A matter of constitutional importance
9. Outside Parliament, the announcement of the creation
of the MoJ received a largely warm welcome. Paul Cavadino, Chief
Executive of the crime reduction charity NACRO, greeted the news
as "an important step towards achieving a more coherent criminal
justice system. Most European countries have long recognised the
benefits of bringing responsibility for courts, prosecution, probation
and prisons together in a single justice ministry".[18]
These comments were echoed by the Prison Reform Trust, stating
that the establishment of the MoJ "could mark the start of
a fairer, more balanced criminal justice system".[19]
10. However, the law reform organization JUSTICE,
in its written evidence, considered that the combination of responsibilities
hitherto divided between the Home Office and the DCA might raise
concerns for the real and perceived independence of the judiciary
in relation to the executive and the Lord Chancellor's role as
guardian of the rule of law and judicial independence:
"The constitutional issue is whether there is
any conflict possible between the duty to uphold the rule of law
and the independence of the judiciary, on the one hand, and the
taking of lead responsibility for criminal justice, on the other,
by the new Secretary of State. There is a political element to
this question: whether the enhanced criminal justice responsibilities
will practically detract from the department's ability to obtain
funds and attention for issues relating to the administration
of justice and including the judiciary, courts and legal aid."[20]
11. These comments reflect the concerns raised by
the Lord Chief Justice in his statement of 27 March 2007 on the
Machinery of Government changes as cited above. These centred
on the exercise by the Lord Chancellor of his statutory duties
to uphold judicial independence and ensure adequate resourcing
of the courts under section 3(1) of the Constitutional Reform
Act 2005 and section 1(1) of the Courts Act 2003. Prior to becoming
Secretary of State for Justice on 9 May 2007, the Lord Chancellor's
primary departmental responsibility as Secretary of State for
Constitutional Affairs was for the courts, the judiciary, the
civil justice system and legal aid. However, the creation of the
MoJ added to the Lord Chancellor's responsibilities the more politically
controversial and resource-intensive running of the Prison and
Probation Services. This dramatic increase in the Lord Chancellor's
role and remit is borne out by the number of staff of the old
DCA and the new MoJ: while the DCA, on 31 March 2007, had 36,910
staff, the new MoJ now has 88,483;[21]
the number of staff has thus more than doubled. We were warned
by the Lord Chief Justice that this amalgamation of responsibilities
and, of course, budgets in the new MoJ could lead to a "real
conflict of demand on a single budget".[22]
On 29 March 2007, Lord Phillips informed the Judges' Council in
a letter that "the cost of the ministry's other responsibilities,
and in particular, that of the prison service and offender management,
must not be permitted to put at risk the proper funding of the
court service."[23]
12. In its position paper of early April 2007, the
Judiciary of England and Wales insisted that the creation of the
MoJ "is not a simple Machinery of Government change, but
one which impacts on the separation of powers by giving the Lord
Chancellor, as Minister for Justice, decision-making powers which
are incompatible with his statutory duties for the courts and
the judiciary".[24]
In this context, both the Lord Chief Justice and Lord Justice
Thomas, the former Senior Presiding Judge for England and Wales,
went as far as describing as a "serious constitutional problem"
the situation which the establishment of the MoJ and subsequent
lack of an agreement on structural safeguards for the independence
of the judiciary in terms of the resourcing and administration
of the courts had created.[25]
This was not seen by the judiciary as a merely theoretical problem.
They indicated that there had already been disagreement between
the judiciary and the DCA/MoJ about whether the terms of the Concordat[26]
between Lord Falconer and the Lord Woolf of 2004 had been
fully respected with regard to the involvement of the judiciary
in Comprehensive Spending Review discussions involving the DCA/MoJ.[27]
13. Despite having advertised the creation of the
MoJ as "an important—indeed, a landmark—moment
in the development of our public services and our justice system",[28]
Lord Falconer, the then Lord Chancellor, while not sharing the
judges' view that there was a constitutional problem, nevertheless
acknowledged that this was a "serious matter".[29]
In the House of Lords, Lord Falconer insisted that the creation
of the MoJ neither reduced the responsibilities of the office
of Lord Chancellor in protecting judicial independence, nor reduced
his ability to do so in practice.[30]
The then Prime Minister, Tony Blair, confirmed his Lord Chancellor's
assessment that there was no constitutional problem in relation
to the establishment of the MoJ in response to a question from
our Chairman in oral evidence to the Liaison Committee on 18 June
2007. He said that this process was not "a constitutional
change". [31]
He added:
"I think the real concern for the judiciary,
and I entirely understand this, […] they want to know that
there is someone in Government that they can go to and make their
case to and, also, they want to know that they are not going to
be at a disadvantage in relation to courts' funding because the
Ministry of Justice has got the prisons and probation in it too.
