Examination of Witnesses (Questions 1
- 19)
THURSDAY 6 DECEMBER 2007
Lord Phillips of Worth Matravers and Lord Justice
Thomas
Q1 Chairman: Lord
Chief Justice and Lord Thomas may I bid you a warm welcome to
the Committee and thank you very much indeed for making time to
come and see us. We are being televised, as you know. I will ask
the first question, if I may, which is what is the current situation
in respect of the negotiations with the government over the outstanding
area of difficulty, namely the status of Her Majesty's Court Service?
Lord Phillips of Worth Matravers: Thank
you. As the Committee is already aware Clare Sumner, who is a
senior official in the Ministry of Justice, and Michael Walker,
who is an experienced District Judge and a member of the Judges'
Council, have been examining a series of options for the Court
Service. This has resulted in the production of a model; the model
reflects a partnership between the Lord Chancellor and the Lord
Chief Justice. The Lord Chancellor and I are meeting next week
to discuss this model and we will then be in a position to know
whether that can be adopted and we shall of course update Parliament
in the New Year.
Q2 Chairman:
Do you think, Lord Chief Justice, that any agreement is likely
to satisfy the Committee's recommendation that the courts' budget
should receive the maximum protection from short-term budgetary
pressures upon and within the new Ministry?
Lord Phillips of Worth Matravers: I doubt
if anything that is proposed will provide the maximum protection.
I hope that this proposal, if agreed, will provide reasonable
protection.
Q3 Chairman:
Lord Chief Justice, your response to the Committee's previous
report did not address the recommendation that the government
and the judiciary should give further consideration to how advisory
declarations might be used to provide guidance on questions relating
to Convention rights. Would it be appropriate now to tell us what
you think about that particular recommendation?
Lord Phillips of Worth Matravers: I have
reservations about this recommendation. The role of judges is
to resolve disputes—disputes between parties. If the judiciary
are going to be asked to give an advisory opinion in advance on
something that is essentially an issue of law the first question
is, to whom do they give it and what input is there into the discussion?
If it is not going to be an adversarial process so that government
asks the judiciary to give its approval to a proposal, to say
in advance that the proposal would be in accordance with the law,
that opinion would then be given not in an adversarial process
but a one-sided process and the judiciary would be, as it were,
committing itself in advance to an issue that it might then be
asked to resolve in an adversarial process. The other side in
that process would not consider this to be fair; they would consider
that the judiciary had already indicated a view before hearing
the argument.
Q4 Lord Woolf:
Could I ask a follow-on question? I should disclose my hand that
I am very enthusiastic about the concept of advisory declarations
and have written on the subject. But you are presupposing that
there is no adversarial situation. If there was an adversarial
situation—and we have many cases now where organisations
such as Liberty have been able to in fact carry the argument of
the individual against proposals such as extending periods of
detention without trial—would your answer differ?
Lord Phillips of Worth Matravers: I think
it might differ. If it were postulated that this should be done
in accordance with our normal court process of having a party
on each side putting the rival arguments, then my conclusion might
well be different.
Q5 Lord Woolf:
I must concede that I was partly an author of this suggestion.
I was presupposing a situation where really what one was doing
was dispensing with the need to find a nominal claimant and in
this way it is only used exceptionally where there is a burning
dispute which is a matter of great public interest, if the court
had a discretion—it did not have to do it, but only did
it when it thought that the public interest required it to do
it, might there be merit?
Lord Phillips of Worth Matravers: I think
there might well be merit in that. I was rather envisaging something
along the lines of what happens in France where the Conseil d'État
is consulted by the government about proposed legislation and
that is a one-side process.
Q6 Lord Morris of Aberavon:
Lord Chief Justice, your response to the report stated that you
were cautious—and I have some sympathy with that—about
the suggestion that Select Committees might ask senior judges
about key legal issues in the cause of transparency and better
understanding of such issues amongst both Parliament and the public.
Would you be good enough, Lord Chief, to elaborate on your caution
about the suggestion?
Lord Phillips of Worth Matravers: I think
it is twofold. First of all, I would be reluctant for it to become
too common for judges to be coming to give evidence before Select
Committees. Secondly, I think my caution relates to the question
of what these issues would involve. It comes back again to the
point I was making before, that judges should not be committing
themselves in advance to a view on any matter which they may subsequently
be required to resolve in a judicial category.
