Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 80 - 99)

MONDAY 26 MARCH 2001

RT HON LORD WOOLF, RT HON LORD PHILLIPS AND RT HON LORD BINGHAM

  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 equipment.

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 still—if you are going to be practising as a criminal judge—to 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 the time.

Baroness Prashar

  84. When will the Judicial Studies Board determine that the time has come not to take it as an integral part of the training?
  (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 approach.

  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.

Chairman

  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 published—and I have a spare copy, Madam Chairman, if you would like me to leave it—which 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 for it?
  (Lord Phillips of Worth Matravers) No, we have not.

Lord Goldsmith

  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 the Act?
  (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 rights.

  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 field?
  (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.

Mr Miller

  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.

Baroness Whitaker

  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.


 
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