Legal Opinion: Judges warn ministers of threat to constitution

Legal Opinion: Judges warn ministers of threat to constitution

The Government and the judiciary are at loggerheads over constitutional reforms rushed through this year. Robert Verkaik, Law Editor, reviews the state of play
Published: 03 October 2007

The transfer of power from a Department for Constitutional Affairs to a new Ministry of Justice led by a politician directly responsible to Parliament appears to have done nothing to settle the outstanding grievances of the judges.

Britain's most senior judge is back on the warpath, renewing his attack on the Government by blaming ministers for introducing constitutional reforms that continue to threaten the independence of the judiciary.

In a speech to lawyers and judges meeting at a conference in Nairobi, Kenya, Lord Phillips of Worth Matravers, the Lord Chief Justice, spoke out over the Government's unwillingness to agree safeguards to the constitution which he said were critical in order to preserve the administration of justice in the wake of the creation of a new Ministry of Justice.

He was also critical of plans to bring in US-style confirmation hearings for the appointment of senior judges.

Lord Phillips made it clear that relations between the Government and the judiciary had not recovered from the decision to rush through the break-up of the Home Office earlier in the year. Under the shake-up, responsibility for criminal justice, sentencing and prisons now rests with the Ministry of Justice, headed by Jack Straw, the Secretary of State and new Lord Chancellor. Lord Phillips said:

Close communication and co-operation with the Lord Chief Justice and the senior judges when decisions were taken was essential in order to ensure that what was needed for the administration of justice was provided. This did not happen. The Lord Chancellor and the staff in his department 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. Decisions were taken without our participation and we were then belatedly told what was proposed.

He said that it was also "unsatisfactory" that the costs for funding the courts came out of the same budget that funded government criminal justice policy and criminal legal aid.

"If the prisons proved to be under-funded there could be a further squeeze on court resources," Lord Phillips said during his speech at the Commonwealth Lawyers Association last month. "There might even be a perception that judges were going soft on sentencing in order not to exacerbate a need for expenditure on prisons at the expense of the courts."

Hopes that relations between the executive and the judiciary had improved under a Gordon Brown administration have proved to be a false dawn.

Back in May, Lord Phillips warned that the two sides were "poles apart", with the Government refusing judges' demands for a "fundamental review" of their constitutional position.

Now Lord Phillips says that although Jack Straw had acknowledged the judge's concerns, "this ongoing saga illustrates an aspect of judicial independence that has been giving rise to concern in a number of jurisdictions".

But he reserved his most strident criticism for government plans to let Parliament have the final say in the appointment of judges, similar to the confirmation hearings that take place in the US senate.

There is a growing tendency to challenge the mandate of the judge. Some say that our decisions are not legitimate, because we have not been elected. They point to the United States where some judges are elected and where, at the highest level in the federal system, candidates are subjected to confirmation hearings.

I am only aware of one Commonwealth country where Parliament is involved in judicial appointments, and that is Mozambique. I, for one, can see no need for such an innovation in the United Kingdom.