Examination of Witnesses (Questions 372
- 379)
TUESDAY 1 MAY 2007
LORD JUSTICE THOMAS AND SIR IGOR JUDGE
Q372 Chairman:
Good morning and welcome Lord Justice Thomas and
welcome Sir Igor; it is a great pleasure to see you back for the
second time after such a brief interval.
Lord Justice Thomas: Thank you.
Q373 Chairman:
I should say that the proceedings are being filmed and therefore
it would be very helpful if you would, before we do anything else,
briefly identify yourselves.
Lord Justice Thomas: I am John Thomas, Lord
Justice Thomas.
Sir Igor Judge: I am Igor Judge, President of
the Queen's Bench Division.
Q374 Chairman:
Thank you very much. I know that there has been an enormous number
of very informative papers produced by the judiciary in the last
few weeks on changes to the administration of the justice system.
I wonder if you would care to make a brief opening statement?
Lord Justice Thomas: We have prepared something
and I hope it will be helpful to you if I were to outline our
present position? It is our view that the creation of a Ministry
of Justice is not simply a machinery of government change (which
would ordinarily be solely for the executive branch of government
to determine), but it is one that involves, in our view, significant
constitutional change. Unlike the reform to the office of Lord
Chancellor, it appears possible for this change to be effected
without legislation. However, its constitutional importance is
undiminished by that fact. Our constitution, as you all appreciate,
is based both on statute law and on constitutional understandings
and conventions. Those understandings and conventions include
reliance upon full and appropriate respect for the different positions
occupied by the three branches of government. In the view of the
judiciary the proposal to create a Ministry necessitates: first,
a clear examination of the best way to achieve the necessary changes,
and the complexity of this task has become increasingly evident
as work has progressed, just as it did after the decision was
made to reform the office of Lord Chancellor. Secondly, it requires
the creation of a different relationship between the new Ministry,
the judiciary and the court administration. We consider this is
necessary to ensure the independence of the judiciary in performing
their duties to uphold the rule of law and deliver the proper
administration of justice. We began to examine the implications
of the proposed Ministry of Justice immediately after the possibility
of the immediate creation of such a Ministry was raised in the
media on Sunday 22 January this year. We pressed for detailed
information and an outline paper detailing possible models for
the Ministry was provided by the Department of Constitutional
Affairs. On 7 February a memorandum was sent by the judiciary
to the Permanent Secretary of the DCA with two working papers,
one on resources and HMCS, and another on sentencing. The judiciary
asked in those papers for a thorough examination of the issues
prior to the creation of the Ministry. Discussions followed with
the Permanent Secretary of the DCA and the Lord Chancellor. On
19 March, about 10 days before the announcement by the Prime Minister
of the creation of the Ministry of Justice, at the invitation
of the Lord Chancellor, the Lord Chancellor and the Lord Chief
Justice agreed to set up a working party which would report to
them both jointly. The terms of reference of that working party
were limited by the Lord Chancellor's position that the working
party must proceed on the basis of a number of parameters and
in particular should not involve any legislative change. The judiciary
agreed to participate to see if the necessary constitutional safeguards
could be effected within these parameters, but made it clear that
the parameters would have to be revisited if appropriate constitutional
safeguards could not be provided within them. It is our view that
there are three substantial issues to be addressed. First, finances.
Drawing on the experience of other countries where these problems
have been addressed, the judiciary have taken the view that there
must be appropriate and transparent mechanisms to ensure the necessary
resources are provided for the courts. First, we considered that
there must be a fixed mechanism to set the budget and operating
plan with provision for capital expenditure; and, in the event
of a dispute between the judicial and executive branches of government
as to the resources necessary, the arbiter must be the legislature
which of course ultimately votes the budget in accordance with
their view as to priorities of overall expenditure. It is also
necessary to ensure that if adjustments are proposed to the budget
during the year (for example by taking money from the agreed budget
to remedy shortfalls elsewhere in the Ministry), there is a similar
open and transparent mechanism which must be followed before a
change is made. The necessity for such mechanisms both for setting
the budget and for any changes is in our view self evident within
the Ministry of Justice: in order to be independent and to be
seen to be independent the courts must be properly resourced and
must also be protected from the adverse effects on the financial
assumptions or planning of other parts of the Ministry which may
result from any decisions which the judges may make in applying
the law. Secondly, there is the topic of Court administration
and the position of HMCS. The administrative infrastructure of
a court system is integral to the independent administration of
justice. The judiciary are drawing on the experience of other
countries with Ministries of Justice, and in particular Ireland,
the Netherlands and Denmark, where the autonomous court administration
with a greater degree of judicial participation has been very
successful. It has underpinned the independence of the judiciary,
improved the relationship between the judiciary and the court
administration and improved the delivery of justice for the public.
