APPENDIX 4: PAPER BY PROFESSOR ANTHONY BRADLEY: THE
NEW CONSTITUTIONAL RELATIONSHIP BETWEEN THE JUDICIARY,
GOVERNMENT AND PARLIAMENT; AND FURTHER PAPER:
CHANGES IN THE MACHINERY OF GOVERNMENT AFFECTING THE
DEPARTMENT FOR CONSTITUTIONAL AFFAIRS AND THE HOME
OFFICE
Summary
The paper draws attention to aspects of the present constitutional relationship
between judiciary, Government and Parliament. Section A (paras 1–9) explains
the need for an independent judiciary in a constitution founded on democracy and
the rule of law; in particular, the public law jurisdiction of the courts is likely to
bring them into controversy with the Government. Section B (paras 10–11)
outlines the main changes made by the Constitutional Reform Act 2005. Section
C (paras 12–20) discusses the effect of these changes on the courts and considers
whether judicial independence is inconsistent with some forms of accountability.
Section D (paras 21–25) outlines the main features of the Human Rights Act 1998
and Section E (paras 26–33) examines whether the Act has affected the
constitutional balance between Parliament, executive and the courts. It is
concluded that the Act significantly extended the jurisdiction of the courts by
enabling the higher courts to review primary legislation for compatibility with the
European Convention on Human Rights, though the sole relief that may be
granted is a declaration of incompatibility. Section F (paras 34–58) examines the
extent to which the law permits excessive or abusive criticism of the judiciary by
the media, by parliamentarians and by Ministers, and draws attention to recent
criticism of judges by Ministers. It is proposed (para 58) that the Ministerial Code
should contain a new chapter setting out the conventions in relation to the
judiciary that Ministers must observe.
A The Constitutional Role of the Judiciary
1. The context for this inquiry by the Committee on the Constitution is the
changing relationship between judiciary, Government and Parliament following
the Constitutional Reform Act 2005 (hereafter, “the CRA” or “the 2005 Act”).
The primary aim of that Act was to change the law relating to the constitutional
position of the judiciary. For this reason, this paper focuses on the relationship
between the judiciary, on the one hand, and Government and Parliament, on the
other. It does not deal with the Government/Parliament relationship. While the
paper is not a comprehensive review of the subject, it does examine the impact of
the Human Rights Act 1998 (hereafter, “the HRA”), since that Act features
prominently in current debate on the role of the judiciary.
2. The interaction of judiciary, executive and legislature is a fundamental
aspect of any constitution founded on democracy and the rule of law. Unless there
is an independent judiciary, able to interpret and apply laws in a manner based on
legal rules and principles rather than on political intentions or calculations, the
concept of law itself is brought into question. Article 6/1 ECHR recognises the
right of every person “in the determination of his civil rights and obligations or of
any criminal charge against him” to “a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law”. In 2002, a
high-level international study of challenges facing the judiciary in the 21
st
Century led to the issue of The Bangalore Principles of Judicial Conduct.
114
The preamble to
that document emphasised that the implementation of all rights, including human
rights, “ultimately depends on the proper administration of justice”; and that a
“competent, independent and impartial judiciary” is essential if the courts “are to
fulfil their role in upholding constitutionalism and the rule of law”.
3. Every democratic constitution distinguishes, in whatever terms, between
the tasks of the legislature, executive and judiciary and contains a statement,
however brief, of the distinctive role of the judiciary. Even in countries that have a
written constitution based on the formal separation of powers, the significance of
judicial independence cannot be discovered from the written text alone. Like other
constitutional principles, judicial independence is heavily influenced by a country’s
history and culture. Although aspects of the principle have a long pedigree in this
country (for instance, the Act of Settlement 1700 declared that judges in England
hold office during good behaviour, not at pleasure of the Crown), the position of
the judiciary has evolved over the years and will continue to do so in the light of
changing social and political factors. By contrast with that evolutionary process,
the CRA in 2005 made extensive changes in the institutional framework. At the
same time, the CRA declared that
(i) despite these structural changes, the existing constitutional principle of the rule
of law is not adversely affected (section 1) and
(ii) the executive must continue to uphold the independence of the judiciary
(section 3). However, the Act did not define the content of the rule of law. Nor
did it summarise the notion of judicial independence, other than to outlaw
attempts by Ministers to influence particular judicial decisions “through any
special access to the judiciary” (section 3(5)).
4. All legislation, and in particular the CRA, has to be read against the
inherited constitutional background if it is to be fully understood. In 1995, the
relationship between Parliament, executive and judiciary was summarised by
Lord Mustill in these terms:
“It is a feature of the peculiarly British conception of the separation of
powers that Parliament, the executive and the courts have each their
distinct and largely exclusive domain. Parliament has a legally
unchallengeable right to make whatever laws it thinks fit. The executive
carries on the administration of the country in accordance with the
powers conferred on it by law. The courts interpret the laws, and see
that they are obeyed”.
115 More recently, Lord Bingham has said:
“Whatever overlap there may be under constitutions on the Westminster
model between the exercise of executive and legislative powers, the
separation between the exercise of judicial powers on the one hand and
legislative and executive powers on the other is total or effectively so.”
5. But judicial independence is only part of our constitutional structure. At the
heart of this structure is the enactment of legislation by Parliament (acting almost
116invariably on the proposal of the executive). That structure must also include a
place for the common law, since in deciding cases the courts frequently apply rules
and principles that have not been enacted by Parliament. While rules of the
common law may be abrogated or amended by Parliament, the traditions of the
common law largely determine the approach taken by the courts in deciding new
questions of law that arise, and in interpreting and applying laws made by
Parliament.
117 In recent years, the courts have stressed the extent to which the
common law influences the task of applying new legislation, particularly when
fundamental rights and liberties are affected. Lord Browne-Wilkinson said in
1997,
“…Parliament does not legislate in a vacuum: statutes are drafted on the
basis that the ordinary rules and principles of the common law will apply
to the express statutory provisions. … As a result, Parliament is
presumed not to have intended to change the common law unless it has
clearly indicated such intention either expressly or by necessary
implication.”
118 This principle has been applied in particular to what have sometimes been called
‘fundamental constitutional rights’.
119 The background of constitutional democracy against which Parliament legislates includes ‘the principle of legality’.Lord Hoffmann has said that this principle “means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by
general or ambiguous words”. 120 6. The duties of the judiciary include applying and enforcing the laws, not merely against private individuals and corporations but if necessary against the executive itself. This duty is a key aspect of the constitutional position of the courts and the executive. As Nolan LJ said in 1992, when the Home Secretary was held to have acted in contempt of court in disregarding a judge’s order to bring
back to the United Kingdom a Zairean asylum-seeker, “The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful
province, and that the executive will respect all decisions of the courts as to what its lawful province is”.
121 This formulation properly stresses the element of respect that is due from an all-powerful executive to what has sometimes been called ‘the least dangerous branch’, the judiciary. The statement must of course be read subject to the legislative authority of Parliament. Often legislation will have a decisive effect in determining the limits of the ‘lawful province’ of the executive, but this is not necessarily the case in a dispute involving the grounds of judicial review, which have never been the subject of comprehensive legislation by Parliament.
7. Many aspects of the judicial review of administrative action may be traced
back for several centuries, but this jurisdiction of the courts (derived from the
common law) is now remarkably prominent. In 2002, Lord Steyn wrote: “Public law has been transformed over the last 30 years. The claim that
the courts stand between the executive and the citizen, and control all
abuse of executive power, has been reinvigorated and become a
foundation of our modern democracy”.
122
8. On 31 October 2006, a senior judge, Maurice Kay LJ, gave evidence to the
House of Commons’ Constitutional Affairs and Home Affairs Committees. His
opening summary included the following points:
(1) “one of the hallmarks of a mature democracy is that political power
must be exercised in accordance with the law” (which he took to be
the meaning of ‘the rule of law’ as used in the CRA 2005, s 1) and
“in any mature democracy, the judiciary has an important role in
securing compliance by government and other public authorities with
the law”;
(2) “long before the Human Rights Act, the courts developed and
expounded the scope of judicial review …. They did so on a case-bycase
basis,the centrepiece of the modern jurisprudence being the GCHQ case in 1985, which
defined both the principles of modern
judicial review and its limits.It madeclear …that there were considered to be certain judicial no-go areas, including matters of national security and foreign relations. Indeed, that judicial selfrestraint still exists
at common law…”;
(3) “the Human Rights Act requires [the speaker’s emphasis] judges to
approach a great deal of public law litigation in new ways …” and “all
this is leading the courts into new territory” (instanced by the case of the
Belmarsh detainees, A v Secretary of State)
123
; and
(4) “in this … the courts are doing no more and no less than carrying out
their constitutional function of interpreting and applying the law—in this
case, the law enacted by Parliament”.
Finally, and more controversially, Maurice Kay LJ observed that in his view, which
differed from what the Lord Chancellor (Lord Falconer) had recently said, the
task of making decisions under the HRA “is a matter of judgment according to the
law, not discretion”. He further remarked that cases under the HRA “are more
illustrative of self-restraint on the part of the judiciary than the sort of militant
activism that is sometimes caricatured in the media”.
124
9. It will be evident, even apart from the HRA, that the public law jurisdiction
of the courts requires them to review the legality of executive decisions. The
results of these cases are often unwelcome to ministers and administrators, and
may be particularly controversial in the media or in political terms. Successive
governments have recognised the far-reaching implications of judicial review, at
least since the pamphlet ‘The Judge over Your Shoulder’ was issued to civil
servants in 1987. The need for judicial independence in this area is obvious, as
also in the area of criminal justice. Section F(3) of this paper will draw attention to
recent instances in which Ministers have expressed their irritation at judicial
decisions that go against their policies. B The Constitutional Reform Act 2005
10. The principal structural changes made by the CRA may be very briefly
summarised.
125
They have provided for greater formal separation between
government and judiciary (and, as regards the new Supreme Court, between
Parliament and judiciary) and for a new statutory interface in England and Wales
between government, in the person of the Lord Chancellor, and the judiciary,
represented by the Lord Chief Justice.
