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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 987-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
The Work of the Ministry of Justice
Tuesday 24 July 2007 RT HON JACK STRAW MP Evidence heard in Public Questions 1 - 44
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 24 July 2007 Members present Rt Hon Alan Beith, in the Chair Mrs Siān C James Julie Morgan Bob Neill Mr Andrew Tyrie Keith Vaz Dr Alan Whitehead Jeremy Wright ________________ Witness: Rt Hon Jack Straw MP, Lord Chancellor and Secretary of State for Justice, gave evidence.
Chairman: Our Minister has very kindly arrived just before 7.15, we are anticipating votes at 7.30 at which point I will adjourn the Committee in the hope that members vote in what I believe will be a second vote as quickly as possible and come back, so that we can resume as soon as we are quorate. To fit that pattern I have suggested doing some questions about the constitutional reform agenda in this 15 minutes slot that we have now, but first of all I would like to congratulate our member Keith Vaz who, I am advised, is to become the Chairman of the Home Affairs Committee, which is excellent news and we most warmly congratulate him. Keith Vaz: Thank you. Chairman: Yes. Do we have any relevant interests that we want to declare. We are moving on to some justice matters. Keith Vaz: My wife holds a part-time judicial appointment. Q1 Chairman: That is about all. In that case let us begin by dealing with the constitutional reform agenda. The Green Paper was published by the Ministry of Justice but is it all the Ministry of Justice, the Green Paper, or have lots of people got fingers in this pie? Mr Straw: Am I allowed to add to those congratulations to Mr Vaz. The Ministry of Justice is our lead departmentally; the Prime Minister is leading for the Government on this as you will have noted from his statement on July 3. I chair a Cabinet committee which is now called the CN, which is on constitutional affairs, and that will be co-ordinating the overall approach. Of course, Chairman, depending on the subject, different members of the Cabinet will have a different interest, self-evidently on the issue of the future of the role of the Attorney-General, on which you produced an interesting report at the end of last week. The Attorney and the Solicitor have a key interest in that and my job is to try and ensure that collective Cabinet government operates so that we have an agreed position on that. Q2 Chairman: Is the Bill going to be a draft bill? Mr Straw: Almost certainly. There is always an issue about the speed at which people want to hear consensus. I ask not to be held to this exact timetable, but what we are looking at is producing a draft bill around the turn of the year. My own sense about this is that there is a broad consensus that the royal prerogative needs to be abolished in almost every particular and replaced by an effective parliamentary system, in some cases by statute and in other cases it can be done by resolution, but the principle that the power of government comes from Parliament and not from a long-dead monarch who claims a divine right to rule is one we need firmly to establish some time in 2008, and I would suggest that is about three or four centuries late. My own sense about this is that there is a very broad consensus for this big policy shift; however, in order that we maintain that consensus colleagues in Parliament, the public and interest groups will want to see some of the key detail on this. It will probably lead to a swifter passage for the Bill when it is in final form if we can have a degree of pre-legislative scrutiny, but I have not formed final views about this and if the Committee has a view about it I would be very pleased to hear from them. Q3 Chairman: Are you hopeful that the mistakes that were made in the last two sets of constitutional changes in terms of the process - that is, decisions announced very quickly without consultation - can be avoided? Mr Straw: Yes. This is not a machinery of government change, which was part of the difficulties there; this is an absolutely key constitutional change. As I and the Prime Minister have both said, the constitution does not belong to any one party and it is really important that we move so far as possible by consensus. It does not mean that there will not be some arguments; there is an issue still to be resolved on which actually there are different opinions amongst all the parties in respect of war powers, whether you go down the route recommended by the Constitutional Committee in the Lords, which is for a resolution-based approach to war powers, or whether you go down the approach recommended by the Public Administration Select Committee in the Commons, which is that you have a statutory-based approach, but one which obviously allows the same degree of flexibility and security to the Armed Forces as the resolution approach. These matters have got to be resolved. Q4 Mr Tyrie: Do you think powers of select committees and the authority of select committees should be enhanced, or do you think they are about right? Mr Straw: I have yet to come to a final view on that and so has the Government. We are looking at ways in which select committees in practice can have more influence; for