Select Committee on Constitutional Affairs Committee Minutes of Evidence

Examination of Witness (Questions 100-119)


9 OCTOBER 2008

  Q100  Chairman: You have produced specific examples. One can find a number of examples where it may be beneficial to change the law. Perhaps I may put the point more graphically in this way: is there not a sort of disease which is particularly prevalent around the time of party conferences, especially that of the government in power—whichever party it may be—to make announcements that they will do something or change the law? That has the added advantage that if other people do not think a change in the law is necessary to achieve the object they can say that this or that party voted against the proposed change in the law, which puts a premium on legislative change in criminal law, rather than sit back and see whether the problem can be solved by better use of the laws that we have?

  Mr Straw: Party politics means that there is a clash of ideas, arguments and policies so that voters are offered choices. One can reduce it to the level of an auction, or whatever is one's metaphor, but it is entirely proper that for three weeks in succession the British public are able to see what the Liberal Democrats and Labour and Conservatives Parties have on offer, and it is part of the democratic process. If I may say so, Chairman, your party is not immune to this either.

  Q101  Chairman: I made a general point.

  Mr Straw: We all try to put our best foot forward and we would be completely crazy if we did not. I plead guilty to the fact that at every party conference I have ever been to I have thought about what I would say and whether it would be of interest to the wider public rather than of interest to myself and colleagues.

  Q102  Chairman: You know what I mean: you look on the shelf and find a Bill.

  Mr Straw: If you ask what I spoke about, it will not require that much legislation. I believe it is quite important and there will probably be a consensus for it too. I do not think that it will fall into the category that was raised earlier. I think there would be real concern among the judiciary, not about the availability of closure orders or even changes to the defence of self-defence in respect of the victims of crime, but about major changes in the criminal procedure particularly in the sentencing regime, if they have not been properly thought through. I accept that we have to examine it very carefully. There is the separate but related issue that this country is unusual in not having a codified criminal procedure. That is one of the matters that I am examining. Most other countries including Commonwealth countries do have such a system. I should like to slow down the rate of change, but whether or not I shall achieve it I do not know. If we take Carter, for example, changes will emerge from that. I think that a lot of practitioners, not all, should welcome them. I believe that there must be changes in the IPP regime. You may say that we should not have started from here, but this is where we are. There may have to be changes in the structure of the Parole Board. Again, we can do that only with legislation. One change that I announced yesterday, which comes within the brackets of "quashing convictions", has been sought by the judiciary. Currently, as a result of some authorities if the judiciary is considering a referral from the Criminal Cases Review Commission in respect of a conviction which is thought potentially to be unsafe but is many years back in antiquity, as it were, it must look at the way that the trial judge came to his or her decision not on the basis of the law as it then was but as it now is, which is plainly eccentric. The judiciary has asked for that to be corrected and so that is another clause or two in the Bill.

  Q103  Robert Neill: I was very interested in your last point about codification. Perhaps I ought to declare an interest, if I did not already, as a non-practising barrister. Many of us have suffered from it. I know that is a concern both to sentencers and practitioners. The problem is not just the amount of legislation but incorporation by reference. Very often, in a sentencing exercise one may have to go through about three statutes and an SI before one works out what one is actually doing, and that is pretty elliptical. I welcome the thought that we should be prepared to look at some codification. It worked with the Theft Act which you and I probably remember from our student days. I move to another issue which is controversial but perhaps fairly straightforward. I refer to the blanket ban on voting rights for prisoners. You have had two slippages in this on the promised timescale. Where are we now? It has slipped from the original and from the revised version in March.

  Mr Straw: It continues to be under consideration. It is controversial and we continue to think about what is the appropriate level of response. There is a general view that voting rights for prisoners beyond a certain level of sentence should not be allowed. We have to take account of the decision that has been made. We are looking at the responses to the consultation.

  Q104  Robert Neill: I understand that, but I believe that the Joint Committee on Human Rights has said that it is a political hot potato, as we all appreciate, but it is not legally complex. The High Court in Northern Ireland has criticised what it sees as a slippage that is not susceptible to any reasonable explanation.

  Mr Straw: I do not think anyone has ever suggested that it is legally complex. Any of us who are half-competent could draft the appropriate change in the law quite quickly, but it begs the prior question: what is the appropriate change in the law? That is what we are thinking about.