(A) Contrary to the original intention of the Government, the Lord Chancellor
remains in being, but he has lost his status as head of the judiciary in England and
Wales and may not now sit as a judge. This greater separation between executive
and judiciary made it essential for many functions of the Lord Chancellor to be reassigned,
some being transferred to the Lord Chief Justice,others being exercisable jointly by the Lord Chancellor
and the Lord Chief Justice.The Lord Chancellor retains many important executive functions relating
to the judiciary (including funding the system of justice,making judicial appointments in accordance
with new statutory rules, and approving procedural rules for the courts).Many of these functions are ring-fenced,to ensure that they are not transferred to another Minister by the Prime Minister without further
primary legislation.
126 Under the CRA, the Lord Chancellor is not required to have had a legal career, nor to be a member of the House of Lords.
(B) The Lord Chief Justice is now President of the Courts and Head of the Judiciary of England and Wales. He is responsible:
(i) for representing the views of the judiciary to Parliament, to the Lord Chancellor and to other Ministers;
(ii) for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary within resources made available by the Lord Chancellor; and
(iii) for maintaining appropriate arrangements for the deployment of the judiciary and the allocation of work within courts.
127 These broad duties are accompanied by many specific responsibilities, some of which are exercisable jointly with the Lord Chancellor, or with the concurrence of the Lord Chancellor.
(C) There will be a new Supreme Court for the United Kingdom, to take over the appellate functions now performed by the Appellate Committees of the House of Lords, together with the power to decide devolution issues transferred from the Judicial Committee of the Privy Council. This separation between the ‘Law Lords’ and the House does not mean any change in the extent of appellate jurisdiction.New provision has been made for funding and administering the Supreme Court. The CRA sets out in detail the procedure for the selection and appointment of judges to the Supreme Court, in place of the present practice by which the Prime Minister nominates to the Queen persons for appointment as Lords of Appeal in
Ordinary.
(D) Judicial appointments in general are entrusted to the Judicial Appointments Commission, and are no longer a matter primarily for decision by Ministers. Within the framework of the CRA, it will be for the Commission to give substance to the statutory rule that selection must be solely on merit (section 63(2)); and the Commission must have regard to the need to encourage diversity in the range of persons available for selection (section 64(1))
(E) A new post of Judicial Appointments and Conduct Ombudsman is created to deal with two rather different classes of complaint: (a) in relation to the observance of proper procedure in judicial appointments, and (b) in respect of the conduct of judges.
(F) While the historic tenure of senior judges derived from the Act of
Settlement continues (subject to a new power to suspend a judge while
parliamentary proceedings for removal are pending: section 108(6)), the removal
of other judges by the Lord Chancellor is now subject to statutory procedures; in
general, disciplinary powers in respect of the judiciary (including power to
suspend) may be exercised by the Lord Chief Justice, acting with the agreement of
the Lord Chancellor.
11. The cumulative effect of the changes made by the CRA is very extensive.
Alongside the statutory provisions has to be read a document known as the
Concordat, entitled Constitutional Reform: the Lord Chancellor’s judiciary-related
functions, prepared in January 2004 while the Constitutional Reform Bill was
before the House of Lords, at a time when the Government was proposing to
abolish the office of Lord Chancellor and it was not known what the attitude of the
judiciary would be to the proposals. The Concordat represented an agreement
between the Lord Chancellor and the Lord Chief Justice (then Lord Woolf)
regarding the future exercise of the Lord Chancellor’s judiciary-related functions,
and as such it facilitated the passage of the Constitutional Reform Bill through
Parliament.
C. In what ways has the CRA affected the constitutional relationship
between Parliament, the Executive and the Judiciary?
12. The structural changes in law made by the CRA will in time be
supplemented by new working relationships, understandings and conventions, the
foundations for which are already being laid. The present inquiry by the
Committee will assist in that process. The removal of the Lord Chancellor’s
judicial status and the presidential functions of the Lord Chief Justice necessarily
make for greater separation between executive and judiciary. So too, the new
Supreme Court will make for a clear separation between the final appeal court and
Parliament. But these changes may be more important in a formal, analytical
perspective than in practical terms. Indeed, if the essentials of judicial
independence were not adversely affected by the various roles of the Lord
Chancellor, his removal from the judiciary will not affect judicial decisions.
Similarly, if the independence of the Law Lords has not been at risk because of
their status at Westminster, their decision-making will be unaffected by the change
of location. Nonetheless, these structural changes are important in constitutional
terms, and will make the distinct status of the judiciary more visible in the media
and in the public eye.
13. Reference has already been made to the Concordat between the Lord
Chancellor and the Lord Chief Justice that was drawn up in January 2004. This
document has an uncertain constitutional status. Many of its provisions have been
superseded by what eventually appeared in the CRA 2005. If it contains
continuing principles of value that should govern relations between the judiciary
and the Government, the document should be revised to take account of the provisions of the Act, and its status clarified. Rather than it disappearing from
sight, a regular review and updating of the Concordat in the light of experience
could be of value.
14. The new procedures for appointing judges were welcomed on all sides
when the CRA was in Parliament. Ministers have given up a significant power that
in many countries is still retained by the executive, but the full effect of the
changes will not be felt immediately. If judges in recent years have been selected
primarily on the basis of merit, then the new powers of the Judicial Appointments
Commission will not directly affect the kind of appointments made. But it remains
to be seen how a test of merit will affect the most senior appointments, where
candidates will need a range of skills that include the capacity for handling the
administrative tasks that under the CRA will be borne by the senior judiciary. At a
lower level in the hierarchy, new career patterns in the legal profession may emerge
once the Commission’s policies for increasing the diversity of applicants for
appointments begin to bear fruit.
15. While judicial decision-making may be unaffected by these structural changes, significant new burdens are placed on the Lord Chief Justice. He or she will have to bear the brunt of representing the judiciary vis-à-vis Parliament, the Government, the media and the public at large. Other senior judges will acquire
executive-type responsibilities. The Judges’ Council was re-formed in 2002 and it may have an increasingly important role as a forum accessible to the Lord Chief Justice for enabling opinions broadly representative of the whole judiciary to be formulated. Moreover, while the focus in the re-organisation has been on the role
of the Lord Chief Justice, the President and Deputy President of the new Supreme Court will have their own statutory functions that may bring them into public prominence in matters affecting the highest level of appeal.
16. The main changes made under the CRA took effect only in April 2006 and it is too soon to know how robust the structure based on the separated functions of the Lord Chancellor and the Lord Chief Justice will be. Difficult questions are likely to arise in respect of funding and resources; maintaining a public
understanding of judicial independence; and determining the proper limits and forms of judicial accountability, in particular to the executive and to Parliament.The former Home Secretary, Mr Charles Clarke MP, recently called for
“a mature discussion between parliamentarians and the most senior
lawyers in this country about how the criminal justice system deals with
the new pressures arising from the possibility of suicide bomb terrorist
attacks. One of the consequences of the Human Rights Act is that our
most senior judiciary are taking decisions of deep concern to the security
of our society, but without any responsibility for that security. One of
my most depressing experiences as Home Secretary was the outright
refusal of the Law Lords to discuss the principles behind these matters
in any forum at all, public or private, formal or informal. To this day I
have never met a Law Lord. That attitude has to change.”
129 . 17. An indication of the possible pitfalls that open up if the judiciary are to be more closely engaged in the process of executive policy-making, as Mr Clarke would wish, was given by the experience of senior judges when they were consulted about the Government’s proposal in the forthcoming Asylum
128 and Immigration (Treatment of Claimants etc.) Bill 2004 to substitute review by the Asylum and Immigration Tribunal for the right to judicial review of immigration and asylum decisions. When the judges replied to the Home Office that the proposed exclusion would not work for reasons that they set
out, the response of the Government was to write in additional provisions that sought to fire-proof the exclusion clause against any restrictive judicial interpretation. There may be some matters directly affecting the working of the courts upon which the Lord Chief Justice and senior judges administering the system of justice may necessarily need to be consulted. But it should be the exception rather than the rule for new government policies to be put out to consultation with the judges. If expert advice about the likely effects of
legislation is needed by government, there are many qualified people to supply it who are not judges.
18. So far as judicial accountability is concerned, it must be emphasised that judicial independence requires that judges are not directly accountable either to the executive or to Parliament for their decisions. The primary form of accountability comes from four aspects of judicial process: (a) most court hearings take place in public, (b) judicial proceedings are usually adversarial; (c) judicial decisions must deal with the submissions of the parties; and (d) most decisions may be challenged by appeal to a higher court. Even in the case of the Supreme Court, further proceedings are possible on matters of EU law or ECHR law. As an
agency of state power, the judiciary as a body are, or ought to be, accountable forthe general manner in which the court system serves the public at large. But methods of ensuring this form of accountability must not be such as to prejudicejudicial independence.
19. In particular, these considerations must restrict the ability of select committees at Westminster to summon judges to give evidence and question the mabout judicial decisions. There are of course matters on which dialogue between judgesjudges and parliamentarians could be useful.
130 When the chief justice of any partof the United Kingdom exercises his new right to lay written representations before the relevant parliament (CRA 2005, s 5), this should lead to a hearing
before a committee of that parliament: it may be assumed that the chief justice would welcome the opportunity of making his concerns about the judiciary or the administration of justice better known.
20 A separate paper would be needed to deal with these questions in respect of the system of criminal justice. Two brief points may be made. (a) It ought not to be stated or implied by Ministers who seek to ‘re-balance the system of criminal justice’ that the judges are not acting in the interests of the law-abiding
public, or that appeal judges allow appeals to succeed on technicalities. (b) In responding to public concern about crime, governments too frequently have recourse to legislation that removes judicial discretion in sentencing and substitutes an automatic minimum sentence when specified conditions exist. Currently it appears to be realised that judicial discretion in sentencing may indeed be a way of avoiding anomalous results that attract headlines in the press.Frequent and excessive encroachment by Parliament on the sentencing process(as seen in the Criminal Justice Act 2003) is likely to have undesirable sideeffects.