A new structure akin to these models is, in the view of the judiciary,
a constitutional safeguard made necessary by the creation of the
Ministry of Justice. The third area is the relationship between
the judiciary and the executive. The relationships established
just over a year ago through the Concordat and Constitutional
Reform Act are complex. In addition, an equally complex set of
relationships have been developed to improve the working arrangements
between the executive and the judiciary, some of which are set
out in the papers we have sent to you. Relations with the Lord
Chancellor and a Ministry whose principal function relates to
the courts in our view cannot simply be transposed into a relationship
with a Ministry with wide-ranging responsibilities for criminal
justice and prisons and penal policy. We are very anxious, within
the proper constitutional principles, to continue to develop the
relationship with the executive. However, working out the principles
on which this is to be done and the effect of the operation of
the Concordat and the Constitutional Reform Act is far from straightforward.
For example, judicial representation on the board of the Department
of Constitutional Affairs, one of the important safeguards in
the Concordat, is no longer appropriate for the board of the Ministry
of Justice, given the conflicts of interest to which it will give
rise. A great deal of thought is, in our view, needed to ensure
that the constructive and beneficial work done so far is not de-railed.
Those are, in summary—and it may seem a bit more than a
summary—the views that the working party has begun to address
within the terms of reference. Can I tell you that our meetings
so far have been constructive in identifying all the issues? We
are making progress, but difficult issues of principle still remain
between those involved. These require thought, discussion and
careful evaluation; we do not think they can be rushed. The working
party will report to the Lord Chief Justice and to the Lord Chancellor
as soon as it can. However, it is at this stage impossible to
tell whether the working party will reach agreement on what should
be done or whether the work will reveal (at least in the view
of the judiciary) that the necessary changes cannot be made without
legislation. The papers provided by the judiciary in February
2007 and the memorandum sent by the Lord Chief Justice to all
judges and magistrates on 29 March 2007 (when the creation of
the Ministry was announced) made it clear that the judiciary considered
that the Ministry of Justice should not be brought into existence
until the necessary safeguards had been agreed, given the constitutional
importance of the issues. However, the judiciary's view was not
accepted. Since its creation on 19 March the working party has
therefore been endeavouring to work as quickly as possible. The
pressure of time is imposing a significant burden on all members
of the working party but it falls particularly on the officials
who are supporting us and who bear this weight, and to whom we
are very grateful. We consider that the completion of our work
is urgent in the light of the fact that the Ministry will come
into existence in a week; and, secondly, there are already issues
which highlight the constitutional difficulties which the creation
of the Ministry will bring about. There are pending judicial reviews
in two main areas—legal aid reforms and prisons. These are
two areas of the Ministry's budget which are demand-led but where
the financial provision is in effect already fixed. The potential
conflicts of interest are already evident. The problem in relation
to legal aid is well understood, but possibly the problems in
relation to the prisons need a further word of explanation, particularly
as it is a subject of public interest. Under the present legislative
framework it is the duty of the judiciary to sentence in accordance
with legislation, decisions of the appellate courts and guidelines
issued by the Sentencing Guidelines Council. It is the duty of
the executive to provide the necessary prison places or funding
for community sentences to give effect to those decisions of the
courts. The Minister in charge of penal policy must as a matter
of law implement the decisions of the courts and find the resources
to do so, but his resources are limited by what is provided by
Her Majesty's Treasury. Without new legislation there is simply
no Parliamentary mandate for the judiciary or the Sentencing Guidelines
Council to take resources into account in their decisions or in
formulating guidelines. It is obviously for Parliament to decide
whether it is appropriate for them to do so. One illustration
of the problem is the pending judicial reviews in relation to
prisons (and, in particular, the pressure on the parole system),
which involve issues that, on one view, could have a material
adverse effect on prison resources. There is a potential conflict
of interest in a situation where the financial position of the
courts may be perceived to be at risk from the effect of adverse
financial consequences that judicial decisions may have on other
parts of the same Ministry's budget. The present position is that
the constitutional implications of the Ministry now seem to be
clear. The working party is attempting to find an acceptable solution
within the parameters laid down. However, we cannot predict whether
we will be successful. As I have already said, difficult issues
of principle remain outstanding. In any event, if we are to reach
agreement it will also be necessary to make amendments to the
framework document for the court service, any changes to which
are subject to HM Treasury consent. Furthermore, as the issues
are of concern to the judiciary as a whole, the Lord Chief Justice
has agreed that there will be appropriate consultation through
the Judges' Council. Finally, we take the view that it will be
necessary to embody the terms of any solution in a detailed constitutional
instrument. We consider that clearly further debate and scrutiny
of the issues and the possible solutions is essential both in
the short and long term. We would hope that the Committee would
also permit us to update it when the position of the working party
is clearer.
