Evidence submitted by Rt Hon Lord Phillips
of Worth Matravers, Lord Chief Justice of England and Wales
I would like to thank the Constitutional Affairs
Select Committee for inviting me to submit material relevant to
the Committee's enquiry into the creation of a Ministry of Justice.
I enclose the following documents to assist
the Committee and to stand as the initial evidence of the judiciary:
(i) Letter to the Judges" Council and
Judicial Position Paper sent to members of the judiciary for the
purpose of consultation. The contents of this paper have now been
considered and endorsed by members of the Judicial Executive Board
and the Judges' Council;
(ii) Addendum A to the Position Paper (and
Annexes [not printed]), which sets out a brief comparative
analysis.
Further, I have now had a little time to consider
the Cabinet Office Paper whichaccompanied the Prime Minister's
Written Ministerial Statement of 29 March 2007 ("Machinery
of Government: Security and Counter-Terrorism, and the Criminal
Justice System"), and I wish to make a few comments upon
it.
The Cabinet Office paper contains a number of
general statements which tend to give the impression that the
progress of an offender through the courts can properly fall within
the "seamless management" of the Ministry of Justice.
The progress of an offender through the courts depends, in part,
upon matters that are the exclusive responsibility of the judiciary,
such as judicial deployment and judicial management of the business
of the court. The judiciary will continue to seek to ensure that
they play their part in the due administration of justice but
emphasise that it would be quite wrong to treat them as part of
the system that is subject to the management of the Ministry.
The judiciary cannot be treated as a seamless part of the justice
process in this manner because they are, and must remain, a distinct
and separate branch of Government, whose duty it is to ensure
a fair and independent determination of issues and to uphold the
Rule of Law as laid down by Parliament.
A number of statements are also made in the
paper as to the effect that the new arrangements will have on
sentencing. The passing of a sentence is, as the paper makes plain,
a matter for judicial determination. Guidance to the judges in
relation to sentencing is provided by decisions of the Court of
Appeal and the Sentencing Guidelines Council. The role of the
latter is set out in the Criminal Justice Act 2003. Further, there
are existing liaison structures in place governing the links between
the judiciary and NOMS, which were the subject of detailed discussion
with the Home Office and which have worked well in practice. It
is therefore not easy to envisage what further appropriate links
might be made "between those who sentence and those who manage
the correctional and other facilities".
4 April 2007
Appendix
LETTER FROM
THE RT
HON THE
LORD PHILLIPS
OF WORTH
MATRAVERS, LORD
CHIEF JUSTICE
OF ENLAND
AND WALES
TO ALL
MEMBERS OF
THE JUDGES'
COUNCIL
You will be aware by now of the announcement
to transfer responsibility for offender management and criminal
justice policy from the Home Office to the DCA, and to create
a new Ministry of Justice.
The senior judges have been conducting discussions
with the Lord Chancellor about this proposal since it was first
mooted in the press, despite the absence of a definite and detailed
proposal from Government upon which I could have consulted the
wider judiciary. We have not objected in principle to the creation
of a Ministry of Justice with responsibility for both offender
management and the court service. However, we have demanded that
structural safeguards are put in place if the new ministry is
not to threaten the due and independent administration of justice.
We are of the view 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, Further, a solution
must be found to the issue of how to match sentences to available
resources. Such a solution requires public debate, followed by
appropriate legislation. Without it, the risk arises that the
ministry will be faced with a situation of recurrent crisis, or
judges will be placed under pressure to impose sentences that
they do not believe are appropriate.
From the outset, I have made these concerns
clear to the Lord Chancellor, and we have embarked on discussions
that I hope will address them. Now that the proposed transfer
of responsibilities has been announced and the structure of the
new ministry is known, I propose to pursue these discussions as
a matter of urgency while, at the same time, consulting with all
levels of the judiciary as to the implications of the changes.
To this end, I attach a position paper which
sets out what we see as being the main implications of a new ministry.
I intend to place this letter and the position paper on the judicial
intranet, so that all members of the judiciary can view in full
the position taken to date. At the same time, members of the judiciary
will be asked to contact their representative on the Judges' Council
with any queries or representations. This process of consultation
will begin at the next meeting of the Judges' Council.
29 March 2007
Attachment
MINISTRY OF JUSTICE: JUDICIAL POSITION PAPER
INTRODUCTION
The views expressed in this paper to be those
of "the judiciary" are the views of those whom it has
been possible to consult in the time available, in the absence
of a proposal which is sufficiently detailed to provide a basis
for consultation of the judiciary as a whole.
