 These pages are under constructionNote: Alphanumerics in brackets relate to the
Section/number links in the left column. A link from a number takes you to
information in the page. Linked text takes you to other page for fair comment and evidence
called for on the issues discussed and raised.
Select Committee on Home Affairs Minutes
of Evidence
Examination of Witnesses (Questions 60 - 115)
TUESDAY 2 NOVEMBER 1999
THE RT HON THE LORD IRVINE OF
LAIRG QC, MR DAVID LOCK MP AND SIR HAYDEN
PHILLIPS KCB
60. Where praise is needed or justified I am willing to make it. I am
looking at Annex E of the Judicial Appointments annual report. Incidentally, this is a new
departure, is it not?
(Lord Irvine) Yes, that is something I introduced.
61. That also is a matter for praise. When we look for example at page 74,
Lords of Appeal in Ordinary, there are 12, females nought, no-one from the ethnic
minorities. Heads of Divisions four, no females. Lord Justices of Appeal 35, one female.
(Lord Irvine) Not that I am about to make an earth shattering
announcement but we do now have one Head of Division, the Family Division, Dame Elizabeth
Butler-Sloss and we have one Lord Justice of Appeal who is female.
62. Since this was published.
(Lord Irvine) Yes.
63. High Court judges.
(Lord Irvine) If you take me through it, it is not a vast number, I
agree.
64. I am not criticising you; please do not misunderstand. I am just trying
to establish the facts. High Court judges 97, females seven.
(Lord Irvine) Yes, that is all correct.
65. Circuit judges 551 of which females 31.
(Lord Irvine) The figure I am looking at for 1 October 1999 gives me
eight High Court judges who are women and 39 Circuit judges who are women and 85 women who
are Recorders and 64 who are Assistant Recorders and so on.
66. Recorders 878, female 79, Assistant Recorders 398, female 67 and in all
those cases where ethnic minorities are represented at all, they are in single figures. Am
I not right?
(Lord Irvine) Yes, the figures speak for themselves.[4]
67. Do you think—and you inherited the situation, no-one is putting
the blame on you—that over a four or five-year period of time there will be any
improvement on those figures as far as females and ethnic minorities are concerned?
(Lord Irvine) Let me just make what I think is an absolutely central
point to make when you look at these figures. I want to tell you that I am the opposite of
complacent and I want to see many more ethnic minority judges and women judges at all
levels promoted on their merit and not in any other way. However, there is a central point
to get across in relation to these figures. The figures of people in post today are a
reflection of the composition of the legal profession of 20 years ago and that is a fact
which is always forgotten and it cannot be spelled out too often. If you were to ask
me—and I know you have been careful not to ask me—what the proportion of women
at the Bar and in the solicitors' profession today is and I were to say to you, give or
take a bit, 50:50, and if you were to ask me how many members of the legal profession are
from the ethnic minorities and I were to say to you, off the top of my head, 60 per cent
give or take a bit, then you were to take me to these figures and say, "Is it not
therefore outrageous?", I would say no, that is false reasoning because the relevant
pool is of people of 20 years' experience in the law. If you look at the proportion of
women who were in the law 20 years ago or began in the law 20 years ago and the proportion
of ethnic minority individuals who became members, actually both groups are doing well by
the relevant comparison. For example, I think the figure for women appointed as Queen's
Counsel last year was ten. The highest number ever. The number of ethnic minority
applicants for silk that I appointed last year was four. The highest number ever. I
believe that these individuals are coming on through their merit. What you must do, is you
must make the relevant comparison, which is with the pool of ethnic minority lawyers
available and the pool of women available who are of about 20 years or more standing, not
the composition of the profession today. By that standard, I have appointed a higher
percentage of women and ethnic minority applicants for these positions than the relevant
percentages from these groups with 20 years standing. I think that by the relevant
standard the results that I am seeing, based on merit only, are very, very encouraging and
we should not diminish their achievement.
68. No-one wishes to do that, but I think we are agreed, are we not—if
we are not you will soon say so—that there is a lot of leeway to make up? I entirely
accept what you say that the profession 20, 30 years ago was somewhat different.
(Lord Irvine) Dramatically different.
