Further evidence submitted by Rt Hon Lord
Phillips of Worth Matravers, Lord Chief Justice of England and
Wales
The judiciary is an independent arm of the state
and is fundamental to the Rule of Law. It is not a privilege for
the judiciary but is an essential requirement for every citizen
to ensure the fair and impartial resolution of disputes. The administrative
system that supports the judiciary underpins that independence.
Judicial independence cannot exist on its own—judges must
have the loyal staff, buildings and equipment to support the exercise
of the independent judicial function.[1]
When the Lord Chancellor was head of the judiciary
he had primary responsibility for the administration of justice
in England and Wales. When he ceased to be a judge and I, as Chief
Justice, became head of the judiciary, I inherited primary responsibility
for the administration of justice in England and Wales. The Lord
Chancellor came under a duty to provide me and my judges with
the resources that we need for the efficient and effective administration
of justice. In view of this he and I became partners in the administration
of justice, but as a matter of constitutional principle the Lord
Chief Justice is now the senior partner.
The provision and administration of the resources
needed for the administration of justice was entrusted by the
Lord Chancellor to Her Majesty's Court Service (HMCS), an executive
agency, before the Constitutional Reform Act. At that time the
duties owed by HMCS were owed to the Lord Chancellor, both because
he was the head of the judiciary and because he was the Minister
responsible for the agency.
When the Lord Chief Justice became head of the
judiciary in place of the Lord Chancellor this altered the duties
owed by HMCS.[2]
It continued to owe a duty to report to the Lord Chancellor, as
the responsible Minister. But it also owed a duty to the Lord
Chief Justice, as head of the judiciary responsible for the administration
of justice, to provide the infrastructure necessary to discharge
that responsibility. Close communication and co-operation with
the Lord Chief Justice and the senior judges when decisions are
taken is essential in order to ensure that what is needed for
the administration of justice is provided.
The Concordat recognised this to a degree. Provision
was made for the Lord Chief Justice to be consulted in relation
to both the fixing of the HMCS budget and the allocation of that
budget. There should have been a sea-change in the attitude of
both HMCS and the Department for Constitutional Affairs (DCA),
under the Lord Chancellor, to the role of the Lord Chief Justice
in relation to the provision and administration of court resources.
In the event there has been no real change in attitude at all.
The Lord Chancellor and his staff in the DCA continued to act
as if he retained primary responsibility for the administration
of justice and had sole responsibility for deciding what resources
should be allocated to this and how they should be deployed.
In giving evidence to this Committee on 17 April
2007 Lord Falconer said:[3]
"We think the current model we have is fine.
That involves a statutory duty properly to fund the courts, HMCS
being responsible to the Secretary of State for Justice, but there
being in place mechanisms whereby the views of the judges are
properly taken into account".
After the Constitutional Reform Act 2005 came
into force, the views of the judges should always have been taken
into account by the Lord Chancellor. They were not. We were side-lined.
Decisions were taken without our participation and we were then
told what was proposed. Examples are plans for court closures
and development of the court estate and a lack of judicial consultation
and transparent decision-making in relation to disposal of a £34
million surplus earned on civil justice court fees in 2005-06.[4]
This lack of real involvement of the judges
in decision making was already a matter of concern before the
Ministry of Justice came into being. We were trying to redress
the situation. That it existed is perhaps not surprising. Lord
Falconer was and is an outstanding Lord Chancellor in the traditional
and historic role of that office. He has stood up for the Rule
of Law and the independence of the judiciary when the need arose,
and it has arisen. I have the highest regard for him and a very
good personal working relationship with him. It is perhaps not
surprising that he and his department continued as before in relation
to the allocation of resources. The Ministry, the DCA as it was,
also keeps a very tight control over the activities of HMCS—closer
than is consistent with best administration, even on an executive
agency model.
All of this may have been tolerable so long
as the Lord Chancellor was in the traditional and historic role
of that office and so long as providing an administrative system
for the courts remained one of his two most important budgetary
concerns; the other being legal aid. The transfer to him of responsibility
for prisons and offender management and criminal justice policy
has changed all that; his concerns will be those of Home Secretaries
past. In the fullness of time, the Minister of Justice will be
increasingly distanced from the traditional and historic role
of Lord Chancellor. There may well be a Minister who may have
no personal knowledge of how the courts work nor the same understanding
of and passion for the rule of law.
