Speeches and Statements
Modernising criminal justice and constitutional arrangements for the 21st century - speech by Baroness Scotland
May I thank my hosts, the Civic Exchange, for inviting me to speak to you today about reform in UK criminal justice systems and constitutional arrangements. I am very pleased to be here, not least because there are a great many things that we share in common.
For example, we both have legal systems based on English common law. We have developed close co-operation on law enforcement issues, especially in the areas of customs, drugs and illegal immigration. And serving members of the UK House of Lords continue to sit as nonpermanent members of your Court of Final Appeal.
I hardly need to underline the importance of getting criminal justice right. Sadly, there is not a single one of us who will not be affected by the criminal justice system. Whether we are victims of crime ourselves, or members of our family are victims of crime, whether we are accused of crimes, or called to give evidence, criminal justice touches the lives of all of us.
Our heritage
In the UK we have long prided ourselves on having what we thought was one of the best justice and constitutional systems in the world. In many ways it is an admirable system, the product of centuries of evolution, filled with lawyers and judges of real brilliance and dedication. Our police are highly regarded for their lack of corruption and use of scientific methods, for example our pioneering work on building up and using a national offender DNA database.
But heritage can be a curse as well as a blessing - it can lead to stagnation. We recognised that the last fifty years had brought enormous changes to British society. The social revolution of the 1960s, immigration, globalisation, the 24 hour news culture have transformed communities out of all recognition from those which existed just after the Second World War.
So a strong tradition must not be a bar to looking at whether our constitutional and criminal justice arrangements are still suited to the 21st century. And over the last seven years this government has been doing just that.
What was wrong before 1997
When we came to power in 1997, there was real groundswell of dissatisfaction with both our criminal justice system and our constitutional arrangements.
Let me take first our justice system. High crime rates and long delays in the courts had undermined public confidence in our justice system. The whole process of the law seemed centred around the rights of the accused, with the victim appearing to be sidelined, if considered at all. There was a real lack of thinking about how to tackle the drivers of crime in society - such as economic conditions, low educational standards, drugs and poor parenting. And people felt remote from the institutions of law and order.
At the same time there was growing tension between our rights as citizens in a liberal democracy and our constitutional arrangements. We had signed up to a convention in Human Rights but citizens had to go all the way to Strasbourg to get it enforced. There was a culture of secrecy in Government, which undermined our claim to be an open democracy. And there was a second chamber of our Houses of Parliament full of hereditary peers who the vast majority of the public felt should not be there. While people in Wales and Scotland felt a Parliament in London wasn’t properly able to listen to their concerns.
We are now part way down a long road of putting these things right.
What I want to talk to you about today
In this lecture I want to talk to you about how our systems are changing to meet the needs of modern society. I come wearing 2 hats. I am the Government Minister charged with modernising the criminal justice system but I am also a lawyer - for 22 years I went to court on a daily basis. So the law is in my blood and its core values of equity and fairness are my core values too.
I am not the minister directly responsible for constitutional change - that falls to Lord Falconer, our Lord Chancellor, supported by the Department for Constitutional Affairs. But we work closely together on this, as we do on criminal justice reform, where the Lord Chancellor has a vital role to play as head of the judiciary and lead minister for the courts.
Today I don’t intend to reel off a list of changes, though I will say something about the action we have taken and are taking. What I want to do is to set out the core values that have driven our reforms and the lessons we have learnt.
Balancing within the circle
Let me start by drawing a picture of the justice and constitutional system as a circle. One side represents state power; the other side represents individual rights. To keep its shape the circle needs both sides. But too much state power and the individual feels crushed. Too much emphasis on individual rights and much less is achieved for the common good.
If I can borrow a Chinese analogy, the symbol of ying and yang, then the best results, the most harmonious conditions, are achieved when these two forces are in a state of balance. So it is with justice, that when the powers of the state and the rights of the individual are in balance, then justice is achieved for all.
So how do we achieve that balance? And what have we learned in the process of reforming our systems?
Accountability and respecting rights
First if we are to expect citizens to respect state power, we need to ensure that we respect citizens’ rights. Our laws need to respect their diversity, and give them appropriate opportunities to bring the Government and the executive to account.
Accountability is very important to us - historically we had a long struggle to secure the vote for every adult. It is perhaps hard for a younger generation in our country to believe that less than a hundred years ago there were members of our parliament, sadly in the majority, who believed that women would not understand how parliament worked and therefore should not take part in the electoral process.
We now have the vote but increasingly people want more in terms of democractic engagement. They want to be able to connect with, and be heard by, public institutions at all levels in society.
