10 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
important for that” (Q 41). Similarly, the current Lord Chief Justice, Lord
Phillips, told us: “I would like to think it has an entrenched quality about it.
It has certainly been treated as if it were a constitutional document laying
down the division of functions, now largely of course overtaken by the Act
but not exclusively, and where the Act does not cover something one needs
to go back to the Concordat” (Appendix 8, Q 6).
15. On the question of whether the Concordat might be amended in the future,
Professor Robert Hazell of the UCL Constitution Unit suggested that “it has
the status of a constitutional convention, and all constitutional conventions
are liable to evolve over time in the light of experience and new
circumstances, and I would be very surprised if the Concordat did not itself
evolve partly in its interpretation, as other conventions have evolved, but
partly it could be revisited, and I hope at some point it will be revisited, and
possibly this inquiry could provide the trigger for that. I do not think myself
it is written in tablets of stone” (Q 473).
16. The terms of the CRA itself differed in several respects from the
announcement of 3 June 2003 and the Constitutional Reform Bill as
introduced to the House of Lords in 2004. Part 1 of the CRA is about the
rule of law, a provision to which we return shortly. Part 2 sets out the main
duties and powers of the reformed office of Lord Chancellor, the new role of
the Lord Chief Justice of England and Wales as head of the judiciary, and
other provisions relating to judicial leadership. Part 3 concerns the new
Supreme Court of the United Kingdom. Part 4 deals with judicial
appointments and discipline. Clearly the Concordat and the CRA taken
together have made important changes to the relationships between the
judiciary, the executive and Parliament.
17. As well as redefining formal powers and duties, the CRA and the Concordat
were intended to change the attitudes and perceptions relating to these
leadership roles. Lord Falconer told us that “having a leader of the judges
drawn from the judiciary rather than a politician drives a sense of ownership
and momentum. It gives the judiciary confidence that the pressure for
change, if it comes from the head of the judiciary, comes from the profession
and not from the politicians. Judges have always sought to improve the core
processes” (Q 3). The Lord Chief Justice said that under the changes
brought about by the Concordat and the CRA he and the Lord Chancellor
“become partners in the administration of justice, but as a matter of
constitutional principle the Lord Chief Justice is now the senior partner”.
18. In her paper for us, Professor Kate Malleson (Professor of Law at Queen
Mary, University of London) forecast that “the idea of a partnership as
expressed in the Concordat may well provide a basis for the future
relationship, but it would be unrealistic to expect it to be a partnership
without tensions. The consequence of a more active judiciary with greater
autonomy will inevitably be a more dynamic relationship between the
branches of government in which the judiciary have a more structured and
active role in defending themselves from criticism and ensuring that the
proper resources and support for the courts are in place” (Appendix 3). That
comment, written in November 2006, has proved to be prescient. The
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 11
creation of the new Ministry of Justice has thrown up issues of profound
disagreement between the Government and the judiciary. By May 2007, the
judiciary were expressing frustration that “in the event there has been no real
change in attitude at all. The Lord Chancellor and his staff in the DCA
continued to act as if he retained primary responsibility for the
administration of justice and had sole responsibility for deciding what
resources should be allocated to this and how they should be deployed”.
Creation of the Ministry of Justice
19. This brings us to the third milestone in the development of the new
relationships: the creation of the Ministry of Justice, which formally came into
existence on 9 May 2007. Reports of Government plans for a Ministry of
Justice had been circulating for some considerable time. Then in August 2004,
there was speculation that the Home Office (then under David Blunkett)
would be split, with a department for justice (responsible for courts, police,
prisons and probation) and a “department for rights” (with responsibilities for
human rights, immigration and asylum, family law and civil disputes, freedom
of information, constitutional reform, electoral law and devolution).
20. A Home Office leak in The Sunday Telegraph on 21 January 2007 was the first
public acknowledgement of the current plans. That article appeared to be the
first that either the then Lord Chancellor or the Lord Chief Justice knew of
the plans.
8
The new MoJ has taken on all of the responsibilities of the
Department for Constitutional Affairs (DCA) and the following
responsibilities previously held by the Home Office:
• criminal law and sentencing;
• prisons;
• probation; and
• reducing re-offending.
Lord Falconer became the Secretary of State for Justice (the title of Secretary
of State for Constitutional Affairs was abolished), a ministerial office he
continued to combine with that of Lord Chancellor. These two posts were
assumed by Jack Straw MP in the reshuffle after Gordon Brown became
Prime Minister. Appendix 7 sets out the responsibilities of the MoJ as
compared to those of the now defunct DCA, and the respective
responsibilities of the Secretary of State for Justice and the Lord Chancellor.
