Examination of Witnesses (Questions 20
- 39)
THURSDAY 6 DECEMBER 2007
Lord Phillips of Worth Matravers and Lord Justice
Thomas
Q20 Baroness O'Cathain:
How do you link in then with the responsibility of Sir Igor Judge
on this one because he has a PR role—and I do not mean PR
in the sense of PR, but an informative role, because there is
no question about it that this is needed, is it not?
Lord Phillips of Worth Matravers: Yes.
Sir Igor Judge is after all one of the big guns and sometimes
one needs to call up a big gun. But the role we are really envisaging
that these judges will perform is not so much a big gun role;
it is a role in dealing with an individual case that calls for
some input from the judiciary. Sir Igor, or indeed I on occasion
think it is appropriate to speak to the media where a big gun
is needed.
Q21 Baroness Quinn:
How do you intend to ensure speed of reaction in these circumstances
because very often it seems that if reaction is not quick then
stories get legs and become very, very unmanageable and difficult
and often very misleading.
Lord Phillips of Worth Matravers: Yes,
I think we must rely primarily on our communications office. As
its name involves it is about communications. We would hope that
they will learn, sometimes even in advance of circumstances where
this input may be needed. It is important that judges get used
to getting on to the communications office if they anticipate
that a judgment they are about to give, a sentence that they are
about to impose is going to be controversial, so that we can be
forewarned that it may be necessary to deal with media comment.
Otherwise, one may be taken by surprise by media comment and have
to react quickly; but, again, the communications office will be
the first to pick up the comment and maybe get on to me and say,
"I think we ought to have a judge to deal with this."
Q22 Viscount Bledisloe:
Will the press and the media have a list of these judges with
contact numbers, or will they talk to the communications office
and then be put in touch with the judge if the communications
office thinks it is appropriate? Secondly, will the individual
judges on the panel take a proactive role sometimes and get in
touch with the media and say, "You would like to know about
this" or "I will clarify this."
Lord Phillips of Worth Matravers: These
are questions on detail on which I am not in a position to give
an informed comment other than guessing what the answer is likely
to be. I do not think the answer is likely to be that the press
are going to be provided with phone numbers for five judges so
that they can ring them up whenever they want to bounce anything
off a judge. I think that these judges are more likely to be reactive
than proactive.
Q23 Lord Morris of Aberavon:
Lord Chief, is not the important thing that one cannot really
anticipate where the story will have legs, as Lady Quin has suggested.
These situations arise, and therefore what is important is that
the communications office—which is the first line of defence,
after telephone numbers of judges—is in touch with the sentencing
judge who can put them right, so that when they talk they talk
with knowledge; and only in the second resort do these specialist
spokesman need to react at all.
Lord Phillips of Worth Matravers: I would
entirely agree with that; I think it is very important that the
communications office is informed, preferably in advance. But
certainly if there is a sentence that has been imposed that is
provoking a reaction the first thing they will want to know is
what is behind it, and these judges should be used as a last resort.
Q24 Lord Norton of Louth:
Clearly you would expect these cases to be exceptional where you
would need a judge to come out and deal with the media to explain
a particular case and, as you indicate, the important thing is
deciding on a case by case basis what would apply. But are you
able to give an illustration of the type of issue you think that
would fall within the area that would require this type of reaction?
In essence, where is the dividing line?
Lord Phillips of Worth Matravers: I think
the Craig Sweeney case was a classic example where the sentencing
judge had been acting entirely as he should in accordance with
statutory requirements and was being attacked, quite unfairly,
as if his decision had been something entirely of his discretion.
If a judge says, "I am going to allow you one-third off because
you pleaded guilty at the outset," you can imagine the press
perhaps attacking the judge—"Fancy giving a third off
to this villain just because he said he was guilty, when it was
quite obvious he was going to be convicted anyway." Somebody
needs to say to the press, "Actually if you look at the statute
that is what the judge is required to do."
Q25 Lord Norton of Louth:
So at the core of it would you envisage that what is happening
is where there is a misinterpretation of the role of the judiciary
in dealing with particular cases?
Lord Phillips of Worth Matravers: That,
I think, is the classic situation. Obviously details of a particular
case it is undesirable should be discussed in public, there is
always the chance or even sometimes likelihood that there is going
to be an appeal, and the appeal is the right mechanism for challenging
the individual decision reached by a judge.
Chairman: Lord Lyell, whose birthday today the
Committee has already acknowledged!