We have taken important steps in this direction. We passed the Human Rights Act into law in 1998, making it unlawful for public bodies like the police, local councils and government departments to violate the rights contained in the European Convention on Human Rights. In doing so we gave our people the rights to challenge what they saw as violations in our own courts - a huge improvement over the cumbersome practice of the last century.
Through our Race Relations (Amendment) Act 2000, the Government demonstrated its commitment to eliminating unlawful discrimination, and promoting equality of opportunity and good relations between people of different racial groups. Over 43,000 public bodies are now under a positive duty to promote race equality and good race relations. This is potentially a very powerful lever to promote change. And this year we are seeking to introduce similar laws to tackle religious discrimination.
The prophets of doom suggested we would create a litigation culture. We haven’t.
Why?
Because we saw a human rights culture could give us a better country to live in.
One:
- Where people feel reconnected to the political process
- Where respect for human rights creates better public services
- Where there is greater respect across society - one for another’s basic human dignity, and
- Where we share basic values that can bind us together as a nation.
We introduced devolution to Scotland and Wales. Prior to this Britain was highly politically centralised. But the Scots and the Welsh were eager for more devolved power. Some rightly argued that Westminster and Whitehall are not always best placed to understand the aspirations of the nations and regions of the UK. By responding to the calls for devolution and providing greater opportunities to engage with decision-making, we aimed to strengthen our democracy, not weaken it.
Now Scotland has a Parliament and Wales an Assembly, so that the people of those nations can have their voices listened to and acted on. At the same time, they remain part of the UK and accept that issues such as security and defence are dealt with by the UK Parliament.
Decision-making across the UK may now be more varied, and sometimes more complex, but most would agree it has enriched our democracy.
In Scotland, for example, the Scottish Executive and Parliament have already carved out distinct identities and distinct policy outcomes. On a number of occasions the Executive and Parliament have come to the same conclusion as the Government. On others - such as free personal care for the elderly or university tuition fees or, more recently, with the Executive's announcement to ban smoking in public places - their conclusions have been different.
This distinctiveness, this diversity - and the greater accountability it allows - is a sign of devolution's success and, beyond that, of the flexibility of our constitutional arrangements, which allow for difference but guarantee the Union.
In the criminal justice system, our Criminal Justice Act 2003 and further legislation this year has started the process of re-balancing the system to put the needs of victims and witnesses at its heart.
Every victim and witness in a case where an offender has charged will have an individual named contact in to keep them up-to-date with the progress of their case. A powerful new national advocate for victims is being created and clear minimum standards will set out for victims and witnesses what they can expect from all criminal justice agencies. Our investment in individual support for victims has doubled.
And we have increased the use of restorative justice schemes where the offender gives something back to the victim. These schemes are used particularly in our youth justice system to help young offenders see the consequences of their crimes and make amends.
Partnership and joined up working
The next lesson we have learned from our reforms is that we can achieve so much more if we work in partnership and if the services that need to work together are joined up.
For too long the criminal justice system had worked in silos. The police prepared the case but rarely consulted the prosecutor in advance, so that charges came forward that were not adequately prepared. Cases were frequently delayed because no one had thought to commission vital reports in advance. Too many trials failed to proceed on the day they were intended because the victim or witnesses did not turn up, or the case papers were not ready.
This was one of the biggest causes of inefficiency and waste in our justice system.
Closer working between our criminal justice agencies has started to crack this problem. Prosecutors now work within our police stations to ensure the charge is appropriate from the start. A new £2million IT system is being developed to ensure all parts of the justice system can talk to each other. A case management system is being introducing to achieve more efficient end-to-end management.
We are starting to see the results - the number of Crown Court trials that are scheduled but then fail to go ahead has fallen by a quarter in the last two years.
Connecting across the community
We realised that it was vital to have the right mechanisms in place to encourage criminal justice organisations to share plans and co-ordinate their operations. The bodies that existed before 1997 had a purely consultative role. All this has changed.
Leadership on criminal justice has been strengthened by the establishment of a National Criminal Justice Board which brings together all government departments and agencies involved in criminal justice. The Board sets and monitors targets to bring offences to justice and raise public confidence in the system.
We also established Criminal Justice Boards at local level to bring together all the key players in criminal justice in each of the 42 criminal justice areas of England and Wales.
Accountable for local targets and working together to improve the criminal justice system in their area, local boards have been a landmark in helping us develop solutions across the whole of the system. They give local communities a chance to hold one single body to account for the service they receive.
