Examination of Witnesses (Questions 20
- 39)
TUESDAY 23 OCTOBER 2007
Rt Hon Jack Straw
Q20 Chairman:
We will have to move on, Lord Lyell. In fact it may interest you
to know, Lord Chancellor, that this Committee is planning—I
am afraid probably without the period of consultation that you
have established for the role of the Attorney General—to
issue a short report setting out some of the issues about the
future role of the Attorney General, which I hope will be found
helpful.
Mr Straw: Thank you, that will be very
helpful because the consultation process is still continuing.
Q21 Chairman:
Since we have got on to the question of war-making via the Iraq
war, can I be clear—and I know that you have had a chance
to study and indeed have responded to our report on war-making
powers—do I take it that despite the solid opposition we
had from your predecessor Lord Chancellor to any question of Parliament
making the ultimate decision approving any significant deployment
of the Armed Forces into armed conflict that it is now the irreversible
position of the government that that is a decision for Parliament?
Mr Straw: The principle is, yes, to that,
and I expressed that in the debate that we had in mid-May—I
think it was 17 May—when we had a debate in our House on
an Opposition motion and I moved a amendment to do that, and we
were informed both by your report, which recommended the convention
route and also by the Public Administration Select Committee report
from our end, which recommended a more legislative route and,
as you know, we are currently preparing to produce a consultative
document which sets out in more detail the government thinking
for consultation.
Q22 Chairman:
As things stand today which route do you tend to prefer, the convention
or the statutory route?
Mr Straw: This is a consultation so you
cannot have a consultation and then say, "It is what we have
decided and we are not take any notice of things." If ever
you are labouring away and you think that what you are doing is
not making a difference then you need to reflect on why there
has been a shift within government on the principle. The principle
has been conceded and it is jointly because of the work of this
Select Committee and the one at our end, because people think
and read these documents and can see a strong case. Also the fact
that it was two authoritative Select Committees where you are
able to say, "We have thought about this and we have to take
very full account of the anxieties we all share that the military
action should not be inappropriately constrained, that our commanders
and troops on the ground should not be compromised but we think
there is a way through this," is very influential. It is
fair to say that the balance of opinion is in favour of the convention
approach, but when you pin it down it is not just that a textbook
would write that this has become a convention but pin it down
in resolutions of the House of Commons and its Standing Orders.
A possibility of a hybrid approach maybe but with some serious
misgivings about a wholly statutory approach, but that is where
we are.
Q23 Chairman:
We will await the consultation with great interest. I have to
say that a big shift in the government's thinking is a masterly
understatement for what was really a 180 degree change, and I
know that you yourself were part of that and this Committee certainly
welcomed the change in the government's response.
Mr Straw: Thank you. We can argue about
the angle of the change, but I would say in the government's mitigation
that the major change took place in advance of Iraq because I
do not know what decisions would have been approached 30 or 40
years ago but it certainly became first off to the late Robin
Cook and myself that we could not possibly make decisions which
were legitimated in those circumstances unless there had been
not just one but a series of debates and decisions in the House
of Commons, and whatever else you say about that there was a whole
series of explicit, substantive decisions taken.
Chairman: Indeed. Lord Rowlands.
Q24 Lord Rowlands:
May I just say, Lord Chancellor, when we started our inquiry I
was a passionate supporter of the statutory approach but during
the course of our inquiry, frankly, from the evidence one has
heard and tackling the actual way you drafted it I became a convert
to the convention because I could not quite see how you could
pin down in statute all of the range of possibilities that would
arise. Do you think you can crack it statutorily?
Mr Straw: I do not know, is the answer.
I have set out, Lord Rowlands, where the government is coming
from and what the Prime Minister has said in the House and also
what is said in the Green Paper that I published alongside the
Prime Minister's statement on 3 July was pretty clear. It tilted
pretty strongly—
Q25 Lord Rowlands:
But you also floated the idea of a hybrid.
Mr Straw: You will have to wait, if I
may say so. Just as there are various forms of a convention which
could just be we have changed our practice and it is reflected
in the exposition of Erskine May, to actually putting it down
in at least grey letter law in Standing Orders, there are possibilities
that we have tried to adumbrate in the consultative document.
What we say at paragraph 29 of the Command Paper to 7170 is that,
"The Government will propose that the House of Commons develop
a parliamentary convention that could be formalised by a resolution.
