policy” (Appendix 8, Q 41). Lord Falconer elaborated on this sentiment,
suggesting that “it is generally a bad idea for judges to be criticising the
government on policy issues” because “the public want judges to be
unpolitical” and “those very same judges then have to enforce laws about
which it might be said they have expressed disagreement” (Q 58). The Lord
Chief Justice and Heads of Division have a responsibility to ensure that
judges adhere to this principle.
53. However, the Lord Chief Justice, as head of the judiciary, and perhaps other
senior judges with responsibility for specific parts of the justice system, are in
a different position from that of other judges. On occasion, it is necessary for
them to speak out publicly if a particular government policy is likely to have
an adverse impact upon the administration of justice and ministers have
failed to provide a satisfactory response during private consultations.
General Channels of Communication
54. Effective channels of communication between the executive and the senior
judiciary are vital to ensure that the impact of government legislation or
policy proposals upon the administration of justice is fully understood at an
early stage. Such communications are facilitated in a variety of ways. First,
judges serve on a range of bodies with responsibility for the justice system,
for example the National Criminal Justice Board. As Sir Igor Judge said, “it
is no longer … a concomitant of independence that judges should be
isolated” (Q 297).
55. Second, concerns amongst the judiciary about particular government
proposals are conveyed through formal responses to consultations. For
example, as was widely reported at the time, the Council of Her Majesty’s
Circuit Judges gave a largely negative response to the Home Office’s paper
Convicting Rapists and Protecting Victims—Justice for Victims of Rape in January
2007.
27 As Sir Igor Judge told us, a negative response to Government
proposals “may create tension” but “we do not expect our response to carry
the day” and “in the end Parliament legislates, and then it does not really
matter what the judges think” because “the judges apply the law that
Parliament has produced” (Q 297).
56. Finally, there are private meetings which take place between ministers and
judges (especially the Attorney General, the Home Secretary—probably now
the Secretary of State for Justice—and the Lord Chief Justice) to discuss the
practicality of particular government policies in terms of the administration
of justice. As Sir Igor Judge explained, “week after week these sorts of
discussions are going on at ministerial level [and] at official level” (Q 297).
Likewise, the former Home Office Minister and new Attorney General,
Baroness Scotland, has confirmed that “Ministers do meet the judiciary
regularly. These are constructive meetings which ensure there is a regular
dialogue between us”.
28 If these meetings do not lead to satisfactory mutual
understandings, it should be noted that the Lord Chief Justice can also in
appropriate circumstances ask to see the Prime Minister (Q 68).
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 23
Constitutional Change
57. Effective two-way communication is of particular importance when a
constitutional change is proposed which is likely to impact upon the judiciary
or the administration of justice more broadly. As Lord Justice Thomas told
us: “Our constitution … is based both on statute law and on constitutional
understandings and conventions. Those understandings and conventions
include reliance upon full and appropriate respect for the different positions
occupied by the three branches of government” (Q 374). Therefore, he said,
there should always be “a proper … and detailed examination, so that you
come to a solution that is acceptable across the board to the executive, to the
legislature and to the judiciary” (Q 409). This principle is of even greater
significance in light of the constitutional changes brought about by the CRA
because, in the words of Dr Matthew Palmer, the different arms of
government are still “jockeying for position and taking … time to settle down
as to what their relationship is likely to be” (Q 518). Maximum co-operation
and consultation are therefore essential.
58. We have already noted in Chapter 1 how in 2003 the Government failed to
consult relevant stakeholders—including, astonishingly, the judiciary—before
announcing the proposed constitutional changes which ultimately became
the Constitutional Reform Act 2005 and, after discussion with the then Lord
Chief Justice, the Concordat. Thus the Government’s subsequent decision in
early 2007 to split the Home Office and create a Ministry of Justice (MoJ)
provided an opportunity to ascertain whether they had learnt the lessons of
2003. Whilst the proposals involved a change in the machinery of
government, which is a matter for the Prime Minister, Professor Alan Page
noted that they were also of “very real constitutional significance” (Q 480).
Lord Justice Thomas agreed: “It is our view that the creation of a Ministry of
Justice is not simply a machinery of government change [but one that
involves] significant constitutional change” (Q 374). Similarly,
Professor Anthony Bradley told us that the changes were “of constitutional
significance” and affected “the relationship between the Government and the
judiciary that resulted from the Constitutional Reform Act 2005”, but he
also noted that “there is no clear argument to be made against the proposed
Ministry of Justice on constitutional grounds” (Appendix 4).
59. So what constitutional impact might these reforms have? We discuss these
issues in greater detail below, but they can be summarised as follows:
• Role of the Lord Chancellor: the impact of combining in one post the
Lord Chancellor’s responsibility to defend the independence of the
judiciary and some of the Home Secretary’s most controversial duties.
The effect of having a Lord Chancellor in the House of Commons.
• Judicial Review: the impact of the Lord Chancellor being subject to a
much greater number of judicial reviews upon his relationship with the
Lord Chief Justice and the ongoing validity of the Concordat.
• Constitutional Affairs: the impact of constitutional affairs forming a much
smaller part of the Lord Chancellor’s department than previously.
•
Funding of the Courts: the possibility of the courts budget being squeezed
due to the demands of the resource-hungry prison system, and the impact
of no longer having a judge on the board of the department.
