Examination of Witnesses (Questions 480
- 500)
WEDNESDAY 9 MAY 2007
PROFESSOR ROBERT HAZELL, PROFESSOR TERENCE DAINTITH
AND PROFESSOR ALAN PAGE
Q480 Chairman:
Thank you. Do either of the other witnesses care to add anything?
Professor Page: Could I make two points? One
is a brief historical point, if I can make it briefly, which is
this idea that changes to the machinery of government are a matter
for the executive and the executive alone is actually relatively
recent. It was the case in the not-too-recent past that new departments
were established by statute which did in the normal process provide
opportunities for deliberation and consultation, and you could
say that the setting up of a Ministry of Justice is the kind of
change that would have benefited from that process. That is one
point that I would like to make. The second point that I would
like to make to is to pick up what Professor Daintith was saying
about the constitutional complexion of this. It is not just a
machinery of justice change because it does have a very real constitutional
significance, which is the point that Professor Hazell raised,
namely the consequences for the relationship between the funding
of the judicial system and judicial independence. I think that
is the key constitutional issue which is raised by this machinery
of government change.
Professor Hazell: I agree that the change has
constitutional implications in terms of a better process to follow.
The Committee may already be aware that the Public Administration
Committee in the House of Commons has held an evidence-taking
session on precisely this point. The witnesses were Lord Butler,
the former Cabinet Secretary, and Professor Christopher Hood from
Oxford, and from memory they made two main points, that there
should have been proper consultation, but they made a further
point which was a warning especially from Lord Butler that in
his experience of other similar changes in Whitehall, be it merging
or demerging major departments, the changes absorb a huge amount
of senior management time, often much more than is initially anticipated,
and it can take not months but years for a new department to bed
down.
Chairman: That no doubt is true managerially
but quite how significant constitutionally it is is a different
matter. Baroness Quin?
Q481 Baroness Quin:
You were saying, Professor Page, that it was relatively recent.
Can you put a date on that and whether there was a big discussion
when the system changed?
Professor Page: The early 1960s. In 1964 the
first Wilson Government set up three departments by statute. However,
at the end of the Second World War there was discussion about
it. That was when the transfer of functions legislation was first
introduced and statements were made at the time that when they
were talking about not just minor transfers of functions but the
setting up whole new departments then, as in the past, that would
continue to be done by way of statute, by way of primary legislation.
Of course, that was just quietly forgotten about because it is
enormously convenient from the point of view of the executive
to be able to do this with the minimum amount of legislative encumbrance.
Q482 Lord Rowlands:
The Welsh Office was never created by statute.
Professor Page: But the Welsh Office was, what,
1969?
Q483 Lord Rowlands:
1964.
Professor Page: That was one of the first examples
then of the new dispensation.
Q484 Lord Goodlad:
In terms of the capacity within government to deal with "rule
of law" issues and to defend the independence of the judiciary
what are the implications of combining the responsibilities of
the Lord Chancellor and Secretary of State for Constitutional
Affairs with new responsibilities for criminal law, sentencing
policy, prisons and probation?
Professor Page: I think it raises the fears
that we have already referred to and which have been expressed
by the judiciary throughout this process. I think that is the
main implication. I do not think there is anything objectionable
itself in this combination of responsibilities. I say that coming
from a part of the United Kingdom which has a Ministry of Justice
which combines not only these functions but also responsibility
for policing as well, but I think to repeat what I said earlier,
that is the constitutional significance of the change.
Professor Daintith: Yes, I would say if you
take that factor away, it is not easy to see exactly what new
problems will arise. If one tries to imagine how these functions
might interfere with one another, that seems quite difficult,
looking at the way in which a department would be structured with
its separate agencies, for example, within the department—prisons,
say, and Her Majesty's Court Service—with an appropriate
range of junior ministers each of whom will have commitment to
a particular part of the department. If we take away the financial
considerations, which we may talk about further, I would feel
relatively comfortable with this particular grouping.
Q485 Chairman:
Perhaps this is an over-theoretical issue but it is one I would
like your perception of, which is in this context the Lord Chancellor,
as it were, policing himself. He is responsible within Cabinet
for seeing that the rule of law is respected and that the judiciary
are independent, that is clearly his responsibility, but to what
extent is he then, which I think is objectionable in the law,
a judge in his own cause because he is at the same time theoretically
responsible for ultimately blowing the whistle on himself? Is
there an intellectual problem there?