131 D Human Rights Act 1998
21. The main changes made by the HRA are well-known. With the object of
‘bringing rights home’ to Britain, all courts and tribunals must when relevant
take account of the Strasbourg case-law (s 2). All legislation in the United
Kingdom must where it is ‘possible’ be interpreted consistently with the
Convention rights (s 3). Where this is not possible in the case of primary
legislation, the higher courts may declare that the legislative provision is
incompatible with the Convention (s 4). All public authorities, including the
courts but not Parliament, are under a duty to exercise their functions
consistently with Convention rights, except where this is excluded by mandatory
provision in primary legislation (s 6). The courts may provide appropriate
remedies in proceedings in which issues as to Convention rights are raised (ss 7–
9), including the award of compensation where this would be consistent with the
approach of the Strasbourg court. When a declaration of incompatibility has
been issued by a higher court, the incompatibility may be removed by a ‘remedial
order’, subject to heightened parliamentary scrutiny (s 10). The Minister in
charge of a Government bill in either House must before Second Reading state
either that the bill is compatible with the Convention rights or that, while this is
not the case, the Government wishes the House to proceed with the bill (s 19).
To this framework established by the HRA must be added the Joint Committee
on Human Rights at Westminster, which maintains a continuing scrutiny of
Government bills, ministerial statements and proposed remedial orders, and
from time to time reviews the interpretation of the Act by the courts.
22. The impact of the Act and its application by the courts are now the subject
of much examination in books and articles, discussion in the media, and reviews
by government departments and Westminster committees. Earlier this year, there
was public controversy over the HRA and its effects: three high-profile cases were
considered by some to prevent the Government from ensuring public safety, and
the Prime Minister asked the Lord Chancellor and the Home Secretary to conduct
reviews of the Act’s impact. The review by the Department for Constitutional
Affairs on implementation of the HRA was published in July 2006; at the same
time the Home Office published papers dealing with the criminal justice system
and the Immigration and Nationality Directorate.
132
23. In November 2006, the Joint Committee on Human Rights published a
report on the DCA and Home Office reviews.
133
The Joint Committee’s summary
of its report is annexed to the present paper (see annex 1). The Committee
welcomed the DCA review, which “in our view makes a very fair and balanced
contribution to this important debate” (para 43). The Committee noted the
conclusion in the review “that the HRA has not significantly altered the
constitutional balance between Parliament, the Executive and the Judiciary” but
drew attention to a “significant omission” from the report, namely any substantial
consideration of the impact of the Act on the relationship between the executive
and Parliament (para 60).
24. Since the departmental reviews and the Joint Committee’s inquiry were
largely prompted by allegations in the media about the damaging effects of the
HRA on national security, it is notable that the Government and the Joint
Committee agree with the view that the HRA “has not significantly altered the
constitutional balance between Parliament, the Executive and the Judiciary”.
25. While I readily agree that the constitutional equilibrium has not been put at
serious risk by the HRA, I find it difficult to accept that the HRA has not changed
the constitutional relationship between Parliament, executive and judiciary.
Constitutions evolve, and the United Kingdom constitution is inherently likely to
change, both because of its reliance on conventions, and because Parliament’s
authority extends to constitutional matters.
134
Both the HRA and the CRA have, in
various ways, affected the relationship between Parliament, the executive and the
Judiciary, as indeed they were intended to do. The range of changes will be
outlined in the next section of this paper.
E. In what ways has the HRA affected the constitutional balance between
Parliament, the Executive and the Judiciary?
26. In its White Paper in 1997, outlining the scheme of the Human Rights Bill,
the Government stated that it had
“reached the conclusion that courts should not have power to set aside
primary legislation, past or future, on the ground of incompatibility with
the Convention. This conclusion arises from the importance which the
government attaches to Parliamentary sovereignty.”
135
With this limitation, the scheme in the HRA went as far as it could to enabling the
courts to protect Convention rights except where they are prevented from doing so
by primary legislation. There have been innumerable statements by judges and
Ministers that the HRA keeps in being the fundamental rule of parliamentary
sovereignty. Even where the courts declare a provision in primary legislation to be
incompatible with Convention rights, as they did in the case of the Belmarsh
prison detainees,
136
that declaration “does not affect the validity, continuing
operation or enforcement of the provision in respect of which it is given” (HRA, s
4(6)(a)). Nor is there an enforceable legal obligation derived from the HRA to
require either Parliament or the Government to alter national law so that it
complies with the ECHR. (Such an obligation does however exist at international
law by virtue of the ECHR; and the possibility of a remedial order being made
under section 10 HRA must add to the political pressure on the Government that
may arise to ensure that national law complies with the ECHR). Moreover, section
19 HRA expressly envisages that Ministers may ask Parliament to enact legislation
that is inconsistent with the Convention.
27. Nevertheless, a statement that the sovereignty of Parliament is not affected
tells only part of the story, since the HRA extended the jurisdiction of the courts to
deal with matters that previously were not arguable before a judge. The duty under
the HRA to interpret all legislation where it is possible to do so consistently with
the Convention is a much stronger duty than that which previously stemmed from
the principle that certain common law rights could not be taken away except by
express enactment.
137 The new interpretative duty, together with the possibility of
a declaration of incompatibility if an interpretative outcome is not possible, takes the courts into the examination of questions that, apart from the HRA, would have
been regarded as political questions.
138
In respect of delegated legislation, the HRA
empowers the courts to quash delegated legislation on Convention grounds; this
power is similar to, but goes beyond, the long-established power of the courts to
quash delegated legislation that is ultra vires.
28. Moreover, for a superior court to decide to make a declaration of
incompatibility, the court must first have reached a view on the substance of a
statute legislation that the courts could not have been asked to make apart from
the HRA. The fact that the HRA does not give power to the courts to quash
primary legislation on Convention grounds is a limitation on the remedy that the
courts provide, not on the substance of what may be argued in court and if
necessary decided.
29. This is not to suggest that the new powers entrusted to the courts by the
HRA are unsuitable for judicial decision-making. A power to review primary
legislation on Convention grounds may indeed be new in the United Kingdom,
but such a power is similar to the position in many countries where a court can go
further and may set aside legislation that conflicts with the constitution. Under the
HRA, a claimant that obtains a declaration of incompatibility will have secured a
considerable victory on the substance of the case. He or she will be well placed to
go to Strasbourg if the offending legislation continues in being. Indeed, in practical
terms the statutory provision can probably no longer be relied on by the
Government, unless either the national law is changed (as happened after the
Belmarsh prison case) or the Government is prepared to derogate from the
Convention obligation in question.
30. The implications of entrusting the judiciary with greater powers of
protecting Convention rights were probably not understood by the public at large
when the HRA was enacted, despite the clarity with which the White Paper in
1997 explained the scheme. Given the intentions behind the HRA, and the fact
that the jurisdiction of the courts was thereby enlarged to include matters akin to
the constitutional enforcement of fundamental rights, it is not surprising that
appellate judges have given much time to questions arising under the Act. But I do
not consider that the record of these decisions establish a case for either reconsidering
the scheme of the Act, or supporting allegations that the judges are usurping the authority of the executive or Parliament. In his judgment in the Belmarsh case, Lord Bingham set out the great weight that should
be given to decisions of Ministers and of Parliament in matters that involve a pre-eminently political
judgment, and said: “Conversely, the greater the legal content of any issue, the greater the
potential role of the court, because under our constitution and subject to
the sovereign power of Parliament it is the function of the courts and not
of political bodies to resolve legal questions”.
139 He drew attention to the Convention regime for the international protection of
human rights, which “requires national authorities, including national courts, to
exercise their authority to afford effective protection”.
140 On the proportionality of the scheme for detaining foreigners suspected of terrorist involvement indefinitely without trial, Lord Bingham did not accept a submission by the Attorney-General that distinguished between democratic institutions and the courts, saying:
“The Attorney-General is fully entitled to insist on the proper limits of
judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic—
141
[particularly when the court was
performing functions assigned to it under the HRA] … The 1998 Act
gives the courts a very specific, wholly democratic mandate. As
Professor Jowell has put it: ‘The courts are charged by Parliament with
delineating the boundaries of a rights-based democracy’”.
142
31. The review of case-law by the Department for Constitutional Affairs in July
2006 concluded that decisions of the courts had had no significant impact on
criminal law or on the Government’s ability to fight crime. The HRA had had an
impact on the Government’s counter-terrorism legislation, but the main difficulties
had arisen from decisions of the Strasbourg Court. The Act had had a significant
but beneficial effect on the development of policy by central Government. But it had
been widely misunderstood by the public and sometimes misapplied, and some
‘damaging myths about human rights’ had taken root. The Government remained
fully committed to the ECHR and HRA, but would take steps to give new guidance
to departments on human rights, would take a proactive approach to human rights
litigation, and would make efforts to inform the public about the benefits of the
HRA and to debunk myths that had grown up around Convention rights.
32. This appraisal of the HRA has not, however, always been reflected in the
reaction of some Ministers to decisions by the courts. A later section will examine
some difficulties that have arisen from the response of Ministers to judicial
decisions.
33. The question discussed in this section has been: ‘In what ways has the HRA
affected the constitutional balance between Parliament, the executive and the
Judiciary?’ In summary, my answer is that, so far as the protection of rights
guaranteed by the ECHR is concerned, the HRA has vested new powers in the
courts to determine the limits of those rights and to decide whether those rights
have been respected by public authorities (including the executive) and whether
legislation by Parliament (whenever enacted) is compatible with those rights. The
HRA has created a new form of judicial review of legislation, and new grounds for
the review of executive decisions, thus enabling judicial decisions to be made on
human rights claims. However, when primary legislation is concerned, ultimate
legislative authority remains with Parliament, acting on the proposal of the
executive. This new form of protection for human rights is exactly that envisaged
by the framers of the HRA. The effects of the Act have often been misunderstood
both in some political quarters, in the media, and by the public at large. Some
recent criticisms of the judiciary may have come about because of a failure to
understand the constitutional implications of the HRA.
F. Criticism of the Judiciary in the Media, in Parliament and by the
Government
34. As has already been seen, the functions of the judiciary are different in both
substance and form from those of the executive and legislature; and judicial
143independence is to be contrasted with the democratic accountability of legislature
and executive. But does their independence mean that the judges are not
‘accountable’ for their work, whether to Parliament, the executive or to the public?
Is judicial independence incompatible with any form of criticism? The next
sections examine the extent to which the position of the judiciary is protected in
law and constitutional practice.
(1) Should the media be under any special requirement to respect the authority
of the judiciary?
