Why does the executive find it so hard to understand its constitutional relationship with the judiciary? In her first appearance before MPs yesterday, the lady chief justice of England and Wales had to put ministers right twice in the first five minutes.
Post Office scandal
Giving evidence to the Commons justice committee, Baroness Carr of Walton-on-the-Hill hit the ground running. It was simply “not factually correct”, she said, to suggest that the courts would have been unable to cope with a large number of appeals arising from the Post Office IT scandal.
As reported, the justice secretary had asked to speak to her before his department announced legislation designed to clear hundreds of wrongly convicted postmasters. It was true that Carr had had “two short conversations” with Alex Chalk, remotely, on Monday of last week.
But “any suggestion that the judiciary has given any proposed legislation the green light is simply not true”, she said. It was not for the judiciary to comment on the wisdom of proposed legislation.
Rwanda
And what about reports yesterday that “Rishi Sunak will fast-track migrant appeals against deportation to Rwanda by drafting in 150 judges and freeing up courtrooms under plans to stave off a revolt by Tory MPs”?
“I’m afraid that this headline draws matters of judicial responsibility into the political arena,” said Carr. “Matters of deployment of judges, the allocation of work for judges and the use of courtrooms are exclusively a matter for the judiciary — and, more specifically, for myself and the senior president of tribunals.”
That was all she had to say on the subject. But it is well understood — by everyone except the government, it seems — that senior judges jealously guard their responsibility for judicial deployment. The reasons are obvious: if ministers could decide which courts should sit less frequently — or choose the judges who hear particular cases — they might have an advantage in litigation to which they could be parties.
Yesterday’s Times reported that ministers were preparing to announce plans to move 150 judges from the first-tier tribunal to the upper tribunal, the body that will hear appeals under the new legislation.
But it’s not up to them. Earlier, a spokesperson for the judiciary had told the Law Society Gazette:
In line with new provisions in the Illegal Migration Act, the judiciary have identified a number of first-tier tribunal judges who may be asked to sit in the upper tribunal to deal with any increase in appeals that arise from the act.
The decision to do so will be taken by the senior president of tribunals when the provisions in the act commence, taking into account the interests of justice and the need for all matters before the tribunals to handled quickly and efficiently.
Carr’s priorities
Carr was refreshingly open and confident in answering questions from Sir Bob Neill MP — and the four other members of the 11-person committee who turned up. She outlined three main ambitions:
recognising and promoting judicial strengths
building judicial unity
reducing backlogs, improving timeliness and maintaining quality
That involved communicating the judges’ role in supporting democracy, society and the economy as a whole. It meant safeguarding judicial independence and increasing transparency. It required improvements judicial diversity. It might even involve a “media judge” who would give broadcast interviews about the justice system from time to time.
The judges
Since taking over from Lord Burnett of Maldon last October, Carr has visited a number courts and shown warm support for the judges. Yesterday, she went out of her way to express her regard for them.
But one incident caused her “real concern”. Late last year, a 40-year-old man pleaded guilty to assault causing actual bodily harm and criminal damage following an incident at Milton Keynes county court.
It was reported that the attacker was a litigant in person in a closed family hearing and that the judge was chased out of the courtroom and through his chambers before he was attacked. The judge needed hospital treatment but was home within two days.
Carr said she could not comment on the incident itself. But she seemed unimpressed with the response from HM Courts and Tribunals Service, which described the incident as “shocking” but “extremely rare”.
“My response would not have been that these incidents are isolated. Such a serious attack as the one that took place here is rare, but that’s not really the point, is it?”
The incident had triggered a review of security protocols, Carr added. “And, more than anything else, to make sure our judges are all aware of what protection they have available to them.”
They needed to know when they were entitled to police protection and when they could insist on sitting in a secure court rather than in a small room. Arrangements were needed to ensure that potentially violent people were identified before hearings took place
And she had “told the judges in no uncertain terms that if at the end of the day they do not feel it is safe for them to conduct that hearing in those circumstances they should not proceed.”
One judiciary
Carr was asked about the “one judiciary” policy jointly adopted by the Ministry of Justice and the judiciary of England and Wales. Its declared aim is “to bring the courts and tribunals closer together; to make better use of resources; and to demonstrate that judges, whether they sit in courts or tribunals, are part of a single judicial family”.
Under reforms introduced in 2007, tribunals in England and Wales (as well as a few in other parts of the UK) are headed by a senior president, currently Sir Keith Lindblom. His post sits outside the structure led by the lady chief justice.
Last summer, the government consulted on reforming the senior president’s role. Instead of sitting alongside the chief justice, the senior president would become a head of division, one rung below:
The proposed reform will mean that tribunals judicial office-holders in England and Wales will become part of the same judicial structure as courts judges, while the structure of the tribunals themselves will remain as it is now.
Carr had been told that the government would soon be announcing its response to this consultation. But she wanted to get on with the changes, which are intended to make the judiciary more cohesive. There would then be a unified structure, enabling judges to move between courts and tribunals as needed.
“What we really need is a legislative slot, please,” she told MPs. I’ve been asking for one for a long time and I will continue to ask for one… Without the legislative slot I am hindered, and perhaps materially so.”
Comment
Carr is not afraid to speak her mind. If the government oversteps the mark in briefings to journalists, she will respond in equally public terms. And if ministers drag their feet in delivering reforms, she won’t hesitate to apportion blame.
More broadly, she is fizzing with ideas and clearly on top of her brief. She covered a wide range of topics and her comments are well worth a read.
Update 1200: in a written statement yesterday, Chalk told MPs:
The Illegal Migration Act provides for first-tier tribunal judges to be deployed to sit in the upper tribunal to hear Illegal Migration Act appeals. The judiciary has identified relevant judges, which could provide over 5,000 additional sitting days.
The decision on whether to deploy additional judges temporarily to the upper tribunal, including when they sit and the courtrooms they use, is for the independent judiciary and will be taken by the relevant leadership judges at the time and in the interests of justice.
In addition, I have asked the Judicial Appointments Commission to recruit more judges to the first-tier tribunal and the upper tribunal. The recruitment will conclude in the next few months and new judges will be appointed, trained and start sitting from this summer.
It’s not clear whether those comments were drafted before the newspapers were briefed. Reporters do not appear to have been told that these are matters for the judiciary.
Update 22 January: the committee’s transcript has now been published. An earlier transcript was made by the judiciary.
Good on Lady Justice Carr; this is decidedly a time for plain speaking on a number of fronts and from a position of assiduous preparation for the Committee fixture together with telling it as it is. Would that government Secretaries of State , Ministers and their spokespersons would emulate her but I shall scarcely be holding my breath for that!
My major concern over the planned “with one fell swoop” legislation to exonerate all wronged post persons first of all is that there was available the altogether feasible judicial fast tracking described by her, so avoiding the executive ‘s tanks occupying the judiciary’s lawn.
Also, who is to say in terms of IT system malfunctions there might not be “another bus along in a minute”? During my several years with others representing the profession via the Law Society I had a number of times to confront and battle against unwise and one sided contracting out of core MOJ services to large and even mega- corporations who through wily negotiations on their part had secured terms giving them the whip hand whenever glaring elementary blunders and shortcomings INVARIABLY reared their ugly heads.
Many an injustice and quite likely miscarriages of justice may yet emerge and there are some equally dubious contracting out exercises still in place. Accordingly watch this space.
And with them if - perish the thought- they should arise (I very much brace myself for them) then in each case I can already imagine the executive - once again- striving to seize the reins from the courts on similar pretexts to the present one.
What price then the inviolability of judicial independence and fearless rulings?