ANNEX 3
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
Summary
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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