69. That in no way alters the fact that there is a huge imbalance between
male and females in the highest positions in the judicial system at the moment.
(Lord Irvine) I have to come back to my point. There is not a huge
imbalance by the relevant comparison. There is a huge imbalance by the comparison of the
proportions of the profession today which are from the ethnic minority background and
which are women. There is not a huge imbalance by that relevant comparison.
70. There is a huge imbalance of the situation as today.
(Lord Irvine) It is a false comparison.
71. I accept your explanation that people entering the profession 20, 30
years ago—
(Lord Irvine) Twenty.
72.—are obviously making progress over that period of time but I
remain of the view, and I hope you do, that there is a lot of leeway to be made up and I
do not really see any reason for disagreement. What I want to ask you finally on this
aspect is the position of the Law Society. They have not expressed much confidence in the
Peach inquiry. In fact they decided not to participate.
(Lord Irvine) No, that is not right. What they did was even more
staggering in fact. They did participate, they submitted their evidence, then they
published their evidence and said that was their final position without waiting to hear
anything that Sir Leonard Peach was going to say and they said they were not going to have
anything to do with the existing state of affairs. So they are not going to co-operate in
our consultation system for the benefit of solicitors who apply to be recorders or judges
of all kinds. I have to say I regarded that as quite extraordinary and contrary to the
interests of their constituency.
73. Presumably they take the view that solicitors stand little chance. By
withdrawing from the inquiry conducted by Sir Leonard Peach, they do not seem to feel that
they will stand—
(Lord Irvine) If that is their feeling, if their motivation is that
solicitors never get anywhere through this system and therefore will have nothing to do
with it, the annual report you were good enough to look at shows that of all appointments
made in open competitions in 1998-99 46.4 per cent were solicitors.
74. What do you think would be their reaction to those statistics? The very
fact they are dissatisfied means presumably that you or your department have not been able
to reassure them that they will be making the sort of progress which they would like to
see.
(Lord Irvine) If a body adopts what I regard really as an unreasonable
position and not in the interests of its own members, I do not think that I can really do
anything more than make my own position plain. It is not very helpful that I speculate as
to how they have arrived at this position.
Mr Linton
75. Nobody doubts your determination to open up appointments in the
judicial system. However, I just wanted to draw you out on one point. Is there not a
danger that the system of consultations you describe so well in your annual report will
tend to select those who have similar attributes? You are talking about something like
5,000 comments on a confidential basis, sometimes collected orally at meetings, people
having to mark their colleagues out of five on very subjective issues like courtesy and
humanity. Do you not feel that there is an intrinsic danger in a system like this, so very
different from other public appointment systems, that it will necessarily favour people of
their own ilk?
(Lord Irvine) I am willing to hear and consider self-critically
anything that Sir Leonard Peach says. I regard this as a comprehensive reference system.
References, which are used in all works of life, suffer from the dangers of subjectivity.
The beauty of a very, very wide ranging consultation system over a large number of
different people year after year after year is that you do really get a more comprehensive
picture than any that I can conceive of. It comes from a very competitive environment. The
practice of the law is very competitive. It is conducted in court in public and people's
performance is there really to be assessed. I think that these assessments are made on an
informed basis across a very, very broad cross section of people which should avoid the
risk of discrimination.
76. You compare this with a system of references but applicants normally
nominate their own referees and there is a system for panels to check references and for
the applicant to be made aware of that. This is a system where thousands of people are
asked for confidential comments, sometimes orally, about their colleagues and it just
seems to me to have an implicit danger of creating a situation where people build up
empires or have protege«s rather than an open and accountable system.
(Lord Irvine) Any system can be criticised but all of us who have
considered others to appoint do take references with a bit of a pinch of salt very often.
Let us be absolutely frank, the most important thing about referees is that somebody who
wants to get the job has nominated the referee usually. Let us just be severely realistic.
I have to say the beauty of this system, which we are going to consider fully after Sir
Leonard reports, is that it is so wide ranging and across so many people that the risk of
discrimination or prejudice or pushing a particular candidate by a small number of people
is reduced immeasurably.
