Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 280 - 299)



  Q280  Lord Goodlad: Could just ask Sir Igor to go back to his very interesting comment that in retrospect after there had been a ministerial comment on a sentencing decision he might have acted a few hours earlier to prompt the Lord Chancellor to intervene. Do you think, Sir Igor, that the Lord Chancellor might intervene without having to be prompted by you; as a corollary do you think the Lord Chancellor perhaps should not intervene unless prompted by you?

  Sir Igor Judge: The answer to the specific question is I am quite sure he intended to intervene on the Wednesday by the time I rang, so I would not myself claim any credit for prompting him, but there was a discussion in which he made clear he had decided to speak that evening. As a second point, we have to be very careful about the constitutional position here. The Lord Chancellor is a member of the Government whose role has changed rather dramatically; he is no longer head of the judiciary but he has his constitutional obligations in relation to judicial independence. There is a judgment to be made on each of these occasions and if the judgment may not be a judgment—speaking personally, and purely personally—that I think is right, I feel perfectly entitled to ring him up and make my comments, but in the end of course the decision that he makes is for him not for me. I am not sure that is an answer to your question, but if I have not answered it, would you like me to add a comment?

  Q281  Lord Goodlad: The main question was should he or should he not have acted after a minister had commented on a sentencing decision without having to be prompted by you?

  Sir Igor Judge: As I say, I would not want to leave the impression that I am saying he was prompted by me, because on the Wednesday he told me that he had already decided what he was going to do. I did not say "Will you do something this evening on Question Time?"

  Q282  Lord Morris of Aberavon: My Lord Chairman, on that issue of delay, was not his first comment to defend the minister's right to raise the matter publicly with the Attorney-General and it was thereafter that he defended the judge?

  Sir Igor Judge: Your memory is better than mine, I had forgotten that.

  Chairman: These are difficult areas and I have a number of my colleagues who would like to come in. Lord Lyell.

  Q283  Lord Lyell of Markyate: Sir Igor, we are focusing on the heart of this matter at the moment, and if I just ask the question in a very straightforward way—it will probably make it more difficult to answer—what is your understanding of the respective roles of the Lord Chief Justice and the Lord Chancellor in publicly defending judicial independence?

  Sir Igor Judge: As the Lord Chief Justice is head of the judiciary I would have thought it would absolutely follow that one of his major obligations was to defend judicial independence. The Lord Chancellor has a statutory obligation to do so and, again, I would have thought this was an elementary part of the obligations of the Lord Chancellor of the day. As to where one goes if they are not talking from the same hymn sheet, I would expect the Lord Chief Justice of the day to do whatever he thought was right, irrespective of the view of the Lord Chancellor, because he is head of the judiciary and must represent the judiciary.

  Q284  Lord Lyell of Markyate: If we go back to the origins of this and Lord Irvine and Mr Blunkett—because there were a number of preceding cases before the change in the constitutional position—would you not agree that the constitutional position remains that the Lord Chancellor has a very strong duty to protect judicial independence, that he should be ready to stand up for that as soon as it appears to be called into question and that ministers should recognise that they have a duty. Of course they are entitled to make balanced comment, but they should exercise significant restraint in the way that they do it.

  Sir Igor Judge: Yes, and yes, to both halves of that. The Lord Chancellor continues, notwithstanding the changes in the constitutional arrangements, to have his or her own independent obligation to defend judicial independence; I have no doubt about that. The same applies to the second; ministers undoubtedly should be careful. For example, if a minister finds there is an adverse judgment against his department in the administrative court, commenting on the judge seems to me to be completely unacceptable, but of course the minister is allowed to say "We disagree with the judge's position and we intend to appeal". There is no reason why he should say he accepts a decision if he does not, but criticism of his judging seems to me to be inappropriate.

  Q285  Lord Lyell of Markyate: Sir Igor, that is very valuable. You have the press office and Mr Wicksteed and Mr Farr are here. It is obviously important to a Lord Chancellor or a Lord Chief Justice to be thoroughly acquainted with the facts; if I can turn to your colleagues, to what extent is there close communication between the press offices of the Judicial Communications Office and the Department of Constitutional Affairs so that the Lord Chancellor is swiftly put in the picture?

