Examination of Witnesses (Questions 380
- 399)
TUESDAY 1 MAY 2007
LORD JUSTICE THOMAS AND SIR IGOR JUDGE
Q380 Baroness O'Cathain:
One of the things you stressed very firmly was that the Lord Chancellor
said there should be no legislative changes. In the working party
have you taken, as a side issue, the consideration of what legislative
changes would be necessary in order to make this run smoothly
and to do away with the sorts of problems in terms of resources,
both human and financial?
Lord Justice Thomas: We are precluded by our
terms of reference.
Q381 Baroness O'Cathain:
You are not allowed to even consider it?
Lord Justice Thomas: No. But we wonder whether
we can achieve acceptable constitutional safeguards within it.
If we cannot, because of those parameters, the judicial members
of the committee will say so, but we are not allowed; the Lord
Chancellor has stipulated—and that was the term on which
the working party was established—that it had to work on
the basis that there would be no change to the legislative framework.
Q382 Baroness O'Cathain:
Could you not have said, "We will not do that"?
Lord Justice Thomas: We were faced with a very
difficult position. Our position at the start had always been
that this was a constitutional question. If we look at what happens
in other countries there has been a proper debate, an examination.
That was refused. And because we were always worried—we
were told that this is the view of the government, it was a machinery
of government change and it could be made by a ministerial announcement
very suddenly—we felt that if we were to try and protect
our position we had no alternative, but we always made it clear
that if we could not achieve proper constitutional safeguards
through a solution that did not involve legislative change we
would say so, and that is the position we have maintained throughout.
Q383 Chairman:
The Lord Chancellor in the past from time to time properly acted
as a counterpoint to the Home Secretary, both in terms of the
independence of the judiciary and the rule of law. Would it be
as easy for him, do you think, to continue to defend the independence
of the judiciary, especially over some of these sentencing issues
once he is responsible for criminal justice? Will that be as easy
as it was?
Lord Justice Thomas: I think the conflicts that
are being put into one person will make it progressively more
difficult as future ministers no longer have the tradition of
the office. I think one of the problems we saw was that there
was a big change in the position of Lord Chancellor as head of
the judiciary to Lord Chancellor not as head of the judiciary.
One way of looking at the current change is from Lord Chancellor
to a quasi-Home Secretary where the relations with the judiciary
have been very different. So I think it is inevitable over the
process of time, it seems to me, that the tensions will become
very considerable.
Q384 Chairman:
There is a transition from head of the judiciary, which is what
he was, to defender of the judiciary to what now?
Lord Justice Thomas: He will remain the defender
of the judiciary and I have no doubt that Lord Falconer will continue
to do that, but one has to look forward and actually realise that
you are placing in the person of one man—or one woman—as
it goes forward a much more difficult balancing act and that,
I think, is the problem.
Q385 Chairman:
Would you expect there to be a lot more judicial review challenges
now?
Lord Justice Thomas: There have always been
a lot of judicial review challenges at the Home Office. Sir Igor
will be able to help you on that.
Sir Igor Judge: There will undoubtedly be a
very substantial increase in the number of judicial review applications
against the Ministry of Justice than there ever were against the
Lord Chancellor as an individual Minister, simply because great
tranches of judicial review relate to prisons, parole—in
particular prisons—what happens to prisoners, are they released
on time and so on and so forth. So the answer to your question
is undoubtedly yes.
Q386 Viscount Bledisloe:
Following from that, on the other side, under the Constitutional
Reform Act there is meant to be a lot of dialogue between the
Lord Chief Justice and the senior judges like yourselves with
the Lord Chancellor and his department. Is it going to make it
extremely difficult to do that if they are defendants in a large
number of judicial review cases?
Sir Igor Judge: Yes.
Lord Justice Thomas: It is. It is an issue that
the working party has begun to discuss. The one thing that is
of paramount importance is that the Lord Chief Justice must sit
in the major cases—it is his job, primarily, to decide them.
It would be awful and very damaging, I think, to the judiciary
as a whole that because of the need to maintain the dialogue under
the Concordat with the Lord Chancellor there was any perceived
difficulty with him doing that. One always must look, as Sir Igor
has said in an earlier answer, at the perception from the point
of view of the litigant. We may understand that if two people
meet together to discuss an issue under the Concordat they would
never discuss the case, but actually what is the perception of
the litigant? That is terribly, terribly important.
Q387 Viscount Bledisloe:
However ingenious a solution you and the Lord Chancellor's Department
come to, is the litigant himself going to believe in this separation
and indeed is Strasbourg going to believe in this separation?
Lord Justice Thomas: As I have said, we have
identified this as an issue. It is one of the very difficult questions
that you start to unpick as you examine the constitutional implications
of the change and we have not begun to work out a solution to
this particular problem yet.
Q388 Baroness O'Cathain:
The Lord Chief Justice wrote a letter of 29 March to the Judges'
Council that stated, "We have demanded that structural safeguards
are put in place if the new ministry is not to threaten the due
and independent administration of justice". What, in your
view, are the structural safeguards that are needed?