Mr Malins
77. On this question of the Law Society's cooperation, I am a solicitor,
secondly, I am a part-time member of the judiciary, thirdly, I hold no brief at all for
the attitude taken by the Law Society on this. I wish they would withdraw their policy of
non-cooperation and I am very pleased that solicitors in the judicial world have made much
progress. I just thought you ought to know that the Law Society do not speak for every
solicitor and that is a comment.
(Lord Irvine) I am delighted to hear it.
Mr Howarth
78. May I preface my remarks by saying I am in danger of
agreeing with the Lord Chancellor and what he said about judicial problems. I am hoping
that is not going to prejudice his position or undermine his position.
(Lord Irvine) Not at all.
79. Our legal system is widely respected throughout the world. I used to
work in the City as an international banker and foreign companies and organisations always
sought to have their contracts governed by the laws of England and that spoke volumes.
(Lord Irvine) I have been speaking volumes about that in China
recently. You are right, we are agreeing.
80. I will give you an opportunity to escape from this consensus if I may. May
I put to you two things which I think might undermine that respect in which our law is
held internationally? The first is if it were seen that in the interests of being
politically correct the composition of the judiciary were manipulated. Can you assure us
that attempts are not being made artificially to promote people, either women or ethnic
minorities, who are not suitably qualified and therefore whose appointment would not
undermine the quality of the service? Secondly, I wonder how you would respond to
suggestions that have been made that we should have a kind of American system of open
examination of judicial appointments. I wonder whether you might risk agreeing with me
that that itself might undermine the might and majesty of our law?
(Lord Irvine) Let me say right away that I do not believe that our
judiciary should be sculpted in any way in accordance with any notion of political
correctness, of social balance, of political balance or of any other kind of balance. It
is highly desirable of course that a judiciary reflects the whole of the society which it
represents but the appointment of judges must be on merit and merit alone. If any
constituency came out of a court complaining that the judge was no use and was told by the
Lord Chancellor that he was very sorry but it was a man, it was a man's day that day or it
was a woman's day that day, you would not get much appreciation of that from your
constituents. It has to be on merit only.
Mr Winnick
81. Nobody disputes that, do they? No-one disputes that.
(Lord Irvine) I was asked the question.
82. Yes, but those of us who want a fair balance have never for one moment
suggested that people should not be appointed on merit. I think that should be placed on
the record.
(Lord Irvine) I certainly was not suggesting that you thought
otherwise. Perhaps you thought that the questioner was but I certainly was not suggesting
that.
Mr Howarth
83. We are in agreement so far, I fear.
(Lord Irvine) As far as the American system of public hearings for
prospective judges at a very high level is concerned, I am opposed to that.
Mr Fabricant
84. One of the points you made early on in relation to the Access to
Justice Act was that you said it would wipe out restrictive practices once and for all.
Can I put it to you that one of the biggest restrictive practices is the right of
audience? As a new member of the Committee I am just interested to know what your view is
about solicitors appearing in the higher courts. I know that they do have some improved
right of access from previous situations but when would you like to see parity between the
ability of both solicitors and barristers to appear in the courts on the New Zealand model
perhaps?
(Lord Irvine) Let me make it absolutely plain that as far as I am
concerned, as many solicitors as want to achieve higher court certificates can achieve
them and there is perfect equality presently of entitlement to gain higher court rights of
audience. What is a little bit surprising is that the figure of solicitors out of about I
suppose 80,000, maybe 85,000 solicitors with practising certificates, the figure is that
only about 700 or 800 out of 85,000 have taken up rights of audience. I am absolutely
clear that suitably qualified and experienced solicitors who pass the criteria of their
own profession are as welcome in the courts as any other qualified lawyer, be he a
barrister or self-employed or whatever. I am totally in favour of the removal of
restrictive practices and the Access to Justice Act has concluded that.
Mrs Dean
85. I should like to ask a couple of questions about the closure of
Magistrates' Courts. As you know, for quite a number of years now there has been a gradual
closure of courts, also amalgamation of benches in some cases, removal of the domestic
courts or children's courts in some areas. In fact the number of courts in operation
reduced by 11 per cent between 1995 and 1998. Do you believe that where Magistrates'
Courts do not meet what MCCs determine to be the requirements of the area they serve, the
only option is closure? Could not such facilities be upgraded or replaced? What is your
vision of the future distribution of Magistrates' Courts?