Professor Hazell: I think that problem already
existed in the Department for Constitutional Affairs and before
that in the Lord Chancellor's Department because both those departments
were responsible, for example, for the Legal Aid Fund, and policy
on Legal Aid is sometimes the subject of challenges by way of
judicial review, which may lead to spending implications, and
so there is a conflict of interest at least to that extent built
in in the old arrangements.
Q486 Chairman:
Yes, so it is nothing new?
Professor Hazell: No.
Professor Daintith: We might say that the Lord
Chancellor perhaps is less likely to yield to irritations of the
moment and criticise judges in his position as Lord Chancellor
than would the Home Secretary in his position.
Q487 Chairman:
Make it more sympathetic.
Professor Daintith: Yes, it may actually produce
the "Caesar's wife" syndrome.
Q488 Baroness Quin:
I think this question is a variation on a theme. Do you have any
concerns about the same government department being responsible
for the Human Rights Act and its emphasis on the rights of the
individual and prisons, probation, criminal law and sentencing
policy which obviously are related to the curtailment of liberty?
Professor Daintith: I think I would have to
imagine a fairly remarkable scenario to get concerned about that
and the sort of scenario would be in which, say, one part of the
department put pressure on another part of the department to somehow
go easy on human rights. Given that the Department in this case
has a role of promotion and monitoring and general oversight of
human rights policy rather than, as it were, some kind of core
responsibility for making sure that everybody behaves themselves
in terms of human rights, it does not seem to me that even that
pressure would be very important and I cannot really imagine it
being exercised. The other scenario you could try to imagine would
be if, for example, the Home Office responded to a DCA circular
or MoJ circular saying, "What are you doing about human rights?"
by saying, "Well, what are you doing, you don't seem to be
doing very well recently?" I can just about imagine that
but I cannot really see it as a significant constitutional danger.
Q489 Baroness Quin:
Given your experience of other jurisdictions, has this ever been
a problem elsewhere or is it not something that causes difficulties?
Professor Hazell: May I respond briefly to that
because it is helpful that there are real live ministries of justice
amongst our close Commonwealth constitutional cousins in Australia,
Canada and New Zealand, and we will benefit in a moment from hearing
from Professor Matthew Palmer from New Zealand. My understanding
is that in Canada and New Zealand, where they both have a bill
of rights, the Ministry of Justice in New Zealand and the Department
of Justice in Canada are also both responsible for criminal law
and criminal justice amongst their functions, and I do not think
that has given rise to any difficulty in practice.
Chairman: Thank you. We will move on
to Lord Smith.
Q490 Lord Smith of Clifton:
Gentlemen, in terms of workload, is it realistic to expect one
person to take overall charge of all the responsibilities of the
Lord Chancellor and Secretary of State for Constitutional Affairs
as well as a significant proportion of the Home Secretary's responsibilities?
Is there any possible danger that constitutional and legal matters
will be neglected in favour of issues such as prisons?
Professor Page: I would have said simply in
response to that that is entirely a matter and comes down to a
matter of the organisation of the department, the way in which
the Ministry is actually organised, and if it is organised in
a way which ensures that due prominence is given to the various
aspects of its responsibilities for which organisation the Minister
and Secretary of State is ultimately responsible, so, no, I do
not have any real concerns.
Q491 Lord Smith of Clifton:
So you put your faith in some sort of Chinese walls?
Professor Page: No, I just put my faith in departmental
organisation. I would have thought Chinese walls would be in some
sense highly undesirable.
Q492 Chairman:
It is a matter clearly of legitimate opinion but I suppose the
division of the Home Office to some extent—and this has
appeared in the newspapers—is a reflection of the view that
that was too big a workload for one department, so however well
organised it was too much so I suppose the implication of Lord
Smith's question is is this new constellation prima facie too
much or just a matter of getting on with it?
Professor Page: Has clarity of focus in one
part of the system been achieved at the expense of loss of clarity
and focus in another? It is a danger.
