15 July 2008
Mansion House, City of London
Justice Secretary Jack Straw has given a speech at the Lord Mayor's Annual Judges' Dinner.
[Check against delivery: this is the prepared text of the speech, and may differ from the delivered version.]
The Right Honourable Jack Straw MP, Lord Chancellor and Secretary of State for Justice:
My Lord Mayor, my Lords, my Lord Chief Justice, Master of the Rolls, Aldermen, my Recorder, Sheriffs, Ladies and Gentleman.
Every 'Dinner for the Judges' here at Mansion House is a special occasion, but this one is even more so, marking as it does Lord Phillips' last as Lord Chief Justice. Nicholas is without question one of the of the country's foremost jurists. There could be no more appropriate or deserving first President of the Supreme Court. And if I may, on a personal note, I would like to thank him for putting up with me. Nicholas, you've been great.
This fine feast has once again proved the supreme generosity of our hosts, the Lord Mayor and Lady Mayoress.
So I thank you, as I do all your guests - the Judges here, for being so welcoming following my appointment just over a year ago.
For I was well aware of the understandable apprehension at the prospect of the first street politician to occupy this august and ancient office, since Sir Christopher Hatton in the reign of Elizabeth I. When she appointed him, Hatton was alleged to have been her lover. When the Prime Minister put my name forward no such charge could be levelled. I was no more than campaign manager.
Changes from legislation
The reforms to the position of the Lord Chancellor, introduced by Charlie Falconer, are part of the major changes in the relationship between the executive, Parliament and the judiciary set out in the Concordat and the Constitutional Reform Act.
No longer does the Lord Chancellor wear three hats; as head of the judiciary, Speaker of the Lords and Cabinet Minister, 'a three in one' almost as difficult to explain as the Holy Trinity itself.
The Lords now have their own separate Speaker. It is the Lord Chief Justice who is now the Head of the Judiciary. Alongside these changes, we have seen a significant reduction in the role of the executive in judicial appointments, and next year will see the opening of the United Kingdom's Supreme Court.
Building on the foundations laid by Charlie, the last 12 months have been enormously constructive. I hope that you may feel that important and positive steps have been made with, for instance, the HMCS partnership - giving the judiciary clearer and greater administrative responsibility for the courts service.
Taken together, the last five years have probably brought more changes to our respective roles and relationships than the previous 50. And it is bound to take time for our new constitutional architecture to settle.
But what these changes show is that despite the greater formal separation of the limbs of state, they are not dislocated.
And what they also show is that more independence does not mean any less interdependence. And cooperation, partnership and recognition of each others' purpose is how we have to move forward in years to come.
Social changes
Walter Bagehot wrote that, 'an ancient and ever altering constitution is like an old man, who still wears with an attached fondness, clothes in the fashion of his youth. What you see of him is the same. What you do not see is wholly altered'.
I'm not so sure that is true any more. People can now see, outwardly, that the judiciary is changing. There is more work to be done, of course, in widening the pool of talent from which the judges are drawn, particularly given the expansion of your responsibilities which has changed profoundly the ambit of the modern judiciary; more active, more autonomous and more in the public eye.
Some of the change in the environment in which the judiciary works has been brought about directly through legislation, but it is also a reflection of, and a response to, broader societal change.
In the decades in which most of us have been alive, there has been a decline in deference which has meant that people are no longer prepared simply to take on trust or on sufferance the decisions made on their behalves. There has been a long term and substantial increase in prosperity, and although families are feeling the pinch at the moment, overall we are far better off than our parents' generation. There is much greater internationalisation of our society, meaning that national borders are no longer the barriers they were to living and working abroad.
A product of these social factors is that individuals are more aware of their rights and more prepared to use the courts to exert them.
As an illustration, the workload of the Administrative Court has more than doubled in the past six years, reflecting the increasing role of the judiciary as a check against the executive. The Human Rights Act has been a factor, but the trend started well before, and now it has resulted in judges treading in matters which may touch on the political.
Over this same period there has also been an astonishing increase in the numbers of lawyers in practice. From the time I was called to the Bar in 1972, the number of barristers in practice has trebled from 5,000 to 15,000, whilst the growth in solicitors has been even more rapid, with nearly 110,000 today.
Growth in legal market- commercial and public law
I'm very proud that we now have such a dominant and internationally competitive legal market which is allied, but by no means exclusively, to London as the great financial capital of the world. My Lord Mayor, no mention of the success of the City could be complete without recognition of the tireless work of yourself and your predecessors in promoting the City, London and the UK. And with the legal sector contributing £3 billion to GDP, England has become the global jurisdiction of choice.
It is a compliment, not only to our world beating legal firms and relevant sections of the bar, but also to our judiciary in the commercial courts and chancery division.
But the growth in the private legal sector is paralleled by the growth of public law. As Nicholas just reminded us earlier, at occasions which bring together the Lord Chief and Lord Chancellor it is customary for the former to mention funding - and it is in the best tradition that the latter replies.
