In the Media

Passing judgment on the judges

PUBLISHED March 22, 2007

Ever since one of England's most senior judges observed last month that the media loved to explore stories about "the Government and the judiciary embattled", it seems that both sides have been providing us with little else to write about.

The Lord Chancellor, Lord Falconer, and the Lord Chief Justice, Lord Phillips, have now locked horns on what judges do and who they should be. Lord Falconer made his disagreement with the judges very clear when I called to see him this week; Lord Phillips will have his chance to respond when he meets reporters today.

As I reported earlier this month, the judiciary has rejected a proposal from Lord Falconer that judges should be able to resume their practices as barristers or solicitors after retiring from the bench, a move that the Lord Chancellor believes would encourage more applications from women and minorities.

As a matter of principle, Lord Phillips informed Lord Falconer, the decision on return to practice was "a matter for the judiciary" and not one for the Government. As a matter of practice, the Judges' Council added, it was a bad idea: unworkable, possibly unlawful, counter-productive and damaging to judicial independence.

In their view, the route to the bench should remain a one-way street. Having an ex-judge as your lawyer would create the perception of bias. "The track record of being a judge is commercially saleable but should not be on the market," the judiciary said.

So, who makes the decision? "Terms and conditions on which a judge is appointed are a matter for the Lord Chancellor, subject to the caveat that he must do nothing that undermines the independence of the judiciary," he tells me.

Not so, says a working group drawn from all levels of the judiciary and chaired by Lord Justice Pill. The Lord Chancellor's responsibility for pay and conditions "does not extend to a power to dictate policy on a matter which goes to the heart of judicial conduct and commitment", they explain. "Decisions about the judiciary's policy and practice on this important subject require its concurrence and cannot be imposed by the executive."

Lord Falconer disagrees. It is the state that appoints the judge and the state can decide terms and conditions.

"So the judges have got the law wrong?"

They have, the Lord Chancellor replies. "They've got the law wrong in my view, yes."

Who would decide on a dispute between the judges and the Lord Chancellor? "Hopefully, the problem will not arise," Lord Falconer says. He clearly hopes the judges will back down.

But this seems unlikely. He gave them his view at a meeting on December 14 last year. Lord Phillips rejected it in a note sent on December 21. But has Lord Falconer been persuaded that it is a bad idea in principle for former judges to appear as advocates? Apparently not.

The judges told him there was no evidence that the present system acted as a barrier to recruitment. But in a survey on diversity conducted in 2004 by Lord Falconer's officials, 10 of the 24 respondents cited the inability to return to practice as a reason for not applying to become a judge. The same reason was given by some solicitors in a survey last year, though barristers were against it.

What's more, Lord Falconer says, there is no evidence that the change would encourage applications from people who wanted to exploit their former judicial status improperly when returning to practice. No such problems had arisen with the current system of part-time judges.These were not quite the objections put forward by the Judges' Council. But it looks as if Lord Falconer has decided to go ahead anyway.

"I'm minded to," he admits. "I have not yet made up my mind fully. And I would tell the judges and Parliament first."

But, he reveals, the changes might not apply to the more senior judges - a U-turn on his original decision that "those who have served at any level of the judiciary should be permitted to return to practice". As he explains, "it may well be that the right way forward u2026 is to say, below the High Court a return to practice is possible."

Any restrictions? Lord Falconer's original consultation period proposed a quarantine period of five years during which former judges should not act as advocates. Not any more: "I am minded to say 'no safeguards'," he tells me, "and rely on the good judgment of the individuals, just as we do with fee-paid [part-time] judges."

Curiously, Lord Falconer and his fellow ministers are not prepared to rely on the good judgment of the judges when it comes to setting the minimum terms murderers must serve before being considered for parole. Instead, courts must apply rigid guidelines in the Criminal Justice Act 2003.

There is an "immense" gap between the Act's lowest minimum starting point of 15 years and the 30-year starting point for murder with a firearm or during a burglary, Lord Phillips said this month. It was the difference between getting a fixed sentence of 30 years and one of 60 years, he explained, given that a prisoner normally serves only half a fixed sentence.

If the Lord Chief Justice means that the judges' discretion is too restricted by the legislation, then Lord Falconer would disagree. In his view, it is a good thing that Parliament is more closely involved in sentencing murderers than it is for other crimes.

But what of the wide gap between 15 and 30 years? "Parliament plainly intends murder to be marked out in this way. I think that is necessary and right for confidence in the criminal justice system."

As Lord Falconer rightly acknowledges, Lord Phillips has never called for the end of the mandatory life sentence for murder - if only because he knows it is not on the Government's agenda. The Lord Chancellor makes it clear that he does not disagree with the judges over the sentences for people such as Ian Huntley, given a minimum 40-year tariff for murdering the schoolgirls Holly Wells and Jessica Chapman. So there is not much between them on sentencing.

Still, it seems strange to hear any criticism from the one minister who is expected to defend the judges' position in Cabinet and beyond. And surely we shall see more of this if the Lord Chancellor becomes a minister of justice, adding criminal justice policy to his other responsibilities?

Lord Falconer looks genuinely bemused by my suggestion that he is trying out the new job for size. Disagreeing with the judges in public does not undermine the judges, he says. But he will not be drawn on whether the Government will set up a ministry of justice, a reform that is worrying a number of judges.

"My own view is that it would be a positively good thing if the person responsible for the courts is also responsible for criminal justice," he says. Conceding concerns that if the same minister was responsible for resourcing both the courts service and the prison and probation services demands for the latter might lead to less money being available for the courts, he assures me this would not happen.

There is nothing inappropriate or undignified in disagreeing with the judges in public, Lord Falconer believes. In his view, that does not detract from his role to protect their interests.

"It means we have to have a discussion about it. It's right that this discussion should be open rather than closed."

"But ultimately," I ask, "you decide?"

"That's my view."