APPENDIX 3: PAPER BY PROFESSOR KATE MALLESON: THE
EFFECT OF THE CONSTITUTIONAL REFORM ACT 2005 ON THE
RELATIONSHIP BETWEEN THE JUDICIARY, THE EXECUTIVE AND
PARLIAMENT
The Background to the Constitutional Reform Act 2005
The origins of the Constitutional Reform Act lie in the expanding role played by
the higher courts in the UK over the last thirty years. The combined effect of the
growth of judicial review, the development of the EU and, most recently, the
Human Rights Act and devolution has been to give the courts a more central place
in the British constitution. The senior judges are now required to police
constitutional boundaries and determine sensitive human rights issues in a way
which would have been unthinkable forty years ago. This new judicial role is still
developing, but it is clear that the effect of this trend will be to reshape the
relationship between the judiciary and the other branches of government. In the
light of these changes, the main provisions of the Constitutional Reform Act—
reforming the office of Lord Chancellor, establishing a new Supreme Court and
restructuring the judicial appointments process—were designed to bring the
institutional relationships between the judiciary and the other branches of
government into line with the changing substantive role of the courts. In
particular, the reforms were intended to secure the independence of the judiciary
by ‘redrawing the relationship between the judiciary and the other branches of
government’ and putting it on a ‘modern footing’.
Although the timing of the introduction of the Constitutional Reform Bill in 2003
took many by surprise, its content did not. Concerns about the relationship
between the judiciary and the other branches of government had been building up
over a number of years. Where once there had been a general consensus that the
Lord Chancellor’s three roles as member of cabinet, head of the judiciary and
speaker of the House of Lords enhanced the functioning of the political system
and strengthened judicial independence, they increasingly came to be regarded as
a potential source of abuse of executive power.
90
In particular, the
Lord Chancellor’s responsibility for appointing the judges became a source of
growing concern as the senior judges’ role in scrutinising government decisionmaking
increased. Likewise, the presence of the top appellate court in Parliament
had once been widely regarded as an effective means of drawing on the legal expertise
of the top judges during the law-making process so enhancing the quality of legislation. By the 1990s, however, many Law Lords themselves had come to regard the lack of separation between the
two as problematic as the same senior judges who participated in passing the laws were increasingly
asked to decide on the conformity of those acts with basic humanrights.
By the late 1990s, far fewer voices were heard in support of the argument that
these overlaps between the branches of government were a source of its stability.
Increasingly, the interconnection was seen as endangering judicial independence,
breaching basic constitutional principles and out of step with the rest of Europe.
By the start of the second term of the Labour Government in 2001, the long
debate about these issues had slowly generated broad support across the political
spectrum for a ‘clearer and deeper’ separation of the functions and powers of the
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 61
judiciary from the other branches of government. The decision to embark upon
extensive institutional reform was therefore anticipated, but the provisions set out
in the Constitutional Reform Act were unusual in a number of respects. First, they
ran counter to the trend of recent political developments in that they represented a
conscious shift of power away from the executive. Second, they were forwardlooking,
seeking to construct
a new constitutional
model which anticipated
future
needs
rather
than responding
to an
immediate
perceived
problem. In introducing
the
reforms
the Government
made
clear that there
was
no suggestion that
the
overlapping
constitutional
roles of the Lord
Chancellor or the presence
of the Law
Lords
in the House of Lords had, in practice,
undermined
judicial
independence
but
rather that the present
system
held inherent
structural weaknesses which might
give
rise to such abuse in the future. The
third surprising feature of the reforms is
that
they explicitly sought to promote
constitutional
principle
above
pragmatism.
Whilst accepting that the previous arrangements had worked effectively, the
changes were designed to restructure the relationship between the judiciary and
the other branches of government so that it would conform more closely to the
concept of the separation of powers. This elevation of principle above pragmatism
is surprising given the traditional value ascribed to ‘what works’ in the British
constitution.
92
The Office of Lord Chancellor
Undoubtedly the most controversial element of the reforms when introduced was
the proposals relating to the office of Lord Chancellor. The Bill initially proposed
its complete reformulation into the post of Secretary of State for Constitutional
Affairs. After intense debate, this was amended so that the title and the office of
Lord Chancellor would remain, albeit in much reduced form, and that the Lord
Chief Justice should become the head of the judiciary as President of the Courts of
England and Wales. The principal concern expressed over the removal of the title
of Lord Chancellor was that it would increase the threat to judicial independence
by removing its ability to simultaneously bring together and keep apart the
branches of government. Variously described in terms of a link, a bridge, or a form
of constitutional ‘hinge’ a key element of the office was to facilitate understanding
of the position of the judges to the executive and vice versa. At the same time, the
role was also often characterised as being that of a ‘buffer’; holding the executive at
arms length from the judges: ‘armed with a long barge pole to keep off marauding
craft from any quarter’.
93 What is clear is that the retention of the title of Lord Chancellor cannot preserve the
very particular nature of the office. Future Lord Chancellors will not enjoy the
constitutional status which previously attached to that office by virtue of its position at
the crossroads of the three branches of state. Not only is the Lord Chancellor no
longer head of the judiciary, she or he need not be a member of the House of Lords
nor even a lawyer by background.
94
Lord Chancellors have traditionally been drawn
91from an elite corps of very senior lawyers respected or at least accepted by both
politicians and the judiciary. The future holders of the post, in contrast, are very likely
to be professional politicians and may well be non-lawyers with limited affiliation to or
understanding of the role of the judiciary. But perhaps more significant in terms of the
impact of the changing role on the relationship between judiciary and executive is the
changing nature of the office in terms of career hierarchy. In the past, the office of
Lord Chancellor was the pinnacle of a distinguished legal and political career. This
fact might have encouraged some to hang on to their place on the woolsack longer
than they should have done, but it had the advantage that the occupant had nothing
to gain or lose in terms of promotion by standing up for the judiciary and suffering
unpopularity amongst his ministerial colleagues or even the Prime Minister. In future
the position will be very different. The Lord Chancellor may be a mid-career
politician inevitably looking for promotion to one of the higher-ranking departments.