35. At one time, the common law on contempt of court enabled the courts,
albeit acting as judges in their own cause, to impose penal sanctions should a
newspaper or journal exceed the limits of permissible criticism of the judiciary.
The law of contempt also applied to publications that might prejudice the holding
of a fair trial—for example, a newspaper publishing details of an accused person’s
previous convictions, casting doubts on the veracity of witnesses, or urging that
severe penalties should be imposed on the accused. The obligation of the press not
to prejudice the holding of a fair trial is reinforced by Article 6/1, ECHR.
36. The need for some limitation on freedom of the press as it affects the
judiciary is recognised by Article 10/2 ECHR, which permits freedom of
expression to be restricted by law where this is necessary in a democratic society
for (among other things) “the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.” The common law on contempt of
court was modified by the Contempt of Court Act 1981, in response to the
decision of the European Court of Human Rights in the Sunday Times case.
In
that case, a majority of the Court held that a ban imposed by the English courts on
publishing material relating to the thalidomide disaster (because of a pending civil
action against the manufacturers) was not necessary for maintaining the authority
and impartiality of the judiciary.
37. Given the changes in the law made in 1981, and a more permissive attitude
to forthright discussion of current issues, the law on contempt of court has
virtually ceased to be a restraint on the severity of published comment on judges’
decisions. Certainly, an untrue press report that a judge had taken a bribe before
reaching his decision could give rise to an action in defamation; and press
disclosure of confidential information that in the interests of justice must be kept
secret could give rise to liability for contempt of court and possibly to an action for
breach of confidence by the person whose confidence had been broken. But the
situation would have to be exceptional for even an abusive and scurrilous critique
of the judiciary to be held to be in contempt of court.
38. There is a continuing risk of sensational and one-sided reporting in sections
of the press. Responses from litigants or other interested parties may attempt to set
the record straight. But when a court decision has been given sensational
treatment of this kind, it will not generally be possible for the judge to reply.
Indeed, the judge’s decision with reasons will usually have been given in open
court. Even if the judge should wish to correct any misunderstanding of the
decision, the judgment itself should have emphasised the factors that explain an
unexpected or controversial outcome. If the judge at first instance gets it wrong,
the mistake can be corrected by means of an appeal. If no appeal is brought, and a
putative mistake of law remains uncorrected, legal journals may comment on the
error. In general, the hope must be that good reporting of decided cases will in
time come to prevail over selective or biased reporting.
39. It may be that the new presidential responsibilities of the Lord Chief Justice
will, in the interests of greater public understanding, enable a statement to be
issued when damaging mistakes have been made in press reports of a judgment.
The Judges’ Council may also have a role to play. But such action will not in itself
remedy persistent misreporting that intentionally presents a judge or judges in a
bad light. The unavoidable conclusion may be that this is an aspect of press
freedom to which judges, along with other public figures, must become
accustomed.
(2) What limits apply or should apply to criticism of the judiciary in
Parliament?
40. Article 9 of the Bill of Rights provides the fundamental building-block in
the relationship between the courts and Parliament:
“the freedom of speech and debate or proceedings in Parliament ought
not to be impeached or questioned in any court of place out of
Parliament”.
Accordingly, no court could penalise or impose liability for statements made in
Parliament that judges in general were corrupt, that a judge had committed sexual
offences with young people
147
or that an accused person facing trial was manifestly
guilty and should spend the rest of his life in prison.
41. Nevertheless, Article 9 does not prevent the two Houses from exercising
control over what their members say in Parliament. An important example of such
control for present purposes is the sub judice rule, which bars members from
referring to civil or criminal cases in which proceedings are active in United
Kingdom courts. The rule has developed for three main reasons:
(a) to avoid a risk of prejudicing court proceedings in individual cases;
(b) the principle of comity between the courts and Parliament; and
(c) the need to demonstrate that the judiciary operates independently of political
pressures.
The Joint Committee on Parliamentary Privilege in 1999 examined the need for
the sub judice rule, and concluded:
“[It] is not only a question of prejudicing a fair trial. Parliament is in a
particularly authoritative position and its proceedings attract much
publicity. The proper relationship between Parliament and the courts
requires that the courts should be left to get on with their work. No
matter how great the pressure at times from interest groups or
constituents, Parliament should not permit itself to appear as an
alternative forum for canvassing the rights and wrongs of issues being
considered by the judicial arm of the state on evidence yet to be
presented and tested.”
148
42. The report of the Joint Committee caused both Houses to look again at the
sub judice rule. Resolutions embodying a revised form of the rule were adopted in
the Lords on 11 May 2000, and on 15 November 2001 by the Commons. The
rule, which does not apply to debates on primary or delegated legislation, is
subject to the Speaker’s discretion and provides for certain exceptions, in
particular when a ministerial decision is in question or where a case in the opinion
of the Chair concerns issues of national importance such as the economy, public
order or the essential services. The rule has recently been examined by the House
of Commons Committee on Procedure: the Committee agreed that the rule be
maintained, subject to some greater flexibility in the exercise of the Speaker’s
discretion. The Committee reminded MPs that they should not say anything on
the floor of the House that would affect evaluation of the merits of proceedings
which were imminent or before the courts, or would influence the result of
proceedings, in particular the likelihood of an acquittal.
149
43. The sub judice rule ceases to apply when civil or criminal proceedings
relating to a matter are no longer active. Thus the rule does not prevent the
members of either House from raising matters concerning the merits of court
decisions that have already been made, so long as no appellate proceedings are
active. There is however a long-standing rule of the House that, unless discussion
is based on a substantive motion on which a vote could be taken (which in this
context would generally mean a motion calling for a judge to be dismissed),
members may not cast reflections on the conduct or motives of a judge or upon
judges generally.
150
In 1987, when the Prime Minister (Mrs Thatcher) said at
question time that she was unable to comment on a particular sentence imposed
by a judge, the Speaker subsequently ruled:
“It is perfectly in order to criticise or to question a sentence: but it is not
in order to criticise a judge. That has to be done by motion.”
Although the requirement of a substantive motion may create a real difficulty
where neither the Government nor opposition parties are willing to find time for
debate of the motion, determined back-benchers may be able to find ways (for
instance, by way of an early day motion) of putting on record the substance of
their criticisms of a judge.
44. Rodney Brazier’s account of these matters in 1994
152concluded that these
arrangements
“in general represent a sensible balance between judicial freedom from
wrongful parliamentary pressure and Parliament’s rights in relation to
the administration of justice.”
However, the rules under discussion do not deal with a current question of some
importance, namely whether judges should appear before select committees that
are inquiring into topics in which the performance of the courts is in question.
Moreover, Professor Brazier also had in mind the conventional rules that apply to
151 Ministers, and emphasised that Ministers are subject to restrictions that do not
apply to backbench members.
(3) What limits apply or should apply to criticism of the judiciary by the
Executive?
45. One aspect of the constitutional relationships under discussion that has
recently caused concern is the extent and manner of criticisms made by Ministers
of judicial decisions. In particular, concern has arisen in two areas – decisions of
the courts in judicial review cases involving the Human Rights Act, and the
sentencing of convicted offenders.
46. Where a court on judicial review holds a government policy or an executive
decision to be unlawful, the Government has the usual right of an unsuccessful
litigant to seek leave to appeal, if necessary to the House of Lords. The appeal
process will determine the merits of the legal issues concerned, and this is the right
course for a Minister to take when a decision has been made on a matter of
departmental importance. What is not acceptable is for a Minister to react to an
unfavourable decision by blaming the judges, casting doubt on their integrity,
alleging that they are intentionally thwarting the wishes of Parliament or claiming
that they have taken leave of their senses. Nor ought Ministers to instigate or
condone hostile criticism of a judge in the media through off-the-record briefing
that will cause some newspapers to pillory the judge concerned.
47. Moreover, when proceedings are pending before a court or tribunal, a
Minister should not publicly call for a certain outcome (as occurred within recent
weeks when a Minister asserted that a Muslim class-room assistant in dispute with
her employers over the wearing of the veil must be dismissed).
153 It would be equally wrong for a Minister to demand that an accused person who was on trial
for a criminal offence should be convicted. 48. Recent incidents arising from three cases where Ministers intervened with comments about the Human Rights Act have been examined by the Joint
Committee on Human Rights.
154 The only one of these incidents to involve
criticism of a judge was the case of the Afghani hijackers. The judge in the
Administrative Court was Sullivan J, and the ministerial comment was (in effect)
that he must have taken leave of his senses. On appeal by the Home Office, the
Court of Appeal upheld the judgment, noting that the case “has attracted a degree
of opprobrium for those carrying out judicial functions” and commending Sullivan
J for “an impeccable judgment”.
155 After hearing evidence from the Lord
Chancellor, Lord Falconer, about the case, the Joint Committee found that the
Human Rights Act had been used “as a convenient scapegoat for unrelated
administrative failings within Government”. On the case of the Afghani hijackers,
the Committee observed: “In our view high level ministerial criticism of court judgments in
human rights cases as an abuse of common sense, or bizarre or
inexplicable, only serves to fuel public misperceptions of the Human
Rights Act and of human rights law generally”.
156
49. The Sweeney case in June 2006 was examined by the House of Commons
Constitutional Affairs Committee.
157
The Home Secretary had expressed strong
criticism of the sentence given to Craig Sweeney by Judge John Griffith Williams
QC, after he had pleaded guilty to abducting and sexually assaulting a 3-year old
girl. The situation was not helped by a statement on radio by the Parliamentary
Under-Secretary of State (Vera Baird QC) to the effect that the judge’s sentence
was wrong. This was promptly followed by correspondence between the Minister
and the Lord Chancellor, in which she withdrew her comments and acknowledged
that they should not have been made. Annex 2 to this paper contains an extract
from the evidence given by the Lord Chancellor to the Constitutional Affairs
Committee. Annex 3 contains the text of a letter sent by the Lord Chief Justice to
circuit judges dated 19 June 2006. Such a letter may have raised their morale, but
would not bring to the public generally that it was not the error of a judge that had
caused the controversy.
