Revised transcript of evidence taken before

The Select Committee on the Constitution

Inquiry on

the office of lord chancellor

Evidence Session No. 3                Heard in Public               Questions 30 – 42

Wednesday 30 july 2014

10.30 am

Witnesses: Lord Hope of Craighead, Lord Judge and Lord Woolf

USE OF THE TRANSCRIPT

Members present

Lord Lang of Monkton (chairman)

Lord Brennan

Lord Cullen of Whitekirk

Baroness Dean of Thornton-le-Fylde

Baroness Falkner of Margravine

Lord Goldsmith

Lord Lexden

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Examination of Witnesses

Lord Hope of Craighead, Second Senior Law Lord then Deputy President of the Supreme Court, 2009–13, Lord Judge, Lord Chief Justice of England and Wales, 2008–13, and Lord Woolf, Law Lord, Master of the Rolls, 1996–2000 and Lord Chief Justice of England and Wales, 2000–05

Q30   The Chairman: I start by welcoming our three distinguished witnesses and expressing our appreciation that on this, the last day of the term in the House of Lords, you have been able to be present. I also thank you for the submissions in the form of written evidence and excerpts from speeches, along with a background note in the case of Lord Hope of Craighead, which you sent to us. I hope that we can make reference to those in our report if we think it appropriate, possibly with the exception of the background note, which is of a distant status from written evidence.

Lord Hope of Craighead: Thank you, Lord Chairman. I simply wanted people to understand how limited my contact with the Lord Chancellor was.

The Chairman: That is perfect modesty, if I may say, but I daresay we shall soon discover otherwise. Would any of you like to make an opening statement?

Lord Judge: I am afraid I did not send the committee a written submission. Perhaps it would be sensible for me to say that as Lord Chief Justice I dealt with three Lord Chancellors, two Attorneys General, three Masters of the Rolls and two Presidents of the Supreme Court. It is an extraordinary situation. Of my three Lord Chancellors, two were lawyers by training and profession at the end of their careers, and one, the current Lord Chancellor, is a non-lawyer whose first office was held, I think, in 2010. So I have seen rather a different form of Lord Chancellor.

Q31   The Chairman: Thank you. We have an excerpt from a speech you made in December 2013 when you had quite a lot to say about contacts between the Lord Chief Justice and others, so we may come to that.

I start by asking about the Concordat which was drawn up ahead of the Constitutional Reform Act 2005, how durable it has been and whether the role and functions of the Lord Chancellor have changed in a way that may suggest that there is a need to update the 2005 Act. Perhaps I may turn to Lord Woolf first, given his involvement in that legislation.

Lord Woolf: The Concordat predates the 2005 Act. A lot of attention was given in Parliament to the precise drafting of the 2005 Act, and I think that it overtook the Concordat to some extent. But I still regard the Concordat as an important document, as I think Lord Falconer of Thoroton did at the time. That was because there was a multiplicity of contacts between the judiciary and the Lord Chancellor, and because of the Lord Chancellor’s involvement with the executive generally. Where I think the Concordat did and still does play an important role—no one disputes its status—is in the division of responsibilities for contacts between the judiciary, the Lord Chancellor and the executive into three categories. There were ones that were to be the responsibility of the judiciary, there was one that was going to be the responsibility of the Lord Chancellor, and ones that were to be the responsibility of both. In the case of each a guiding principle behind the Concordat is that there should be close consultation in respect of all these matters—what I would regard as interface issues—between both. So what I have said about my three categories does not mean that the other member was cut out. The fact that it was the Lord Chancellor’s sole responsibility did not mean that if there was some issue on which he thought the views of the Lord Chief Justice could have a bearing, he should not consult about that. The great thing about the Concordat is that it emphasised that there should be an informal partnership between the two offices where each was sensitive—I like the word “sensitive” in this context—to the concerns of the other.

The Chairman: Do you think that the changes made to the role and functions of the Lord Chancellor since then should lead us to contemplate changing the 2005 Act?

Lord Woolf: I would be very hesitant about changing the 2005 Act. I do not think we can put the clock back. In case there is any confusion, in my written evidence, which was prepared in a hurry, I was not seeking to suggest that the 2005 Act should be altered and that we could ignore what has happened and put the clock back so far as the Lord Chancellor is concerned. The question is: how effectively is the 2005 Act working? That is my view and I do not suppose that everyone will see it that way. If there are problems, could any changes be made?—not by legislation but by creating a convention, to improve the position? I have read the evidence given by Lord Mackay of Clashfern and Lord Phillips of Worth Matravers and I note that one of the possible questions we were given notice of concerns whether reasons should be given by the Prime Minister for appointing a particular person as Lord Chancellor, having regard to the constraints imposed on him by the 2005 Act as to the experience the person who is to be appointed should have, speaking for myself, and I appreciate that others may take a wholly different view—indeed, the Prime Minister of the time could take a different view—I think it would be very helpful to have a convention in respect of this appointment. This is notwithstanding the tradition with regard to Cabinet appointments being exclusively a matter for the Prime Minister of the day. The convention would require the Prime Minister to indicate his reasons for regarding the person appointed as being qualified if there might be misunderstanding as to whether a particular person was qualified for appointment as Lord Chancellor, This applies to the most recent appointment— what are the things that the PM thought meant that the Lord Chancellor was qualified in the way that the 2005 Act requires? I was mystified as to what they were at the time. I am not making this a criticism of the holder of the office because, of course, he was appointed and he is perfectly entitled to assume that the Prime Minister of the day had confidence in him. But for a relationship that I regard as sensitive, it might have been helpful, to put it at its lowest, to see if what the 2005 Act had intended to be done was done.

