On Monday 11th April 05, as a result of my MSP request for a public inquiry, I received a number of approaches to divulge my knowledge concerning Lord Cullen. May I first again state that I believe him to be an intelligent upstanding man who I feel shares the same fault as Neville Chamberlain who pandered to the Nazi's. Lord Cullen has not ceased to be a Faculty of Advocates man - an institution which in my opinion passed its sell by date some sixty years ago.
I believe that when the true circumstances surrounding Dunblane - and the homosexuality amongst the judiciary 96 finally become public knowledge - Lord Cullen will be blamed for his colleagues' sins. I understand from a recent poll no ex-child of Dunblane wished the discovery embargo to continue.
It has been reported to me that Lord Cullen hates my guts - as with Dunblane - he seeks like a mother hen to protect his brood (e.g. Lady Smith). I am advised that he has openly stated he wishes me booted out of his courts - so much for democracy and impartial justice.
Elsewhere on this website I have spoken about Lockerbie. I am ashamed to state that Lord Cullen is privy to the real happening but chooses to put so called public or political interest ahead of the truth - not a good reflection upon his judicial oath.
Does Lord Cullen judge well? - I think not - he allows his personal persuasions to muddle his thinking - not a good scene for Scotland.
Picture of Lord CullenFamously, Lord Acton, a nineteenth-century liberal, observed that ‘power tends to corrupt, and absolute power corrupts absolutely’. What is generally remembered is the second half of that phrase, especially as the twentieth century had so many cases of the horror of absolute power. But the first half is, if anything, more important. And the point it contains, that the holders of power will, sometimes consciously, sometimes unconsciously, exploit it for their own ends, lies behind the liberal’s suspicion not only of government – even in democracies – but also of big business, trade unions, pressure groups and all others who accumulate power. Man is not perfectible, but neither is government or our judiciary.
A central lesson is ‘that light can shine both ways’ appears to be a hard one for Lord Cullen. In my opinion Lord Cullen has the natural human tendency to cover up mistakes. This I believe will lead to catastrophe both personal and to those he seeks to protect. Secrecy fosters ignorance and ignorance guarantees folly.
Lord Cullen is Scotland’s senior judge. He is a man of firm belief; I believe he thinks he acts in the best interest of Scottish society. I query this belief for the following reasons.
I think Lord Cullen is:
A. Excessively protective of the judiciary, and the legal status quo. I make reference to this in my essays: Lady Smith: The Demise of Homo Sapiens: My overview on the Lord Advocates Vexatious Petition and What is Scotland’s Rule of Law.
B. Unduly influenced by and needs to protect his former clerk Mr Iain Smith. I make reference to this in my essays: Lady Smith: and My overview on the Lord Advocates Vexatious Petition.
C. Misguided in placing a hundred year ban on the release of the Dunblane enquiry documents. I make reference to this in the articles: The Art of Spying, Examples: The Demise of Homo Sapiens and Dunblane
D. Wrong to ignore the evidence available to the Lord Advocate in respect of the Lockerbie verdict. I make reference to this in my essay The Art of Spying,
Examples. Below follow a series of articles which illustrate Lord Cullen’s outreach.
The first article is taken from the Scottish Court web site.
The Rt. Hon. The Lord Cullen of Whitekirk
Lord Cullen was appointed Lord President in November 2001. He was Lord Justice Clerk and President of the Second Division of the Inner House from 1997 to 2001. (1) He was appointed a Judge in 1986 and has been a Privy Counsellor since 1997. He was made a life peer on 24 June 2003
He is a graduate of the Universities of St Andrews (MA) and Edinburgh (LLB) and was admitted to the Faculty of Advocates (2) in 1960. From 1970 to 1973 he was Standing Junior Counsel (3) to HM Customs and Excise. He was appointed Queen's Counsel in 1973 and served as an Advocate Depute (4) from 1978 to 1981.
