Examination of Witnesses (Questions 20-39)
RT HON
LORD IRVINE
AND SIR
HAYDEN PHILLIPS
GCB
WEDNESDAY 2 APRIL 2003
20. As to the Hunting Bill, what have you actually
done on the Hunting Bill?
(Lord Irvine of Lairg) My Department
has no policy role whatsoever in relation to the Hunting Bill.
My Department's sole role relates to the tribunal which will be
set up when the Hunting Bill passes to deal with applications,
so ours is not a policy function at all; it is simply to provide
a tribunal to appoint the members, provide a structure, run the
tribunal, I am pleased to say, at the expense of DEFRA.
21. Can you say how much you think you are likely
to spend on that?
(Lord Irvine of Lairg) No, I have not got a figure
available. I have not had specific notice of this question. There
are figures floating about because obviously my Department and
DEFRA have been discussing what it is going to cost and we have
got a clear agreement that whatever it is going to cost, DEFRA
will bear the cost, as you would expect. That is a good example
of the downstream consequences being paid for by the Department
that is the initiator of the policy. I will find out what the
latest estimate is and write to you.[4]
22. If you do not know the cost, why have you
asked for a supplementary estimate?
(Sir Hayden Phillips) Because that is based on the
fact that we will spend some money on this. The estimate which
was put in was based on a faster-track process than the Bill has
had so far and that was the figure which was put in because that
was the best estimate at the time, but my judgment at the moment
is that we will not spend as much as that, but we had to make
some revision.
Chairman
23. Have you spent anything at all in 2002-03
when you asked for the £580,000 supplementary estimate?
(Sir Hayden Phillips) Certainly there
has been expenditure this year because—
24. So you have spent some already?
(Lord Irvine of Lairg) My officials have been working
very hard on this subject and that carries a price tag as well.
(Sir Hayden Phillips) In other words, we are being
reimbursed for the work we had to do to prepare for the tribunal
aspect of that Bill.
Peter Bottomley
25. I would say kill the Bill! There is reference
to the Legal Services Commission and it might be sensible to get
them to ask Members of Parliament whether we have noticed what
we think are abuses of the legal aid system, not individual complaints,
but getting a gathering of them and seeing the pattern. If I can
move along, we have had a useful letter from the Director of the
Northern Ireland Court Services, Mr Lavery, talking about how
legal aid there has been increasing. The figures are released
in public, so I will not go into them. The Legal Services Commission
is going to come to Northern Ireland, so is there an expectation
that that will in some way reduce the rate of progress of legal
aid in Northern Ireland?
(Lord Irvine of Lairg) As you know, in
England and Wales legal aid used to be the responsibility of the
legal professions, of the Law Society. It then became the responsibility
of the Legal Aid Board and the Legal Services Commission which
has to operate within a budget. As a matter of general principle,
it is best that the budget-holder makes the determinative decisions,
so as a matter of principle I think it is better that it should
be the Legal Services Commission, but if you have detailed questions
about the operation of legal aid and its grant in particular cases,
then, as far as I am concerned, I would be absolutely delighted
if you invited the Chief Executive of the Legal Services Commission
to appear in front of you and to answer those questions in detail.
26. Is there any expectation that the rate of
growth of legal aid will be reduced?
(Sir Hayden Phillips) In Northern Ireland? yes; the
object of the exercise is to get much better control over costs
than has been possible before and also at the same time in September
when the organisation comes on stream, I think it is also proposed
that standard fees should be introduced, so the position in Northern
Ireland will be much more analogous to that in England and the
evidence that we have is that that actually in itself does get
better control of the costs. What I cannot give you is an estimate
of what it would be and what it might turn out to be.
Chairman
27. I think you might understand, Lord Chancellor,
that in looking at some of these details we are simply trying
to see what picture you have of trends in the Department's expenditure
and issues like whether you will be coming back for an excess
on expenditure for the coming year, which seems quite likely,
and to know how far those at the top of the Department realise
what burgeoning bills they seem to have.
(Lord Irvine of Lairg) We are only too
painfully aware of it.
