Examination of Witnesses (Questions 80
MONDAY 26 MARCH 2001
80. Do you think then that this is going to
be a continuing part of your professional development for the
future or do you think it is becoming so much a part of the thinking?
What role will training play for the future?
(Lord Bingham of Cornhill) I suspect it is a little
bit like the law of the European Community. When it was all new
there were training sessions at which direct effect and questions
of that kind were discussed. As time went on and all the judges
and practitioners became more familiar with the law of the Community
it became less necessary to hold such sessions, which is not to
say there is never any need for one ever again but increasingly
there is more that can be taken for granted as part of professional
Lord Carlisle of Bucklow
81. In practice will that not mean that in the
regular Judicial Studies Board training weeks for recorders and
particular people that probably human rights will have a slot
as well as the other matters of sentencing?
(Lord Bingham of Cornhill) I would expect for the
foreseeable future that would be true
82. Rather than have additional
(Lord Bingham of Cornhill) Of course, in time one
will have a generation of students all of whom will have studied
the subject in some detail at university and it will probably
be a subject that will appeal to them and so they will take a
particular interest in it, and there is a process of assimilation
of new material, but I agree.
(Lord Woolf of Barnes) I would add to that that it
does seem to me that we can expect the situation to arise where
the Human Rights Act becomes part of all areas of law and is absorbed
into them and in consequence of that the movement will be stillif
you are going to be practising as a criminal judgeto be
trained as a criminal judge and an essential part of that training
will be in relation to human rights.
Sir Patrick Cormack
83. A bit like computer literacy.
(Lord Phillips of Worth Matravers) I agree. I do not
see a role as far as continuing professional development is concerned;
it is something new and we have had to learn about it. We will
continue to acquire knowledge and expertise day-by-day. I do not
see why we need a refresher course; we are being refreshed all
84. When will the Judicial Studies Board determine
that the time has come not to take it as an integral part of the
(Lord Woolf of Barnes) The remit of the Judicial Studies
Board is expanding all the time and the need for training is becoming
appreciated to a much greater extent than hitherto. What the Judicial
Studies Board does with regard to its present training is it collects
feedback from those that are attending as to the value. I am sure
that will influence the thinking of the Judicial Studies Board
and they will be monitoring progress and they will provide what
they see as necessary. The law is going to develop and the need
to refresh and instruct those as to the changes will continue.
Baroness Prashar: Thank you.
Chairman: No doubt the Council of Legal Education
and the Inns of Court School of Law will be seeing to it that
entrants to the profession are aware of the effect of the Human
Rights Act. Lord Lester?
Lord Lester of Herne Hill
85. I wonder if I could build on something the
Lord Chief Justice said. I am probably the only person here who
has been directly involved in the training as a so-called trainer,
ludicrous as that may seem, rather than the other way round, and
one thing that struck me was because we had used the European
Human Rights Convention as our constitutional instrument there
was a danger of alienating rather than domesticating the subject.
In other words, the training looked so much towards European case
law that it would not weave the subject properly into the fabric
of English common law and statute law. I wonder whether any of
the three senior Judges here agree that it is vital to weave these
points into the fabric of our law rather than treat it as a foreign
add-on to our domestic law in terms of everything but here in
terms of training?
(Lord Woolf of Barnes) I entirely agree with the question.
I think that is vital, but I think that process has already started.
Sir Patrick Cormack
86. May I ask you a question on the implementation
of the Act. It is early days but has it gone as smoothly in the
courts as you expected it to? Have there been any unanticipated
consequences, beneficial or disadvantageous, and have you had
to make any special adjustments to cater for this new Act?
(Lord Woolf of Barnes) There was various talk about
the practical position on the ground and we could provide more
material if this were needed by the Committee. We thought it was
very important that the courts up and down the jurisdiction should
know of the decisions which are made as soon as possible after
they are made. We also thought it was very important that we monitored
the cases which were coming into the courts, in particular the
senior courts, so as to give the guidance which we felt the lower
courts would be looking to the Court of Appeal (Criminal Division)
and Court of Appeal (Civil Division) to give, and that is a special
arrangement which we made. We have been focusing on and identifying
the points as early as we can so as to deal with them expeditiously
but, above all, to avoid two courts dealing with the same subject
unaware that the other was dealing with it and giving possibly
conflicting decisions as a result which would cause confusion.
I think that aspect of the matter is working well but it has involved
a lot of work for those who support the judges in both sides of
the Court of Appeal.
Sir Patrick Cormack: Thank you very much.