Lord Cullen was a Chairman of Medical Appeal Tribunals from 1977 until his appointment as a Judge. From 1988 to 1990 he conducted the Public Inquiry into the Piper Alpha disaster and in 1996 he chaired the Public Inquiry into the shootings at Dunblane Primary School. In October 1999 he was appointed to chair the Ladbroke Grove Rail Inquiry.
He is a former member of the Royal Commission on Ancient and Historical Monuments of Scotland. He has been awarded honorary degrees of LLD from the Universities of Aberdeen and St Andrews, and DUniv from Heriot-Watt University.
(1) The Inner House acts mainly as a court of appeal in civil matters. It is divided into two divisions, each consisting of four judges. Each division usually sits with three judges.
(2) The Scottish Bar.
(3) Standing Juniors are appointed by the Lord Advocate to advise and represent government departments.
(4) Counsel for the prosecution in criminal cases.
The second article is taken from Burkes Peerage.
CULLEN, THE RT HON LORD CULLEN, (William) Douglas
(William) Douglas CULLEN,
PC 1997; a Senator of the College of Justice in Scotland from 1986 and Ld Justice-Clerk and President of the Second Division of the Court of Session since 1997; educated Dundee High School; St Andrew's U (MA); Edinburgh U (LLB); admitted to Faculty of Advocates 1960; standing junior counsel to HM Customs and Excise 1970-73; QC (Scotland) 1973; Advocate depute 1978-81; chairman: Medical Appeal Tbnl 1977-86; Court of Inquiry into the Piper Alpha disaster 1988-90; Review of Business of the Outer House of the Court of Session 1995; Tbnl of Inquiry into the shootings at Dunblane Primary School 1996; Ladbroke Grove Rail Enquiry 1999-01; cncl, Cockburn Assoc (Edinburgh Civic Tst) 1984-86; memb: Scottish Valuation Advsry Cncl 1980-86; Roy Commn on Ancient and Historical Monuments of Scotland 1987-97; govr, St Margaret's Sch, Edinburgh 1994-; memb, Court of Napier U 1996-; President STERO 2000-; Hon FREng 1995; Hon LLD: Aberdeen 1992; St Andrews 1997; Dundee, Edinburgh and Glasgow Caledonian 2000; Hon DUniv Heriot Watt 1995; FRSE 1993; Publications: The Faculty Digest Supplement 1951-60, 1965; booklets on buildings in Edinburgh; b18 Nov 1935, son of Sheriff Kenneth Douglas Cullen (d 1956) and Gladys Margaret nee Douglas-Wilson (d 1992); m 1961 Rosamond Mary, dau of William Henry Nassau Downer, OBE, of N Ireland and has issue, 1. Christopher; 2. Adrian; (1) Sophia; and (2) Felicity; Address: The Court of Session, Parliament House, Parliament Square, Edinburgh EH1 1RQ; Club: New (Edinburgh).
Record Type(s): Members of the professions and the arts
The third article is taken from BBC News online.
High praise for Lord Hutton
Lord Hutton's handling of the inquiry into the death of Dr David Kelly provided a positive image of a profession often decried, one of the UK's most senior judges has said.
Lord Cullen, who chaired the inquiries into the Dunblane shootings, the Piper Alpha disaster and the Ladbroke Grove rail crash, said the retiring law lord's inquiry "reflected great credit" on the legal world.
"So frequently one hears that judges are elderly and out of touch, but when something important comes along, where some inquiry is necessary, it is to the judges that the executive turns," he said.
Lord Cullen, Scotland's most senior judge, was giving his insights on the experience of heading an inquiry to BBC News Online.
He will not be drawn, though, on whether he thinks those to whom he delivered his reports really listened.
"When I have finished my work and handed in my report and it's published my duties are at an end," he says.
"I have to go back to my normal work. It's rather like the ancient Roman Cincinnatus; when he finished his work as being a person in high authority, he simply went back to the plough."
Cincinnatus, legend has it, had been appointed dictator in order to defend the Romans from the Aequi.
He heard the news of his appointment while working on his farm, took up the challenge and defeated the Aequi, but then gave up his new title after 16 days and returned to his fields.