Lord Justice Thomas: I think there are two essential
ones, that the budget for the courts and any change to it is set
in an open and transparent manner, and I regard setting the budget
as important as the changes to it. The second is the independence
of the court service administration. It is very difficult to see
why a minister should any longer, when he has these very wide
responsibilities, have any need, save in exceptional circumstances,
to intervene in the affairs of an executive agency or an agency
whose sole function is administration, and those are the two,
in our view, fundamental safeguards. The third is making certain
that we have put relationships to the new ministry on a basis
where there is clear understanding. We are anxious to have, as
we have in this country much more than in many others, a good
dialogue between the three branches of government, but the one
thing that is essential to that is everyone understands the true
limits—we can discuss things provided we each know the limitations.
Why I used the word "derail" in what I said to you earlier
was that if you do not have clear understandings and people go
beyond the limits you then make it very difficult to continue
the dialogue, and dialogue, I think, between the branches of the
government is essential to make it work properly.
Q389 Baroness O'Cathain:
But there were safeguards contained in the Constitutional Reform
Act, were there not?
Lord Justice Thomas: Yes.
Q390Baroness O'Cathain:
Is there an overlap?
Lord Justice Thomas: They were designed for
the position of the Lord Chancellor qua Lord Chancellor; they
were not designed for the position of Lord Chancellor qua Minister
of Justice, and that is the fundamental change.
Q391 Chairman:
So is the logic of that that the Concordat, the founding understanding,
will need in some way updating something of that—as I think
it has been described—quasi entrenched character. Will that
need in some way to be updated?
Lord Justice Thomas: I have referred in my evidence
to one issue. One of the protections we had in relation to the
financial position of the courts was an agreement that the Senior
Presiding Judge should sit on the board of the ministry, and it
seemed to us that that was acceptable given the narrow remit of
the Lord Chancellor's Department. We have taken the view that
it would be wholly inappropriate for a Judge to sit on the board
of a ministry where there was a conflict between how much should
we spend on prisons or how much should we spend on the courts,
and so that safeguard, in our view, has gone and we need to put
other safeguards in its place and maybe adjust other provisions
of the Concordat.
Q392 Chairman:
Is that what you had in mind when you said that this might in
the end need legislative change?
Lord Justice Thomas: We hope it will not but
we do not know. I am sorry not to be more clear about this, but
I think as we found when we came to look at how you unravel the
office of the Lord Chancellor these things are more complex than
at first sight might appear.
Q393 Chairman:
As indeed constitutional issues are, and I think we are all in
a learning curve.
Lord Justice Thomas: That is why, if I may say,
we said at the beginning that this is an issue that needs thought
and scrutiny and help, and we are therefore very grateful to you
for your help and scrutiny.
Q394 Lord Goodlad:
Could I ask you, Lord Justice Thomas and Sir Igor how, if and
when court funding is squeezed the resulting disagreements between
the judiciary and the new department will in practice be resolved?
Lord Justice Thomas: We are still in the process
of discussions but, as I said, it seems to me—and this is
what happens in a number of other countries—if ultimately
the judiciary and the executive cannot agree, it is, after all,
Parliament that decides on the appropriations and it must ultimately
therefore be for Parliament. This is what happens in a number
of other countries. One would hope it would very rarely come to
that but you always, in my view, have to build in a process with
some form of resolution, and constitutionally it must be Parliament.
Q395 Chairman:
Would you expect that what the Lord Chief Justice calls the nuclear
option of his being able to go directly to Parliament would have
to be called into play in order to get that concentration on the
issue?
Lord Justice Thomas: I would hope it would rarely
happen because I would hope that if we can put in place what I
would describe as an open and transparent method of setting the
budget then one would hope that that would not have to happen
very often. My understanding is that in those countries where
recourse to Parliament is an option it has never yet happened.
Sir Igor Judge: There is a problem with nuclear
options, which is that you cannot keep using them.
Q396 Chairman:
There is nothing left after the first one.
Sir Igor Judge: Exactly, therefore we really
do not ever want to get into that position and part of our concern
is so that we should achieve an arrangement in which we never
in reality do get to such a position.
Q397 Chairman:
What that suggests, does it not, is that it is not enough to have
dialogue—dialogue is a very good thing, dialogue is excellent—but
we really seem to be saying that we need dependable processes
that over time can deal with these proper, maybe inevitable points
of tension and we need processes in place and not simply a good
chat from time to time, is that right?
Lord Justice Thomas: That is absolutely right
because our view is that this is a fundamental change which has
to last to the future and we must have proper process.
Q398 Viscount Bledisloe:
When you say it should be decided by Parliament, presumably you
mean that a Parliamentary committee would sit on this and make
a report, rather than it should be debated on the floor of the
House of Commons?
Lord Justice Thomas: I think it would be presumptuous
of me to seek to advise Parliament as to how it should carry it
out. That is an issue which we have not addressed but it is I
think presumptuous for me to say to you how you should do your
work.
Q399 Chairman:
Although there is much wisdom in this House we have no control
over money, of course.
Lord Justice Thomas: No, but the other House
does. But how you do that I think is a matter for discussion;
I would not presume to advise.
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