Examination of Witnesses (Questions 501
- 519)
WEDNESDAY 9 MAY 2007
DR MATTHEW PALMER
Q501 Chairman:
It is very good of you to come, Dr Palmer, and I think that we
will benefit greatly from getting some of your comparative insights
from your work in and around the Ministry of Justice in New Zealand.
May I kick off by a very straightforward question? What can we
learn in England and Wales from the New Zealand experience of
a Ministry of Justice? What are your lessons for us?
Dr Palmer: I would like to start by thanking
the Committee very much for inviting me to appear. It is an honour
and a privilege for me. Perhaps I should say that there are two
areas in which it is possible that I may be able to be of assistance.
One is the relatively abstract question of constitutional dialogue
between different branches of government. The other is with respect
to New Zealand's experience of a seemingly integrated and then
a non-integrated Ministry of Justice. I am happy to talk about
either of those.
Q502 Chairman:
I think that the first one, given the subject of our inquiry,
might be particularly interesting, so why not start with that?
Dr Palmer: The work that I am currently doing
comes out of the Canadian experience where, in their academic
literature and law over the last 10 years, they have had a significant
debate about what constitutional dialogue is between branches
of government. What they conceive that to be is, where Parliament
passes legislation and the Canadian Supreme Court is able to strike
it down, they have argued that what is going on there is not the
ultimate question of whether one branch of government is supreme
over another. They have characterised it as an iterative process,
where Parliament passes a law, the courts interpret it, and then
Parliament can revisit that; and in 60 per cent of the cases there
they do revisit it. So there is a great amount of literature on
constitutional dialogue in Canada, but what I should say about
that is this. This term is there applied to that very formal exercise
of the conventional functions of each branch of government: passing
legislation, interpreting law, and making policy in terms of the
executive. I guess this is one of the two points that I would
like to leave you with on my own behalf. That is, it is possible
to talk about constitutional dialogue in two senses. One is that
very formal sense, and the other—especially given the other
topic that you are considering today—is that informal sense
of people from the judiciary and the executive branches of government
sitting down and talking to each other. My suggestion, I suppose,
is that there is a value in confining, as far as possible, the
interaction between branches of government to the formal exercise
of their constitutional function. For example, when we are discussing
the budgeting process—and you were discussing that with
my predecessors at this table—in New Zealand, which I can
talk about shortly, if it were to occur that insufficient funding
were devoted to the court administration services, there is a
conventional tool that the judiciary would have to make clear
the consequences of that position; that is, by finding that so
doing breaches the human rights of those litigants, perhaps those
criminal defendants, whose rights are at issue. If a criminal
trial is delayed for too long, it can become a matter of human
rights. In the ordinary course of the judicial function, that
can be brought fairly strongly and clearly to the attention of
executive government by a finding of illegality. I wonder whether
I might stop there.
Q503 Chairman:
Pause for a second, because it seems to me that what you are positing
is what we might call capital-D dialogue and lower case-D dialogue.
It has been represented to us by a number of witnesses, and there
was an interesting intervention by Lady Scotland, saying "Look,
we talk all the time between the executive and the judiciary.
The talk goes on all the time"—and I am quite prepared
to accept that. I think that is what you are calling lower-case
dialogue—people talking to each other—always a good
thing; no problem; "Let's get on with it". However,
you are positing here something more formal in terms of a process,
which is a capital-D dialogue. I still want to understand, if
you can help us, what are the characteristics of that formal conversation
and its uses and limits, because it sounds very interesting.
Dr Palmer: I suppose that the characteristics
of the capital-D dialogue that I am describing are simply the
ordinary characteristics of each of the branches of government
fulfilling its function. Parliament passes legislation; the courts
interpret that legislation. In so doing, both branches of government
are coming to a view about what the law is and what it should
be. To the extent that each of those branches of government considers
what the other has said, that does take the form of a big-D dialogue,
in my view. The difficulty with it—and also, if I may suggest,
the difficulty with the small-D dialogue, which inhibits understanding
between branches of government—is that they are speaking
in different languages, in my view. The judges are talking the
language of common law; an elected house of Parliament is talking
the language of politics; and the executive branch of government
is talking the language of policy. Each of those languages represents
a mindset or a culture which has certain inbuilt biases and can
have difficulty in understanding where the other languages are
coming from. This makes for difficulty, therefore, in both levels
of dialogue. That would be my suggestion.
Q504 Chairman:
If we go beyond cultural empathy and trying to understand each
other's languages, which is clearly difficult, are you saying
that in New Zealand there is a clear set of processes for this
capital-D dialogue, which you could tell us about and which would
inform our way of thinking? This is very interesting territory
but, beyond the fact that we should listen to each other's languages,
I am still not quite clear how one could say of New Zealand, "Here
is a useful set of capital-D dialogue which might be helpful to
us".