In parallel, it will give further consideration to the option
of legislation," and that is what we are seeking to do to
flesh out in the consultative document. Can I say, Lord Rowlands,
that I hope very much that whether as a Committee or whether as
individuals you are able, given your own interest and knowledge
in this area, to contribute directly to the consultation because
it is really important we get this right?
Chairman: Indeed. Lord Bledisloe.
Q26 Viscount Bledisloe:
Lord Chancellor, your Green Paper talks only about the role of
the House of Commons in dealing with this. What role do you see
for this House in this matter?
Mr Straw: We thought about this a great
deal—and it is not in any sense to be regarded as an insult
or impertinence towards this House—and we are clear of the
fundamental principle that decisions about going to war have to
be made ultimately by the elected chamber. But I think there is
every argument in favour of those debates in the Commons being
informed by debates here in the Lords, so it is a question of
making sure that the one comes before the other.
Q27 Viscount Bledisloe:
So you see that this House having a role to play and then the
House of Commons having a debate in the light of that and making
a decision which is then binding?
Mr Straw: Yes. You can have a debate
simultaneously but then people can rightly say that apart from
voicing opinions what exactly is the point of the debate. I think
it is far more satisfactory—it is obviously a matter for
you—for the debate here to precede the debate in the Commons.
Q28 Chairman:
Could I move the questioning on to a different area, which is
the still regrettably outstanding question relating to the creation
of the Ministry of Justice in terms of unresolved issues between
the Executive and the Judiciary. This is a saga that seems to
have been going on forever. The negotiations were supposed to
have been concluded before the introduction of the Ministry of
Justice, but they were not, and when you came in as the new minister
you quite understandably said that you wanted time to understand
the issues. We are now three months later and I think there is
a great deal of curiosity as to where exactly we have got.
Mr Straw: I said this when I gave evidence
to the Constitutional Affairs Select Committee at the other end
a couple of weeks ago, I see it as part of a process—obviously
with products from the process—but not as a single event.
There is one issue, Lord Holme, on which progress is being made—and
I cannot say when there is going to be a final conclusion—which
is in respect of the formal organisation of Her Majesty's Court
Service, which I think is a matter which particularly exercised
the Judiciary. We have had a working party which has been led
jointly by Clare Sumner, who is a senior official in the Ministry
of Justice, and Michael Walker, who is a well known and experienced
District Judge, who came forward with a series of option papers
which both the Lord Chief and his colleagues are looking at and
so am I, and Alex Allan, the Permanent Secretary of the Department
is trying to bring together in the judicial working group. So
that work is continuing.
Q29 Chairman:
I am sorry to interrupt, that is specifically on the Court Service;
is that a sub-group of the larger negotiations?
Mr Straw: It is a rather key issue because
the working party, which is at an official level, which Clare
Sumner and Michael Walker are leading feeds in ultimately to the
Lord Chief and myself, but also through this judicial working
group as well. There are a variety of options ranging from leave
things where they are to establish the Court Service as a non-departmental
public body, almost wholly at arm's length from ministers. It
may not come as any great surprise for your Lordships to learn
that I favour something somewhere in the middle because there
is no question about any interference with judicial decisions.
There are issues which inevitably impact on the Court Service
as an administrative body, my department and me as the department
responsible for the Court Service and me particularly as the minister
who has to go to the Treasury to negotiate for more money to be
able to show that this is an effective and efficient public service,
and there is a complicated set of relationships there. There is
also a very large number of non-judicial staff working in the
Court Service, who are the direct responsibility of my department
and of me. So it is squaring that circle against the background
in which the Court Service has only recently been established.
But that work is going on. There is a second area of very considerable
frustration for the Judiciary, which is over judicial appointments
and over the tardiness of the process and what was seen as some
gratuitous interference in the process. I have sought essentially
to extract myself from any unnecessary involvement in the process,
so that my involvement for the vast bulk of judicial appointments
is at the minimum required under the Constitutional Reform Act.
I cannot obviously break the law, but I have been endeavouring
to improve the processes between the Judicial Appointments Commission
and my own department and the Director General which covers that
to stop second guessing and shadowing by each, to get clarity
about respective roles and to sort out some of the problems that
have arisen simply over what used to be called manpower planning—I
suppose forecast of staffing levels—for future demand for
Recorders here, Circuit Judges there and High Court Judges there,
and to encourage, to put it mildly, the Judicial Appointments
Commission to reduce the time that this process is taking. It
ought to be very straightforward but the fact is that it is taking
eight weeks to get medicals done after an appointment is otherwise
ticked off, so just trying to compress these processes and also
making sure that my office and also that I turn round the decisions
as quickly as possible. It is for the senior Judiciary to say
what their perception is of this but I hope they would say that
they think there has been some perceptible improvement.
