Select Committee on Constitution Sixth Report


Letter from the Lord Chief Justice, Lord Phillips of Worth Matravers, to Circuit judges, 19 June 2006

On behalf of the senior judiciary I want to share with you our grave concern at recent media coverage of sentencing issues.

The judiciary—and circuit judges in particular—have unfairly borne the brunt of this criticism. As we all know, much of it is unbalanced and plainly wrong, and the principles which judges are required to apply when making their sentencing decisions have been ignored. We have great sympathy for those judges who individually have been singled out for intemperate personal attack.

The President of the Queen's Bench Division and I … have been addressing and continue to address these issues with the Lord Chancellor. Some of you will have seen his answers during the Question Time programme on Wednesday evening, and others will have heard his interview on the Today programme on Thursday morning. These will have contributed to an improved public understanding of the issues related to sentencing and we are grateful to him for putting the record straight.

It is quite legitimate for the media and commentators to criticise any particular sentence and the judiciary recognise and accept that. But they are entitled to expect such criticism to be accurate and objective. Personal and unmerited attacks on the characters of individual judges can only damage the public's understanding of, and confidence in, the criminal justice system as a whole. We will continue to do what we can to counter such unfair and damaging criticism.

I and the senior judiciary would like to reassure you that judges who have been the subject of unfounded media criticism have our sympathy and full support.

Further Paper by Professor Anthony Bradley


This paper has been written to consider whether and to what extent the content of my earlier paper, "The new constitutional relationship between the judiciary, Government and Parliament", has been affected by the Government's decision to create the Ministry of Justice. While that decision is of constitutional significance, and it affects the relationship between the Government and the judiciary that resulted from the Constitutional Reform Act 2005, many of the expressed concerns are about the practical consequences of the decision, and there is no clear argument to be made against the proposed Ministry of Justice on constitutional grounds. If adequate assurances are given by the Government that meet these concerns, the assurances should be placed on the public record.

1. The Committee have given me the opportunity to consider whether changes or additions are needed to my paper, "The new constitutional relationship between the judiciary, Government and Parliament", in light of the Government's decision, announced on 29 March 2007, to move responsibility for prisons and the probation service from the Home Office to the Department for Constitutional Affairs (to be re-named the Ministry of Justice), the changes to take effect on 9 May 2007.

2. The main aim of that earlier paper was to discuss the structure of relations between the judiciary, on the one hand, and Government and Parliament, on the other, resulting from the Constitutional Reform Act 2005. While the paper assumed that the ministerial and departmental arrangements resulting from that Act would continue, it did not discuss the manner in which the new statutory functions of the Lord Chancellor would be performed within the Department for Constitutional Affairs. However, the creation of a Ministry of Justice and the range of functions of the Ministry will have implications for the position of the courts and the judiciary that the Committee may wish to address.

3. The idea of a Ministry of Justice has received attention at various times since it was recommended by the Haldane Report on the machinery of government in 1918.[166] Proposals for such a Ministry in the years since then were usually blocked by the argument that this was not necessary (or not desirable) because of the office of Lord Chancellor, whose responsibilities were both executive and judicial in character. Fears were expressed that the judiciary would be prejudiced were their affairs to be handled by an ordinary Whitehall department. The idea of a Ministry of Justice encountered opposition from the Home Office, because of the latter's historic responsibility for criminal justice and criminal law. Indeed, the difficulty of how to locate responsibility in government for the criminal justice system (including criminal law) has probably been the decisive factor that explains why a Ministry of Justice for England and Wales has not been created until now.

4. The Constitutional Reform Act 2005 both brought to an end the historic combination of the Lord Chancellor's judicial and executive functions, and maintained the office in being but with defined statutory responsibilities relating to the judiciary. It is significant that the Act gave special protection to these responsibilities by excluding them from the customary "machinery of government" power of the Prime Minister to re-organise Whitehall departments; in law, this power is exercised by means of Orders in Council under the Ministers of the Crown Act 1975. Primary legislation would be needed if the office of Lord Chancellor in its new form were to be abolished or the powers and duties of that office were to be transferred. But the office of Secretary of State for Constitutional Affairs is not so protected, and primary legislation is not needed to give effect to the Government's recent decision. The office of Lord Chancellor will continue in being, as required by the 2005 Act, but it will be held with the position of Secretary of State for Justice, rather than that of Secretary of State for Constitutional Affairs.

