Examination of Witness (Questions 100-119)
RT HON JACK STRAW MP
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.
| 
