Examination of Witnesses (Questions 164
- 179)
WEDNESDAY 24 JANUARY 2007
RT HON LORD MACKAY OF CLASHFERN
Q164 Chairman:
Good morning, Lord Mackay, we are most grateful to you. This session
is being televised so I wonder if you would be kind enough, for
the cameras and for the record, just to identify yourself.
Lord Mackay of Clashfern: Yes, surely, so far
as I can. My name is Lord Mackay of Clashfern. I was the Lord
Chancellor from 1987 to 1997 and before that I practised the law
in Scotland. I became Lord Advocate in 1979 and remained in that
office until 1984. I had previously been the Dean of the Faculty
of Advocates, which was the elected head of the Scottish Bar,
so I had a reasonable experience of the law before I became Lord
Chancellor.
Q165 Chairman:
Thank you very much. You are well aware that this short inquiry
which the Committee is conducting is prompted, in part at least,
not just by the greater separation of powers consequent on the
Constitutional Reform Act, but also by recent incidents of highly
publicised tension between the Government and the judiciary, and
we are trying to look in a slightly more systematic way at the
changes in the constitutional relationships and how they can best
operate. What I wanted to ask you, if I may, is do you think the
tensions of the last two or three years are something new, either
in kind or degree, or do you think from your own experience as
Lord Chancellor in Conservative Governments that they are systemic,
endemic and bound to break out from time to time?
Lord Mackay of Clashfern: First of all, a certain
degree of tension between the judiciary and the executive is inevitable
and healthy because from time to time the judiciary are called
upon to adjudicate under the judicial review procedure and in
other ways on actions of the executive, and there are not many
people who completely welcome their activities being judged, particularly
if they are found to have failed—there are some exceptional
individuals maybe, but generally speaking that is a characteristic.
The second point is that it depends a little on what is happening.
In the time that I was Lord Chancellor the major difficulty arose
in connection with the then Home Secretary's proposals for minimum
sentences. As far as I was concerned, Parliament was entitled
to make such rules if they thought it was advisable, and what
I was concerned to do was to make sure that the judiciary in particular
cases had an opportunity to go outside these minima if they thought
that justice required it, if there were exceptional circumstances.
I could see the advantage also of people knowing in advance just
what the situation is in relation to particular crimes and the
sentence they might expect, so as long as the judiciary retained
a degree of discretion to deal with exceptional circumstances,
I did not myself feel that it was in any way unconstitutional.
On the other hand, the very fact that what was being proposed
had in it an element of restricting judicial discretion provoked
a certain degree of difference of opinion between some members
of the judiciary and the Home Secretary, but I never thought it
got to extreme proportions. The present situation between the
judiciary and the executive is in fact quite a good relationship;
I do not think that, generally speaking, the relationship is in
crisis or anything of that sort. There have been particular cases
in which senior members of the Government have made adverse comment
on particular judicial acts, particularly sentencing. One of the
reasons for that is that those in charge of large ministries such
as the Home Office do not really know the rules that they themselves
have laid down, or their predecessors have laid down, through
acts of Parliament and other executive acts. If you actually look
at the statutory provisions and the guidelines for sentencing
and so on, you can hardly blame the Home Secretary for not remembering
in detail what they are because they are extremely complicated
and even those who administer that branch of the law from day
to day find them quite difficult. The root of the matter, I think,
is a degree of lack of familiarity with the policies that the
department you are the head of has been pursuing, and therefore
unless you study it carefully—and you want to come out with
some reaction very quickly, because our modern press require immediate
reaction—you give your off-the-cuff reaction without thinking
too much. The other thing that has a bearing on this is a general
tendency to lack of respect. As you know, the Prime Minister has
what he refers to as a "respect agenda" which is intended
to restore the respect for authority in the generality of the
population. The lack of respect can permeate into both individuals
of the judiciary and also into individuals who are in the Cabinet
or in other positions in government. If a senior minister took
a moment to think that a judge has really had an opportunity to
consider the case in much more detail than he or she is likely
to have had, they might be just a little slower to comment and,
of course, once the comment comes out the results flow very quickly
and it is very difficult, once that action has been taken, to
stop the consequences, even with the best will in the world. My
summary is that it varies from time to time, but the general condition
of a degree of tension is healthy and inevitable.