It is with this example in mind that Lord Cullen has retreated back to what he calls "his normal life" after his roles in the spotlight as chairman of a major inquiry.
Others, of course, have their views on the impact of his work. Mark Wheeler of the Health and Safety Executive (HSE) said Lord Cullen's report on the Piper Alpha disaster was hugely influential. More than 160 people died in an explosion on the oil platform in 1988.
Mr Wheeler said regulations for the offshore industry were overhauled in line with the Cullen recommendations - and the shake-up has been considered a significant success.
The fourth article is an uncorrected transcript of oral evidence before the CONSTITUTIONAL AFFAIRS COMMITTEE on Tuesday 9 December 2003.
UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 48-iii
House of COMMONS
MINUTES OF EVIDENCE
CONSTITUTIONAL AFFAIRS COMMITTEE
AND A SUPREME COURT (COURT OF FINAL APPEAL)
Tuesday 9 December 2003
RT HON LORD CULLEN OF WHITEKIRK
and RT HON SIR ROBERT CARSWELL
HH JUDGE MICHAEL BRODRICK,
HH JUDGE SHAUN LYONS,
JUDGE JEREMY COCHRANE
and JUDGE MICHAEL WALKER
MR PETER HERBERT,
MR OBA NSUGBE QC
and MR GELAGA KING
Evidence heard in Public Questions 335 - 437
USE OF THE TRANSCRIPT
This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.
Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.
Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.
Taken before the Constitutional Affairs Committee
on Tuesday 9 December 2003
Mr A J Beith, in the Chair
Mrs Ann Cryer
Mr Jim Cunningham
Mr Hilton Dawson
Mr Clive Soley
Dr Alan Whitehead
Examination of Witnesses
Witnesses: RT HON LORD CULLEN OF WHITEKIRK, Lord Justice General of Scotland and Lord President of the Court of Session, and RT HON SIR ROBERT CARSWELL, Lord Chief Justice of Northern Ireland, examined.
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.
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.
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.
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, 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.
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.
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.
Mr Soley: Thank you for flagging that up. Sir Robert, I am not quite clear where you stand on this. Are you broadly in favour or against?
Sir Robert Carswell: I cannot speak for my colleagues because it is not a topic we discussed as it was not part of the consultation paper, and I suspect that their views might be divided. My own view I think tends towards that of Lord Cullen; it is a matter of perception. There is no doubt, I think, that the quality of the work of the Lords has been highly regarded for many, many years and their independence and integrity is certainly unchallenged. It is a question of perception and the possibility of a challenge under Article 6, though frankly I think it would be a brave person who would undertake it!
Mr Soley: So you are both confident that there would not be any challenge to that at all, but again it goes back to perception, does it not, because we do get as politicians questions from particularly the emerging Eastern European countries about why we have a rather muddled approach at times, on separation of powers. I know that is really the Lord Chancellor, but there is an element of overlap, is there not?
Sir Robert Carswell: Well, the whole of our constitution is a little that way. I am inclined to Lord Cullen's view that if it is functioning satisfactorily you might make more trouble from changing it just because of perception. If it were not functioning satisfactorily I would have no hesitation in supporting a change to have a court that was put on the right basis, but I have some difficulty in seeing that the case for changing just because of that is made out. I might be less positive than Lord Cullen and certainly less positive than Lord Nicholls has reported in council, but I would hesitate myself, if I may put it that way.
Mr Soley: Do you think people in the street would have a perception of your function now, or would it be better if it was a Supreme Court, given that that term is perhaps better understood by people?
Sir Robert Carswell: In the taverns of Tipperary the talk does be of little else!
Mr Soley: I would have to say not in Acton! Nevertheless there is a perception of justice and of judicial structure, and "Supreme Court" has a precise meaning in people's minds, even if it is not so precise in actual terms. They tend to understand that.
Sir Robert Carswell: That I think is as far as the benefit is likely to go - tidiness and people's idea of their understanding. Advantages in practical terms are likely to be minimal and there may be problems not appreciated such as Lord Cullen has dealt with in his response.