60. We agree that the advent of the Ministry of Justice, whilst obviously a
machinery of government change, has significant constitutional
implications.
61. The Government did not make a good start: the Lord Chief Justice found
out about the mooted policy on 21 January 2007 through a Home Office leak
in The Sunday Telegraph, whilst the then Lord Chancellor could only recall
that he “may have known the day before that something was going to be
suggested”.
29
The Lord Chief Justice went so far as saying that events
unfolded in this manner because the proposal reflected “an anxiety on the
part of the Home Secretary to clear the decks so that he could really make a
concerted attack on terrorism” and that “it was not a decision that was taken
because it would be an extremely good idea to have a Ministry of Justice”.
Professor Bradley concurred: “the immediate cause of the Government’s
decision appears to have been concern about the administrative and political
problems of the Home Office, rather than a long-established and fully
reasoned commitment to creating a Ministry of Justice” (Appendix 4).
Whilst this may be true, it is nonetheless important to note that a possible
Ministry of Justice has been on the political agenda for some years and that
there are solid and well-rehearsed arguments behind its creation.
62. After the leak occurred, Lord Justice Thomas told us, the judiciary was
provided by the DCA with “an outline paper detailing possible models for
the Ministry”. The judiciary responded with two working papers setting out
concerns in relation to resources, Her Majesty’s Courts Service (HMCS) and
sentencing (Q 374). On 19 March, just ten days before the Prime Minister
formally announced the Home Office split and the creation of the MoJ, Lord
Falconer and the Lord Chief Justice agreed to set up a working group—
reporting to them both—to resolve these issues of concern.
63. When the Prime Minister made his announcement, the Lord Chief Justice
publicly outlined his concerns about resources and sentencing, warning that
the new Ministry could face “a situation of recurrent crisis” if these concerns
were not addressed. Provided the necessary safeguards were put in place,
however, there would be “no objection in principle” to the proposals.
He
subsequently explained, “we did make it quite plain that we thought the right
way to go about it was to have in-depth discussions first and to form the
Ministry of Justice afterwards”.
32
Similarly, Lord Justice Thomas told us that
“the judiciary considered that the Ministry of Justice should not be brought
into existence until the necessary safeguards had been agreed, given the
constitutional importance of the issues. However, the judiciary’s view was
not accepted” (Q 374). Indeed, Lord Falconer made his position crystal clear
when giving evidence to us on 1 May: “If we cannot reach agreement, that is
not going to stop the Ministry of Justice going ahead on 9 May 2007”
(Q 423). When pressed, he simply said that any outstanding areas of
disagreement would have to “evolve” (Q 426).
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 25
64. When we asked Lord Falconer about the way in which this process of
consultation with the judiciary had been conducted, he told us that he was
“completely satisfied it is a sensible way of dealing with it” (Q 413).
However, Professor Terence Daintith did not agree: “If prior consultation
with the judiciary did not take place before the announcement was made, or
before the proposal … was fixed in the mind of government, then I think that
is very unfortunate, and one would hope that in any future case bearing on
the administrative structure relating to the discharge of judicial functions that
omission would not occur”. He felt that the Government had “move[d]
ahead as if it was simply in a pre-2003 situation and nothing more needed to
be done other than to tell people what it was going to do” (Q 479).
65. Clearly the formation of the working group was a positive step, even if it only
came into being slightly more than one month before the MoJ itself.
However, Lord Falconer imposed a number of very tight parameters on the
working group:
• there must be no change to legislation;
• there must be no change to the Concordat;
• there must be no change to the executive agency status of the HMCS;
• there must be no ring-fencing of HMCS’s budget; and
• it is for the Lord Chancellor to decide, subject to his statutory obligations,
on budgetary issues.
33
Lord Justice Thomas told us that the judiciary had accepted these
parameters because “we felt that if we were to try and protect our position
we had no alternative” (Q 382). Nonetheless, he added, it was made clear
that “the parameters would have to be revisited if appropriate constitutional
safeguards could not be provided within them” (Q 374).
66. At the time of writing—over two months after the MoJ came into being—the
working group set up by Lord Falconer and the Lord Chief Justice was still
trying to reach agreement. The Lord Chief Justice believed that the
relationship between the judiciary and the MoJ was unsustainable and he
suggested that he “may very well” be getting near the point where he would
be forced to use his “nuclear option” of laying written representations before
Parliament under section 5 of the CRA.
34
He went on to explain that the
judiciary had “reached the firm view” that there must be a “fundamental
review of the position in the light of the creation of the Ministry of Justice”,
but he noted that “the Lord Chancellor does not believe it is necessary”.
Lord Falconer, when questioned on this, would only agree that a review
could happen “in a year or two”.
36
67. We are disappointed that the Government seem to have learnt little or
nothing from the debacle surrounding the constitutional reforms
initiated in 2003. The creation of the Ministry of Justice clearly has
important implications for the judiciary. The new dispensation
3526 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
created by the Constitutional Reform Act and the Concordat requires
the Government to treat the judiciary as partners, not merely as
subjects of change. By omitting to consult the judiciary at a
sufficiently early stage, by drawing the parameters of the negotiations
too tightly and by proceeding with the creation of the new Ministry
before important aspects had been resolved, the Government failed to
do this. Furthermore, the subsequent request made by the judiciary
for a fundamental review of the position in the light of the creation of
the Ministry of Justice was in our view a reasonable one to which the
Government should have acceded in a spirit of partnership.
