................................................................................ ON THE RECORD LORD CHIEF JUSTICE TAYLOR INTERVIEW RECORDED FROM TRANSMISSION BBC-1 DATE: 26.2.95 ................................................................................ HUMPHRYS: Sally Hardcastle reporting on what seems to some to be a constitutional revolution in the making. So what is the view of the most senior judge in Britain - Peter Taylor, the Lord Chief Justice? His predecessors were never interviewed, but he agreed to talk to us this week and I began by asking him whether it was healthy that unelected judges were now overturning so many decisions by ministers. LORD CHIEF JUSTICE TAYLOR: Well the basic rule is that everyone is subject to the law. Lord Denning used to love using a phrase from way back - Fuller said once: 'Be you never so high the law is above you' and that applies to ministers. So even though they may have to go at the end of that particular parliament why should the public have to put up with abuses of power - if there are any - or people acting outside their powers whilst they are in office and it's for the judges to see that...not that executive decisions are overruled by judges on their merits, but to see that the minister who has purported to exercise a power actually had that power to exercise and hasn't exceeded it. That is in the public interest. HUMPHRYS: Though it may be seen that you are usurping their power. TAYLOR: I don't think so. The courts are very careful to make it quite clear that we exercise in judicial review - and that's why it's called judicial review - a reviewing part not an appeal. We don't have an appeal by judicial review on the merits against a decision of a minister or any other administrative authority. Where it's within the power of the minister to do what he has done we would not interfere, unless it's utterly irrational, which is a different matter. But so far as exercising his power is concerned, if he's acting within the powers that have been given to him by parliament the court won't interfere. A good example of that was the Maastricht challenge by Rees-Mogg where the courts said it's not for us to get into the political field - the government have power to do this and they have done it. HUMPHRYS: But you heard the case and that was something you probably wouldn't have done a while ago. TAYLOR: Well because if a challenge is made to the legality of what's being done then the court must entertain that. I myself heard a case some years ago where the Anglo-Irish Agreement was said to be outside the powers and we heard it but we said no it was within the powers of the government and it's not for the courts to interfere. HUMPHRYS: But if it had got to the stage...I know, judges and lots of other people don't like dealing in hypotheticals, but if you had in the case of Maastricht, for instance, overthrown that treaty...for the courts to overthrow a treaty arrived at by the government of the day, by parliament - approved by parliament perhaps - would be a substantial check on the power of parliament, would it not? TAYLOR: Well, theoretically it would but one would hope that in something as important as that, government would have been very careful to take proper legal advice and see that it wasn't exceeding its powers. HUMPHRYS: But of course governments don't always do that, do they? TAYLOR: Well they didn't in the case of the Pergau Dam. HUMPHRYS: What about the fact that any number of pressure groups can now bring this proceeding into action - judicial reviews - whether it's Pergau Dam we are talking about or whatever else. TAYLOR: Well I think you have rather overstated it there. Not 'any' pressure group. Certainly, the question of what standing someone who applies to the court for judicial review needs to have has been broadened. It's no longer as Mr Justice Sedley said just on the film we have just had, simply somebody who has a financial interest or a personal interest who is the only person who can apply. Any body who has a legitimate interest - not just a busybody as the court has said - but somebody who has got some legitimate interest - for example the Equal Opportunities Commission in a case which affects them - can bring a case. But there are still limits and not every pressure group would be regarded as being eligible to bring the claim. It must be a matter to be dealt with on the facts of the individual case and very often the question may be whether there is anybody else who could challenge this. If there is nobody else that could challenge it and it is a matter of general public importance the court might lean towards hearing the case. HUMPHRYS: Is it healthy that politicians, or at least their civil servants should constantly be looking over their shoulder these days? I mean that booklet that was published, we saw it in the film there: "Judge over your shoulder" TAYLOR: Well that's one way of looking at it, but the other, the converse way is this. If people are in power, whether they are in power by being ministers or they have certain powers by reason of their role in the civil service, to make orders and to make decisions, then they've got to do