Q166 Chairman:
Just on that last point, I recall that you, in the passage of
the Constitutional Reform Act, had quite a lot of reservations
about it, but I imagine you would acknowledge that part of the
intention was to get a greater degree of separation of powers
between the executive and the judiciary, and I imagine the logic
of that is that some degree of tension is constitutionally appropriate
and necessary, otherwise why strive for a greater separation of
powers. Should we accept, quite aside from the sort of short term
secular causes, which you have identified, that a degree of tension
is and should be built into any system which has somewhat separate
powers?
Lord Mackay of Clashfern: Yes, that is true.
I think that existed long before the Constitutional Reform Act
and of course, as you say, the Constitutional Reform Act has sought
to formalise to a greater degree separation of powers. I saw that
Mr Clarke, in his evidence to you, has complained that he, when
he was Home Secretary, was having difficulty in getting comment
on his proposals from the senior judiciary; if you exclude the
senior judiciary altogether from the legislative process, that
is not surprising because they are supposed to stand aside from
it, and this is an example of people responsible for policy not
always appreciating fully all the consequences that might flow
from that policy.
Q167 Chairman:
I just wanted, if I may, to pick up your very interesting reference
to the sheer size of the Home Office being part of the problem
for a Home Secretary who might not be familiar with every detail
of sentencing rules, tariffs and so on. Would it follow from that
that you personally would think the current proposals for breaking
the Home Office into two more manageable pieces would be a good
idea, a quasi ministry of justice, as we read in the papers; would
you think that is a good idea?
Lord Mackay of Clashfern: It depends on your
analysis of the reasons for the problems which lead to this decision,
and there is something to be said for the view that what is the
cause of a good number of the present problems is lack of co-ordination,
and if lack of co-ordination is the real problem then breaking
the edifice into two is only likely to exacerbate that instead
of helping. The problem that I see is the difficulty for a minister
in really coming to terms with all the policies that his department
is pursuing, but that is by no means confined to the Home Office.
The Home Office is an example, but there are other areas where
it is difficult. On the other hand, that produces or might produce
a degree of reticence about criticising other people who may be
in some way involved in your department's activities, or affected
by them.
Q168 Chairman:
On the issue of criticism, ministers of course are bound to uphold
judicial independence and what the Committee is grappling with
is what limits are there and should there be on ministers criticising
judicial decisions. You mentioned at the beginning, and I was
interested in what you said, about judges pronouncing on government
decisions. Were you thinking of judicial review there?
Lord Mackay of Clashfern: Yes, principally judicial
review, but there are other areas where it is necessary also;
for example, they sometimes comment on the conduct of the Crown
Prosecution Service, which is an agency of government, and the
way that cases have been handled and of course, as you know, other
departments have prosecution rights which can sometimes raise
questions about criticism and so on, but it is in judicial review
primarily that that tension exists.
Q169 Lord Morris of Aberavon:
Lord Mackay, twenty years ago it was almost unheard of for a minister
to comment in the press upon a court judgment, let alone in combative
terms, and you have illustrated that by your comments a few minutes
ago. There are classical precedents for not opening your lips
because once the words are released it is very difficult or impossible
to recall them, but it seems that there has been a sea-change.
Erskine May makes it quite clear that the conduct of a judge cannot
be discussed except on a substantive motion. These comments are
usually in the press; should not the same rules apply in Parliament
and outside, and what do you think are the constraints on conduct,
if there are any other than Erskine May's? How would you interpret
ministers' statutory responsibilities under the 2005 Act to uphold
judicial independence? The Lord Chancellor is specifically mentioned,
other ministers are mentioned; is it the same for all, does it
apply to all ministers, for example, in the Lord Chancellor's
Department? Do they have the same duty?