  Mr Wicksteed: That is a good question for Peter.

  Mr Farr: We have regular contact with the Department for Constitutional Affairs press office and other press offices as appropriate, the Home Office and so forth. It is not a case of agreeing a common position on occasions, it is more a case of how are you responding to this? We get their lines and they get our lines, our position on something, so that we are aware of what each other is saying.

  Q286  Lord Lyell of Markyate: If we go back to the Sweeney case, how quickly did the Judicial Communications Office recognise that the trial judge had precisely followed and very carefully followed all the sentencing requirements and how quickly was the Department of Constitutional Affairs press office also aware of that?

  Mr Farr: We were quite quickly aware because once a transcript became available we were sent a copy of the sentencing remarks which we duly sent out, although it tended to get a bit lost in the storm. I am not sure how quickly the DCA press office was aware but certainly I know that they would have been sent it. I believe it was sent to them roughly the same time as ourselves.

  Q287  Lord Lyell of Markyate: If it happened again do you think it would happen more swiftly?

  Mr Farr: I think so.

  Chairman: While we are in this area, Lord Peston might have a question.

  Q288  Lord Peston: My question has been answered, My Lord Chairman, very clearly by Sir Igor as to the role of a judge, possibly retired, in explaining why the decision had been taken, and Sir Igor has categorically said no way.

  Sir Igor Judge: I would be particularly worried about a retired judge doing it because he certainly would not know about the 2003 Criminal Justice Act and although I know about it, I have to look it up every time I have to make a decision. It is not easy legislation.

  Q289  Chairman: There are no circumstances in which you would want a senior spokesman.

  Sir Igor Judge: I am speaking only for myself, not in relation to the judicial decision; I do not want the decision justified other than by the judge. How the office works to make sure that all the facts are available to those with an interest in the case is a different matter, but to have all the facts of the case available and then have a retired judge saying "I think the sentencing judge did a jolly good job here" is not actually the way I personally would like to see it work, but that is my own view.

  Q290  Chairman: As you said earlier in response to my question the reason for your feeling that is it then creates a game of tit-for-tat; that is the reason you do not want the judiciary's best case made early in the piece, you want it to be part of the process that happens invisibly between the Lord Chief Justice and the Lord Chancellor and probably more visibly between the Lord Chancellor and fellow ministers.

  Sir Igor Judge: Yes, and the judge has the responsibility of making clear why he has reached the decision that he has. The most important people for that—Mr Rozenberg will forgive me—are not the press, it is the people in court, the defendant, the victims. They are the people to whom these remarks have to be addressed.

  Chairman: Thank you. Let us go to Lord Windlesham.

  Q291  Lord Windlesham: Running through the dialogue I had a question dating back to my own time, many, many years ago, at the Home Office. Does the Home Office—I seek information here—have any role currently on sentencing policy and decision?

  Sir Igor Judge: No. That is the answer, but there is something more to come. We now have a Sentencing Guidelines Council and the way in which that system works, taking it very briefly, is that the Sentencing Guidelines Council, after taking advice from the sentencing Advisory Panel, produces a draft guideline which has to be submitted directly to the three ministers—the Home Secretary, the Lord Chancellor and the Attorney-General—and the Home Affairs Committee. They are entitled if they wish to comment on the draft guideline in any way they think appropriate. When the consultation period is over those observations come back to the Sentencing Guidelines Council which then reflects on them and then produces the guideline which it thinks appropriate, so in fact there is a link between the Home Affairs Committee, the Home Secretary of the day and the Sentencing Guidelines Council.

  Q292  Lord Windlesham: There are a lot of people now involved, are there not? At one stage the Home Secretary had almost complete oversight of proceedings, but now there are others as well and you have indicated who they are.

  Sir Igor Judge: Yes.

  Q293  Lord Windlesham: Does that lead to a degree of diversification and therefore no real certainty as to what the likely outcomes will be?