I totally understand that, I do not actually think it is a constitutional
point."[32]
14. Professor Alan Page, of Dundee University, disagreed
with this position. He told the Lords Constitution Committee on
9 May 2007 that the establishment of the MoJ:
"…is not just a machinery of justice change
because it does have a very real constitutional significance…namely
the consequences for the relationship between the funding of the
judicial system and judicial independence. I think that is the
key constitutional issue which is raised by this machinery of
government change."[33]
Similarly, in its most recent report on Machinery
of Government changes, the Public Administration Select Committee
noted that it shared the judiciary's view that the establishment
of the MoJ had serious constitutional implications which required
a proper, open examination in order to ensure both Parliament
and the Judiciary as well as the Executive were content with the
proposed arrangements.[34]
15. We agree with this assessment. Significant
changes to the Lord Chancellor's responsibilities as Secretary
of State took place as a consequence of the creation of the MoJ.
They are of constitutional importance as they may affect, in practice
or public perception, the exercise of the Lord Chancellor's core
statutory function of guardian of judicial independence, both
in organisational and budgetary terms. They can have the potential
to upset the carefully balanced arrangements agreed between the
judiciary and the Lord Chancellor in the Concordat of
2004 which was given statutory footing in the Constitutional Reform
Act 2005. Such changes go far beyond a mere technical Machinery
of Government change and as such should have been subject to proper
consultation and informed debate both inside and outside Parliament.
The lessons of 2003
16. The situation in Spring 2007 mirrored the unsatisfactory
manner in which a previous Machinery of Government change involving
the office and responsibilities of the Lord Chancellor was brought
about in 2003: on 11 June 2003, the then Prime Minister announced
a ministerial reshuffle and Machinery of Government changes. The
post of Lord Chancellor was to be abolished in its entirety and
the Lord Chancellor's Department replaced by a new Department
for Constitutional Affairs, headed by a Secretary of State for
Constitutional Affairs. The radical announcement was almost completely
unexpected.
17. A consultation paper issued in September 2003[35]
gave more detail of the necessary legislative changes needed to
abolish the office. On the basis of these consultation papers
and negotiations between the then Lord Chancellor and the then
Lord Chief Justice, Lord Woolf, both agreed what has since become
known as the 'Concordat': Constitutional Reform: The
Lord Chancellor's judiciary-related functions: Proposals.[36]
This document laid down detailed rules on the relationship
between the Lord Chancellor as Secretary of State for Constitutional
Affairs and the judiciary. The Concordat became the basis
for the Constitutional Reform Act 2005, which received Royal Assent
on 24 March 2005, and which put the agreed relationship between
the Secretary of State and the judiciary on a statutory footing.
On 3 April 2006, the statutory changes to the judicial role of
the Lord Chancellor took effect.
18. The way in which the changes to the ancient office
of Lord High Chancellor of Great Britain were initially announced
by prime ministerial press notice and subsequently partially withdrawn
and significantly modified, attracted a great deal of criticism
both inside and outside Parliament. When the then Prime Minister
gave evidence to the Liaison Committee on 3 February 2004, he
conceded that mistakes had been made in the way in which the changes
to the office of the Lord Chancellor were initially dealt with:
"…it would have been better probably had
we published a paper, had we taken a step back, separated the
reshuffle very clearly from the departmental changes and then
presented it at the very outset as it indeed then became, because
what it then became was not in fact a decision that was rubber
stamped and forced through, it actually became a consultation
with papers being published and then a debate in the House of
Lords. I think we could have in retrospect—this is entirely
my responsibility—done it better."[37]
He told the Liaison Committee that pressure for constitutional
change had been building up in his mind[38]
and led to the announcement of 12 June 2003. He stressed again
that, while the policy decision to change the role of the Lord
Chancellor was right, "we could have done it better and done
it differently and of course we should learn the lessons of that".[39]
19. The Constitutional Affairs Committee in the last
Parliament, in its report Judicial Appointments and a Supreme
Court (court of final appeal),[40]
commented that "it is a matter of regret that the proposals
[to change the office of Lord Chancellor and to create a Supreme
Court for the UK] were formulated and announced in a way that
was hurried and evidently without the knowledge of many of those
who would be expected to have been extensively consulted."
