Examination of Witnesses (Questions 471
- 479)
WEDNESDAY 9 MAY 2007
PROFESSOR ROBERT HAZELL, PROFESSOR TERENCE DAINTITH
AND PROFESSOR ALAN PAGE
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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