Lord Mackay of Clashfern: The Lord Chancellor
himself has, as you know, a particular duty, and I would think
that that would apply to all ministers in his department as a
particular responsibility of the department of which he is the
head, but there is a provision in relation to other ministers
also which is a slightly less prominent type of provision. It
is just a question of a degree of restraint. You may feel strongly
about something and I know that everyone has experience of that,
but on the whole it may be wiser not to express that until you
have had an opportunity to consider it, and of course in many
cases that ministers feel aggrieved about there is a right of
appeal and there is nothing to prevent them saying they are proposing
to appeal. Basically, the change may have occurred due to not
altogether realising or respecting the fact that the judges have
had to consider the details of the case in a way that the ministers
will not have had to do, and he or she will have had the benefit
of argument before them about it and also a fairly close application
to—in the case of sentencing, for example—very, very
detailed regulations.
Q170 Lord Morris of Aberavon:
May I ask a follow-up? Obviously, restraint is a burden that should
apply to a judge; do you see any value in the suggestion that
the Ministerial Code should be amended to include principles to
guide ministerial reaction? We have the statutory duty in the
Lord Chancellor and all ministers, and what the Ministerial Code
now says in code 1.5 is that there is "an overarching duty
on ministers to comply with the law . . . to uphold the administration
of justice . . . " et cetera. Would it help if the Code itself,
which you are familiar with, were to be strengthened?
Lord Mackay of Clashfern: It is certainly for
consideration. I suppose it is a matter ultimately for the Prime
Minister, but it is certainly for consideration. I have to say
that one of the matters that you have to keep in mind in a ministerial
code, or indeed in any other code, is that there is a limit to
the power of recall that people have in their daily work. I do
not know that there are many ministers who would be able to tell
you everything that was in the ministerial code, and of course
the bigger it gets the more difficult that is. There is a limit
to the effectiveness of adding to codes like that; on the other
hand what you have to do is put in the important matters, I suppose,
and this is quite an important matter for consideration.
Q171 Chairman:
Could I just revert to the other side of the fence, not ministers
commenting on judges but judges commenting on issues in general?
One of your first acts as Lord Chancellor was to abolish the Kilmuir
rules; I wonder in retrospect whether you feel that was the right
thing to do, and if I can just ask a supplementary, we have had
evidence earlier in this inquiry from some leading legal journalists
that what I will call off-the-record briefing from the judiciary
is on the increase, so that to get a headline "Judge's fury
at Government decision", rather like the political world
now where an awful lot of information seems to be transmitted
by off-the-record briefings, that practice is now spreading to
the judiciary. I wonder how to relate those two questions of the
ability of judges to comment in the news media with what we are
told is the practice of off-the-record briefing. I am interested
in your opinions, either on the retrospective wisdom of your decision
and/or this new practice.
Lord Mackay of Clashfern: So far as retrospective
wisdom is concerned, if I might take that first, I remain entirely
convinced that it was completely right to get rid of the Kilmuir
rules and I say that, not just because I did it but because I
think the principles underlying it are absolutely undeniable.
Judges are supposed to be independent, and independent of the
Lord Chancellor when he was head of the judiciary, as much as
of any other judge. The idea that the Lord Chancellor's consent
should be required before a judge is entitled to express a view
to the media seemed to me to be utterly inconsistent with that.
I may say that it happened at my first press conference because
the press asked me about what the basis of the rules was and I
had to say what I believed was the position. I had some experience
of this from the Faculty of Advocates because it did have at one
time a rule preventing advocates from speaking to the press, and
when I was dean we got rid of that rule because it was found to
be completely unworkable. Advocates or judges often have something
to say which is of general importance and, after all, they are
in my view an important section of the community, and why they
should be mute when everybody else can say what they like I could
not see. On the other hand, I did think that if a person was sufficiently
fit to be a judge of the bench in England and Wales he or she
should have sufficient judgment to know when they should speak
and when they should be silent in matters with the media, so I
do not repent of that; I repent of other things but not of that.