50. At one time, it was considered to be a constitutional convention that
members of the Executive would not criticise members of the judiciary. While the
Government might properly say that a court decision differed from the legal advice
on which it had acted or that it proposed to bring in amending legislation,
Ministers were expected not to state that a court’s decision was wrong, nor to
impute improper motives or incompetence to the court. To quote Brazier again,
writing in 1994:
“Ministers are by convention expected to show due inhibition when
commenting in Parliament on judicial words and deeds…”—
to which the author added the comment,
“It would never be proper for Ministers to criticise the judiciary outside
Parliament”.
158
51. The interpretation and effect of many conventions fluctuate over time. The
behaviour of some Ministers in recent years makes it necessary to consider whether
the convention stated by Brazier still survives, or whether it has merely lost some
of its former authority and been ignored.
52. In 1995, there was a period of acute tension between the Home Secretary
(Mr Michael Howard) and the judiciary, resulting from a series of judicial review
decisions involving the Home Office.
159
Criticisms of the judiciary by Mr Howard
were accompanied by attacks launched by several newspapers on judicial review,
on the judiciary in general, and on individual judges. The Times (3 November
1995) said,
“it is tempting to observe a pattern emerging, a potentially alarming hostility
between an over-mighty executive and an ambitious judiciary”. 53. In February 2003, the Home Secretary, Mr David Blunkett, reacted with
anger to a decision of Collins J upholding the right of six asylum-seekers to receive
support from the National Asylum Support Service (NASS), an agency of the
Home Office.
160
The case arose under section 55 of the Nationality, Immigration
and Asylum Act 2002, which prevented the Home Secretary from granting
support to certain asylum-seekers but empowered him to grant support to them
where this was necessary for avoiding a breach of their Convention rights. In the
absence of a right of appeal against a refusal of support by NASS, the flood-gates
opened to a torrent of claims for judicial review. The decision by Collins J led
Mr Blunkett to say on radio:
“Frankly, I’m personally fed up with having to deal with a situation
where Parliament debates issues and the judges then overturn them”.
In a newspaper article, he said that it was “time for judges to learn their place”.
The Daily Mail, along with some other newspapers, complained that Collins J
“had chosen to set his will above Parliament’s”. A Labour MP wrote in the Express
on Sunday, “We’re used to lawyers trying to bend the rules. What is not so easy to
forgive is the destructive activity of a judge.”
55. In dealing with the Home Secretary’s appeal in this case, the Court of
Appeal explained that the task of the courts was to interpret the laws made by
Parliament, and commended “the care with which, in his lengthy judgment, [the
judge] addressed the difficult issues before him”.
161
The judgment of Collins J was
largely upheld, although not entirely, but the court endorsed the view that the
Home Office’s decision-making failed the test of fairness. Later, when other cases
reached the House of Lords, section 55 was considered by the Law Lords to be
inherently likely to cause the Home Secretary to breach the right of a destitute
asylum-seeker not to be subjected to inhuman or degrading treatment. The same
view of the section had been taken by the Joint Committee on Human Rights
when the proposed clause was rushed through Parliament without adequate
debate.
162
Some aspects of this episode were highly specific to the immediate
context, but the affair vividly illustrates the need for an independent judiciary able
to interpret the laws made by Parliament, particularly when Ministers do not
appear to understand the constraints that apply to their policies, or indeed the full
content of legislation that they proposed to Parliament.
56. It is not known whether Lord Irvine, Lord Chancellor at the time of
Mr Blunkett’s attack upon Collins J, intervened with his Cabinet ministerial
colleague. But some months later, Lord Irvine referred to the role of the executive
under the HRA and said:
“But what about when the courts disagree with the executive? In a
democracy under the rule of law, it is not mature to cheer the judges
when a win is secured and boo them when a loss is suffered. Under the
previous administration, the public would have been forgiven for
thinking that on occasions the executive and the judiciary had ceased to
be on speaking terms. In the latter two years of the last government,
there was unprecedented antagonism between judiciary and government
over judicial review of ministerial decisions. Some Conservative
politicians even went so far as to call judicial review into question. We
have come a long way since then and the Human Rights Act has helped
us do so”.
163
Later, in evidence to a House of Commons committee, Lord Irvine gave an
‘absolute assurance’ that while Lord Chancellor he had frequently argued within
government to insist that judicial independence was upheld.
164
57. While it is certain that recent governments have found it difficult to
welcome decisions on judicial review to which Ministers are opposed, it is not
possible to assess the extent to which Lord Chancellors have had to intervene in
such moments of strain. But the record since the mid-1990s set out above suggests
that some Ministers today find their constitutional duties in this respect to be
irksome. Today, as has been seen above, all Ministers are required by the
Constitutional Reform Act 2005, s 3(1) to “uphold the continued independence of
the judiciary”. If the earlier convention that Ministers should not criticise the
judiciary has been seriously eroded, as it seems to have been, steps are needed to
re-state the convention in the light of that statutory duty.
58. Since this is primarily, but not exclusively, a question that affects the
conduct of Ministers, it would be appropriate for a new chapter to be included in
the Ministerial Code that would make a full statement for the guidance of Ministers
and their advisers of their obligations in respect of the judiciary. It should
include
—
(a) a statement of the implications of sections 1 (rule of law) and 3 (judicial
independence) of the CRA for Ministers and their advisers, including the special
role that the Act prescribes for the Lord Chancellor;
(b) a statement of the sub judice rule from Parliament, but adapted for a ministerial
context, emphasising the need to avoid intervening with comments that might
prejudice the outcome of a current or pending trial or hearing; the rule should go
further than the rule in Parliament by applying not only to court proceedings but
also to tribunal proceedings;
(c) a statement of the limitations that ought to apply to comment on and criticism
of decisions that have been made by courts or tribunals;
(d) a reminder of the respect that Ministers, as members of the executive, should
extend to the courts and the judiciary;
(e) a suggestion that Ministers should seek advice if necessary on the legal issues
involved before making off-the-cuff comments on current or recent court and
tribunal proceedings; that advice should be available both within departments and
also from the Lord Chancellor or the Attorney-General.
It is indeed remarkable that the Ministerial Code is at present silent on the subject
of relations with the judiciary.
165 The inclusion of a statement on these lines in the
Ministerial Code would have the further advantage of making it readily available to
the advisers of all members of the Government.
G. Conclusions
59. This is a long paper, but it has not dealt with all the issues that are relevant
to this ‘short inquiry’ by the Committee on the Constitution. Thus I have not
mentioned participation by judges in the media, the use of judges for governmental
inquiries, or the appointment of judges to such posts as the Intelligence Services
Commissioner under the Regulation of Investigatory Powers Act 2000. Although I
have dealt separately with the implications of the CRA 2005 and the HRA 1998,
an integrated picture of the changing position of the judiciary would require these
two very different Acts to be taken into account together. A comprehensive
assessment would include the role of national courts in respect of EU law, and
possibly also the effects of devolution.
60. Despite the political controversies that have arisen in relation to the HRA,
and although the internal balance between Parliament, Executive and the judiciary
has changed because of that Act, an appraisal of the present role of the judiciary
would in my view be incomplete without some recognition of the way in which the
judges have answered the difficult questions that arise from the HRA and the
ECHR. The case-law includes some remarkable judgments that have fully justified
the aim of the Act in enabling United Kingdom judges to contribute to the
developing understanding of human rights protection in the 21
ANNEX 1
st
Century.
Joint Committee On Human Rights Thirty-Second Report
(2005–06): The
Human Rights Act: the DCA and Home Office Reviews
Summary
Introduction
In May 2006 there was public controversy over the Human Rights Act 1998
(HRA). Three high-profile cases led some to argue that the HRA, or the way it
was being interpreted, was preventing the Government from ensuring public
safety, and that it should be repealed or amended. The Prime Minister asked the
Lord Chancellor and the Home Secretary to conduct reviews of the impact of the
HRA. He also asked the Lord Chancellor to “devise a strategy, working with the
judiciary, which maintains the effectiveness of the HRA, and improves the public’s
confidence in the legislation”, and asked the Home Secretary “to consider whether
primary legislation should be introduced to address the issue of court rulings
which overrule the government in a way that is inconsistent with other EU
countries’ interpretation of the European Convention on Human Rights.”
(paragraphs 1–2).
On 18 May the Joint Committee on Human Rights decided to conduct an enquiry
into “the case for the Human Rights Act”. In October 2006 we also decided to
inquire into the human rights implications of Home Office proposals drawing in
part on its internal review of the impact of the Human Rights Act and the
European Convention on Human Rights on decision making in the criminal
justice, immigration and asylum systems. We also raised with the Home Secretary
the Chahal judgment. We took oral evidence from the Lord Chancellor and
Baroness Scotland on 30 October. The main purpose of this Report is to inform
Parliament about the Government’s recent reviews of the Human Rights Act
(paragraphs 3–8).
NEW CONSTITUTIONAL RELATIONSHIP BETWEEN THE JUDICIARY,
GOVERNMENT AND PARLIAMENT; AND FURTHER PAPER:
CHANGES IN THE MACHINERY OF GOVERNMENT AFFECTING THE
DEPARTMENT FOR CONSTITUTIONAL AFFAIRS AND THE HOME
OFFICE
Summary
The paper draws attention to aspects of the present constitutional relationship
between judiciary, Government and Parliament. Section A (paras 1–9) explains
the need for an independent judiciary in a constitution founded on democracy and
the rule of law; in particular, the public law jurisdiction of the courts is likely to
bring them into controversy with the Government. Section B (paras 10–11)
outlines the main changes made by the Constitutional Reform Act 2005. Section
C (paras 12–20) discusses the effect of these changes on the courts and considers
whether judicial independence is inconsistent with some forms of accountability.
Section D (paras 21–25) outlines the main features of the Human Rights Act 1998
and Section E (paras 26–33) examines whether the Act has affected the
constitutional balance between Parliament, executive and the courts. It is
concluded that the Act significantly extended the jurisdiction of the courts by
enabling the higher courts to review primary legislation for compatibility with the
European Convention on Human Rights, though the sole relief that may be
granted is a declaration of incompatibility. Section F (paras 34–58) examines the
extent to which the law permits excessive or abusive criticism of the judiciary by
the media, by parliamentarians and by Ministers, and draws attention to recent
criticism of judges by Ministers. It is proposed (para 58) that the Ministerial Code
should contain a new chapter setting out the conventions in relation to the
judiciary that Ministers must observe.
