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Evidence of the Lord Chief Justice of England and Wales

Lord Phillips of Worth Matravers

before the

Constitutional Affairs Select Committee

22 May 2007

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The judiciary is an independent arm of the state and is fundamental to the rule of law. It is not a privilege for the judiciary but is an essential requirement for every citizen to ensure the fair and impartial resolution of disputes. The administrative system that supports the judiciary underpins that independence. Judicial independence cannot exist on its own – judges must have the loyal staff, buildings and equipment to support the exercise of the independent judicial function ^F1.

When the Lord Chancellor was head of the judiciary he had primary responsibility for the administration of justice in England and Wales. When he ceased to be a judge and I, as Chief Justice, became head of the judiciary, I inherited primary responsibility for the administration of justice in England and Wales. The Lord Chancellor came under a duty to provide me and my judges with the resources that we need for the efficient and effective administration of justice. In view of this he and I became partners in the administration of justice, but as a matter of constitutional principle the Lord Chief Justice is now the senior partner.  

The provision and administration of the resources needed for the administration of justice was entrusted by the Lord Chancellor to Her Majesty’s Court Service (HMCS), an executive agency, before the Constitutional Reform Act. At that time the duties owed by HMCS were owed to the Lord Chancellor, both because he was the head of the judiciary and because he was the Minister responsible for the agency.

When the Lord Chief Justice became head of the judiciary in place of the Lord Chancellor this altered the duties owed by HMCS ^F2. It continued to owe a duty to report to the Lord Chancellor, as the responsible Minister. But it also owed a duty to the Lord Chief Justice, as head of the judiciary responsible for the administration of justice, to provide the infrastructure necessary to discharge that responsibility. Close communication and co-operation with the Lord Chief Justice and the senior judges when decisions are taken is essential in order to ensure that what is needed for the administration of justice is provided.

The Concordat recognised this to a degree. Provision was made for the Lord Chief Justice to be consulted in relation to both the fixing of the HMCS budget and the allocation of that budget. There should have been a sea-change in 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. In the event there has been no real change in attitude at all. 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.

In giving evidence to this Committee on 17 April 2007 Lord Falconer said ^F3:

“We think the current model we have is fine. That involves a statutory duty properly to fund the courts, HMCS being responsible to the Secretary of State for Justice, but there being in place mechanisms whereby the views of the judges are properly taken into account.”

After the Constitutional Reform Act 2005 came into force, the views of the judges should always have been taken into account by the Lord Chancellor. They were not. We were side-lined. Decisions were taken without our participation and we were then told what was proposed. Examples are plans for court closures and development of the court estate and a lack of judicial consultation and transparent decision-making in relation to disposal of a £34 million surplus earned on civil justice court fees in 2005-2006 ^F4.

This lack of real involvement of the judges in decision making was already a matter of concern before the Ministry of Justice came into being. We were trying to redress the situation. That it existed is perhaps not surprising. Lord Falconer was and is an outstanding Lord Chancellor in the traditional and historic role of that office.  He has stood up for the rule of law and the independence of the judiciary when the need arose, and it has arisen. I have the highest regard for him and a very good personal working relationship with him. It is perhaps not surprising that he and his department continued as before in relation to the allocation of resources. The Ministry, the DCA as it was, also keeps a very tight control over the activities of HMCS – closer than is consistent with best administration, even on an executive agency model.

All of this may have 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. The transfer to him of responsibility for prisons and offender management and criminal justice policy has changed all that; his concerns will be those of Home Secretaries past. In the fullness of time, the Minister of Justice will be increasingly distanced from the traditional and historic role of Lord Chancellor. There may well be a Minister who may have no personal knowledge of how the courts work nor the same understanding of and passion for the rule of law. 

The Ministry of Justice has additional responsibilities for prisons, probation and criminal justice policy which may create a conflict between the Ministry and the judiciary ^F5. This is why the creation of the Ministry of Justice has constitutional implications. Machinery must be put in place to ensure that the efficient and impartial administration of justice by the judges for the benefit of each citizen and the resources needed for this are not put at risk.

These problems are not unique to this jurisdiction. They have been recognised in other countries where there is a Ministry of Justice with responsibility for the court infrastructure, and there is a movement to giving the judges greater control over the running of their own court systems. There is, for example, a very helpful recent report in relation to Canada. The judiciary are drawing on the experience of other countries with Ministries of Justice, and in particular Ireland, the Netherlands and Denmark, where autonomous court administration with a greater degree of judicial participation has been very successful. It has underpinned the independence of the judiciary, improved the relationship between the judiciary and the court administration and improved the delivery of justice for the public.

The issue is currently being addressed in Scotland ^F6 - Chapter 12 of the consultation paper, Proposals for a Judiciary Scotland Bill, (14 Feb 2007) raises the issue of the practical way of giving the judiciary more authority over the Court Service in Scotland ^F7.  The Lord Chief Justice of Northern Ireland has raised a similar issue in Northern Ireland as a matter for resolution in relation to the new scheme of devolution.

The problem is exacerbated in this jurisdiction because prison capacity is inadequate to cope with the effect of the present legislative framework and the demands for funding prisons and offender management are likely to be particularly heavy. This could lead to a perception of pressure being brought to bear on the judges to go easy on prison sentences in order to prevent damaging demands being placed on their own resources.  Such a perception would be damaging to the rule of law and would dent public confidence in the independent administration of justice. 