21. The judiciary have expressed a number of concerns both about the process
by which the MoJ came into being, and about the impact of the new
arrangements upon the administration of justice. These matters are discussed
in detail in Chapter 2.
Criteria for Assessing the Changing Landscape
22. There are a variety of different ways in which the changes mapped out in this
report could be evaluated. Our Committee’s remit is: “To examine the
12 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
constitutional implications of all public bills coming before the House; and to
keep under review the operation of the constitution”. For this purpose, the
Committee has defined “the constitution” as “the set of laws, rules and
practices that create the basic institutions of the state, and its component and
related parts, and stipulate the powers of those institutions and the
relationship between the different institutions and between those institutions
and the individual”.
9
Our focus for this inquiry has therefore been to
consider how the changing relationships between the judiciary, the executive
and Parliament impinge on core constitutional principles—notably the rule
of law and the independence of the judiciary. The Lord Chancellor has
express statutory duties in relation to both.
The Rule of Law
23. Section 1 of the CRA states that “This Act does not adversely affect (a) the
existing constitutional principle of the rule of law, or (b) the Lord
Chancellor’s existing constitutional role in relation to that principle”. This
provision begs several questions, the first of which is what the “rule of law”
actually means. To assist our understanding of this term, we commissioned a
paper from Professor Paul Craig, Professor of English Law at the University
of Oxford (Appendix 5).
24. Although Professor Craig shed much light on the matter, it is apparent that
despite its inclusion in the statute book, the rule of law remains a complex and
in some respects uncertain concept. Professor Craig drew our attention to
three different meanings. First, “a core idea of the rule of law ... is that the
government must be able to point to some basis for its actions that is regarded
as valid by the relevant legal system”. This is, however, too limited so,
secondly, the rule of law requires that legal rules “should be capable of guiding
one’s conduct in order that one can plan one’s life”. In other words, legal rules
should meet a variety of criteria, including that they should be prospective, not
retrospective; that they should be relatively stable; and that there should be an
independent judiciary. Professor Craig told us that some commentators regard
these “formal” attributes of law to be necessary but not sufficient. So a third
meaning of the rule of law held by some is that it encompasses substantive
rights, thought to be fundamental, which can be “used to evaluate the quality
of the laws produced by the legislature and the courts”.
25. Lord Falconer told us that “the rule of law includes both national and
international law as far as I am concerned, therefore if we remained in breach
of the European Convention then we would be in breach of international
law. I think the rule of law also goes beyond issues such as specific black
letter law. I think there are certain constitutional principles which if
Parliament sought to offend would be contrary to the rule of law as well. To
take an extreme example simply to demonstrate the point, if Parliament
sought to abolish all elections that would be so contrary to our constitutional
principles that that would seem to me to be contrary to the rule of law. The
rule of law goes beyond specific black letter law; it includes international law
and it includes, in my view, settled constitutional principles. I think there
might be a debate as to precisely what are settled constitutional principles
but it goes beyond, as it were, black letter law” (Q 8).
9. Constitution Committee, First Report of Session 2001–02, Reviewing the Constitution: Terms of Reference and Method of Working (HL Paper 11), Chapter 2.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 13
26. On the question of who is responsible for upholding the rule of law, the Lord
Chief Justice told us that “it is the role of the judiciary, in practice, to uphold
the rule of law, to apply the rule of law, to enforce the rule of law, and to do
that they have to be independent of outside influence. Insofar as it is the
Lord Chancellor’s job to uphold the rule of law, this must be very largely a
job of ensuring that our independence is observed. Equally, there must be
occasions in government where a question may arise as to whether the
conduct that the Government is contemplating is or is not in accordance
with the rule of law, and there, I would imagine, the Lord Chancellor would
have a role to play in his capacity as a minister” (Appendix 8, Q 7). In
relation to the rule of law and the HRA, the Lord Chief Justice explained
that if a court made a declaration of incompatibility “it would be open to the
Government to say, ‘the court has ruled that this is contrary to the Human
Rights Act. Notwithstanding that, we do not intend to comply with the
Human Rights Act on this point’ and that would be contrary to what I would
call rule of law”. That would, however, be the end of the argument “because
Parliament is in that field supreme” (Appendix 8, QQ 9, 10).
Independence of the Judiciary
27. The other constitutional principle of central importance in governing the
relationships between the judiciary, the executive and Parliament is that of
the “independence of the judiciary”. This does not and should not mean that
the judiciary have to be isolated from the other branches of the State. Nor
does it mean that the judiciary—individually and collectively—need to be
insulated from scrutiny, general accountability for their role or properly made
public criticisms of conduct inside or outside the courtroom.