example, a role over appointments. Although it will not be, to begin with, in quite the same category as the hearings in the Senate in the United States which is a very different system, it is an expansion of the role of select committees and, since their inception in 1979/80, select committees' role has considerably grown. I have a constant debate with myself about whether the reporting of Parliament overall has gone up or gone down, because I wrote a report about this in 1993 showing it had gone done, to much lament that all the heavy newspapers had abandoned the formal reporting of Parliament. I am struck when I listen to the radio in the morning and then read the newspapers that select committees are more and more receiving coverage, and quite properly so, because they are more effective. There are issues about whether they should be able to call for papers, persons and records and it is a hard issue this. As I think you know, Mr Tyrie, the rule is that the select committee cannot do that but ultimately it could get a resolution from the House, and famously on one occasion the Serjeant at Arms was sent to collect Mr Arthur Scargill when he was being a bit difficult. We are open to argument on that; I am not trying to evade the issue but it is not directly my responsibility. Q5 Mr Tyrie: I am trying to get a reaction, you are chairing the key committee. Mr Straw: I am chairing the key committee, it would come to me if there were a recommendation from, say, the Liaison Committee or the Procedure Committee or the Modernisation Committee. I am open to arguments on this. Q6 Mr Tyrie: Are you interested in any of the proposals which Robin Cook came forward with on this and, in addition, would you be interested in --- Mr Straw: The ones in the Clarke Committee. Q7 Mr Tyrie: I was thinking of the proposals he made for the election of members of the select committees. In particular, would you be interested in seeing chairmen of select committees elected by secret ballot of the whole House; do you think that would be of benefit to Parliament? Mr Straw: I am interested in whether we could expand the powers of select committees and my record to the House in other capacities has been about increasing the power of Parliament in respect of the executive. So we are open to argument on that and I just offer you my view about electing select committee chairpersons. Unless you had separate electoral divisions for the parties - which you would have to - the result of a ballot --- Q8 Mr Tyrie: That is well understood, that the usual channels will sort out the political colour by which each post would be filled and then after that there would be a secret ballot for those slots. Mr Straw: For all members? Q9 Mr Tyrie: Yes. Mr Straw: The downsides are more likely to outweigh the upsides. Q10 Mr Tyrie: Could you just outline what the downsides are? Mr Straw: Let me try and be clear because with great respect to Ken Clarke's paper and also to dear Robin's, it was not terribly clear. Are you proposing that as it were members of the 1922 Committee should elect the Conservative-nominated chairperson? Q11 Mr Tyrie: No. You have not read it. Mr Straw: All Members of Parliament. Q12 Mr Tyrie: I know you are new to your job, but you have not read it. That is very clear. Mr Straw: This post would be for a Liberal and that would be sorted out with the Whips, but then all members of Parliament could decide whether it is Beith or somebody else; is that correct? Q13 Mr Tyrie: Correct. Mr Straw: From amongst the Liberal Party. Q14 Mr Tyrie: Correct, and the Liberal members are at liberty to put themselves forward. Mr Straw: Yes. Chairman: There is an obvious snag, of course, which is the governing party can choose which Opposition members it would like. Q15 Mr Tyrie: But would they in a secret ballot? Mr Straw: Even if it was a secret ballot. The moment you let the governing party, which by definition has a majority, loose on electing Opposition spokespeople, particularly if it were a secret ballot, the most extraordinary results could take place. Q16 Mr Tyrie: You are confident you can control your party in a secret ballot, are you? Mr Straw: Yes. Not that I can control them, but I am quite confident about what Labour MPs would do if they were in a majority and also Conservative members and Liberal Democrat members were they in the majority. Q17 Mr Tyrie: I think you should speak for the Labour Party there. Mr Straw: I speak from experience about how I saw the Conservatives behave and all governments tend to this way; it would be a natural consequence of there being a majority. I do not think it would be in Parliament's interest, still less in backbenchers' interest. What is important is that each party operates a more democratic process in choosing select committee members and chairs than used to be the case. I can only speak here for the Labour Party but so far as the Labour Party is concerned the system is these days pretty satisfactory, though it could be improved. What happens is that the Parliamentary committee - on which there is a majority of backbenchers, note, and on which I sat as leader - a Parliamentary committee of the Labour Party invites nominations, nominations are forthcoming, people can self-nominate. There is then a discussion in the Parliamentary committee, and it is