Q7 Lord Morris of Aberavon:
That, Lord Chief Justice, I fully understand, but are there broad
issues which are of more general interest, which do not apply
to a particular indication that you might have to adjudicate,
such as the use of comparative law, which you have been doing
for longer than I remember, the distinction between sections 3
and 4 of the Human Rights Act, and the wider interpretation, if
it is used any more, of Pepper v Hart, which many of us
thought was not always a good line to go on and matters of that
kind.
Lord Phillips of Worth Matravers: There
are these wider issues and indeed I suspect that some of them
sometimes are raised and dealt with by judges on an occasion such
as this one. The Pepper v Hart example I think is an example
of something which might impinge on a decision the judge was required
to reach in relation to the application of the Pepper v Hart
doctrine in a particular case.
Q8 Lord Norton of Louth:
Our report gave a warm welcome to your proposal for an annual
report to be laid before Parliament, and you have indicated previously
that we are likely to receive that early in the New Year. Would
it be possible to give us any idea of the type of issues that
we will be raised in that and particularly your comment that it
will highlight areas of particular concern to the judiciary?
Lord Phillips of Worth Matravers: I hope
that it will not just be areas of concern, there may also be some
success stories to report. Essentially the report will be looking
at the way the justice system is working and the justice system
works as a result of the partnership between the Ministry of Justice
and the judiciary, so we will obviously be focusing on the question
of how it is working in the partnership, looking at the different
courts, looking at problems that are arising, how we are dealing
with those problems and trying to give an overview of the extent
to which the justice system is working well, or problems that
we are confronting that need to be dealt with, and whether we
have the resources that we need to deal with them.
Q9 Lord Norton of Louth:
In your response you indicated that you saw it as a mechanism
for reaching out and explaining not just to the Executive and
Parliament but to the media and the public. Do you have any ideas
as to the way in which you would help to bring it to the attention
of the public?
Lord Phillips of Worth Matravers: I think
we can rely on the media to help with that and they may well want
to talk to me after I have delivered this report about various
matters it discusses.
Q10 Lord Norton of Louth:
The mechanism, I was not quite clear from the response whether
you saw it as the basis for your future meetings, say, with this
Committee, that it would be based on the report.
Lord Phillips of Worth Matravers: I imagine
that this Committee would be quite likely itself to want to ask
questions about the report, and I would see that as a desirable
and appropriate mechanism for bringing these matters before the
public in so far as the report itself does not do so clearly or
adequately.
Q11 Lord Rowlands:
You mentioned resources. Will the report deal in any detail with
the issue of resources, that Parliament can be well informed as
to whether the judiciary think they are being funded properly?
Lord Phillips of Worth Matravers: I think
I can give a firm yes to that one.
Lord Justice Thomas: Could I add a word
about this? Since about 2000 the Crown Courts have published short
annual reports and these have become more informative over the
years. The Commercial Court has done so for much longer, and that
has become informative. So there is a basis you can look at—these
are now published on the Web and they have been for the last two
or three years—and they do, Lord Rowlands, cover the volume
of business before the courts, how the courts are dealing with
resources, what the success stories are and what the downside
has been.
Q12 Lord Norton of Louth:
Those reports are speaking, if you like, to an attentive public,
whereas with this annual report you are actually seeking to reach
out to a much wider audience.
Lord Justice Thomas: Yes. Those reports
are produced by each Crown Court so each local newspaper can see
as regards its own community what it is dealing with. It tries
to address it in terms that would address that audience, but obviously
the Lord Chief's report has to try and give a complete picture
across the country.
Q13 Lord Peston:
I think I am in favour of the annual report—I must be because
I was on the Committee when they agreed to recommend it—but
as Members of their Lordships' House we must get every day at
least one annual report from one body and they go straight into
the wastepaper basket, if I might say in my case almost invariably.
I often ponder, apart from the cost of them, as to who reads them
at all. We are talking often of bodes that are very narrow and
so on, but in your case do I take it that what you have in mind
is that you would actively wish to promote the annual report?
There will be people in the legal business who will read your
annual report but if we ask who else is actually interested one
begins to wonder. You have a concept for reaching out, I take
it?
Lord Phillips of Worth Matravers: I do.
I see the annual report as an answer in large measure to those
who ask the question how the judges are going to be accountable.
I would say to them that if you want to ask us how we are accountable
the answer is that I am going to produce an open report on which
I shall be open to questioning and if you want to see what we
are doing read the report, and if you have questions raise the
questions.
