Examination of Witnesses (Questions 20
- 39)
WEDNESDAY 9 JULY 2008
Lord Phillips of Worth Matravers and Sir Igor Judge
QC
Q20 Lord Rodgers of Quarry Bank:
If I may, I would like to squeeze in a question which is related
both to media interviews and also your report about relationships
between the executive and the judiciary. I am referring to a report
in all the papers yesterday about knives. There was a very full
report which emerged, although it refers to what Sir Igor is going
to say if he has not said it yet, presumably it was explained
now rather than later. Also, in at least one report there are
references to a further fresh review by the Justice Secretary,
by the Lord Chancellor, together with the Home Office Secretary
and also the Attorney. That raises the question of are they proceeding
in parallel over the whole question of the future of knives. Will
it be the case, and is it natural for this to happen, for the
new Lord Chief Justice to discuss this matter at all? If not,
how do we get such a harmony of view, if there is such, and who
is going to deal with the media issues? Presumably either the
Lord Chief Justice or your successor said the piece which led
to yesterday's papers.
Lord Phillips of Worth Matravers: Can
I start and then I will hand over to Sir Igor to deal with what
he is reported, and I suspect to some extent misreported, to have
said.
Sir Igor Judge: Yes.
Lord Phillips of Worth Matravers: So
far as knives are concerned, guidance on sentencing from judges
only comes appropriately in the course of a judgment after hearing
an appeal in a case involving the use of a knife, in which case
that is a perfectly appropriate context for whoever is presiding
over the Court of Appeal to give a guideline judgment, or, and
this will take longer, the Sentencing Guidelines Council might
be considering that issue. It would not be in any way appropriate
for any judge to go on the radio or on television and say, "We
have got a terrible problem with knife crime, we ought to be sending
people to prison for longer", for instance. That would be
quite inappropriate. So far as government is concerned, government
may be considering legislation to address knife crime. That would
involve policy on which it would almost certainly be inappropriate
for judges to comment. Judges might quite properly comment on
the implications that a change in policy might have, for instance
on judicial process, or even the effect this might have on the
prison population.
Sir Igor Judge: I read the article in
the newspaper yesterday—I think I might even be able to
see which paper it was—and I did not recognise it as anything
I have said recently, but about three or four weeks ago sitting
in the Court of Appeal Criminal Division I gave a judgment in
relation to four cases involving knife crime of different seriousness
and expressed myself in what some called fairly robust terms.
One, on the whole it is not a good idea for people who are carrying
knives to be dealt with by way of a caution, the issue should
be brought to a court for decision. Two, that sentences in relation
to knife crime should be deterrent sentences. I did not use that
actual word, I do not think, but sentences which were at the top
end of the appropriate range. The appropriate range, of course,
depends on the particular crime. There is just the bare carrying,
the use and so on and so forth. That article is dealing with something
that I said sitting in court, as I said, about three or four weeks
ago. It made lots of headlines at the time and then went to sleep
again and was resuscitated yesterday.
Q21 Lord Rodgers of Quarry Bank:
When the article says: "Every magistrate in England and Wales
is to be sent a warning from the next Lord Chief Justice that
knife crime is reaching epidemic proportions", you do not
intend to send out any such letter to the magistrates?
Sir Igor Judge: No, I do not.
Q22 Lord Rodgers of Quarry Bank:
Thank you.
Sir Igor Judge: If, however, somebody
sends them a copy of my judgment then the copy of my judgment
will be sent, but I know nothing about any plan.
Q23 Lord Morris of Aberavon:
I did not see the article, Sir Igor, but I did read the reports
of your judgment. There is a rather confused picture regarding
the guidance certainly from the Sentencing Guidelines Council
regarding knives. Do I presume the media team would cover the
activities of the Sentencing Guidelines Council? Perhaps you might
agree that the picture is not entirely clear to the public in
view of the contradictory newspaper reports that we have as regards
the intentions of the judiciary so far as knives are concerned.
Lord Phillips of Worth Matravers: The
first question, would the media team cover this, I think the answer
would be no. If comment is called for, it ought to come from the
Sentencing Guidelines Council itself and on the Council we have
our own adviser on relations with the media. Secondly, the Sentencing
Guidelines Council lays down long-term guidelines seeking to achieve
proportionality and uniformity of approach, not to dictate individual
sentences but looking at the longer term. You can get what may
be a shorter term situation where a particular type of offence
suddenly becomes prevalent, or is shown to be prevalent, which
may call for a faster reaction than the Sentencing Guidelines
Council is capable of. In that kind of situation it is perfectly
appropriate for the President of the Queen's Bench Division or
an appropriate member of the Court of Appeal presiding in the
Criminal Division of the Court of Appeal to give the kind of judgment
that Sir Igor gave.