CONSTITUTIONAL ISSUES
The creation of a Ministry of Justice (MoJ)
with responsibility for both offender management and the courts
service is not of itself contrary to the constitutional principle
of the separation of powers. Indeed, that principle is respected
in many systems which do have a MOJ. However, examination of those
systems reveals a series of structural safeguards, in place to
protect the independence of judicial decision-making and the administration
of justice. At a more practical level, such safeguards also provide
a mechanism for resolving conflicts between the two branches of
Government in the event of "demarcation stresses" (so
described by Lord Browne-Wilkinson in his 1987 Francis Mann Lecture
[1988] PL 44). The best example of a successful relationship between
a court service and its ministry in a jurisdiction and administration
close to our own is that of Ireland, although comparative analysis
provides a variety of models from across Northern Europe and the
common law world.
The judiciary has, since the possibility of
a MOJ was first mooted in the press, called upon Government to
engage in a rigorous analysis so that the best model can be achieved,
prior to the changes being made. The judiciary believes that such
analysis, including detailed comparative work, is fundamental
to ensuring that our constitutional arrangements, only recently
put in place, are not unsettled by a reform, the consequences
of which have not been fully worked through. A logical pre-requisite
of such an examination is the acceptance that the creation of
a 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 of Justice, decision-making powers which are potentially
incompatible with his statutory duties for the courts and the
judiciary.
By way of example, a Minister of Justice would
almost certainly be the subject of regular judicial review, in
respect particularly of prisons. At present, the Home Secretary
quite properly does not meet with senior members of the judiciary
when such matters concerning him are sub judice. The relationship
between the Lord Chancellor and the Lord Chief Justice, on the
other hand, governed by the Constitutional Reform Act 2005 and
the Concordat, depends on continuous dialogue, concurrence and
consultation between the two in the fields of judicial appointments,
discipline and the administration of justice. Serious thought
needs to be given as to how this essential relationship, which
relies on mutual co-operation, could survive unscathed in a new
environment.
To continue the example, it is virtually certain
that members of the judiciary will find themselves making judicial
decisions which directly and adversely affect the expenditure
of the Ministry of Justice. If the budget of HMCS is not sufficiently
independent of, or safeguarded from, that same departmental budget,
the consequence is that members of the judiciary will find themselves
in the invidious position of making decisions which directly impact
on the Lord Chancellor's ability to fulfil his duty under section
1 of the Courts Act 2003. What must be avoided, both in perception
and reality, is a position whereby judicial decision-making is
influenced or constrained by such financial considerations.
POLICY ISSUES
A further key issue is the exact division of
ministerial responsibility for criminal justice policy. The current
position is a tri-partite division between the Home Secretary,
the Lord Chancellor and the Attorney General. The precise role
to be played by each is uncertain. The setting of policy is clearly
a matter for the Executive. However, the judiciary has a clear
constitutional role in so far as the administration of justice
is affected, as a result of which judicial views should be sought
where appropriate. A complex and cross-departmental approach is
envisaged for the development of the government response to different
types of crime; this has the potential to alter the nature of
that input. There are circumstances where it is perfectly proper,
and indeed essential, to seek judicial views, and this is must
be done in such a way as to maintain the independence of, and
public confidence in, the judicial decisions subsequently made
in respect of enacted policy. This means that the circumstances
in which such input is sought and the mechanisms for doing so
must be clearly defined, and the proper boundaries respected by
Government.
This is of course not a new conundrum, but it
is one which demands a more urgent answer in the context of a
MOJ. There are a number of current examples which illustrate the
issue (the Fraud Review, pre-court diversion), but nowhere is
it more acute than in relation to sentencing. Responsibility for
offender management will now transfer to the MOJ. This transfer,
and the resulting departmental structure, cannot of themselves
solve the crisis of prison over-crowding or provide a solution
for matching sentences to available resources. Such a solution
requires public debate, followed by appropriate legislation. Without
it, the risk arises that the ministry will be faced with a situation
of recurrent crisis, or judges will be placed under pressure to
impose sentences that they do not believe are appropriate.
It is imperative that the judiciary is not drawn
inappropriately into policy decisions in is area by virtue of
its relationship with a MOJ. What must be recognised in the structure
of the new ministry, with its vastly enlarged remit, and in the
framework of its relationship with the judiciary, is the need
to establish open and clear lines of communication so that it
is always evident with which branch of government responsibility
and accountability lie.
There is a need for a detailed examination and
a consequent long-term solution. We have attempted to engage with
the DCA in a constructive manner in order to ensure that proper
safeguards are in place upon the creation of a Ministry of Justice.
Our concerns have not yet been met. What has not been addressed
is the mechanisms by which it is proposed to make certain that
the Lord Chancellor's statutory duties are met once the remit
of the Department and the Minister is significantly changed. In
particular, we have been offered no satisfactory guarantees for
the independence of the administration of justice through HMCS.
