Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 164 - 179)



  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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