I am also proud of the fact that we were one of the first countries in the world to provide for legal aid and assistance, brought in by the post-war Labour Government. But it may be salutary to record that the expansion of legal aid outstrips that of any other public service in the last 25 years, a rate of growth three times that of education. And that at £38 per capita per year, today it remains the best funded system in the world.
Total legal aid spending is now equal to the total spent on managing prisons; £2 billion a year on housing, heating and feeding 83,000 plus prisoners, and employing 52,000 staff gives an idea of scale.
The courts budget meanwhile has increased significantly to £1.8 billion today.
Accountability
This scale of public spending is bound to increase the public demand for greater scrutiny and accountability.
In respect of health and education there have been interesting debates over the past two decades as to the boundaries, on the one hand, of the autonomy without which the relevant professionals - the doctors, the headteachers - could not properly fulfil their roles, and on the other, how they exercise their responsibilities for substantial sums of taxpayers' money.
In these areas the boundaries are now different, and in my judgement, considerably better. Albeit later in time, we are now seeing a similar process in respect of the lawyers, the courts, and the judiciary.
Along with this increased administrative role, the courts are more squarely in the public eye, and firmly in the iron-sights of the media than at any time before.
The scale of public spending and the societal changes of which I spoke, bring with them something which the Lord Chief Justice has not only identified but has spoken out about; the need to embrace greater openness and accountability.
So I welcome, as just one example, Sir Mark Potter's intervention in The Times on Friday - from a position of great authority - seeking to clarify and correct media reporting regarding the way family justice is run. It is a good illustration of an exquisite understanding of the boundaries between explaining what the courts do and how they do it - which is absolutely a matter for the judiciary - whilst stepping back from involvement in wider political debate.
There is as much a constitutional principle at stake as a reputational one. Members of Parliament, let alone Government Ministers, should not criticise the decisions of the judiciary - and I have worked hard to create a climate where the judges and magistrates are not gratuitously attacked. I hope that there is agreement that this should be reciprocated.
There will of course be legitimate areas of potential difference in view. What is crucial is how they are handled.
Davis
Take their Lordships' recent judgment in the Davis case. Now, it is hardly a secret that the decision - how shall I put it - 'changed diaries'. But their Lordships were fulfilling their vital constitutional role in establishing what they saw as the limits of the common law, and the Government and Parliament theirs in responding swiftly to fill the gap.
It is significant that in neither House, from any side, has there been gratuitous criticism directed at their Lordships. Just a responsible recognition that they had their job to do and we had ours.
Indeed Michael Howard, not always known as the champion of all three branches of state, was moved to commend the Law Lords for passing the matter back to Parliament.
Sentencing
My Lord Mayor, the Lord Chief referred to the pressures from Parliament on the sentencing regime. I understand that, although they in turn relate to some of the changes in the nature of our society to which I have earlier been referring. However, all of us want to see sentencing put on a more stable basis.
It is widely accepted that greater predictability in sentencing is important for raising public confidence in a system which punishes, deters and reforms offenders. At the same time individual decisions on a sentence must be a matter for individual sentencers, without these individual sentences being linked to the availability of correctional resources.
As many colleagues will know, Lord Justice Gage has been chairing a working group looking at the future sentencing regime. His report has just been published, and I am deeply grateful to him and to his team for all of their hard work.
The Lord Chief Justice and I will consider carefully their findings, and I can assure you this evening that no decisions - either way - will be taken lightly.
Finding the correct balance in this area goes to the heart of our constitutional arrangements.
Conclusion and toast
My Lord Mayor, many Lord Chief Justices have had the honour of addressing this Dinner. Very few have been able to preside over changes of extent and the significance that Nick has, in his three years in office. To go back to Bagehot, it is far more than the civil robes which are 'wholly altered'. We wish him well, as we welcome Sir Igor Judge who I know will continue to lead the judiciary with great distinction.
My Lord Mayor, there is one last duty incumbent on me. Legend has it that Chief Justice Marshall and his fellow United States Supreme Court justices, having heard disturbing rumours of their own excessive drinking, jointly agreed to abstain on their weekly consultation day - unless it was raining. The next consultation day, Marshall instructed another Justice, Joseph Story, to go to the window and check for signs of inclement weather.
Story soon reported back: 'Mr. Chief Justice, I have very carefully examined this case,' he declared, 'and I have to give it as my opinion that there is not the slightest sign of rain.'
'Justice Story,' Marshall replied, 'I think that is the shallowest and most illogical opinion I have ever heard you deliver. You forget that our jurisdiction is as broad as the Republic, and by the laws of nature it must be raining some place in our jurisdiction. Waiter, bring on the rum!'
It is my great honour to propose a toast:
'The Lord Mayor and the Lady Mayoress'.