Some occupants may be first rate, others may be more mediocre. Either way, it is
unrealistic to expect that a passing minister, in post until the next Cabinet reshuffle,
will be willing or able to defend the judiciary against attacks by more senior Cabinet
colleagues in the same way as Lord Chancellors have done in the past.
One way in which the Constitutional Reform Act sought to address this problem was
to reduce the danger of threats from the executive by translating the political
obligation on the executive to respect judicial independence into a legal one by
including in the Act a provision that the Lord Chancellor and other ministers involved
in the administration of justice must respect judicial independence.
95
A key question is
whether the provisions can of themselves ensure that judges are protected from
improper political pressure in their decision-making on a day-to-day basis. In recent
years there have been a number of public expressions of conflict between Home
Secretaries and senior judges in the areas of criminal justice and human rights. This
has led to speculation as to whether judicial independence is under threat and fears
that the Constitutional Reform Act will exacerbate this process by removing the
protective role of the Lord Chancellor. Whether or not these fears are founded
depends partly on the degree of conflict between ministers and judges which is
considered acceptable. Some senior judges themselves have pointed out that a degree
of tension between the executive and judiciary is not only inevitable but healthy in a
democracy.
96 The difficulty is distinguishing the short-term ebb and flow of the
relationship between the executive and judiciary from long-term dangers. Lord Irvine
has reported that when Lord Chancellor he had to argue in Cabinet in support of
judicial independence on ‘many, many occasions’.
97 Nor is the need for such support likely to diminish. What is clear is that dismantling the office of Lord Chancellor in its traditional form will mean that new methods must be established for mediating and
negotiating the relationship between the two branches. The Concordat A key element of this new relationship is set out in what has come to be known as the Concordat.
98 Between 2003 and 2005 the Lord Chancellor, Lord Falconer,
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 63
and the then Lord Chief Justice, Lord Woolf, met regularly in private to determine
how the many roles previously undertaken by the Lord Chancellor would be
carried out.
99
Their final agreement was incorporated directly in the Constitutional
Reform Act. Before 2005, it was generally unnecessary to articulate whether the
Lord Chancellor was acting in his judicial or executive capacity when carrying out
a particular function. It was not clear whether, for example, decisions concerning
the deployment of judges were a task which the Lord Chancellor performed as the
head of the judiciary or a member of the executive. Under the terms of the
Concordat it is now explicitly established that this role is for the Lord Chief Justice
and therefore falls within the control of the judiciary. Perhaps the most interesting
aspect of the Concordat was that it is not simply a carve up of power between the
branches of government but is intended to create a form of partnership in which
the two branches of government share in the decision-making affecting the
governance of the judiciary and the running of the courts through the allocation of
decision-making powers ‘with appropriate constraints and mutual consultation.’
Most decisions concerning the management of the courts and the judiciary are
now formally ascribed to either the Lord Chief Justice or the Lord Chancellor, but
in almost all cases there is a duty to consult with the other or obtain their
agreement. For example, the overall number of judges is to be determined by the
Lord Chancellor after consultation with the Lord Chief Justice because: ‘real and
effective partnership between the Government and the Judiciary is seen as
paramount, particularly in this area’.
101
Similarly, the Lord Chief Justice has
responsibility for judicial discipline but may only warn or reprimand a judge with
the agreement of the Lord Chancellor.
102
What has been created is an institutional
relationship which envisages two separate but equal branches working together to
manage the courts and judiciary. How, in practice, this will work in the future
remains to be seen. The Concordat was drafted by two individuals who shared
similar career backgrounds, values and priorities. Given the changing role of the
office of Lord Chancellor, it will need to be robust enough to function effectively
in the context of a Lord Chief Justice and a Lord Chancellor who stand very
clearly in different branches of the Government. For this new ‘separate but equal’
system to work, substantial changes are therefore needed to the governance
structure of the judiciary.
The Governance of the Judiciary
The transfer of such a wide range of roles into the sole or joint responsibility of the
Lord Chief Justice requires a major change in the nature of the judicial support
system. Whereas the Lord Chancellor has an entire government department at his
disposal, until recently the Lord Chief Justice has had only minimal management
and administrative back-up. The traditional approach to judicial governance has
10064 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
been one which is informal and light-touch. As the court system has expanded
rapidly, the administrative roles undertaken by judges have grown in an ad-hoc
fashion. By and large, senior judges have simply absorbed additional management
roles on top of their adjudicative functions on an ex-officio basis with very limited
administrative support. Nor has there been a formal or permanent structure for
collective decision-making within the judiciary. This situation arose not simply as a
result of lack of resources or a failure by the judiciary to catch up with the
governance needs of a greatly expanded judiciary. Rather the arrangements were
partly a consequence of a particular vision of judicial independence; one which
prioritises the need for judges to be free, not just of external interference, but of
interference from other judges. It was for this reason that Lord Taylor when Lord
Chief Justice objected to the introduction of performance appraisal in the judiciary
on the grounds that it would: ‘clearly endanger the fundamental independence of
individual judges, not only from the executive but also from each other’ (emphasis
added).
103
Thus although the judiciary is a rigidly hierarchical structure in terms of
the authority of adjudicative decision-making, it has always pursued an ideal of a
flat management structure in which the individual judges retain the greatest
possible degree of autonomy over their working lives. Whilst in practice it has been
recognised that the Lord Chancellor and the Lord Chief Justice were required to
make management decisions for the judiciary as a whole, this has been regarded as
a task performed by them as ‘first among equals’. For this reason, the judiciary has
traditionally been highly sensitive to claims that any senior judge speaks for the
judiciary collectively. Indeed, the notion that there is such a thing as ‘the view of
the judiciary’ is widely rejected by many judges who pride themselves on the fact
that the only area that judges agree upon is that of judicial pensions.