what they have to in accordance with the law and in accordance with proper procedures and proper consultation and to an extent they should be making sure that they are doing those things and if they do those things they won't need to look over their shoulder. HUMPHRYS: To what extent has our involvement with Europe changed the whole picture? TAYLOR: Well I'd like to get clear that the situation as far as Europe's concerned because a good deal of the film that preceded this interview rather suggested that here were the judges, trying to up end the decisions of parliament, which parliament would have preferred not to have up ended because of Europe. We've got to go back to base which is this, that the European Communities Act, passed by parliament in 1972, said in terms that the Treaty of Rome, and laws which emerged in accordance with the Treaty were to be given direct application as part of the law of this country. HUMPHRYS: So it was quite clear from the beginning? TAYLOR: Quite clear from the beginning and so all the judges are doing when they say well this is contrary to European Law, is not defying parliament, it's obeying parliament. It's doing what parliament in 1972 said, it may be that many parliamentarians and many others now might look back with some regret perhaps that we did do that - I don't know, some people may, but that's the law and it was made by parliament and all the judges are doing is carrying it out. HUMPHRYS: It may be that they didn't quite realise what they were doing when they did it. TAYLOR: Well it may be that that's so but that goes as far as community law is concerned, that is the economic community as it started and now the European Union but as far as Europe is concerned in relation to human rights that's a different situation. That's governed by the European Convention on Human Rights, of which we were signatories in 1950 - indeed, we helped draft it - and by signing up to that treaty we accepted the European Convention as enforceable in this country. What we haven't done for forty years is to make it part of our law, part of our domestic law, as we have done with the European Community law. The effect of that is, and this is what I think a lot of people resent - certainly the judges I think mostly think it would be better if we did it - is that people go off to Europe and it's the European court that makes the decisions and then when they have done that - if they have decided against us or against our government - because of the treaty our government has to amend the law. And that happens years afterwards, it's rather humiliating, we get egg on our faces and those of us like the Master of the Rolls and myself, Lord Wolf and many others, who say we should go the whole hog and if we've signed up to the treaty well we're in it and we ought to incorporate it in our law so that it's our judges that apply, not the European judges, and we apply it straight away instead of after seven years; and we don't have this embarrassment of having a European court telling our parliament what it's got to do. HUMPHRYS: Would that give - to put it terribly crudely - the judges more power or less, or would it not affect the power of the judges? TAYLOR: I think it would enable the judges to do that which we are by treaty bound to do and it would be our judges doing it rather than our judges at the moment having to apply the UK law, which is not always in accordance with the European law, knowing full well that the probability is if the litigant has got the stamina to go to Europe and to succeed there the decision that he's made according to our domestic law will have to be in retrospect changed. And I don't think that's good for anybody. HUMPHRYS: But the response of the politicians to that is to say, no we don't need this. TAYLOR: Well I am afraid there's a tendency for politicians to put things off for as long as possible, I mean we may have to come to heel as to what the European Convention requires us to do but we don't want to do it any sooner than we have to. I have said this before, but I mean when we signed up to that treaty in 1950 and without incorporating it into our law, what we'd really done was say: God make us good but not yet. HUMPHRYS: It could be argued, couldn't it, that the continued use, the much greater use of judicial review means that we are in a sense writing or creating our own Bill of Rights. TAYLOR: Well there are those who resist the idea of a Bill of Rights on the basis that common law is good enough and it can cope but the fact of the matter is that we have been overturned a number of times, many times, I am afraid by the European court as being in breach of that convention which we have signed up to, so the common law hasn't been able to fill all the Bills that we needed to in regard to human rights. And therefore I think it's not sufficient to say that we are building it up in that way. HUMPHRYS: What's the danger that with the greater use of judicial review, we are creating a real albatross for ourselves? In a sense I suppose you could argue that judicial review has been a victim of its own success and sooner or later we might get to the stage where there is challenge