The Lord Chief Justice, Lord Phillips of Worth Matravers, who this month took over responsibility for 400 of the Lord Chancellor?s statutory functions in his new role as head of the judiciary of England and Wales, will have to tread a fine line in maintaining independence without becoming politicised.
He set out his stall when he heralded the start of the new constitutional era, which for the first time sees clear water between government and judges: ?I intend to steer clear of politics, but this does not mean steering clear of politicians. Provided the line is properly drawn between what are and what are not proper subjects for discussion, I think that dialogue between the Lord Chief Justice and ministers about the administration of justice is essential.?
Not all lawyers think the distinction will be that clear-cut. Roger Smith, director of Justice, warns: ?That is a handy balance, but it isn?t going to be that easy ? politicians don?t stay away from politics. You can stay away from party politics, but Lord Phillips has a big new power to make reports to Parliament. Will he make use of that power?
?He is going to be a very public judge. His role will be taxed to the ultimate. You only have to look at the way the press turned on Lord Woolf to see how vulnerable he may be. The trick will be to play a public role and not a political role.?
The Constitutional Reform Act 2005, which came into force on 3 April, sees Lord Phillips take over a host of functions previously carried out by the Lord Chancellor, such as discipline and deployment of judges, rule making, and the allocation of work within the courts. His major responsibilities cover the welfare, training and guidance of all judges ? from magistrates to law lords.
In response to written questions from the Gazette, Lord Phillips explains how he plans to organise his new role. ?I have formed a judicial executive board, comprised of the heads of division and two Lords Justices, to assist me with executive functions. The Judges Council, on which all elements of the judiciary ? from the House of Lords to the magistracy and tribunals ? are represented, has been strengthened, so that it is a truly representative and consultative body.
?I will rely on [the council as] my principal means of finding out the wishes and opinions of the judiciary. And when I say the judiciary, I mean all the judiciary, for my responsibility will extend to lay magistrates and tribunal members, some 40,000 people in total. I will be concerned to see that all of them dispense justice that is, and is seen to be, not merely fair but swift and procedurally efficient.? Also on 3 April, the new Tribunals Service, providing common administrative support to the main central government tribunals, was launched.
At the heart of the Act is the separation of powers between the executive and judiciary. Lord Phillips spells out its central message: ?Judicial independence is a fundamental principle of our system, and the Act imposes an express duty on the Lord Chancellor, and on other ministers and all those with responsibility for matters relating to the judiciary, to uphold the continued independence of the judiciary.?
Cindy Barnett, chairwoman of the Magistrates Association, welcomes the reforms as ?excellent news?. She says: ?This is an important step constitutionally. The judiciary and executive will work in partnership, but the executive cannot impose anything on the judiciary and the Act sets a seal on that, which is wonderful.?
She stresses the reforms are not just symbolic. ?They are very important for us in terms of specific issues such as appointments, training and complaints, and discipline. It is also nice to have it more openly understood that we are genuinely part of the judiciary.?
Mr Smith sees the reforms as a step forward: ?We have lived for too long with a rather naive notion of parliamentary sovereignty. I don?t think any government in modern times has put forward such a fundamental raft of constitutional reforms, and its momentum will carry us forward.?
But he criticises the government?s failure to create a ministry of justice, warning that the Department for Constitutional Affairs is ?too broad?, with the danger that crucial areas such as legal aid get lost. ?Paradoxically, you now have a much more public champion for the judiciary outside the executive but a much weaker champion for the judiciary and issues relating to the rule of law within government.?
One of the final parts of the jigsaw will be the supreme court, which the department says will open for business in October 2009. A planning application to convert Middlesex Guildhall should be submitted to Westminster City Council later this month, despite some law lords remaining unconvinced that it will provide a suitable modern setting for the court.
Another of the Act?s key reforms is the creation of the Judicial Appointments Commission (JAC), which is chaired by Baroness Ushar Prashar, with 14 commissioners including lawyers and lay people. It has taken over the task of appointing judges from the Lord Chancellor, though for a transitional period until July 2007, he will keep control of senior appointments. It will also in time take over the appointment of magistrates, while a key role will be in widening the pool of applicants for judicial posts.
Complaints about the appointment process will be handled by the new Judicial Appointment and Conduct Ombudsman, Sir John Brigstocke, a former Second Sea Lord.
Sir Colin Campbell, who headed the Commission for Judicial Appointments until it handed over its powers to investigate complaints about appointments to Sir John this month, has expressed concern that the new body will not be charged with auditing the appointments process, to give an overall view of how the system is working.
JAC member Ed Nally, a past president of the Law Society, does not think this will be a problem. ?The JAC has a primary responsibility for making direct appointments and it will have a key role in ensuring its systems are fair, transparent, understood by applicants and that they don?t ? by effect, accident or design ? conspire against applicants.?
He adds that any risk of political meddling in the JAC is ?theoretical?. He says: ?The way the JAC is crafted severely curtails any opportunities for interference. Also, my early experience of my colleague commissioners and the chairwoman is that we are independent thinkers and we don?t believe we will face unfair or inappropriate interference.?
Mr Smith warns that there may be a danger in a committee making decisions, rather than an individual. ?I imagine the JAC will make very competent decisions but the crunch would be if there are two candidates for a major post and one was senior to the other, but the other was more imaginative ? would they dare to take the bold decision??
Mr Nally says the JAC would not be constrained to take the safe candidate. ?But if we found, in a pool of meritorious applicants, someone you might describe as a traditional candidate emerging as the best one, then I wouldn?t have a jot of embarrassment about appointing that person. We have to be careful not to lose the principle of excellence and merit.?
As the new bodies find their feet, there are as many changes behind the scenes. The Lord Chief Justice and the judiciary are now supported by the Directorate of Judicial Offices for England and Wales, which comprises the judicial office, the judicial communications office, and the Judicial Studies Board. Together, they have a staff of 130, all seconded civil servants, and a budget of ?14 million. Its director is Debora Matthews, principal private secretary to Lord Irvine when he was Lord Chancellor.
Based at the Royal Courts of Justice, the Judicial Office includes personal support and jurisdictional teams for the senior civil, criminal and family judges, which will maintain close liaison with the relevant government departments. ?We want strong links while maintaining our independence,? Ms Matthews explains. ?Having a dialogue doesn?t mean giving up your independence of thought or position.? But it should mean initiatives are not sprung on the judiciary without warning.
There is also the strategy and planning team, which will support the judicial executive board and Judges Council. The ?most interesting of all?, she says, is the human resources team, which will support judges from their involvement in the appointment process, through to the deployment of judges, ticketing and welfare.
Ms Matthews says the directorate is not a de facto ministry of justice. ?We are not an arm of the executive. We are very clearly on a different constitutional island, nor do we have a separate statutory identity.?
She predicts the communications branch will make the most immediate impact. ?The media can be scary, especially if you are in an isolated position as most judges are. But they recognise there is a real job to be done in explaining the workings of the system and, where we can, ensuring people understand the reasons behind a decision.?
But she hopes the changes will not be visible to the public ?because one of our main aims is for there to be no interruptions to the service?. She explains: ?We are at the start of an evolutionary process rather than seismic change and our hope is that our ability to plan from appointment through to retirement will show through in a better quality of justice.?