68. Whilst we do not have sufficient evidence to analyse in any great detail the
judiciary’s outstanding concerns about these latest reforms, we do offer some
thoughts and tentative conclusions. First, we consider how the reforms might
affect the traditional role of Lord Chancellor and his ability to defend the
independence of the judiciary effectively. Lord Justice Thomas was
concerned that the Lord Chancellor would become “a quasi-Home
Secretary” and predicted that “the conflicts that are being put into one
person will make it progressively more difficult as future ministers no longer
have the tradition of the office” (Q 383). Clearly, if the roles of Lord
Chancellor and Secretary of State for Justice continue to be combined, there
is potential for conflict between the statutory duty to defend the
independence of the judiciary and the temptation—to which home secretaries
have regularly succumbed—to make intemperate remarks about judges and
their judgments or sentencing decisions.
69. However, Lord Falconer pointed out that the changes “do not relieve [the
Lord Chancellor] of either his responsibilities to the court system or his
duties to the judges” (Q 416). He further commented: “The idea that a
minister … responsible for courts and the judges cannot also be responsible
for prisons, probation and sentencing policy seems completely wrong. It is a
model in many other countries and I would regard my ability to defend the
judges, their independence and a proper functioning court system as is no
way affected by that. That is a critical consideration in me supporting the
idea of a Ministry of Justice” (Q 421). These comments were echoed by
Professor Alan Page, who said “I do not think there is anything objectionable
itself in this combination of responsibilities” (Q 484). Although this is
logically correct, the recent experience of negotiations between the judiciary
and the Lord Chancellor has not been encouraging.
70. Another issue is whether the changes will have an adverse impact on the
status of the Lord Chancellor, making it more difficult for the post-holder to
defend the independence of the judiciary effectively. Traditionally the Lord
Chancellor was a senior lawyer in the House of Lords who had no prospect
of further promotion, and was seen as somewhat removed from the cut and
thrust of everyday politics. However, in light of the increased responsibilities
of the MoJ, assuming that the post remains combined with that of Secretary
of State for Justice, and given the recent appointment of Jack Straw MP as
Lord Chancellor, it seems less likely that future Lord Chancellors will be
members of this House. This makes it more probable that they will be
ambitious for promotion to what are seen as more senior posts, such as
Foreign Secretary or Chancellor of the Exchequer.
71. We believe that the role of Lord Chancellor is of central importance to
the maintenance of judicial independence and the rule of law. Prime
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 27
Ministers must therefore ensure that they continue to appoint to the
post candidates of sufficient status and seniority.
72. A related issue is the impact of the Lord Chancellor/Secretary of State being
subject to a much larger number of judicial reviews—particularly in respect
of prisons—than has been the case in recent years. The Judicial Position
Paper on the MoJ noted that “the relationship between the Lord Chancellor
and the Lord Chief Justice … depends on continuous dialogue, concurrence
and consultation between the two in the field of judicial appointments,
discipline and the administration of justice”.
37
Yet the Lord Chief Justice
said, “if I was sitting on an appeal to which [the Lord Chancellor] was a
party, then I could not myself meet with him or enter into discussions with
him while that appeal was pending; one of my other judges would have to”.
73. Whilst this problem could be overcome if the Lord Chief Justice agreed not
to hear judicial review challenges to the legality of MoJ policies and practices,
Lord Justice Thomas told us that “the Lord Chief Justice must sit in the
major cases—that is his job primarily, to decide them. It would be awful and
very damaging, I think, to the judiciary as a whole that if because of the need
to maintain dialogue under the Concordat with the Lord Chancellor there
was any perceived difficulty with him doing that” (Q 386). Therefore,
although the Lord Chancellor has always been subject to judicial review in
respect of the Legal Services Commission (QQ 419, 432), it will be necessary
to give careful consideration to how his relationship with the Lord Chief
Justice will operate under the new dispensation.
74. Another consideration is whether the former DCA responsibilities for
constitutional affairs will continue to be given the attention that they merit in
the much larger MoJ. Professor Terence Daintith expressed concern about
“how difficult it is to find constitutional affairs within the organisation chart
of the department” and warned that “it is a pretty small part of what the
department does” (Q 493). However, Lord Falconer, supported by other
witnesses including Professor Alan Page, insisted that “issues like human
rights, freedom of information, the constitution of the United Kingdom are
inextricably linked, I think, with the rule of law and the running of the
courts” (Q 444) and therefore rightfully belonged in the MoJ. Moreover, the
new Prime Minister’s decision to propose a series of constitutional reforms
(to be overseen by the new Lord Chancellor and Secretary of State for
Justice) during his first few days in office indicates that constitutional affairs
will remain very much on the agenda. Indeed, the Green Paper setting out
these proposals envisages constitutional reforms stretching into the next
Parliament.
39 We sincerely hope that constitutional affairs remain
central to the Ministry of Justice’s responsibilities and are not
downgraded in importance compared to the other duties of the
Ministry.