Her Majesty’s Court Service, which comes into being in April 2005, will, for the first time, bring all courts in England and Wales together under one unified administration. It will remove the
artificial barriers that used to exist between Crown and County Courts and the Magistrates Courts.
Whilst a new bill we have just laid before our parliament will create a Serious Organised Crime Agency bringing together around 5,000 staff from several different agencies to fight serious organised crime, including drug and people trafficking.
We have learnt that partnership needs to be more than official organisations working together.
We have to create real connectivity across the community. This means the police, the courts and our correctional system connecting working with a wide range of services and types of organisation, from local community groups, to non-profit making organisations through to private providers.
It means having drug treatment services in place so that those who test positive when arrested can be referred for treatment. It means working with housing and job providers to ensure that when a prisoner leaves prison he is given the best possible chance of avoiding re-offending. And it means working with sports and leisure services to provide diversionary activities for young people in the school holidays to keep those most at risk from drifting into crime.
In all these areas, we have made a start.
Separation of powers and transparency
Which brings me to my last but by no means least lesson from our experience. That separation of functions and transparency in our constitutional arrangements must be part of the modern democratic state.
This is the driving force behind our Constitutional Reform Bill, which is currently before parliament. It has 2 key aims:
- Firstly, to increase the credibility of our constitutional arrangements and
- Secondly, to improve their effectiveness.
We aim to achieve this by functional separation of the judiciary from the legislature, and by providing greater clarity in our constitutional arrangements, including visible independence for our judiciary and the UK’s highest court.
Currently, the Lord Chancellor has three distinct, potentially conflicting roles - Minister responsible for constitutional affairs, Speaker in the House of Lords and head of the Judiciary. In that role he appoints, deploys and disciplines judges. In a modern democratic state, we do not believe that the Executive should appoint or deploy judges unfettered, nor should he be able to discipline judges alone. In the past this has been acceptable because the Lord Chancellor has been, himself, a judge but we are changing those arrangements before they give rise to difficulties.
The increasing policy role of the Lord Chancellor has made combining his role as judge and his role as Minister difficult. Not because it has ever compromised the Lord Chancellor in his judicial function, or as head of the Judiciary. It hasn’t, but the combining of roles has put pressure on the exercising of his policy responsibilities.
There should be no conflict – perceived or real – regarding the office holder’s accountability to the public. The Lord Chancellor’s role as Head of the Judiciary has, on some occasions, led to him looking in different directions. Sometimes to the public; sometimes to the judiciary. The interests of those two groups often meet. They both want to see the rule of law upheld and justice done. But they may disagree as to how to achieve this. Sentencing is a good example. What are the right sentences? This question is right at the heart of the political debate. A Minister looking sometimes to the judges, sometimes to the public, lacks the focus these issues require.
We are also proposing to create an independent judicial appointments commission. This will ensure a demonstrably open, transparent, and independent appointments process. And we hope that it will help to increase judicial diversity by opening up the appointments process and encouraging applications from traditionally under-represented groups such as women and ethnic minorities. Four out of Canada’s nine Supreme Court Judges are now women. This demonstrates what can be achieved.
And the other strand in our Constitutional Reform Bill is the creation of a new Supreme Court for the UK.
The final court of appeal in any system should be demonstrably separate from the Executive and the Legislature. This is not just for reasons of constitutional nicety: the final court of appeal does a very different job from the Executive and legislature – it is there to interpret the laws made by Parliament. The rights of individuals are dependent on it.
Functional separation of the judiciary at all levels from the legislature and executive is a cardinal feature of a modern, liberal and democratic state, governed by the Rule of Law. This separation should also be reflected in State institutions.
Conclusions
I want to end on an international note. We have found that:
Just as no man is an island, so no jurisdiction is an island as far as law is concerned.
Increasingly we live in an interconnected world. This brings huge benefits: travel, exchange of ideas, cultural and commercial interchange. But it can also bring problems. Environmental damage, organised crime, people trafficking and drug smuggling - all these recognise no borders.
Whether it is in trade agreements through the World Trade Organisation or in measures on the environment through the Kyoto Agreement, countries across the world are having to accept and work with inter-relatedness. Just as we had to do on a local and national level in our criminal justice and constitutional reforms.
As an area with a long and vibrant trading history, I am sure the people of Hong Kong understand this well. Your knowledge and historic bonds can be assets in those relationships.
I hope that the underlying principles that I have spoken about today, of:
- Accountability and respect for human rights;
- Partnership
- And of greater transparency in constitutional affairs
Find resonance with you, in your progress and reforms.
