Thursday, 1 April 2010

Lord Carswell – and another safe pair of hands.

Lord Carswell, a retired judge, is leading the current inquiry into the role of the Crown Officers in Jersey.
He also helped to interview and select two Jersey lawyers and a Jersey lawyer’s wife to form the inquiry panel – plus a Chartered Psychologist/registered nurse.

Mathematically speaking, the odds against having three lawyers and a lawyer’s wife on the panel ought to be so remote as to defy calculation – but this is Jersey and lawyers stick together – especially when the subject under examination is yet more lawyers.

Lord Carswell has had a long career in the law and was nearly blown up in Northern Ireland where he sat as a sole judge (without jury) on many so called “Diplock” hearings.

Ironically, in England only this week, for the first time in three centuries, a judge sat without a jury to hear a major criminal case where previous juries had been nobbled.

For the past six years or more Lord Carswell has held a seat in the House of Lords (as a crossbencher) but he did not make his maiden speech until 28 January this year because he was still serving as an Appeal (Law Lords) Judge. That reason is especially significant in the context of the current Jersey inquiry because it is just such questions of conflict that need to be considered with regard to the Bailiff and other Crown Officers.

Lord Carswell explained how ALL the Lords of Appeal in Ordinary “observed rightly or wrongly the self imposed abstinence from participation” in House of Lords debates. However, as soon as he retired as a judge he was released from his abstinence – in time for the appropriate Constitutional Reform debate – saying “I am now released from that Trappist type vow of silence and I hope to be able to make a modest contribution from time-to-time to the proceedings of the House.”
He went on to express his admiration for the late Lord Hailsham (an old Tory Lord Chancellor of a particularly conservative sort) and the advice that he gave him – “be careful.” Lord Carswell then said “I commend these words to your Lordships as useful advice for anyone proposing constitutional change.”
He cautioned further “because well intentioned alterations can, if the results turn out wrongly, make things worse instead of better.”
“Once you reduce something to writing a Bill of Rights, a constitution, things like that, you give rise to an industry among those who look for gaps, loopholes, extended interpretations and ways round. Lawyers in any other country which has a written constitution will tell you just that. My message applies right across the spectrum of constitutional change in all aspects your Lordships are discussing today; if it is right, consider change and reform and propound it; but in the words of Lord Hailsham, be careful.”

From which it could be assumed that Lord Carswell has already drafted his Jersey report!

In a long career, Lord Carswell has of course issued many judgments and he has decided upon many Human Rights issues in recent years such as that for Naomi Campbell v the Daily Mirror (2004 Appeal). This was a most important decision regarding privacy v free expression and “breach of confidence” but his Lordship does not seem to have much of a liking for human rights arguments. As with Hailsham, he would seem to prefer that judges have a free hand to make up the law according to particular circumstances.

Yet, during the Power of Entry Debate on 5 March this year Lord Carswell stated;
“I express my complete and wholehearted agreement ……the Bill will allow to be enshrined in law what ought to be regarded as a bright-line principle; that officialdom should not be allowed to enter private premises without either consent or a warrant or court order. “

In another Law Lards judicial review hearing in 2008 (re Duffy) Lord Carswell considered a dispute with the Secretary of State over the appointment of members on the Parades Commission of Northern Ireland. It was a throw back from his old Irish stomping ground days and Mr Duffy had complained that the Secretary of State had encouraged Orange Order supporters to apply ( and to be appointed) and that there were partisan conflicts etc with regard to the management of the Portadown Parade.
As in Jersey, there were all sorts of unusual and ancient traditions to be considered and the judgment favoured Duffy.
Lord Carswell observed (among other things) that “it may often be of importance to encourage under-represented sections of the community to apply for appointment to various bodies” and added “that this should not be at the cost of loss of impartiality.”

Quite how Lord Carswell might reconcile the appointment of so many lawyers and not others on the Jersey inquiry remains to be seen but it would be a pity if he was not called upon to address the question before his Jersey findings are published?

As for the rest of his lifetime in law it is difficult to determine where his true sympathies lie and he has considered many very substantial cases.

He likes to introduce short quotations in his speeches such as “Lord, make me chaste and continent, but not yet” (from St Augustine) or “the best is the enemy of the good”.
Already during the Jersey hearings he has referred to “removing one brick from the wall and causing the whole to collapse” on several occasions which seems to confirm his conservative, leave it well alone, instincts.

He clearly enjoys discussion with lawyers such as the Jersey Attorney General (Carswell was an AG Counsel in Northern Ireland) and Jurats and their like. He was noticeably more hostile to Deputy Bob Hill, the proposer of the inquiry that is now taking place, when in discussion with him.
He seems more comfortable in the company of lawyers but we might see as the hearings proceed if he can respond with equal enthusiasm to the general public and their more critical views.

Lord Carswell plays golf and enjoys hill-walking and has his home in Northern Ireland.

According to Parliamentary records (parliamentukdoc.) he attended at Westminster during the period 1 April 2008 to 31 March 2009 on one occasion only to sit with regard to public business in the House ( his judicial duties being separate) and claimed £12,878 in travel expenses ( including £2,346 for car expenses, £1,327 on Rail/Ferry/coaches and £9,206 on air travel).

Submitted by Thomas Wellard.

1 comment:

Anonymous said...

The Constitutional Bill of 2009 is part of a process of major reform that started in 2004. Then the Labour government suddenly announced that the ancient and powerful office of Lord Chancellor was to be more or less abolished.
The Guernsey Human Rights case in McGonnel was part of the motivation and Lord Carswell has the opportunity to advance reform in Jersey now if he chooses.
Even Ph Bailache proposes a written Bill of Rights for Jersey when the island gains independence - so Carswell and his lawyer chums have Phil's approval for that and his own role as a Law Lord ended when the new UK Supreme Court replaced the judicial role of the House of Lords this year. It is all part of the separation of powers process - as is the Judicial Appointments Commission to ensure that Prime Ministers do not appoint the senior judges in future.
Carswell has already started to consider who actually appoints the Jersey Bailiff - any fair minded person must surely resolve to reform the whole process because it is inevitable that complaints will find their way to Strasbourg sooner or later and the UK Government, as High Contracting Party, does not want that.
Hoewever, the "be careful" and "if it ain't broken" lobby will be out in force at Highlands and on the island golf courses over the next few months.