(Lord Irvine) Let me make one point clear at the outset. Magistrates'
Courts are not Crown property. I am not as such directly responsible. They are owned or
leased by the paying authority on behalf of the Magistrates' Courts Committee. It only
gets to me if there are appeals against closures. That is the first position. Let me tell
you why courts are often closed: because the facilities are sub-standard; because they are
satellite courts, for example just a room in council chambers; because there is no secure
accommodation; because there are not the facilities for witnesses; because there are not
the facilities to protect victims and witnesses from fear at the hands of the criminal
defendants; sometimes because they are just incapable of being made suitable for all the
purposes of a modern court, for example access for the disabled. Of course I am in favour
of renovation and upgrading where that is possible. It is sometimes just not possible and
you have to start again. If you have a very, very small court where the case, as often
happens, runs over, then you may have to wait two or three weeks for the adjourned hearing
to resume, whereas if you are in a decent modern court complex it will resume in a day or
two when everybody's recollections are fresh. There are many, many considerations. I also
think that it is very important for those people on the ground who take these decisions to
bear in mind not merely the benefits in terms of costs from closing a court, but the
oncosts that they may be chucking to other people, for example the Crown Prosecution
Service, the police, the prisons, indeed even legal aid and travelling time for lawyers to
get to courts which are less convenient. There are actually no statutory criteria but you
see from my very hurried response that there cannot be fixed criteria. You just have to
look at all the relevant criteria and if I think, as very, very occasionally I do, that
the closure has been fundamentally wrong, then I will allow an appeal. Generally speaking
these decisions are made properly locally balancing all these considerations and I
certainly think they should be balanced.
86. Thank you for that reply. In my own area the situation has arisen on
several occasions where the proposal for closure has been made by the MCC but actually
been objected to by the paying authority and then has been allowed to go ahead; there has
been a difference of opinion locally. How important a factor is the local accessibility?
Certainly in one instance in my area we are talking about a 25-mile journey using two
buses to be able to get to the court.
(Lord Irvine) I cannot give you a detailed response on a particular
case but obviously local accessibility, availability of travel is a very important
consideration but it has to be set alongside all the other considerations.
87. Magistrates' Courts Committees come within the general policy of
introducing coterminous local boundaries. Are any difficulties being encountered on this
score? Do you expect that the numbers will indeed be reduced to 42 by 2001?
(Lord Irvine) Yes; yes, I do. As at 1 April 1999 they have been reduced
from 96 to 84. From 1 April next year they will fall to 73 and from 1 April 2001 they will
fall to 42. Do not forget of course that we must not confuse the two issues. Merging MCCs
does not mean the amalgamation of courts and benches. They are quite separate issues.
Merging means that the administrative and financial structures for these courts are
brought together in order to produce greater economies. Across the whole of the criminal
justice system we are trying to align every part of it with the 42 police areas, so that
applies to the CPS, it applies to the MCCs and it applies across the justice system. It is
an efficiency drive.
Mr Russell
88. Are you seriously suggesting that the closure of one court every three
weeks is the result of a spontaneous desire from the grassroots to have their Magistrates'
Courts shut and it is not being centrally driven?
(Lord Irvine) I think that these decisions are taken locally and are
taken properly. Of course every local area, every MCC has to consider very carefully how
it can most efficiently provide a Magistrates' Court service. You are the MP for
Colchester, I think.
89. Yes; we had this conversation last year, did we not?
(Lord Irvine) Yes, I was just remembering. I think that the Colchester
courts gained when other local courts closed in June 1998.
90. You totally missed the point last year and you have still missed the
point.
(Lord Irvine) I have missed the point again. All right.
91. The situation is that you are centralising on Colchester court cases
from the whole of north Essex, but I was told I must not be parochial so I shall leave it
at the county. The fact is that courts are still being closed at the rate of one every
three weeks. Is not the reality of this that it is cash driven? In the case of the whole
of Essex, there has been a cut of £1 million in the last three years and a budget of £7
million. Of course Magistrates' Courts Committees are going to make decisions to close
courts if you are not giving them the money to run them in the first place.
