Select Committee on Constitution Minutes of Evidence


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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