5. There was certainly a case to be made in 2003 for the decision then taken to replace the former Lord Chancellor's Department by the Department for Constitutional Affairs (despite the inept way in which the re-organisation was handled). There is also now a case to be made for re-naming the department and for extending its responsibilities for criminal justice. But it is unfortunate that the immediate cause of the Government's decision appears to have been concern about the administrative and political problems of the Home Office, rather than a long-established and fully reasoned commitment to creating a Ministry of Justice. It has long been the practice in British government for departmental structure to change in response to political judgments made by the Prime Minister and in response to changing political circumstances. A further instance of this practice was seen with the decision announced on 29 March 2007. Whereas departments in Whitehall and their ministers must accept that their tasks may be re-shuffled at short notice, the added factor here is the impact of the re-organisation on the judiciary and the courts. At the least, it would appear that there was a lack of full consultation with the judiciary before the decision was announced. Arguably, private communication involving the Lord Chief Justice and his most senior colleagues is not sufficient in a matter that may be seen as affecting the constitutional position of the courts, so recently established by the 2005 Act. A fuller and more open consultation could, for instance, have confirmed that the changes do not in fact pose a threat to that position.

6. To move on from the question of consultation, while it will be a novelty in British government to have a Ministry of Justice by that name, I do not consider that there is a case to be made against such a ministry based on fears that this might endanger the position of the judiciary. Reasons for this view include the fact that many countries in western Europe have a Ministry of Justice, as indeed do numerous Commonwealth countries (where the positions of Minister of Justice and Attorney-General may be held together, as for instance in New Zealand). Moreover, the relationship between judiciary and executive was placed on a new statutory basis in 2005. In my view, the essential features of that relationship are not affected by the new departmental structure.[167] Indeed, but for the problem presented by the Home Office's responsibility for criminal justice, "Ministry of Justice" would have been a suitable name for what in 2003 was created as the Department for Constitutional Affairs.

7. What may have caused the greatest current concern is the placing of responsibility for prisons and the probation service within the Ministry of Justice. These matters are of an operational kind that distinguishes them from responsibility for criminal law, relations with the courts and so on.[168] The case for moving these services to the Ministry of Justice appears in part to be the wish to enable the Home Office's remit to be re-focussed, and in part to enable there to be a "joined-up" system of criminal justice. The points made for questioning that approach include the following: (a) the Minister for Justice, who will also hold the position of Lord Chancellor, will in all probability be appointed from the House of Commons, and may have no legal qualifications; (b) resources available to the courts and judicial system will suffer if within the same department they are competing with funding for prisons; (c) administration of prisons will call for an approach that is incompatible with the leading role played by the Ministry of Justice in respect of human rights legislation, and will erode the Lord Chancellor's statutory commitment to maintain the rule of law; (d) the Ministry may wish for political reasons to influence judicial practice on sentencing (for example, to reduce the prison population), thus undermining the statutory commitment to maintain judicial independence; (e) the ministerial attention that will need to be given to the prisons may as a practical matter cause less time to be spent on other aspects of the Ministry's remit. Concerns of this kind about the future operation of the new arrangements are of a practical kind and are difficult to assess by constitutional criteria.

8. Evidence dealing with these matters has been given by the Lord Chancellor (Lord Falconer) to committees in the House of Commons.[169] Thereafter, he assured the House that the Lord Chief Justice, Lord Phillips, had made it clear "that the senior judiciary have no objections in principle to the creation of a Ministry of Justice, subject to the provision of safeguards to protect the independent administration of justice".[170] However, Lord Woolf has given evidence about his concerns to the Home Affairs Committee,[171] in the course of which, before expressing reservations about the decision, he said: "Obviously, there is logic in having a ministry of justice". Lord Woolf explained the importance of the departmental changes by saying that there is "much more interplay between the departments and courts than is sometimes appreciated"; and it had been difficult to establish an effective sentencing policy "because of the highly political nature of sentencing".