Lord Cullen of Whitekirk: You say everybody knows what a Supreme Court is but if you look at yesterday's article by Lord Rees-Mogg in The Times he immediately starts thinking about the American model. If you say "Supreme Court" to a man in the street he may say, "Oh, yes, just like America". Now, that is not what is proposed, as I understand it, so it is not as simple as all that.
Mr Soley: Finally, you have played a distinguished role in a number of public inquiries. Do you think members of the Supreme Court could do that job, or do you think that would have to revert to someone else?
Lord Cullen of Whitekirk: It depends whether they were allowed to do so by the President of the Supreme Court. It has become a regular practice for judges at various levels to be asked to do these inquiries. I do not see any reason in principle why not, no. None at all.
Mr Soley: Although it must be said in the 19th century Parliament was very good at doing its own inquiries.
Lord Cullen of Whitekirk: It was only because of difficulties over that very thing that inquiries by judges and others began to become more common. I think it was the Marconi episode in the 1920s which gave rise to the Tribunals of Inquiry Act. Because of the difficulties then it was necessary to take the matter out of the political hotbed which tended to surround parliamentary inquiries at that time.
Peter Bottomley: Many of us were astounded that the Government could come up with proposals to reorganise our court of final appeals without consulting the outgoing Lord Chancellor, the incoming Lord Chancellor, the present members of the Judicial Committee of the Lords, and I think we would do better to discuss this in terms of a court of final appeal and leave the title to be chosen afterwards for exactly the Rees-Mogg reasons.Clive Soley was talking about perceptions. What would be the minimal changes that might meet the perception point?
Lord Cullen of Whitekirk: I am not sure what you mean by "minimal changes".
Peter Bottomley: Largely that the Lord Chancellor should not be able to sit as a law lord. The minimal change is the Lord Chancellor saying "I will not sit as a law lord" rather than throwing the whole system in the air. People argue that having the law lords meeting in the House of Lords is somehow the executive interfering, forgetting of course that Parliament is not the executive and that any arrangements are likely to be more expensive. Could they be cheaper than the present arrangements?
Lord Cullen of Whitekirk: I cannot say because I do not sit as a Lord of Appeal but my impression is that it would be cheaper to leave things as they are than to create something freestanding outside, and there also is the advantage at the moment, as I understand it, that the Appellate Committee is funded through the House of Lords whereas if it is to be exported to some other place it would then be funded by the Department of Constitutional Affairs, hence you get a closer association or greater association with the executive which did not previously exist. Now that itself raises a problem of independence.
Peter Bottomley: And without commenting on the personal qualities or merits of the present serving Lord Chancellor, would either of you take the view that you would prefer to have the judiciary so to speak led by a middle-ranking minister who might want preferment, or would you prefer the present system we have had of having someone who is so grand that they do not expect to go on to another job after being Lord Chancellor?
Lord Cullen of Whitekirk: I will leave Sir Robert to deal with that question because the Lord Chancellor has no sway in Scotland.
Sir Robert Carswell: That is known in rugby terms as a hospital pass! I certainly have had experience of working with three Lord Chancellors --
Chairman: Who all happen to be Scots?
Sir Robert Carswell: Yes, and it was wholly favourable. I found that they did support the judiciary extremely well and that they had the standing - I leave out the present one because he is in a slightly different position but Lords Irvine and Mackay had the standing - to be able to put their case, if there was a case to be made, very effectively. To have a person in the position of the Lord Chancellor with the independence and the standing rather than, as Mr Bottomley said, a politician who may be looking for other posts in due course - I could see that the latter would give less support and independence to the judicial point of view because judicial independence is so crucial, not because it is terribly important that they be left alone to do their own thing but because independence is a necessary condition of impartiality.
Ross Cranston: I want to come back to this public inquiries point because there is a purist view, which I do not share, that judges should not conduct public inquiries and I guess the difference with a parliamentary inquiry is we might do policy but judges can do factual inquiries that we cannot do, but I think the argument is first a practical argument - that judges simply do not have time if they are on the Supreme Court - but also there is a constitutional argument and I think it is the view taken, say, by the Victorians in the common law world and possibly shared that it is just wrong for judges to become involved outside judicial functions. As I say, I do not share that but it is an argument that if you take this purist Article 6 view of the world - which I think is totally wrong but if you take that view - it might well be said it is wrong for judges to participate in public inquiries.
