Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 501 - 519)



  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!

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