Q26 Lord Lyell of Markyate:
One of the most significant changes, Lord Chief Justice, brought
about by the Constitutional Reform Act in 2005 was that the Lord
Chief Justice became Head of the Judiciary. In that role where
do you draw the boundary between matters on which you feel able
to comment publicly and those you must avoid? For example, you
recently gave a very interesting speech to the Howard League for
Penal Reform calling for a re-examination—it seems to have
proved terribly timely—of the legislative framework for
sentencing, and in March in Birmingham you welcomed the Law Commission's
proposals for new homicide legislation. Where does the dividing
line come?
Lord Phillips of Worth Matravers: I try
to avoid matters that are politically controversial. The Birmingham
lecture was a lecture essentially to a law faculty about proposed
changes to our substantive law and there I felt it perfectly appropriate
to look at the problems that our law had been giving rise to in
this area—problems for judges, numbers of cases that were
going all the way up to the House of Lords because the law was
uncertain—and giving my view in relation to the desirability
of some of the changes that were proposed from really a rather
technical viewpoint of how well the law will work. Moving on to
the speech to the Howard League for Penal Reform, sentencing is,
I think, unfortunately very much in the political arena and in
giving that speech I did my best to avoid any areas of political
controversy. I said that if there was a proposal, as we now know
there is, from Lord Carter, that there should be a sentencing
commission or some body which would enable Parliament to anticipate
the consequences of legislation or maybe other trends on the demand
for prison places then I hoped that this would receive detailed
consideration in a non-political atmosphere, or words to that
effect.
Q27 Lord Lyell of Markyate:
I think it is bound to be political although one hopes that the
solution will be right and command consensus. What Lord Carter
seems to be suggesting is that there should be a sentencing commission
which will look and see how many people there are in prison and
give guidance that, whereas you might have thought of giving ten
years, now since we are so crowded you should not give more than
eight years, or something of that nature. Were you consulted about
this idea of the sentencing commission before the Carter Report
and the government statement was made?
Lord Phillips of Worth Matravers: I have
had discussions with Lord Carter about this idea. It is a very
complex concept. Certainly in this jurisdiction one sees the way
it has been adopted in the United States. I did not give and I
have not given a view as to how it would work, whether it would
work, how desirable it would be if adopted in this jurisdiction;
what I have said is I really think that this is something we ought
to look at so that we can see what is involved. Lord Carter has
suggested that there should be a working group with judicial involvement
to look at what is involved and how this would work, and that
is something in principle I would favour.
Q28 Baroness Quinn:
I personally agree with what you have just said but is there a
real issue in trying to resolve the dilemma between the principle
that the punishment fits the crime, on the one hand, and the second
statement, about which we heard a lot yesterday, that resources
have to be taken into account?
Lord Phillips of Worth Matravers: This
is, I think, an important and very interesting area. The first
question is the punishment fitting the crime. That raises the
question is there some absolute level of punishment for any particular
crime? If you believe that there is and it should be left to the
judges to decide what that punishment should be, regardless of
the cost, then fine. I myself believe that Parliament, which is
responsible for taxing the public and using the revenues raised,
has a legitimate interest in the cost of punishment. The public
is paying for punishing offenders. You have to keep offenders
in prison when they are dangerous, but there are prisoners who
have ceased to be dangerous; maybe they were sent to prison at
the age of 22 for murdering somebody in the course of drugs dealing—a
very serious offence calling for serious punishment, and they
are dangerous at the age of 22. Ten years on their personalities
may have matured and they may no longer be dangerous. If you keep
them in prison after that you are keeping them in prison to punish
them. That has its cost. As I said in the lecture, if you are
going to put somebody in prison for 30 years by way of punishment
you are investing £1 million or more in that operation. I
think Parliament ought to reflect whether that is the most desirable
way of using resources having regard to, obviously, the viewpoint
of the electorate. But it is a debate, I think, that needs to
be had.
Q29 Lord Smith of Clifton:
For the first time ever, Lord Chief Justice, the Lord Chancellor
is a Member of the House of Commons rather than this House, and
someone who has been drawn from the world of politics rather than
the law. How has this novel background affected the relationship
between the Lord Chief Justice and the Lord Chancellor? Has the
significant growth in the Lord Chancellor's policy remit been
a significant factor in this context?