Lord Hope of Craighead: On the Concordat, I remember its significance very well because I was following the Constitutional Reform Bill as it went through the House. It was a matter of great concern to us serving Lords of Appeal in Ordinary. It seemed to me that the strength of the Concordat lay in the partnership that Lord Woolf was able to establish with Lord Falconer of Thoroton. My concern was that once those individuals left their respective offices, the strength of the Concordat would diminish. That is the problem with agreements that are not written down. I think that with time it will lose its significance, and I not sure whether to some extent it has not already done so.

As for the appointment, I think that some of us were rather dismayed to see a further provision added to the end of section 2(2), “(e) other experience that the Prime Minister considers relevant.” That opened the door to whatever he thought was appropriate. Of course it would be a good idea if he explained why, but he has such latitude there. It does not have to be legal experience. That provision was slipped in by a government amendment rather late in the passage of the bill, to the disappointment of quite a few.

Lord Judge: I do not think I have ever had recourse to the Concordat in any of my discussions with any of the three Lord Chancellors. We had a working relationship; I am sure that the present Lord Chief Justice has a working relationship with the Lord Chancellor, and we get on with it. If we have never had to have recourse to the Concordat and ask what it provided, maybe it is something that can be left until such time as the Lord Chief Justice of the day, and for that matter the Lord President of the Court of Session and so on, say, “This is not working. Our relationship is so undermined that we have to review the Concordat.” As to the Lord Chancellor’s qualifications for appointment, I would simply say that I disagree with Lord Woolf. I think that the Prime Minister giving reasons sounds effective, but what if they are daft reasons? What if they do not stand up to analysis? Is there going to be a judicial review of the Prime Minister’s reasons for appointing the Lord Chancellor? It is up to Her Majesty to decide whether to offer him the seals of office, and if she does, we cannot say to her, “Your Majesty, please wait for 28 days to see whether someone wants to bring a judicial review.” I think that that would be dressing something up that is unsatisfactory.

The Chairman: Thank you. That is an interesting view.

Q32   Lord Goldsmith: I declare an interest as a practising lawyer. I am terrified of being in front of a form of court that seems to consist effectively of three Lord Chief Justices. There has been a focus in the helpful answers so far on the Concordat. I understand that the Concordat is primarily concerned with the working relationship: the running of the courts, responsibility for the judges and so forth. The Constitutional Reform Act 2005 sought to do something else, which was to establish responsibility in relation to the rule of law. That was explicitly included in the Act. I thought it was wrong to limit it to the Lord Chancellor at the time. It ought to have included the law officers as well.

I wonder whether our witnesses have a view on that aspect of the 2005 Act and whether there is scope for reform or improvement so as to focus more on the rule of law concerns.

Lord Woolf: I agree entirely with what Lord Goldsmith said about the Concordat. It dealt with the nitty-gritty. If I may say with respect to Lord Judge, the fact is that in his conversations with the Lord Chancellor he did not have to bring out the Concordat and say, “Ah, Lord Chancellor, you cannot do that because of the Concordat.” That does not really reflect what the Concordat was all about. It was designed to avoid arguments. It was concerned with the working arrangements between the two parties and it was not on the level of the rule of law. I think that at the time the 2005 Act was startling because, as far as I know, it makes the first reference that you can find in any legislation dealing with these matters that refers to the rule of law, and it does it only en passant in a negative way. It says that it does not change the hitherto position with regard to the rule of law. It is statutory recognition of the fact that the rule of law is an important part of our system, which is taken for granted. I think one would have to consider any amendments to the 2005 Act after seeing what form they might take. I would hesitate to do that because I would not like the 2005 Act to become a matter of political dispute.

Lord Judge: I am sorry, Lord Chairman. My point was this: we should leave the Concordat in place because it is working. I am sorry if I did not make that clear.

Lord Hope of Craighead: From the point of view of the Supreme Court, we had access to the Lord Chancellor because of section 50 of the Constitutional Reform Act 2005, which placed on the Lord Chancellor particular responsibilities for the resources of the court. That was a matter for continuing discussion. I am not sure whether that fits in with the idea of the Concordat, but there was a statutory basis for us to have recourse to the Lord Chancellor when we needed it. It meant that there was a fairly regular although occasional series of meetings between the President and the Deputy and the Lord Chancellor to ensure that the system was working.

Q33   Baroness Falkner of Margravine: Leaving aside the administration of justice, to what extent in your experience did the senior judiciary meet the Lord Chancellor and have discussions about the rule of law, the independence of the judiciary and particularly the anticipation of controversial measures that might be coming down the road? What was the relationship like? Was there any attempt to address those issues early on? If there was, did that change anything? I wonder whether you could talk about how the relationship played out in practice. Lord Judge, I wonder whether you might cover one or two things you said in your opening remarks in terms of wanting representation in Parliament as well.

