British courtroom battles are arguably the most severe

Date: 14/01/1999

By Ian S Forrester QC

THE prospect of making oral argument before the UK's House of Lords is much more alarming than preparing for an argument in Luxembourg.

The written pleadings are usually shorter than for the European Courts, but the oral argument is completely different. Instead of making a short set-piece presentation of 25 minutes and answering some judicial questions (more extensive before the European Court of First Instance than before the European Court of Justice), counsel before the House of Lords may be on their feet for hours or days.

Counsel in effect participate with the judges in a far-ranging discussion, assessing the current state of the law and whether it should be changed.

There are normally five men, not young, wearing ordinary clothes, sitting round a horseshoe-shaped table in a committee room. They enjoy intellectual debate and constantly challenge what is said to them; counsel, on his feet, is often left silent as the judges debate among themselves. The packaging of the debate is very polite (“my noble and learned friend...”), but the forensic confrontation with counsel is quite brutal: their Lordships assume that counsel, who are spectators and participants in framing the law, are well-paid, well-prepared, and deserve absolutely no intellectual mercy.

Before British and Irish accession to the EEC, the judicial tradition in Luxembourg was lamentably dull: interruptions were rare and indeed almost discourteous. Making oral argument a useful part of the judicial process has been a real Anglo-Saxon contribution to European justice.

In London, 11 law Lords (Lords of Appeal in Ordinary) are always available to sit; also eligible are members of the House of Lords holding high judicial office (like the current Scottish Lord President, for example). In a very few cases, seven law lords have heard an important case. In Scotland, benches of five or seven judges may be convened, or even the whole court.

In Luxembourg, there may be three, five, seven or more judges. The whole court sits more frequently than in national courts in Europe. In the US, all nine Supreme Court justices sit, but they hear relatively few cases.

Selecting which judges will sit in particular cases is evidently a delicate matter. In Luxembourg, although in theory there is no rule, in practice judges tend to specialise. The juge-rapporteur for politically sensitive cases often comes from a small country; pharmaceutical cases will often go to one, state aids to another. In some countries it is regarded as important that the identity of which judge shall handle a case be unforeseeable; in other traditions, specialisation is seen as helping efficiency.

The House of Lords will have to decide how many of its members, and which ones, will sit on the third hearing on the request for former Chilean dictator General Pinochet to be extradited to Spain. The first, after hearing 16 barristers over six days, found by a three-two majority, reversing the lower court, in favour of extradition; the second found unanimously that Lord Hoffman's involvement in the affairs of a party to the cause, Amnesty International, rendered his participation in the case inappropriate. The third will have to decide on the statutory and public international law merits of the case one more time.

Was Lord Steyn right in holding that if a “head of state kills his gardener in a fit of rage ... or orders victims to be tortured in his presence .... that could not be ... acts ... in the exercise of his functions as a head of state”, and that therefore the immunity attaching to a head of state or former head of state must therefore not be absolute but subject to certain limitations?

Or was Lord Slynn right in holding - reluctantly - that the courts should exercise “judicial restraint or abstention” and that “it is artificial to say that an evil act can be treated as a function of a head of state until an international convention says that the act is a crime when it ceases ex post facto to have been a function”?

Requests for judges to recuse themselves are naturally a rare phenomenon in any court. Now and again it may happen that a judge feels he should not participate (because in a previous incarnation he was involved in the affairs of a party, or acted as its lawyer, for example). Requests are occasionally made by a litigant in Luxembourg, usually to the president of the Court and to the judge himself.

Demands for judges to recuse themselves are very rare (IBM's attempt to disqualify Judge Edelstein for bias in its anti-trust case before the US Southern District Court in New York is a classic example): and if a judge volunteers information about possible bias, and invites the parties to agree he can continue, only a brave lawyer would object.

If the judge owns 100 shares in ICI, which is involved in a state aids dispute before him, should he deem himself to be disqualified? Should hemention the matter to counsel? I expect in the US he certainly would mention it, and might well be obliged to withdraw, but that in Luxembourg the matter would not be troublesome.

• This article reflects the personal views of the author.