Lord Phillips of Worth Matravers: When
this Committee reported it was before Jack Straw had been appointed
as Lord Chancellor and this Committee said it hoped that in future
the Prime Minister would always appoint as Lord Chancellor somebody
of sufficient seniority. The Prime Minister obviously listened
to the words of this Committee because he could not have done
much better than to appoint somebody with the experience and seniority
of Jack Straw. Jack Straw, when he took office and swore the oaths
that the Lord Chancellor has to swear, went out of his way to
state how seriously he took his responsibilities to the rule of
law, his responsibilities to the judiciary and his responsibilities
to make sure that the justice system is properly resourced. My
relationship with him has been excellent; I have not observed
any adverse effect from the size of his portfolio. He has expressly
made it plain that he would not contemplate robbing the Court
Service of funds they need because of the demands either of legal
aid or of the prison system.
Q30 Lord Smith of Clifton:
Do you regard the office of Secretary of State for Justice/Lord
Chancellor as one that will inevitably become more and more party-politicised,
given the range of policy matters now falling within the Ministry
of Justice? I can understand that with a new innovation everyone
wants to act perfectly correctly and so on, but as it becomes
part of the routine of constitutional life and the personalities
change, particularly with regard to the Secretary of State, one
can see some slippage in the Chinese walls and the protocols that
are observed?
Lord Phillips of Worth Matravers: The
role of the Minister of Justice, having regard to the size of
his portfolio, I think is bound to bring him into the political
arena much more than the role of the old Lord Chancellor and I
also agree that that has its dangers, and it is important that
he should distinguish between the functions he performs as Lord
Chancellor, which should be apolitical, and other areas of his
portfolio, such as prisons, which certainly at the moment have
considerable political implications.
Q31 Viscount Bledisloe:
Lord Chief Justice, I want to ask you a couple of questions about
the judicial appointment system. In your speech to the Commonwealth
Conference in Kenya you said that the Commission, whilst of very
great calibre, has proved to be over bureaucratic and far too
slow. But you expressed the confidence that we should be able
to put that right. To what extent has it been put right? To what
extent would it be put right and what will then the time lag be
between application and appointment?
Lord Phillips of Worth Matravers: It
has not been put right yet. It is a big task and I think that
part of the problem was that the Judicial Appointments Commission
was coming in cold and had to hit the ground running—there
was no period of shadowing or anything like that, it had to set
up its system and start operating it, and there have been teething
problems. We are looking at those problems at the moment. I am
confident that we are able to resolve problems that we have identified.
As it happens, I am meeting with Usha Prashar at 12.15 today and
officials are meeting this afternoon to look at the nuts and bolts
of the problems. But I believe that there are areas of bureaucracy
that we have identified that we undoubtedly will be able to deal
with. At the end of the day there will always be a problem of
timescale involved in judicial appointments because it does take
some while to go through the process. However speedily you manage
to do it you cannot concertina the process as it is now to the
extent that we had in the old days where the Lord Chancellor tapped
somebody on the shoulder and said, "I have a vacancy next
week, how about it?" So it is going to take time. One has
to select enough candidates to fill vacancies that one cannot
foresee because people retire through ill health or maybe die
unexpectedly and you have to have the appointees available to
fill those gaps if the system is going to work well.
Q32 Viscount Bledisloe:
You mentioned the tapping on the shoulder and you said in your
note that very often many of the best people who went on the Bench
had got there by being tapped on the shoulder. Do you find it
a disadvantage not to be able to tap people on the shoulder?
Lord Phillips of Worth Matravers: Yes,
I think so. I think that was inevitably going to be a disadvantage,
balancing to some extent the advantages of a transparent judicial
appointments system. It is undoubtedly the case that there are
practitioners who are not thinking of going on the Bench, have
been in the past, who have been persuaded to consider that perhaps
it is their duty, having taken a lot out of the system, to put
something back by becoming a judge. That is something that is
simply not open to us at the moment; anyone who wants to become
a judge has to go through the appointments system and the competition.
Q33 Viscount Bledisloe:
What is an applicant meant to do in between the time he applies
and gets a decision? Is he meant to go on accepting work knowing
that if his application is successful he will not be able to do
it, or is he at liberty to go on taking work from people under
that risk of having to let them down?
Lord Phillips of Worth Matravers: That
risk has always been inherent in the system. What happens very
often is that the solicitor will ask counsel that he is thinking
of instructing, "Have you applied for the Bench?" If
counsel then says yes the solicitor may not instruct the counsel.
This is a matter of considerable concern to us because obviously
it is part of the disincentive of applying to go on the Bench.