Q375 Chairman:
Thank you very much; it is an extremely comprehensive statement.
It is not a happy story. We will want to revert, in questions
to you, to the exact status and prospects of the joint working
party, which finds itself at the fulcrum of this, which you and
the Permanent Secretary jointly chair, and the timetable and the
likelihood of it contributing by May 9 to any solution to some
of the many problems you have raised. We will want to revert to
that but I would like to start, appropriately for a Constitution
Committee, with a question about process. When you first heard
of this in January was that a Press briefing, a political Whitehall
story or was it a proposal put to the judiciary?
Lord Justice Thomas: No—and Sir Igor will
be able to help you directly on this—as I recall it there
were articles in the Sunday Press and Sunday media where we first
read of the position.
Q376 Chairman:
That seems to me particularly relevant because in the new greater
separation of powers model, which we are operating in this country
between the judiciary and the executive, it clearly, following
the Concordat, takes two to tango. If what we are faced with is
a unilateral demarche by the government, concealing this, as you
have said in your statement, as a machinery of government issue
rather than one affecting the fundamental relationships between
the judiciary and the executive, it is more likely to be a unilateral
government initiative, which is what it seems to be in retrospect,
and I would like to know, if you could step back from this multitude
of problems that have arisen, and if you can characterise them
from the point of view of the judiciary, how a continuing dialogue
on issues of constitutional significance, would ideally operate
instead of what we appear to have had?
Lord Justice Thomas: Ideally it is important
for people to understand what affects the constitution and what
affects the machinery of government. For example, if it had been
decided merely to split the Home Office in two, without affecting
the Lord Chancellor's Department, it would not directly affect
the judiciary. However, once it was decided to move a significant
part of the Home Office and amalgamate it with the position of
the Department it was not a mere machinery of government change,
and we tried to make that clear and it has taken a little time
for that fact to be appreciated. If it had been accepted that
this was not a machinery of government change but a change which
had serious constitutional implications I would very much have
hoped that what the judiciary wanted, which was actually—as
has happened in other countries where this issue has arisen—a
proper, open examination so that we could have something that
Parliament was content with, the judiciary was content with and
the executive was content with, would have happened, but that
did not happen.
Q377 Chairman:
It could be argued that this is not the first time that we have
been faced in this relationship with this sort of rather hasty
administrative and politically driven initiative without recognising
that in the new dispensation there is a necessity for a joint
approach, as it were.
Lord Justice Thomas: I would say a tripartite
approach because I think it would be wrong to ignore the position
of Parliament.
Q378 Chairman:
That is very flattering of you to say so, and we probably share
that view! There clearly are serious process issues from which
I think we would all hope lessons would be learned, but if I might
just address the substantive issue, which has been a matter of
concern, which is this: do you or Sir Igor have concerns about
the notion that the same government department should be responsible
both for the Human Rights Act, for the preservation of our rights
and liberties on the one hand and for, on the other hand, prisons,
probation, criminal law, sentencing policies, all the things that
would tend, in one way or another to limit or curtail? It seems
in terms of checks and balances it is an uneasy mixture, but maybe
I am oversimplifying it?
