Our inquiry
1. Following more than two months of intense press
speculation, the then Prime Minister, Rt Hon Tony Blair MP, announced
on 29 March 2007 a major Machinery of Government change, affecting
the Home Office and the Department for Constitutional Affairs
(DCA).[1] The Home Office's
responsibilities would be concentrated on counter-terrorism, policing
and asylum and immigration and a new Ministry of Justice (MoJ)
would be created to take on the responsibilities of the DCA and
the criminal justice functions of the Home Office and its agencies
— mainly the National Offender Management Service (which
includes HM Prison Service and the Probation Service). The new
MoJ would now have responsibility not only for constitutional
matters, civil and administrative justice, the courts and legal
aid, but also become the lead department for criminal justice
policy and as such would 'house' the Office for Criminal Justice
Reform, reporting trilaterally to the Secretary of State for Justice,
the Home Secretary and the Attorney General.[2]
It would be led by the Lord Chancellor as Secretary of State
for Justice. A detailed explanation of the Machinery of Government
change was provided in a Cabinet Office paper accompanying the
Prime Minister's announcement.[3]
2. The Prime Minister's announcement prompted the
Lord Chief Justice, Rt Hon Lord Phillips of Worth Matravers, to
make a public statement on the same day, declaring that the announcement
raised "important issues of principle".[4]
The Lord Chief Justice stated that "structures are required
which will prevent the additional responsibilities taken over
by the new ministry [of Justice] interfering with or damaging
the independent administration and proper funding of the court
service".[5] According
to the Lord Chief Justice, "the continuing problems of prison
overcrowding and the availability of resources to provide the
sentences imposed by the courts necessitate public debate"
as, on account of the strains on the prisons' budget, judges might
feel under pressure to impose sentences they did not believe to
be appropriate. His view was that "structural safeguards
must be put in place to protect the due and independent administration
of justice".[6] Provided
that these concerns were addressed, he concluded that "there
would be no objection in principle to the creation of a new ministry
with responsibility for both offender management and the court
service."
3. Immediately following the Prime Minister's announcement
and the Lord Chief Justice's statement, we decided to explore
the matters raised by the senior judiciary with Lord Falconer
of Thoroton QC, the then Lord Chancellor and, initially, by inviting
the Lord Chief Justice to submit more detailed comments to the
Committee. The Lord Chief Justice submitted the documents printed
in the written evidence.[7]
On 17 April 2007, the Lord Chancellor gave oral evidence to
us on the creation of the MoJ. On 9 May 2007, the new MoJ started
its work, yet many of the issues raised by the Lord Chief Justice
remained unresolved. On 22 May 2007, the Lord Chief Justice and
the then Lord Chancellor appeared before us. The startling account
both witnesses gave of the way they had learned of the plans to
create the MoJ and the obvious lack of sensitivity for the judiciary's
concerns relating to the Machinery of Government changes led us
to issue this report. It addresses primarily matters of process
and communication and is not intended to assess in substance the
concerns raised by the senior judges.
Other inquiries and reports
4. The general issue of the process of Machinery
of Government changes was the subject of a recent report by the
Public Administration Select Committee, Machinery of Government
Changes.[8] This report
not only provides a detailed analysis of the legal and procedural
issues relating to Machinery of Government changes, but also comments
on the process leading to the creation of the MoJ, with which
we are in full agreement and which we commend.[9]
5. Throughout this session of Parliament, the House
of Lords Select Committee on the Constitution, under the chairmanship
of the Rt Hon Lord Holme of Cheltenham CBE, has conducted a wide-ranging
inquiry into the relations between the executive, judiciary and
legislature. Part of this inquiry has focused on matters germane
to issues raised by the creation of the MoJ and the effective
change in the political role of the Lord Chancellor; the Committee
has taken substantial evidence on this issue.
1 HC Deb, 29 March 2007, cols 133-5WS Back
2
Ibid Back
3
Cabinet Office, Machinery of Government: Security and Counter-Terrorism,
and the Criminal Justice System, 29 March 2007, www.cabinetoffice.gov.uk Back
4
Announcement of a Ministry of Justice - Statement by the Lord
Chief Justice, 29 March 2007, www.judiciary.gov.uk Back
5
Ibid Back
6
Ibid Back
7
Ev 24-27 Back
8
Public Administration Select Committee, Machinery of Government
Changes, Seventh Report of Session 2006-07, HC 672 Back
9
E.g. in paras 1, 5, 25, 27, 33, 39 and 41. Back