28. The CRA refers to the independence of the judiciary and offers a guide to
some aspects of this principle. Section 3(1) provides that “The Lord
Chancellor, other Ministers of the Crown and all with responsibility for
matters relating to the judiciary or otherwise to the administration of justice
must uphold the continued independence of the judiciary”. Section 3(5)
states that “The Lord Chancellor and other Ministers of the Crown must not
seek to influence particular judicial decisions through any special access to
the judiciary”. The Lord Chancellor also has additional statutory duties
which relate to judicial independence. Under section 3(6), he “must have
regard to—(a) the need to defend that independence; (b) the need for the
judiciary to have the support necessary to enable them to exercise their
functions; and (c) the need for the public interest in regard to matters
relating to the judiciary or otherwise to the administration of justice to be
properly represented in decisions affecting those matters”.
29. Sir Igor Judge, President of the Queen’s Bench Division, told us that it was
important to “appreciate that judicial independence and the proper funding
of the judiciary is actually something that belongs to the community. We do
not sit in judgment in flummery saying, ‘judicial independence for our own
sake.’ The independence of the judiciary is something which is precious to
every single member of the community. You must be able to go into court
and know that the person sitting in judgment is neutral—not on one side or
the other—coldly applying the law that applies to your case. So although
people sometimes think that when we defend judicial independence we are
simply defending our own corner … that is not the case—we simply are not.
The issues which arise here are of great importance to every member of the
public” (Q 379).
14 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
The Scope of our Inquiry
30. Our focus in this inquiry has been on the relationships between the
executive, Parliament and the judiciary of England and Wales. We make only
passing reference to developments in Scotland. Questions about relations
between the Scottish judiciary, the Scottish Executive and the Scottish
Parliament are now matters to be debated and decided north of the border
rather than in Westminster.
10 Nor do we deal with the position of the
judiciary in Northern Ireland. We note, however, that there are constitutional
questions common to all three jurisdictions. The fact that they arise in
somewhat different legal systems should not prevent lesson learning.
Although we make some reference to the creation of the Supreme Court of
the United Kingdom—which will be a court for all three of the United
Kingdom’s jurisdictions—it would be premature to attempt any detailed
analysis of the constitutional consequences of establishing this new court. It
is due to begin its work in October 2009.
important for that” (Q 41). Similarly, the current Lord Chief Justice, Lord
Phillips, told us: “I would like to think it has an entrenched quality about it.
It has certainly been treated as if it were a constitutional document laying
down the division of functions, now largely of course overtaken by the Act
but not exclusively, and where the Act does not cover something one needs
to go back to the Concordat” (Appendix 8, Q 6).
15. On the question of whether the Concordat might be amended in the future,
Professor Robert Hazell of the UCL Constitution Unit suggested that “it has
the status of a constitutional convention, and all constitutional conventions
are liable to evolve over time in the light of experience and new
circumstances, and I would be very surprised if the Concordat did not itself
evolve partly in its interpretation, as other conventions have evolved, but
partly it could be revisited, and I hope at some point it will be revisited, and
possibly this inquiry could provide the trigger for that. I do not think myself
it is written in tablets of stone” (Q 473).
16. The terms of the CRA itself differed in several respects from the
announcement of 3 June 2003 and the Constitutional Reform Bill as
introduced to the House of Lords in 2004. Part 1 of the CRA is about the
rule of law, a provision to which we return shortly. Part 2 sets out the main
duties and powers of the reformed office of Lord Chancellor, the new role of
the Lord Chief Justice of England and Wales as head of the judiciary, and
other provisions relating to judicial leadership. Part 3 concerns the new
Supreme Court of the United Kingdom. Part 4 deals with judicial
appointments and discipline. Clearly the Concordat and the CRA taken
together have made important changes to the relationships between the
judiciary, the executive and Parliament.
17. As well as redefining formal powers and duties, the CRA and the Concordat
were intended to change the attitudes and perceptions relating to these
leadership roles. Lord Falconer told us that “having a leader of the judges
drawn from the judiciary rather than a politician drives a sense of ownership
and momentum. It gives the judiciary confidence that the pressure for
change, if it comes from the head of the judiciary, comes from the profession
and not from the politicians. Judges have always sought to improve the core
processes” (Q 3). The Lord Chief Justice said that under the changes
brought about by the Concordat and the CRA he and the Lord Chancellor
“become partners in the administration of justice, but as a matter of
constitutional principle the Lord Chief Justice is now the senior partner”.
