Examination of Witnesses (Questions 42-59)
RT HON
LORD PHILLIPS
OF WORTH
MATRAVERS AND
RT HON
LORD JUSTICE
THOMAS
22 MAY 2007
Chairman: Lord Chief Justice, Lord Justice
Thomas, welcome. We may have interests to declare around the table
before we begin.
Bob Neill: I am a member of the Bar but
I am not currently in practice.
Jeremy Wright: The same for me.
Keith Vaz: The same for me.
Q42 Chairman: We are glad to have
you this afternoon. You have kindly provided us with a detailed
statement. I am not sure how far you feel you need to refer to
every point in the statement, but clearly the first thing we would
like to know, and it is what the statement is about, is what is
the current state of negotiations between the judiciary and the
Ministry of Justice about the constitutional safeguards which
you think are necessary, and we would also, obviously, like to
know how you got to where you are?
Lord Phillips of Worth Matravers:
Yes. The current state of discussions is that they have not resulted
in agreement. At the very outset, the Lord Chancellor made it
plain that he was only prepared to enter into discussions on certain
understood parameters. They were that there would be no change
to legislation, that there would be no change to the Concordat,
that there would be no change to the executive agency status of
Her Majesty's Courts Service (HMCS), that there would be no ring-fencing
of HMCS's budget and that it would be for the Lord Chancellor
to decide, subject to his statutory obligations, on budgetary
issues. I agreed that we would negotiate on those parameters to
see if we could reach a satisfactory agreement, and we have tried
very hard to do that but it became apparent to my negotiating
team—and Lord Justice Thomas was heading that team—that
it was not going to be possible to reach an agreement that we
thought satisfactory within those parameters, and we have now
reached the firm view that there is a need to have a fundamental
review of the position in the light of the creation of the Ministry
of Justice. We had been trying very hard to reach an interim agreement
in order to tide over the period that will elapse, and it will
obviously be a considerable period, before a review and any implementation
of it can take effect. We were really very close to agreement
on that, but where we did not agree was that there was a fundamental
need for the review. Our stand is we must have this review; the
Lord Chancellor does not believe it is necessary.
Q43 Chairman: So, you believe that
the parameters which were set really inhibited any sensible resolution
of the problems?
Lord Phillips of Worth Matravers:
Yes. What we found ourselves trying to do, more or less, was to
achieve some of the things that we were not allowed to achieve
directly by a rather complicated agreement, but, at the end of
the day, if one looks, for instance, at the Concordat, the Concordat
would never have been agreed in its current form if the original
proposal had been: "We will abolish the Lord Chancellor and
have a Ministry of Justice." As far as the status of the
Courts Service is concerned, this has become a fundamental difference
between us. To whom should the Courts Service owe its primary
duty? As an executive agency it owes a duty to its minister, but
we have urged that the duty it owes to its minister is to discharge
the duty that the minister owes to us; that is to provide the
judiciary with the resources that they need to provide the public
with an efficient and effective system of justice; and therefore,
although, of course, the Courts Service, while it is an executive
agency, owes a duty to its minister, its primary loyalty really
ought to be to us because its job is to provide us with the resources
we need.
Q44 Chairman: Is this a theoretical
argument or is it a real threat?
Lord Phillips of Worth Matravers:
It is a very practical argument and, of course, it applied even
before the Ministry of Justice was introduced. The Ministry of
Justice has exacerbated the position, because whereas before,
so far as the Lord Chancellor was concerned, the running of the
courts was really probably his primary concern, now he has taken
on board an enormous portfolio, and it seems to us, looking at
it realistically, that his primary concern is bound to be prisons
and offender management.
Q45 Mr Tyrie: If I may summarise,
you said that you have failed to reach agreement so far, you have
failed to reach even an interim agreement and you have failed
to agree that you need a fundamental review?
Lord Phillips of Worth Matravers:
Yes.
Q46 Mr Tyrie: Lord Justice Thomas,
before these negotiations began, I think I am right in saying
that you said there would be a serious constitutional problem
if, by the time the MoJ became operative there was not an agreement.
It became operative on 9 May. Do you stand by your remarks?
Lord Justice Thomas: We accept
that an inquiry is bound to take some time. If we are to do it
properly, it is bound to take even until the early part of next
year and we would need legislation. We have to have an interim
agreement. We believe that, although we cannot, without legislation,
sort out the basic problems, because everywhere we have tried
we have always come back to the constitutional problem of the
way the duty is structured and the executive agency status of
HMCS (and it has impacted not merely on the duty, as the Lord
Chief has explained—but on the powers of intervention, the
composition of the HMCS Board, and issues of accountability—there
are a whole host of very complicated problems and every time we
try and resolve them we run into this legislative problem, but
we accept that actually we must find a short-term way forward,
and we think that can be done and we are nearly there.
Q47 Mr Tyrie: Can you give me some
feel for what you consider to be the scale of the constitutional
problem: what is the serious constitutional problem?