(Sir Hayden Phillips) As the Accounting Officer I
am only too well aware of the essential requirement really to
try to live within your means. There is a risk of an excess later
this year. We have done quite a bit to try to avoid that ourselves
as well as with the Treasury's help. It all turns, I think, on
the forecasting of the asylum expenditure which might turn out
to be okay or might turn out to be more than we want it to be
and that will put additional pressure upon our position for the
coming financial year, but on that we are now taking action to
ensure that we live within our means.
28. Well, let me change gear which might be
welcome to you and can I turn your attention to the wider constitutional
issue. You wrote and you are quoted as saying that, "The
overwhelming majority of the judiciary want the office of Lord
Chancellor to remain unchanged whether or not a new Supreme Court
is to be established. Without the office, there would be damaging
disputes about Executive interference and judicial independence
where issues of discipline or conduct arose". Have they arisen
and if they have a tendency to arise, could a Minister of Justice
not speak up for the judiciary just as clearly as a member of
the judiciary sitting in the Cabinet?
(Lord Irvine of Lairg) I think that what has to be
appreciated is that the Lord Chancellor is head of the judiciary
by force of many statutes with all that that entails and one of
the central organising principles of the administration of justice
in this country is that the Lord Chancellor is head of the judiciary.
On taking office, the Lord Chancellor takes the judicial oath
and he becomes President of the superior courts in the country.
As my predecessor, Lord Mackay, put it very clearly the other
day in the debate in the Lords on the 7 March, "I regard
the provision of administrative support to the judges . . . as
part of the judicial administration of judicial functions",[5]and,
incidentally, before I pass on to the views of the judiciary generally,
Lord Mackay has authorised me to say that he would be more than
happy to put his experience at the disposal of your Committee
and to give evidence to it. The first point that he made was that
the higher judiciary accept and support that an integral part
of the office of Lord Chancellor is being head of the judiciary.
When the Wakeham Commission was considering Lords' reform, Lord
Bingham, on behalf of the Council of Judges, which is the body
which represents the views of the senior judiciary to government
and others, wrote this to the Commission and it remains the position
of the higher judiciary today, and I think it is as well to put
it on the record: "The Council is concerned that the Lord
Chancellor's dual position as head of the judiciary and as the
Cabinet Minister with responsibility for the administration of
justice should not be affected by the outcome of the reforms.
We have no doubt that this dual role has historically proved invaluable
in maintaining the independence of the judiciary in England and
Wales and we have considerable anxiety that any other arrangements
would result in time in the encroachment of executive government
into the proper sphere of judicial independence essential in a
democratic society." Now, that remains the view of the higher
judiciary today, so these constitutional arrangements are actually
based on consent. They work successfully in practice, not merely
in defending judicial independence, which I will deal with separately
if you wish, Chairman, but in relation to the whole system of
the administration of justice and I have read the note of Mr Jurgens'
evidence to you and let me just say that we are a nation of pragmatists,
not theorists, and we go quite frankly for what works. It is a
central organising principle of our existing system of justice
that the Lord Chancellor is head of the judiciary and it works
in a whole range of examples quite beyond that of the traditional
function of upholding the independence of the judiciary. The notion
of the Lord Chancellor as a representative of the judiciary in
Cabinet and a representative of Cabinet in the judiciary is based
upon the longstanding position that the office of Lord Chancellor
as head of the judiciary is one and indivisible and it has huge
ramifications for the administration of justice, which I would
like to tell you about but I will abstain from doing so in case
I go on for too long.
29. There are many issues, but I would just
like to ask about this particular one. Do you find you have to
defend the independence of the judiciary in Cabinet or with senior
ministers and that your role puts you in a better position to
do so than a Minister of Justice would be?
(Lord Irvine of Lairg) Well, obviously
I am not at liberty to talk about discussions which take place
in Cabinet and obviously I am bound by collective responsibility,
but I can give you an absolute assurance that at many, many stages
in my experience over six years now as Lord Chancellor, it has
been necessary to argue in ways that ensure that the independence
of the judiciary is upheld. As you know very well, in our country
the legislature is the nominally senior partner, the executive
is very powerful and the truth is that the judiciary is the weakest
arm in the separation of the powers and when the judiciary gives
decisions that the executive or the Government does not like,
in all governments some ministers have spoken out against decisions
that they do not like and I have to say that I disapprove of that.
