to alter or undo certain elements of a constitutional nature. That is a sketch of the argument: whether it is good or not I do not propose to advance, but simply say it is there to be considered.

  Q353 Chairman: Are you proposing any way in which the Government's proposals might be modified to avoid collision with that argument?

  Lord Cullen of Whitekirk: I am inclined to think that it may very well be that so far as civil appeals are concerned there is not a problem, but it is simply something that ought to be looked at. Therefore my answer to that is probably that no alteration is, in fact, required.

  Q354 Chairman: Do you agree that legislative competence so far as any changes to leave to appeal and things of that kind are concerned does not lie with Westminster under the devolution settlement but with the Scottish Parliament?

  Lord Cullen of Whitekirk: That is quite a difficult matter. If you look at the Scotland Act you will find that what is reserved is the continued existence of the Court of Session and the High Court of Justiciary. The way that the Scotland Act is constructed certain matters are specifically reserved: the rest is not, and therefore it appears on the face of it that matters other than the continued existence of these courts is a matter for the Scottish Parliament. Nobody is entirely clear as to that being the case but that seems to be the position, in which case there seems to be a role here for the Scottish Parliament. Now I would hope that the matter was not, so to speak, nodded through in Scotland but given serious consideration, but that is the position, as I understand it.

  Q355 Chairman: Lord Hope expressed the view that the Scottish Parliament would need time to deal with this matter before it proceeded at Westminster?

  Lord Cullen of Whitekirk: I would agree with that and the consultation paper, whereas it makes clear what the executive's attitude is and we have seen the executive's response since then, so far as I know as yet there has not been a considered discussion in the Scottish Parliament.

  Q356 Chairman: There is a phrase which I think you may have challenged already which the Government use in respect of constitutional issues where they say that the establishment of the new court "accordingly gives us the opportunity to restore a single apex to the United Kingdom's judicial system where all the constitutional issues can be considered". That is in the consultation paper. Is it your view that, leaving aside the devolution issues, there ever was or should be a single apex which combines the judicial systems of England and Scotland?

  Lord Cullen of Whitekirk: I do not think that is correct. The position until now is that the Appellate Committee functions sometimes as an English court and sometimes as a Scottish court, and I say that because what is binding in England is not binding in Scotland. You have two completely separate jurisdictions so that whatever decision the House of Lords reaches in regard to an English civil matter it does not bind in Scotland, and vice versa, so you really have two apices rather than one apex and, if the position is that that is to be taken over by the Supreme Court, it will have those two high points, whereas the paper tends to talk as if this is the opportunity for the United Kingdom court. Well, I say that is obscuring the point: that you have two separate jurisdictions each with its own head happening to be administered under one device, namely the Appellate Committee. That is what we have: it is a result of the separate growth of two legal systems, and it is preserved, of course, by the Act of Union.

  Q357 Chairman: Do you think that the Scotsman who holds the position of Lord Chancellor in England that is driving this reform has now perhaps become more familiar with this point?

  Lord Cullen of Whitekirk: I certainly have had the opportunity of making it to him and I have also pointed out that there is nothing in the consultation paper that would prevent this Supreme Court in an English case determining what Scots law was or vice versa, and I think for the protection of Scots law that needs to be in any legislation for a Supreme Court, as well as more general provisions safeguarding the separate existence and entity of Scots law.

  Q358 Ross Cranston: Just quickly, if one started with a blank sheet one could look, say, at jurisdictions like Canada, where the Supreme Court operates and still preserves a quite distinct judicial system in Quebec, quite different in terms of the civil law background and in terms of the substance of the law. Starting with a blank sheet, therefore, do you think you would take a different view?

  Lord Cullen of Whitekirk: I think it would not be impossible for a Supreme Court here to preserve that clear distinction, and if one was setting up something now and had not got the benefit of decades and hundreds of years" operation of the House of Lords and the Appellate Committee, yes, it could be done but all I am saying is that the safeguards are not spelled out and I think the safeguards are essential. The present consultation paper seems never to come to terms with any of that, which is rather worrying.

  Q359 Dr Whitehead: Could we perhaps move to who would like to be on the new Supreme Court? Do you have any views about the convention of the numbers of judges from Scotland who might be appointed to the Supreme Court? Do you believe that the convention should simply continue, or do you believe there should be rather more places available?

  Lord Cullen of Whitekirk: The proposition is that the number of twelve should be carried over from the Appellate Committee. One of the points that we did consider was whether and to what extent the new Supreme Court should rely on ad hoc members brought in from the various jurisdictions, and we tended to the view that it should, so far as possible, operate within its permanent establishment. Now, that cannot be done without increasing the establishment and that brings in its train the question of whether it should remain as two members from Scotland or whether it should be three. It is really an incidental effect of that. If one compares that with the present arrangement under which the Judicial Committee of the Privy Council can call on Scots men and women ad hoc to sit in, it is a very flexible arrangement and quite a beneficial arrangement from the point of view of making sure that you have adequate Scottish representation when required. These are broadly my views. Now, I appreciate that to increase the number of Scots may not necessarily be wholly popular and it also creates difficulties in Scotland because at the moment to have two distinguished Scottish judges serving in England and for the most part looking at English cases is in a sense bad enough, but to take three away is a greater drain so there are pluses and minuses here. It is a difficult matter and it may be at the end of the day one of the arguments for leaving matters as they are.


 
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