Lord chief justice: changes to judiciary 'eroding something important'

http://www.guardian.co.uk/law/2013/jan/30/lord-chief-justice-changes-judiciary

Version 0 of 1.

Constitutional reforms that have taken effect over the past seven years "may be eroding something rather important", the lord chief justice of England and Wales told peers on Wednesday.

In oral evidence to the House of Lords constitution committee, Lord Judge sounded a warning about the effects of the Constitutional Reform Act 2005, under which the lord chancellor ceased to be head of the judiciary. The post of lord chancellor is now held by the justice secretary, Chris Grayling, and the head of the judiciary is now the lord chief justice.

What had been lost, explained Judge, was someone in government who could speak for the judges. The lord chancellor was now head of a large department. As minister for prisons, to take one example, his interests might not always coincide with those of the judiciary.

"There's nobody in the cabinet who is responsible for representing – to those members of the cabinet who may need advice on an issue – how a particular proposal may impact on the judiciary," the lord chief justice observed. And the 2005 act had removed the lord chief justice's right to speak direct to legislators during debates in the House of Lords. He was not even allowed to vote in parliamentary elections.

"I'm not being portentous," Judge continued, "but the process of evolution has some way to go yet."

The judiciary was regarded as the "third arm of the constitution", with a duty to represent the interests of the citizen and uphold the rule of law. It was there to ensure that those with power exercised it lawfully, "a crucial part of the constitution", he suggested.

"But is the judiciary's position being eroded by a series of accidents arising from these constitutional changes?" It was a question on which he invited the constitution committee to reflect.

The lord chief justice could not envisage any political party under our current electoral system telling a judge that he would need to find in favour of the government or risk losing his job. Everybody realised that individual judges were independent.

"But I'm not sure that everybody fully grasps that there is a constitutional role for the judiciary, and that changing the constitution in the way we have over the past seven years may be eroding something rather important."

The lord chief justice was then asked by Lord Lang of Monkton, the former Conservative secretary of state for Scotland, about the power given to him by the 2005 act to make written representations to parliament about the administration of justice.

Judge replied he had always respected the "powerful constitutional convention" that the judiciary did not comment on matters of party political concern.

For that reason, it was extremely difficult for judges to use the power in section 5 of the 2005 act. It would be seen as the judiciary taking sides against the government of the day. He had always regarded this as a "nuclear option".

During the remainder of his hour-long evidence session, Judge gave examples of how the judiciary's views had been taken for granted. It had been suggested by politicians that the lord chief justice or the president of the supreme court should have a role in setting up the recognition body envisaged by Lord Justice Leveson's inquiry into press ethics. But nobody had asked Judge or Lord Neuberger if they agreed.

Similarly, on plans to allow courts to be televised, the government had announced that it wanted "to start by allowing the broadcasting of advocates' arguments and judgments in the court of appeal before extending this to sentencing remarks in the crown court".

But the judges would not support the idea of broadcasting sentencing remarks in criminal trials, he said. In New Zealand, where this was allowed, people in court could be heard expressing their disapproval or approval while the judge was passing sentence.

He gave other examples of where the judges' views had clearly not been heeded by the government, such as cuts in legal aid or proposed restrictions on the use of QCs in publicly funded work that contributed to longer trials and greater public expense.

As the lord chief justice recalled, the constitutional reforms that brought about fundamental changes in the relationship between the government and the judiciary were announced in 2003 without any advance consultation or even prior notice to the judges that an announcement was to be made. Those reforms were widely seen as knocking a delicate constitutional relationship off balance. Nearly seven years after the first of those changes was brought into effect, it is right to take stock and consider whether the two branches of the constitution are yet back in equilibrium.