18. In her paper for us, Professor Kate Malleson (Professor of Law at Queen
Mary, University of London) forecast that “the idea of a partnership as
expressed in the Concordat may well provide a basis for the future
relationship, but it would be unrealistic to expect it to be a partnership
without tensions. The consequence of a more active judiciary with greater
autonomy will inevitably be a more dynamic relationship between the
branches of government in which the judiciary have a more structured and
active role in defending themselves from criticism and ensuring that the
proper resources and support for the courts are in place” (Appendix 3). That
comment, written in November 2006, has proved to be prescient. The
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 11
creation of the new Ministry of Justice has thrown up issues of profound
disagreement between the Government and the judiciary. By May 2007, the
judiciary were expressing frustration that “in the event there has been no real
change in attitude at all. The Lord Chancellor and his staff in the DCA
continued to act as if he retained primary responsibility for the
administration of justice and had sole responsibility for deciding what
resources should be allocated to this and how they should be deployed”.
Creation of the Ministry of Justice
19. This brings us to the third milestone in the development of the new
relationships: the creation of the Ministry of Justice, which formally came into
existence on 9 May 2007. Reports of Government plans for a Ministry of
Justice had been circulating for some considerable time. Then in August 2004,
there was speculation that the Home Office (then under David Blunkett)
would be split, with a department for justice (responsible for courts, police,
prisons and probation) and a “department for rights” (with responsibilities for
human rights, immigration and asylum, family law and civil disputes, freedom
of information, constitutional reform, electoral law and devolution).
20. A Home Office leak in The Sunday Telegraph on 21 January 2007 was the first
public acknowledgement of the current plans. That article appeared to be the
first that either the then Lord Chancellor or the Lord Chief Justice knew of
the plans.
8
The new MoJ has taken on all of the responsibilities of the
Department for Constitutional Affairs (DCA) and the following
responsibilities previously held by the Home Office:
• criminal law and sentencing;
• prisons;
• probation; and
• reducing re-offending.
Lord Falconer became the Secretary of State for Justice (the title of Secretary
of State for Constitutional Affairs was abolished), a ministerial office he
continued to combine with that of Lord Chancellor. These two posts were
assumed by Jack Straw MP in the reshuffle after Gordon Brown became
Prime Minister. Appendix 7 sets out the responsibilities of the MoJ as
compared to those of the now defunct DCA, and the respective
responsibilities of the Secretary of State for Justice and the Lord Chancellor.
21. The judiciary have expressed a number of concerns both about the process
by which the MoJ came into being, and about the impact of the new
arrangements upon the administration of justice. These matters are discussed
in detail in Chapter 2.
Criteria for Assessing the Changing Landscape
22. There are a variety of different ways in which the changes mapped out in this
report could be evaluated. Our Committee’s remit is: “To examine the
12 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
constitutional implications of all public bills coming before the House; and to
keep under review the operation of the constitution”. For this purpose, the
Committee has defined “the constitution” as “the set of laws, rules and
practices that create the basic institutions of the state, and its component and
related parts, and stipulate the powers of those institutions and the
relationship between the different institutions and between those institutions
and the individual”.
9
Our focus for this inquiry has therefore been to
consider how the changing relationships between the judiciary, the executive
and Parliament impinge on core constitutional principles—notably the rule
of law and the independence of the judiciary. The Lord Chancellor has
express statutory duties in relation to both.
The Rule of Law
23. Section 1 of the CRA states that “This Act does not adversely affect (a) the
existing constitutional principle of the rule of law, or (b) the Lord
Chancellor’s existing constitutional role in relation to that principle”. This
provision begs several questions, the first of which is what the “rule of law”
actually means. To assist our understanding of this term, we commissioned a
paper from Professor Paul Craig, Professor of English Law at the University
of Oxford (Appendix 5).
24. Although Professor Craig shed much light on the matter, it is apparent that
despite its inclusion in the statute book, the rule of law remains a complex and
in some respects uncertain concept. Professor Craig drew our attention to
three different meanings. First, “a core idea of the rule of law ... is that the
government must be able to point to some basis for its actions that is regarded
as valid by the relevant legal system”. This is, however, too limited so,
secondly, the rule of law requires that legal rules “should be capable of guiding
one’s conduct in order that one can plan one’s life”. In other words, legal rules
should meet a variety of criteria, including that they should be prospective, not
retrospective; that they should be relatively stable; and that there should be an
independent judiciary. Professor Craig told us that some commentators regard
these “formal” attributes of law to be necessary but not sufficient. So a third
meaning of the rule of law held by some is that it encompasses substantive
rights, thought to be fundamental, which can be “used to evaluate the quality
of the laws produced by the legislature and the courts”.
