TUESDAY 9 DECEMBER 2003

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

  Chairman: Lord Cullen, Sir Robert, welcome. We are particularly pleased to have the heads of judiciary in Scotland and Northern Ireland respectively. Lord Cullen, of course, we have met before when we were carrying out our inquiry into the judicial appointments in Scotland before the Government announced its plans for England and Wales. Could we just go through our normal procedure of declaring interests around the table?

  Ross Cranston: I am a barrister and recorder.

  Keith Vaz: I am a non-practising barrister but my wife holds a judicial appointment.

  Peter Bottomley: I probably ought to say that my wife is a headhunter.

  Chairman: Thank you. What we thought we might do is start by looking at the Supreme Court issue and initially looking at it in general terms before coming on to those aspects which are particular to Scotland and Northern Ireland or, indeed, in a few cases to both of them.

  Q335 Mr Soley: Could I address my comments to you, Lord Cullen, first because I understand from your evidence that you are not wildly enthusiastic about these changes.

  Lord Cullen of Whitekirk: That is right.

  Q336 Mr Soley: I formed the impression that you are saying it is basically only because of the image that we are thinking of changing it rather than the reality; the reality is, in your view, largely satisfactory. How does that leave you in relation to Article 6 of the European Convention, and also what is your view about the general problem that we do not change at a pace we say, and that change is sometimes forced upon you?

  Lord Cullen of Whitekirk: I am not aware of any challenge, nor do I think it is likely there will be a challenge. There seems to be no question of the law lords being otherwise than completely independent of the executive, and so far as the legislature is concerned, if the well-informed observer knows about the distance that the law lords observe between them and the legislative aspects of the House of Lords, I do not think in those circumstances there is a suspicion of any lack of independence. That is the way I see it, but perhaps they should speak for themselves.

  Q337 Mr Soley: But you do suggest that the reason for doing it is perception?

  Lord Cullen of Whitekirk: Yes, that is correct. It seems to me on practical grounds to be not a necessary step that it is being advocated, but because it is better from the point of view of perception. No doubt if the slate was completely clean and we had a fresh start we would not invent what we have, but we have what we have and it works.

  Q338 Mr Soley: But if the perception is the cause, if you like, and if the problem is that events are moving and we would not design it if we were starting again, is there not a case for changing at your own pace rather than waiting for change to be pushed upon you?

  Lord Cullen of Whitekirk: I do not dispute there is a case—of course there is a case—but there is also a case for not doing it. Perception is important, you are quite right, because independence does not mean simply actual independence but also perception of independence, that is perfectly right, but I do not think on balance the case is made.

  Q339 Mr Soley: And do you think there are any advantages to the system that is being proposed? If I was to put to you "What are the advantages of doing it?", what would you say? Would you say there are none?

  Lord Cullen of Whitekirk: Apart from the perception point we have just discussed I would say not a great deal. It all depends what kind of Supreme Court we are talking about. We seem to be talking about one which is simply taking over lock, stock and barrel the existing functions of the Appellate Committee and perhaps also the Judicial Committee of the Privy Council, so what is happening is to happen somewhere else in a different atmosphere and I do not quite see how that takes you any further. There may be opportunities possibly for making pronouncements which would be of use to the whole of the United Kingdom, but one has to remember that the existing civil jurisdiction as far as Scotland is concerned is that the Appellate Committee functions as a Scottish court with a wall, as it were, between it and its functioning as an English court.

  Chairman: We are going to come to that in a bit more detail in a moment.