Examination of Witnesses (Questions 60-79)
RT HON
LORD PHILLIPS
OF WORTH
MATRAVERS AND
RT HON
LORD JUSTICE
THOMAS
22 MAY 2007
Q60 Bob Neill: I appreciate that.
I think you made clear that it would be a rare circumstance for
you to do that, Lord Phillips, but "getting close" is
your considered view?
Lord Phillips of Worth Matravers:
Yes.
Q61 Chairman: It would be quite extraordinary
at such an early stage in the Concordat, in the arrangements,
to have reached it so quickly.
Lord Phillips of Worth Matravers:
Well, the Concordat was concluded in very different circumstances.
Q62 Keith Vaz: Lord Chief Justice,
you must have expected that this was going to happen. The creation
of the Ministry of Justice has been widely touted over a period
of weeks and months. Did you not approach the Lord Chancellor,
before the announcement was made, in order to try and work out
a compromise with him, because obviously you have had so far very
good working relationships with the DCA?
Lord Phillips of Worth Matravers:
Yes, and I have, up to this moment, had very good working relationships
with the Lord Chancellor, for whom I have a very high regard.
Of course, he and I learned together, first of all, of the possibility
that there would be a Ministry of Justice when we read the Sunday
Telegraph, and the minute we read the Sunday Telegraph
we entered into discussions as to what the implications of a Ministry
of Justice might be.
Q63 Keith Vaz: You are telling me
you had discussions with the Lord Chancellor and the first he
knew about the possibility of the Ministry of Justice was when
he read about it in the Sunday Telegraph. Presumably you
were meeting that Sunday, were you?
Lord Phillips of Worth Matravers:
We were not meeting that Sunday, no, but we both read the Sunday
papers.
Q64 Keith Vaz: Do we know roughly
when this was?
Lord Phillips of Worth Matravers:
It is a matter of record.
Lord Justice Thomas: It was on
22 January.
Q65 Keith Vaz: So almost five months
ago?
Lord Phillips of Worth Matravers:
Yes.
Q66 Keith Vaz: But then it was not,
of course, the policy of the Government, was it?
Lord Phillips of Worth Matravers:
Four months ago.
Q67 Keith Vaz: It was not official
policy?
Lord Phillips of Worth Matravers:
No, this was just an announcement, and at that point the Lord
Chancellor had no inside information that there was going to be
a Ministry of Justice.
Q68 Keith Vaz: How do you know that?
Lord Phillips of Worth Matravers:
I am sure he would have told me.
Q69 Keith Vaz: So, as far as you
are aware, he had no knowledge of it?
Lord Phillips of Worth Matravers:
As far as I am aware, he did not and, had he known before then,
I would have expected him to share it with me.
Q70 Keith Vaz: Do you think perhaps
when the Concordat was concluded the judges should have been much
stronger in anticipating what may have been likely to happen:
because, of course, the Ministry of Justice was touted at the
last major reshuffle in 2003 when it was almost created but it
was not because of the resistance of the then Home Secretary?
Lord Phillips of Worth Matravers:
The Concordat took an enormous amount of energy to agree. I think,
in practical terms, it would have been impossible to have agreed
the Concordat on the footing: we have got to accommodate the possibility
that there is going to be a Ministry of Justice.
Q71 Keith Vaz: So nobody thought
that this might possibly happen?
Lord Phillips of Worth Matravers:
I suspect people thought it might possibly happen, but certainly
the basis upon which the Concordat was negotiated was that the
Lord Chancellor was going to part with his judicial functions,
he was going to cease to play an active role in the appointment
of judges, there was going to be a new disciplinary system, but
not that he was going to take into his ministry a vast new area
of responsibility.
Q72 Keith Vaz: In a sense, this is
exactly what the judges predicted at the time when we were discussing
the creation of the Concordat and the abolition of the Lord Chancellor's
office. Senior judges came to this Committee and warned this Committee,
and others, that the independence of the judiciary was something
that may well have been put at risk. Do you feel to some extent
this is a vindication of the points that were made at that stage?