75. The judiciary’s most serious ongoing concern relates to the funding and
administrative support of the courts. Even before the announcement of the
MoJ, there were problems with the budget-setting process. As the Lord Chief
Justice said recently, the Concordat should have resulted in “a sea-change in
3828 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
the attitude of both HMCS and the DCA, under the Lord Chancellor, to the
role of the Lord Chief Justice in relation to the provision and administration
of court resources” yet “there has been no real change in attitude at all”.
Indeed, “the Lord Chancellor and his staff in the DCA continued to act as if
he retained primary responsibility for the administration of justice and had
sole responsibility for deciding what resources should be allocated to this and
how they should be deployed”. The judges were “side-lined” and “decisions
were taken without our participation and we were then told what was
proposed”.
40
76. Whilst the judiciary were in fact attempting to resolve this problem before the
MoJ was announced, the Lord Chief Justice explained that the situation had
been “tolerable so long as the Lord Chancellor was in the traditional and
historic role of that office and so long as providing an administrative system
for the courts remained one of his two most important budgetary concerns;
the other being legal aid”.
41
But with the creation of the MoJ, incorporating
responsibilities for the overcrowded and resource-hungry prison system,
there will clearly be far more demands on the Lord Chancellor’s
departmental budget—which potentially means that the courts budget could
be squeezed. As the Lord Chief Justice commented, “whereas before, so far
as the Lord Chancellor was concerned, the running of the courts was really
probably his primary concern, now he has taken on board an enormous
portfolio, and it seems to us, looking at it realistically, that his primary
concern is bound to be prisons and offender management”.
42
However, one
of our witnesses, Professor Robert Hazell, a former senior civil servant,
offered an alternative view. He suggested that “the argument about the
greater risk to the Courts Service inside a large Ministry of Justice potentially
cuts both ways. The budget for the Courts Service itself is relatively small …
One could say it is easier to protect the budget of £1 billion within a total
budget of £10 billion, because there are more other votes or lines within the
budget from which savings can be sought. I therefore do not see the
arguments as necessarily all one way or potentially negative” (Q 496).
77. It is also noteworthy that the creation of the MoJ has resulted in the removal
of a key protection in relation to the financial position of the courts: the
Senior Presiding Judge’s seat on the board of the DCA. Lord Justice Thomas
explained that the Senior Presiding Judge could not take up a seat on the
board of the Ministry because “it would be wholly inappropriate for a judge
to sit on the board of a ministry where there was a conflict between how
much we spend on prisons or how much we spend on the courts” (Q 391).
78. The judiciary’s other concern about courts funding relates to the impact of
judgments against the MoJ. As the Judicial Position Paper noted: “If the
budget of HMCS is not sufficiently independent of, or safeguarded from,
[the] departmental budget, the consequence is that members of the judiciary
43
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 29
will find themselves in the invidious position of making decisions which
directly impact on the Lord Chancellor’s ability to fulfil his duty under
section 1 of the Courts Act 2003 [‘to ensure that there is an efficient and
effective system to support the carrying on of the business’ of the courts]”.
Sir Igor Judge warned that in 20 years a Minister of Justice may “wonder
why on earth one bit of his department is ordering another bit of his
department to spend money and he may take the view that spending the
money is for him”, thus risking a possible breach of judicial independence.
Moreover, he said, an individual whose judicial review fails may suspect that
“the judge was influenced in his decision against him by the fact that there
would be a huge cost imposed on the Ministry, of which the judiciary formed
a part in financial terms” (Q 378).
79. Lord Justice Thomas set out the reassurances sought by the judiciary in
relation to the funding of the courts as follows:
“there must be a fixed mechanism to set the budget and operating plan
with provision for capital expenditure; and, in the event of a dispute
between the judicial and executive branches of government as to the
resources necessary, the arbiter must be the legislature which of course
ultimately votes the budget in accordance with their view as to priorities
of overall expenditure. It is also necessary to ensure that if adjustments
are proposed to the budget during the year (for example by taking
money from the agreed budget to remedy shortfalls elsewhere in the
Ministry), there is a similar open and transparent mechanism which
must be followed before a change is made” (Q 374).
80. When we asked Lord Falconer about the issue of funding, he said, “I
completely accept the need for a properly funded court system” and pointed
to the statutory protections in section 1 of the Courts Act 2003 and sections
1 and 3 of the Constitutional Reform Act 2005 (Q 420). As for the financial
impact of judgments concerning the MoJ, he commented: “the principle that
I [already] deal with is, from time to time, the courts have to make decisions
about the granting or refusal of legal aid that can potentially have an effect on
legal aid funding and that can in its turn have an effect on funding available
to the courts. The judges obviously make these decisions completely in
accordance with the law and the facts. So far as I am concerned, it gives rise
to absolutely no difficulty in my relationship with the judges” (Q 431).
81. Nonetheless, Alex Allan, Permanent Secretary at the MoJ, demonstrated to
the House of Commons Constitutional Affairs Committee that he was taking
the judiciary’s concerns seriously. He revealed that “we have been working
through quite detailed processes to ensure that there is judicial involvement
in all stages [of the budget-setting process] so that some of their concerns
about the Lord Chancellor arbitrarily raiding the court budget to fund some
other portion of the Ministry of Justice’s budget would be alleviated”. He
also said, “we have produced a solution through this process which meets the
particular concerns to ensure transparency of the budget-setting process and
full involvement of the judiciary”, though at the time of writing it was not
clear that agreement with the judiciary on this point had been reached.