We have not been provided with an adequate structure for dealing
with disagreement in relation to the setting and revision of the
budget, or for the financial accommodation of new policies. While
it is true that the Lord Chief Justice ultimately has available
to him the "nuclear option" of alleging to Parliament
that the Lord Chancellor is failing to meet his statutory duties,
it would be most unfortunate if a stage were ever to be reached
where he was forced to deploy this.
The Lord Chancellor has made it plain that he
and his officials will continue to engage with the judiciary,
and we hope that these discussions will produce a satisfactory
outcome.
ADDENDUM A:
COMPARATIVE SURVEY OF THE POSITION IN OTHER
EUROPEAN AND COMMON LAW COUNTRIES
Lord Justice Thomas has, on behalf of the senior
judiciary and in his capacity as judge with responsibility for
European matters, conducted an initial comparative survey of the
position in other European and common law countries.
This document outlines the key points to be
drawn from this analysis. and introduces useful material dealing
with the issues.
The following introductory points may be made:
— A Ministry of Justice, with responsibility
for "corrective services" (prisons and probation), as
well as the courts exists in a number of States, and need not
be incompatible with the separation of powers;
— Where a Ministry of Justice undertakes
a wide variety of functions, including responsibility for criminal
justice policy and, in some cases, prisons, arrangements have
very often been made to place the funding arrangements and operational
control of the courts at arm's length from the Ministry;
— There is a trend in both European
and common law jurisdictions toward greater autonomy in courts'
governance, so as to draw a clear line between the executive functions
of the Ministry and the judicial business of the courts, whether
through creation of Judges' Councils which have responsibility
for the running of the courts, or through legislation which enshrines
a courts administration independent of the Executive; and
— The kinds of tensions with which
the judiciary is now concerned in England and Wales are not unique;
other jurisdictions have conducted detailed analyses of the problem
of how to ensure that the courts run both independently and efficiently,
even though they are funded by the Executive through Ministers
who have a broad policy remit and are often subject to competing
political pressures. For example, in Ireland, which since 1999
has had a settled and successful system of courts governance,
a working group consisting of Judges and officials produced six
reports over a three year period, covering all aspects of the
Irish system from the bottom upwards (reference is made to each
of the working group reports at Annex C below but particular attention
is drawn to Chapter 1 of the 6th Report of the Working Group,
which summarises the depth and breath of analysis undertaken in
Ireland).
The common features to emerge from a survey
of countries to have moved toward greater autonomy in courts'
governance are:
— Judges' Councils (or autonomous courts
administrations) are established by primary legislation, which
will outline the composition of the Council or Board, its accounting
and other duties, (such as that to prepare an annual report or
have regard to government policy in making decisions (eg Ireland,
Courts Service Act 1998, section 13));
— Significant judicial representation
on the Management Board responsible for the administration of
the courts. Chairmanship may be judicial or may be by the Chief
Executive (or equivalent), but around half of the Board members
will be judges of various rank (eg in Ireland, 9 of the 17 members
are judges, in Denmark 5 of the 12 members are judges, in Sweden
4 of 9). The remaining members will be a variety of managers,
lawyers, community representatives, trade union representatives
etc. Judges will very often also sit on lower-level Committees,
although the models vary as to whether this is at a strategic
and policy level, or whether the judicial role extends to operational
detail. On the Irish model, for example, the Judges are jointly
responsible with senior officials for strategy, but responsibility
for delivery rests with officials;
— Duty to prepare annual reports, which
the Minister of Justice or equivalent is then under a statutory
duty to lay before Parliament; and
— Budgetary autonomy. In respect of
funding arrangements the position appears generally to be for
the Board to make its annual bid for resources to the Ministry
of Justice. The Board then determines how the funds are allocated.
However, there can be additional protection built into the system,
so for example in Denmark, the Council has the competence to address
Parliament directly if it considers its allocation insufficient.
Further, on a model in which the Chief Executive or Board prepare
the annual report, rather than the Minister, there is scope for
publicly addressing any lack of resources in that report, which
Parliament can then scrutinise.
4 April 2007
ADDITIONAL SOURCES
[NOT PRINTED]
Annex A: "Councils for the Judiciary
in Focus", by Wim Voermans of Tilburg University (2000),
which sets out the various models used in Europe and the link
between judicial independence and courts' administration.
Annex B: Alternative Models of Court
Administration (2006) (http://www.cjc-ccm.gc.ca/cmslib/general/models-e.pdf)
for an up-to-date summary of the position in America, Canada and
other common law jurisdictions.
Annex C: Courts Service Act 1998 (Ireland).
Working group reports which led to the creation of the Irish Courts
service can be found at: http://www.courts.ie/courts.ie/Library3.nsf/foe0a24268coa3da80256da
500428fb8/7e684fd4e568423b80256da6003877e6?OpenDocument.
Annex D: "Which Council for Justice?
The current situation in the Council of Europe Member States",
paper given by Sir Richard Aikens to the Third European Conference
of Judges (March 2007).
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