That was a wise decision and one that was generally accepted by
the judiciary. At first some people felt they could always say,
if the press rang up, "I am sorry, I have not got the Lord
Chancellor's permission so I cannot speak to you", which
was a very interesting defence. On the other hand, when the Kilmuir
rules went they had to say "I am sorry, I do not think it
is right for me to talk about this and that" so it is a slightly
stronger version of what was required. Very soon it was generally
accepted that the Kilmuir rules were not based on a principle
that prevailed in the twentieth century. The business of off-the-record
briefings; if I may say I do not like these in any circumstances
whatsoever and when I became Lord Chancellor I made it clear that
I would not give an off-the-record briefing to anybody; if I had
something to say that was worth saying I was prepared to say it
and stand by it as having said it and I was not prepared to give
an off-the-record briefing. Obviously, if people came to discuss
with me some problem that they had, I would be prepared to have
discussions with people, but not in a way that was a briefing
for them to use in their own newspapers or other media.
Chairman: Thank you very much.
Lord Woolf.
Q172 Lord Woolf:
I wonder if, through you, My Lord Chairman, I could just ask Lord
Mackay, because I would be very interested to hear his response,
my practice when Chief Justice—which I think was in accord
with what my predecessors were doing—was to accept the correctness
of the generality of the approach that Lord Mackay has just indicated,
but to give advice to judges generally, and this is now reflected
in a type of code of conduct which they have. As a generality,
however, it is not desirable for the judge to talk about a case
which he has been involved in as a judge and, secondly, he or
she should bear in mind whether it is better that they leave the
matter of making comment to a senior judge who has got the responsibility
of expressing the views, either as his own or the views of the
Judges' Council. I wondered what Lord Mackay would say about that
sort of approach.
Lord Mackay of Clashfern: I would think, generally
speaking, that it is quite wrong for a judge to comment on a case
in which he or she has been involved except in open court.
Q173 Lord Woolf:
I meant that.
Lord Mackay of Clashfern: Perhaps a degree of
improvement has taken place in recent years over the way in which
remarks on sentencing or judgments are formulated in the light
of whether the case may be one of public concern, because certainly
when we had a press officer who advised—when I was Lord
Chancellor our press officer and the press office advised judges
about what should happen in relation to the media and tried to
help them in that connection—the advice was that if you
knew the case was likely to provoke some kind of public concern
it was wise to try to take account of that in the way you formulated
your sentencing remarks or your judgment so that the issue was
dealt with in an open way. It is undesirable for judges to become
involved in discussion of cases in which they themselves have
participated. There may be very, very exceptional circumstances,
but it is not very wise. I am in agreement with Lord Woolf on
that.
Chairman: Thank you very much.
Lord Goodlad.
Q174 Lord Goodlad:
Thank you, My Lord Chairman. In 2004 you opposed the Government's
proposals to abolish the office of Lord Chancellor. What degree
of confidence do you have in the ability of the Lord Chancellor
Mark II—no longer a judge or head of the judiciary; perhaps
in the future not a Member of this House or even a lawyer—to
defend judicial independence and the rule of law?
Lord Mackay of Clashfern: It must depend very
much on the individual and the individual's capacity and perhaps
loyalties as well. At the moment we have a lawyer who is also
a Member of the House of Lords, so the position has not been tested—and
so far as I am concerned the longer the test is put off the better—of
having a person who is neither a Member of the Lords nor a lawyer.
I find it difficult, for example, to see how somebody who was
not a lawyer could have dealt with the criticism that was made
of the judge in Wales in the sentence that he pronounced, because
you need to be pretty familiar with the situation to do that and
you need to be pretty steeped in the particular law and the rules.