upon challenge upon challenge and the whole process is going to seize up. Is there not that risk? TAYLOR: I don't think so. We have an application for leave process which everybody who suddenly says, I want to go for judicial review, doesn't automatically get his case on in front of the court. He has to apply for leave and there has to be a sieving process whereby a judge will in the first instance look and see whether it's an arguable case. And the Law Commission have recommended that that should apply really can be done largely on paper. And I think to that extent one will cut out a great many of the applications which are without merit. But I think we must get everything in perspective. This interview is very largely concerned judicial review in relation to central government. The vast amount of judicial review doesn't affect decisions of central government. The vast amount of it is protecting the little man, the village hampton (phon), if you like, who has been the subject of some excessive power by some official somewhere or other - or by some body somewhere or other - or hasn't been consulted when he should have been. And I would have thought that the public really ought to know more about what the judges are doing to protect the little man against authority that's being abused and that, I think, is a very, very valuable development in our law. I could give you numerous instances of ways in which the little man is protected. HUMPHRYS: But if we had a Bill of Rights then we'd know precisely what our rights were wouldn't we? TAYLOR: Yes, I mean, don't misunderstand me, the absence of the Bill of Rights doesn't mean that none of those things which are enshrined in the European Convention have any place in our law, it's just that they don't have the same general statement that they do in the Convention and therefore there are some instances where legislation doesn't allow us perhaps to do what the Convention would allow us to do. But I think for the most part we don't do badly for human rights in this country, but there are places where the lack of the Convention as part of our law does prevent our achieving what we should do. HUMPHRYS: The reason that we have been so concerned about judicial review coming into conflict with the government is because many people might say what's happening here is that there is a subtle shift in the balance of power, that politicians are elected, judges are not accountable? TAYLOR: Judges are accountable, I think they are probably more accountable than most people in the sense... HUMPHRYS: .....sack you... TAYLOR: I'll come to that in a moment if I may, but everything the judge does he does in open court, it's subject to appeal, I mean, how many civil servants' decisions are subject to appeal, I think none and they do them behind closed doors at desks, but the judge is working in public and what he does can be seen, it can be overturned on appeal and the media, newspapers and the television are not slow in observing what the judge has done and expressing views about whether he has got it right or he hasn't got it right, so there is a great deal of accountability in that sense. Coming back and I'm not going to shirk it to the question of sacking or not, it is highly desirable, I would have thought, that if you are going to have a judiciary which is going to be entrusted with the power of seeing that everybody else is obeying the law that it should not have to be looking over its shoulder - the judge shouldn't be looking over his shoulder to say, 'if I overturn this minister am I going to be out on my neck very soon'. Now that's the reason why we have and have had for centuries tenure of office by the judges. The Lord Chancellor can sack a circuit judge but a High Court judge and it's the High Court judges who are likely to be dealing with the heavier cases, with the cases that concern government and so on, can only be sacked by an address to both Houses of Parliament, it can be done, Parliament can do it, but it does give him a security of tenure which enables him to act impartially without worrying about whether he is going to lose his job or be carpeted or whatever else. HUMPHRYS: All right, well let's forget about sacking, let's look at the way you're appointed instead, the way judges are appointed. A Labour Government would change the system, there would be a Judicial Commission with representatives from various professions, the whole process would be much wider open, now surely that is healthy? TAYLOR: Well in theory it is, it sounds very democratic to say we don't want things going on behind the scenes and we would like to have a representative body to elect our..to appoint our judges but the fact is that the reservoir of candidates for the bench is well known, they all work in public, barristers, solicitors, who are eligible to be judges have all had many many years of practice in open court, they are known as either able or not able, straight or not straight, temperate or intemperate, all of these things have been tested over something like twenty years and can be seen by all those people I mentioned before and by their opponents and by the judges who have had them