You find that solicitors are not instructing you because of apprehension
that you may not be able to do their case if appointed.
Q34 Lord Lyell of Markyate:
Just taking up those words "tap on the shoulder" you
may find there is a solution—you have probably already seen
it—that actually that is not quite what happened. During
the ten years that I had some involvement as a law officer what
the pre-judicial Appointments Commission did was to build up A
lists, B lists and C lists and people were let into the secret
that they were on the A list; they were encouraged to come, there
were regular meetings. Therefore, they could see ahead a great
deal more clearly. I see no reason why the judicial appointments
system should not once again adopt that sort of system, while
being more transparent. Has that been considered?
Lord Phillips of Worth Matravers: The
A list, B list, C list system certainly post-dated my appointment;
I was tapped on the shoulder, and I had no inclination of the
tap at all. The A, B and C list I think was for people who had
applied because we had a halfway house where people could apply
to the High Court Bench and therefore be put on the list, but
the Lord Chancellor could also invite counsel who had not put
their names forward as applicants. The idea of having a standing
list so that you know you are in the A team I think is one that
merits consideration. We have that to some extent at the moment
because when, as I understand it, an applicant is considered to
be of sufficient calibre to have a High Court appointment but
there is not a vacancy at the moment, that applicant will be informed
that he or she is selectable but will have to wait to see whether
a vacancy becomes available. What is not clear to me at the moment—and
I suspect maybe not even been decided—is how long you remain
in that position and are you going to remain in that position
if there is a subsequent competition in order to have more candidates.
That, I think, is an area we have to look at.
Q35 Lord Lyell of Markyate:
I do recommend you to look back because actually it was in position
for a very long time. I think you probably went on the Bench at
the same time as I became a law officer in 1987, and it was well
developed by 1990, I think.
Lord Phillips of Worth Matravers: If
you had to apply to go on the list solicitors would still, I think,
ask you had you applied for a judicial appointment, to which you
would have to answer yes, and the more they rated you—and
obviously the solicitors are likely to be instructing people that
they rate highly—the more apprehensive they might be that
as you applied and you were prepared to go on the Bench as a vacancy
arose then there was a risk that you would not be available for
their case.
Lord Lyell of Markyate: You are absolutely
right. I have had exactly the same feedback that you are giving
to us.
Q36 Lord Morris of Aberavon:
Lord Chief Justice, is there not something in between tapping
on the shoulder and the full bureaucracy which is obviously developing,
and are you right that they were coming into this cold? There
was some delay before they took up their full responsibilities.
One might have thought that whoever anticipated that delay would
have ensured that the machinery was in place. I remember asking
the question whether they had the resources and I was told they
had the resources, and the delay is really down to appointment
of an honorary Recorder. There is a huge delay of anticipation
and is it fair for somebody to have to wait a long time to tell
solicitors that "I may not be able to do your work."
I was reading only the other day of a specialist appointment in
the High Court where the judge retired in February—a very
senior judge—and his successor was only appointed in October.
That sounds to me odd.
Lord Phillips of Worth Matravers: It
is far too long, I quite agree, and these are the flaws in the
way the system has been operating, that we believe we are going
to be able to address. It is quite true that there was a period
under which the new Commission obviously was recruiting and working
out how it was going to set about its task. It was not a very
long period; there was no real shadowing period. It had very considerable
problems, one being there was a time at which it was planned that
they would relocate in the Midlands and this made recruitment
extremely difficult. I know that Usha Prashar is finding life
much easier now it has been decided that the Commission will remain
in London.
Q37 Lord Morris of Aberavon:
Has everyone got to apply?
Lord Phillips of Worth Matravers: Yes,
you have to apply if you are going to be considered.
Q38 Lord Rowlands:
You have weighed the advantages and disadvantages in the replies
to your questions. Which side do you fall on? Do you think that
the new system is going to be better than the old, or not?
Lord Phillips of Worth Matravers: In
balance I think the new system was absolutely inevitable and it
was desirable that it should be put in place. One has to have
a transparent system of independent judicial appointments, in
my view.
Q39 Lord Peston:
I am referring to the Ministry of Justice Consultation paper on
judicial appointments, which wants to know whether the role of
the Executive, by which they mean the Lord Chancellor, should
have a reduced role and whether the role of Parliament, in which
I hope they include their Lordships' House, should have an increased
role. The first is a technical question, will you be responding?
Lord Phillips of Worth Matravers: We
will be responding; we are preparing a response.
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