Lord Carlisle of Bucklow
87. Can I turn to the effect of the implementation
of the Act on the volume of the work generally of courts and ask
first, Lord Woolf, so far as crime is concerned really most of
the points that may be taken under the Convention on the right
to a fair trial probably can in fact at the moment be taken as
abuse of process in any event under our domestic law. It seems
to me the real difference the implementation of the Act has made
is to make defence counsel considerably more aware and conscious
of the fundamental right to a fair trial and more likely to take
the point. If I am right on that it should not lead to a greatly
increased criminal workload, should it?
(Lord Woolf of Barnes) That is what appears to be
the situation which is happening in practice. Before the Act came
into force the same point would be taken under PACE which reflects
very much the same principles. It is now given a new dimension.
A consequence of that is that counsel are conscious of the fact
that there is a certain amount of judicial learning to be gathered
from Europe and they will cite some of the European authorities,
whereas probably before they would have taken a rather more domestic
88. What has really changed is that some of
my ex-colleagues have become rather more prolix in their addresses
on the matter.
(Lord Woolf of Barnes) We try to keep the right balance.
89. As far as civil is concerned on the other
hand, surely there will be an increased workload as rights of
privacy and rights of that nature are likely in themselves to
bring new actual cases and a greater amount of work.
(Lord Phillips of Worth Matravers) There will to some
extent. I have, in fact, some statistics of the first three months
of operation of the Act and in those three months there have been
only a handful of cases where the only point taken has been a
human rights point. In the other cases where a human rights point
has been taken it has been a supplementary point to other points.
In about 15-20 per cent of cases Human Rights Act points are now
being raised, that is whether one is looking at the applications
for permission to appeal or the substantive appeals where permission
has been given. I think we are giving permission in a slightly
larger proportion of the cases that involve human rights points
than any other ones, but not to a great degree.
90. Do you think it will lead to more individual
actions being started in the court of first instance such as on
the basis of the right to privacy and things of that nature?
(Lord Phillips of Worth Matravers) To some extent
but not a great extent.
91. I apologise to Sir Patrick Cormack because
Lord Woolf replied to his question but I did not give the other
two witnesses a chance to respond when he asked about the process
of implementation in the courts. Did our other two witnesses have
anything to add?
(Lord Phillips of Worth Matravers) I think that Lord
Woolf was speaking for both of us. In the civil division we owe
a lot to Master Roger Venne, who is Head of the Civil Appeals
Office, and who has master-minded the steps we have taken to handle
human rights work. The first thing we did was try to put on a
spurt so we had a bit of spare capacity. In fact, as it turned
out I do not think we have needed it to deal with human rights
but we have managed to reduce our lead times in any event. Our
computer now keeps a record of all human rights cases and once
a week this schedule is publishedand I have a spare copy,
Madam Chairman, if you would like me to leave itwhich tells
of all the cases where a significant human rights point has been
raised and which are pending and also the results of the cases
which have been heard. We currently have 85 cases in which a serious
Human Rights Act point is being taken.
Sir Patrick Cormack
92. You have not been taken by surprise by the
number? You have not felt that you were not adequately prepared
(Lord Phillips of Worth Matravers) No, we have not.
93. I would like to follow the question of statistics,
particularly addressing myself to Lord Phillips, what percentage
of the cases that you have referred to as raising Human Rights
Act points in the civil field actually revolve around rights to
a fair trial and as a supplement to other arguments which are
raised? What percentage are raising other substantive rights under
(Lord Phillips of Worth Matravers) The largest single
category, undoubtedly, are Article 6 points taken in relation
to the right of a fair trial. The growth area seems to be bias,
a lot of points are being taken on bias. All sorts of different
points are taken on the right to a fair trial. There is quite
a body of points being taken in the field of immigration and asylum,
conflicts between the right to control immigration and family
94. If I can ask a question supplemental to
that, Lord Woolf referred to the process of identification, a
sort of fast-track identification, as I understand it, of cases
which raise Human Rights Act points, so that they get to a high
tribunal as soon as possible and avoid a conflicting decision.
Does that apply to the civil field as well as to the criminal
(Lord Phillips of Worth Matravers) Yes, it does. We
look out for cases which we ought to take quickly as a test case.
95. But at the stage when they are identified
as a result of a notice of appeal.
(Lord Phillips of Worth Matravers) Yes.
96. In those early statistics is there any indication
in civil litigation that litigants are being deterred from taking
Convention rights points because of concerns over costs? I know
it is very early, and I suspect it can only be anecdotal, is there
any concern in that area?