Q30 Chairman:
Perhaps if we have time we could come back to the issue of judicial
appointments later, but as I understand it that was not one of
the main bones of contention in the spring between the Judiciary
and your department around the creation of the Ministry of Justice;
that was not one of the big bones of contention at that time anyway.
Mr Straw: It certainly was when I became
Lord Chancellor, let me say. I genuinely was not present at those
discussions. There was very great frustration by the senior Judiciary
about the manner in which the announcement had been made about
the establishment of a Ministry, which was made over one weekend
in January, and then the subsequent speed with which it took place,
and from their point of view they are concerned that they have
been presented for the second time—I paraphrase what they
are saying but I think very accurately—in the space of three
years they have been presented with a fait accompli. Your
Committee made some fairly strident comments about that.
Q31 Baroness O'Cathain:
You are right; our recommendation number four was the one that
dealt with that.
Mr Straw: What I have had to deal with
is the consequences of that and that is what I have been seeking
to deal with. There is a concordat which was there before I took
over this job. A very key issue is obviously to do with the relationship
between the Judiciary and myself and my department. There are
general aspects to that but there is also this particular thing
about the role of the Court Service and, Lord Holme, the issue
of money.
Q32 Chairman:
Indeed.
Mr Straw: I have made a joke of the fact
that I swear three oaths—two are in rather fine prose because
they are written at about the time of the Prayer Book, one is
in the most constipated prose because it was drafted in the Committee
of both Houses and that is the oath that I have to make under
the Constitutional Reform Act, but anyway that one talks about
ensuring a sufficiency of resources. The joke I have made is that
I have sent a copy of that highlighted to the Chancellor of the
Exchequer. However, that has not resolved the fact that the CSR
settlement was actually agreed before I took over and it is tight,
as it is for most departments. What I have said—and I am
prepared to repeat again here—is that I intend to move heaven
and earth to ensure that what happened a couple of years ago,
where the Court Service took a hit because of pressures on the
legal aid budget, will not happen again, and I have explained
to both the Chairman and the Chief Executive of the Legal Services
Commission and to representatives of the Bar and the Solicitors
that legal aid has to be kept within its own budget. That is that
and I feel wholly comfortable about that; I am not willing to
see particularly the Court Service and the Judiciary pay for increases
in legal aid. Although I understand the pressures on the legal
aid budget and the concerns of solicitors and members of the Bar
it is a fact, which no one can avoid, that we spend more per head
on legal aid than any other jurisdiction in the world and the
figures are very stark, at £34 a head in England and Wales,
£27 in Scotland, and dropping very rapidly even in comparable
common law jurisdictions to around £10—and I can give
you the exact figures if you wish them—in respect of New
Zealand or Ireland. There has also been a fivefold real terms
increase in legal aid spending since 1980. I think we would be
hard put to find another public service that has increased by
that amount; and a threefold increase, or getting on that way,
in the number of practitioners who are reliant on legal aid in
the same period. So what we have to understand as far as legal
aid is concerned is that savings will have to come from within
that budget and everybody—and this includes those who represent
defendants, has a responsibility to improve processes because
a huge amount of the money does not go on, as it were, advice
or on law—it goes on processes.
Q33 Baroness O'Cathain:
Waste.
Mr Straw: Baroness O'Cathain says waste
and, yes, it is waste; it is wasted in terms of the inefficiencies
and disconnections in the system.
Q34 Chairman:
So it sounds as though some of the elements of what I will call
an agreement with the Judiciary are gradually coming into place,
but the question I would like to ask you, given that government
has willed greater separation of powers, would you now personally,
as Lord Chancellor, feel some sense of urgency to get a proper
settled agreement with the senior Judiciary so that what is at
the moment a running sore and been running rather a long time
is ended?
Mr Straw: It is wrong to say that it
is a running sore—I do not get that sense from them and
they have certainly not used that phrase with me, that it is a
running sore. I did act pretty quickly. We have this review being
run by Clare Sumner and by Michael Walker. There is other work
going on in hand and I am absolutely nailed to the floor in terms
of the undertakings I have given about their budgets, and everybody
understands this. All of us are stuck with public spending settlement
and it was ever thus, and I may say that even were the Court Service
an entirely arm's length non-departmental public body it would
not be immune from cuts if they were to happen. May I just make
this point because there are those who think if you are running
an NDPB you end up with greater immunity; it is not the case.