  Robert Neill: That leads to the suggestion that this is being parked because it is a hot potato. What is your view, Lord Chancellor, now you have come into the job?

  Q105  Mr Tyrie: What is your personal view?

  Mr Straw: Were you to examine the cuttings you would find that my personal view is that I have never been convinced of the case for giving sentenced prisoners voting rights. We are, however, all subject to the law and account must be taken of the judgments of the law and work from there. Since you ask the question, Mr Tyrie, if you undertake an archaeological dig into the cuttings you will find one from 1993 or 1994 where at its conference the Liberal Party proposed full voting rights for all convicted prisoners, including the most heinous murderers. I found it necessary to offer a different view on behalf of my party.

  Q106  Robert Neill: I think I would agree with you on that matter. Given there is a delay, which raises eyebrows, we are in a situation where on the face of it we are in persistent breach. Whether or not we like that decision, it goes well beyond the margin of appreciation.

  Mr Straw: I do not accept that we are in persistent breach. We are giving consideration to the results of this judgment. This country is pretty good at responding to such judgments, but we have had to take time to think about it.

  Q107  Robert Neill: Given that it will take time, have you factored in any risk that the time for consideration gives rise to a greater risk of some action being brought against the UK for damages, costs and so on?

  Mr Straw: We have to make a decision within an acceptable timescale. I am sorry to be slightly vague about it, but I am certainly aware of the problem.

  Q108  Robert Neill: What was the problem with the timescale that your predecessor, Lord Falconer, gave us in March?

  Mr Straw: That is an unknown unknown.

  Chairman: It must have been you who changed it.

  Q109  Robert Neill: You have put Lord Falconer into an unknown unknown.

  Mr Straw: I cannot answer the question because I do not know the answer to it. I did not even know that I needed to be aware of the question, but since I took on the job I am aware that it is not a drafting problem but a judgment problem.

  Q110  Robert Neill: Another problem that you have taken on is the situation with regard to relations with the judiciary. When you last spoke to us you said that the discussions were constructive. Equally, Lord Phillips stressed the need for some urgency in reaching a resolution when he spoke to the Commonwealth Law Conference in Kenya in September. Whereabouts are we now?

  Mr Straw: Improving relations with the judiciary is not an event; it is a continuing process. I have three priorities in this job. Without putting them in any order, the first has been to deal with the situation in prisons; the second has been the constitutional agenda of the Government; and the third is the relationship with the judiciary, which I take extremely seriously. In respect of that I have clear statutory responsibilities. I have been engaged in many discussions with the senior judiciary. I have also spent time with them visiting the court system, and I continue to do so, to try to identify issues of concern which I then seek to resolve. One of the areas is the operation of the Judicial Appointments Commission. There is very considerable concern not just on the part of the senior judiciary but the judiciary at every level about the delays in the new system. I am also concerned about that as are Usha Prashar and Clare Pelham of the JAC itself. Following a recent meeting with the senior judiciary, I am following up a number of concerns about what has been described as an over-engineered system. For sure, it is over-engineered. Meanwhile, where I can I have taken unilateral decisions myself in those areas of the appointment process to cut down my involvement. Parts of my involvement are dictated by the Constitutional Reform Act 2005, but in other cases I have reduced my involvement. I have set myself the target to turn round all papers in respect of judicial appointments optimally within 24 hours or a weekend and in most cases I succeed in that. I have cut down delays at my end. I ask questions if necessary. In one recent case although I turned round a file overnight something happened between the office of the Lord Chief Justice and mine between the end of July and late September. Those delays in the system are not just irritants but can undermine the delivery of justice and I am very clear that we have to resolve them. Another important area is the relationship between the Courts Service and the Ministry of Justice. Currently, a review of that relationship is taking place under a senior official in my department and an experienced district judge. That review looks at the options available and different architecture and those range from an even closer relationship between my department and the HMCS to a relationship with not just an NDPB but one which is almost entirely at arm's length.

  Q111  Robert Neill: All options are open?

