My Lords, I beg leave to ask a Question of which I have given private notice, namely:
To ask Her Majesty's Government on what grounds they have concluded that transferring responsibilities for prisons to the Department for Constitutional Affairs under the Lord Chancellor’s direction and renaming it Ministry of Justice is consistent with the statutory responsibilities of the Lord Chancellor under the Constitutional Reform Act 2005.
My Lords, the Lord Chancellor has specific duties to defend the independence of the judiciary under the Constitutional Reform Act 2005. Section 20 of, and Schedule 7 to, that Act also provide that ministerial responsibility for the courts must remain with the Lord Chancellor so that independence can be protected. In addition, the Lord Chancellor has a duty properly to resource the court system under the Courts Act 2003. The Ministry of Justice was created on the specific basis, as the statutes require, that the Lord Chancellor would remain responsible for the courts and subject to those duties.
The Lord Chief Justice has made it clear that the senior judiciary have no objections in principle to the creation of a Ministry of Justice, subject to the provision of safeguards to protect the independent administration of justice. A working group, chaired by the DCA Permanent Secretary and on which senior members of the judiciary sit, reporting to me and the Lord Chief Justice, has been convened to address these issues and will report. I am confident that, through the working group and other discussions that I am holding with the judiciary, we will be able to agree what safeguards are necessary.
My Lords, bearing in mind that the noble and learned Lord, with his new responsibilities for prisons, will be subject to frequent judicial reviews, and that he is likely on occasions to be found to have failed to respect the rule of law, does he agree that that state of affairs is in conflict with his statutory duty, unique among Ministers, to protect our constitutional principle of the rule of law, with the result that the authority of his office will be undermined and its role weakened?
No, my Lords, I do not accept it. There is nobody in our estate who is not subject to judicial proceedings. The Lord Chancellor has always been subject to judicial proceedings. The fact that from time to time the Lord Chancellor has lost judicial proceedings has not for one moment meant that his position has been undermined because he, like everybody else in this country, respects the law, and that is how it should be. I do not think for one moment that the prospect of being brought to court means that you cannot have a Ministry of Justice, nor does it mean that you cannot have proper safeguards. That is why the senior judiciary agree that subject to those safeguards there can be an effective Ministry of Justice.
My Lords, the revised oath for the Lord Chancellor in the Constitutional Reform Act 2005 reads:
“I … do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible”.
The noble and learned Lord may not as yet have taken that oath because he was already in post. Is he prepared to give us an assurance that the resources for the courts will be ring-fenced and that the resources available to the judiciary and court system will not be reduced by the demands of the prison population, the building of more prisons and so on?
My Lords, I commit myself to the terms of the oath. In addition to the terms of the oath, I am rightly subject to a statutory duty properly to resource the courts. I do not agree that ring-fencing is right; for example, last year it was necessary for me to take some money from the court system properly to fund the legal aid system, because a Lord Chancellor has to make judgments whether delaying some maintenance in the courts may be the right thing to do to ensure proper access to justice. That is why ring-fencing is wrong.
My Lords, if something goes very badly wrong in the prisons, it would be normal for the Minister responsible to resign, so I presume that if there is a massive prison break because there is a failure in the Prison Service the Lord Chancellor will have to ignore his responsibility to the judiciary and resign as a responsible Minister.
My Lords, what is the rush on this? Why would it not have been possible to set up the working groups and have a proper consultation before deciding to break up the Home Office and set up this Ministry of Justice? When the noble and learned Lord says that Parliament was told, are the Government not accountable to Parliament and should Parliament not have had an opportunity to hear the views of outside interests before a conclusion was reached on this matter by the Executive?
My Lords, a balance has to be struck, and ensuring that the Prison Service, Probation Service and the courts know where the political leadership is. Time has been set aside to have the discussions; the working party was set up before the announcement was made to Parliament and the matters were discussed with the judiciary before the matter was raised in Parliament.
My Lords, is the noble and learned Lord aware—as I am sure that he is—of the concerns of the judge in charge of the Central London County Court as to the lack of resources? As I understood it, the statement that he made was certainly not only in relation to maintenance; he referred to a crisis in the civil justice system.
My Lords, I am aware of the concerns expressed by his honour Judge Collins, which, I should make it clear, have nothing whatever to do with the issue of the Ministry of Justice. The consequence of the reduction in resources in some areas of central London is that there has been some delay in dealing with civil cases. However, again, judgments have to be made as to where you have to spend your resources to ensure that there is a legitimate and fair justice system.
My Lords, I believe that bringing together responsibility for the courts, prisons, probation, criminal law and criminal justice means that there is much clearer co-ordination and a much greater sense of the consequences of what the courts do in driving much better outcomes in the penal system.