45
44
suggesting that “it is generally a bad idea for judges to be criticising the
government on policy issues” because “the public want judges to be
unpolitical” and “those very same judges then have to enforce laws about
which it might be said they have expressed disagreement” (Q 58). The Lord
Chief Justice and Heads of Division have a responsibility to ensure that
judges adhere to this principle.
53. However, the Lord Chief Justice, as head of the judiciary, and perhaps other
senior judges with responsibility for specific parts of the justice system, are in
a different position from that of other judges. On occasion, it is necessary for
them to speak out publicly if a particular government policy is likely to have
an adverse impact upon the administration of justice and ministers have
failed to provide a satisfactory response during private consultations.
General Channels of Communication
54. Effective channels of communication between the executive and the senior
judiciary are vital to ensure that the impact of government legislation or
policy proposals upon the administration of justice is fully understood at an
early stage. Such communications are facilitated in a variety of ways. First,
judges serve on a range of bodies with responsibility for the justice system,
for example the National Criminal Justice Board. As Sir Igor Judge said, “it
is no longer … a concomitant of independence that judges should be
isolated” (Q 297).
55. Second, concerns amongst the judiciary about particular government
proposals are conveyed through formal responses to consultations. For
example, as was widely reported at the time, the Council of Her Majesty’s
Circuit Judges gave a largely negative response to the Home Office’s paper
Convicting Rapists and Protecting Victims—Justice for Victims of Rape in January
2007.
27 As Sir Igor Judge told us, a negative response to Government
proposals “may create tension” but “we do not expect our response to carry
the day” and “in the end Parliament legislates, and then it does not really
matter what the judges think” because “the judges apply the law that
Parliament has produced” (Q 297).
56. Finally, there are private meetings which take place between ministers and
judges (especially the Attorney General, the Home Secretary—probably now
the Secretary of State for Justice—and the Lord Chief Justice) to discuss the
practicality of particular government policies in terms of the administration
of justice. As Sir Igor Judge explained, “week after week these sorts of
discussions are going on at ministerial level [and] at official level” (Q 297).
Likewise, the former Home Office Minister and new Attorney General,
Baroness Scotland, has confirmed that “Ministers do meet the judiciary
regularly. These are constructive meetings which ensure there is a regular
dialogue between us”.
28 If these meetings do not lead to satisfactory mutual
understandings, it should be noted that the Lord Chief Justice can also in
appropriate circumstances ask to see the Prime Minister (Q 68).
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 23
Constitutional Change
57. Effective two-way communication is of particular importance when a
constitutional change is proposed which is likely to impact upon the judiciary
or the administration of justice more broadly. As Lord Justice Thomas told
us: “Our constitution … is based both on statute law and on constitutional
understandings and conventions. Those understandings and conventions
include reliance upon full and appropriate respect for the different positions
occupied by the three branches of government” (Q 374). Therefore, he said,
there should always be “a proper … and detailed examination, so that you
come to a solution that is acceptable across the board to the executive, to the
legislature and to the judiciary” (Q 409). This principle is of even greater
significance in light of the constitutional changes brought about by the CRA
because, in the words of Dr Matthew Palmer, the different arms of
government are still “jockeying for position and taking … time to settle down
as to what their relationship is likely to be” (Q 518). Maximum co-operation
and consultation are therefore essential.
58. We have already noted in Chapter 1 how in 2003 the Government failed to
consult relevant stakeholders—including, astonishingly, the judiciary—before
announcing the proposed constitutional changes which ultimately became
the Constitutional Reform Act 2005 and, after discussion with the then Lord
Chief Justice, the Concordat. Thus the Government’s subsequent decision in
early 2007 to split the Home Office and create a Ministry of Justice (MoJ)
provided an opportunity to ascertain whether they had learnt the lessons of
2003. Whilst the proposals involved a change in the machinery of
government, which is a matter for the Prime Minister, Professor Alan Page
noted that they were also of “very real constitutional significance” (Q 480).
Lord Justice Thomas agreed: “It is our view that the creation of a Ministry of
Justice is not simply a machinery of government change [but one that
involves] significant constitutional change” (Q 374). Similarly,
Professor Anthony Bradley told us that the changes were “of constitutional
significance” and affected “the relationship between the Government and the
judiciary that resulted from the Constitutional Reform Act 2005”, but he
also noted that “there is no clear argument to be made against the proposed
Ministry of Justice on constitutional grounds” (Appendix 4).
59. So what constitutional impact might these reforms have? We discuss these
issues in greater detail below, but they can be summarised as follows:
• Role of the Lord Chancellor: the impact of combining in one post the
Lord Chancellor’s responsibility to defend the independence of the
judiciary and some of the Home Secretary’s most controversial duties.
The effect of having a Lord Chancellor in the House of Commons.
• Judicial Review: the impact of the Lord Chancellor being subject to a
much greater number of judicial reviews upon his relationship with the
Lord Chief Justice and the ongoing validity of the Concordat.
• Constitutional Affairs: the impact of constitutional affairs forming a much
smaller part of the Lord Chancellor’s department than previously.
•
Funding of the Courts: the possibility of the courts budget being squeezed
due to the demands of the resource-hungry prison system, and the impact
of no longer having a judge on the board of the department.