  Mr Straw: Yes. That follows the concern of Lord Phillips and his colleagues about the relationship with HMCS. I have been trying to show by example that it is possible to have a Lord Chancellor in the Commons who, far from interfering with the work of the judiciary or undermining its reputation, seeks both to reinforce its independence and enhance its reputation. As part of that, in my main speech at conference I included a passage which put on record—bear in mind that one had only 10 minutes to do it—the fact that we had one of the finest judiciaries in the world with unrivalled integrity, independence and skill. What people perhaps do not realise is that partly as a consequence of that Britain is fast becoming the legal centre of choice of the world with legal services now contributing 2% of GDP. In 80% of cases in the Commercial Court one or other of the parties is foreign based. I have been talking not just to the senior judiciary but practitioners on the ground about the things that irritate them in the way particularly government and to a degree Parliament operate. It is not just too much legislation but legislation which is not properly thought through, or there is consultation which does not then produce anything. It seems to me that whilst Parliament must decide these matters we ought to take very seriously the views of senior practitioners, for example in relation to quashing convictions. I have done so.

  Q112  Robert Neill: I understand that the relationship with the judiciary is a developing process, but do you have any thoughts as to how long you are prepared to give the review on structure?

  Mr Straw: Obviously, there will be an event in terms of bringing that to a conclusion. That is under way at the moment and it will not drift. It is in everybody's interest to try to resolve that discrete issue. Another area is judicial appointments. We raised the question of judicial appointments in The Governance of Britain Green Paper published in July. There is currently a consultation document about that in draft. My default setting is to leave things where they are because the system was changed only a couple of years ago, but if you are looking at recalibrating the constitution as a whole it is right that you should look at that issue. That has been delayed because I asked for it to be redrafted to include a much better analysis of the complexity as well as necessity of the concept of the separation of powers and a lot more information about overseas examples from parallel OECD countries. That is what we are doing.

  Q113  Robert Neill: Does that take on board the discussions that you are having with practitioners?

  Mr Straw: That is a separate piece of work, but Lord Phillips in his speech to the Commonwealth judiciary in Kenya referred to it and the fact that it raised the possibility of Parliament being involved. I think that is entirely proper.

  Q114  Robert Neill: They are separate but linking, are they not?

  Mr Straw: Yes, it should be, and that is where it has got to.

  Q115  Chairman: Will there be some sort of statement or outcome? Will there be a sort of peace in our time on the steps of the Royal Courts of Justice?

  Mr Straw: It is for others to judge, but it is the process of the relationship between the Lord Chancellor and his department and the senior judiciary. Given the two rather abrupt sets of events—the announcement in 2003, I think, of the end of the post of Lord Chancellor and the creation of a supreme court, those changes ending decades, if not centuries, of practice in a particular kind of relationship—and the announcement of the new Ministry of Justice, the calm in that relationship has understandably been jolted. The concern of the judiciary, including the very senior level, that it did not have much notice of these changes is also very understandable.

  Q116  Chairman: That is putting it mildly.

  Mr Straw: I am perfectly happy to repeat this part of what I said to them. I said that after the process of change, which started back in 2001 with the transfer of what was the constitutional part of the Home Office to the then Lord Chancellor's Department, the relationship between the slimmed down Home Office which just concentrated on law enforcement, the Ministry of Justice and the Law Officers Department would now be a settled one. I certainly do not believe there will be any appetite for changing the balance between the Home Office and the Ministry of Justice for quite a long time to come.

  Q117  Chairman: I do not want to provoke you into a long answer; I just want to get clear that at some stage in the process there will no longer be a situation on the record where the senior judges believe that there is a situation that needs to be resolved fairly quickly.

  Mr Straw: It is not in my interest to have that on the record, as it were and I am working very hard to resolve it. I do not think anyone takes it to mean that there will be absolute agreement on everything, but I think there will be absolute understanding on everything.

  Q118  Mr Tyrie: In a moment I should like to give you an opportunity to say something about the constitutional reform agenda. First, I should like to put a specific question. We heard a lot of speculation about whether we would have a general election which was finally been brought to an end by the Prime Minister a week ago. Were you consulted about the constitutional implications of holding an early general election?

  Mr Straw: What do you mean by "constitutional implications"?

  Q119  Mr Tyrie: It is generally accepted that to hold an early election requires a particular explanation, a constitutional one, and that to base it on anything other than a constitutional explanation is an abuse of democracy. Those points were debated and discussed in 1974 and it was a criticism made by the Labour Government of the Conservative Government in the period 1991-92.

  Mr Straw: The answer is no because I question the assumption behind the question.

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Prepared 26 November 2008