Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 100 - 119)



Baroness Perry of Southwark

  100. Lord Chief Justice, I have two questions. We understand that you have advocated that judges should adopt a very pragmatic approach to Convention arguments and you have also encouraged advocates to be sparing in their use of such arguments. Could you explain to us the thinking behind your approach here? Could you also comment on whether you think the courts have adopted that approach?
  (Lord Woolf of Barnes) The remarks that you refer to were said in the context of a case which was actually decided before the European Convention became part of our domestic law. What it was saying to people was, "Do not take bad points".

  101. That is unarguable. Can I move on to my second question? We fully understand your desire to discourage hopeless claims; is there a danger that we might lean too far the other way and deprive somebody of the opportunity to air arguments which will have real merit?
  (Lord Woolf of Barnes) I hope not.

  Baroness Perry of Southwark: Thank you.

Lord Carlisle of Bucklow

  102. As somebody who has been Chairman of a tribunal which is regularly judicially reviewed one gets the impression that judicial review was going up very fast before the implementation and was another spin-off effect with greater public awareness and public discussion of rights. It is still growing, is it not, irrespective of the actual implementation of the human rights legislation?
  (Lord Woolf of Barnes) I think that the public have become much more sensitive, quite apart from legislation, of their rights and there is no doubt that the volume of cases of judicial review is expanding all of the time. As a result of that case law developed and the ability to rely on judicial review increased.

Sir Patrick Cormack

  103. I would like to direct my question to Lord Bingham if I could. There is much talk about Article 6 and the right to appear before an independent tribunal and some people assert that this really makes it difficult to see the survival of the dual roles of the Law Lords as judges in the courts of last resort and also members of the legislature. What are your views on that?
  (Lord Bingham of Cornhill) I am afraid I see this as a question that will become litigious at some point and therefore I would not like to give any answer to the question here and now.

  104. I think you have given a very interesting answer, if I may say so. Would any of your colleagues like to comment on that?
  (Lord Phillips of Worth Matravers) No, thank you.

  Chairman: That is short and sweet.

Lord Lester of Herne Hill

  105. Might I ask a less difficult question in terms of the obvious problems of dealing with this. As I understand it, under Lord Bingham a statement was made last autumn clarifying the current position with regards to the Law Lords. I think it would be helpful if in broad terms the Committee could have that explained to them.
  (Lord Bingham of Cornhill) I am afraid that I am in a position to do it in very narrow terms because I have got a copy of the document in front of me. The statement says: "As full members of the House of Lords, Lords of Appeal in Ordinary have a right to participate in the business of the House." In other words, they have not taken any kind of vow to behave as if they are not members of the House. "However,"—the statement continues—"mindful of their judicial role, they consider themselves bound by two general principles when deciding whether to participate in a particular matter or to vote. First, they do not think it appropriate to engage in matters where there is a strong element of party political controversy. Secondly, they bear in mind that they might render themselves ineligible to sit judicially if were they to express an opinion on a matter which might later go to an appeal to the House." The statement says that the Lords of Appeal in Ordinary will continue to be guided by those broad principles and they regard it as impossible to frame rules which will cover every eventuality. I think it is right to say, in fairness to them, that I do not think either Lord Woolf or Lord Phillips were consulted about the terms of that statement but perhaps they were.
  (Lord Phillips of Worth Matravers) I was.

  106. In the evidence the Lord Chancellor gave last week when he was questioned about what I call the "neuralgic" question, which is his role as a Law Lord and as a Minister, I think what he said was of course he had to make his own mind up as a judge but he would take the advice of his colleagues as Law Lords about whether one should or should not sit in a particular case. I think that is what he said. I wonder whether it is possible to explain to the Committee that in practice (as I believe is the practice) Law Lords will not sit if they have taken a very active legislative role on the matter and that will include him as well.
  (Lord Bingham of Cornhill) I think there is no doubt that to some extent the climate has changed in this particular area within the last decade or so. It used to be accepted by their colleagues and, I think, by the public that people were perfectly capable of expressing an opinion in one capacity and acting with complete objectivity and impartiality in another. For a number of reasons that we could discuss there is less ready and less widespread acceptance of that proposition and that inevitably means that those who sit judicially have to take greater care than was once perhaps taken to not only to consider what is always the first question of whether they themselves feel embarrassed in any way but whether it might look wrong. One cannot lay down general rules. One simply has to approach this on a case-by-case basis.

Sir Patrick Cormack

  107. Do you regret that development?
  (Lord Bingham of Cornhill) Yes, I suppose I do inasmuch as it portrays a lack of confidence in the integrity of public men and I would wish confidence in the integrity of public men to be as great a possible—and of course women.

  Sir Patrick Cormack: Of course.

Mr Miller

  108. In your experience is that fear on the part of the public or whoever justified?
  (Lord Bingham of Cornhill) No, I do not think it is justified. I think throughout my judicial career and indeed at the Bar judges have always been astute to disqualify themselves if they perceive any grounds upon which they might be thought to be incapable of bringing an objective judgment to bear.

Sir Patrick Cormack

  109. I think these developments have diminished the quality of public life generally. Do you agree?
  (Lord Bingham of Cornhill) I do not think this is directed just to judges, it is across the board. There is a great tendency for commentators to say, "He would do that wouldn't he?"

  Mr Miller: This of course is a function of instant communication where everything you say is around the world immediately.