I think that it undermines the rule of law and I think that maturity
requires that when you get court decisions you favour, you do
not clap and when you get a court decision which is against you,
you do not boo.
30. That is a very interesting point. Collective
Cabinet responsibility, does that preclude you from making the
public comments which the head of the judiciary might otherwise
make when a Cabinet minister does not merely question a court's
decision, but challenges the judge's competence and integrity
to do so as, some would argue, the Home Secretary has done?
(Lord Irvine of Lairg) I do not think that collective
responsibility would in any way preclude my speaking out on behalf
of the judges. In fact in a letter which I delivered recently
on the Human Rights Act and its operation in practice, I expressed
myself quite strongly.
31. From the safe distance of Australia!
(Lord Irvine of Lairg) No, in the beautiful English
city of Durham. You always have to ask what is the most productive
way to go about things and sometimes you can be more influential
by speaking strongly in private than you can be by making a great
hoo-ha in public.
Mr Dawson
32. I am just interested in your role, Lord
Irvine, as head of what is a burgeoning department of state. You
have already given us a graphic description of your postbag, but
what amount of time do you actually spend as head of the Lord
Chancellor's Department as opposed to the other responsibilities
which you have?
(Lord Irvine of Lairg) Well, you see,
this is a really interesting question because they cannot actually
be separated, which is the point I am trying to get over and perhaps
I am not getting it over very well and it is my fault. What I
am trying to get across is how the office of Lord Chancellor and
being head of the judiciary is one and indivisible. Now, let me
give you one example. Nowadays judges assume umpteen tasks of
an administrative nature. There is the closest cooperation between
my Department and judges. The resident judge in the Crown court,
the designated civil judge, family judges, they take the lead
in organising the caseloads in their own area and usually it works
very well. If a dispute arises between them and the circuit administrator,
the Lord Chancellor settles it. Why? Because he is the head of
the judiciary. The senior presiding judge visits the circuits
for substantial periods of time on an investigative basis and
he produces very, very detailed reports about the business on
the circuits which he visits, as I say, really in-depth for the
purpose, and these pull no punches at all about administrative
or judicial failings. These are sent to me in my capacity as head
of the judiciary and it is for that reason that they are so full
and frank and I can tell you that if it was a Minister of Justice,
who was not of course head of the judiciary, I would strongly
predict that they would not be as full and frank. What happens
in that area is that the Lord Chancellor responds in detail and
the problems are sorted out. Now, let me give you one other example
because you mentioned my mailbag. There is an industry of complaints,
about which I do not complain, to the Lord Chancellor about judges
because most cases produce either winners or losers and some losers
are aggrieved. I think I receive at least 1,000 of these a year
and about 100, maybe a bit more, come through Members of Parliament.
The principle is that I cannot entertain complaints about judicial
decisions because of judicial independence, but about 200 are
about judicial conduct and all of these I consider personally.
I will not take up time, although you would find it fantastically
interesting if I did, to give you examples of the small number
that have been upheld, but these are when judges speak or act
in a way in a case usually, occasionally outside the court, in
a way which is not acceptable. Now, I do not want to give the
wrong impression, but this is a system which works 99.9% extremely
well, but there are occasionally examples which let the system
down. Now, here, as head of the judiciary, I can and do warn,
reprimand or rebuke judges where a complaint is justified. I also
believe that the Lord Chancellor brings a broader perspective
to this than a senior judge would who was sitting in judgment
on alleged misconduct by judges, and I ought to tell you that
the judges would never accept this kind of reprimand, rebuke or
warning from a Cabinet minister who was not also head of the judiciary.
33. Can I ask about how this fits with the party-political
role. As a Labour MP, I would look towards secretaries of state
to take on quite an overtly party-political role at particular
times in this process, so how does fit with your responsibilities?
(Lord Irvine of Lairg) What I am trying to get across
is that there is a bit of uniqueness about the Lord Chancellor's
Department which is that its business is dealing with an arm of
the state called the judiciary. It is part of the separation of
powers. We deal with, as I say, an arm of the state within the
separation of the powers and this arm of the state values, and
rightly, its judicial independence above all else. It does not
want to be bullied by the executive. It believes that its function
is to stand between the citizen and the state and to be absolutely
robust in deciding when the state has acted contrary to the law.
