TUESDAY 9 DECEMBER 2003

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

  Q360 Dr Whitehead: Do you think there is an additional impetus given to perhaps the argument that there might be three Scottish members because of the transferring, or possible transferring, of devolved matters to the Supreme Court?

  Lord Cullen of Whitekirk: If the devolution issues are to be taken by the Supreme Court that, of course, underlines the need for adequate Scottish representation on the bench and desirably, if you are sitting in a panel of five, there should be at least three Scotsmen there. That can be done, of course, by bringing in ad hoc representatives from Scotland, and we have a clear example of what is possible at the moment where Privy Counsellors can be drafted in to the Judicial Committee when required, and there could be various ways that would reproduce that by saying that members of the Inner House, who are ten in number, could be drawn upon when required. But the point I simply make is about the way in which the Supreme Court is to operate—that our tendency was to favour the view that it should, so far as possible, operate on its permanent membership.

  Q361 Dr Whitehead: Sir Robert, the convention is currently that there is one law lord from Northern Ireland. Do you think, bearing in mind the perhaps fluctuating basis of Northern Ireland cases that might come before the Supreme Court, there is a case for an ad hoc arrangement as far as Northern Ireland members are concerned?

  Sir Robert Carswell: My colleagues welcomed the suggestion by the Judges Council of England and Wales that there should be one member regularly. I would just qualify that in one way because it is conceivable that there may be times when we could not spare somebody of the quality required. We are a small jurisdiction; you need to have a Lord Chief Justice who can cope with the quality of work, and if you have a law lord as well then there are two people. Most times that is quite possible. There may be times where, for example, the person likely to be appointed would be the serving Lord Chief Justice and there would not be somebody ready to come through, and there might have to be a gap of two or three years until that righted itself. If it were left in such a way that it did not become a matter of jurisdiction, then I think we could certainly staff a place in the House of Lords and, as I say, our judiciary would work on that. There was an expedient at one time when the late Lord Lowrie was Lord Chief Justice; for the last eight or nine years of his tenure of office he was a peer, he retained the office of Lord Chief Justice of Northern Ireland but sat from time to time in the Lords and, I understand, made quite a useful contribution, and then he became a permanent law lord later. So that is one possible way of dealing with it if there are shortages of manpower.

  Q362 Dr Whitehead: Lord Cullen, you mentioned the issue of, as it were, Scottish judges almost permanently being away from home. Maybe the Supreme Court should sit in devolved territories from time to time in order to allow them perhaps to get home for breakfast?

  Lord Cullen of Whitekirk: That sounds a very attractive proposition but whether it is attractive financially is another matter. One perhaps could find a building in which they could sit but there may be staffing questions, and questions to do with library and other resources. I do not wish to offer a view on this point because I think it is quite tricky. It sounds in principle a very good idea and it does bring justice, as it were, back to the territory from which the case comes, but there may be practical problems about it and I quite appreciate that.

  Q363 Dr Whitehead: Do you think a Supreme Court should have full corporate independence in terms of managing its own money, pay, rations and affairs entirely independently?

  Lord Cullen of Whitekirk: That is the view we have expressed knowing that it is proposed that the Department of Constitutional Affairs should be responsible for funding it. It would be desirable, it would be preferable, if there were some means by which it would have direct control over its own budget.

  Q364 Dr Whitehead: Sir Robert?

  Sir Robert Carswell: I would support that view. I think that if we go on to a model of a Supreme Court it ought to have an independent budget under its own control like the High Court of Australia or the Federal Courts of the United States, and I have discussed with Federal judges in the United States the way that they go and deal with their budget each year with Congress. It is quite a difficult and important process but it gives them an independence which I think is a desirable thing. It gives somebody a lot of extra work and, speaking for myself, I would not particularly enjoy having to do it at home but there would be advantages. I think on balance it is better than having their money rationed out to them by the DCA.

  Chairman: We have reported, as Lord Cullen remembered because he kindly gave informal evidence to us, on the Scottish appointments system and the initial experience of it. The Northern Ireland system is in statute form but not yet up and running but we have one or two questions about judicial appointments which I will ask Mr Bottomley to pursue.

  Q365 Peter Bottomley: Firstly, more generally rather than just in the particular areas you have experience of, is it your experience that an individual often makes, or can make, braver appointments than a committee?

  Lord Cullen of Whitekirk: I find it very difficult to answer that question not having sat on a Committee dealing with these matters. It could be, but then I know that it can be argued that it should not be left to some individual exercising power without being answerable for it and without giving explanations, if necessary.