Lord Judge: I used to see the Lord Chancellor once a month. The meetings were constant and regular. I saw the Attorney General with about the same frequency. Usually, the Lord Chancellor of the day would let me know that something was coming that might affect the judiciary or the rule of law. Without breaking any confidences, it will come as no surprise to anyone here to know that among other things we discussed were the legal aid proposals. We considered pensions. I spent a lot of time with one Lord Chancellor being rather cross about the number of Henry VIII clauses that were being introduced in legislation, and I think they have been reduced. We had long and repeated discussions about televising court processes. I am not suggesting any particular reluctance, but in the end I was able to persuade the Lord Chancellor that the consent of the Lord Chief Justice of the day was required—consulting him was all well and good, but we all know what consulting means; it does not mean a lot—if the proposal was going to be extended. There were discussions about the way in which the new Sentencing Guidelines Council should operate, and the relationship between the new Sentencing Guidelines Council and the Court of Appeal Criminal Division so as to make sure that the powers of the Court of Appeal Criminal Division were not reduced.

Finance we discussed frequently. The current arrangement requires the Lord Chief Justice of the day to agree a budget, or not to agree it and to write to Parliament and say that he is not agreeing it. I agreed the budget on every occasion save one, when I thought that it was not sufficient for the needs of the court. I was wrong. I had not agreed it but fortunately I had not written to Parliament, so I had no egg on my face about it. That is the constant coming and going of what goes on at these meetings.

The role of the Lord Chief Justice is not to interfere in government policy, so it is sometimes quite a delicate line. Judicial review is currently being debated and I shall not make any contribution in the debate because I had confidential conversations of the kind that I have indicated. You can imagine that the Lord Chief Justice might have views about that subject, and I found that all three Lord Chancellors I dealt with listened. Sometimes they agreed, and I will say this for each of them: where they did not agree, they said so. None of them left me in a position where they implied that they had agreed but I found later that they had changed their minds—or, as one would say in ordinary civilian life, that they had ratted on me. We would either agree or disagree.

That is what goes on all the time with the Attorney General, if you want me to move to that subject, because I know that is one of the issues. As Lord Goldsmith will know, there is the overuse of cautions, why they are being used, deferred prosecution agreements and whether we distinguish between white-collar crime and blue-collar crime, legal aid, and the quality of the work being done by the Crown Prosecution Service. The Attorney General would have his responses.

Q34   Baroness Falkner of Margravine: One of our witnesses wrote this, and I wonder whether you could comment on whether it is accurate or not. She said, “What has been created is an institutional relationship which envisages two separate but equal branches working together to manage the courts and judiciary.” Do you agree?

Lord Judge: At the moment there is an attempt to square that circle so that Her Majesty’s Courts and Tribunals Service functions differently. There is a difficulty; I do not see that society can do other than require the state to provide a system for the administration of justice. That simply cannot be provided privately. On the other hand, the administration of justice in relation to the cost of the court and so on needs to be examined. The old arrangement by which I had to agree or disagree the budget or to write to Parliament to say that I disagreed seemed to me absurd. We are not accountants. I would get my best prosecuting judges to go through the books and make sure the figures tallied and so on, but there has to be a different arrangement. If there is Her Majesty’s Courts and Tribunals Service, the Lord Chancellor, the Secretary of State and the Lord Chief Justice have an equal interest and the people who work in it have an equal responsibility to both. But I do not see it in quite the way your correspondent suggested that it worked.

Lord Hope of Craighead: Could I add a snapshot? The present Lord Chancellor has, I think, gone out of his way to make contact with the judges on the Supreme Court. On the day he was installed we were installing a new justice. He came to see us and to see the installation. He has had dinner with us at our annual dinner for the justices, and he came to lunch at which there was an open discussion, which he took part in, about legal aid and judicial review. He listened to what we said. We did not expect him to commit himself one way or the other but, more than his immediate predecessors, possibly because of his lack of legal experience, he seems to have gone out of his way to make those sorts of contacts and to understand what people are thinking.

Lord Woolf: I am happy to endorse what Lord Hope said about the personal efforts that were made by the new Lord Chancellor. In that context. I think that what your correspondent wrote is a reflection of the sort of relationship that we were trying to achieve by the Concordat. The actual relationship in practice is extremely important. It is sometimes said that of the three arms of government, the judiciary is the weakest arm. I think that is undoubtedly true.

There is more than one problem that one must have in mind in talking about the relationship. As Lord Chief Justice, although I was prepared to speak very bluntly—I know Lord Falconer would agree that at times I spoke very bluntly—I always had to be conscious that my relationship with the Lord Chancellor provided an opportunity to influence, when possible, the Lord Chancellor. This could be a highly important protection for the judiciary and I might not be doing a good turn to the institution of the judiciary—that arm of government—if I got to a situation where we were at logger heads. All that one was wanting to do, was find ways of making the relationship more likely to work. As a former member of this committee, whose importance  I regard as considerable, it is sometimes just a question of drawing attention to the possibility of doing things in a better way than hitherto, and indicating problems that I think exist and need attention. I do not say that one should write a prescription, but I think that there is a need for attention to be given to it, because it is my general feeling that matters that can loosely be described as relevant to the rule of law are going down the agenda because of external pressures.

Q35   Lord Goldsmith: I want to ask about another topic that is connected: the support that the Lord Chancellor has. Lord Woolf, in your helpful written evidence you observed that, “It is also important that there should be an increased availability of civil servants who are lawyers in the Lord Chancellor’s department.” The permanent secretary was a lawyer for a long time. That has changed. Is it the case that other legal advice, advice as to the legal profession, which a Lord Chancellor might need, is perhaps not so present as once it was; and with a Lord Chancellor no longer legally qualified, is that more important?