Lord Phillips of Worth Matravers:
I would have to have a look at them, but what has happened now
has undoubtedly added to the problems that were raised at the
time of the Concordat and throws a very different light on them,
because the Minister for Justice now is going to have, I would
have thought, inevitably, as his primary concern, the very real
problems that exist with the prisons and offender management.
Q73 Keith Vaz: You have demanded
constitutional safeguards to prevent risks to judicial independence,
whether real or perceived. What concrete mechanisms, apart from
the amendment to the Concordat, do you think are necessary to
make sure that those particular safeguards are written in stone?
Lord Phillips of Worth Matravers:
There is more than one way of achieving this, but at the heart
of our immediate concerns has been the position of the Courts
Service and, as from the Concordat, there should have been a fundamental
change in the attitude of the Courts Service because up to the
time of the Constitutional Reform Act their duty was unquestionably
to the Lord Chancellor. He was the head of the judiciary and he
was also their minister. I then became the Head of the Judiciary,
and there should have been a fundamental change with the way they
went about things with me or my senior judges being intricately
involved in the decision-taking. Well, we were not, and things
were going wrong, and we are much more concerned now.
Q74 Keith Vaz: But you think that
mechanisms can be put in place, if the Government accepts it,
which would preserve the independence of the judiciary. So, if
you were going to have changes to the Concordat, this is possible
with the Government showing a bit of goodwill, because Lord Justice
Thomas says you are nearly there?
Lord Phillips of Worth Matravers:
Yes.
Lord Justice Thomas: There are
two separate things. We are nearly there on an interim agreement,
how we could sort things out, but we are poles apart on actually
what we need. It is interesting. This is a problem which has arisen
in a lot of countries and if one can take Scotland, as this Committee
knows, there is discussion there about this issue as well and
there is nothing wrong with a Ministry of Justice, there is nothing
in principle wrong with one, provided you do it properly. One
of the keys to it, we believe, is to have an autonomous court
of administration.
Q75 Keith Vaz: This is an unprecedented
situation. We have heard of government ministers criticising judges,
but judges being prepared to come up and criticise ministers in
this way is unprecedented. I do not think I have ever experienced
such anger before. Would you describe your mood as disappointed,
let down or angry?
Lord Phillips of Worth Matravers:
I am certainly not angry. I am disappointed that we are not here
with an agreement, but my fundamental attitude is one of concern,
not for the judges, but concern for the administration of justice
in this country. One talks of conflicts of interest, it is not
like conflicts of interest, but there is certainly going to be
a real conflict of demand on a single budget.
Q76 Keith Vaz: Finally, Lord Goldsmith
has suggested perhaps we should have a written constitution. Is
this now the time, with all these concerns being expressed by
yourselves, the fact that the Concordat has not been adhered to,
for a written constitution?
Lord Phillips of Worth Matravers:
I think if we started to write a constitution from A to Z, the
delay in getting in place the kind of long-term safeguards we
need would be too long. The Constitutional Reform Act itself was,
in a way, the first step in producing a written constitution.
It is now part of our constitution in writing. It may well be
that the current situation would lead to further written foundations
of our constitution, but to try to write the entire constitution,
I think, would take quite a while.
Q77 Keith Vaz: Lord Justice Thomas's
negotiations, he is heading your team, is that with Lord Falconer
or his officials?
Lord Justice Thomas: No, we have
negotiated with the officials.
Q78 Keith Vaz: So you have not had
a face-to-face negotiation session with the Lord Chancellor?
Lord Justice Thomas: We had some
early on meetings with the Lord Chancellor which led to the formation
of the working party. As to the timescale, the Ministry of Justice
was announced on 22 January, the working party was created on
19 March. It took some time to persuade people there was an issue.
We did send papers which set out what we believed needed to be
done, and at the forefront of that, which has always been our
position—
Q79 Keith Vaz: Do you not think you
should have been negotiating with him rather than officials?
Lord Justice Thomas: It was agreed
that it was best that it began with officials, and I have been
negotiating with the Permanent Secretary and we have explored
the problems and we have actually found out what the difficulties
are.
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