A The Constitutional Role of the Judiciary
1. The context for this inquiry by the Committee on the Constitution is the
changing relationship between judiciary, Government and Parliament following
the Constitutional Reform Act 2005 (hereafter, “the CRA” or “the 2005 Act”).
The primary aim of that Act was to change the law relating to the constitutional
position of the judiciary. For this reason, this paper focuses on the relationship
between the judiciary, on the one hand, and Government and Parliament, on the
other. It does not deal with the Government/Parliament relationship. While the
paper is not a comprehensive review of the subject, it does examine the impact of
the Human Rights Act 1998 (hereafter, “the HRA”), since that Act features
prominently in current debate on the role of the judiciary.
2. The interaction of judiciary, executive and legislature is a fundamental
aspect of any constitution founded on democracy and the rule of law. Unless there
is an independent judiciary, able to interpret and apply laws in a manner based on
legal rules and principles rather than on political intentions or calculations, the
concept of law itself is brought into question. Article 6/1 ECHR recognises the
right of every person “in the determination of his civil rights and obligations or of
any criminal charge against him” to “a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law”. In 2002, a
high-level international study of challenges facing the judiciary in the 21
st
Century led to the issue of The Bangalore Principles of Judicial Conduct.
114
The preamble to
that document emphasised that the implementation of all rights, including human
rights, “ultimately depends on the proper administration of justice”; and that a
“competent, independent and impartial judiciary” is essential if the courts “are to
fulfil their role in upholding constitutionalism and the rule of law”.
3. Every democratic constitution distinguishes, in whatever terms, between
the tasks of the legislature, executive and judiciary and contains a statement,
however brief, of the distinctive role of the judiciary. Even in countries that have a
written constitution based on the formal separation of powers, the significance of
judicial independence cannot be discovered from the written text alone. Like other
constitutional principles, judicial independence is heavily influenced by a country’s
history and culture. Although aspects of the principle have a long pedigree in this
country (for instance, the Act of Settlement 1700 declared that judges in England
hold office during good behaviour, not at pleasure of the Crown), the position of
the judiciary has evolved over the years and will continue to do so in the light of
changing social and political factors. By contrast with that evolutionary process,
the CRA in 2005 made extensive changes in the institutional framework. At the
same time, the CRA declared that
(i) despite these structural changes, the existing constitutional principle of the rule
of law is not adversely affected (section 1) and
(ii) the executive must continue to uphold the independence of the judiciary
(section 3). However, the Act did not define the content of the rule of law. Nor
did it summarise the notion of judicial independence, other than to outlaw
attempts by Ministers to influence particular judicial decisions “through any
special access to the judiciary” (section 3(5)).
4. All legislation, and in particular the CRA, has to be read against the
inherited constitutional background if it is to be fully understood. In 1995, the
relationship between Parliament, executive and judiciary was summarised by
Lord Mustill in these terms:
“It is a feature of the peculiarly British conception of the separation of
powers that Parliament, the executive and the courts have each their
distinct and largely exclusive domain. Parliament has a legally
unchallengeable right to make whatever laws it thinks fit. The executive
carries on the administration of the country in accordance with the
powers conferred on it by law. The courts interpret the laws, and see
that they are obeyed”.
115 More recently, Lord Bingham has said:
“Whatever overlap there may be under constitutions on the Westminster
model between the exercise of executive and legislative powers, the
separation between the exercise of judicial powers on the one hand and
legislative and executive powers on the other is total or effectively so.”
5. But judicial independence is only part of our constitutional structure. At the
heart of this structure is the enactment of legislation by Parliament (acting almost
116invariably on the proposal of the executive). That structure must also include a
place for the common law, since in deciding cases the courts frequently apply rules
and principles that have not been enacted by Parliament. While rules of the
common law may be abrogated or amended by Parliament, the traditions of the
common law largely determine the approach taken by the courts in deciding new
questions of law that arise, and in interpreting and applying laws made by
Parliament.
117 In recent years, the courts have stressed the extent to which the
common law influences the task of applying new legislation, particularly when
fundamental rights and liberties are affected. Lord Browne-Wilkinson said in
1997,
“…Parliament does not legislate in a vacuum: statutes are drafted on the
basis that the ordinary rules and principles of the common law will apply
to the express statutory provisions. … As a result, Parliament is
presumed not to have intended to change the common law unless it has
clearly indicated such intention either expressly or by necessary
implication.”
118 This principle has been applied in particular to what have sometimes been called
‘fundamental constitutional rights’.
119 The background of constitutional democracy against which Parliament legislates includes ‘the principle of legality’.Lord Hoffmann has said that this principle “means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by
general or ambiguous words”. 120 6. The duties of the judiciary include applying and enforcing the laws, not merely against private individuals and corporations but if necessary against the executive itself. This duty is a key aspect of the constitutional position of the courts and the executive. As Nolan LJ said in 1992, when the Home Secretary was held to have acted in contempt of court in disregarding a judge’s order to bring
back to the United Kingdom a Zairean asylum-seeker, “The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful
province, and that the executive will respect all decisions of the courts as to what its lawful province is”.
121 This formulation properly stresses the element of respect that is due from an all-powerful executive to what has sometimes been called ‘the least dangerous branch’, the judiciary. The statement must of course be read subject to the legislative authority of Parliament. Often legislation will have a decisive effect in determining the limits of the ‘lawful province’ of the executive, but this is not necessarily the case in a dispute involving the grounds of judicial review, which have never been the subject of comprehensive legislation by Parliament.
7. Many aspects of the judicial review of administrative action may be traced
back for several centuries, but this jurisdiction of the courts (derived from the
common law) is now remarkably prominent. In 2002, Lord Steyn wrote: “Public law has been transformed over the last 30 years. The claim that
the courts stand between the executive and the citizen, and control all
abuse of executive power, has been reinvigorated and become a
foundation of our modern democracy”.
122
8. On 31 October 2006, a senior judge, Maurice Kay LJ, gave evidence to the
House of Commons’ Constitutional Affairs and Home Affairs Committees. His
opening summary included the following points:
(1) “one of the hallmarks of a mature democracy is that political power
must be exercised in accordance with the law” (which he took to be
the meaning of ‘the rule of law’ as used in the CRA 2005, s 1) and
“in any mature democracy, the judiciary has an important role in
securing compliance by government and other public authorities with
the law”;
(2) “long before the Human Rights Act, the courts developed and
expounded the scope of judicial review …. They did so on a case-bycase
basis,the centrepiece of the modern jurisprudence being the GCHQ case in 1985, which
defined both the principles of modern
judicial review and its limits.It madeclear …that there were considered to be certain judicial no-go areas, including matters of national security and foreign relations. Indeed, that judicial selfrestraint still exists
at common law…”;
(3) “the Human Rights Act requires [the speaker’s emphasis] judges to
approach a great deal of public law litigation in new ways …” and “all
this is leading the courts into new territory” (instanced by the case of the
Belmarsh detainees, A v Secretary of State)
123
; and
(4) “in this … the courts are doing no more and no less than carrying out
their constitutional function of interpreting and applying the law—in this
case, the law enacted by Parliament”.
Finally, and more controversially, Maurice Kay LJ observed that in his view, which
differed from what the Lord Chancellor (Lord Falconer) had recently said, the
task of making decisions under the HRA “is a matter of judgment according to the
law, not discretion”. He further remarked that cases under the HRA “are more
illustrative of self-restraint on the part of the judiciary than the sort of militant
activism that is sometimes caricatured in the media”.
124
9. It will be evident, even apart from the HRA, that the public law jurisdiction
of the courts requires them to review the legality of executive decisions. The
results of these cases are often unwelcome to ministers and administrators, and
may be particularly controversial in the media or in political terms. Successive
governments have recognised the far-reaching implications of judicial review, at
least since the pamphlet ‘The Judge over Your Shoulder’ was issued to civil
servants in 1987. The need for judicial independence in this area is obvious, as
also in the area of criminal justice. Section F(3) of this paper will draw attention to
recent instances in which Ministers have expressed their irritation at judicial
decisions that go against their policies. B The Constitutional Reform Act 2005
10. The principal structural changes made by the CRA may be very briefly
summarised.
125
They have provided for greater formal separation between
government and judiciary (and, as regards the new Supreme Court, between
Parliament and judiciary) and for a new statutory interface in England and Wales
between government, in the person of the Lord Chancellor, and the judiciary,
represented by the Lord Chief Justice.
(A) Contrary to the original intention of the Government, the Lord Chancellor
remains in being, but he has lost his status as head of the judiciary in England and
Wales and may not now sit as a judge. This greater separation between executive
and judiciary made it essential for many functions of the Lord Chancellor to be reassigned,
some being transferred to the Lord Chief Justice,others being exercisable jointly by the Lord Chancellor
and the Lord Chief Justice.The Lord Chancellor retains many important executive functions relating
to the judiciary (including funding the system of justice,making judicial appointments in accordance
with new statutory rules, and approving procedural rules for the courts).Many of these functions are ring-fenced,to ensure that they are not transferred to another Minister by the Prime Minister without further
primary legislation.
126 Under the CRA, the Lord Chancellor is not required to have had a legal career, nor to be a member of the House of Lords.
(B) The Lord Chief Justice is now President of the Courts and Head of the Judiciary of England and Wales. He is responsible:
(i) for representing the views of the judiciary to Parliament, to the Lord Chancellor and to other Ministers;
(ii) for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary within resources made available by the Lord Chancellor; and
(iii) for maintaining appropriate arrangements for the deployment of the judiciary and the allocation of work within courts.
127 These broad duties are accompanied by many specific responsibilities, some of which are exercisable jointly with the Lord Chancellor, or with the concurrence of the Lord Chancellor.
(C) There will be a new Supreme Court for the United Kingdom, to take over the appellate functions now performed by the Appellate Committees of the House of Lords, together with the power to decide devolution issues transferred from the Judicial Committee of the Privy Council. This separation between the ‘Law Lords’ and the House does not mean any change in the extent of appellate jurisdiction.New provision has been made for funding and administering the Supreme Court. The CRA sets out in detail the procedure for the selection and appointment of judges to the Supreme Court, in place of the present practice by which the Prime Minister nominates to the Queen persons for appointment as Lords of Appeal in
Ordinary.