Lord Hope of Craighead: When I was Lord President, I had fairly frequent contacts through the permanent secretary, who was easier to get access to as he did not have to sit in the chamber as the Lord Chancellor used to. From time to time things came up in Scotland where I felt I needed some help and of which perhaps he needed to be informed. We had some problems with judges, one of whom eventually had to resign. There was some question as to whether we would have to take action to have him removed. Another judge was exceedingly slow in producing his judgments. The question is what you do, because the system for removing a judge is a joint address to Parliament, and what other steps can you take to try to avoid that appalling step to try to move things on? There were discussions about the award of silk to solicitors, because the rights of audience were being extended to solicitors under the reforms of 1990. I introduced television in Scotland in, I think, 1992 with Lord Cullen of Whitekirk’s help. Sir Thomas Legg was very interested in what we were doing and there were discussions about it at my instance simply so that he was aware of what we were doing. There was an exchange of information, and the fact that there were people who really knew what was going on in this jurisdiction was helpful to me, and it was helpful to him that I kept him informed as to what was going on.

I very much regret the loss of the expertise there. Of course, it went down the line. I remember a very full room just beside the permanent secretary’s office and the Lord Chancellor’s office. There were lots of people working away extremely well, I think, and doing all sorts of useful things. It is a great shame that that has gone, and if it could be restored in some way I am sure that would be a help to the Lord Chancellor himself.

Lord Woolf: May I add that the old style office of Lord Chancellor, and the special character of what came to be called the Lord Chancellor’s Department and now the Ministry of Justice, has been diluted? I will not put it any stronger than that. Those who worked in the Lord Chancellor’s Department tended to stay there. They realised that this what the situation required. It was part of the separateness of the Lord Chancellor from the general political hurly-burly. It had a special character. Lord Goldsmith commented on the need for more interplay between those in the Lord Chancellor’s department and the profession. It is very common now for the people who are in the private sector to spend time in government service and vice versa that could help. As far as I know there is no movement of that sort. I might be wrong, and I hope that I am wrong, because I think it would be very useful for people working in the Lord Chancellor’s department to spend time in a solicitor’s office or a set of chambers as part of their career development, and vice versa. I have always had a very high regard for the Government Legal Service. For a young man from chambers or what used to be an articled clerk to spend a little while in the Treasury Solicitor’s Department would be hugely valuable.

Lord Goldsmith: I wonder if I might ask if any of you have spotted any instances of lack of expertise that one might entirely forgive a non-legally qualified Lord Chancellor coming into the job at the request of the Prime Minister. One could forgive him for that, but one is surprised to see it coming from the department itself. I remember one occasion when there was a discussion and the Lord Chancellor made a statement about what the obligations were in relation to following European Court of Human Rights cases, which both misunderstood what the judgment said and wrongly attributed it to someone called “Lord Justice Hoffmann”, when he was, at the time the speech was made, a member of the House of Lords. This might be a petty lawyer’s point, but it was slightly surprising to see that coming out of the Lord Chancellor’s department.

Lord Woolf: I can give an example. I was asked by a Lord Chancellor to see if I could help him look at the possibilities of improving guidance on what could be done to improve the planning process. Anybody working in that jurisdiction will know that there is an environmental court in Australia that some of us—including myself—have been campaigning for us to emulate. It is a very different way of dealing with planning matters. None of those advising the Lord Chancellor on the subject had heard of it. I thought that was unfortunate and I do not think it would have applied in the days when people saw their primary career as being in the government legal service.

Lord Judge: I think that the Lord Chancellor’s department is short of lawyers at the top. I am not going to give any specific examples, but sometimes proposals come down the road to the Lord Chief Justice about which you would say to yourself, “Didn’t anybody tell the Lord Chancellor that this problem, that problem or the other problem might arise?” It is a pity that the Lord Chancellor does not have more qualified lawyers. I make that point about both of the first two Lord Chancellors I was talking about and the present Lord Chancellor. That is because a few years in practice at the Bar in the 1970s tells you very little about the constitutional difficulties, arrangements, changes and so on that have overtaken your life when you come to be Lord Chancellor at the end of your political career. This is not directed at Mr Grayling; it is the same with any Lord Chancellor. He needs good legal advisers. I do not think that the Ministry of Justice is filled with lawyers who understand the constitutional subtleties.

Q36   Lord Cullen of Whitekirk: Is there a case for amplifying communication between the judiciary and Parliament? Three possibilities have been mentioned. The first is a more relaxed approach to section 5 of the 2005 Act, which is to do with written representations. The second, mentioned last week by Lord Phillips of Worth Matravers, is the possibility of a cross-party justice committee to which the Lord Chief Justice could have access to express his views, “in a rather less dramatic way”, to use his words. The third is that recently Lord Judge has spoken if I may say wistfully about restoring the ability of the Lord Chief Justice to address the House of Lords. Is there a case for that and, if so, for what purpose and in what kind of situation?