Dr Palmer: I do not consider that New Zealand
has any better a set of that sort of dialogue than does the United
Kingdom, I am afraid.
Q505 Chairman:
That is disappointing.
Dr Palmer: I could outline the ways in which
it works there, if the Committee would be interested.
Chairman: I think that Lady Quin has
a question, but if there were a paper or something on that, it
would be of great interest to us.
Q506 Baroness Quin:
I was just thinking of what you were saying about the human rights
being invoked as a decisive factor in budget discussions. Can
you give examples of how that has changed a government decision
as a result?
Dr Palmer: There is an example I am familiar
with in New Zealand—and I should say at this point that
possibly I should apologise for having worked in the New Zealand
Treasury at one point! The area of the Treasury I was in charge
of included vote justice. In any budget-setting, priority-setting
exercise, officials in the department, in the Treasury, and the
Ministers respectively would come to a view about what expenditure
has greater priority. There was a particular point in one budget
process in which I participated where there was a legal argument
made in court that the Crown Law Office had to defend against,
which was that a particular trial had been delayed for so long
that it had essentially become a violation of human rights, and
that the criminal ought to be let go for that reason—that
the trial should be discontinued. The point was not taken by the
court, but the court took the opportunity to observe that it was
possible that it could be if it went on for very much longer.
At that point, what you saw within the budget-setting machinery
was Ministers deciding that perhaps they did need to allocate
significantly more resources to the courts for that purpose than
they previously had; because what they did not want was criminals
on the streets. That is an illustration, therefore.
Q507 Chairman:
The human rights was the prism through which this meaningful exchange
was happening.
Dr Palmer: Yes, in the ordinary course of a
court delivering a judgment in a case.
Q508 Chairman:
Going on for a moment to the other half of the proposition of
telling us about how the Ministry of Justice experience in New
Zealand works, are there any lessons that you think might be relevant
for us?
Dr Palmer: The New Zealand organisation of justice
has gone through different phases. For a long period of time,
ending in 1994, we had an integrated Department of Justice which
included responsibility for policy advice, correction services
and court administration services, as well as electoral services
and some others. It was therefore an integrated model. In 1994-95
that model was split up. There was a management fashion in favour
of the split of policy and operational functions within departments.
It should also be acknowledged that the judiciary were pushing
for a separate department for courts. There was a review process
with consultation of all relevant stakeholders—as I suppose
they are called now—and that review process yielded the
splitting up of the department into a Ministry of Justice concerned
only with policy and electoral matters, a Department for Courts,
and a Department of Corrections. That situation lasted from 1995,
when it was implemented, to 2003 . In 2003 there was another
change of fashion, and the Department for Courts was reintegrated
back into the Ministry of Justice—putting it back together
with the policy function.
Q509 Chairman:
So then we are back to two?
Dr Palmer: To two. There is currently underway
a review about whether the Department of Corrections should also
be added back in.
Q510 Baroness O'Cathain:
Bringing them back to where they were.
Dr Palmer: Yes.
Q511 Chairman:
Is there anything we should learn from that?
Dr Palmer: I suppose what I would take from
it is that fashions in organisational management design do change.
The other thing, I suppose, is that in some ways the main purpose
of those sorts of organisational changes—the main legitimate
purpose, in my view—is to effect a change in the management
and organisational culture, which you can do if you have a large-scale
organisational restructuring but is otherwise quite difficult
to achieve. You tend to find that these things come in cycles,
perhaps because in the life of any organisation it reaches a point
where a change in organisational culture and management is needed
more comprehensively than otherwise: in which case you have one
of these restructurings. It has always been treated as a part
of the function of executive government in New Zealand for these
changes to be managed as a matter of machinery of government.
In the 1994 change there was significant consultation with the
judiciary. In the 2003 change I understand there was not significant
consultation, but I do not think that there was any particular
constitutional principle that was breached or at issue in either
change. Whatever organisational boundaries you have around the
various divisions that make up these organisations, the major
determinant of effectiveness is the competence of the people involved
and their relationship and management skills, and whatever organisational
structure you have is no guarantee that either that will work
or it will not.
Chairman: I am sure that is very wise.
Q512 Lord Windlesham:
You are extremely well informed, I can see, on matters which cover
our own inquiry. What you have had to say has been of real value,
and I think that especially the secretariat will want to study
very carefully what you have said in answer to the Chairman's
opening questions to you. Just to pick up one or two more—and
to some extent they are very detailed indeed—you are writing
about constitutional dialogue between the executive, the judiciary
and the legislature and the Westminster systems. Are you able
to tell us, even in a preliminary way at this stage, what conclusions
you have drawn about what arrangements work well and what arrangements
work less well?
