Examination of Witnesses (Questions 80-99)
RT HON
LORD PHILLIPS
OF WORTH
MATRAVERS AND
RT HON
LORD JUSTICE
THOMAS
22 MAY 2007
Q80 Chairman: You used the expression
"long-term", but we are now in the interim and we have
not got a proper basis for running the interim period. Has not
the long-term become relatively urgent?
Lord Justice Thomas: I think if
we look at the experience of the different ways you can find a
long-term solution; it would need someone to look at it, for Parliament
to have a view on it, the Government to have a view and for us
to have a view on it. It is something that ought to be capable
of being done, but, I am sorry to sound slightly pessimistic,
these things always take longer than you first think. There would
be no reason why, if we had a proper inquiry, it could not be
got underway very quickly and we could not report by the end of
the year. Looking at the models, there is plenty of research out
there. There is a very good report, for example, on the position
in Canada where exactly all of these issues have been canvassed,
so you can see what the range of options are.
Q81 Mr Tyrie: I want to come back
on the point you made, Lord Justice Thomas, when you said it took
some time to persuade the department that there was an issue that
needed discussing. I would like you to speculate on that in relation
to the fact that you both discovered about this, I gather, from
the Sunday Telegraph and whether you think this is a good
way in which decisions should be taken, whether you think that
adequate steps have been taken to think this through?
Lord Justice Thomas: I have always
been told never to speculate, but I will draw an analogy with
what happened in 1919, which is, I think, about the first time
a Ministry of Justice was thought of. A proper inquiry was set
up and a White Paper produced with people such as Viscount Haldane
and then he recommended something. It never happened. As Mr Vaz
has said, the Ministry of Justice has been on the cards. It has
been on the cards a very, very long time, and, I may be wrong,
it may be before 1919, but I have read the 1919 report. I am not
going to comment further.
Q82 Mr Tyrie: Do you have anything
to add, Lord Chief Justice?
Lord Phillips of Worth Matravers:
When we first learnt that a Ministry of Justice was being mooted,
we did make it quite plain that we thought the right way to go
about it was to have in-depth discussions first and to form the
Ministry of Justice afterwards.
Q83 Mr Tyrie: Would you have expected
a Lord Chancellor to have had an opportunity to think it through
and make points on behalf of the judiciary?
Lord Phillips of Worth Matravers:
You mean an old-fashioned Lord Chancellor?
Q84 Mr Tyrie: An old-fashioned Lord
Chancellor?
Lord Phillips of Worth Matravers:
An old-fashioned Lord Chancellor would have been, from the outset,
at the very heart of what was being proposed.
Q85 Mr Tyrie: So, the crisis that
we have is a consequence partly perhaps of that early reform.
I think you are describing a constitutional crisis, are you not?
Lord Phillips of Worth Matravers:
I do not think we are quite at the stage where I am saying—
Q86 Mr Tyrie: A serious constitutional
problem.
Lord Phillips of Worth Matravers:
Serious constitutional problem.
Q87 Mr Tyrie: We will stick with
that.
Lord Phillips of Worth Matravers:
One might say it might not have come about in the same way if
one had not first had the Constitutional Reform Act.
Q88 Mr Tyrie: Because I think it
is universally agreed that that decision was rushed?
Lord Phillips of Worth Matravers:
It was a fairly speedy announcement, that one, yes.
Q89 Chairman: Even the Lord Chancellor
has acknowledged that!
Lord Phillips of Worth Matravers:
Indeed.
Q90 Mr Tyrie: So, what we have is
a rushed decision having inadvertent consequences creating further
poor decisions?
Lord Phillips of Worth Matravers:
Yes, that is right. As far as one can see from what one has read,
the impetus for this decision was an anxiety on the part of the
Home Secretary to clear the decks so that he could really make
a concerted attack on terrorism. It was not a decision that was
taken because it would be an extremely good idea to have a Ministry
of Justice.
Q91 Julie Morgan: To turn to the
budget, could you describe the way the courts' budget is currently
set and how much informal judicial involvement is there in this
process at the moment?
Lord Phillips of Worth Matravers:
John, would you like to have a go at that? I suspect you will
be better at it.
Lord Justice Thomas: Yes, subject
to correction from officials who are sitting behind me, and I
may get it wrong. What has happened is that the Courts Service
used to have proper budget models some time ago. Those have not
been updated, as I understand it, though they currently are undergoing
updating. You must remember that in 2003 the decision was made
to bring the magistrates' courts in, which had an entirely different
budgetary set-up, and, as I understand it, the cost models for
the way in which we run the magistrates' court system are extraordinarily
rudimentary. So, the way the budget is set at present, though
big efforts are being made to try and put this right, is to take
what you think it cost last year, add a little bit for improvement
and then try and take a bit off for efficiency and then you look
at head count. It is not, in our view, a very satisfactory way
of funding the court system. That budget is then put to the central
department—the last budget was put to the Department for
Constitutional Affairs—they then look at it and then negotiate
with the Treasury. That is how it worked. The Treasury would make
their decision, back would come a global amount and then the Minister,
looking at his priorities, would send the money back according
to his settlement, and if you have a generous settlement, you
might get it in full, if you do not have such a generous settlement,
you get a cut. I hope that is accurate, but I am sure there are
people who know a great deal more about it behind me who will
correct me if I have got it wrong.
Q92 Julie Morgan: Is there any judicial
involvement in it?