25. Lord Falconer told us that “the rule of law includes both national and
international law as far as I am concerned, therefore if we remained in breach
of the European Convention then we would be in breach of international
law. I think the rule of law also goes beyond issues such as specific black
letter law. I think there are certain constitutional principles which if
Parliament sought to offend would be contrary to the rule of law as well. To
take an extreme example simply to demonstrate the point, if Parliament
sought to abolish all elections that would be so contrary to our constitutional
principles that that would seem to me to be contrary to the rule of law. The
rule of law goes beyond specific black letter law; it includes international law
and it includes, in my view, settled constitutional principles. I think there
might be a debate as to precisely what are settled constitutional principles
but it goes beyond, as it were, black letter law” (Q 8).
9. Constitution Committee, First Report of Session 2001–02, Reviewing the Constitution: Terms of Reference and Method of Working (HL Paper 11), Chapter 2.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 13
26. On the question of who is responsible for upholding the rule of law, the Lord
Chief Justice told us that “it is the role of the judiciary, in practice, to uphold
the rule of law, to apply the rule of law, to enforce the rule of law, and to do
that they have to be independent of outside influence. Insofar as it is the
Lord Chancellor’s job to uphold the rule of law, this must be very largely a
job of ensuring that our independence is observed. Equally, there must be
occasions in government where a question may arise as to whether the
conduct that the Government is contemplating is or is not in accordance
with the rule of law, and there, I would imagine, the Lord Chancellor would
have a role to play in his capacity as a minister” (Appendix 8, Q 7). In
relation to the rule of law and the HRA, the Lord Chief Justice explained
that if a court made a declaration of incompatibility “it would be open to the
Government to say, ‘the court has ruled that this is contrary to the Human
Rights Act. Notwithstanding that, we do not intend to comply with the
Human Rights Act on this point’ and that would be contrary to what I would
call rule of law”. That would, however, be the end of the argument “because
Parliament is in that field supreme” (Appendix 8, QQ 9, 10).
Independence of the Judiciary
27. The other constitutional principle of central importance in governing the
relationships between the judiciary, the executive and Parliament is that of
the “independence of the judiciary”. This does not and should not mean that
the judiciary have to be isolated from the other branches of the State. Nor
does it mean that the judiciary—individually and collectively—need to be
insulated from scrutiny, general accountability for their role or properly made
public criticisms of conduct inside or outside the courtroom.
28. The CRA refers to the independence of the judiciary and offers a guide to
some aspects of this principle. Section 3(1) provides that “The Lord
Chancellor, other Ministers of the Crown and all with responsibility for
matters relating to the judiciary or otherwise to the administration of justice
must uphold the continued independence of the judiciary”. Section 3(5)
states that “The Lord Chancellor and other Ministers of the Crown must not
seek to influence particular judicial decisions through any special access to
the judiciary”. The Lord Chancellor also has additional statutory duties
which relate to judicial independence. Under section 3(6), he “must have
regard to—(a) the need to defend that independence; (b) the need for the
judiciary to have the support necessary to enable them to exercise their
functions; and (c) the need for the public interest in regard to matters
relating to the judiciary or otherwise to the administration of justice to be
properly represented in decisions affecting those matters”.
29. Sir Igor Judge, President of the Queen’s Bench Division, told us that it was
important to “appreciate that judicial independence and the proper funding
of the judiciary is actually something that belongs to the community. We do
not sit in judgment in flummery saying, ‘judicial independence for our own
sake.’ The independence of the judiciary is something which is precious to
every single member of the community. You must be able to go into court
and know that the person sitting in judgment is neutral—not on one side or
the other—coldly applying the law that applies to your case. So although
people sometimes think that when we defend judicial independence we are
simply defending our own corner … that is not the case—we simply are not.
The issues which arise here are of great importance to every member of the
public” (Q 379).
14 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
The Scope of our Inquiry
30. Our focus in this inquiry has been on the relationships between the
executive, Parliament and the judiciary of England and Wales. We make only
passing reference to developments in Scotland. Questions about relations
between the Scottish judiciary, the Scottish Executive and the Scottish
Parliament are now matters to be debated and decided north of the border
rather than in Westminster.
10 Nor do we deal with the position of the
judiciary in Northern Ireland. We note, however, that there are constitutional
questions common to all three jurisdictions. The fact that they arise in
somewhat different legal systems should not prevent lesson learning.
Although we make some reference to the creation of the Supreme Court of
the United Kingdom—which will be a court for all three of the United
Kingdom’s jurisdictions—it would be premature to attempt any detailed
analysis of the constitutional consequences of establishing this new court. It
is due to begin its work in October 2009.
No comments:
Post a Comment