Yet despite this strong culture of individualism, the move to a more structured
governance within the judiciary had begun before the Constitutional Reform Act.
By necessity, the rapid expansion in size of the judiciary had led to the expansion
in the number and formality of senior administrative positions with named and
appointed posts such as the Vice President of the Queens Bench Division, Deputy
Lord Chief Justice, and the Head of Civil Justice. Similarly, the Judges’ Council,
which until relatively recently was a virtually moribund institution, has been
revitalised in order to play a central role in the new governance structure. Because
membership is drawn from all the different levels of the judiciary, including more
recently members of the House of Lords/Supreme Court,
104
the Council has the
potential to play a vital role in representing the interests of the judiciary as a whole.
Equally important is the newly formulated Judicial Executive Board made up of
seven senior judges which appears to be envisaged as a sort of judicial Cabinet. It
meets monthly and its core function is to enable the Lord Chief Justice to make
policy and executive decisions through it. Administrative back-up will now be
provided through a new body, the Judicial Office of England and Wales which has
60 staff including a communications office.
The relatively ad hoc creation of this governance structure from a mixture of new
and refurbished institutions raises a number of questions about both judicial
accountability and judicial independence. What, for example, are the respective
remits in terms of policy-making of the Judges’ Council and the Judicial Executive
Board? How do their roles relate to each other? Where are the rules governing their powers and membership laid down? Who determines these? What, for
example, is the process for selecting the representatives from each judicial level for
the judicial council? Are they elected or appointed? If the latter, what are the
criteria for selection and who chooses them? Clearly many questions remain about
the new judicial governance structure, but what is certain is that the overall result
of the changes will be a greater concentration of power in the hands of the senior
judiciary. This outcome is probably inevitable and may also be desirable as a
means of securing judicial independence, but it is not unproblematic both in terms
of judicial independence and accountability. These changes represent very real
structural and ideological changes within the judiciary.
The Judicial Appointments Process
Under the previous judicial selection arrangements the power of appointment had,
in practice, rested with the Lord Chancellor who made his decision after
consultation with the senior judges. For appointments to the Court of Appeal and
the House of Lords, the decision formally rested with the Prime Minister on the
advice of the Lord Chancellor but the extent to which different Prime Ministers
engaged with the process was hard to assess since the process of consultation
between the Lord Chancellor and Prime Minister was always regarded as
confidential. It was in relation to these upper rank judicial appointments that
opinion was most sharply divided over the new provisions. Many members of the
judiciary argued that it was essential to remove all executive involvement in
selecting the senior judiciary since it was at this level that the pressure to
manipulate would be greatest. Others argued that it was precisely in relation to
these appointments, where the judges were engaged in high-level decisions with
policy-making implications, that there should be some real link to the democratic
process and that the Lord Chancellor should be more than just a rubber stamp.
Initially the Government supported the latter view in relation to the Supreme
Court appointments and the Bill provided that the Supreme Court commission
would nominate 2–5 names for the Lord Chancellor to choose from, so ensuring a
degree of political input. In the end, however, the Bill was amended so that both
the Supreme Court commission and the Judicial Appointments Commission for
England and Wales were given the ultimate decision-making power, being
required to recommend one name which the Lord Chancellor could only reject in
limited circumstances. The effect was to remove the danger of improper political
interference from the system but it also removed the opportunity for democratic
involvement in the selection of public decision-makers.
One way in which the democratic deficit caused by the removal of the executive
from the appointment process might have been countered would have been to
include the legislature in the process. Currently, Parliament plays no role in
judicial appointments, though it has the ultimate responsibility for removing errant
senior judges. This power relates solely to judges of the High Court and above,
who can be dismissed by the Queen if both Houses of Parliament vote for their
removal, though this is a power which has only been exercised once.
The
proposal that judges could be called before Parliament as part of the appointments
process was considered by Parliament during the passage of the Bill and rejected.
One explanation for this rejection lies in a widely held view of the US Senate
confirmation hearings as invading the privacy of individual candidates and
undermining judicial independence. Critics of this aspect of the US judicial
appointments process have argued that the highly partisan nature of the process is
105such that the hearings can sometimes be little more than a choreographed dance in
which very little useful information is revealed. However, the decision of the
Canadian Parliament to introduce nomination hearings for their Supreme Court
judges in March 2006 as part of a reform designed to reduce party political
influence, illustrates the growing awareness outside the UK of the need to explore
new ways to enhance democratic accountability in the judicial appointments
process whilst at the same time removing political patronage. The debate in
Canada which took place before the hearings were introduced almost exactly
mirrored that which took place at the time of the passage of the Constitutional
Reform Act. The first Canadian parliamentary Supreme Court hearing was widely
regarded to have been a success and future hearings will no doubt be watched with
interest. It is possible therefore, that this is an option that may be revisited in the
UK at some future date.
The other effect of the removal of any substantive input from the elected branches
of government into the judicial appointments process was to increase the
significance of the membership of the new appointments commissions and in
particular the role of the lay members. Their function is a vital one in balancing
the interests of the legal and judicial members of the commissions and mitigating
the danger of cloning which inevitably arises when appointment is made by those
already doing the job. Since the need for greater diversity in the composition of the
judiciary was a driving force behind the decision to establish the new system, the
lay members’ ability to challenge established approaches and develop innovative
means of drawing high quality candidates from beyond the traditional judicial
backgrounds into the recruitment pool will be a key measure of the success of the
commissions. In particular, the decision that the Chair of the Judicial
Appointments Commission for England and Wales would be a layperson was an
important step in establishing the central role of the lay membership. The
appointment of the highly respected former First Civil Service Commissioner,
Baroness Usha Prashar, as the first Chair of the commission in 2006 is likely to
ensure that the new system will not be overly dominated by judicial and legal
interests.