9. It is, certainly, in the area of criminal justice, including sentencing, that the most difficult questions for the structure of the justice system arise. As Lord Falconer emphasised to the Commons' Constitutional Affairs Committee on 17 April 2007, there will continue to be a trilateral relationship in government involving (1) Home Office responsibility for protecting the public against crime, for the incidence of crime, and for police and crime-detection; (2) the functions of the Attorney-General in supervising the Crown Prosecution Service; and (3) Ministry of Justice responsibility for the criminal law (both substance and procedure, including evidence and modes of trial), criminal courts and judicial process, and the penal system. In the course of his evidence, he said that one of the strongest lessons learned by government since 1997 is that "all of the bits of the criminal justice system - the police, the prosecutors, the courts and the prisons and probation - have to work together as closely as possible" (emphasis supplied). The qualification "as closely as possible" is from a constitutional viewpoint all-important. The reason that the criminal justice system comprises distinct components of police, prosecutors, courts and penal institutions is that a criminal justice founded upon the rule of law and on the due separation of powers requires both the existence of distinct functions, and also the development of separate institutional and professional skills. Some forms of "working together" or institutional co-operation would blur lines of demarcation (such as the process of a fair criminal trial, where judicial impartiality is required as between the prosecution and the defence).

10. It is essential that the judiciary and the criminal courts should not be drawn into endorsing a simplistic approach to criminal justice in which current administrative or executive wishes cause harm to the public image of the criminal process. From this viewpoint, the leading role to be played by the Ministry of Justice may be given a cautious welcome. It should, for instance, reduce the tendency for government ministers to appear to blame the judges for problems caused by recent legislation or by government policies.[172] And it must be hoped that it will curb the excessive tendency in recent years for the Home Office to resort to legislation by Parliament as a panacea for dealing with every new concern in the media and public opinion over crime and sentencing decisions. What would be less welcome would be a situation in which the Ministry of Justice is nominally the lead department on matters relating to the criminal law, but the driving political force remains with the Home Office. And it would be unfortunate if problems arising in the operation of prisons were to cause the Ministry of Justice to seek to place responsibility for the problems on the judges' sentencing decisions. It is relevant here to note that, as a result inter alia of European human rights law, discretionary decisions determining the release of long-term prisoners are now made by the Parole Board or by the judiciary, no longer by the Secretary of State.

11. I have already (in paragraph 8 above) quoted from the Lord Chancellor's recent statement confirming that the senior judiciary "have no objections in principle to the creation of a Ministry of Justice, subject to the provision of safeguards to protect the independent administration of justice" (emphasis supplied). The Committee may wish to inform itself as to the concerns that gave rise to the need for such safeguards and as to the safeguards that have been or will be given. Assuming that adequate assurances are given to the Lord Chief Justice, it would be appropriate for these to be placed on record, and this might possibly be best done by the preparation of a revised form of the Concordat, that could take full account of the creation of the Ministry of Justice.[173]

12. To conclude, my earlier paper remains relevant in the new situation caused by the decision to create a Ministry of Justice, a decision that was made before the new relationships resulting from the Constitutional Reform Act 2005 have had time to settle down and stand the test of experience. The decision to create the new Ministry is of some constitutional significance, and understandable fears have been expressed about it, particularly in view of possible adverse effects upon the judiciary and the machinery of justice, and the apparent lack of full consultation with the judiciary. If acceptable assurances are given by the Government about the future, they should become a matter of public record.

30 April 2007

166   Cd 9230, 1918. For comment on that report, and the controversy that it created, see R Stevens, The Independence of the Judiciary: the view from the Lord Chancellor's Office (1993, chap 2). In 1981 the Home Affairs Committee of the House of Commons recognised the advantages of unifying the component parts of the criminal justice system in a Ministry of Justice but Lord Hailsham, then Lord Chancellor, said: "I regard myself as the Minister of Justice but I would not desire to have either the prosecuting process or the penal treatment process under my responsibility because I think that they are incompatible": quoted in J L Edwards, The Attorney-General, Politics and the Public Interest (1984), p 193. Back

167   See the question about this asked of the Lord Chancellor by Lord Kingsland, on 26 April 2007 (HL Deb, col 766). Back

168   The administration of the courts and of legal aid also involve operational matters, but they deal with matters so closely related to the essential purposes for which courts exist that it is unlikely that policy pressures would lead to decisions that would ignore those essential purposes, or run contrary to them. See for instance the Courts Service Key Performance Indicators 2007-08 which were announced by the Lord Chancellor to the House of Lords on 29 March 2007 (WS 170). Back

169   To the Constitutional Affairs Committee on 17 April 2007 and to the Home Affairs Committee on 24 April 2007. Back

170   HL Deb, 26 April 2007, col 767. Back

171   17 April 2007. Back

172   And cf the implied criticism of the judiciary in such Home Office statements as Rebalancing the Criminal Justice System, July 2006. Back

173   See paragraphs 11 and 13 of my earlier paper.  Back

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