Sir Igor Judge: May I just add, it so
happens that I am seeing the Sentencing Guidelines people this
week simply so that we can iron out where there seems to be public
misunderstanding and I would expect that by the end of the week
the position will be clarified. There is no problem. There is,
in fact, no confusion. I do not think there is any uncertainty.
I suspect the confusion has been added to by the issue yesterday
by the Sentencing Advisory Panel of a very broad paper on the
whole issue of sentencing which is not a Guidelines Council paper
but a Panel paper and that has got into the mixture, so the cake
that is being produced has rather a lot of inappropriate excrescences.
Q24 Viscount Bledisloe:
Going back to the Framework Document, when you made your speech
in Melbourne, Lord Chief Justice, you said: " ... it is reasonable
for us [the judiciary] to be prepared to account for the manner
in which we perform our share of the partnership". How do
you envisage that happening? In particular, how do you envisage
Parliament holding the Lord Chief Justice to account for his role
in that service?
Lord Phillips of Worth Matravers: The
accountability of which I was speaking was explanatory accountability
and by producing the review and by coming before committees to
answer questions about it, it seems to me that I am going a long
way to providing that explanatory accountability. Of course, I
also had the press conference, so that is more dealing with explanatory
accountability to the general public.
Q25 Lord Rowlands:
The draft Constitutional Renewal Bill would make a number of changes
to the judicial appointments system in England and Wales. Given
that the new system has not been operating for very long, do you
think any of the provisions in the draft Bill are premature?
Lord Phillips of Worth Matravers: No,
I do not. The system has been running long enough to demonstrate
a number of teething problems. Those teething problems, to some
extent, have been problems that have resulted in delay. Those
matters, I think, can be put right. For instance, junior appointments
at the moment have to be approved by the Lord Chancellor and that
has proved to be really something of a formality, but a formality
that takes time. The Lord Chancellor cannot have personal knowledge
of individual candidates for junior appointments at the judiciary
unless he maintains a huge department to second-guess the Judicial
Appointments Commission. In that respect it seemed to us it would
be better if the reality was recognised and he did not have a
role to play there. Equally, the Prime Minister only has a formal
role in judicial appointments but it is a role that can delay
the appointments, so what is the point of that particular role
rather than leaving it to the Lord Chancellor to make recommendations.
Q26 Lord Rowlands:
So you are content with the Bill as drafted in respect of judicial
appointments?
Lord Phillips of Worth Matravers: There
are some proposals with which we do not agree. Those, I think,
are proposals which would give the Lord Chancellor more control
over the Judicial Appointments Commission. He is already in a
position to give guidance. He has not availed himself of that
power yet, and we do not consider it would be appropriate that
he should, for instance, and this is a suggestion, be setting
some kinds of targets for the Judicial Appointments Commission.
The statute lays down the criteria for judicial appointments and
to impose targets on top of those criteria would tend to make
it very difficult for the commission to fulfil its statutory mandate.
Q27 Lord Morris of Aberavon:
Initially, Lord Chief, there was some criticism, anecdotal evidence,
of delays in judicial appointments and obviously the new body
was running in. Have they now caught up? Are there significant
delays now? We have heard of certain posts which have been empty
for some time. What is the position to date? Are things going
smoothly now?
Lord Phillips of Worth Matravers: Things
are going much more smoothly now. The most notable problems arose
in two areas. There was a competition for the Circuit Bench which
ran into a bit of technical difficulty which had to be sorted
out and that resulted in delay. There are also problems where
a particular post crops up unexpectedly, and Senior Circuit Judge
positions are a good example of that. We have had some real problems
and very long delays in filling those individual posts because
the Commission simply did not have the capacity at short notice
to run a competition. They have now addressed that and we are
hopeful that we are not going to have that problem any more. I
am optimistic that the delays that have taken place in the past
are going to be a thing of the past.
Q28 Lord Morris of Aberavon:
Compared to the situation before the JAC was set up, are appointments
now as speedy as they were before or slightly more delayed?
Lord Phillips of Worth Matravers: They
are more delayed in one particular respect, and I am not sure
that one can avoid it but it is a very pertinent one at the moment.
