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Last Updated: Wednesday, 23 May 2007, 22:51 GMT 23:51 UK
Ministry decision shocked judges
Jon Silverman
Legal affairs analyst

Senior judges have refused to back government plans to set up the new Ministry of Justice, in a row which has a history.

Ministry of Justice
The Ministry of Justice took on responsibility earlier this month

Rows of this magnitude between the judges and government do not usually emerge from a clear blue sky.

And this one is no exception.

The storm clouds began to form in 2003 when, as part of a ministerial re-shuffle, it was announced that the ancient post of Lord Chancellor was being abolished.

The then Lord Chief Justice, Lord Woolf, was quick to express his dismay that a move of such constitutional significance had been taken without any consultation.

For the judiciary, the office of Lord Chancellor provided a dual role. It was a guarantee of their independence from both parliament and executive.

And it gave the judges an influential voice in Cabinet at a time when justice has become increasingly politicised.

Judges' alarm

Although the judges could not prevent the old Lord Chancellor's department morphing into the Department for Constitutional Affairs (DCA), and the creation of HM Courts Service as an executive agency, they were partially reassured by the Constitutional Reform Act 2005.

This for the first time, put in writing a duty on ministers to uphold the independence of the judiciary.

But the new arrangements had hardly bedded in before the Home Secretary, John Reid, began canvassing support for the break-up of the Home Office and the creation of a Ministry of Justice, bringing both administration of the penal system and that of the courts under one roof.

Now, the judges were truly alarmed at the implications.

If the judges feel that their constitutional independence is to be made inviolate, then a thorny problem can be prevented from becoming a crisis
Jon Silverman

Even at this point, though, there were many who felt that a Ministry of Justice could be headed off.

Last summer, the permanent secretary at the DCA, Alex Allan, was dismissing the idea that it was going to be established and into the early months of 2007, the arguments against the new ministry appeared at least as persuasive as those in favour.

Thus, the decision, when it was announced, was a shock. Even more so was the speed of the change. And, for the judiciary, this was the straw which has come close to breaking the camel's back.

It's disgraceful that it's been done in such haste
John Spencer
Law professor

John Spencer, Professor of Law at Selwyn College, Cambridge, said he was fully behind the Lord Chief Justice, Lord Phillips.

"There are some sound arguments in favour of a Ministry of Justice but this is too important to be the subject of a back of a beer mat arrangement cobbled together at No. 10 in the early hours of the morning," he said.

"It's disgraceful that it's been done in such haste." The judges want assurances that, as part of the Ministry of Justice, they will not have their arms twisted by ministers over sentencing at a time of record prison numbers.

Some judges fear their independence will be compromised

They saw it as an ill omen that, on the very day that the new ministry came into being, Lord Falconer was stressing the need for more use of community punishments.

But although attempts to bridge the gap between government and judiciary have so far failed, there may be a glimmer of light on the horizon.

Despite Lord Falconer's strong objection to the idea of a written constitution, Prime Minister-designate Gordon Brown is making favourable noises about some kind of bill of rights.

If the judges feel that their constitutional independence is to be made inviolate, then a thorny problem can be prevented from becoming a crisis.

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