60. We agree that the advent of the Ministry of Justice, whilst obviously a
machinery of government change, has significant constitutional
implications.
61. The Government did not make a good start: the Lord Chief Justice found
out about the mooted policy on 21 January 2007 through a Home Office leak
in The Sunday Telegraph, whilst the then Lord Chancellor could only recall
that he “may have known the day before that something was going to be
suggested”.
29
The Lord Chief Justice went so far as saying that events
unfolded in this manner because the proposal reflected “an anxiety on the
part of the Home Secretary to clear the decks so that he could really make a
concerted attack on terrorism” and that “it was not a decision that was taken
because it would be an extremely good idea to have a Ministry of Justice”.
Professor Bradley concurred: “the immediate cause of the Government’s
decision appears to have been concern about the administrative and political
problems of the Home Office, rather than a long-established and fully
reasoned commitment to creating a Ministry of Justice” (Appendix 4).
Whilst this may be true, it is nonetheless important to note that a possible
Ministry of Justice has been on the political agenda for some years and that
there are solid and well-rehearsed arguments behind its creation.
62. After the leak occurred, Lord Justice Thomas told us, the judiciary was
provided by the DCA with “an outline paper detailing possible models for
the Ministry”. The judiciary responded with two working papers setting out
concerns in relation to resources, Her Majesty’s Courts Service (HMCS) and
sentencing (Q 374). On 19 March, just ten days before the Prime Minister
formally announced the Home Office split and the creation of the MoJ, Lord
Falconer and the Lord Chief Justice agreed to set up a working group—
reporting to them both—to resolve these issues of concern.
63. When the Prime Minister made his announcement, the Lord Chief Justice
publicly outlined his concerns about resources and sentencing, warning that
the new Ministry could face “a situation of recurrent crisis” if these concerns
were not addressed. Provided the necessary safeguards were put in place,
however, there would be “no objection in principle” to the proposals.
He
subsequently explained, “we did make it quite plain that we thought the right
way to go about it was to have in-depth discussions first and to form the
Ministry of Justice afterwards”.
32
Similarly, Lord Justice Thomas told us that
“the judiciary considered that the Ministry of Justice should not be brought
into existence until the necessary safeguards had been agreed, given the
constitutional importance of the issues. However, the judiciary’s view was
not accepted” (Q 374). Indeed, Lord Falconer made his position crystal clear
when giving evidence to us on 1 May: “If we cannot reach agreement, that is
not going to stop the Ministry of Justice going ahead on 9 May 2007”
(Q 423). When pressed, he simply said that any outstanding areas of
disagreement would have to “evolve” (Q 426).
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 25
64. When we asked Lord Falconer about the way in which this process of
consultation with the judiciary had been conducted, he told us that he was
“completely satisfied it is a sensible way of dealing with it” (Q 413).
However, Professor Terence Daintith did not agree: “If prior consultation
with the judiciary did not take place before the announcement was made, or
before the proposal … was fixed in the mind of government, then I think that
is very unfortunate, and one would hope that in any future case bearing on
the administrative structure relating to the discharge of judicial functions that
omission would not occur”. He felt that the Government had “move[d]
ahead as if it was simply in a pre-2003 situation and nothing more needed to
be done other than to tell people what it was going to do” (Q 479).
65. Clearly the formation of the working group was a positive step, even if it only
came into being slightly more than one month before the MoJ itself.
However, Lord Falconer imposed a number of very tight parameters on the
working group:
• there must be no change to legislation;
• there must be no change to the Concordat;
• there must be no change to the executive agency status of the HMCS;
• there must be no ring-fencing of HMCS’s budget; and
• it is for the Lord Chancellor to decide, subject to his statutory obligations,
on budgetary issues.
33
Lord Justice Thomas told us that the judiciary had accepted these
parameters because “we felt that if we were to try and protect our position
we had no alternative” (Q 382). Nonetheless, he added, it was made clear
that “the parameters would have to be revisited if appropriate constitutional
safeguards could not be provided within them” (Q 374).
66. At the time of writing—over two months after the MoJ came into being—the
working group set up by Lord Falconer and the Lord Chief Justice was still
trying to reach agreement. The Lord Chief Justice believed that the
relationship between the judiciary and the MoJ was unsustainable and he
suggested that he “may very well” be getting near the point where he would
be forced to use his “nuclear option” of laying written representations before
Parliament under section 5 of the CRA.
34
He went on to explain that the
judiciary had “reached the firm view” that there must be a “fundamental
review of the position in the light of the creation of the Ministry of Justice”,
but he noted that “the Lord Chancellor does not believe it is necessary”.
Lord Falconer, when questioned on this, would only agree that a review
could happen “in a year or two”.
36
67. We are disappointed that the Government seem to have learnt little or
nothing from the debacle surrounding the constitutional reforms
initiated in 2003. The creation of the Ministry of Justice clearly has
important implications for the judiciary. The new dispensation
3526 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
created by the Constitutional Reform Act and the Concordat requires
the Government to treat the judiciary as partners, not merely as
subjects of change. By omitting to consult the judiciary at a
sufficiently early stage, by drawing the parameters of the negotiations
too tightly and by proceeding with the creation of the new Ministry
before important aspects had been resolved, the Government failed to
do this. Furthermore, the subsequent request made by the judiciary
for a fundamental review of the position in the light of the creation of
the Ministry of Justice was in our view a reasonable one to which the
Government should have acceded in a spirit of partnership.