I was appointed, or am to be appointed, to replace Lord Bingham
as the senior Law Lord. That involved quite a lengthy appointment
process because it is a United Kingdom appointment, so the Judicial
Appointments Commission and equivalents in Northern Ireland and
Scotland have to be consulted and so on. One could see that the
appointment was going to be necessary because Lord Bingham is
retiring when he reaches his retirement age. It took a long time
for that process to go through. That process having been concluded
and my appointment announced, it then becomes apparent we needed
a new Lord Chief Justice, and so the process of appointing a Lord
Chief Justice then begins, and that takes a long time too. The
new Lord Chief Justice is announced and then it becomes apparent
we need a new President of the Queen's Bench Division. In the
old days, the Lord Chancellor, after consulting, would have sat
down with senior members of the judiciary and discussed who was
going to fill each slot, so it could be done once-and-for-all
on a single occasion. The current process really has given rise
to some difficulties. We hope that everything will be in place
by 1 October but it can be a rather slow process.
Chairman: Critical path analysis.
Q29 Baroness O'Cathain:
On that basis, I know one should not because the judiciary is
way up there, you are not supposed to ever suggest anything to
them that might come from something so low down below as business,
but personnel planning and executive appointments planning was
always the mark of a very good organisation and, in fact, people
used to be groomed for that, using the term properly, for promotion
and seeing where people were likely through age to move on or
move sideways. In fact, sometimes you see six or seven names for
a box and way out for somebody who will not be retiring for another
three or four years, but those six or seven names might also be
for other boxes in the pecking order. Something like that, that
has always worked in industry and business, in large corporations,
is there any merit in looking at something like that so that people
who are in charge of the judicial appointments, and I know we
should not really be addressing this to you, the Judicial Appointments
Commission, should be aware that things will happen, like somebody
will die suddenly or something else might happen or a new position
is created, and instead of having a huge, long drawn-out process
looking at every name in the sphere, so to speak, there would
be an easier way through it?
Lord Phillips of Worth Matravers: Two
points. As far as the process I was talking about, first of all
replacing the senior Law Lord then Lord Chief Justice then the
President of the Queen's Bench Division, I cannot see any easy
way of amalgamating that process. Certainly it would need legislation
because there are different panels responsible for the different
appointments, to start with. The point you make about longer term
planning is a very valid point and one that has been concerning
us. Judges who are appointed now have to retire at the age of
70 and it does not leave very long for a judge to work his or
her way up from High Court to Court of Appeal, maybe the Supreme
Court or Heads of Division. It seems to us when we have been discussing
this that this does call for a bit of forward planning so that
one is looking at the first stage at those who are potentially
highfliers who are going to get to the top and making sure that
when promotions are considered, those get promoted in sufficient
time to get the experience they need to reach maybe the Supreme
Court.
Q30 Viscount Bledisloe:
Two questions on that. Firstly, is not one of the difficulties
of Lady O'Cathain's very sensible idea that in industry you assume
that everybody wants to be promoted whereas the Judicial Appointments
Commission is not allowed to look at anybody unless they have
actually applied, so the exercise might be rather vain because
some of the people you were considering might say they did not
want it? Secondly, does not the fact you have given us about your
replacement of Lord Bingham demonstrate that there would have
been a very serious problem had Lord Bingham unfortunately dropped
dead overnight?
Lord Phillips of Worth Matravers: There
would obviously be an emergency if somebody who holds an important
position in the judiciary dies overnight. What then has to happen
is you have to move as fast as you can applying the statutory
process and in those circumstances one can move with a degree
of speed, particularly if it is a very senior appointment because
the panel that makes the replacement appointment is a small one
and the catchment area in which it would be looking is a relatively
small one. I think the suggestion was really focusing on promotion
so that your starting point would be those who already have judicial
appointments. I said to all the High Court judges that I would
proceed on the basis that they wished to be considered for an
appointment in the Court of Appeal unless they informed me to
the contrary and, by and large, I think judges do wish to be considered
for promotion; not always.
Q31 Viscount Bledisloe:
A different question. You were referring to the removal of the
power of the Lord Chancellor over appointments below the level
of High Court.
Lord Phillips of Worth Matravers: Yes.
Q32 Viscount Bledisloe:
You and the Judicial Appointments Commission take the opposite
positions on that, do you not?
Lord Phillips of Worth Matravers: We
do. I think they are taking a constitutional position and I am
taking a pragmatic position, and I have always been a pragmatist.
We are not taking the Lord Chancellor's control away altogether.
If he formed the view that there had been something wrong with
the process he could then challenge the entire process and that
would remain open to him. All we are suggesting is that there
is no point in his having to approve individual appointments.
Constitutionally one may say what is the difference between that
and a High Court appointment, but in practice he simply has not
got any value to add to the process.