The Ministry of Justice has additional responsibilities
for prisons, probation and criminal justice policy which may create
a conflict between the Ministry and the judiciary.[5]
This is why the creation of the Ministry of Justice has constitutional
implications. Machinery must be put in place to ensure that the
efficient and impartial administration of justice by the judges
for the benefit of each citizen and the resources needed for this
are not put at risk.
These problems are not unique to this jurisdiction.
They have been recognised in other countries where there is a
Ministry of Justice with responsibility for the court infrastructure,
and there is a movement to giving the judges greater control over
the running of their own court systems. There is, for example,
a very helpful recent report in relation to Canada. The judiciary
are drawing on the experience of other countries with Ministries
of Justice, and in particular Ireland, the Netherlands and Denmark,
where autonomous court administration with a greater degree of
judicial participation has been very successful. It has underpinned
the independence of the judiciary, improved the relationship between
the judiciary and the court administration and improved the delivery
of justice for the public.
The issue is currently being addressed in Scotland[6]—Chapter
12 of the consultation paper, Proposals for a Judiciary Scotland
Bill, (14 February 2007) raises the issue of the practical
way of giving the judiciary more authority over the Court Service
in Scotland.[7]
The Lord Chief Justice of Northern Ireland has raised a similar
issue in Northern Ireland as a matter for resolution in relation
to the new scheme of devolution.
The problem is exacerbated in this jurisdiction
because prison capacity is inadequate to cope with the effect
of the present legislative framework and the demands for funding
prisons and offender management are likely to be particularly
heavy. This could lead to a perception of pressure being brought
to bear on the judges to go easy on prison sentences in order
to prevent damaging demands being placed on their own resources.
Such a perception would be damaging to the Rule of Law and would
dent public confidence in the independent administration of justice.
THE PRESENT
POSITION
Shortly before the Ministry of Justice was created
questions raised by the judges led to discussions, which resulted
in the Lord Chancellor taking the position that a working party
could consider the creation of constitutional safeguards but only
under the following parameters:
— no change to legislation;
— no change to the Concordat;
— no change to the executive agency
status of HMCS;
— no ring-fencing of HMCS budgets;
and
— that it is for the Lord Chancellor
to decide, subject to his statutory obligations, on budgetary
issues.
Whilst I agreed that the working party could
proceed on this basis as these parameters were stated to be non-negotiable,
I made it clear that that they would have to be revisited if a
solution could not be found.
As the working party has, over many weeks, studied
the issues it has become clear that there is a difference in relation
to constitutional principles[8]
which the working party has agreed they cannot resolve within
their terms of reference.
We are now in the position that there is no
agreement on the proper constitutional position. This necessitates
the enquiry that we have always sought, which needs to commence
as soon as possible, although it will take a little time to report.[9]
The judiciary made this clear within the working group and to
the Lord Chancellor.
Pending the report of the enquiry I and the
judicial members of the working group have been keen to put in
place an interim working arrangement to allow the judiciary to
continue to work with HMCS to enable justice to be administered.
The working group have come close to settling
an interim working arrangement. The group produced a short document
which set out the role and function of the HMCS Board, including
that of the judicial representatives upon it, a clear process
for the setting of all types of HMCS plans and budgets, and adjustments
to them, and, where agreement on these matters at HMCS Board level
proved impossible, an escalation process for the HMCS Board and
for me to resolve those matters with the Lord Chancellor, with
reference to my ultimate recourse to Parliament, as set out in
the Constitutional Reform Act 2005. The document formed no more
than the basis for a temporary working arrangement which I hoped
would have provided the protection that we need against the two
immediate risks—the pressure on the HMCS budget and the
conflicts of interest that have arisen from the creation of the
Ministry of Justice.
The terms of this document were almost agreed.
However, I and the judicial members of the working group are quite
clear that this document was premised on the need for an enquiry
without delay. If only the need for this were accepted, then we
would have a basis for moving forward.
22 May 2007
"I do see ... a threat to the independence
of the legal system, as opposed to the judges who operate it.