68. Whilst we do not have sufficient evidence to analyse in any great detail the
judiciary’s outstanding concerns about these latest reforms, we do offer some
thoughts and tentative conclusions. First, we consider how the reforms might
affect the traditional role of Lord Chancellor and his ability to defend the
independence of the judiciary effectively. Lord Justice Thomas was
concerned that the Lord Chancellor would become “a quasi-Home
Secretary” and predicted that “the conflicts that are being put into one
person will make it progressively more difficult as future ministers no longer
have the tradition of the office” (Q 383). Clearly, if the roles of Lord
Chancellor and Secretary of State for Justice continue to be combined, there
is potential for conflict between the statutory duty to defend the
independence of the judiciary and the temptation—to which home secretaries
have regularly succumbed—to make intemperate remarks about judges and
their judgments or sentencing decisions.
69. However, Lord Falconer pointed out that the changes “do not relieve [the
Lord Chancellor] of either his responsibilities to the court system or his
duties to the judges” (Q 416). He further commented: “The idea that a
minister … responsible for courts and the judges cannot also be responsible
for prisons, probation and sentencing policy seems completely wrong. It is a
model in many other countries and I would regard my ability to defend the
judges, their independence and a proper functioning court system as is no
way affected by that. That is a critical consideration in me supporting the
idea of a Ministry of Justice” (Q 421). These comments were echoed by
Professor Alan Page, who said “I do not think there is anything objectionable
itself in this combination of responsibilities” (Q 484). Although this is
logically correct, the recent experience of negotiations between the judiciary
and the Lord Chancellor has not been encouraging.
70. Another issue is whether the changes will have an adverse impact on the
status of the Lord Chancellor, making it more difficult for the post-holder to
defend the independence of the judiciary effectively. Traditionally the Lord
Chancellor was a senior lawyer in the House of Lords who had no prospect
of further promotion, and was seen as somewhat removed from the cut and
thrust of everyday politics. However, in light of the increased responsibilities
of the MoJ, assuming that the post remains combined with that of Secretary
of State for Justice, and given the recent appointment of Jack Straw MP as
Lord Chancellor, it seems less likely that future Lord Chancellors will be
members of this House. This makes it more probable that they will be
ambitious for promotion to what are seen as more senior posts, such as
Foreign Secretary or Chancellor of the Exchequer.
71. We believe that the role of Lord Chancellor is of central importance to
the maintenance of judicial independence and the rule of law. Prime
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 27
Ministers must therefore ensure that they continue to appoint to the
post candidates of sufficient status and seniority.
72. A related issue is the impact of the Lord Chancellor/Secretary of State being
subject to a much larger number of judicial reviews—particularly in respect
of prisons—than has been the case in recent years. The Judicial Position
Paper on the MoJ noted that “the relationship between the Lord Chancellor
and the Lord Chief Justice … depends on continuous dialogue, concurrence
and consultation between the two in the field of judicial appointments,
discipline and the administration of justice”.
37
Yet the Lord Chief Justice
said, “if I was sitting on an appeal to which [the Lord Chancellor] was a
party, then I could not myself meet with him or enter into discussions with
him while that appeal was pending; one of my other judges would have to”.
73. Whilst this problem could be overcome if the Lord Chief Justice agreed not
to hear judicial review challenges to the legality of MoJ policies and practices,
Lord Justice Thomas told us that “the Lord Chief Justice must sit in the
major cases—that is his job primarily, to decide them. It would be awful and
very damaging, I think, to the judiciary as a whole that if because of the need
to maintain dialogue under the Concordat with the Lord Chancellor there
was any perceived difficulty with him doing that” (Q 386). Therefore,
although the Lord Chancellor has always been subject to judicial review in
respect of the Legal Services Commission (QQ 419, 432), it will be necessary
to give careful consideration to how his relationship with the Lord Chief
Justice will operate under the new dispensation.
74. Another consideration is whether the former DCA responsibilities for
constitutional affairs will continue to be given the attention that they merit in
the much larger MoJ. Professor Terence Daintith expressed concern about
“how difficult it is to find constitutional affairs within the organisation chart
of the department” and warned that “it is a pretty small part of what the
department does” (Q 493). However, Lord Falconer, supported by other
witnesses including Professor Alan Page, insisted that “issues like human
rights, freedom of information, the constitution of the United Kingdom are
inextricably linked, I think, with the rule of law and the running of the
courts” (Q 444) and therefore rightfully belonged in the MoJ. Moreover, the
new Prime Minister’s decision to propose a series of constitutional reforms
(to be overseen by the new Lord Chancellor and Secretary of State for
Justice) during his first few days in office indicates that constitutional affairs
will remain very much on the agenda. Indeed, the Green Paper setting out
these proposals envisages constitutional reforms stretching into the next
Parliament.
39 We sincerely hope that constitutional affairs remain
central to the Ministry of Justice’s responsibilities and are not
downgraded in importance compared to the other duties of the
Ministry.