  Sir Igor Judge: On the particular issue that you asked me about there is no problem. When the information comes back, it is considered by the Sentencing Guidelines Council which produces its answer. But if I may say so you are asking a much wider question, which is, who is going to be responsible for policy in relation to prisons, probation, mandatory sentences, sentences of imprisonment and public protection and so on. There the answer is the legislature, and the answer is the Home Office is still in charge of the legislation which produces our criminal justice system.

  Q294  Lord Morris of Aberavon: Could I ask about the role of the Lord Chief Justice in media strategy? Under what circumstances is he asked for guidance and asked by the media to make an appearance?

  Mr Farr: As head of the judiciary, as you would expect, we keep the Lord Chief Justice abreast of all the significant news stories relating to judges. Certainly if we were preparing a response to an issue that was very topical and controversial we would either use the Lord Chief Justice's own words or we would make sure that the form of words that the office was using was one that he was content with. In terms of media interest in the Lord Chief Justice, interview bids arrive regularly from all sorts of media organisations for all sorts of things. Some of them are quite inappropriate, for example would the Lord Chief Justice like to come along and talk about this particular decision in this particular case which, as Sir Igor has outlined, is clearly not something we can entertain. Others are broader, and he considers those and he makes a judgment with his other commitments permitting whether he would accede to that request.

  Q295  Lord Morris of Aberavon: Could I follow that up regarding how he makes a judgment. Mr Joshua Rozenberg said the other day that he had not given a press interview for a year; is that unusual? What is the advice tendered to him, should he be more accessible or not or is he making the right decision?

  Sir Igor Judge: I would like to say something, with respect, if you do not mind. The Lord Chief Justice gave an interview in October 2005 and if you have at any time a chance to read the transcript, the media questioning of him—and I emphasise media, not just newspapers—page after page after page includes at least one question which is designed to elicit some remarks from the Lord Chief Justice which will enable the story to be "Lord Chief Justice at odds with ... " or "Fury at ... "—you can write your headline no doubt as well as I can—"with the Government". That is not actually a very happy way for a Lord Chief Justice to be interviewed, and if the object of having a conference is simply to address practical issues but the questions are loaded to produce the "Fury with Government" kind of headlines, the Lord Chief Justice is entitled to take the view that this is not in anybody's interest. The other point, I know, is that he intends to give the Judicial Studies Board lecture this year which will be in March; that will be just under one year since the new arrangements came into force. That in my view—although ultimately of course it is for him—is the minimum time that is appropriate to pass; one year is not much in a constitution that has been here for a thousand or more, and he will be able to address in that lecture how things are running and how he sees them. Over-exposure to the media, in my view, is not necessarily—indeed in my view it definitely is not—in the public interest, but ultimately it is for the Lord Chief Justice of the day to decide what he thinks.

  Q296  Lord Morris of Aberavon: With respect I tend to agree with what you have said, but by last October the date I have here is 11 October 2005, is that right?

  Sir Igor Judge: Yes, if you look at page 5—if my memory is right—there are at least three questions in a pretty short bit of transcript which are designed to provoke the Lord Chief Justice to say something which can be given a headline.

  Lord Morris of Aberavon: I have read it. Time after time after time. Thank you very much.

  Q297  Chairman: Sir Igor, one of the things that the Committee is wrestling with is if the Government set out to produce somewhat greater separation of powers between the executive and the judiciary, is not the inevitable consequence of that—and it may be constitutionally desirable—that there will be a degree of tension because the essence of separation is the creation of tension? What we are wrestling with—and indeed you are at the very sharp end of—is how to manage that tension in a sort of normative, regular and appropriate way. Should we not be somewhat more philosophical about separation meaning tension?