It took the present Lord Chancellor a little time to respond—I
think the Lord Chief Justice was abroad at the time—and
as I said earlier the sooner a response is made the better. It
is quite difficult to know how that might be handled by somebody
who was not a lawyer or a judge. There is no doubt that these
new arrangements have put a greater distance between the Lord
Chancellor, whoever he or she is, and the judiciary and there
is a very good explanation by Baroness Kennedy of The Shaws in
one of the debates on the Constitutional Reform Act about the
effect that being appointed Lord Chancellor under the old system
had on a person. There was a very big weight of responsibility;
you were holding an office which had lasted from before the Norman
Conquest, although with changes, and you had a very, very responsible
role in relation to the judiciary. Things have changed and I just
feel that the new Mark II (as you refer to it) Lord Chancellor
is at a greater distance from the judiciary and therefore is less
sensitive to the concerns of the judiciary, generally speaking,
than otherwise he might be. Let me just take an example. The present
Lord Chancellor, in opening the debate on the Legal Services Bill,
made a remark about the way that consumers regarded the Lord Chief
Justice. In order to be sure that I have it right I have brought
the sentence with me—this is in Hansard for 6 December,
column 1164—where he says in relation to the appointment
and dismissal of members of the Legal Services Board: "I
have to say it gives little comfort to consumers, who rightly
see the Lord Chief Justice, who is a man beyond reproach, as another
lawyer in the process." It is the word "rightly"
that I find rather sad in a way. The junior minister was tackled
about this later on and sought to explain it, but in all fairness
the explanation does not give much weight to the word "rightly"
which the Lord Chancellor used. I do not think that the idea that
the Lord Chief Justice is just another lawyer is a very wise stance
to take up, because after all he is a lawyer, certainly, but he
is a judge, and a pre-eminent judge, in our system. Incidentally,
they say once or twice that he is appointed by the Prime Minister;
technically, that is not correct, the Lord Chief Justice is appointed
by the Queen on the advice of the Prime Minister and it is important
to remember that he is elevated from the ranks of lawyers into
a very, very special position. Most consumers—certainly
most that I have come across—recognise that and have a faith
in the Lord Chief Justice which, generally speaking, is quite
high.
Q175 Lord Goodlad:
Thank you. Can I ask if you think that the office of Lord Chancellor
was irremediably weakened by the events of the summer of 2003
when the Prime Minister removed the head of the judiciary from
office in a Cabinet reshuffle?
Lord Mackay of Clashfern: That was accompanied
with the idea that the office of Lord Chancellor could be terminated
overnight, and I have been asked by many people since then how
that could possibly come about, that the Prime Minister's office
should issue a press release which suggested that? I do not know
the answer to that of course, except that obviously they were
at the time acting without legal advice within the Cabinet on
the situation, because the outgoing Lord Chancellor was not consulted
about it and of course, as we know, there was quite a lot of scurrying
about on the next day in relation to the Woolsack. It is important
that the Cabinet should have within it a member who has legal
experience and qualifications. As you know, the Attorney-General,
for good constitutional reasons, is not a member of the Cabinet
although his advice is available to the Cabinet, but it is quite
important that the Cabinet should have in its membership somebody
who is familiar with the legal system and with the requirements
of the judiciary. I just point out that the Scottish devolution
arrangements put the Lord Advocate as a member of the Scottish
Executive, which has other points about it, but at least from
the point of view of having legal experience within the executive
it is provided for.
Q176 Lord Rowlands:
A rather separate question; I wonder what assessment you make
of the impact of the Human Rights Act upon the relationship between
courts, Parliament and the Government. Do you see it as something
of a watershed?
Lord Mackay of Clashfern: It is certainly a
very considerable change, but the actual effects of it in result
may not have been as great as some people thought because, after
all, we were already signatories to the Human Rights Convention,
which is the basis of the Human Rights Act, and it is said to
be bringing into this country the human rights legislation. In
a sense that is true and it is possible to litigate about it here,
but the biggest effect of it is the increase in the amount of
litigation that has taken place, raising questions in our courts
of a human rights kind, and the actual result—I do not know
whether it has made as much difference as at first was thought
might happen.
Q177 Lord Rowlands:
Do you think it has brought the judiciary more into political
decision-making in the sense, particularly since 9/11 and all
the anti-terrorism legislation, that the two together have created
different kinds of tensions between the judiciary and the executive?