Lord Cullen of Whitekirk: It is certainly the case that in some other countries it would be unthinkable for a judge to take a public inquiry but there never seems to be a problem here. What has happened over the decades is governments have used judicial independence and judicial talent in order to cope with matters that could not be resolved in some other way.
Ross Cranston: I think the argument might sometimes be that politicians are trying to avoid issues or kick them into the long grass or whatever, and are exploiting the judiciary.
Lord Cullen of Whitekirk: It is an out-tray way of dealing with matters but it is important also to bear in mind that you do not have inquiries unless there is some cause for public concern, and thus it is that judges who are otherwise liable to be treated as elderly and out of date suddenly become popular for this sort of purpose.
Mr Soley: Young and in date!
Chairman: Turning, Lord Cullen, to the Scottish aspects of this, are the Government's proposals compatible with the Act of Union, Article 19 and the claim of right and, if not, what would have to be done to them to make them compatible?
Lord Cullen of Whitekirk: I venture this matter in my response really in order to make the point that this aspect ought to be considered by the Government. Before the Act of Union there is the Claim of Right, which was a Scottish provision at the time when the monarchy was returning to Scotland in 1689 and there was then a declaration by the Scottish Parliament as to the right of subjects to protest for remede of law to the King and Parliament and that is the ancestor, so far as Scotland is concerned, of the hearing of civil appeals from the Court of Session to the House of Lords. The Act of Union was silent on the question of appeal from the Court of Session or, indeed, the High Court of Justiciary, but it was later, much later, interpreted in such a way as to indicate that the Court of Session and its decisions should be subject to review whereas the High Court, the criminal court, would sit its decisions to be regarded as final and conclusive, so what you have, firstly, is an interpretation of the Act of Union. The second point is that, until now, it has been recognised that there are some situations, not easy to define, where certain elements in our constitution may be unalterable - that is a possible view. It arises from time to time, most recently in the case involving Lord Gray's Motion where certain members of the Committee for Privileges reserved their view on that matter. So however strange it may seem there is an argument that Parliament might not be able to alter or undo certain elements of a constitutional nature. That is a sketch of the argument: whether it is good or not I do not propose to advance, but simply say it is there to be considered.
Chairman: Are you proposing any way in which the Government's proposals might be modified to avoid collision with that argument?
Lord Cullen of Whitekirk: I am inclined to think that it may very well be that so far as civil appeals are concerned there is not a problem, but it is simply something that ought to be looked at. Therefore my answer to that is probably that no alteration is, in fact, required.
Chairman: Do you agree that legislative competence so far as any changes to leave to appeal and things of that kind are concerned does not lie with Westminster under the devolution settlement but with the Scottish Parliament?
Lord Cullen of Whitekirk: That is quite a difficult matter. If you look at the Scotland Act you will find that what is reserved is the continued existence of the Court of Session and the High Court of Justiciary. The way that the Scotland Act is constructed certain matters are specifically reserved: the rest is not, and therefore it appears on the face of it that matters other than the continued existence of these courts is a matter for the Scottish Parliament. Nobody is entirely clear as to that being the case but that seems to be the position, in which case there seems to be a role here for the Scottish Parliament. Now I would hope that the matter was not, so to speak, nodded through in Scotland but given serious consideration, but that is the position, as I understand it.
Chairman: Lord Hope expressed the view that the Scottish Parliament would need time to deal with this matter before it proceeded at Westminster?
Lord Cullen of Whitekirk: I would agree with that and the consultation paper, whereas it makes clear what the executive's attitude is and we have seen the executive's response since then, so far as I know as yet there has not been a considered discussion in the Scottish Parliament.