Lord Judge: My view has been strengthened since I arrived here. I always took the view that the written representation was neither fish nor fowl. You introduce dramatic changes to the constitution on the basis of the separation of powers, and how wonderful that is, without acknowledging that the executive fills the legislature. It has quite a few members in the upper House. So we do not have a separation of powers; we are paying lip service to it. But the result ignored the situation that the head of the judiciary was no longer in the Cabinet, and the right of the Lord Chief Justice, which was never exercised by Lord Woolf, or by his predecessor for that matter, to address Parliament, went. This is all part of the lip service paid to the separation of powers. You are then left with the ability to write a letter. I am sorry to say this, but in a system where orality is fundamental, the idea of writing a letter saying, “Dear House of Lords. I am really rather worried about such and such. Please will you do something about it?”, strikes me as being on the side of the absurd. I think that the Lord Chief Justice should be able to address Parliament if he has the sort of concerns which he would expect to write a letter about. Moreover, I am more convinced now than I was that there are times when I have heard the minister—there is no criticism of him—speak about what the judges might think. If anyone should be speaking about what the judges might think, assuming it matters, it should be the Lord Chief Justice or his equivalent. Again, the idea of him writing a letter saying, “I don’t think the minister quite understood what I was saying, and anyway he is wrong about this and that”, simply makes it absurd. So whereas I always regarded the opportunity to write to the House of Lords as my nuclear option, to be exercised only in very exceptional circumstances, because you do not use your nuclear option more than once, there is something to be said for the following. If the House wants to know the views of the Lord Chief Justice—and if they matter—on issues of practicality, then he should have the right to speak in the House. Whether it is to this committee or a differently constituted committee—I would have thought that the Constitution Committee would be an ideal place where the Lord Chief Justice should be able to speak—is also worth considering.

There is a further subtext to bear in mind. The Lord Chief Justice cannot come to the committee or to the House to discuss issues of policy. I do not think that the Lord Chief Justice should, for example, talk about judicial review. There is a serious division of view about judicial review and there is a dispute between this House and the other place. It is not about arguing for and against policy, but it is to inform the House about what the Lord Chief Justice thinks.

The Chairman: Perhaps I may come back on what Lord Judge said. As you know, this committee takes oral evidence from the Lord Chief Justice every year, and we have heard from you here. Are you suggesting, although I think you are not, that the Lord Chief Justice should become involved at any stage in the preparation of legislation?

Lord Judge: No. I am saying that he should be able to say to you or another committee, “I would like to come and address you on these issues, which have been raised about pending legislation and whether the judges would be upset.” I was there for the debate about a long overdue reform to the sentencing provisions relating to those in prison for public protection. It is a matter of real concern for him not to be able to say, “Actually, the judges will not mind. We thought that the legislation was wrong in the first place. All that has happened is that we have been proved to be right about it. Please correct it.”

Q37   Lord Cullen of Whitekirk: I think you have answered the question, and the response in my mind to your words is, “If you see something coming, you want to have means of doing something about it.” I think you are suggesting that the Lord Chief Justice might contact the committee to see whether he could address it on a matter. Those views would be taken into account and then conveyed to the House. Is that what you mean?

Lord Judge: Yes, I do, but of course there has to be reticence. We cannot have the Lord Chief Justice being seen by one side or the other of the political divide as being on this side or the other side. That would be terrible. We would go down a long route of saying, “Judges cannot be appointed without hearing their political views”, and the like. However, I think you can rely on the individual who is the Lord Chief Justice to know the difference.

Lord Woolf: I agree with what Lord Judge said about the power of the oral word in our system. In fact, I spoke in the House on the question that Lord Cullen raised about the written representations, as I was entitled to when I was LCJ. It was nothing special in those days, because you were a member of the House and you could get just attend and get up to speak, but obviously you did not do so unless it was on something very important. Many members of this House thought that the Lord Chief Justice, notwithstanding the separation of powers, should still have the right to address the House. Speaking to the House is a very good way of satisfying the judiciary and allaying how they feel at times. They have felt that, in certain circumstances, their position has not been properly considered or has even been overlooked.

The need could be greater in future years. When we get past the present period when we still have former Law Lords and former Supreme Court judges who, when they retire, are already members of this House and therefore automatically have the right to participate. They may not always be listened to, but they can say on certain subjects that they think what is being done is wrong for the rule of law. That is not going to happen now unless provision is made for it. If they came here, they would come as Crossbenchers. I recall it being said that we have about three new Crossbenchers a year. You cannot fill all those appointments with former Supreme Court judges. We have had by chance a number of retirements of the senior judiciary from the Supreme Court and other positions, which means that the House is well staffed at the moment with former judges. But I can see that disappearing.

Lord Hope of Craighead: I want to make two points. I remember well the days when the Lord Chief Justice would come and address the House from the Crossbenches. I can recall Lord Woolf doing that, as did Lord Bingham of Cornhill. The House paid great attention because they were speaking as the Lord Chief Justice and therefore they had the ear of the House. May I put in a word for the other jurisdictions? It is not the case on appointment that the Lord Chief Justice of Northern Ireland is made a member of the House, nor the Lord President of the Court of Session. Under the present system, they have the right to write a letter. I moved an amendment the other day to extend that right to the President of the Supreme Court. To my knowledge, the Lord President of the Court of Session has exercised the right once on a matter that was of great interest to the judges in Scotland relating to legislation that was before the House. I am sure he found it helpful to be able to reassure his own colleagues that he was able to do this. His letter was sent in and was subsequently put in the Library; it was on the table for people to consider if they were interested. It was not a very strong way of getting his message across because it could not be debated. It was simply a letter, but at least it was something he felt he could do.

Baroness Falkner of Margravine: I want to pick up on Lord Judge describing the letter as the nuclear option. It would seem that, if a letter is the nuclear option, appearing in a debate in the House of Lords would be rather like multiplying the warheads, to continue the analogy. It seems to me that Lord Hope does not see it as the nuclear option, but that it is a useful device to communicate views.