(D) Judicial appointments in general are entrusted to the Judicial Appointments Commission, and are no longer a matter primarily for decision by Ministers. Within the framework of the CRA, it will be for the Commission to give substance to the statutory rule that selection must be solely on merit (section 63(2)); and the Commission must have regard to the need to encourage diversity in the range of persons available for selection (section 64(1))
(E) A new post of Judicial Appointments and Conduct Ombudsman is created to deal with two rather different classes of complaint: (a) in relation to the observance of proper procedure in judicial appointments, and (b) in respect of the conduct of judges.
(F) While the historic tenure of senior judges derived from the Act of
Settlement continues (subject to a new power to suspend a judge while
parliamentary proceedings for removal are pending: section 108(6)), the removal
of other judges by the Lord Chancellor is now subject to statutory procedures; in
general, disciplinary powers in respect of the judiciary (including power to
suspend) may be exercised by the Lord Chief Justice, acting with the agreement of
the Lord Chancellor.
11. The cumulative effect of the changes made by the CRA is very extensive.
Alongside the statutory provisions has to be read a document known as the
Concordat, entitled Constitutional Reform: the Lord Chancellor’s judiciary-related
functions, prepared in January 2004 while the Constitutional Reform Bill was
before the House of Lords, at a time when the Government was proposing to
abolish the office of Lord Chancellor and it was not known what the attitude of the
judiciary would be to the proposals. The Concordat represented an agreement
between the Lord Chancellor and the Lord Chief Justice (then Lord Woolf)
regarding the future exercise of the Lord Chancellor’s judiciary-related functions,
and as such it facilitated the passage of the Constitutional Reform Bill through
Parliament.
C. In what ways has the CRA affected the constitutional relationship
between Parliament, the Executive and the Judiciary?
12. The structural changes in law made by the CRA will in time be
supplemented by new working relationships, understandings and conventions, the
foundations for which are already being laid. The present inquiry by the
Committee will assist in that process. The removal of the Lord Chancellor’s
judicial status and the presidential functions of the Lord Chief Justice necessarily
make for greater separation between executive and judiciary. So too, the new
Supreme Court will make for a clear separation between the final appeal court and
Parliament. But these changes may be more important in a formal, analytical
perspective than in practical terms. Indeed, if the essentials of judicial
independence were not adversely affected by the various roles of the Lord
Chancellor, his removal from the judiciary will not affect judicial decisions.
Similarly, if the independence of the Law Lords has not been at risk because of
their status at Westminster, their decision-making will be unaffected by the change
of location. Nonetheless, these structural changes are important in constitutional
terms, and will make the distinct status of the judiciary more visible in the media
and in the public eye.
13. Reference has already been made to the Concordat between the Lord
Chancellor and the Lord Chief Justice that was drawn up in January 2004. This
document has an uncertain constitutional status. Many of its provisions have been
superseded by what eventually appeared in the CRA 2005. If it contains
continuing principles of value that should govern relations between the judiciary
and the Government, the document should be revised to take account of the provisions of the Act, and its status clarified. Rather than it disappearing from
sight, a regular review and updating of the Concordat in the light of experience
could be of value.
14. The new procedures for appointing judges were welcomed on all sides
when the CRA was in Parliament. Ministers have given up a significant power that
in many countries is still retained by the executive, but the full effect of the
changes will not be felt immediately. If judges in recent years have been selected
primarily on the basis of merit, then the new powers of the Judicial Appointments
Commission will not directly affect the kind of appointments made. But it remains
to be seen how a test of merit will affect the most senior appointments, where
candidates will need a range of skills that include the capacity for handling the
administrative tasks that under the CRA will be borne by the senior judiciary. At a
lower level in the hierarchy, new career patterns in the legal profession may emerge
once the Commission’s policies for increasing the diversity of applicants for
appointments begin to bear fruit.
15. While judicial decision-making may be unaffected by these structural changes, significant new burdens are placed on the Lord Chief Justice. He or she will have to bear the brunt of representing the judiciary vis-à-vis Parliament, the Government, the media and the public at large. Other senior judges will acquire
executive-type responsibilities. The Judges’ Council was re-formed in 2002 and it may have an increasingly important role as a forum accessible to the Lord Chief Justice for enabling opinions broadly representative of the whole judiciary to be formulated. Moreover, while the focus in the re-organisation has been on the role
of the Lord Chief Justice, the President and Deputy President of the new Supreme Court will have their own statutory functions that may bring them into public prominence in matters affecting the highest level of appeal.
16. The main changes made under the CRA took effect only in April 2006 and it is too soon to know how robust the structure based on the separated functions of the Lord Chancellor and the Lord Chief Justice will be. Difficult questions are likely to arise in respect of funding and resources; maintaining a public
understanding of judicial independence; and determining the proper limits and forms of judicial accountability, in particular to the executive and to Parliament.The former Home Secretary, Mr Charles Clarke MP, recently called for
“a mature discussion between parliamentarians and the most senior
lawyers in this country about how the criminal justice system deals with
the new pressures arising from the possibility of suicide bomb terrorist
attacks. One of the consequences of the Human Rights Act is that our
most senior judiciary are taking decisions of deep concern to the security
of our society, but without any responsibility for that security. One of
my most depressing experiences as Home Secretary was the outright
refusal of the Law Lords to discuss the principles behind these matters
in any forum at all, public or private, formal or informal. To this day I
have never met a Law Lord. That attitude has to change.”
129 . 17. An indication of the possible pitfalls that open up if the judiciary are to be more closely engaged in the process of executive policy-making, as Mr Clarke would wish, was given by the experience of senior judges when they were consulted about the Government’s proposal in the forthcoming Asylum
128 and Immigration (Treatment of Claimants etc.) Bill 2004 to substitute review by the Asylum and Immigration Tribunal for the right to judicial review of immigration and asylum decisions. When the judges replied to the Home Office that the proposed exclusion would not work for reasons that they set
out, the response of the Government was to write in additional provisions that sought to fire-proof the exclusion clause against any restrictive judicial interpretation. There may be some matters directly affecting the working of the courts upon which the Lord Chief Justice and senior judges administering the system of justice may necessarily need to be consulted. But it should be the exception rather than the rule for new government policies to be put out to consultation with the judges. If expert advice about the likely effects of
legislation is needed by government, there are many qualified people to supply it who are not judges.
18. So far as judicial accountability is concerned, it must be emphasised that judicial independence requires that judges are not directly accountable either to the executive or to Parliament for their decisions. The primary form of accountability comes from four aspects of judicial process: (a) most court hearings take place in public, (b) judicial proceedings are usually adversarial; (c) judicial decisions must deal with the submissions of the parties; and (d) most decisions may be challenged by appeal to a higher court. Even in the case of the Supreme Court, further proceedings are possible on matters of EU law or ECHR law. As an
agency of state power, the judiciary as a body are, or ought to be, accountable forthe general manner in which the court system serves the public at large. But methods of ensuring this form of accountability must not be such as to prejudicejudicial independence.
19. In particular, these considerations must restrict the ability of select committees at Westminster to summon judges to give evidence and question the mabout judicial decisions. There are of course matters on which dialogue between judgesjudges and parliamentarians could be useful.
130 When the chief justice of any partof the United Kingdom exercises his new right to lay written representations before the relevant parliament (CRA 2005, s 5), this should lead to a hearing
before a committee of that parliament: it may be assumed that the chief justice would welcome the opportunity of making his concerns about the judiciary or the administration of justice better known.
20 A separate paper would be needed to deal with these questions in respect of the system of criminal justice. Two brief points may be made. (a) It ought not to be stated or implied by Ministers who seek to ‘re-balance the system of criminal justice’ that the judges are not acting in the interests of the law-abiding
public, or that appeal judges allow appeals to succeed on technicalities. (b) In responding to public concern about crime, governments too frequently have recourse to legislation that removes judicial discretion in sentencing and substitutes an automatic minimum sentence when specified conditions exist. Currently it appears to be realised that judicial discretion in sentencing may indeed be a way of avoiding anomalous results that attract headlines in the press.Frequent and excessive encroachment by Parliament on the sentencing process(as seen in the Criminal Justice Act 2003) is likely to have undesirable sideeffects.
131 D Human Rights Act 1998
21. The main changes made by the HRA are well-known. With the object of
‘bringing rights home’ to Britain, all courts and tribunals must when relevant
take account of the Strasbourg case-law (s 2). All legislation in the United
Kingdom must where it is ‘possible’ be interpreted consistently with the
Convention rights (s 3). Where this is not possible in the case of primary
legislation, the higher courts may declare that the legislative provision is
incompatible with the Convention (s 4). All public authorities, including the
courts but not Parliament, are under a duty to exercise their functions
consistently with Convention rights, except where this is excluded by mandatory
provision in primary legislation (s 6). The courts may provide appropriate
remedies in proceedings in which issues as to Convention rights are raised (ss 7–
9), including the award of compensation where this would be consistent with the
approach of the Strasbourg court. When a declaration of incompatibility has
been issued by a higher court, the incompatibility may be removed by a ‘remedial
order’, subject to heightened parliamentary scrutiny (s 10). The Minister in
charge of a Government bill in either House must before Second Reading state
either that the bill is compatible with the Convention rights or that, while this is
not the case, the Government wishes the House to proceed with the bill (s 19).
To this framework established by the HRA must be added the Joint Committee
on Human Rights at Westminster, which maintains a continuing scrutiny of
Government bills, ministerial statements and proposed remedial orders, and
from time to time reviews the interpretation of the Act by the courts.
22. The impact of the Act and its application by the courts are now the subject
of much examination in books and articles, discussion in the media, and reviews
by government departments and Westminster committees. Earlier this year, there
was public controversy over the HRA and its effects: three high-profile cases were
considered by some to prevent the Government from ensuring public safety, and
the Prime Minister asked the Lord Chancellor and the Home Secretary to conduct
reviews of the Act’s impact. The review by the Department for Constitutional
Affairs on implementation of the HRA was published in July 2006; at the same
time the Home Office published papers dealing with the criminal justice system
and the Immigration and Nationality Directorate.