Dr Palmer: I think the primary conclusion that
I have drawn in this regard is the one which I perhaps hinted
at before, which is that it is constitutionally desirable for
each of the branches of government to stick to their knitting,
if you like: to do what it is that constitutes their function
and to interact with other branches of government through that
formal function. This, I think, derives from the fact that it
is important that there be a dialogue between branches of the
government. It is important that those branches are different,
because that is how we get different perspectives being brought
to bear on constitutional issues; but because they are speaking
in different languages, as I have said before, we perhaps need
to have the help of some translators in some of those discussions.
It does occur to me, coming from a jurisdiction which does not
have an upper house, that an institution such as this Committee
could in some ways be a relatively neutral ground for the conversation
between the judicial and executive branches of government to be
facilitated, at times when they might otherwise get too fraught.
Q513 Chairman:
So now we have to offer interpretation services, have we?
Dr Palmer: Sometimes there is value in simply
bringing people together and asking them to listen more carefully
to what each other is saying.
Q514 Lord Windlesham:
In what fields would you think that England and Wales should draw
on experience in New Zealand, particularly the experience of a
Ministry of Justice?
Dr Palmer: Again, the most important mechanism
for small-D dialogue between judicial and executive government
in New Zealand has been the creation of the Courts Executive Council,
which was established when the new Department for Courts was created.
It was a mechanism for dialogue at a formal level, on the record
transparently between judicial officers and officials, and in
my view that has been of use. The other thing I would say in respect
of finance is that one of the things which occurred with the splitting
up of our Ministry of Justice was that you suddenly had, for the
first time, different votes. Instead of having one vote justice
with different output classes, you had vote justice, vote courts
and vote corrections. That distinction has been preserved in the
reintegration of courts and justice functions, because you still
have different Ministers. We still have a Minister of Justice
and a Minister for Courts separately. While one can talk about
ring fences, the question is always how high is the fence and
how easy is it to get over. In any system of public appropriations,
there are fences at different heights. In the New Zealand system,
if you have a separate vote that is a significantly more effective
fence than if you have a separate output class within the vote.
I would suggest that might be worth thinking about, therefore.
Q515 Lord Smith of Clifton:
May I ask for elucidation, My Lord Chairman? When you say "Ministers",
are these of Cabinet rank—
Dr Palmer: Yes.
Q516 Lord Smith of Clifton:
... or are they junior Ministers? It would relate to what Professor
Hazell said about the degree of ministerial devolution within
a large, giant department.
Dr Palmer: Perhaps I should say that they are
of Cabinet rank, but the Ministers for Courts do tend to be more
junior. From the judiciary's point of view, therefore, there is
a trade-off here between having access to a more senior Minister,
who may be more distracted and less focused, and access to a more
junior Minister who is more focused. It is not necessarily clear
to me which of those is preferable from the judiciary's point
of view.
Q517 Lord Windlesham:
Having been here, having studied and having brought yourself up
to date, I imagine you are already very familiar with the essentials
of the British system. As you can see, there have been some fundamental
changes which either have taken place or are in the process of
taking place in our judicial system, in the courts, and in the
relationship between the Ministers and the courts. If you had
to carry away one image, one personal lesson to remind yourself
about, to think about on the plane going back, what would it be?
The good and the bad—in the sense of encouraging and the
opposite?
Dr Palmer: This is my view of what is happening
here?
Q518 Lord Windlesham:
Entirely your view, yes, and to what extent it might help to illuminate
your own approach to similar work at a senior level in New Zealand.
Dr Palmer: There is a similar issue occurring
in New Zealand in the last few years and I see significant parallels
between them. We established a new Supreme Court two or three
years ago. In both processes, both jurisdictions, what I see is
new institutions jockeying for position and taking a little bit
of time to settle down as to what their relationship is likely
to be on an ongoing basis. To some extent, I suspect that is inherent
in the nature of new institutions being created that have a relationship
with other institutions. We might perhaps consider that it would
be possible for it to be a lot worse—and I am sure that
it could be—certainly here and in New Zealand. I suppose
I would personally tend to have faith that, in the slightly longer
term, once these institutional arrangements have settled down,
the relationships will be on a relatively more even keel in future.
Q519 Lord Rowlands:
This is a completely separate question. Has New Zealand any experience
of the courts giving advisory declarations on the law?
Dr Palmer: Some limited experience. Not as much
as there is in Canada, where they have quite a significant degree
of experience in that regard. There will be occasions when the
Government in particular will state a case to a court for an answer
to several questions. The most recent instance of that, dating
back to 2003, yielded an answer by the court that the Government
was particularly unpleased with. So whether or not they will do
it again in a hurry, I am not sure!
| 