Lord Mackay of Clashfern: Certainly, it may
have made it a bit sharper. As I said, the Human Rights Act incorporates
into our law what was already something that we were signatories
to and which was being given effect to in our courts in the sense
that it was possible to interpret legislation in the light of
the Human Rights Convention. It may have made sharper some of
the decisions about, for example, proposals for dealing with terrorism,
and the House of Lords decision on that is an example of that
where it has come right up against the proposals of the executive.
This was partly what Mr Clarke may have been referring to when
he gave evidence here about the difficulty of getting the views
of judges in advance. It would be very helpful, I can see, for
the administration to be able to say to the House of Lords "Now
if we did it this way, would that be all right?" and the
House of Lords—I do not know anything about it, I am not
party at all to any of the deliberations that may have gone on
between them, but I can well see that they might not wish to become
embroiled in that. Of course, as I said earlier, if you separate
out completely the Law Lords and the judiciary from the legislature,
as the Constitutional Reform Act has done, one of the other consequences
must be that the judges all wish to stand apart from the formulation
of policy, particularly in sensitive areas—you formulate
the policy and then we will decide.
Q178 Lord Peston:
Lord Mackay, you have largely answered the questions I was going
to ask you but, just to clarify, we have the Lord Chief Justice
as now head of the judiciary as a formal matter, and the Lord
Chancellor has as his explicit role independence. In a sense they
both hold a role in terms of independence; do you see any room
for conflict between them?
Lord Mackay of Clashfern: Again, that depends
a bit on the relationship of the individuals. I believe that the
attitude of the present Lord Chief Justice is that the Lord Chancellor
will be involved as closely as he wishes to be in the affairs
of the judiciary to keep the situation as much in his mind as
possible. The leadership roles have now been separated of course
and they are different; the Lord Chief Justice's primary role
is as a judge, the leading judge of England and Wales, with an
authority as a judge which goes right across the whole system
because he sits in the civil court and in the criminal court from
time to time, and he is the leading judge, leading the whole judiciary
as far as judging is concerned. The Lord Chancellor is now completely
out of the judicial process and therefore his leadership is more
of a political type of leadership and he is primarily concerned
with the Government's arrangements and the Government looking
to doing what he is required to do to maintain the independence
of the judiciary. When it comes to speaking out, as from time
to time may be required, under the present arrangements if they
are both available they will discuss who is more appropriate to
do the speaking. As it happened, when the Wales case came up,
as I said the Lord Chief Justice was out of the country but still
it was the Lord Chancellor who seemed to be the appropriate person
to speak on that case because it was one of the ministers who
was speaking about the case and also, incidentally, particularly
to do with jurisdiction or responsibility of the Attorney-General.
There is room for the two and they are distinct, and so long as
the personal relationships are reasonable between them the scope
for conflict does not arise.
Q179 Lord Peston:
Looking at the speaking out in a more general sense rather than
just about a specific case, you have got the Lord Chief Justice
in his role and we have this new body which I have to confess
I do not understand at all, what is called the Judicial Communications
Office—but it does include the word "communications"
which suggests that that must be an important part of its role.
Do you yourself have any view or even any understanding of what
should be going on in terms of explaining to the media, and what
you yourself call the consumer, as it were, about things like
the constitutional role of judges and the concept of independence—I
wonder what that means. Do you see them as having an active role
here?
Lord Mackay of Clashfern: As I said, the principal
job of the Lord Chief Justice is judgments and it is a fulltime
job and a difficult one. I had a press office which assisted the
judges as and when they needed assistance, and on the whole the
system worked quite reasonably well. That part of the press office
has become an office of the Lord Chief Justice and their principal
job is to try and ensure that the press understand the situation
in relation to particular cases and so on; if they can give background
that sometimes helps. So far as the general instruction of the
community is concerned, in relation to the position of judges
and so on, that is primarily the responsibility of the Lord Chancellor.
The Lord Chief Justice will no doubt have an opportunity when
the courts report, within each year, for a general discussion
of the matter, and no doubt a press conference at that time, but
I do not think that the Lord Chief Justice ought to be involved
in distracting from his principal role of leading the judiciary
in judgment.
Chairman: Thank you very much.
Lord Windlesham.
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