The Supreme Court
Whereas the provisions for the reform of the post of Lord Chancellor and the
judicial appointments process involve an explicit redistribution of power between
the branches of government, those for establishing the new Supreme Court, in
theory, do not. The new court will exercise the same formal powers as the
Appellate Committee of the House of Lords and the devolution powers of the
Judicial Committee of the Privy Council, and the first Supreme Court judges will
be the existing Law Lords. On the face of it, therefore, the creation of the new
Supreme Court is the least radical aspect of the constitutional reforms. In practice,
however, the removal of the top court from the legislature and its reformation as
an autonomous institution is likely to have a significant and long-term effect on its
constitutional role. The current changes need to be understood in the light both of
the changing role of the UK judiciary discussed above and also the development of
a global community of increasingly powerful constitutional and Supreme Courts.
At a formal level, the most fundamental change to the powers of the top courts in
the UK in recent history was the passage of the European Communities Act. This
potentially dramatic revision of the principle of parliamentary sovereignty was
highly controversial at the time. But in practice its effect has been limited and its
occasional application by the courts has not shaken the constitutional foundations
as critics feared. For supporters of a traditional conception of parliamentary sovereignty, the threat lies not in the growing role of the EU but closer to home
with the increasing domination of Parliament by the executive and the knock-on
effect this has had on the role of the judiciary. During the 1980s and 1990s, the
election of Governments with large majorities in the House of Commons gave rise
to claims that the only effective opposition lay in the House of Lords and the
courts. Fears that the concentration of power within the executive might threaten
basic constitutional and political norms led members of the senior judiciary to talk
of a ‘higher law’ which would require them to strike down legislation that sought
to undermine basic principles such as the rule of law. In 1994 the then Lord Chief
Justice, Lord Woolf made clear that if, for example, Parliament ‘did the unthinkable’
and removed the courts power of judicial review he would consider it necessary to:
‘mak[e] clear that ultimately there are even limits on the supremacy of Parliament
which it is the courts’ inalienable responsibility to identify and uphold.’
However,
having dipped a toe in these dangerous waters, the senior judiciary then drew back
from the brink. Lord Steyn articulated a widely-held view in his statement that:
The relationship between the judiciary and the legislature is simple and
straightforward. Parliament asserts sovereign legislative power. The courts
acknowledge the sovereignty of Parliament. And in countless decisions the courts
have declared the unqualified supremacy of Parliament. There are no exceptions...the
judiciary unreservedly respects the will of Parliament as expressed in statutes.
But despite such assertions, it was never likely that the genie could be put back in
the bottle and in the intervening years the underlying political conditions which
gave rise to the debate on the proper limits of judicial power have not changed.
Moreover, the passing of the Human Rights Act has significantly increased the
likelihood that courts will be called upon to consider whether an Act of Parliament
conflicts with a ‘higher constitutional law’ giving the judges the role of applying
principles of constitutionality ‘little different from those which exist in countries
where the power of the legislature is expressly limited by a constitutional
document’.
108
In 2004 the question of how far courts might go when faced with such
a challenge to fundamental constitutional principles came close to being tested when
the Government proposed legislation which would have removed the courts’
jurisdiction in certain asylum and immigration appeal cases. Senior judges and
academics suggested for the first time that the courts might be entitled to ignore an
Act of Parliament if the legislation was passed.
As Lord Woolf asked: ‘What
areas of government decision-making would be next to be removed from the
scrutiny of the courts? What is the use of courts if you cannot access them?’
109
In
response to such opposition, the Bill was amended. But the underlying question of
the limits to parliamentary sovereignty was revisited in 2005 when the Appellate
Committee of the House of Lords was asked to rule on whether the Hunting Act
2004 passed under the 1949 Parliament Act was a valid statute. While the Court
upheld the legality of the Hunting Act, it concluded that there were indeed limits
to the law-making power of Parliament:
In exceptional circumstances involving an attempt to abolish judicial review or the
ordinary role of the courts, the Appellate Committee of the House of Lords or a
new Supreme Court may have to consider whether this is a constitutional
fundamental which even a sovereign Parliament acting at the behest of a compliant
House of Commons cannot abolish.
111
This important judgment should be seen as the latest step in the process of
refining the notion of parliamentary sovereignty.
112
What is clear is that the
relationship between the courts and Parliament is in a state of transition between
parliamentary sovereignty and constitutional supremacy.
To properly understand the nature of this evolution, it is necessary to place the
emergence of the Supreme Court and the determination of its powers in the context of
the wider trend of increasing power amongst Supreme Courts and Constitutional
Courts around the world. What we are seeing is the emergence of a global community
of senior judges.
113
They are drawn from countries with different court structures and
constitutional arrangements; some have the power to strike down legislation and others
do not. But increasingly they see themselves as engaged in a global conversation about
the interpretation of basic human rights and the relationship between elected and
unelected branches of power. They read each others’ judgments and speeches; they
meet at conferences and share thoughts on their roles and functions. The UK
Supreme Court will undoubtedly be a leading and respected member of this
community of top jurists which is likely to have the effect of enhancing the new
Supreme Court Justices’ views of their role. Exactly how the new Supreme Court will
develop is still uncertain. What is clear is that the current trend around the world is for
increasing power and authority to be vested in Supreme Courts and the creation of an
autonomous Supreme Court in the UK, housed in its own building with an
independent budget and staff and a distinct identity is likely to follow that trend.
The Future
A central question which arises in assessing the implications of the Constitutional
Reform Act concerns the nature and degree of conflict between the judiciary and the
other branches of government which we can expect to see in the years ahead. 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.
The provisions of the Constitutional Reform Act have an important role to play in
establishing clearer boundaries between the branches of government and taking
the negotiations, tensions and conflicts between them from the private corridors of
power into the public arena. The governance structure of the judiciary, the role of
the Supreme Court and the judicial appointments process are areas of vital
constitutional importance which need ongoing scrutiny and debate. The effect of
the reconstruction of the judiciary as institutionally separate from but functionally
interconnected with the other branches of government will be to move the
judiciary closer to being a distinct third branch of government.