appear before them and I very much doubt whether however nice it might be for appearances, an appointments commission, drawn from people who won't have had that experience of seeing the candidates, is going to be able to make any more sensible decision than is made already. HUMPHRYS: Maybe not, but it's this question of appearances that matters a lot isn't it, and you may know much better than we about their ability and their experience, but we will bring other facets to bear in this wouldn't we and there's no reason after a while it shouldn't be open merely for the sake of it being open, stop it being this cosy club? TAYLOR: Well you say cosy club, the reason why it's behind..you don't hear what the recommendations are which lead somebody being appointed is because of the importance that is attached to any soundings which are made and they are made very widely..being absolutely frank. You don't want people saying well I think so and so drinks too much or whatever else he may do, if that's going to be made public but he'll say it much more readily, he'll say whatever he thinks is relevant much more readily if it's not made public. HUMPHRYS: They must be like Caesar's wife mustn't they judges, they really must be like Caesar's wife, be seen to be above suspicion. TAYLOR: Oh yes, well, after all, after all those years of acting as barristers or solicitors and being in heavy cases and being exposed to public criticism in the press and knowledge about them in the press, they have run the gaunlet of all that but I think that it is important to remember that those countries where we do..where there are appointments commissions are not always conspicuously successful, I mean would we want to have a kind of commission that..like the Senate Committees in the States where.. HUMPHRYS: Well it's open. TAYLOR: It's open, but it's ghastly I mean the experiences of Borek(phon) or of Clarence Thomas in the States I would have thought discredited that form of selection of judges absolutely. HUMPHRYS: They might have got the jobs if it hadn't been for those hearings... TAYLOR: They might have been very good too if there hadn't been politicians on those bodies..... HUMPHRYS: They might have been entirely unsuitable. TAYLOR: Well they might have been but I think...I mean another..in other jurisdictions such as in the States I mean political factors do come in which don't here. I am quite satisfied that there is no political element comes into the appointment of judges here, it may have done many many years ago. HUMPHRYS: But isn't there an establishment element and isn't this the concern really that you judges are seen to represent the establishment, quintessential establishment figures and that cannot be healthy for the democratic process, particularly when you appear now with greater judicial review and all the rest of it to be exercised in much more control. TAYLOR: Well I don't know whether you realise what you've just said, here we are these great establishment figures and this programme is largely about how we are attacking the establishment, now you can't have it both ways frankly, the judges are there to apply the law whether it's pro-establishment or anti-establishment, it doesn't concern them and the fact that we have been to Oxbridge or public school and so on is a factor of education, afterall who wouldn't want to get to Oxbridge and who wouldn't Oxbridge want to have if they were able people. What matters is what's happened afterwards and the judge who has been to Oxbridge, take myself, who spends twenty five years interviewing and appearing for criminals and people accused of crime, or prosecuting them, sees more of what goes on and is more in touch, I should have thought than any other source of judicial candidates that you could find. I mean, tell me where else you would draw judges from who'd have better experience. HUMPHRYS: Well we don't know do we because it's not possible. TAYLOR: There we are. But there is, of course, an element in what you say of a need to satisfy the public that it's not all being done on an old boy nett and the Lord Chancellor has, certainly with my concurrence and I think my fellow judges, been moving towards bringing in lay representation in the interviewing process for getting onto the ladder and going to the bench and I'm very much in favour of that, in fact I raised it in the Dimbleby Lecture a couple of years ago, I said it would be a good idea if only, as you say, for appearances, not because the lay member would be able to add any special knowledge, you wouldn't know the candidates but at any rate he would see that it wasn't somebody saying, well old so and so, you know, nice chap, anything like that as being the reason why somebody was appointed. It would be a good idea for the public to have the confidence of seeing a lay member involved and I think that's a very good idea. But I think generally speaking you wouldn't want a sort of public election of somebody to operate on your brain, you would want the man to be appointed by people who knew something about his abilities and I think the same goes for judges. HUMPHRYS: Lord Chief Justice, thank you very much indeed. ...oooOooo...