(Lord Irvine) There was a closure at Braintree and the work went to
Witham. Clacton went to Colchester so Colchester was the gainer there.
92. It is not the gainer.
(Lord Irvine) But it is about efficiency, is it not?
93. The efficiency of the Essex constabulary. In the view of the Chief
Constable there has been a loss to the policing because police officers ... I shall leave
the point. The fact is that this is being centrally driven because the funding is not
there for Magistrates' Courts. Therefore, you must agree, financial cuts are being made
which lead to a closure of one court every three weeks.
(Lord Irvine) I do not agree.
Mr Russell: The facts are there.
Mr Winnick
94. Court Listings. You replied to me on 16 February this year in a Written
Answer to a Parliamentary Question regarding removal of a judge; the judge sadly has died.
You did state that the way in which the judge was removed in a particular case, at the
instigation of the prosecution authorities, was unfortunate. Sparkes. The way in
which that was done presumably should not have been done in that fashion and you did say,
did you not, that the question of a judge's possible bias should be dealt with in open
court. Is that so?
(Lord Irvine) You have recounted accurately these facts, yes.
95. Have there been other such instances?
(Lord Irvine) I believe that this was a very exceptional case. I really
have to put on the record, however, that the remit of the Home Affairs Committee does
exclude from it consideration of individual cases. I do want to say something about this
case though because I want to be helpful. It caused me the most anxious care and concern.
I investigated it with enormous thoroughness personally and not through my officials, but
with assistance from them. I looked at every relevant piece of paper myself and called for
more paper and statements from individuals. The judge concerned tragically died before my
investigations could be concluded. I do not really want to be drawn into saying any things
which could in any way be taken as any criticism of this judge because there was no
criticism whatsoever in this case and he was an absolutely first class judge. What I do
want to say is that if ever there is any attempt or complaint against a judge on the basis
that he ought not to sit, either because of an allegation of bias or because of an
allegation of appearance of bias, then the path of justice is the public way and such an
application to remove a judge should be done in open court or at the very least in front
of a judge in his chambers when both parties are represented. I think that these standards
are applied uniformly throughout the court system, but I have not concealed either from
you or from Chris Mullin, that I was concerned about what happened in this particular
case.
96. You said that this Committee excludes individual cases. Broadly that is
so, but that does not alter the fact that if we believe it is necessary to pursue a
particular matter arising from a complaint, it is up to the Committee. We are our own
masters fortunately in how we go about our business, subject only to the Chamber of the
House of Commons.
(Lord Irvine) No, to be absolutely accurate you are well entitled to
ask me any questions about policy or administration of justice generally for which I am
responsible and I am trying in relation to this question to be really absolutely as
helpful as I can.
97. I am not suggesting otherwise.
(Lord Irvine) No, I know. If, however, I were to go into details for
example of what the complaint against the judge was and why it was alleged that it would
not be right for him to conduct the trial, I would have in public to go into allegations
which have never been sustained or proved and never been properly considered in my view
because the judge died. All I am really doing in mentioning this is to ask you to spare me
from questions which would involve me going into that area. I am being as frank as I can
to you. Wherever you try to have a judge withdraw from a case, then the path of justice is
the public way.
98. The judge in question was apparently a person of the highest integrity.
(Lord Irvine) There is no doubt whatsoever.
99. You have made that clear.
(Lord Irvine) No doubt about that whatsoever; he was a first class
judge in every respect.
Examination of Witnesses (Questions 100 - 115)
TUESDAY 2 NOVEMBER 1999
THE RT HON THE LORD IRVINE OF
LAIRG QC, MR DAVID LOCK MP AND SIR HAYDEN
PHILLIPS KCB
100. Perhaps this case has served one purpose namely the statement you made
previously and reiterated very strongly today that whenever there is a question of any
allegation against a judge or whether he should be removed or anything like that it should
be done in open court. To that extent this particular controversy has served some public
purpose, has it not?
(Lord Irvine) I agree with that.
