Evidence submitted by JUSTICE
MINISTRY OF
JUSTICE: BRIEFING
NOTE
1. In general terms, JUSTICE welcomes the government's
creation of a Ministry of Justice formed out of the Department
for Constitutional Affairs (DCA) with additional responsibilities
from the Home Office. However, much of the public discussion of
this proposal has focused on the desirability of breaking up the
Home Office. JUSTICE is concerned that the government deals appropriately
with the issues for the DCA and, in particular, recommends that:
(a) The government publish a memorandum of
the "rule of law" obligations on the Secretary of State
for the proposed department which are implied in s1 Constitutional
Reform Act 2005 (CRA) and in the revised oath of office which
the CRA introduced for the Secretary of State for Constitutional
Affairs;
(b) Parliament consider the implications
of any proposed merger from the point of view of the Government's
obligations for the rule of law;
(c) Ministers in the new department are mindful
of their responsibilities for maintaining the rule of law; and
(d) Consideration be given to more separate
funding arrangements for the judiciary and the Court Service.
2. This note concerns one issue alone: the consequences
of the "rule of law" obligations on the DCA that would
remain at the core of a newly created Ministry of Justice.
3. From the point of view of the rule of law,
the advantages of enlarging the DCA into a wider Ministry of Justice
are:
(a) There would be a ministry with greater
degree of comprehensive oversight of the Criminal Justice System,
albeit that the residual Home Office and the Attorney General's
Department will also retain criminal justice responsibilities;
and
(b) Ministers in the new department will
command greater resources and should, thereby, have greater weight
within Government.
It is on the basis of these that we welcome
the proposal.
4. However, there are matters of concern. These
are highlighted by the statutory responsibilities assumed by the
DCA when it was formed to take over from the Lord Chancellor's
Department. The CRA passed through Parliament only after a protracted
and contentious two-year period of debate. It contains two provisions
relating to the role of the Lord Chancellor/Secretary of State
for Constitutional Affairs. Section 1 provides that:
This Act does not adversely affect:
(a) the existing constitutional principle
of the Rule of Law; and
(b) the Lord Chancellor's existing constitutional
role in relation to that principle.
This is somewhat unclear since the Rule of Law
is left undefined. Section 17 makes further use of the term and
amends the Lord Chancellor's oath of office to:
Respect the Rule of Law, defend the independence
of the judiciary, and discharge my duty to ensure the provision
of resources for the efficient and effective support of the courts.
5. 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.
6. The role of the DCA has been the subject
of some controversy and the issue of possible conflict has arisen
previously—in the context of a proposal to transfer the
Court Service to the Home Office. Lord Woolf, then Lord Chief
Justice, has reported that "there is a lack of appreciation
of the significance of the judiciary in the corridors of Government".
He has also recounted his successful resistance, on the part of
the judiciary, to the proposed transfer of the Court Service to
the Home Office: "It was not appreciated within government
that it was inappropriate for the department that most frequently
had to defend judicial review in the courts and that had lead
responsibility for criminal justice policy to be in charge of
what should be seen as an impartial Court Service".[10]
7. Lord Woolf was pointing to the fact that
the majority of judicial review applications are taken against
the Home Secretary. This has, however, been largely because of
the dominance of applications relating to immigration and asylum
(3,149 out of a total of 5,381 applications in 2005).[11]
His concern was presumably that a minister responsible for the
administration of the court would face conflict if also a party
to actions within it that might conceivably surface in terms of
budgetary priorities or administrative reform.
8. The present proposal would not encounter
quite the same objection because asylum and immigration would
be retained within another department, the residual Home Office.
However, the new Secretary of State would face the same potential
conflicts in relation to criminal matters, both within the criminal
courts and in civil cases. 251 applications for permission for
judicial review related to criminal matters. Nevertheless, in
our view these are manageable, primarily because the independence
of the judiciary will not be affected by which ministry is responsible
for court and judicial administration.
9. However, the likely practical consequence
of any further responsibilities for the DCA will be that the Secretary
of State must be a member of the House of Commons and not necessarily
a lawyer of any kind. The CRA imposes statutory requirements on
the Secretary of State for Constitutional Affairs, who must "appear
to the Prime Minister to be qualified by experience"[12]
for which qualification as a practising or academic lawyer may
be indication. But so may previous ministerial or Parliamentary
experience as well as such "other experience as the Prime
Minister considers relevant".[13]
10. The position is, thus, soon likely to be
very different to that under which the relationship between Government
and the judiciary was managed through the post of the Lord Chancellor.
That is, in JUSTICE's view, desirable and it supported the CRA
during its passage through Parliament. However, some element of
further protection may be required to safeguard the responsibilities
that, until recently, were seen as central to a major office of
state. In particular, the government should spell out its understanding
of the obscurely worded obligation in s1 CRA and the statutory
oath in relation to the Rule of Law. This should be considered
by the relevant Parliamentary committees and would provide a written
statement of obligations to remind ministers of its content. In
the longer term, consideration should be given to greater separation
of the responsibility for administration of the courts from that
of criminal justice and it may be that the Court Service should
become responsible to the judiciary through the Office of the
Lord President of the Courts of England and Wales and the Supreme
Court.
1 March 2007
10 Lord Woolf, "The Rule of Law and a Change in
the Constitution", 23 March 2004. Back
11
The Stationery Office Judicial Statistics 2005 (revised) Cm 6903. Back
12
section 2(1) Constitutional Reform Act 2005. Back
13
section 2(2) Constitutional Reform Act 2005. Back
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