75. The judiciary’s most serious ongoing concern relates to the funding and
administrative support of the courts. Even before the announcement of the
MoJ, there were problems with the budget-setting process. As the Lord Chief
Justice said recently, the Concordat should have resulted in “a sea-change in
3828 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
the attitude of both HMCS and the DCA, under the Lord Chancellor, to the
role of the Lord Chief Justice in relation to the provision and administration
of court resources” yet “there has been no real change in attitude at all”.
Indeed, “the Lord Chancellor and his staff in the DCA continued to act as if
he retained primary responsibility for the administration of justice and had
sole responsibility for deciding what resources should be allocated to this and
how they should be deployed”. The judges were “side-lined” and “decisions
were taken without our participation and we were then told what was
proposed”.
40
76. Whilst the judiciary were in fact attempting to resolve this problem before the
MoJ was announced, the Lord Chief Justice explained that the situation had
been “tolerable so long as the Lord Chancellor was in the traditional and
historic role of that office and so long as providing an administrative system
for the courts remained one of his two most important budgetary concerns;
the other being legal aid”.
41
But with the creation of the MoJ, incorporating
responsibilities for the overcrowded and resource-hungry prison system,
there will clearly be far more demands on the Lord Chancellor’s
departmental budget—which potentially means that the courts budget could
be squeezed. As the Lord Chief Justice commented, “whereas before, so far
as the Lord Chancellor was concerned, the running of the courts was really
probably his primary concern, now he has taken on board an enormous
portfolio, and it seems to us, looking at it realistically, that his primary
concern is bound to be prisons and offender management”.
42
However, one
of our witnesses, Professor Robert Hazell, a former senior civil servant,
offered an alternative view. He suggested that “the argument about the
greater risk to the Courts Service inside a large Ministry of Justice potentially
cuts both ways. The budget for the Courts Service itself is relatively small …
One could say it is easier to protect the budget of £1 billion within a total
budget of £10 billion, because there are more other votes or lines within the
budget from which savings can be sought. I therefore do not see the
arguments as necessarily all one way or potentially negative” (Q 496).
77. It is also noteworthy that the creation of the MoJ has resulted in the removal
of a key protection in relation to the financial position of the courts: the
Senior Presiding Judge’s seat on the board of the DCA. Lord Justice Thomas
explained that the Senior Presiding Judge could not take up a seat on the
board of the Ministry because “it would be wholly inappropriate for a judge
to sit on the board of a ministry where there was a conflict between how
much we spend on prisons or how much we spend on the courts” (Q 391).
78. The judiciary’s other concern about courts funding relates to the impact of
judgments against the MoJ. As the Judicial Position Paper noted: “If the
budget of HMCS is not sufficiently independent of, or safeguarded from,
[the] departmental budget, the consequence is that members of the judiciary
43
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 29
will find themselves in the invidious position of making decisions which
directly impact on the Lord Chancellor’s ability to fulfil his duty under
section 1 of the Courts Act 2003 [‘to ensure that there is an efficient and
effective system to support the carrying on of the business’ of the courts]”.
Sir Igor Judge warned that in 20 years a Minister of Justice may “wonder
why on earth one bit of his department is ordering another bit of his
department to spend money and he may take the view that spending the
money is for him”, thus risking a possible breach of judicial independence.
Moreover, he said, an individual whose judicial review fails may suspect that
“the judge was influenced in his decision against him by the fact that there
would be a huge cost imposed on the Ministry, of which the judiciary formed
a part in financial terms” (Q 378).
79. Lord Justice Thomas set out the reassurances sought by the judiciary in
relation to the funding of the courts as follows:
“there must be a fixed mechanism to set the budget and operating plan
with provision for capital expenditure; and, in the event of a dispute
between the judicial and executive branches of government as to the
resources necessary, the arbiter must be the legislature which of course
ultimately votes the budget in accordance with their view as to priorities
of overall expenditure. It is also necessary to ensure that if adjustments
are proposed to the budget during the year (for example by taking
money from the agreed budget to remedy shortfalls elsewhere in the
Ministry), there is a similar open and transparent mechanism which
must be followed before a change is made” (Q 374).
80. When we asked Lord Falconer about the issue of funding, he said, “I
completely accept the need for a properly funded court system” and pointed
to the statutory protections in section 1 of the Courts Act 2003 and sections
1 and 3 of the Constitutional Reform Act 2005 (Q 420). As for the financial
impact of judgments concerning the MoJ, he commented: “the principle that
I [already] deal with is, from time to time, the courts have to make decisions
about the granting or refusal of legal aid that can potentially have an effect on
legal aid funding and that can in its turn have an effect on funding available
to the courts. The judges obviously make these decisions completely in
accordance with the law and the facts. So far as I am concerned, it gives rise
to absolutely no difficulty in my relationship with the judges” (Q 431).
81. Nonetheless, Alex Allan, Permanent Secretary at the MoJ, demonstrated to
the House of Commons Constitutional Affairs Committee that he was taking
the judiciary’s concerns seriously. He revealed that “we have been working
through quite detailed processes to ensure that there is judicial involvement
in all stages [of the budget-setting process] so that some of their concerns
about the Lord Chancellor arbitrarily raiding the court budget to fund some
other portion of the Ministry of Justice’s budget would be alleviated”. He
also said, “we have produced a solution through this process which meets the
particular concerns to ensure transparency of the budget-setting process and
full involvement of the judiciary”, though at the time of writing it was not
clear that agreement with the judiciary on this point had been reached.
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