  Sir Igor Judge: I hope I will not be misquoted, or at any rate have some sub-editor writing a good headline about it, but I think a degree of tension is healthy. We all very loosely say "the Government", but in the end Parliament legislates, and then it does not really matter what the judges think. The judges apply the law that Parliament has produced. If the Government has an idea and it seeks the views of the judges, the judges must express their honest views and it may therefore be a view that completely disagrees with the Government and that may create tension. In the end the Government takes its bill to Parliament and Parliament decides what the law will be; I do not find a problem with tension, there are plenty of situations in which intelligent people can have different views and express them. For the moment there is a tension but then, provided you all recognise they are views honestly expressed, there should be no more tension. I wonder, My Lord Chairman, if you would mind if I just say something slightly more on this general subject of judicial independence. It is no longer—in my view it never has been, but this is still my view—a concomitant of independence that judges should be isolated. I mentioned to you when dealing with the sentencing issue the National Criminal Justice Board; I am a member of that with Lord Justice Gage; we have judges on NOMS—that is offender management; we have judges on the Criminal Justice Council, and on the Very High Cost Cases review board. The Senior Presiding Judge is on the ministerial executive board of the DCA and on the HMCS board, and of course up and down the country nationally courts boards have judges on them. They are not executive members, but they are there to offer a judicial view about the practical reality and how a particular suggestion might work in practice. None of that impinges on judicial independence. At the end of it you have expressed your view, account has been taken of it and it may or may not find favour; as I say, in the end the legislation comes through and we are consulted. I cannot remember how many consultation papers I received this year, but if I remember some of them: Making Sentencing Clearer, we responded to that, quashing convictions, how should we deal with that, rape and the impact of drink, both in relation to the woman—it is usually a woman—and in relation to the man. There is even a paper called Making Sure Crime Doesn't Pay, which the judiciary has had to respond to. We expect to respond to these papers; we do not expect our response to carry the day; the Government has to decide what it will put before the two Houses, and so it goes on. I have meetings, for example, with the Attorney-General. I saw him on Monday. I can see no reason why I should not tell you that one of the things he told us was that he proposed to make a statement about the evidence of Professor Southall; that does not impinge on our independence, or his. He also told us that he was concerned about the way in which the deployment of judges for dealing with heavy fraud cases was working; it is a legitimate concern, he drew it to our attention and that is for us to deal with. I can tell you that week after week after week these sorts of discussions are going on at ministerial level, at official level, and so on. I do not think myself that expressing our views has created serious tension and, more important, I do not myself think that that impinges in any way on my judicial independence or the acknowledgement by the minister of it. I am sorry that has taken me so long, but there is quite a lot of material in this.

  Q298  Chairman: It is well worthwhile, Sir Igor, we are grateful for that, thank you. We will have to conclude shortly, but just reverting to your understandable nervousness about exposing the Lord Chief Justice to loaded questions that are designed to provoke a visible row of some sort, one of the reactions to not going on the record is to go off the record. I was quite disturbed when we had several distinguished media editors to hear that in their opinion the practice was growing of off the record briefings, I will say by the judiciary but I do not point at any particular judge and nor did they. Of course, this is the world of politics that most people in this room are very familiar with where you do read the next morning X's fury with Y because somebody has said off the record, when asked, yes, pretty fed up about that and that was transmuted the next morning to the judge's fury. Let me ask you very directly—and this is obviously a question for the JCO—what is your attitude towards the culture of off the record briefings by judges?

  Sir Igor Judge: Mine is easy: we have to distinguish between a conversation that I may have—I have conversations with Mr Rozenberg perhaps and regard him very highly. I do not regard my conversations with him as a briefing, they are discussions about this that and the other. Myself, I think it is unacceptable for judges to be making statements to journalists about a proposed policy, a proposed piece of legislation or indeed one that has just come into force unattributably, so that it is printed. If you are going to make any statements of that kind you should be prepared to accept responsibility for them, but I do not think you should be making them because one day you may very well be sitting in judgment on the very legislation which you are criticising. For my part I think off the record briefings of the kind that you are asking me about should not happen. That is my very clear view.

  Q299  Chairman: I am delighted to hear that. It is, as we all know, quite difficult to distinguish between an agreeable lunch with Mr Rozenberg subsequently appearing as background and senior judges are expressing concern about that. Is that part of a conversation over lunch or is it an unattributable briefing?

  Sir Igor Judge: I would not expect, if I were to say something as indiscreet as that, that Mr Rozenberg would report it at all.

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