The Committee concluded that:
"The way in which these fundamental proposals
were announced, as a part of a Cabinet reshuffle and without consultation
or advice, has created anxieties amongst the most senior members
of the judiciary and was felt by some supporters of the changes
to have been unhelpful in presenting the case in favour of them."[41]
20. When the Chairman of this Committee referred
the then Prime Minister, at his appearance before the Liaison
Committee on 18 June 2007, to the apologetic comments he had previously
made in evidence to the Liaison Committee in February 2004,[42]
Tony Blair defended the way the creation of the MoJ had been trailed
and finally announced on 29 March 2007 as being "a different
situation altogether" [43]
from the changes to the office of Lord Chancellor announced in
June 2003, as the present changes did not involve "a constitutional
change".[44] However,
we disagree with this assessment and note the similarities between
the way the changes in the office of Lord Chancellor in 2003 were
announced and the way the creation of the MoJ was trailed in early
2007.
21. The process
leading to the creation of the Ministry of Justice leaves the
impression that the Government has failed to learn the crucial
lessons from the way changes to the Lord Chancellor's office were
announced and subsequently effected between 2003 and 2005. As
in 2003, the Government has manifestly underestimated the significance
of the Machinery of Government changes announced on 29 March 2007.
22. Lack of
sufficient consultation prior to the initial, Government-prompted,
public proposal and then announcement of the creation of the Ministry
of Justice has led to a highly undesirable public conflict between
the senior judiciary and the previous Lord Chancellor. This conflict
appeared to have been exacerbated by an underestimation of, and
insensitivity for, the concerns of the judiciary which changes
to the role and responsibilities of the Lord Chancellor may raise.
Had the lessons of 2003 been learned, we believe such a situation
could have been avoided.
10 'I can fix the problems, but I need three years'
(Rt Hon John Reid MP), Sunday Telegraph, 21 January 2007,
p 20 Back
11
'Reid wants to split the Home Office in two' (Patrick Hennessy),
Sunday Telegraph,21 January 2007, p 1 Back
12
Qq 62, 64 Back
13
Q 160 Back
14
Q 159 Back
15
Q 62 Back
16
HC Deb, 29 March 2007, col 1640; HL Deb, 29 March 2007, col 1798
Back
17
Qq 121-123 Back
18
'Home Office to be split in two', Guardian Unlimited, 29
March 2007, www.guardian.co.uk Back
19
Ibid Back
20
Ev 31 Back
21
HC Deb, 20 June 2007, cols 1836-1837W Back
22
Q 75 Back
23
Ev 24 Back
24
Ev 25 Back
25
Qq 47, 86 Back
26
See para 17. Back
27
Q 92 [Lord Phillips of Worth Matravers] Back
28
HL Deb, 29 March 2007, col 1797 Back
29
Q 182 Back
30
HL Deb, 24 May 2007, col 807 Back
31
Oral evidence taken before the Liaison Committee on 18 June 2007,
HC (2006-07) 300-ii, Qq 167 & 169 Back
32
Ibid., Q 169 Back
33
Oral evidence taken before the House of Lords Select Committee
on the Constitution on 9 May 2007, HL (2006-07) 151, Q 480 Back
34
Public Administration Select Committee, Machinery of Government
Changes, Seventh Report of Session 2006-07, HC 672, para 41 Back
35
DCA, Constitutional Reform: reforming the office of the Lord
Chancellor, CP 13/03, September 2003 Back
36
http://www.dca.gov.uk/consult/lcoffice/judiciary.htm Back
37
Oral evidence taken before the Liaison Committee on 18 June 2007,
HC (2006-07) 300-ii, Q 65 Back
38
Ibid., Q 64 Back
39
Ibid., Q 66 Back
40
Constitutional Affairs Committee, Judicial Appointments and
a Supreme Court (court of final appeal), First Report of Session
2003-04, HC 48-I, para 14 Back
41
Ibid., para 14 Back
42
See above para 18 Back
43
Oral evidence taken before the Liaison Committee on 18 June 2007,
HC (2006-07) 300-ii, Q 164 Back
44
Ibid. Q 167 Back