EFFECT OF THE CONSTITUTIONAL REFORM ACT 2005 ON THE
RELATIONSHIP BETWEEN THE JUDICIARY, THE EXECUTIVE AND
PARLIAMENT
The Background to the Constitutional Reform Act 2005
The origins of the Constitutional Reform Act lie in the expanding role played by
the higher courts in the UK over the last thirty years. The combined effect of the
growth of judicial review, the development of the EU and, most recently, the
Human Rights Act and devolution has been to give the courts a more central place
in the British constitution. The senior judges are now required to police
constitutional boundaries and determine sensitive human rights issues in a way
which would have been unthinkable forty years ago. This new judicial role is still
developing, but it is clear that the effect of this trend will be to reshape the
relationship between the judiciary and the other branches of government. In the
light of these changes, the main provisions of the Constitutional Reform Act—
reforming the office of Lord Chancellor, establishing a new Supreme Court and
restructuring the judicial appointments process—were designed to bring the
institutional relationships between the judiciary and the other branches of
government into line with the changing substantive role of the courts. In
particular, the reforms were intended to secure the independence of the judiciary
by ‘redrawing the relationship between the judiciary and the other branches of
government’ and putting it on a ‘modern footing’.
Although the timing of the introduction of the Constitutional Reform Bill in 2003
took many by surprise, its content did not. Concerns about the relationship
between the judiciary and the other branches of government had been building up
over a number of years. Where once there had been a general consensus that the
Lord Chancellor’s three roles as member of cabinet, head of the judiciary and
speaker of the House of Lords enhanced the functioning of the political system
and strengthened judicial independence, they increasingly came to be regarded as
a potential source of abuse of executive power.
90
In particular, the
Lord Chancellor’s responsibility for appointing the judges became a source of
growing concern as the senior judges’ role in scrutinising government decisionmaking
increased. Likewise, the presence of the top appellate court in Parliament
had once been widely regarded as an effective means of drawing on the legal expertise
of the top judges during the law-making process so enhancing the quality of legislation. By the 1990s, however, many Law Lords themselves had come to regard the lack of separation between the
two as problematic as the same senior judges who participated in passing the laws were increasingly
asked to decide on the conformity of those acts with basic humanrights.
By the late 1990s, far fewer voices were heard in support of the argument that
these overlaps between the branches of government were a source of its stability.
Increasingly, the interconnection was seen as endangering judicial independence,
breaching basic constitutional principles and out of step with the rest of Europe.
By the start of the second term of the Labour Government in 2001, the long
debate about these issues had slowly generated broad support across the political
spectrum for a ‘clearer and deeper’ separation of the functions and powers of the
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 61
judiciary from the other branches of government. The decision to embark upon
extensive institutional reform was therefore anticipated, but the provisions set out
in the Constitutional Reform Act were unusual in a number of respects. First, they
ran counter to the trend of recent political developments in that they represented a
conscious shift of power away from the executive. Second, they were forwardlooking,
seeking to construct
a new constitutional
model which anticipated
future
needs
rather
than responding
to an
immediate
perceived
problem. In introducing
the
reforms
the Government
made
clear that there
was
no suggestion that
the
overlapping
constitutional
roles of the Lord
Chancellor or the presence
of the Law
Lords
in the House of Lords had, in practice,
undermined
judicial
independence
but
rather that the present
system
held inherent
structural weaknesses which might
give
rise to such abuse in the future. The
third surprising feature of the reforms is
that
they explicitly sought to promote
constitutional
principle
above
pragmatism.
Whilst accepting that the previous arrangements had worked effectively, the
changes were designed to restructure the relationship between the judiciary and
the other branches of government so that it would conform more closely to the
concept of the separation of powers. This elevation of principle above pragmatism
is surprising given the traditional value ascribed to ‘what works’ in the British
constitution.
92
The Office of Lord Chancellor
Undoubtedly the most controversial element of the reforms when introduced was
the proposals relating to the office of Lord Chancellor. The Bill initially proposed
its complete reformulation into the post of Secretary of State for Constitutional
Affairs. After intense debate, this was amended so that the title and the office of
Lord Chancellor would remain, albeit in much reduced form, and that the Lord
Chief Justice should become the head of the judiciary as President of the Courts of
England and Wales. The principal concern expressed over the removal of the title
of Lord Chancellor was that it would increase the threat to judicial independence
by removing its ability to simultaneously bring together and keep apart the
branches of government. Variously described in terms of a link, a bridge, or a form
of constitutional ‘hinge’ a key element of the office was to facilitate understanding
of the position of the judges to the executive and vice versa. At the same time, the
role was also often characterised as being that of a ‘buffer’; holding the executive at
arms length from the judges: ‘armed with a long barge pole to keep off marauding
craft from any quarter’.
93 What is clear is that the retention of the title of Lord Chancellor cannot preserve the
very particular nature of the office. Future Lord Chancellors will not enjoy the
constitutional status which previously attached to that office by virtue of its position at
the crossroads of the three branches of state. Not only is the Lord Chancellor no
longer head of the judiciary, she or he need not be a member of the House of Lords
nor even a lawyer by background.
94
Lord Chancellors have traditionally been drawn
91from an elite corps of very senior lawyers respected or at least accepted by both
politicians and the judiciary. The future holders of the post, in contrast, are very likely
to be professional politicians and may well be non-lawyers with limited affiliation to or
understanding of the role of the judiciary. But perhaps more significant in terms of the
impact of the changing role on the relationship between judiciary and executive is the
changing nature of the office in terms of career hierarchy. In the past, the office of
Lord Chancellor was the pinnacle of a distinguished legal and political career. This
fact might have encouraged some to hang on to their place on the woolsack longer
than they should have done, but it had the advantage that the occupant had nothing
to gain or lose in terms of promotion by standing up for the judiciary and suffering
unpopularity amongst his ministerial colleagues or even the Prime Minister. In future
the position will be very different. The Lord Chancellor may be a mid-career
politician inevitably looking for promotion to one of the higher-ranking departments.