Chairman: There is a phrase which I think you may have challenged already which the Government use in respect of constitutional issues where they say that the establishment of the new court "accordingly gives us the opportunity to restore a single apex to the United Kingdom's judicial system where all the constitutional issues can be considered". That is in the consultation paper. Is it your view that, leaving aside the devolution issues, there ever was or should be a single apex which combines the judicial systems of England and Scotland?
Lord Cullen of Whitekirk: I do not think that is correct. The position until now is that the Appellate Committee functions sometimes as an English court and sometimes as a Scottish court, and I say that because what is binding in England is not binding in Scotland. You have two completely separate jurisdictions so that whatever decision the House of Lords reaches in regard to a civil matter it does not bind in Scotland, and vice versa, so you really have two apices rather than one apex and, if the position is that that is to be taken over by the Supreme Court, it will have those two high points, whereas the paper tends to talk as if this is the opportunity for the United Kingdom court. Well, I say that is obscuring the point: that you have two separate jurisdictions each with its own head happening to be administered under one device, namely the Appellate Committee. That is what we have: it is a result of the separate growth of two legal systems, and it is preserved, of course, by the Act of Union.
Chairman: Do you think that the Scotsman who holds the position of Lord Chancellor in England that is driving this reform has now perhaps become more familiar with this point?
Lord Cullen of Whitekirk: I certainly have had the opportunity of making it to him and I have also pointed out that there is nothing in the consultation paper that would prevent this Supreme Court in an English case determining what Scots law was or vice versa, and I think for the protection of Scots law that needs to be in any legislation for a Supreme Court, as well as more general provisions safeguarding the separate existence and entity of Scots law.
Ross Cranston: Just quickly, if one started with a blank sheet one could look, say, at jurisdictions like Canada, where the Supreme Court operates and still preserves a quite distinct judicial system in Quebec, quite different in terms of the civil law background and in terms of the substance of the law. Starting with a blank sheet, therefore, do you think you would take a different view?
Lord Cullen of Whitekirk: I think it would not be impossible for a Supreme Court here to preserve that clear distinction, and if one was setting up something now and had not got the benefit of decades and hundreds of years' operation of the House of Lords and the Appellate Committee, yes, it could be done but all I am saying is that the safeguards are not spelled out and I think the safeguards are essential. The present consultation paper seems never to come to terms with any of that, which is rather worrying.
Dr Whitehead: Could we perhaps move to who would like to be on the new Supreme Court? Do you have any views about the convention of the numbers of judges from Scotland who might be appointed to the Supreme Court? Do you believe that the convention should simply continue, or do you believe there should be rather more places available?
Lord Cullen of Whitekirk: The proposition is that the number of twelve should be carried over from the Appellate Committee. One of the points that we did consider was whether and to what extent the new Supreme Court should rely on ad hoc members brought in from the various jurisdictions, and we tended to the view that it should, so far as possible, operate within its permanent establishment. Now, that cannot be done without increasing the establishment and that brings in its train the question of whether it should remain as two members from Scotland or whether it should be three. It is really an incidental effect of that. If one compares that with the present arrangement under which the Judicial Committee of the Privy Council can call on Scotsmen ad hoc to sit in, it is a very flexible arrangement and quite a beneficial arrangement from the point of view of making sure that you have adequate Scottish representation when required. These are broadly my views. Now, I appreciate that to increase the number of Scots may not necessarily be wholly popular and it also creates difficulties in Scotland because at the moment to have two distinguished Scottish judges serving in England and for the most part looking at English cases is in a sense bad enough, but to take three away is a greater drain so there are pluses and minuses here. It is a difficult matter and it may be at the end of the day one of the arguments for leaving matters as they are.
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 Councillors 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.
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.
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 staff 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.
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.
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.
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. 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.
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.
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.
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.
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.
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.
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's 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.
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 dare affirm that of the judges'!
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.
The fifth article is taken from the Scotsman 10th March 04.
Lord Cullen attacks plans for Supreme Court
SCOTLAND’S most senior judge, Lord Cullen of Whitekirk, has told MSPs he sees no need for a Supreme Court to replace the House of Lords as the final court of appeal.