Mr Linton
101. One or two other small matters. Assuming for the moment that the
Asylum Bill receives Royal Assent, how soon do you expect the parts to come into force
which will deal with immigration appeals? How soon do you expect to be able to meet the
target that appeals through adjudicators will be dealt with within four months?
(Lord Irvine) I would be a very, very brave man if I answered that. We
have employed 63 new part-timers at adjudicator level and we have advertised for 50 more.
I want to appoint probably at least 15 and maybe more, 20, full-time adjudicators. On the
whole, the truth now is that there have been enormous improvements at adjudicator level
and I just told you the things I am doing to enhance these improvements. There is a huge
backlog of appeals to the immigration appellate authority. I have appointed an experienced
and excellent High Court judge, Mr Justice Collins, to be president of the tribunal to see
whether his great skills and leadership can produce a better tribunal. A deputy president
will be appointed by next February. More full-time and part-time appointments are being
made at that level. New procedural rules are being brought in, judicial management has
been strengthened by appointing the president, we have done separate things about
regulating the quality of immigration advisers. One of the problems is the unscrupulous
immigration adviser. We are tackling it on every front but it is a very, very difficult
state of affairs and the level of asylum applications is very, very high.
102. The entire structure of the Immigration and Asylum Bill, including the
benefits system and everything, is hinged on the assumption that not only the Home Office
but your own department can deliver an average of two months and four months for dealing
with new cases.
(Lord Irvine) I am not being gloomy. I am trying to be as realistic
with you as I can. Asylum appeals are predicted to increase; there is nothing I or my
department can do. The asylum case applications are made to the Home Office not to my
department. They are made to the Immigration and Nationality Department (IND). They were
29,600 in 1996 and are expected to reach 85,000 this year. These are huge figures and that
will lead obviously to a dramatic increase in turn in the number of appeals. The number of
appeals has gone from 23,200 to 40,000 and I cannot promise you that that figure will not
get worse.
103. But the Immigration and Asylum Bill is predicated on the assumption,
people will be living on vouchers and £15 a week on the assumption that these targets can
be met. Are you telling the Committee that you are not sure that these targets can be met?
(Lord Irvine) No, I am not saying that but I am just wanting you to
know the scale of the task. I hope that the targets can be met.
Chairman
104. Is it unfair to say that as you set targets for the Law Society,
targets should be considered for the tribunal and dates given them by which they do this,
that and the other? I understand what you are saying about volume.
(Lord Irvine) The answer of course is that I am in favour of targets
generally, as you know, but it is one thing to impose targets on the Law Society to put
its own house in order in relation to complaints against solicitors. It is another thing
to say that you can impose upon human beings called adjudicators and those who hear
appeals in the immigration appellate authority targets of throughput which they have to
deliver regardless of the increase in volume.
105. I have to say to you that I asked the question because we were very
critical of the Criminal Cases Review Commission and their great backlog and there are
other good reasons, different reasons, in this case. We need to do our best to ensure that
the systems put in place are going to deliver what is wanted. If it is a resources
argument then we can go on and have that discussion.
(Sir Hayden Phillips) The targets set, as in the case of the Law
Society, have to take account both of volume, which is the point the Lord Chancellor was
making, and of resources. As you are dealing with a moving target, so you have to think
very carefully about that. The points that the Lord Chancellor was making are to indicate
that we are not just sitting there waiting for this to come towards us. We are actually
trying to put the people and systems in place to deal with in a joined-up way with the
Home Office.
(Lord Irvine) We also know terribly well how we are subject to external
events. Take the tragedy of Kosovo. No system can cater for completely unforeseeable
external tragic events.
Mr Linton
106. Tampere called for coordination and cooperation between legal systems
within the EU. To what extent do you see the cooperation which exists at the moment
between Scottish and English legal systems as a model for this cooperation?
(Lord Irvine) Do not forget that whereas Scotland and England have
separate legal systems, there is a common appeal to the House of Lords in civil matters
and so on. There are closer affinities despite the independence of the two systems than
there are perhaps across European boundaries. I really am more severely practical about
Tampere than contemplating some kind of harmonisation of legal systems. I think that we
should aim at important achievements which are achievable, like simplifying the current
arrangements for the reciprocal enforcement of judgements across borders. I think we
should work for minimum enforcement standards across Europe. I think we should look for
proper interpretation facilities and so on. I view that kind of cooperation at a severely
practical level.