Some occupants may be first rate, others may be more mediocre. Either way, it is
unrealistic to expect that a passing minister, in post until the next Cabinet reshuffle,
will be willing or able to defend the judiciary against attacks by more senior Cabinet
colleagues in the same way as Lord Chancellors have done in the past.
One way in which the Constitutional Reform Act sought to address this problem was
to reduce the danger of threats from the executive by translating the political
obligation on the executive to respect judicial independence into a legal one by
including in the Act a provision that the Lord Chancellor and other ministers involved
in the administration of justice must respect judicial independence.
95
A key question is
whether the provisions can of themselves ensure that judges are protected from
improper political pressure in their decision-making on a day-to-day basis. In recent
years there have been a number of public expressions of conflict between Home
Secretaries and senior judges in the areas of criminal justice and human rights. This
has led to speculation as to whether judicial independence is under threat and fears
that the Constitutional Reform Act will exacerbate this process by removing the
protective role of the Lord Chancellor. Whether or not these fears are founded
depends partly on the degree of conflict between ministers and judges which is
considered acceptable. Some senior judges themselves have pointed out that a degree
of tension between the executive and judiciary is not only inevitable but healthy in a
democracy.
96 The difficulty is distinguishing the short-term ebb and flow of the
relationship between the executive and judiciary from long-term dangers. Lord Irvine
has reported that when Lord Chancellor he had to argue in Cabinet in support of
judicial independence on ‘many, many occasions’.
97 Nor is the need for such support likely to diminish. What is clear is that dismantling the office of Lord Chancellor in its traditional form will mean that new methods must be established for mediating and
negotiating the relationship between the two branches. The Concordat A key element of this new relationship is set out in what has come to be known as the Concordat.
98 Between 2003 and 2005 the Lord Chancellor, Lord Falconer,
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 63
and the then Lord Chief Justice, Lord Woolf, met regularly in private to determine
how the many roles previously undertaken by the Lord Chancellor would be
carried out.
99
Their final agreement was incorporated directly in the Constitutional
Reform Act. Before 2005, it was generally unnecessary to articulate whether the
Lord Chancellor was acting in his judicial or executive capacity when carrying out
a particular function. It was not clear whether, for example, decisions concerning
the deployment of judges were a task which the Lord Chancellor performed as the
head of the judiciary or a member of the executive. Under the terms of the
Concordat it is now explicitly established that this role is for the Lord Chief Justice
and therefore falls within the control of the judiciary. Perhaps the most interesting
aspect of the Concordat was that it is not simply a carve up of power between the
branches of government but is intended to create a form of partnership in which
the two branches of government share in the decision-making affecting the
governance of the judiciary and the running of the courts through the allocation of
decision-making powers ‘with appropriate constraints and mutual consultation.’
Most decisions concerning the management of the courts and the judiciary are
now formally ascribed to either the Lord Chief Justice or the Lord Chancellor, but
in almost all cases there is a duty to consult with the other or obtain their
agreement. For example, the overall number of judges is to be determined by the
Lord Chancellor after consultation with the Lord Chief Justice because: ‘real and
effective partnership between the Government and the Judiciary is seen as
paramount, particularly in this area’.
101
Similarly, the Lord Chief Justice has
responsibility for judicial discipline but may only warn or reprimand a judge with
the agreement of the Lord Chancellor.
102
What has been created is an institutional
relationship which envisages two separate but equal branches working together to
manage the courts and judiciary. How, in practice, this will work in the future
remains to be seen. The Concordat was drafted by two individuals who shared
similar career backgrounds, values and priorities. Given the changing role of the
office of Lord Chancellor, it will need to be robust enough to function effectively
in the context of a Lord Chief Justice and a Lord Chancellor who stand very
clearly in different branches of the Government. For this new ‘separate but equal’
system to work, substantial changes are therefore needed to the governance
structure of the judiciary.
The Governance of the Judiciary
The transfer of such a wide range of roles into the sole or joint responsibility of the
Lord Chief Justice requires a major change in the nature of the judicial support
system. Whereas the Lord Chancellor has an entire government department at his
disposal, until recently the Lord Chief Justice has had only minimal management
and administrative back-up. The traditional approach to judicial governance has
10064 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
been one which is informal and light-touch. As the court system has expanded
rapidly, the administrative roles undertaken by judges have grown in an ad-hoc
fashion. By and large, senior judges have simply absorbed additional management
roles on top of their adjudicative functions on an ex-officio basis with very limited
administrative support. Nor has there been a formal or permanent structure for
collective decision-making within the judiciary. This situation arose not simply as a
result of lack of resources or a failure by the judiciary to catch up with the
governance needs of a greatly expanded judiciary. Rather the arrangements were
partly a consequence of a particular vision of judicial independence; one which
prioritises the need for judges to be free, not just of external interference, but of
interference from other judges. It was for this reason that Lord Taylor when Lord
Chief Justice objected to the introduction of performance appraisal in the judiciary
on the grounds that it would: ‘clearly endanger the fundamental independence of
individual judges, not only from the executive but also from each other’ (emphasis
added).
103
Thus although the judiciary is a rigidly hierarchical structure in terms of
the authority of adjudicative decision-making, it has always pursued an ideal of a
flat management structure in which the individual judges retain the greatest
possible degree of autonomy over their working lives. Whilst in practice it has been
recognised that the Lord Chancellor and the Lord Chief Justice were required to
make management decisions for the judiciary as a whole, this has been regarded as
a task performed by them as ‘first among equals’. For this reason, the judiciary has
traditionally been highly sensitive to claims that any senior judge speaks for the
judiciary collectively. Indeed, the notion that there is such a thing as ‘the view of
the judiciary’ is widely rejected by many judges who pride themselves on the fact
that the only area that judges agree upon is that of judicial pensions.