Lord Hope of Craighead: Yes. I do not think that the Lord President who wrote the letter thought that he was introducing a nuclear bomb. It was simply that he felt it was a point that was at risk of being overlooked. It was of great interest to his court and it was very proper that he should write. I think he did it only once, so it is not done very often. If you mean by “nuclear option” that one should exercise restraint in exercising the right, certainly that would be the proper way of going about it.

Lord Judge: Perhaps I did not put the point across very well. If this is the nuclear option, what is the point of firing it? It is not a very powerful weapon at all, but it is all that is left. I do not regard a letter as giving the Lord Chief Justice sufficient authority, in an age when the Lord Chancellor is no longer the head of the judiciary, to convey the views of the judiciary. It is a feeble nuclear option.

Q38   Lord Brennan: Lord Judge, you mentioned to Baroness Falkner of Margravine the connection between the senior judiciary and the law officers. It is not very well known, and it is not well understood. I wonder whether you could enlighten us about that a little. Secondly, what is your view about the constitutional role of the Attorney General, particularly in a government where neither the Lord Chancellor nor the permanent secretary in the Ministry of Justice are lawyers? What should the Attorney General then be thought to be responsible for?

Lord Judge: The meetings have been going on. Lord Goldsmith will remember plenty of meetings with me when I was senior presiding judge. They are for each other to be informed of what is going on. We obviously do not discuss cases. The Attorney General does not say, “Oh, I’m thinking of referring the case that you read about in the paper last week”, to which the Lord Chief Justice says, “Oh what a good idea”, or, “What a bad idea.” The Attorney General understands the rules and you can expect senior judges to understand the rules.  The objective is to see whether the system could be made more efficient. By “the system” I do not mean merely what happens in the Crown Court when somebody says, “Stand up, Lord Judge. You are charged on this indictment with …” It is to try to make the entire criminal justice system work efficiently. That includes ideas such as deferred prosecution agreements, the use of cautions and so on, which I referred to. I am not sure I can expand on that any further. 

As to the role of the Attorney General, that has assumed greater importance since the constitutional changes. It is a very significant office. The objective is to have an individual of impeccable moral courage. The function of the Attorney General is to tell the Prime Minister, the Cabinet, and for that matter the House of Commons, how he sees it, and that may be diametrically opposed to the views and wishes of those he is advising. So long as he retains that function, and is able to perform it, he is performing a crucial role in our constitution. He is, of course, advising the Government. He is, of course, the law officer. Lord Goldsmith will know this far better than I do, but looked at from my point of view as a former Lord Chief Justice, I want to be sure that the Attorney General is a man or a woman—I dealt with Baroness Scotland of Asthal frequently—who will tell it as it is and, of course, have access to the best advice that he or she may need, and the Treasury Solicitor obviously advises the Attorney General from time to time. I shall put it another way round: I should be astonished if the Treasury Solicitor did not advise the Attorney General from time to time. 

With this absence of lawyers and this absence of a system in which the Lord Chancellor is the head of the judiciary and able to represent the judiciary, I think that from time to time, although it is not for me to say, the Attorney General might have to tell the Cabinet that this is not acceptable to the judiciary or would not be acceptable to the judiciary. I see the role as crucial.

Lord Hope of Craighead: I did not deal with the Attorney General; I dealt with the Lord Advocate, who was not quite as closely involved with the Government as the Attorney General but was equally important and a crucial member of the Government, certainly north of the border, perhaps even more so because the Lord Chancellor’s writ did not extend very far north of the border. The Lord Advocate was pivotal to the way the rule of law operated in his day.

Lord Woolf: I add another footnote. The Attorney General appoints the Treasury Devil, although that title refers to the Treasury, rather than AG. He was in my day, though there have been changes, responsible for advising all government departments, with limited exceptions, on any matter on which they needed advice. Because of the more complex society that we now have, the Treasury Devil’s ability has been reduced. There used to be one Treasury Devil—I must take responsibility for changing this to some extent as there is now a team. Your status was special and your relationship with the Attorney General was critical. My role convinced me that the Attorney General should be a person of considerable experience and standing. It is of constitutional importance that that tradition should be maintained and the holders of the office of Attorney General, and Solicitor General, should be appropriate. 

It is difficult today because it is much harder for someone to have a political career in the Commons and run a practice than it was when I was practising. You do not have a reservoir of experienced lawyers as you used to have in the Commons. I think Lord Goldsmith was an illustration of a way of dealing with that. If you do not have anyone who fits the bill in the Commons, somebody is made a peer with a view to them becoming Attorney General.

Lord Goldsmith: I was already a peer before being appointed Attorney General.

Lord Woolf: I am sorry.

Lord Goldsmith: So was Lord Williams of Mostyn, who was the first modern Attorney General in the Lords. In the 16th century, they would all have been from the Lords. 

Q39   Baroness Dean of Thornton-le-Fylde: I would like to address the question of the roles of Secretary of State for Justice and the Lord Chancellor being held by one person.  Lord Woolf, in his written evidence, referred to the judiciary as the weakest arm of government and talked about sympathetic consideration to protecting the rule of law, and goes on to say that he does not believe that this is happening. Can judicial independence and the rule of law be defended in the Cabinet by a minister with wider departmental responsibilities—the issue of prisons keeps coming up—budgets and perhaps their own political career? They might not be at the peak of their career, but they might want future promotion. Does that point to different priorities? In oral evidence we were told—not by a lawyer—that the role of Secretary of State, linked with the role of Lord Chancellor, gives the Lord Chancellor power to fulfil his duties regarding the upholding of the rule of law and judicial independence, and the twin roles give the officeholder more political clout than the Cabinet would otherwise have had. In written evidence we learnt about the maintenance of the office of Lord Chancellor “with a radically changed character”, and the witness goes on to say, “the constitutional settlement has evolved and matured and there is now no need for the elaborate cojoined minister model to continue”. I would like to ask what your view is about that.

