Examination of Witnesses (Questions 400
- 411)
TUESDAY 1 MAY 2007
LORD JUSTICE THOMAS AND SIR IGOR JUDGE
Q400 Lord Woolf:
You have talked about the fact that there is the working party
and you have told us one parameter, legislation. What are the
other parameters which are ones that you cannot go outside?
Lord Justice Thomas: They do not want any changes
to the Concordat, any changes to HMCS's status as an executive
agency, no ring fencing of budgets and ultimately the Lord Chancellor
has to decide, subject to his statutory obligations, on budgetary
issues.
Q401 Lord Woolf:
So you are not allowed to discuss in the working party, as I understand
it, the ring fencing or the budget?
Lord Justice Thomas: No.
Q402 Lord Woolf:
Am I right in thinking that was one of the conditions that the
judiciary thought should be met if there was to be this new ministry?
Lord Justice Thomas: We think that there is
an equal importance to setting the budget as to ring fencing the
budget once established. I think we have always accepted that
there could be quite exceptional reasons why there was a problem.
So we have never said you have to have absolute ring fencing,
but we have always said that once the budget is agreed the court
administration should be left to get on with administering the
courts, providing the administrative infrastructure, and there
should in effect be no interference with its budget.
Q403 Lord Woolf:
You also mentioned that you have looked at other jurisdictions.
Lord Justice Thomas: Yes.
Q404 Lord Woolf:
I noticed in evidence that has been given by the Lord Chancellor
that reference is made to Scotland.
Lord Justice Thomas: Yes.
Q405 Lord Woolf:
In Scotland are there steps which are being taken to achieve what
you have just described?
Lord Justice Thomas: What has happened in Scotland
is that the Scottish executive put out a consultation paper and
one of the areas that was raised in the consultation was the budget
and the operation of the equivalent of the court service. The
Judges responded to the consultation paper in about February of
this year and the Scottish executive said that it wanted to consider
the matter further, but of course at the moment I would imagine
that no decision could be made until next week, at the earliest.
So the issue is live there. This issue has been looked at very
thoroughly; for example, at the moment it is being looked at in
Canada. It has been satisfactorily resolved in the Republic of
Ireland, in Denmark and Holland where, if one speaks both to the
Judges and to the administrators, they have a system that is workable
and that has improved everything from the point of view of everyone
and in particular the public.
Q406 Lord Woolf:
But you cannot, as part of your discussions in the working party,
as I understand it, develop the Irish example.
Lord Justice Thomas: We think that it may be
possible to get pretty close to it but that is where we may not
be able to, but I think it is very difficult to have a working
party and try to reach through discussion some sort of solution
without actually leaving my answer to it there.
Q407 Lord Woolf:
One last question. What are the prospects of the working party
coming to any consensus by May 9?
Lord Justice Thomas: I would think it is very
difficult because these issues are complicated. Again, we are
trying—we have worked hard many nights, and I know the department
has worked hard many nights, and we will continue to do so.
Q408 Chairman:
I think an objective observer would be rather gloomy that with
the changes due to take place on May 9 and these very large unresolved
issues—including no-go areas, which seem incomprehensible
to me, but there we are, it does not seem like an equal negotiation—that
with negotiation under that sort of pressure will you not on May
9 lose all leverage in that joint working party to arrive at the
proper agreed solutions that concern you?
Lord Justice Thomas: I would hope not because
if the position is on May 9 that we have not agreed but are making
progress, if the Lord Chancellor was to take the position that
now it was in being and he need not negotiate very further, then
there would be a very serious constitutional problem. I am sure
he will not do that.
Chairman: I am sure he is listening very carefully
to the point. I am afraid it will have to be the last question,
but I would like to bring in Baroness Quin.
Q409 Baroness Quin:
On a number of occasions already you have mentioned the experience
in other countries and I know that the Judges' Council has carried
out a comparative survey of the processes and institutions in
terms of judiciary-executive relations in other European legal
systems. Are there any points in relation to that study which
you have not already made, about which you would like to take
the opportunity of informing the Committee?
Lord Justice Thomas: I think not. I think what
is very important is that these are very serious issues and in
almost every other country there has been a proper—as we
asked for at the beginning—and detailed examination, so
that you come to a solution that is acceptable across the board
to the executive, to the legislature and to the judiciary and
actually you get a solution that is long-term for the benefit
of the public. I think that is the most important lesson. The
only other thing I would say is that when we look at court administrations
in other countries there is a question as to how you constitute
the board. For example—and pray excuse me if my memory is
wrong—in two countries, of which I think one is Hungary
and the other is Norway, to ensure that the legislature has its
proper interest in court administration there are members of the
legislature who sit on the board. In other countries you have
people who represent the legal profession, you have people who
represent people who work in the court administration at a lower
level and you have experts in finance; but the importance of the
constitution of the board, which has been addressed in these countries,
shows how important court administration is and how it is a matter
of real public interest and not something where a political minister—using
the word as a political appointee—should really have any
role at all.
Q410 Baroness Quin:
Could I just follow that up by saying in the classic split between
the Ministry of Interior and Ministry of Justice, which you see
in many the European countries, is there a minister who is an
obvious defender of the judiciary, and if there is not does that
matter?
Lord Justice Thomas: I think we have been very
fortunate in the way our constitution has developed and I hope
this will always remain, that we have had the special position
of the Lord Chancellor, and I know at the time of the debates
on the Constitutional Reform Act there were various ideas that
he should be made into the sort of protector of the constitution.
It is very important for our harmonious working of the constitution
that there is some minister who has a specific responsibility,
but some of the continental systems work differently—they
have differently constituted Judges' Councils—and as far
as I am aware the issue of having someone with special responsibility
has not been addressed, but I will certainly look into that and
come back to you, if I may.
Q411 Chairman:
May I thank you both very much. It is very good of you and we
have found the evidence—I cannot say cheering—extremely
revealing and I am most grateful to you both for coming.
Lord Justice Thomas: Thank you very much indeed
for taking an interest in what to some might appear a very abstruse
subject.
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