Yet despite this strong culture of individualism, the move to a more structured
governance within the judiciary had begun before the Constitutional Reform Act.
By necessity, the rapid expansion in size of the judiciary had led to the expansion
in the number and formality of senior administrative positions with named and
appointed posts such as the Vice President of the Queens Bench Division, Deputy
Lord Chief Justice, and the Head of Civil Justice. Similarly, the Judges’ Council,
which until relatively recently was a virtually moribund institution, has been
revitalised in order to play a central role in the new governance structure. Because
membership is drawn from all the different levels of the judiciary, including more
recently members of the House of Lords/Supreme Court,
104
the Council has the
potential to play a vital role in representing the interests of the judiciary as a whole.
Equally important is the newly formulated Judicial Executive Board made up of
seven senior judges which appears to be envisaged as a sort of judicial Cabinet. It
meets monthly and its core function is to enable the Lord Chief Justice to make
policy and executive decisions through it. Administrative back-up will now be
provided through a new body, the Judicial Office of England and Wales which has
60 staff including a communications office.
The relatively ad hoc creation of this governance structure from a mixture of new
and refurbished institutions raises a number of questions about both judicial
accountability and judicial independence. What, for example, are the respective
remits in terms of policy-making of the Judges’ Council and the Judicial Executive
Board? How do their roles relate to each other? Where are the rules governing their powers and membership laid down? Who determines these? What, for
example, is the process for selecting the representatives from each judicial level for
the judicial council? Are they elected or appointed? If the latter, what are the
criteria for selection and who chooses them? Clearly many questions remain about
the new judicial governance structure, but what is certain is that the overall result
of the changes will be a greater concentration of power in the hands of the senior
judiciary. This outcome is probably inevitable and may also be desirable as a
means of securing judicial independence, but it is not unproblematic both in terms
of judicial independence and accountability. These changes represent very real
structural and ideological changes within the judiciary.
The Judicial Appointments Process
Under the previous judicial selection arrangements the power of appointment had,
in practice, rested with the Lord Chancellor who made his decision after
consultation with the senior judges. For appointments to the Court of Appeal and
the House of Lords, the decision formally rested with the Prime Minister on the
advice of the Lord Chancellor but the extent to which different Prime Ministers
engaged with the process was hard to assess since the process of consultation
between the Lord Chancellor and Prime Minister was always regarded as
confidential. It was in relation to these upper rank judicial appointments that
opinion was most sharply divided over the new provisions. Many members of the
judiciary argued that it was essential to remove all executive involvement in
selecting the senior judiciary since it was at this level that the pressure to
manipulate would be greatest. Others argued that it was precisely in relation to
these appointments, where the judges were engaged in high-level decisions with
policy-making implications, that there should be some real link to the democratic
process and that the Lord Chancellor should be more than just a rubber stamp.
Initially the Government supported the latter view in relation to the Supreme
Court appointments and the Bill provided that the Supreme Court commission
would nominate 2–5 names for the Lord Chancellor to choose from, so ensuring a
degree of political input. In the end, however, the Bill was amended so that both
the Supreme Court commission and the Judicial Appointments Commission for
England and Wales were given the ultimate decision-making power, being
required to recommend one name which the Lord Chancellor could only reject in
limited circumstances. The effect was to remove the danger of improper political
interference from the system but it also removed the opportunity for democratic
involvement in the selection of public decision-makers.
One way in which the democratic deficit caused by the removal of the executive
from the appointment process might have been countered would have been to
include the legislature in the process. Currently, Parliament plays no role in
judicial appointments, though it has the ultimate responsibility for removing errant
senior judges. This power relates solely to judges of the High Court and above,
who can be dismissed by the Queen if both Houses of Parliament vote for their
removal, though this is a power which has only been exercised once.
The
proposal that judges could be called before Parliament as part of the appointments
process was considered by Parliament during the passage of the Bill and rejected.
One explanation for this rejection lies in a widely held view of the US Senate
confirmation hearings as invading the privacy of individual candidates and
undermining judicial independence. Critics of this aspect of the US judicial
appointments process have argued that the highly partisan nature of the process is
105such that the hearings can sometimes be little more than a choreographed dance in
which very little useful information is revealed. However, the decision of the
Canadian Parliament to introduce nomination hearings for their Supreme Court
judges in March 2006 as part of a reform designed to reduce party political
influence, illustrates the growing awareness outside the UK of the need to explore
new ways to enhance democratic accountability in the judicial appointments
process whilst at the same time removing political patronage. The debate in
Canada which took place before the hearings were introduced almost exactly
mirrored that which took place at the time of the passage of the Constitutional
Reform Act. The first Canadian parliamentary Supreme Court hearing was widely
regarded to have been a success and future hearings will no doubt be watched with
interest. It is possible therefore, that this is an option that may be revisited in the
UK at some future date.
The other effect of the removal of any substantive input from the elected branches
of government into the judicial appointments process was to increase the
significance of the membership of the new appointments commissions and in
particular the role of the lay members. Their function is a vital one in balancing
the interests of the legal and judicial members of the commissions and mitigating
the danger of cloning which inevitably arises when appointment is made by those
already doing the job. Since the need for greater diversity in the composition of the
judiciary was a driving force behind the decision to establish the new system, the
lay members’ ability to challenge established approaches and develop innovative
means of drawing high quality candidates from beyond the traditional judicial
backgrounds into the recruitment pool will be a key measure of the success of the
commissions. In particular, the decision that the Chair of the Judicial
Appointments Commission for England and Wales would be a layperson was an
important step in establishing the central role of the lay membership. The
appointment of the highly respected former First Civil Service Commissioner,
Baroness Usha Prashar, as the first Chair of the commission in 2006 is likely to
ensure that the new system will not be overly dominated by judicial and legal
interests.