107. I want to ask you to look a bit into the crystal ball about the
relationship of the House of Lords and the judiciary and indeed your own position. Should
the link between the House of Lords and the judiciary be broken and indeed should you
continue to be somebody serving as a judge? Is that an important part of your job?
(Lord Irvine) First of all, whatever emerges from the House of Lords
reform I do not myself see any reason whatsoever—I do not know what the Wakeham
Commission is going to recommend but I do not see any reason whatsoever—why the Law
Lords should not remain members of a reformed House of Lords. It is very, very necessary
of course that they abstain from participation in any debate in which they express a
concluded view on an issue which will come up to them for professional judicial
determination. They make an enormous contribution in the House of Lords, not merely in the
general debates on the administration of justice, but also in their contribution to
specialist select committees. As far as the Lord Chancellor is concerned, it will not
surprise you to know that I do think that the Lord Chancellor occupies an important
constitutional role. In this country we have never gone in for a perfect separation of the
powers, otherwise no Cabinet Minister would be a member of either House of Parliament,
whereas in our Parliament a Cabinet Minister must be a member of one or other House of
Parliament. I do think that as the executive becomes much, much more important in
Parliament and the judiciary commensurately weaker, there is huge value in having a Lord
Chancellor who can mediate effectively and communicate the views of the Government to the
judges and the judges to the Government. I believe it works.
108. The analogy, Lord Chancellor, is surely that Mr Hoon does not have to
be a general to be Minister of Defence, Mr Brown does not have to be a farmer to be
Minister of Agriculture, why do you have to be a judge to be Lord Chancellor?
(Lord Irvine) The short answer is because of the very special nature of
the legal system and the importance of the independence of the judiciary as an article of
our constitution, if you like. The independence of the judiciary in an age in which the
executive progressively becomes more and more important in Parliament is successfully
upheld by the Lord Chancellor.
Mr Malins
109. We all appreciate the problem on immigration appeals. Can you comment
on this? The part-time adjudicators have virtually no work at all, thus suggesting that
not enough cases are actually being prepared and got to court and not enough appeals are
being made. There is a problem at that end of the road with the cases actually coming
before the part-time and indeed full-time adjudicators.
(Lord Irvine) I dare say there can be delay anywhere in the system. If
that is something of which you have detailed knowledge on the ground, please write me.
Mr Howarth
110. How much have you been involved in the negotiations on Tampere?
Although the Home Secretary is the lead Government Minister, presumably your department
has been very much involved, has it not?
(Lord Irvine) Yes. The Foreign Secretary is the lead Government
Minister on Tampere. The Home Secretary did also attend. To have two justice ministers
rather than one would have been trespassing on the patience of our European friends. Of
course my department obviously had an involvement, yes.
(Sir Hayden Phillips) In the area of civil jurisdiction about which the
Lord Chancellor is speaking, we can fairly claim to have taken the lead in producing the
results the Lord Chancellor has mentioned.
111. So your department has actually been quite centrally involved in this
issue. What I should like to put to you is this. Although you have said you have ruled out
harmonisation of the legal system—
(Lord Irvine) I have not ruled out harmonisation. If we are talking
about a common legal system across the whole of the European Union, by which you mean that
France gets rid of its laws and Germany gets rid of its laws and England and Wales get rid
of their laws and every other country in Europe get rid of their laws, all I was really
saying when I addressed your colleague's question was that I like to be severely
practical.
112. Whether you rule it out or not there is an important consideration
because it was quite clear from the seminar which was held in April 1997 at San Sebastian
that there are people within the European Community and within the European Commission who
are actively working towards a European criminal code. It is called corpus juris
technically. There is no interest in the media in the huge effects this could have on the
United Kingdom. May I put it to you that the conclusions which came out of Tampere were
designed to soothe people into thinking that this was all to do with tackling drug
traffickers, people moving asylum seekers around Europe? However, really what was
happening was that the first bricks were being put in place for a European criminal code
with a European prosecutor which has its embryo form in the article in the Tampere
conclusions which talks about cooperation between European prosecuting authorities in the
form of EuroJus, which will be composed of national prosecutors and magistrates or police
officers of equivalent competence detached from each Member State according to its legal
system. Is this an embryo or not?