Lord Woolf: I am not sure it is practical to do anything to achieve a remedy. It might be one of those things that are inevitable. It is a problem, because whereas a Lord Chancellor could position himself outside the normal ministerial role in relation to political issues that are deeply contested, it is much more difficult for someone who is both Lord Chancellor and Minister of Justice. 

There is one aspect that I think I have heard Lord Judge talk about. One of the things that happened when I was Lord Chief Justice and Lord Judge was Deputy Chief Justice was that we were getting judges to play a more active role in their relationship with government.  Lord Judge felt, and I understand this entirely, that once you have Lord Chancellor who is also head of another department, that becomes more difficult. That is regrettable, because when I was Lord Chief Justice, and indeed when I was Master of the Rolls, I tried to find ways in which we could have a much closer relationship, which was appropriate, with the workings of government, so it was not only after the government had decided what they were going to do that we had any way of expressing our views. Lord Judge had regular meetings with the Lord Chancellor. I did not have those regular meetings. It may be that those regular meetings would achieve this, but my belief was that because Lord Chief Justice is a demanding job, it is difficult to do this. The fact that Lord Chancellor was seen by the judiciary as different from other ministers was important, because they thought they had somebody who was really concerned about them. I know the argument to the contrary—that he now has more clout—and I accept the importance of that argument, and the argument that if you took away from the Lord Chancellor the responsibilities of the Minister of Justice, his clout would be reduced, but it would still be better to have someone who is not quite as powerful who is looking after your interests than someone who is not. He cannot take a different view from that of his colleagues on the need to cut resources, for example, when the cut could undermine the rule of law. 

I also think that the fact that he is in the Commons because he is the minister for prisons means that the danger is greater.

Lord Judge: I am not sure what the answer to your question is. I thought that the revolution in 2003 was constitutionally dangerous. I think that adding prisons to the Ministry of Justice so the Lord Chancellor became responsible for them was dangerous in the sense that it diminished the potential for defending the independence of the judiciary. The waters have run under the bridge. We have the system that we have. There is no possible way to go back to the former Lord Chancellor arrangements. For a start, there would not be much for him to do because most of the responsibilities have been passed on to the Lord Chief Justice. My concern was identified by Lord Woolf. My real concern is that if we imagine—and I can only imagine—the Cabinet table and we end up with a Lord Chancellor who is isolated from any other department with a very limited function, I wonder how much attention will be paid to him or her when he or she says, “You know, this is all very well, but have you considered this, this and this and the possible dangers of that?” I would like to think that the Attorney General would do that anyway, although he is not a full member of the Cabinet. My view—but it is on balance, that is why I am not being definite—is that the judiciary is probably better served by a Lord Chancellor who takes his oath seriously, who recognises his responsibility, who has the personality and the strength of character to get across to his colleagues that he is at this moment exercising his function as Lord Chancellor and who is nevertheless in charge of a large department. 

I suspect—I have no knowledge of this—that the bigger your department around the Cabinet table, the more clout you might have. 

Q40   The Chairman: Lord Hope, before you add to that answer, could I ask you to bring in the question of whether the Scottish jurisdiction has any lessons that might be of value in considering the role of Lord Chancellor—looking at this from north of the border?

Lord Hope of Craighead: May I come back to that when I have responded to the question by Baroness Dean of Thornton-le-Fylde? It is difficult for those who have not sat at the Cabinet table to know how matters work, but my view is the same as that of Lord Judge. I think I am right in saying that the practice in the old days was for the Lord Chancellor to sit very close to the Prime Minister at the Cabinet table. I have an image of Lady Thatcher and Lord Mackay of Clashfern being very much together. You are then in a position to intervene and exercise authority. I fear that without prisons and the big department that he represents, the Lord Chancellor will be at the far end of the table where it is much more difficult to exercise the kind of authority that no doubt he has today. It is difficult to know, but I suspect that nowadays the volume of responsibility has a real part to play. I agree with Lord Judge that one cannot turn the clock back, so I would not change the present system. We need to have that kind of authority behind it.

As for the Scottish position, to be frank I find it difficult to draw any useful parallels. I have not studied how the committees work in the Scottish Parliament or exactly how the Lord Advocate interacts with other members of the Scottish Government. But from such observations as I have made, it does not look as though he carries a great deal of authority as compared with the Minister for Justice. It is a very interesting position. There are two responsibilities: the Minister for Justice has responsibility there for prisons, but I suppose that the rule of law is the responsibility of the Lord Advocate, who has nothing other than his prosecution function, which clearly is quite a big function. That is his position: to represent the rule of law. My impression is that he is relatively weak in comparison with the big-spending Ministry of Justice. Perhaps there is a lesson for us in that.

Q41   Lord Lexden: The issue of whether there should be statutory criteria for the appointment of the Lord Chancellor came up early in this morning’s proceedings and vigorous views were expressed by our distinguished witnesses. I wonder whether I could ask Lord Woolf to expand a little on his view that the Prime Minister should explain why a particular individual has been appointed. Secondly, since that proposition provoked vigorous disagreement, I wonder whether I could also ask Lord Woolf’s distinguished colleagues whether they believe there is any point in retaining statutory criteria. If there is, how could the present criteria be developed?