The Supreme Court
Whereas the provisions for the reform of the post of Lord Chancellor and the
judicial appointments process involve an explicit redistribution of power between
the branches of government, those for establishing the new Supreme Court, in
theory, do not. The new court will exercise the same formal powers as the
Appellate Committee of the House of Lords and the devolution powers of the
Judicial Committee of the Privy Council, and the first Supreme Court judges will
be the existing Law Lords. On the face of it, therefore, the creation of the new
Supreme Court is the least radical aspect of the constitutional reforms. In practice,
however, the removal of the top court from the legislature and its reformation as
an autonomous institution is likely to have a significant and long-term effect on its
constitutional role. The current changes need to be understood in the light both of
the changing role of the UK judiciary discussed above and also the development of
a global community of increasingly powerful constitutional and Supreme Courts.
At a formal level, the most fundamental change to the powers of the top courts in
the UK in recent history was the passage of the European Communities Act. This
potentially dramatic revision of the principle of parliamentary sovereignty was
highly controversial at the time. But in practice its effect has been limited and its
occasional application by the courts has not shaken the constitutional foundations
as critics feared. For supporters of a traditional conception of parliamentary sovereignty, the threat lies not in the growing role of the EU but closer to home
with the increasing domination of Parliament by the executive and the knock-on
effect this has had on the role of the judiciary. During the 1980s and 1990s, the
election of Governments with large majorities in the House of Commons gave rise
to claims that the only effective opposition lay in the House of Lords and the
courts. Fears that the concentration of power within the executive might threaten
basic constitutional and political norms led members of the senior judiciary to talk
of a ‘higher law’ which would require them to strike down legislation that sought
to undermine basic principles such as the rule of law. In 1994 the then Lord Chief
Justice, Lord Woolf made clear that if, for example, Parliament ‘did the unthinkable’
and removed the courts power of judicial review he would consider it necessary to:
‘mak[e] clear that ultimately there are even limits on the supremacy of Parliament
which it is the courts’ inalienable responsibility to identify and uphold.’
However,
having dipped a toe in these dangerous waters, the senior judiciary then drew back
from the brink. Lord Steyn articulated a widely-held view in his statement that:
The relationship between the judiciary and the legislature is simple and
straightforward. Parliament asserts sovereign legislative power. The courts
acknowledge the sovereignty of Parliament. And in countless decisions the courts
have declared the unqualified supremacy of Parliament. There are no exceptions...the
judiciary unreservedly respects the will of Parliament as expressed in statutes.
But despite such assertions, it was never likely that the genie could be put back in
the bottle and in the intervening years the underlying political conditions which
gave rise to the debate on the proper limits of judicial power have not changed.
Moreover, the passing of the Human Rights Act has significantly increased the
likelihood that courts will be called upon to consider whether an Act of Parliament
conflicts with a ‘higher constitutional law’ giving the judges the role of applying
principles of constitutionality ‘little different from those which exist in countries
where the power of the legislature is expressly limited by a constitutional
document’.
108
In 2004 the question of how far courts might go when faced with such
a challenge to fundamental constitutional principles came close to being tested when
the Government proposed legislation which would have removed the courts’
jurisdiction in certain asylum and immigration appeal cases. Senior judges and
academics suggested for the first time that the courts might be entitled to ignore an
Act of Parliament if the legislation was passed.
As Lord Woolf asked: ‘What
areas of government decision-making would be next to be removed from the
scrutiny of the courts? What is the use of courts if you cannot access them?’
109
In
response to such opposition, the Bill was amended. But the underlying question of
the limits to parliamentary sovereignty was revisited in 2005 when the Appellate
Committee of the House of Lords was asked to rule on whether the Hunting Act
2004 passed under the 1949 Parliament Act was a valid statute. While the Court
upheld the legality of the Hunting Act, it concluded that there were indeed limits
to the law-making power of Parliament:
In exceptional circumstances involving an attempt to abolish judicial review or the
ordinary role of the courts, the Appellate Committee of the House of Lords or a
new Supreme Court may have to consider whether this is a constitutional
fundamental which even a sovereign Parliament acting at the behest of a compliant
House of Commons cannot abolish.
111
This important judgment should be seen as the latest step in the process of
refining the notion of parliamentary sovereignty.
112
What is clear is that the
relationship between the courts and Parliament is in a state of transition between
parliamentary sovereignty and constitutional supremacy.
To properly understand the nature of this evolution, it is necessary to place the
emergence of the Supreme Court and the determination of its powers in the context of
the wider trend of increasing power amongst Supreme Courts and Constitutional
Courts around the world. What we are seeing is the emergence of a global community
of senior judges.
113
They are drawn from countries with different court structures and
constitutional arrangements; some have the power to strike down legislation and others
do not. But increasingly they see themselves as engaged in a global conversation about
the interpretation of basic human rights and the relationship between elected and
unelected branches of power. They read each others’ judgments and speeches; they
meet at conferences and share thoughts on their roles and functions. The UK
Supreme Court will undoubtedly be a leading and respected member of this
community of top jurists which is likely to have the effect of enhancing the new
Supreme Court Justices’ views of their role. Exactly how the new Supreme Court will
develop is still uncertain. What is clear is that the current trend around the world is for
increasing power and authority to be vested in Supreme Courts and the creation of an
autonomous Supreme Court in the UK, housed in its own building with an
independent budget and staff and a distinct identity is likely to follow that trend.
The Future
A central question which arises in assessing the implications of the Constitutional
Reform Act concerns the nature and degree of conflict between the judiciary and the
other branches of government which we can expect to see in the years ahead. 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.
The provisions of the Constitutional Reform Act have an important role to play in
establishing clearer boundaries between the branches of government and taking
the negotiations, tensions and conflicts between them from the private corridors of
power into the public arena. The governance structure of the judiciary, the role of
the Supreme Court and the judicial appointments process are areas of vital
constitutional importance which need ongoing scrutiny and debate. The effect of
the reconstruction of the judiciary as institutionally separate from but functionally
interconnected with the other branches of government will be to move the
judiciary closer to being a distinct third branch of government.
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