Examination of Witness (Questions 20-39)
RT HON
JACK STRAW
MP
24 JULY 2007
Q20 Chairman: We are getting very
close to the vote; it might just give you an opportunity, however,
in this last moment to explain why you made a statement yesterday
headed "Emoluments", the full import of which was "I
will make a statement on this matter in due course".
Mr Straw: It was put down prematurely
is the answer, and it was not ready, it is as simple as that,
so there we are. It is very straightforward, but once I realised
the thing was down and I had not got the answer ready I called
the clerk and said what do I do—since written ministerial
statements were my idea, going back three or four years, I thought
I ought to stick to the rules. He said to me "You have to
make a statement so you had better make a statement."
Chairman: Thank you for that. We will
resume as soon after the second division as members can manage
and we are quorate.
The Committee suspended from 7.30 pm to 7.55
pm for a division in the House.
Q21 Keith Vaz: Lord Chancellor, at the
judges' dinner on 17 July, when you attended with your white bow-tie
as I remember, you made some interesting comments about judicial
appointments. You talked about limiting even further the involvement
of yourself as Lord Chancellor and Secretary of State for Justice
in the appointments process; how do you plan to do that?
Mr Straw: I am not planning any
amendment in the short term to the arrangements set out in the
Constitutional Reform Act 2005; there is a separate issue about
the future process for some of those senior appointments which
is mentioned in the Governance of Britain Green Paper and
the Prime Minister's statement on July 3, so I obviously observe
what is in that Act. What I have been anxious to do is to ensure
that the process is as speedy and as effective as possible.
Q22 Keith Vaz: Is that a criticism
of the current process?
Mr Straw: The process has only
been going since April of last year, but where you shift from
a process which had been established for decades and decades to
a new system, much more open—with an Appointments Commission,
chaired, I am very pleased to say, by Usha Prashar, who is very
distinguished and experienced, and the other people on the Commission
are also very good—it will take time for it to bed in and
I know that you particularly, Mr Vaz, have been concerned about
the time the process is taking, and other matters, and I understand
that and so does the Lord Chief Justice. I have judged that my
first priority was to assist in getting the process going as quickly
as possible. Of course I have certain reserved powers within the
Act and I am ready to use them, as is the Lord Chief Justice,
but for the vast bulk of appointments first of all it is not my
statutory role; secondly, it would be quite inappropriate for
me to try and second-guess appointments made by the Commission.
Q23 Keith Vaz: Absolutely, so when
they give you the recommendations you will accept whatever they
put before you.
Mr Straw: As I say, they are looked
at, including by the Department, on the basis of my statutory
powers. As you know, there are provisions for me to approve trawls
for appointments and then for me to agree the appointments.
Q24 Keith Vaz: What I am trying to
get at is that as a result of your speech there is nothing new
in the sense that you are not limiting further your involvement.
Mr Straw: I am not abandoning
any of the discretion, which is limited in any event, within the
Act. I have not operated the old system, whereas Charlie Falconer
obviously had, though he was in a different position. As I also
said in my speech, I think, but I certainly said elsewhere, I
am very conscious of the fact that precisely because I am the
first Lord Chancellor in the Commons and I am an elected politician,
I have to be seen to be preserving the independence of the judiciary
and ensuring an arm's length relationship with them, to a degree
that was not necessary with the previous Lord Chancellors because
they were in the unelected House and everybody knew what their
position was.
Q25 Keith Vaz: Two problems arise
out of that, firstly the problem of the involvement of Parliament.
We have moved to a system where one man, on recommendations no
doubt, makes the appointments, i.e. your predecessor as Lord Chancellor,
to a system where a committee now makes these appointments. Where
is Parliament's role in all this because it seems that neither
the Prime Minister nor yourself are particularly in favour of
confirmation hearings, so is it not going to be an elite choosing
another elite, the judges choosing other judges?
Mr Straw: First of all the new
system in that Act, the 2005 Act, is much better than the old
system and it will be borne in mind that well within the twentieth
century the previous system, certainly up to the last war, operated
in a very cosy way and there was no real distinction between political
appointments and judicial ones. The most obvious example of that
was that Attorneys-General, elected politicians, almost always
ended up as Lord Chief Justices or senior members of the judiciary.
Q26 Keith Vaz: Yes, but that was
hundreds of year ago.
Mr Straw: No, it was not hundreds
of years ago.
Q27 Keith Vaz: When was the last
time that happened then?
Mr Straw: I think in the late
Thirties.
Q28 Keith Vaz: Eighty years ago then.
Mr Straw: When I was at the Bar
there was considerable concern about the murky or opaque nature
of judicial appointments and also of the process by which people
could take silk. People may have been willing to tolerate it then
and that was only 30 years ago; they are not willing to tolerate
it now. The new process is much better and in practice there is
no way that one individual, the Lord Chancellor, can make the
myriad of appointments that they do. Can I just deal with this
issue of the role of Parliament? Parliament continues to have
a quite fundamental role in respect of the position of judges.
Q29 Keith Vaz: What is the role?
Mr Straw: First of all, it is
Parliament and Parliament alone which can determine whether to
dismiss a judge, and this is a far from trivial point. Yes, they
are independent, and of course they have to be, and we have to
preserve their integrity, but ultimately the judiciary, as with
the legislature and the executive, are all servants of the people.