Q33 Viscount Bledisloe:
So you are content with a situation where no-one in government
is answerable, even theoretically, for non-High Court Appointments?
Lord Phillips of Worth Matravers: I would
be, yes.
Q34 Lord Smith of Clifton:
The draft Bill would also give the Lord Chancellor the power to
remove judicial offices from the list of posts in England and
Wales that must, under the Constitutional Reform Act, be filled
following a selection process by the JAC. Jonathan Sumption QC,
a Judicial Appointments Commissioner, told the Joint Committee
that the JAC accepted the objective of making it easier to redeploy
existing judicial office holders to certain posts without making
them go through a full JAC competition, but that they had "serious
concerns" about the proposed mechanism because it would "entitle
the Lord Chancellor to remove any schedule 14 office and basically
resume the appointing power himself in any circumstances whatsoever.
It appears to us that this is completely inconsistent with the
whole rationale for creating an independent JAC in the first place.
We think that the redeployment problem can be tackled by a much
less extreme form of legislation." Do you share the JAC's
concerns about the breadth of this power?
Lord Phillips of Worth Matravers: Yes,
we do, it goes too far. It in theory would give the Lord Chancellor
power to remove the entire schedule 14 list from the Judicial
Appointments Commission. It is inconceivable he would do so but
it does not seem desirable to give him the theoretical power to
do that. What we are concerned about is that there are on that
list a number of appointments, and particularly appointments on
various tribunals, which are filled by serving circuit judges.
They do not get paid any more if they are allocated to a tribunal,
they serve therefore a limited period and then they have to be
replaced. It does not seem to us it makes much sense to say there
has to be a competition for these. Sometimes they are not very
keen to go anyway. So really it ought to be dealt with as a matter
of deployment; it does not involve promotion. The Judicial Appointments
Commission probably, if it is going to add value to this process,
is going to make it quite arduous. It would be better if they
could identify those in particular posts and say we do not need
a competition for these posts, they can be dealt with, just as
a lot of other posts to which I deploy judges are dealt with,
without the involvement of the Commission.
Lord Smith of Clifton: Thank you. I am very
glad to hear it.
Q35 Lord Rowlands:
There has been some criticism of creating a two-tier system where
by implication the appointments below High Court count for rather
less than those above, which is not a message you would want to
send out.
Lord Phillips of Worth Matravers: I am
not sure. I think probably they do, do they not? High Court judges
have a jurisdiction which is much more significant in some respects
than judges on the circuit bench or district court judges. Their
appointments are I think more important and it seems to me right
that at that level the Lord Chancellor should have an involvement
so that if he should be advised there is some reason for questioning
a particular appointment he should be able to do so.
Q36 Lord Rowlands:
I was quoting Professor Dame Hazel Genn, a Judicial Appointments
Commissioner. You do not share her view?
Lord Phillips of Worth Matravers: I must
respectfully disagree about that aspect.
Q37 Viscount Bledisloe:
Can I put the contrary point which I used to put to one of the
Lords of Appeal? That actually the county court bench which has
daily contact with ordinary members of the public is in fact rather
more important than the Court of Appeal or the Supreme Court where
contact with the public is really very small, and that people's
faith in the judicial system depends much more on the adequacy
of the more junior appointments?
Lord Phillips of Worth Matravers: I think
it depends on your starting point and how you define what is important.
Obviously they have an enormous importance so far as contact with
the public is concerned because they are the judges who are coming
into daily contact with the public in a way which certainly members
of the Court of Appeal do not; we are dealing with appeals from
their decisions. So to that extent one can say yes, so far as
the direct impact on the public is concerned and the way we run
our judicial system, those judges who are dealing directly with
the public are more important. But if you are looking at the global
picture and saying, "Who is in a position to have a more
significant effect on the way the country runs"—"runs"
is not quite the right word, judges are not concerned with running
the country—a decision of the Court of Appeal or the House
of Lords/Supreme Court can have immense implications for the country
as a whole, viz the recent decision that said that anonymous
witnesses were not compatible with a fair trial under the Human
Rights Convention.
Chairman: Thank you very much. Supreme Court
appointments. Lord Peston?
Q38 Lord Peston:
You have answered quite a lot of the question I was supposed to
ask you earlier but can you take me through it step by step. At
the moment you are still the Lord Chief Justice?
Lord Phillips of Worth Matravers: Yes.
Q39 Lord Peston:
Although I did see you attending the Law Lords at least once a
few weeks ago to see what was going on.
Lord Phillips of Worth Matravers: I sit
occasionally with the Law Lords.
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