The threat arises by reason of the executive's control of finance
and administration. At first sight many would not regard the control
of finance and administration as providing any threat to judicial
independence. But if the matter is given more consideration, it
is to my mind apparent that the control of the finance and administration
of the legal system is capable of preventing the performance of
those very functions which the independence of the judiciary is
intended to preserve, that is to say, the right of the individual
to a speedy and fair trial of his claim by an independent judge
...
The number and quality of staff in
court offices have a direct impact on the conduct of the case
when it comes into court ... Court administrators are answerable
to their superiors in the civil service, not the judges".
The Courts Act 2003 was passed at a time when the
Lord Chancellor was head of the judiciary. Although this was inconsistent
with the separation of powers it did, as Lord Browne-Wilkinson
put it, provide a flexible and effective means to transmit the
needs of the legal system to the executive and to Parliament.
If, prior to the Constitutional Reform Act 2005, disputes arose
between judges and administrators, the Lord Chancellor, because
he occupied both roles, would be the arbiter. His dual position
operated as a built-in constitutional protection that the section
1 duty would be performed with due regard for the (then) non-statutory
duty to protect judicial independence. Following the separation
of the Lord Chancellor's role and the imposition of a statutory
duty to uphold judicial independence, it becomes necessary to
put in place mechanisms to check (prior to ultimate recourse to
Parliament) that the section 1 duty is performed consistently
with the section 3 duty owed to a branch of the state of which
the Lord Chancellor is no longer the head.
1 1 In 1980, Lord Browne-Wilkinson put it in this way
in his lecture entitled "The independence of the judiciary
in the 1980s": Back
2
In 2003, the Courts Act was passed, setting up HMCS, and placed,
in section 1, the Lord Chancellor under a duty to ensure that
there is an efficient and effective system to support the carrying
on of the business of the courts. This duty was currently delegated
to HMCS, an executive agency, headed by the Chief Executive. In
2004, the Concordat made the Lord Chief Justice Head of the judiciary,
and the Lord Chancellor became a Minister with responsibilities
primarily for the courts and legal aid. The Constitutional Reform
Act 2005 set this out and created new systems for judicial appointments
and discipline. The nature of the protection of judicial independence
changed, from one person holding a dual role as Head of the Judiciary
and Minister with responsibility for the courts, to a Minister
with statutory duties owed to the Judiciary. Back
3
http://www.publications.parliament.uk/pa/cm200607/cmselect/cmconst/uc466-i/uc46602.htm Back
4
http://www.dca.gov.uk/consult/civilcourt-fees/cp0507.pdf. The
figures are at Annex A, page 35. The civil only surplus was approximately
£34 million in 2005-06. Back
5
This conflict is not purely financial, but also affects the relationship
between the judiciary and the Ministry of Justice. For example,
it is inappropriate for a judge who is involved in proceedings
to which the Ministry is a party to meet with the Minister of
Justice until judgment in that case has been given. Back
6
Professor Page's answer to Question 499. Back
7
Paragraph 12.2 of the Scottish Executive's Consultation Paper
states that: "There were some strong views in the consultation
on the link between the unification of the judiciary and the governance
of the Court Service. Put simply, the view was that the Lord President
should not take an overall responsibility for the efficient disposal
of business in all courts without having authority over the administrative
support for those courts. We understand the force of that argument,
and have therefore entered into more detailed discussion about
how more judicial authority over the Court Service would work
in practice, taking into account the continuing strategic role
of Scottish Ministers, accountability to Parliament and the need
for strong working relationships with other bodies in the justice
system". Back
8
In particular the status of HMCS as an Executive Agency, the recognition
of a direct obligation owed by HMCS staff to the Lord Chief Justice
and judiciary to support them in their function to deliver justice
independently and the nature and type of the intervention of the
Lord Chancellor in the operation of HMCS and the relationship
of these to the existing constitutional framework. Back
9
As well as the long-term position of HMCS, it is my view that
the enquiry will also need to examine the operation of certain
functions under the Concordat, such the appointment to leadership
posts, in the light of the creation of the Ministry of Justice
(see also the evidence of Professor Hazell to the Constitution
Committee of the House of Lord, on 9 May 2007). Back
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