Lord Cullen, the Lord Justice General and Lord President of the Court of Session, said ministers had caused "resentment" over how they announced plans to remove the Law Lords from the upper house to a new court.
He suggested at the Justice 2 Committee’s inquiry into the Constitutional Reform Bill that the Government had decided the policy with little public debate. The Law Lords currently act as the final court on points of law for all UK jurisdictions in civil cases and for England, Wales and Northern Ireland in criminal cases.
Lord Cullen, who warned in the second reading debate in the Lords that the legislation as drafted could threaten the independence of Scots law, repeated his calls for those concerns to be addressed if the proposals go ahead.
The Government was defeated after the debate as peers voted to delay sending the Bill to the Commons by diverting it first to a special Lords select committee for extra scrutiny, amid claims the reforms are being unnecessarily rushed.
The Lord Chancellor, Lord Falconer, who is pushing the reforms which include the scrapping of the office of Lord Chancellor, says they will clearly separate the powers of law-makers from judges. The plans are backed by the Executive, including Lord Advocate Colin Boyd QC, who says the separation of powers is "a cardinal feature of a modern, liberal, democratic state".
The sixth article is taken from BBC News online.
Friday, 29 September, 2000, 12:31 GMT 13:31 UK
Scottish judge heads train crash inquiry
Lord Cullen at Ladroke Grove enquiry31 people were killed at Ladbroke Grove, just outside Paddington
If the UK Government was looking for a judge of pedigree to head the inquiry into the Ladbroke Grove train tragedy, without doubt the first name on its list was Lord Cullen.
The Scottish judge has played central roles in major investigations into two major disasters within the last decade.
Tragedies on Lord Cullen's own Scottish "patch" have seen him being thrust into the limelight.
Remains of Piper Alpha oil platformOn 6 July 1988, the North Sea Piper Alpha oil platform caught fire and exploded, killing 167 of the 228 on board.
Lord Cullen was given the unenviable task of answering the tough questions of how and why the disaster happened. It took the top lawyer almost two years to complete his investigation and the conclusions led to the biggest tranche of safety reforms in the North Sea oil industry.
The Cullen Report, submitted in December 1990, resulted in most oil operating companies examining and altering their safety systems.
Aberdeen lawyer David Burnside, who represented families at the Piper Alpha inquiry, described Lord Cullen as "a first-class judge". "It is a great compliment to the legal system that Lord Cullen, with his vast experience in such matters, should be asked to do this."
Lord Cullen's professional mettle was tested once again when he was appointed to head the public inquiry into the Dunblane tragedy. On 13 March 1996, 16 children and their teacher were shot dead by Thomas Hamilton at the primary school in the small Scottish town.
Lord Cullen's recommendations led to fundamental changes over the ownership of handguns.
He has also played a central role in the complex legal arguments surrounding the impending case of two Libyans accused of the Lockerbie bombing.
The graduate of the universities of St Andrews and Edinburgh was appointed a judge in 1986 and a Privy Counsellor in 1997. Two years ago, William Douglas Cullen was made Lord Justice Clerk.
Between 1970 and 1973 he was Standing Junior Counsel to HM Customs and Excise and he was appointed Queen's Counsel in 1973 and served as an Advocate Depute from 1978 to 1981.
Lord Cullen was a Chairman of Medical Appeal Tribunals from 1977 until his appointment as a judge.
He is a former member of the Royal Commission on Ancient and Historical Monuments of Scotland.
And he has been awarded honorary degrees from the Universities of Aberdeen, St Andrews and Heriot-Watt.
Lord Cullen's report on the Ladbroke Grove rail crash pulled no punches and was highly critical of Railtrack in particular for "institutional paralysis" and a "lamentable failure" to learn from earlier safety failures.
He made 88 recommendations in his 270-page report, and said he was confident that his proposals would be acted upon.
But asked if an accident like Ladbroke Grove could happen again, he added:” I do not think that anybody in my position can offer assurances that it was impossible for an accident to happen."
Largely attributable to CLICK HERE with thanks to Martin FROST