Professor Hazell: May I respond partly drawing
on my own experience as a civil servant for 14 years in the old
Home Office. It depends enormously on how much the Secretary of
State as head of the department is willing to share the workload
with his junior ministers, and that in turn depends to some extent
on how much the Prime Minister encourages members of the Cabinet
to share their workloads with junior ministers. It depends also
on the political interests of the Secretary of State himself or
herself. It happens that the present Lord Chancellor is keenly
interested in constitutional matters and they get his close attention.
Perhaps this Committee also can help to ensure that any future
Lord Chancellor will continue to take a close interest in constitutional
matters through the kinds of issues which you choose to take an
interest in.
Q493 Chairman:
I expect we will do our best but would you think that within this
new constellation that constitutional affairs, for instance, might
find themselves hived off to a junior minister?
Professor Hazell: I would be surprised if that
were the case.
Professor Daintith: But it could be. It is interesting
to notice how difficult it is to find constitutional affairs within
the organisation chart of the department. You have to look very
hard for it and when you find it, you realise that it includes
a number of other things which could be seen as being of serious
significance such as electoral matters. Although it is very important,
in terms of personnel it is a pretty small part of what the Department
does and it is dwarfed obviously by HMCS, it is dwarfed by the
Prison Service, but I do not think that is necessarily the way
in which we should think about this issue of overload. It is worth
remembering that the Lord Chancellor was always thought to be
overloaded at a time when the size of the Department was far,
far smaller. The Lord Chancellor would be in court in the morning,
on the Woolsack in the afternoon, and doing his departmental business
in the middle of the night.
Q494 Lord Lyell of Markyate:
The judiciary, who were before this Committee last week, you have
probably seen what they said, seemed to have their feet pretty
much on the ground in the same territory that they have had them
on the ground for the last 20 years, and probably much longer,
in that they have called for safeguards in the form of an open
and transparent process for setting and amending the annual budget
for running the courts (with Parliament as an arbiter if the judiciary
and the executive disagree). They also called for greater autonomy
from ministers for Her Majesty's Court Service. In terms of constitutional
principle, how do you see the pros and cons of moving in that
direction and is it realistic to suggest that Parliament could
have a role when disputes arise?
Professor Daintith: There are two or three questions
there I think which one would not necessarily want to answer in
the same general sense. One question is the question of autonomy
from ministers, and it seems to me perfectly feasible within British
constitutional practice to imagine a more autonomous Her Majesty's
Court Service. Executive agencies have different degrees of autonomy.
I know that the Government have ruled out legislation but it is
clearly not impossible to put an executive agency on a legislative
footing and effectively make it into a non-ministerial department.
That would give you a great deal more autonomy. It would create,
however, the sorts of difficulties to which the judges themselves
drew attention in their evidence, that is to say difficulties
of judicial accountability to Parliament, how to manage that particular
problem. If you make the service more independent of ministers
and more dependent upon decisions by judges, how then do you answer
for the consequences of those decisions to the department? That
is a serious issue. In terms of the financial question I do find
it quite hard to put a framework around what the judges have asked
for, in terms of an open and transparent process of fixing a budget
in which Parliament would in some way be involved, presumably
at a fairly early stage, in order that it could arbitrate at some
point down the road. Given that I would have expected judges always
to be saying they wanted more money for the Courts Service than
the department or the Treasury were prepared ab initio
to give, I would have thought that you would always tend to be
in a situation where there was at least an odour of disagreement
floating around. I do not quite see how an open and transparent
process can go on, therefore, without risking the production of
considerable disagreements and a quite difficult constitutional
situation, year by year, in relation to the fixing of this budget.
That is if judges are significantly involved in the process. If
they can stay out of it somehow and achieve this autonomy, that
would be perhaps the best way through, but my understanding is
that they do not really want to stay out of it.
Q495 Lord Lyell of Markyate:
I think the reality, going back again to my experience on Legal
Aid and on the general costings of the Courts Service in the late
1980s, and the way that budgeting was done in the Attorney General's
department, they would like to set out their stall in a pretty
clear way—and I think this is what they would call transparent—as
to why they needed more money; and then they would like to get
the money that they were awarded ring-fenced because, as they
told this Committee—and one can understand it—when
the pressure for money on, for example, building more prison places
is heaving very strongly, they can see the Legal Aid budget, or
particularly the Courts Service's budget, getting squeezed, and
that is what they are frightened about. Of course, now quite a
number of them are spending a lot of their time doing administration,
and it will be quite a serious problem for the really top-quality
judicial power—being deflected on to admin.