Lord Justice Thomas: The serious
constitutional problem is this. If we could not agree on anything,
we would have a real problem on our hands. If we can agree something
in the interim, then there should not be a problem because we
can work for a short time under working arrangements.
Q48 Mr Tyrie: You have just said
that has failed; you have not got an interim agreement.
Lord Justice Thomas: We were very,
very close to the bones of an interim agreement and, as the Lord
Chief Justice has explained, there is probably one problem with
it.
Q49 Mr Tyrie: It is like cricket,
is it not? You are either out or you are not, you are not nearly
out?
Lord Justice Thomas: Yes.
Q50 Mr Tyrie: So, you have not nearly
got an interim agreement; you have not got an interim agreement;
so we have got a constitutional problem?
Lord Justice Thomas: We have got
a problem, as it stands at the moment. We believe it can be resolved
pretty simply.
Q51 Chairman: The situation today
is that, in the view of the senior judiciary, the relationship
between the judiciary and the newly created Ministry of Justice
is not a sustainable or satisfactory one?
Lord Justice Thomas: It is not.
We have, as you will see from the Lord Chief's statement, got
very, very close to an interim working arrangement—there
is very, very little between us—but there is the question
that really we say we can reach something on an interim basis
but the experience of the negotiations has taken us back on so
many occasions to the difficult issue of trying to resolve the
executive agency status, and everything that flows from that,
of HMCS, which is outside our terms of reference. We can find
a way forward and we would ask that an inquiry, to see what is
the best method of actually dealing with this problem for the
long-term in our new world, takes place and we have something
that governs in the interim. That is what we want. We actually
want to make the system work. We want an inquiry, which I would
not have thought was an awful lot to ask.
Q52 Chairman: You said a moment ago
it would take time to get legislation, but does not that just
reveal that it takes time properly to create the Ministry of Justice?
Lord Justice Thomas: Of course.
Q53 Chairman: If we look back at
the Concordat: how did the Concordat happen? It happened because
the changes to the Lord Chancellor's status could not be achieved
without legislation and, therefore, there was time to have a Concordat,
which your predecessor negotiated?
Lord Phillips of Worth Matravers:
Absolutely, and that was in the context of pending legislation.
Lord Justice Thomas: The difficulty
with this is that you can create a Ministry of Justice, but the
fact you can do it without legislation does not diminish its importance.
Q54 Bob Neill: It seems pretty clear
that we have reached a stage where further negotiations are unlikely
to produce anything, unless there is a significant move by the
Lord Chancellor in terms of accepting an inquiry, which has been
outside the parameters so far?
Lord Phillips of Worth Matravers:
I think that is right. I hope that common sense will prevail and
that it will become quite apparent that we do need this inquiry.
Q55 Bob Neill: Is there any timeframe
as to when the Lord Chancellor is likely to respond to you, if
at all, as to whether he is prepared to consider such an inquiry?
Lord Phillips of Worth Matravers:
We have been negotiating, or discussing, I think, is the more
appropriate term, very vigorously up to this moment and we were
hopeful, up to an hour ago or so, that I should be coming and
saying we have got an interim solution, a modus vivendi,
for the time being. There is agreement that we need to have this
looked at in depth but, for the time being, we will put the interim
agreement in place.
Q56 Bob Neill: But that we have not
got?
Lord Phillips of Worth Matravers:
We have not got that.
Lord Justice Thomas: The difficulty
we face is that it has been difficult to get to a stage where
we think we can work something out that will last for the interim.
What is a very different position is something that lasts for
the long-term. So, after trying lots of different ideas of how
we might be able to get there, it became quite apparent that there
was this really difficult problem which can only be solved by
looking at the different models that were available. We were quite
happy for this to be done, and really what we are saying is it
is not difficult to agree something for the short-term but actually
agreeing something for the long-term within the constraints that
were imposed upon us we simply cannot do.
Q57 Bob Neill: I understand that,
and I take on board very much the comments I think of either Lord
Phillips or yourself that there is a fundamental difference between
you. I have noted, Lord Phillips, in your helpful remarks that
you have provided to us, you make this comment, "We are now
in the position that there is no agreement on the proper constitutional
position"?
Lord Phillips of Worth Matravers:
That is so.
Q58 Bob Neill: Given that very clear
and serious statement, have we not perhaps reached a stage where,
if there is no agreement on the proper constitutional position
and a fundamental difference, it is appropriate for you to consider
using your powers under section 5(1) of the Constitutional Reform
Act on the basis that you can make a statement to Parliament if
there are matters of importance relating to the judiciary or the
administration of justice, a fundamental difference and lack of
clarity on the proper constitutional position?
Lord Phillips of Worth Matravers:
We may very well be getting near that point. At the moment I am
here to answer your questions.
Q59 Bob Neill: I understand.
Lord Phillips of Worth Matravers:
Which, I would hope, in normal circumstances would be really as
far as I needed to go in making plain my position.
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