Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 471 - 479)



  Q471  Chairman: Good afternoon, gentlemen, and welcome. Thank you very much for coming and helping us with our deliberations. For me it is the second time today being with Professor Hazell; always a great pleasure. I wonder if you would be kind enough just for the record to identify yourselves.

  Professor Page: I am Professor Alan Page, Professor of Public Law and Dean of the School of Law, University of Dundee.

  Professor Daintith: Professor Terence Daintith, Emeritus Professor of Law, University of London

  Professor Hazell: Professor Robert Hazell, Director of the Constitution Unit at University College London.

  Q472  Chairman: Thank you very much. I think you know we are doing an inquiry into executive/judicial relations which have been given particular point by the initiation today of the split of the Home Office into two component parts. I know, Professor Hazell, you were kind enough to prepare an introductory statement and we have had a chance to look at it but if you would like to speak to it briefly and make the highlights from it, we would be happy to hear that.

  Professor Hazell: Thank you. I essentially want to make three or four points, which I hope will only take three or four minutes at most. The first is the most important, I think, and that is to suggest to the Committee that the gradual separation between the executive and the judiciary, which started in 2005 following the Constitutional Reform Act of that year, was always going to be a process and not a single event. I believe that it was bound in time to lead to demands from the judiciary for further separation, and those demands are now beginning to emerge, so although the Ministry of Justice has provided the occasion for those demands to be formulated by the judiciary, I do not myself believe that the Ministry of Justice is itself the cause. The second point, and flowing from the first, is that the Concordat between the Lord Chancellor and the Lord Chief Justice, which was finalised in 2005 in association with the passage of the Constitutional Reform Act, would have been extraordinary if it had got everything perfectly right first time, and I would like to suggest again that as the new arrangements settle in, it will almost certainly need revisiting. There are several issues which I think the judiciary may want to reopen on their side, including the arrangements for complaints and discipline, for the administration of the courts, and for settling the budget of the courts. And the third general point, if I may—and I will stop after this one—is that the UK is not alone in considering greater autonomy for the judicial branch. It is not alone of course in having what you might call in shorthand an executive model for managing the courts. The executive branch of government manages the courts service in Canada, in New Zealand and in most of the Australian states, and in eight countries in Europe, including Austria, the Czech Republic, Finland and Germany. Interestingly, there is a recent trend throughout Northern Europe to introduce greater separation of powers between the executive and the judiciary, and as part of that to give the judges greater responsibility and control for managing the court service, and that is all very helpfully evidenced in the further material submitted by the Lord Chief Justice to this inquiry, which you in turn very helpfully published on your website so I need not take you through any of the details of that. That is all I would like to say by way of introduction.

  Q473  Chairman: Very helpful. Could I just ask you a quick supplementary? It has been represented to us, and one can see the force of this, that the Concordat has a quasi constitutional status, that it is a keystone of the arch as it were of the new dispensation and it is not just any other clause from any other bill, it has a special significance. If that was so, how easy is it to update it, to adumbrate it, to change it? Is it possible for it both to have this locking constitutional status and at the same time be an amendable updatable bit of practical mechanics?

  Professor Hazell: Professor Daintith and Professor Page may well want to comment on this also, I hope they will. To my mind it has the status of a constitutional convention, and all constitutional conventions are liable to evolve over time in the light of experience and new circumstances, and I would be very surprised if the Concordat did not itself evolve partly in its interpretation, as other conventions have evolved, but partly it could be revisited, and I hope at some point it will be revisited, and possibly this inquiry could provide the trigger for that. I do not think myself it is written in tablets of stone.

  Q474  Chairman: Can I just get an answer from your other two colleagues? Professor Daintith?

  Professor Daintith: Yes, I quite agree with that. I would expect the Concordat to be developed and modified over time and that process to my mind in no way impairs its constitutional significance. Indeed it is part of the genius of the British constitution to evolve in this way and I would expect that to happen in this instance.

  Q475  Chairman: Thank you very much. Professor, do you want to add anything?

  Professor Page: The only thing that I would add is that the Concordat is, as I understand it, given statutory effect to a greater or lesser extent in the Constitutional Reform Act which in turn has consequences for the process of amending the Concordat. We are not simply talking about revising a convention; we are actually talking about changing legislation.

  Chairman: That is very helpful.

  Q476  Viscount Bledisloe: Taking the parts of the Concordat that are not in the statute, do you consider that they are amendable by the two parties to the Concordat or does Parliament have some role in blessing an amendment because Parliament may say, "Well, the Lord Chief Justice has given way on this but we would not have passed the Bill if the Concordat had been weakened to that extent"?

  Professor Hazell: That is of course a matter for Parliament. If this Committee were to recommend that the Concordat at some point be re-visited, the Committee might like to add the rider that the Concordat having been revised by the two originating parties Parliament might want to scrutinise that revised draft. It is a matter for yourselves, if I may suggest.

  Q477  Chairman: But it is a matter for three parties?

  Professor Hazell: Yes.

  Q478  Viscount Bledisloe: That is really the question, is it a matter for two parties or three parties? Can the two parties just come along and say, "We have amended it, bad luck"?

  Professor Page: Ideally it should be a matter for the three parties. One of the ironies of this process is that the third party makes fleeting appearances from time to time but it does not have an established role in the process, which I would have thought, without any question, it should have on matters as fundamental as this.

  Professor Daintith: We are not perhaps very familiar with purely judicial/executive arrangements in this country for reasons which are rooted in the constitution, and for that reason I think the Concordat does confront Parliament with a rather new kind of issue.

  Q479  Chairman: Indeed, the three party/two party question. I would like to move the focus back more widely to the question of the reforms that have been instituted today, the introduction of the Ministry of Justice. The question which is exercising the Committee is is this purely a machinery of government sort of change led in the traditional way that governments change departments' responsibilities, or should it be regarded as having at least elements of significant constitutional change about it, and if it is the case that it is at least constitutionally tinged, if not more, then the question would be what would be the proper process in a more ideal world of prior consultation both with the judiciary and Parliament? Professor Daintith, perhaps you would care to start off on that?

  Professor Daintith: There is certainly a way of looking at this which says this is another example of machinery of government changes, it is a further accretion to the range of responsibilities of DCA, the Lord Chancellor, and as such it fits firmly within a structure with which we are familiar which we have been using for 60 years now; so be it. My view would be that even though it continues to have these formal characteristics—seen against the background of the changes which culminated in 2005 it takes on a different complexion, and I think your wording of "constitutional tinge" is very much the way that I would see it. That does, I think, bring us again to uncharted territory in the sense first that we cannot quite see how Parliament should be involved in a matter which involves both of the other arms of the constitution and, secondly, provision was not explicitly made in the Concordat for any kind of discussion in this sort of area, and we have therefore seen government, move ahead as if it was simply in a pre-2003 situation and nothing more needed to be done other than to tell people what it was going to do. Having said those things, I must say I do not immediately have a proposal to make to the Committee as to the precise machinery which should have been applied in this particular case. Clearly if prior consultation with the judiciary did not take place before the announcement was made, or before the proposal was fixed in the mind of government, then I think that is very unfortunate, and one would hope that in any future case bearing on the administrative structure relating to the discharge of judicial functions that omission would not occur. To go beyond that, to suggest a specific machinery in this case is a step I would not yet be able to take.

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