Professor Daintith: Yes, but I think that is
the price that has to be paid for serious input into the process
of determining the appropriate level of servicing for the judicial
function. Unless judges are prepared to say, as they were at some
points prepared to in the past, "We will trust the Lord Chancellor
to provide the services we need", there will need to be that
kind of organised input from the judiciary. So far as the notion
of putting out your stall is concerned, again the question in
my mind is who exactly is going to set out the stall? Is it HMCS
and, if it is HMCS, is the judiciary going to be satisfied with
the degree of input it has into that process? So far as the ring-fencing
of the amount is concerned, it seems to me difficult to move in
this direction unless HMCS has its own vote. It is also perhaps
a thought that one could best move in this direction by modifying
the terms of the concordat, so as to offer some input not just
into the process of planning within HMCS but also in the process
of departmental reconsideration of the allocation of funds within
the year, which I think is one of the concerns the judiciary have.
Q496 Lord Rowlands:
Last week, Lord Justice Thomas seemed quite enamoured by the Irish,
Netherlands and Danish arrangements. As Lord Lyell says, we have
read the appendices, and they have gone for some kind of councils
of the judiciary. However, I am not at all clear—and perhaps
our expert witness could advise us—whether this has achieved
ring-fenced budgets for the court administrations in these three
cases.
Professor Daintith: I am not able to say whether
it has.
Professor Hazell: I do not know either, and
further enquiries would need to be made of those three jurisdictions,
because the very helpful evidence submitted by the judiciary runs
out at that point; but it is a very apposite question. In recent
times, I think that the Courts Service have been more concerned
about adjustments to their budget mid-year, in particular because
of overspends on the Legal Aid Fund, than the process for settling
the budget in the first place. There are therefore two separate
issues to be addressed. One is how the budget is settled in the
first place and, secondly, whether or not it can be ring-fenced.
May I make two other points? One is that I think that the argument
about the greater risk to the Courts Service inside a larger Ministry
of Justice potentially cuts both ways. The budget for the Courts
Service itself is relatively small. It is smaller than the Legal
Aid Fund; it is quite a lot smaller than the Prison Service budget.
Forgive me, I do not know the exact numbers, but suppose for the
sake of argument that the budget for the Courts Service is £1
billion and the old DCA had a budget of £5 billion in
toto, and that has now increased following the creation of
a Ministry of Justice to £10 billion. One could say it is
easier to protect the budget of £1 billion within a total
budget of £10 billion, because there are more other votes
or lines within the budget from which savings can be sought. I
therefore do not see the arguments as necessarily all one way
or potentially negative.
Q497 Chairman:
There are moments when you remind us that you have the cloven
hoof of a former senior civil servant. That is very impressive!
Professor Hazell: May I make one further point?
This is on the wider constitutional issues of the difficulty of
setting a budget for one of the other branches of government:
a branch which is not the executive. It might be useful to look,
as a broad analogy, at how the budget is set for Parliament—also
a separate branch of government. It is not terribly instructive,
however, because Parliament offers two examples. The Commons lays
its own estimate, as I understand it; while for the Lords the
Treasury lays an estimate for the budget of this House. There
are two possible precedents that might be looked at in seeking
for a new model for settling a budget for the judiciary, if in
future that is to be regarded as an increasingly separate branch.
Chairman: I think that the commonsensical question
which you have implied is what are the alternative models within
the British polity of funding something not simply by the straightforward
process of negotiation with the Treasury, and then intra-departmental
negotiation to fund the various functions, and what examples are
there in toto outside that normal, Treasury-driven cycle?
Lord Lyell of Markyate: Could I interpose,
while you are thinking about Denmark in particular but also other
countries, that their judicial systems are very different from
our own. I would just highlight that the previous position of
Ole Due, the distinguished former President of the European Court
of Justice, was the equivalent of Permanent Secretary in the Lord
Chancellor's Department. That certainly would have been, and I
think still would be, pretty unthinkable in this country.