Now, the view of the higher judiciary, and indeed my own view,
is that this system works much better through a system in which
there is a Lord Chancellor, who is the equivalent of a secretary
of state, but who is also accepted by the higher judiciary as
head of the judiciary and is able to mediate in a way which all
parties find entirely acceptable between the Government and the
judiciary.
34. Can I just push you a bit more on your party
role. How do you see yourself in party-political terms?
(Lord Irvine of Lairg) Well, I see myself in party-political
terms as a Cabinet Minister who takes the Labour Whip in the House
of which I am a member, who votes for the Party and so on, but
I see no difficulty, and none of the actual stakeholders in the
system sees any particular objection to this. Your question is
perhaps really whether a politician should do this at all and
if that were so, then of course if it was a Minister of Justice,
a Minister of Justice would be an elected politician. It may be
a question as to whether an unelected politician should do it.
I do not really know precisely what the thrust is.
35. It is not particularly as a member of Cabinet
or of the Government, but in a party-political sense, you are
involved in roles to support the Labour Party—
(Lord Irvine of Lairg) Of course.
36. —in terms of fund-raising, in terms
of donations to the Party, in terms of overall political support
for the Party.
(Lord Irvine of Lairg) I do not have very much to
do with that these days.
Chairman
37. When you did, you said it was not the case
that Lord Chancellors are not party-political. I take the view
then that unless and until the rules are changed, the Lord Chancellor
is no different from any other Cabinet minister.
(Lord Irvine of Lairg) I am absolutely
entitled to participate in an election campaign. Lord Hailsham
participated vigorously in his last election campaign and nobody
said that he was in this way disqualified from doing all the other
things as Lord Chancellor that he in fact did extremely well.
38. That distinguishes you from every other
member of the judiciary.
(Lord Irvine of Lairg) Well, of course, but this is
not a discovery.
Mr Dawson
39. And judges do not object to your being robust
with them when you have been at them on the party-political stump
the previous day?
(Lord Irvine of Lairg) Well, I do not
think I have ever met judges the day after I have been out on
a party-political stump, but the basic point is that the higher
judiciary accept this role and they believe profoundly that it
is a superior system to any other.
(Sir Hayden Phillips) Could I just add one small point
of observation as someone who is not a lawyer and who came to
the Department from the rest of Whitehall. What has struck me
as remarkable is that it is not just the high Constitutional issue,
in the way we would explain it, in respect of the indivisibility
of the two roles, but it affects my junior staff on the ground.
We have an arrangement by which we have members of the executive,
lower grade civil servants in the Department, working day by day
with the judges and for the judges in a way which they understand
and which is quite subtle, and it forms a partnership of activity
right down to the grassroots. That would not be the case on either
side if you did not have the sort of situation which we have,
as it were, at the top and I get this impression going around
and talking to junior staff around the country as well and that
is understood and I find that quite an interesting phenomenon.
4 Note by witness: The Hunting Bill was introduced
on 13 December 2002. My department has been working with DEFRA
in preparatory work for the Hunting Tribunal. DEFRA, as sponsors
of the Bill, will reimburse costs incurred by my department in
setting up the Tribunal and the Tribunal's first year running
costs. The cost incurred by my department in preparatory work
during 2003-03 was £125,000. DEFRA have met these costs.
As Sir Hayden Phillips explained in his response to the Committee's
initial inquiry, inclusion in the Spring Supplementary Estimates
was no more than a technical provision designed to ensure that
there was a mechanism by which we could receive and use money
transferred from DEFRA for work we had expected to do in respect
of the Hunting Bill. At this stage it is impossible to be precise
about the total costs of setting up the Hunting Tribunal. Details
in the legislation that are not yet clear will affect the number
of appeals, the amount of time a case will take to be heard and
the venues needed for the hearings. My department is working with
DEFRA to firm up estimates.
(Sir Hayden Phillips) I am sure it will be less than the
provision which has been made, but we do not know precisely what
it is. Back
5
Note by witness: HL Debate, 7 March 2003, Col 1088 Back
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