The present position

Shortly before the Ministry of Justice was created questions raised by the judges led to discussions, which resulted in the Lord Chancellor taking the position that a working party could consider the creation of constitutional safeguards but only under the following parameters:

• no change to legislation;
• no change to the Concordat;
• no change to the executive agency status of HMCS;
• no ring-fencing of HMCS budgets; and
• that it is for the Lord Chancellor to decide, subject to his statutory obligations, on budgetary issues.

Whilst I agreed that the working party could proceed on this basis as these parameters were stated to be non-negotiable, I made it clear that that they would have to be revisited if a solution could not be found.

As the working party has, over many weeks, studied the issues it has become clear that there is a difference in relation to constitutional principles^F8 which the working party has agreed they cannot resolve within their terms of reference.
 
We are now in the position that there is no agreement on the proper constitutional position. This necessitates the enquiry that we have always sought, which needs to commence as soon as possible, although it will take a little time to report^F9. The judiciary made this clear within the working group and to the Lord Chancellor.
Pending the report of the enquiry I and the judicial members of the working group have been keen to put in place an interim working arrangement to allow the judiciary to continue to work with HMCS to enable justice to be administered.

The working group have come close to settling an interim working arrangement. The group produced a short document which set out the role and function of the HMCS Board, including that of the judicial representatives upon it, a clear process for the setting of all types of HMCS plans and budgets, and adjustments to them, and, where agreement on these matters at HMCS Board level proved impossible, an escalation process for the HMCS Board and for me to resolve those matters with the Lord Chancellor, with reference to my ultimate recourse to Parliament, as set out in the Constitutional Reform Act 2005. The document formed no more than the basis for a temporary working arrangement which I hoped would have provided the protection that we need against the two immediate risks – the pressure on the HMCS budget and the conflicts of interest that have arisen from the creation of the Ministry of Justice.

The terms of this document were almost agreed.  However, I and the judicial members of the working group are quite clear that this document was premised on the need for an enquiry without delay. If only the need for this were accepted, then we would have a basis for moving forward.

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Footnote

F1: In 1980, Lord Browne-Wilkinson put it in this way in his lecture entitled “The independence of the judiciary in the 1980s”:

F2: In 2003, the Courts Act was passed, setting up HMCS, and placed, in section 1, the Lord Chancellor under a duty to ensure that there is an efficient and effective system to support the carrying on of the business of the courts.  This duty was currently delegated to HMCS, an executive agency, headed by the Chief Executive. In 2004, the Concordat made the Lord Chief Justice Head of the judiciary, and the Lord Chancellor became a Minister with responsibilities primarily for the courts and legal aid. The Constitutional Reform Act 2005 set this out and created new systems for judicial appointments and discipline. The nature of the protection of judicial independence changed, from one person holding a dual role as Head of the Judiciary and Minister with responsibility for the courts, to a Minister with statutory duties owed to the Judiciary.

The Courts Act 2003 was passed at a time when the Lord Chancellor was head of the judiciary.  Although this was inconsistent with the separation of powers it did, as Lord Browne-Wilkinson put it, provide a flexible and effective means to transmit the needs of the legal system to the executive and to Parliament. If, prior to the Constitutional Reform Act 2005, disputes arose between judges and administrators, the Lord Chancellor, because he occupied both roles, would be the arbiter. His dual position operated as a built-in constitutional protection that the section 1 duty would be performed with due regard for the (then) non-statutory duty to protect judicial independence.  Following the separation of the Lord Chancellor’s role and the imposition of a statutory duty to uphold judicial independence, it becomes necessary to put in place mechanisms to check (prior to ultimate recourse to Parliament) that the section 1 duty is performed consistently with the section 3 duty owed to a branch of the state of which the Lord Chancellor is no longer the head.

F3: http://www.publications.parliament.uk/pa/cm200607/cmselect/cmconst/uc466-i/uc46602.htm

F4: http://www.dca.gov.uk/consult/civilcourt-fees/cp0507.pdf. The figures are at Annex A, page 35.  The civil only surplus was approximately £34 million in 2005-6.

F5: This conflict is not purely financial, but also affects the relationship between the judiciary and the Ministry of Justice. For example, it is inappropriate for a judge who is involved in proceedings to which the Ministry is a party to meet with the Minister of Justice until judgment in that case has been given. 

F6: Professor Page’s answer to Question 499.

F7: Paragraph 12.2 of the Scottish Executive’s Consultation Paper states that:”There were some strong views in the consultation on the link between the unification of the judiciary and the governance of the Court Service. Put simply, the view was that the Lord President should not take an overall responsibility for the efficient disposal of business in all courts without having authority over the administrative support for those courts. We understand the force of that argument, and have therefore entered into more detailed discussion about how more judicial authority over the Court Service would work in practice, taking into account the continuing strategic role of Scottish Ministers, accountability to Parliament and the need for strong working relationships with other bodies in the justice system.”

F8: In particular the status of HMCS as an Executive Agency, the recognition of a direct obligation owed by HMCS staff to the Lord Chief Justice and judiciary to support them in their function to deliver justice independently and the nature and type of the intervention of the Lord Chancellor in the operation of HMCS and the relationship of these to the existing constitutional framework.

F9: As well as the long-term position of HMCS, it is my view that the enquiry will also need to examine the operation of certain functions under the Concordat, such the appointment to leadership posts, in the light of the creation of the Ministry of Justice (see also the evidence of Professor Hazell to the Constitution Committee of the House of Lord, on 9 May 2007).

©2008 Judicial Communications Office