Q14 Lord Peston:
If I could ask for an exact example. If we take what people have
been talking about in the last day, whether we have too many people
sent to prison, would that come as a topic that would appear in
an annual report and that you would respond to the public's response,
or would you rule that out on other grounds?
Lord Phillips of Worth Matravers: I do
not think it would be ruled out. I think in so far as overcrowding
of prisons was impinging upon the way that judges administer justice
it would be a proper thing on which to comment. But I think perhaps
the more general topic—and it is obviously an important
topic—would not probably be a subject matter of the report.
Q15 Baroness O'Cathain:
Before I ask my question could I pick up on something that Lord
Thomas said about Crown Courts in the various parts of the country
operating on the principle of giving an annual report, and that
then can be shown to the public and the reporters on the local
newspapers. I am very interested in all of these things and I
have never seen any reference to any Crown Court response in our
local newspapers. So my question is: do you track this? If you
do track it are you satisfied with the coverage you get, and if
you are not satisfied how are you going to do something about
it?
Lord Justice Thomas: I think that the
way the Crown Court normally relates to its local communities
is by its annual open day where people come and there are now
quite considerable numbers who come. As to the newspaper reporting
in the Crown Court, one has seen over the years a decline in the
amount of reporting generally on court cases. And as to whether
the newspapers report Crown Court reports: it is very rare, in
my understanding, that they do so, partly because the fact that
they exist is not that widely known. We have tried to promote
it but, as I think has already been said, annual reports sometimes
do not thrill people as being very exciting. But they do contain
a great deal of information and quite often it is information
that is very important, as to delay, conditions for jurors, conditions
of the buildings, problems, for example, with the prison escort
contract we had. So there is a lot of information contained in
them.
Q16 Lord Rowlands:
The reason I asked about resources was when we were preparing
the last report I tried to discover what the net cost of the court
system was and I found it rather difficult to find.
Lord Justice Thomas: I think it is very
difficult to find because government accounting I have never found
easy to follow. The cost of the court system is not contained
in the annual reports of the Crown Court; the nearest you find
it is in the annual report of Her Majesty's Court Service, and
to try and split out the costs between, for example, providing
civil justice, family justice and the Crown Courts is never easy,
largely because in many buildings you conduct all three jurisdictions.
There should be a principle, because the Treasury likes civil
justice to pay for itself, that the amount we spend on the civil
justice system ought to be contained in a separate document so
that one can see the money that is raised by fees is actually
spent on civil justice and not on other things, and we have been
pressing for clearer and more transparent accounting.
Q17 Lord Rowlands:
And will your report in time be able to help us in that regard?
Lord Justice Thomas: At the moment it
is not so fully within our knowledge. It should be within the
Court Services' because at the moment the current constitutional
framework is that that lies exclusively within the responsibility
of the Lord Chancellor, but in the future the judges may be able
to contribute more, depending on the matter to which the Lord
Chief Justice has regard, namely the future governance of HMCS.
Q18 Baroness O'Cathain:
Our report recommended that consideration should be given to appointing
one or more spokesman with appropriate qualifications and legal
experience, who would be permitted to speak to the media with
the aim of securing coverage which accurately reflects the judgment
or sentencing decision. Your response seemed to endorse this and
The Times apparently reported that a panel of judges is
to be trained to talk to the press and do broadcast interviews
whenever there is a need for a judicial voice to help to produce
a more informed and balanced debate. Could you explain exactly
what is intended and how far indeed you have got with this initiative?
It does really link in with the previous subject.
Lord Phillips of Worth Matravers: The
first question is do the judges think it is a good idea to talk
to the media at all in such circumstances. It is an important
question of principle and you are quite right that we reached
the decision that the answer was yes, in appropriate circumstances.
Deciding which circumstances are appropriate and which are not
is the most delicate matter and it has to be done essentially
on a case by case basis. We decided that it is desirable that
there should be judges who are available to respond in appropriate
cases. There has been a sub committee of the Judges' Council looking
at this in detail. We have identified five judges representing
different areas of judicial activity and different geographical
areas, who are going to receive training in talking to the media
and who will then be available as a resource when we need—urgently,
very often—a judicial spokesman to perform that role.
Q19 Baroness O'Cathain:
So the panel of judges will constitute just five?
Lord Phillips of Worth Matravers: At
the moment there will be five; if these do not prove to be enough
then we will have to consider training up a few more.
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