(Lord Phillips of Worth Matravers) It is rather difficult
to say from a judicial view point. It seems to me inevitably sensible
people are going to be put off the process of litigation because
of the risk of having to pay costs, you cannot get away from that.
97. If they feel they have a reasonable point
under the Convention
(Lord Phillips of Worth Matravers) The other point
is that you only need one litigant to raise the point. If it is
a point that a lot are suffering under, the fact that 99 decide
it is not worth risking the costs will not matter provided the
hundredth feels strongly enough about it to make the claim.
Lord Lester of Herne Hill
98. Lord Woolf, in his capacity in the Woolf
Report on Access to Justice, I recall, recommended that a judgement
be made about costs in order to promote Access to Justice. One
of the questions we asked the Lord Chancellor last week was whether
it was possible to deal with the deterrent effect that someone
raising an issue of public importance would always take the risk
of having to pay the other side's costs if he lost, even if he
was prepared to bear his own costs, and the question which arose
was whether one should do something which the Evershed Committee
recommended in 1953, which was to have a procedure whereby one
could have a preempted or a protected order as to costs, indicating
that a case raises an issue of public importance and, therefore,
the litigants under judicial order should not have to bear the
costs even if they lost. I am thinking of Article 6 kind of problems.
I wonder whether judges are yet facing the problem, or may be
it has not arisen, on using their discretion on costs in that
sort of way to facilitate Access to Justice? I cannot remember
whether the civil procedure rules deal with this or not.
(Lord Phillips of Worth Matravers) Somebody has to
pay the costs. Making an order in advance of the hearing, before
the judge is seized of the merits of the application and of all
the relevant considerations, that willy nilly one party is going
to have to bear the costs, it seems to me is unlikely to be just.
If you are going to say that there should be some public source
of funding for the meritorious Human Rights Act point then that
is a different matter.
(Lord Woolf of Barnes) There have already been a small
number of cases where this issue has arisen and there has been
no clear guidance. Within judicial review, which is the sort of
arena where human rights points can so easily arise, there have
been situations where the courts have recognised that somebody
has been bringing proceedings partly on their own account, because
they have to show they have an interest, but mainly in the interests,
as they see it, of the public. Because of that factor there have
been cases where, indeed I have done it myself, special orders
for costs have been made. Equally, when the tobacco litigation
was taking place there was an application to court, and it happened
to come before me when I was then Master of the Rolls, when a
decision was sought by the lawyers acting for the claimants because
they were concerned that if the action failed the tobacco companies
might seek to recover costs from the lawyers rather than from
the claimants, who, no doubt, were not people who could be personally
in any position to meet the costs. The courts have dealt with
those cases within the scope of the discretion. The discretion
given to courts is very wide with regard to costs. It does not
seem, although one must wait until the case has come forward,
impossible that the procedures will develop to enable this to
happen. One hopes that public funding will be available for claimants
who have deserving cases. Equally, I, myself, expect the courts
in appropriate circumstances to be prepared to hear argument because
the defendant is a public body. It may be as much in the interests
of the defendant and the claimant for the matter to be clarified.
If that was the situation the ordinary winner and loser approach
may not be appropriate, especially with the development of the
declaratory powers of the court to declare what the law is in
a case where there is an issue of interpretation and proceedings
are not as adversarial as they otherwise may be. I see this as
a situation where there could be developments.
99. I wonder if I can move to judicial review,
traditionally one of the citizen's remedies against an overmighty
state. I address this question to the Lord Chief Justice because
I am aware of his writing on the subject, but it would also be
pretty interesting for any of the other witnesses to give their
view on: whether the Human Rights Act will affect the prevalence
or scope of judicial review or whether the human rights culture
itself will have an effect?
(Lord Woolf of Barnes) I think if you take the view,
as I do, that at the moment the Human Rights Act is bedding down
in our domestic system very well indeed I think part of the credit
will be due to the fact that without the Human Rights Act the
courts were developing a sensitivity to human rights, of course,
increasingly noticeable when the coming into force of the Human
Rights Act was imminent. A lot of the issues, although they may
not have been labelled in exactly the same way, were being considered
by the courts, from the House of Lords downwards. You must have
heard the courts saying from time to time, "We do not need
a European Convention in order to establish this point, common
law does every bit as much, if not sometimes more". I think
that what we will find is that the scope for judicial review will
be broadened by the fact that the European Convention is part
of our domestic law. Some of the issues which come before the
courts on judicial review will involve a change in the judicial
role because there is a need in respect of most of the articles
of the European Convention to balance the different interests,
whereas before the role of the courts was more restricted now
it can be more penetrating.