Lord Lester of Herne Hill

  110. Could I ask a different kind of question about Law Lords. I realise this is a political question but you have now two final courts, the Judicial Committee of the Privy Council dealing with devolution issues, with or without a human rights dimension, and the Judicial Committee of the House of Lords dealing with human rights and other issues as the final court as well. I hope that this is not an improper question to ask and if so I will certainly be told straight away that it is. I wonder whether the judges at senior level have been consulted as to whether it is desirable to have a single court rather than two apex courts dealing with human rights and other constitutional issues?
  (Lord Bingham of Cornhill) I think it is a political question and I would answer it with a certain measure of reserve. On the factual question you ask, whether the judges have been consulted, the answer is, so far as I know, not. I think one has to bear in mind the whole context here. When Scotland was united with England and Wales in 1707 it was clearly implicit in the Act of Union that there was no criminal appeal from Scotland to London, and of course there was no criminal appeal in England and Wales either. There was originally a doubt as to whether there was even a civil appeal from Edinburgh to London, but it was very quickly established that there was and indeed extensive use of it was made to such an extent that there was very little time to hear English appeals! But what is important is that the Scots criminal system has always been self-contained and has had no English input at all. One of the anomalous, and to me surprising and unexpected, results of devolution is that for the first time one does have judges, Scots prominently among them but nonetheless judges, sitting in London ruling on questions relating to Scots criminal trials. The reason why the Privy Council is doing that is because, as I understand, it was politically unacceptable in Scotland for the Appellate Committee of the House of Lords to be doing that. To say would it not be better to have one court without paying very, very close attention to the sensitivities of the Scots in this matter would be a recipe for disaster in my opinion. I end where I began—that this is a political question and certainly not a human rights question.

  111. Is there not a possibility of a conflict (in theory if not in practice) between a judgment by the Privy Council on a human rights question and a judgment by the Judicial Committee of the House of Lords, with the problem of which one is going to be determinative?
  (Lord Bingham of Cornhill) There clearly is scope for conflict and they will have great fun in Strasbourg.

  112. The other question that the Committee would be grateful for your help on is whether one is satisfied that procedural arrangements are adequately in place to make sure that the courts are helped with full arguments on all types of litigation involving Convention rights. For example, is enough opportunity being taken to appoint an amicus curiae or to allow third party intervention in litigation to ensure that the relevant interests are properly represented and all the relevant arguments are heard? I know it is early days but is that kind of problem being sensitively addressed by judges at every level?
  (Lord Woolf of Barnes) If I can deal with the level below the House of Lords, we have always had the ability to have third party interventions, it has not been used to a great extent because hitherto it has not been found to be necessary. We have always had the right to hear argument from whoever we wish to hear argument. If we want an amicus somebody has to pay for the amicus and the procedure which is laid down is that you ask the attorney general to make an amicus available. I know of no specific case where he has ever declined. I am sure if we were to look at the records we would find a case, but I do not know of such a case. When there is a problem which clearly needs argument we will not hesitate to seek it. In human rights issues often central government is involved in any event. So far as providing argument as to how the legislation can or should work in the new situation you do get quite considerable assistance from counsel instructed by the government department itself. I know of at least one case where the argument for the government or the Crown was to the effect that if the court thought that the legislation, read in its literal manner, would not be compliant then the argument would be it would be preferable to treat it as incompatible rather than try and use the powers within the Act to construe it rather more forcefully so as to comply. One can understand that there are situations where it would be better to relegislate rather than have a single case interpreting the legislation in a way which it could possibly be done to make it compatible. The courts have to apply the Act and the Act provides guidance as to approach. That is what I would expect the courts to do.

  113. Can I ask Lord Bingham, I had the impression that the House of Lords is very generous in allowing third party intervention not only in cases like Pinochet but much more recently NGOs being allowed to intervene, JUSTICE, for example, in the Brown case. I wonder whether Lord Bingham can tell us whether that is right?
  (Lord Bingham of Cornhill) I think the practice of the House of Lords would be to allow an amicus to appear or to ask for one to be appointed if those who were hearing the case would therefore contribute to a just decision of the case. The risk, of course, is that you simply multiply parties, all with the same interest, arguing the same aspect of the matter.

  114. I was thinking of third party interventions by NGOs, like JUSTICE and Liberty, when they are allowed to put in written comments and sometimes brief oral comments as well.
  (Lord Bingham of Cornhill) Yes.

  115. My understanding is that that has been generously interpreted in the recent past.
  (Lord Bingham of Cornhill) Yes. I think that is fair, yes.

Lord Carlisle of Bucklow

  116. Surely the role for an amicus or for third party intervention of any kind in criminal cases must be very limited indeed. Presumably if it is an appeal by the defendant the prosecution are putting the case generally of the Crown, and now that the prosecution have the right to appeal themselves presumably the only issue of when it might arise is if for some reason the defendant did not wish to contest the Crown's appeal, in which case there might be a role for an amicus. Other than that I cannot see how you would get one in easily.
  (Lord Woolf of Barnes) I am not conscious of any applications with regard to criminal cases at the Court of Appeal Criminal Division level. There have been cases at a civil level and the Master of the Rolls could tell you about those. For the very reason that you indicate, I could see cases where there could be a request.

  117. The defendant might not wish, for some reason, to pursue or to take part in the appeal and therefore you might wish to hear argument from the other side.
  (Lord Woolf of Barnes) Or the defendant may feel that information is capable of being provided to the court by some third party which the defendant would not be in a position to provide.

  Lord Carlisle of Bucklow: Yes.


  118. There is a question too of the separate rights of victims, does that arise?
  (Lord Woolf of Barnes) As you know the courts are adopting a broader approach to the position of victims than hitherto. This is an area where there are developments.

Sir Patrick Cormack

  119. Do you think we could invite Lord Phillips to comment on this point?
  (Lord Phillips of Worth Matravers) We do not have a party line in the Divisional Court, it is up to the individual courts to consider an application to intervene by a third party organisation. It happens and applications are acceded to. Liberty recently intervened both in writing and in short oral submissions in a case.

  Chairman: Thank you.

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