Lord Justice Thomas: Could I make one observation
and I will ask Sir Igor to add something? It is right to say that
in a number of countries in the world there are Ministries of
Justice, but those which work properly recognise that there has
to be autonomy of function and clear and transparent mechanisms
within them. So I think it is possible to do this but you have
to make certain that there is appropriate autonomy of decision-making,
for example as regards to the courts in relation to the court
administration, and there would be other illustrations. There
are Ministries of Justice that have within them prosecution departments
and again it is absolutely imperative that you have this autonomy
of function.
Sir Igor Judge: I am only speaking for myself
on this. I am not troubled about the issue of policy and which
government department is responsible for the policy, save and
unless the day may come—and let us hope that it never will,
and I do not anticipate it now—when the government of the
day thinks that its policy reflects the law; then we would have
a difficulty. We are supposed to, and we do, apply the law whatever
the policy of the government, whatever, for that matter, the policy
of the opposition. So I am not myself concerned particularly about
it if the current constitutional conventions apply. I have a different
concern and that is the one that Lord Justice Thomas' paper raised.
May I try and illustrate a particular concern, which is really
the nuts and bolts of it? I happen to know—and I am not
commenting on the individual case—that an individual who
has been sentenced to imprisonment for public protection and therefore
is liable to stay in prison until the parole board decides that
it is safe for him to be released had a determinate sentence fixed
at 12 months. At the end of the 12-month period he is contending
that no arrangements have been made for the Parole Board to examine
whether it is safe to release him or not; that is an issue which
will come before a Judge in due course and, as I emphasise, I
do not comment on it. If judicial review is granted that may have
substantial implications for the resourcing of a section of the
department for which the Ministry of Justice will be responsible
after 9 May—the Parole Board and the prisons. It may have—and
I am not trying to raise this as a terror—very substantial
resource implications for the Parole Board: do they have enough
people doing the work, do they have enough people doing the work
in sufficient time? If the Judge finds in favour of the individual
who is seeking judicial review it may therefore have substantial
resource implications and the question then arises: where is the
money to come from? Fine at present, but look 20 years down the
line and we will have a Minister of Justice who will wonder why
on earth one bit of his department is ordering another bit of
his department to spend money and he may take the view that spending
the money is for him. The other side of the coin—and this
always matters—is the view of the individual. If his judicial
review fails, the thought may cross his mind—it would be
unworthy but it may nevertheless cross his mind—that the
Judge was influenced in his decision against him by the fact that
there would be a huge cost imposed on the Ministry, of which the
judiciary formed a part in financial terms. It is those sorts
of practical issues—and that is one little example—that
we think need to be addressed. The policy questions follow—the
legislation results from policy, but then we have to look at the
legislation that has been produced and those are the sorts of
issues that will arise.
Q379 Chairman:
I think you can probably detect that there is a lack of sympathy
in this Committee for what seems to have been at best a very ragged
and hasty process, but a cynic might say that all of this is a
great deal of huffing and puffing about money and that the issue
really at root, the concern to you and your colleagues—and
it is an understandable one—is that the adequacy of the
funding necessary for you to do your important and necessary work
as a result of these changes becomes potentially contingent on
other governmental priorities and that everything else is, as
it were, a dignified cloak for, "Let us make sure that we
are financially viable."
Sir Igor Judge: The cynic would be wrong. That
is the short answer, if I may say so, and the reason he would
be wrong is because he is failing to appreciate that judicial
independence and the proper funding of the judiciary is actually
something that belongs to the community. We do not sit in judgment
in flummery saying, "Judicial independence for our own sake."
The independence of the judiciary is something which is precious
to every single member of the community. You must be able to go
into court and know that the person sitting in judgment is neutral—not
on one side or the other—coldly applying the law that applies
to your case. So although people sometimes think that when we
defend judicial independence we are simply defending our own corner,
acting as a trade union, if I may say so, that is not the case—we
simply are not. The issues which arise here are of great importance
to every member of the public.
Chairman: Thank you for that; I am glad
you have said it and you have repelled my cynicism. But there
is an interesting mixture here of trade union issues, as you put
it, and constitutional issues and it is the logic of the Act and
the Concordat that the judiciary should have its proper and adequately
assured sources of finance to do its job, but the running together
of the issues in the argumentation does sometimes make it difficult
for those of us trying to follow it sympathetically.
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