Q30 Keith Vaz: But you are not in
favour of confirmation hearings.
Mr Straw: No. I am open to argument
about this, but they will only arise in respect of the very senior
judiciary, it does not arise in respect of others. Leave aside
the United States where they now have an over-politicised senior
judiciary and, as I spelt out in my speech, many problems amongst
the main judiciary; practices vary in other European countries.
If we were to move to that position, for example in respect of
members of the Supreme Court, we would have to ensure that any
change enjoyed the confidence of the judiciary and that it was
not going to lead to a direct politicisation. At the moment, notwithstanding
occasional noises-off, there is a pretty clear understanding by
the judiciary and amongst Parliament about what they do and what
we do, and they do not see their job as making law.
Q31 Keith Vaz: Yes. Thank you for
that, I appreciate what you have said. One final point about this:
it sounds great, the independence of the Judicial Appointments
Commission, but in reality of course the process may have changed
but the people are by and large the same; 75% of those currently
in the Judicial Appointments Commission are employees of yours,
seconded from the Ministry of Justice. When are they really going
to be independent, because they are clearly not independent, it
is the same people. Maybe the man at the top has changed but the
people doing the interviews and the recommendations are exactly
the same as they were two years ago.
Mr Straw: The man at the top has
changed in every particular that I can think of—gender,
ethnic background and experience, so in place of the Lord Chancellor—man—you
have Usha Prashar—woman—with quite different experience
and who is very independent. It is inevitable that if you are
going to have, to coin a phrase, a smooth and orderly transition
from the previous arrangement to this arrangement, you would have
to have officials involved who are experienced.
Q32 Keith Vaz: Why? Why can you not
start from scratch because this Committee has already uncovered
so many mistakes made in respect of the previous appointments;
when are you going to tell the JAC it is time they started to
recruit their own staff?
Mr Straw: If that is the recommendation
from this Committee, if you are anticipating—
Q33 Keith Vaz: It is a question.
Mr Straw: If you are anticipating
your report, Mr Vaz, before you depart for higher things, I take
note of that. I only say that the people who are doing this job
are pretty experienced; if they make mistakes I will take note
of that. If you have people who have no experience I am sure there
would be many more mistakes. Everybody recognises that we need
to speed the system up, we need not to be quite so literal in
the interpretation of the different stages set out in the 2005
Act, and I have discussed this with Usha Prashar and I will be
discussing it with her colleagues as well. It is a pretty distinguished
panel; I would say it is not perfect but it is a lot better. On
an issue which is of great concern to you and to me, which is
about a better gender balance and a better ethnic balance within
the judiciary, the current pool is people of my age and a bit
younger. People I did Bar finals with I now see coming through
and if they were very bright they are now on the High Court bench
or in the Court of Appeal. That pool, the early Seventies pool,
was mainly white and it was mainly male, but one of the striking
things, about solicitors as well but about the Bar, is that it
has actually been better, certainly than the civil service.
Q34 Keith Vaz: You will continue
to set out the vision, you will continue to do what Charlie Falconer
did when he was there to try and push them forward.
Mr Straw: I will push them forward
at the Bar overall for balance, of course, and I will monitor
that—that is a very important part of my role. What I am
reluctant to do is to second-guess the decisions of the Commission
at the point where they, having looked at a shortlist, say we
will have X rather than Y. It would be quite inappropriate for
me to say I happen to know that bod; some of the people I do know
but it would be a scandal if I were to say I am going to use the
clause in that section of the Act to get my pal in.
Q35 Chairman: Your pal from the 1970s
intake.
Mr Straw: Yes; very distinguished
it was too.
Q36 Keith Vaz: Can I move on, finally,
to questions concerning the relationships with the judiciary and
the negotiations that are ongoing with them concerning the Concordat
and the independence of the judiciary because of course everyone
knows they were all pretty shocked by the decision to set up the
Ministry of Justice; nobody consulted the Lord Chief Justice.
When we last had your predecessor before us he was very reluctant
to engage in person to person hand combat with the Lord Chief
Justice. You have managed to see the Lord Chief Justice and have
a chat about these things.
Mr Straw: I have had three meetings
with the Lord Chief Justice and one with his senior colleagues
as well—those are formal meetings—and I have met him
and his colleagues informally on a number of other occasions,
so there has been a lot of intense discussion or, as we say in
diplomatic speak, in the margin of other meetings; today at another
meeting about the criminal justice system I was able to catch
a word with two senior members of the judiciary about matters
which directly affect them as judges rather than contributors.
Q37 Keith Vaz: Are we making progress;
are we making progress on the issue of ring-fencing of budgets
and the comprehensive review of the status of the Courts Service?
Mr Straw: The discussions are
constructive—although I am just offering you my view of
the discussions—or I would like to think they were. I have
said to the Lord Chief and the senior judiciary that I do not
want to make decisions about these issues. I understand their
concerns about ring-fencing and about maybe moving the Court Service
onto a different basis, but I have yet to be persuaded that either
would either be feasible in the short term or in their interests,
but I want to look at this in more detail.
Q38 Keith Vaz: You left the Home
Office, the Home Office was split; you have now got a department
that is almost as big if not bigger.
Mr Straw: It is bigger.
Q39 Keith Vaz: Is it too big now,
looking at all the bits? Prisons have followed you from the Home
Office.
Mr Straw: I was abroad happily.
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