  Sir Robert Carswell: We are going to have to manage a Judicial Appointments Commission within somewhere about twelve to eighteen months, when it is likely to be started. Time will tell just how it operates. I think the temper of the times is such that that will come all over (ie throughout the UK). I was interested to see the suggestion of a small appointing commission for a Supreme Court. I have expressed a view very strongly to Government that appellate judges should not be appointed by a general appointing commission. A general appointing commission has not got the knowledge of their work, and could not have. The only people who really have knowledge of a judge's work and ability to carry out appellate work are his peers. They know that you cannot hide it from them and their views expressed to a small appointing committee which should be composed of people who understand the work and the qualities required should provide, I think, the best basis for getting the right people in post.

  Q366 Peter Bottomley: There is a recommending commission in Scotland and one coming in Northern Ireland. How much discretion do you think ministers should have?

  Sir Robert Carswell: May I come in first there because ours is set in a way which is likely to be quite interesting. The Judicial Appointments Commission puts forward a name to the First and Deputy First Minister. The ministers can turf that back. No doubt they would do so with explanations. If the Commission then said, "I am sorry but we are not prepared to change our view" and puts the same name back again, then the ministers are obliged to accept that under our legislation. We have not worked it yet and we do not know how it will work, but that is the model adopted for Northern Ireland.

  Q367 Peter Bottomley: Brave!

  Lord Cullen of Whitekirk: What happens in Scotland, as I understand it, is the board produces—if it is for the High Court—probably more than one name arranged in a certain order. Certainly we have not had any problems with ministerial interference and I would be very surprised if there was, because what is the point of having a board like this if you do not accept its recommendations? I am consulted, of course, in the process and I would indicate if I had any serious reservations, but I would not seek to second-guess the board if they took a certain view that somebody was preferable over somebody else unless there was something quite fundamental which I felt had not been taken into account, and I would hope that ministers would behave in exactly the same way.

  Q368 Peter Bottomley: So, in effect, you are saying you and ministers and others should be able to tolerate different orders of preference but you ought to be able to say, "Somebody is not suitable for this job", or that somebody is so dramatically more suitable it would be wrong.

  Lord Cullen of Whitekirk: I find it very difficult to envisage situations in which ministers would turn down recommendation. Very difficult.

  Q369 Peter Bottomley: Does it matter that the Lord Chief Justice will chair the Commission in Northern Ireland and there is a lay chair in Scotland?

  Sir Robert Carswell: I would prefer to see a judicial chairman of any of these appointing bodies but we have not worked it yet and I do not know how it will go in practice. Lord Cullen will know from experience how it has worked in Scotland. I would not attempt to say whether it is better or worse.

  Lord Cullen of Whitekirk: I did not design what we have. I am not saying that I am dissatisfied with it but it works and I have no cause whatsoever to be unhappy about the fact that we have very large lay representation and a lay Chairman. That is as matters work out, and a lot has to do with the high calibre of the persons involved.

  Q370 Chairman: We did not find amongst the witnesses who gave evidence to us any great concern such as had been expressed beforehand. Indeed, if anything, the concerns seem to have been allayed.

  Lord Cullen of Whitekirk: I must say at a distance I was concerned at the amount of lay involvement but as matters have turned out, and it may be as I say due to the calibre of those involved and their integrity, there is not a difficulty, and they seem to work extremely well with the legal side which is part of the whole.

  Q371 Ross Cranston: I wanted to get Lord Cullen's view on appointments to the appellate courts like the Inner House. Sir Robert said he would not want that to be done by Committee, I think, because it is only the judges who can appreciate the qualities of persons who should be appointed to the appeal body. At one time the purist view was that judges should never expect promotion because that would somehow influence their decisions, but given that we now work a system whereby judges are promoted into appellate bodies, I wanted to get your view on how appointments to that should be made.

  Lord Cullen of Whitekirk: In Scotland I and the Lord Justice Clerk recommend to ministers those who should be promoted from the Outer House to the Inner House and in doing so, of course, we supply thumbnail sketches of the individuals and our considered view as to who is the best and why. That, again, works: we have not had any difficulty with ministers in that respect: and I would see that as something of the model, the ideal, for promotions to the Supreme Court because these are promoted posts from senior members of the judiciary. There will be relatively few of these promotions that occur from time to time, and I think those who are in the best position to advise are their fellows, and the senior members of the judiciary. So I agree entirely.

  Q372 Ross Cranston: Of course the Bar might have people as well with an informed view.

  Lord Cullen of Whitekirk: Yes, but does it really matter?

  Sir Robert Carswell: I hope it would not diverge from that of the judge!

  Chairman: Lord Cullen, Sir Robert, I think we can release you from the unfamiliar position of the people being asked the questions, and thank you very warmly for all the help you have given us. We think that our next witnesses are not yet here, but we do have the Judges" Council witnesses present and we hope they might be able to come to the table at this point.