Lord Justice Thomas: The judicial
involvement in it has been to say what has been going on, to discuss
what the broad figures are, but detailed judicial involvement
has proved very difficult. It was more extensive, in my experience,
in the spending round that took place in 2004, where with the
then Finance Director of the DCA and staff we had very detailed
discussions and we looked at policies in a great deal of detail.
This time round we were involved vastly less.
Lord Phillips of Worth Matravers:
The Concordat dealt with this. It said: "In Spending Review
years the Director General, Finance and the Permanent Secretary
will meet the Lord Chief Justice or his representative when the
Departmental bid and the Public Service Agreement is being worked
up, and then again before final departmental allocations are made
after the settlement." The latter stage was overlooked, and
that was, I think, symptomatic of an attitude on the part of the
DCA that life goes on more or less as before: we are in charge,
we take the decisions, we, of course, must have regard to the
views of the judges, but the views of the judges were not considered
so central to what was going to happen that they automatically
said: "Before we make any decisions on allocation we must
discuss this with the Lord Chief Justice or his senior judges."
Q93 Julie Morgan: How do you think
the judges should be more involved?
Lord Phillips of Worth Matravers:
We ought to be involved in discussions in relation to, first of
all, what resources are going to be needed, discussions with the
Courts Service and the department, and, secondly, involved in
discussions as to how resources are going to be allocated before
decisions are taken, not informed after they have been taken in
principle in case we have any comments to make.
Q94 Julie Morgan: Obviously the parliamentary
accountability for the setting of the courts' budget must be through
the Ministry of Justice, otherwise there will not be any accountability.
Would you agree with that?
Lord Justice Thomas: If I can
answer that. Obviously, ultimately, it is Parliament who makes
the allocations and approves what the Treasury does, and this
problem is one that occurs in many countries. What we would be
concerned to see is that there is a proper means of setting the
budget. The Chief Executive Officer of HMCS is, I believe, an
accounting officer, so he can account to Parliament, and in any
of the various models that have been looked at in other countries
there are proper arrangements for accountability to Parliament.
So, yes, at present the Ministry has to be accountable, but if
you had a different form of Courts Service agency, there are lots
of different models of accountability that could make sure that
public money is probably accounted for to Parliament. I do not
believe this is a problem.
Q95 Chairman: Is there not an alternative
danger that you have very strong parliamentary pressure on a spokesman
for the judiciary, whether it is yourself or the Lord Chief Justice,
for, let us say, overspending in the court system or inefficient
use of resources, and that that political pressure would fall
upon you if the Ministry of Justice was not accounting to Parliament
for your expenditure?
Lord Phillips of Worth Matravers:
I think there is some validity in that point. Accountability for
my part is something that I am considering at the moment with
the senior judges, because it seems to me that if I say that I
have primary responsibility for the administration of justice
in this country, there has got to be some form of accountability.
Lord Justice Thomas: The issue
of accountability is one of these issues that there are different
ways of addressing it. The dangers that you have spoken of have
been considered in other countries and solutions found. It is
one of those issues that we would love to look at but we cannot
because that is something that an inquiry is needed to do.
Q96 Jeremy Wright: Staying with the
budget and dealing with another of your concerns that the Lord
Chancellor does not want to talk about, the issue of ring-fencing
the Courts Service budget: as we understand it, Lord Justice Thomas,
you have talked about the possibility, notwithstanding the Lord
Chancellor will not consider an entire ring-fencing of the Courts
Service budget, there may be scope for a partial ring-fencing
of that budget. Can you explain a little more about what you have
in mind?
Lord Justice Thomas: The really
crucial matter, I think, is setting the budget. Because we operate
still in this country on annual budgets, you do need to get the
budget set correctly and then you need to make certain that the
budget is not, unless there is a catastrophe, affected so you
can have proper planning through the year. I think we have always
said that there may be occasions where actually, if there is a
crisis, money has to come back. It would be foolish and impractical
not to take that view. But if that is to happen, there needs to
be a process which makes it clear what is happening, and if the
judiciary are unhappy with it because they think it will seriously
adversely affect the administration of justice for the public,
then there ought to be a proper mechanism for disputing it and,
if the worst came to the worst, the Lord Chief Justice coming
to Parliament and explaining why. So, the question of the mechanism
is something that I think can be achieved.
Q97 Jeremy Wright: Is not the problem
that in relation to the extra elements of the Ministry of Justice's
new portfolio, particularly the prison system, there is a crisis
every other week, or so it seems?
Lord Justice Thomas: Yes.
Q98 Jeremy Wright: And the danger
of, therefore, the need for the transfer of funds away from the
Courts Service budget and towards the prison system is a very
real one, is it not?
Lord Justice Thomas: Yes.
Q99 Jeremy Wright: Is the answer
to that, in your view, that whereas it may be possible and desirable
to have the flexibility to transfer funds from the Courts Service
to the Legal Aid budget and back again, for example, it would
not be desirable to permit that free flow of funds to and from
the Prison Service budget?
Lord Justice Thomas: I think it
is undesirable to permit the free flow anyway, because it stops
proper business planning. The courts are run as an operation that
has a large number of fixed costs and, if you are to run it properly,
to get good and experienced staff you need proper planning and
not a budget that is subject to that freeflow. I would not accept
that it goes into the Legal Aid. The problem with the Legal Aid
and Prison Service is the same. They are both demand-led budgets
without a free flow into them. The problem with Legal Aid is well
understood, but it is exactly the same problem with the prisons,
that it is demand-led but the amount of funds made available appears
to be capped.
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