actually normally led by the backbench members, we think X rather than Y, and a recommendation is made by the Parliamentary committee to the Parliamentary party, on which every single member of the Parliamentary party can vote. In practice it is done by a broad consensus, but there will be nothing to stop there being a vote in the Parliamentary party if there were a division about it and we would probably then have a ballot. I think it is a better approach. Q18 Mr Tyrie: Do you think that it is in the interests of Parliament that the government of the day should retain virtually exclusive control of the order paper? Mr Straw: That is an interesting question. What you are proposing is that there should be a business committee; that was also in Ken Clarke's proposal and it is one that was given in evidence to the Modernisation Committee which I chaired. By saying it is an interesting proposal, I am not trying to damn it with faint praise, let me say. Q19 Mr Tyrie: You said you were open to suggestions earlier and I am throwing a few suggestions towards you. The first couple have been batted away and I am trying a third one now, Mr Straw: Can I just say about the business committee that it is an interesting proposal; it may be that over time Parliament arrives at a business committee. There is generally resistance in the Whips Office on all three sides to much change, but I would like to see more access to the order paper by backbenchers and opposition parties - the main Opposition Party has a lot of access, others have less; that was part of the purpose of the Modernisation Committee report. 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. Q40 Keith Vaz: Do you think it is too big? This is a huge area. Mr Straw: Look, there is always going to be an argument about how you divide these areas and when I was at the Home Office I had the police, asylum and immigration, as you will remember, prisons, probation and then the rest of the criminal justice system was elsewhere, and then I had this very large number of what amounted to constitutional responsibilities plus some slightly eccentric issues like falling satellites, hypnotists, the Channel Islands, the Isle of Man and the Church of England. Now the split is slightly different so you have got policing at the Home Office - because that is essentially what they are doing, they are doing internal policing and border policing - and the security service, so it has now become a classic, single-scope ministry of the interior, for the reasons that were set out by the Prime Minister. I have got the rest. Q41 Keith Vaz: Do you think that such a large department will open the question of more conflicts of interest; you have the Courts Service and the Prison Service? Mr Straw: I hope so is the answer. My view is that we should treat this as settled now. I have always been slightly sceptical about major machinery of government changes because it uses up an awful lot of effort and there are always issues about people being caught unawares, though sometimes it is unavoidable. There have been two iterations of changes in the responsibility between the Home Office and the Lord Chancellor's Department (DCA) in the last six years; one that moved constitutional affairs into what became the DCA and, secondly, moved prisons and probation and a very large amount of criminal justice work as well, so we are now leading on all of that area, on criminal justice as well as sentencing policy. My advice to any prime minister is to leave it where it is now; you have now got as it were a classic European split as well between the Ministry of Justice and the Ministry of the Interior: leave it and let us make it work. I am very comfortable with my responsibilities; of course they are substantial but it is my job to make them work and on any one day if there is a serious problem somewhere in one of the prisons which I cannot handle I will be offered career advice by colleagues on all sides of the House of Commons. Keith Vaz: Thank you, Lord Chancellor. Q42 Chairman: Let us return to Mr Vaz's earlier point. Have you got a timescale for resolving this really quite significant dispute with the senior judiciary, or are you content to remain in a situation where the Lord Chief Justice considers that there is a significant constitutional issue unresolved? That cannot be a happy state of affairs, can it? Mr Straw: I do not wish there to be any significant issues unresolved with the Lord Chief or the senior judiciary. Generally you resolve these issues by a process of intense discussion, but above all by building up confidence. I understand why the senior judiciary were concerned about what happened. Q43 Chairman: You are drifting off my question which is about the timescale. Mr Straw: I am working on it as quickly as I can, all right, alongside dealing with the prisons and the constitutional agenda. I have seen establishing effective, close and constructive relations, but respectful ones, with the senior judiciary as one of my three top priorities. Q44 Keith Vaz: Is there a timetable? Mr Straw: Have I got a timetable in my mind? The direct timetable is going to be October rather than November, but am I intending to deal with this swiftly, yes. Am I certain that I will be in exactly the same place as the senior judiciary; no, I am not, but I hope so. |