The Environment Agency belies its name—it is a non-departmental
public body and arm's length from government, but when the money
needed to be found because there was a hole in the Rural Payments
Agency budget that NDPB took part of the hit. Meanwhile, what
I have been doing is saying that I am not going to either take
money out of the courts to pay for the other two big areas of
spending, one of which is legal aid and the other is the Prison
Service, and actually if you read at the small print of the settlement
they both have some more money and also undertakings of more in
respect of prisons.
Q35 Chairman:
Would you like to venture a prediction when you will have all
this tied up?
Mr Straw: As I say, I obviously note
what you say, Lord Holme, on the issue of judicial appointments
and I can tell you that when I spoke recently to a group of senior
members of the Judiciary—I had a meeting with them for two
hours—a large part of the time was spent over problems of
judicial appointments, and that was their preoccupation. So there
is that and what is seen as a major issue is the relationship
with the HMCS and I am hoping to bring that to a conclusion as
quickly as I can, but I do not want to put a date on it. I have
to do it in a cooperative way. There are also issues of the broader
relationship with the Judiciary, including issues like proper
consultation with them over what goes into Bills, taking proper
account of their views. I will give you one example where I have
sought very actively to take account of their views and other
practitioners, in the current Criminal Justice and Immigration
Bill, clause 26 in respect of quashing convictions, quashing convictions
whether the power of the Court of Appeal to quash convictions
where the guilt of the accused is not an issue—so in other
words the issue is that of process—whether that should be
constrained to prevent them in general from issuing an acquittal
where the guilt of the accused was not really in question. We
had a lot of responses to the consultation document, including
from the senior Judiciary. As I told the House on the Second Reading,
all the responses were critical of the original drafting, so I
have sought to change it and I think these things are important.
Q36 Baroness O'Cathain:
In that response to our recommendation four you are actually saying
that the parameters for discussion with the Judiciary over the
Ministry of Justice have now been "broadened". Can you
give us some indication of what the parameters are?
Mr Straw: The background to this—and
I am trying to find what I said in respect of your recommendation
four—is that there was a suggestion that there was an unwillingness
by—
Q37 Baroness O'Cathain:
It is your paragraph 8.
Mr Straw: I have it now, thank you. That
there was some unwillingness by government to talk about these
issues in the round, the wider issues, and that is what I have
sought to do. I have been ready to consider all issues which are
of concern to the Judiciary. I made it clear to them as I do to
your Lordships that it is a self-evident truth that we may come
to the conclusion where we have to beg to differ, but I hope that
if we do—and I hope we do not—that we do it in a respectful
manner with an understanding of each side's position. But I am
not trying to constrain discussion in any way.
Q38 Baroness O'Cathain:
Lord Chancellor, you have not agreed to the Judiciary's seemingly
reasonable request to have a fundamental review of the situation
following the creation of the Ministry of Justice. Would you say
that you are likely to do that and, if so, when do you think you
might do it?
Mr Straw: I have not established a big-ticket
Review, with a capital R, into relations with the Judiciary. I
am open to persuasion on this but I happen to think at the moment
that there are better and speedier ways of achieving the same
end. First of all, crucially by the approach I take—and
at the risk of repetition I have spelt out the nature of the approach—by
dealing with things that I can deal with which are causing real
frustration, which were on judicial appointments, I promise you—and
why should I make that up?—and they are continuing to exercise
me as well as the Lord Chief, but I am working very hard with
the Judicial Appointments Commission to speed things up. There
is this issue, which I think is the main issue for which they
said they would like a Review, with a capital R, which is the
constitutional position of the Court Service, and I think the
review, with a small R, that has been established, the Clare Sumner/Michael
Walker group and the iterative process we have is a better way
through because we are more likely to reach agreement with that.
It is easy to say, "Have a separate NDPB with a judicial
chairman, it is entirely separate", but then this body will
still require public money; there will still have to be some way
in which people in my department, with the Lord Chancellor of
the day, and with the Treasury can work out whether they need
more money—what their efficiency and effectiveness is. So
there has to be—and there is in all systems in the world—a
relationship between the administrative side of the Judiciary
and the Executive and it is working out the best relationship
there, so I think it is better to do an iterative process. But
I am open to arguments if this one does not work.
Q39 Baroness O'Cathain:
Can I pursue this for one moment and that is do the Judiciary
buy in to your way of dealing with this fundamental review?
Mr Straw: You would have to ask them.
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