Q498 Lord Rowlands:
The reason I raised it was not because I am rather enamoured by
the Irish, Danish or the Netherlands' model, but because it looks
to me as if the judiciary are either clutching at a straw in this
case, or is there a matter of substance for us to debate? The
other issue that arises is not only the issue of finance but also
of accountability, in these systems where you make autonomous
councils for the judiciary and boards. In our present system,
as a Member of Parliament one could get up and ask about the state
of your court; you could actually nag the Minister about the expenditure
on your court. Presumably this would take that whole area of parliamentary
accountability out of it.
Professor Page: I suppose that is the con. When
the question was asked in terms of pros and cons, the con is that
you lose ministerial responsibility, ministerial accountability
to Parliament; but the question is whether that is a bad thing
or is it impossible to conceive of any alternatives to it? My
own sense is that the existing model, to use the language that
Professor Hazell used earlier—the executive model—is
simply unsustainable, because the risk is of this kind of dispute
running on and on, until you do find a model which is sustainable;
which will involve some form of limited autonomy. I do not think
that it is beyond the wit of man, or woman for that matter, to
come up with such a model and to address the perfectly legitimate
concerns that you have about how accountability will be secured
within such a system.
Professor Daintith: I wonder whether we should
not be taking a slightly wider view than the HMCS view, because
it is quite clear that part of the driver for the change here
is this notion of seamless management of justice. I notice the
objections that the Lord Chief Justice had to that notion, in
that he did not want judges to be a part of a seamless anything
and that independence was very important; but, at the same time,
one is looking both at the provision of premises and facilities
for the courts and also at the issue of Legal Aid for litigants.
Both seem to me to be an important part of the question of access
to justice, and it is really on access to justice that the issue
of the relationship between finance and independence is based.
There seems to me to be an argument which might well be made,
to the effect that there must be some authority—and in our
constitution it will be the executive under responsibility to
Parliament—which can look at the whole of the justice budget
and, for example, take a view on that relationship between provision
for Legal Aid and provision for judicial services. The two things
may, if they get seriously out of balance, as by protecting judicial
services but not protecting Legal Aid, have a more deleterious
effect on the provision of justice than might be the case now.
This is therefore something that we should take into account in
deciding just what it is that ought to be ring-fenced, if anything,
and to what extent there should be some permeability between these
justice functions which currently we have placed within particular
executive departments.
Chairman: If I may say so, I think that is extremely
well said. There is a lot of concern in this House at the moment
about the potential decimation of Legal Aid, and it is part of
the same piece of access to justice. I think that you are right
to draw our attention to that.
Q499 Lord Rowlands:
We have talked about the Irish, the Danes and the Dutch. What
about the Scots, Professor Page? Do you have any experience? How
transportable is it?
Professor Page: We are not there yet, because
we too had the executive model but we are now talking about replacing
it. Interestingly, that conclusion—if it is indeed a conclusion—has
been arrived at by separate routes. One is an internal review
of the Courts Service, which raised the question of the relationship
with the judiciary, and the unsatisfactoriness, if you like, of
the lack of any connection between the judiciary and the Courts
Service. There was therefore a feeling that it was falling short
in many respects. Also, separately from that, an exercise which
to a large degree has been a catch-up exercise on the Constitutional
Reform Act 2005, addressing some of the issues that were addressed
here three years ago, including this question of judicial independence
and the relationship between that, the budgets and the money that
they need to do the job.
Q500 Lord Rowlands:
Is the future in Scotland to go for some kind of autonomous executive
agency?
Professor Page: Yes, I think it is almost certain.
To answer, or try to answer the question you raised earlier about
accountability, what they are talking about is a revised Courts
Service, which should operate within a policy framework—to
use the language of agencies working within a policy resources
framework agreed with Ministers—which would be agreed between
the agency and the executive and which the executive would then
fund.
Chairman: That is most helpful. Could I thank
all three of you? It has been of very great assistance to us.
If you do find any arrie"re-pensées that you
feel you should share with us, we would be grateful to have them.
Meanwhile, thank you very much indeed.
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