Lord Woolf: My position is this: if you have criteria there must be some way of avoiding a situation where people, perhaps wrongly, think that there is no basis for regarding a particular appointment as falling within the criteria. I am not suggesting that there should be judicial review or anything of that sort, but perhaps there should be something more than a convention. At the least, it is important to the judiciary, under the system as it is, that the person who is Lord Chancellor is a person who is going to fulfil the functions of a Lord Chancellor I am not saying anything on the basis of the appointment that was actually made—I leave that entirely outside, because it is not for me to comment about that except in a different capacity—but I am saying that the relationship between the different arms of government is very important. I have indicated that the Attorney General is in a similar position to the Lord Chancellor. For the good of the relationship, it should not be thought that insufficient attention in making the appointment has been given to the need to have someone who is appropriate to fulfil the difficult role of Attorney General, and equally the difficult role of Lord Chancellor. That is because it looks as though the same attention is no longer being paid to the significance of the rule of law. However, the rule of law needs protection.

Lord Judge: I agree entirely with Lord Woolf about the importance that the judiciary attaches to the individual who is appointed to be Lord Chancellor. There is no question about that. I had done cases against Ken Clarke and I knew that he was qualified. Jack Straw was already in office when I became Lord Chief Justice. I am quite prepared to tell you that when I heard that Mr Grayling was going to be the next Lord Chancellor, I rushed off to see whether he was qualified. I was reminded of how worried I was about the breadth of the statutory definition that would apply to anyone holding this office. I remain extremely concerned about it, but at least there is some limit. If you did not have some statutory limit, it could be anybody. I bear in mind that under the current arrangement the Prime Minister has to find someone who, from his point of view, is going to be appropriate and suitable to run the Ministry of Justice. I would be much happier if there was a statutory provision that required the Lord Chancellor and therefore the minister to have some legal qualification. It would not be a bad thing for someone to have a legal qualification if he is to be responsible for prisons. That is an area where there is quite a lot of law.

Lord Hope of Craighead: I would leave section 2 as it is. I think that the presence of the criteria is valuable. Presumably someone reads down the list, and you come to the let-out paragraph at the end—paragraph (e). I do not think politically that it is possible to change that now, but at least the list is there. I agree entirely that it is highly desirable that individuals should have some legal experience, but I would like to see the back-up from the civil service as well so that he has the advice that he needs from time to time. My recollection is of the permanent secretaries being very visible at conferences and so on because they needed to be informed. They were active, because that was their job, in their interaction with lawyers and seeing how the rule of law worked in practice. I think that one should not look at the position of the Lord Chancellor alone. The support arm is part of the package that should be considered.

The Chairman: Our last formal question is by way of a general round-up, with the intention of allowing you to bring forward any points that you think we have failed to raise but you would like to unburden yourselves of.

Q42   Lord Cullen of Whitekirk: This is a rather blunt question about whether there should be a Lord Chancellor. If so, what should his functions be? If not, by whom should those functions be performed? You have an open field.

Lord Judge: I am going to say something that might sound discourteous, but it is not intended to be. I spent most of my time with the Attorneys General and the Lord Chancellors saying, “Please stop legislating about the criminal justice system. Give us a few years just to let everything bed down”, but all my efforts failed. Perhaps I may suggest that we really do not want to have another reconstruction of the constitution. It is fragile enough. I wonder, if we had had a Lord Chancellor of the old style in the Cabinet, whether we might have had the debate we had on Monday evening. I suspect that somebody might have said something about the issue of where the Leader of the House should come from, and what his or her function and office, and indeed salary, should be. I think we should keep the Lord Chancellor, provided that we keep him with a heavy department, and provided that he continues to hold by the oath of office that he takes.

Lord Woolf: I am in the same position as Lord Judge. The Lord Chancellor who is also a Minister of Justice is better than nothing.

Lord Hope of Craighead: I am with Lord Judge as well. I have one small picture to add. The opening of the legal year takes place on 1 October and the Lord Chancellor has the function of turning up dressed in his full robes, knee breeches and so on. He has to process up and read the lesson. He is visible as the Lord Chancellor doing that in his capacity as head of the judiciary.

Lord Judge: No, he is not.

Lord Woolf: No. He is there as the Lord Chancellor.

Lord Hope of Craighead: I beg your pardon and I stand corrected. Nevertheless, he is there dressed up as he is to fulfil that function. It would be very odd if he turned up there as a Secretary of State wearing just a suit. It is just part of the way British life operates, and the name that is attached to the office is something that we would lose. We would lose something intangible with its departure.

Lord Woolf: I think that, if recent history is anything to judge by, the office causes the person who is employed to do it, whatever his qualifications, to make efforts, such as the present holder of that office has made to familiarise himself with his responsibilities and try to acquire the knowledge he may not have. The office serves a purpose.

Lord Judge: Perhaps I may add a footnote to what I said about leaving things alone. I say that, although I am constantly being reminded of how delicate our constitution is. I am not making a party-political point about the executive and I would not do so, but I think that the last 10 to 12 years or so rather demonstrates that there is no deep political understanding of the niceties of our constitution. I think that this particular body has a heavy responsibility to ensure that someone, at any rate, is made alert to that.

The Chairman: Thank you. That is a very good note to end on. I am conscious that we have overrun and I am sorry about that, but your answers have been so interesting and forthcoming that we are deeply in your debt. I thank all three of you for being so helpful.