(Lord Irvine) I have to say that I regard all this, as I think has been
implicit in my answers, as something of a pipe dream. Corpus juris was dealt with
very fully by the Home Secretary when he gave his evidence. It is a document prepared for
the Commission about ways of dealing more effectively with fraud against European
Community budget. I was not at Tampere but as I understand it Tampere moved away from
ideas about harmonising legal systems and focussed, as I was focussing in my answers to
your colleague, on practical measures such as mutual recognition of judgments. I have made
my own position as clear as I can.
113. I shall not pursue that. May I just come to the point about the Law
Commission which the Chairman mentioned I wished to raise? You will have seen in the press
this morning that there are suggestions that the Law Commission has reported that
homosexuals should have the same right to compensation over the death of a partner as a
husband or wife. I wonder whether you have a view on this. Obviously you have to receive
these reports from the Law Commission. May I put it to you that this is only the latest in
a series of measures which is being produced either from respected organisations like the
Law Commission or indeed from Dame Butler-Schloss who is President of the Family Division,
who suggested that homosexual couples should be able to adopt children? Does this not all
lead us in one inevitable direction, that marriage in its traditional sense is being
seriously and persistently undermined?
(Lord Irvine) I have to say that I have not even read the newspaper
report you are talking about. Obviously I read everything that comes out of the Law
Commission very carefully. What you have to realise is that the Law Commission researchers
make reports and Government decides what to do with these reports and this is not a
subject on which I propose to be drawn.
Chairman
114. May I just take you back to civil court fees? We have had
representations both from the Law Society and from NACAB, leave aside the fee for the
issue of the claim, that the £80 fee when you have to decide which of the three tracks
you are going to go on is too high, that it ought somehow to be more related to the size
of the claim because it does put great burdens on those on very low incomes. How do you
react to that?
(Lord Irvine) I am giving a lot of thought at the moment to a complaint
which the Civil Justice Council has brought to me, which senior judges have brought to me
and which a lot of people whose opinions we of course respect have brought to me. Just to
take the worst example against myself to show you that I am very aware of the problem, if
you wanted to pursue a claim of £100, you would have to pay a £20 issue fee and an £80
allocation fee, so you would have to put £100 at risk in order to purchase the chance of
recovering £100. All I want to say is that I have taken all these criticisms carefully on
board. I am considering the proper position we should adopt in relation to the allocation
fee, which is proportionately very high in claims up to £1,000. I am giving urgent
attention to that.
115. That would be very welcome. May I just, for the avoidance of any
doubt, say that perhaps when I asked you the questions about marriage support funding I
should have made clear, which I want to do now, that I am related by marriage to the Chief
Executive of one of the marriage support agencies? Lord Chancellor, Sir Hayden, Mr Lock,
thank you very much indeed for the forthright and energetic way in which you have answered
our questions. We shall no doubt be seeing you again.
(Lord Irvine) It has been a pleasure to be here. Thank you very much.
Footnotes
1 Note by witness: The Quality Mark will be awarded
by the Legal Services Commission. The Commission will also have the power to accredit
others to award the Quality Mark. Back
2 Note by witness: In six rounds of funding, the
National Lotteries Charities Board has provided £33 million for services with at least an
element of advice work. The London Boroughs' grants are distributed to approximately 650
voluntary organisations, around half of which have some involvement in providing advice
services. Back
3 Note by witness: I was correct to say that appeals
are heard by a panel of persons within the Legal Aid Board, rather than by an outside
body. However, the panel does include an external representative. The panel comprises a
non-executive member of the Legal Aid Board and a senior member of the Board's personnel.
Where the appeal is from a profit-making organisation, such as a solicitors's firm, a
nominee of the Law Society also sits on the panel. Where the appeal is from a
not-for-profit organisation, the Advice Service Alliance nominates a representative. Back
4 See Annex. Back
©
Parliamentary copyright 1999
Prepared 8 December 1999
   
   
|