132
23. In November 2006, the Joint Committee on Human Rights published a
report on the DCA and Home Office reviews.
133
The Joint Committee’s summary
of its report is annexed to the present paper (see annex 1). The Committee
welcomed the DCA review, which “in our view makes a very fair and balanced
contribution to this important debate” (para 43). The Committee noted the
conclusion in the review “that the HRA has not significantly altered the
constitutional balance between Parliament, the Executive and the Judiciary” but
drew attention to a “significant omission” from the report, namely any substantial
consideration of the impact of the Act on the relationship between the executive
and Parliament (para 60).
24. Since the departmental reviews and the Joint Committee’s inquiry were
largely prompted by allegations in the media about the damaging effects of the
HRA on national security, it is notable that the Government and the Joint
Committee agree with the view that the HRA “has not significantly altered the
constitutional balance between Parliament, the Executive and the Judiciary”.
25. While I readily agree that the constitutional equilibrium has not been put at
serious risk by the HRA, I find it difficult to accept that the HRA has not changed
the constitutional relationship between Parliament, executive and judiciary.
Constitutions evolve, and the United Kingdom constitution is inherently likely to
change, both because of its reliance on conventions, and because Parliament’s
authority extends to constitutional matters.
134
Both the HRA and the CRA have, in
various ways, affected the relationship between Parliament, the executive and the
Judiciary, as indeed they were intended to do. The range of changes will be
outlined in the next section of this paper.
E. In what ways has the HRA affected the constitutional balance between
Parliament, the Executive and the Judiciary?
26. In its White Paper in 1997, outlining the scheme of the Human Rights Bill,
the Government stated that it had
“reached the conclusion that courts should not have power to set aside
primary legislation, past or future, on the ground of incompatibility with
the Convention. This conclusion arises from the importance which the
government attaches to Parliamentary sovereignty.”
135
With this limitation, the scheme in the HRA went as far as it could to enabling the
courts to protect Convention rights except where they are prevented from doing so
by primary legislation. There have been innumerable statements by judges and
Ministers that the HRA keeps in being the fundamental rule of parliamentary
sovereignty. Even where the courts declare a provision in primary legislation to be
incompatible with Convention rights, as they did in the case of the Belmarsh
prison detainees,
136
that declaration “does not affect the validity, continuing
operation or enforcement of the provision in respect of which it is given” (HRA, s
4(6)(a)). Nor is there an enforceable legal obligation derived from the HRA to
require either Parliament or the Government to alter national law so that it
complies with the ECHR. (Such an obligation does however exist at international
law by virtue of the ECHR; and the possibility of a remedial order being made
under section 10 HRA must add to the political pressure on the Government that
may arise to ensure that national law complies with the ECHR). Moreover, section
19 HRA expressly envisages that Ministers may ask Parliament to enact legislation
that is inconsistent with the Convention.
27. Nevertheless, a statement that the sovereignty of Parliament is not affected
tells only part of the story, since the HRA extended the jurisdiction of the courts to
deal with matters that previously were not arguable before a judge. The duty under
the HRA to interpret all legislation where it is possible to do so consistently with
the Convention is a much stronger duty than that which previously stemmed from
the principle that certain common law rights could not be taken away except by
express enactment.
137 The new interpretative duty, together with the possibility of
a declaration of incompatibility if an interpretative outcome is not possible, takes the courts into the examination of questions that, apart from the HRA, would have
been regarded as political questions.
138
In respect of delegated legislation, the HRA
empowers the courts to quash delegated legislation on Convention grounds; this
power is similar to, but goes beyond, the long-established power of the courts to
quash delegated legislation that is ultra vires.
28. Moreover, for a superior court to decide to make a declaration of
incompatibility, the court must first have reached a view on the substance of a
statute legislation that the courts could not have been asked to make apart from
the HRA. The fact that the HRA does not give power to the courts to quash
primary legislation on Convention grounds is a limitation on the remedy that the
courts provide, not on the substance of what may be argued in court and if
necessary decided.
29. This is not to suggest that the new powers entrusted to the courts by the
HRA are unsuitable for judicial decision-making. A power to review primary
legislation on Convention grounds may indeed be new in the United Kingdom,
but such a power is similar to the position in many countries where a court can go
further and may set aside legislation that conflicts with the constitution. Under the
HRA, a claimant that obtains a declaration of incompatibility will have secured a
considerable victory on the substance of the case. He or she will be well placed to
go to Strasbourg if the offending legislation continues in being. Indeed, in practical
terms the statutory provision can probably no longer be relied on by the
Government, unless either the national law is changed (as happened after the
Belmarsh prison case) or the Government is prepared to derogate from the
Convention obligation in question.
30. The implications of entrusting the judiciary with greater powers of
protecting Convention rights were probably not understood by the public at large
when the HRA was enacted, despite the clarity with which the White Paper in
1997 explained the scheme. Given the intentions behind the HRA, and the fact
that the jurisdiction of the courts was thereby enlarged to include matters akin to
the constitutional enforcement of fundamental rights, it is not surprising that
appellate judges have given much time to questions arising under the Act. But I do
not consider that the record of these decisions establish a case for either reconsidering
the scheme of the Act, or supporting allegations that the judges are usurping the authority of the executive or Parliament. In his judgment in the Belmarsh case, Lord Bingham set out the great weight that should
be given to decisions of Ministers and of Parliament in matters that involve a pre-eminently political
judgment, and said: “Conversely, the greater the legal content of any issue, the greater the
potential role of the court, because under our constitution and subject to
the sovereign power of Parliament it is the function of the courts and not
of political bodies to resolve legal questions”.
139 He drew attention to the Convention regime for the international protection of
human rights, which “requires national authorities, including national courts, to
exercise their authority to afford effective protection”.
140 On the proportionality of the scheme for detaining foreigners suspected of terrorist involvement indefinitely without trial, Lord Bingham did not accept a submission by the Attorney-General that distinguished between democratic institutions and the courts, saying:
“The Attorney-General is fully entitled to insist on the proper limits of
judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic—
141
[particularly when the court was
performing functions assigned to it under the HRA] … The 1998 Act
gives the courts a very specific, wholly democratic mandate. As
Professor Jowell has put it: ‘The courts are charged by Parliament with
delineating the boundaries of a rights-based democracy’”.
142
31. The review of case-law by the Department for Constitutional Affairs in July
2006 concluded that decisions of the courts had had no significant impact on
criminal law or on the Government’s ability to fight crime. The HRA had had an
impact on the Government’s counter-terrorism legislation, but the main difficulties
had arisen from decisions of the Strasbourg Court. The Act had had a significant
but beneficial effect on the development of policy by central Government. But it had
been widely misunderstood by the public and sometimes misapplied, and some
‘damaging myths about human rights’ had taken root. The Government remained
fully committed to the ECHR and HRA, but would take steps to give new guidance
to departments on human rights, would take a proactive approach to human rights
litigation, and would make efforts to inform the public about the benefits of the
HRA and to debunk myths that had grown up around Convention rights.
32. This appraisal of the HRA has not, however, always been reflected in the
reaction of some Ministers to decisions by the courts. A later section will examine
some difficulties that have arisen from the response of Ministers to judicial
decisions.
33. The question discussed in this section has been: ‘In what ways has the HRA
affected the constitutional balance between Parliament, the executive and the
Judiciary?’ In summary, my answer is that, so far as the protection of rights
guaranteed by the ECHR is concerned, the HRA has vested new powers in the
courts to determine the limits of those rights and to decide whether those rights
have been respected by public authorities (including the executive) and whether
legislation by Parliament (whenever enacted) is compatible with those rights. The
HRA has created a new form of judicial review of legislation, and new grounds for
the review of executive decisions, thus enabling judicial decisions to be made on
human rights claims. However, when primary legislation is concerned, ultimate
legislative authority remains with Parliament, acting on the proposal of the
executive. This new form of protection for human rights is exactly that envisaged
by the framers of the HRA. The effects of the Act have often been misunderstood
both in some political quarters, in the media, and by the public at large. Some
recent criticisms of the judiciary may have come about because of a failure to
understand the constitutional implications of the HRA.
F. Criticism of the Judiciary in the Media, in Parliament and by the
Government
34. As has already been seen, the functions of the judiciary are different in both
substance and form from those of the executive and legislature; and judicial
143independence is to be contrasted with the democratic accountability of legislature
and executive. But does their independence mean that the judges are not
‘accountable’ for their work, whether to Parliament, the executive or to the public?
Is judicial independence incompatible with any form of criticism? The next
sections examine the extent to which the position of the judiciary is protected in
law and constitutional practice.
(1) Should the media be under any special requirement to respect the authority
of the judiciary?
35. At one time, the common law on contempt of court enabled the courts,
albeit acting as judges in their own cause, to impose penal sanctions should a
newspaper or journal exceed the limits of permissible criticism of the judiciary.
The law of contempt also applied to publications that might prejudice the holding
of a fair trial—for example, a newspaper publishing details of an accused person’s
previous convictions, casting doubts on the veracity of witnesses, or urging that
severe penalties should be imposed on the accused. The obligation of the press not
to prejudice the holding of a fair trial is reinforced by Article 6/1, ECHR.
36. The need for some limitation on freedom of the press as it affects the
judiciary is recognised by Article 10/2 ECHR, which permits freedom of
expression to be restricted by law where this is necessary in a democratic society
for (among other things) “the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.” The common law on contempt of
court was modified by the Contempt of Court Act 1981, in response to the
decision of the European Court of Human Rights in the Sunday Times case.
In
that case, a majority of the Court held that a ban imposed by the English courts on
publishing material relating to the thalidomide disaster (because of a pending civil
action against the manufacturers) was not necessary for maintaining the authority
and impartiality of the judiciary.
37. Given the changes in the law made in 1981, and a more permissive attitude
to forthright discussion of current issues, the law on contempt of court has
virtually ceased to be a restraint on the severity of published comment on judges’
decisions. Certainly, an untrue press report that a judge had taken a bribe before
reaching his decision could give rise to an action in defamation; and press
disclosure of confidential information that in the interests of justice must be kept
secret could give rise to liability for contempt of court and possibly to an action for
breach of confidence by the person whose confidence had been broken. But the
situation would have to be exceptional for even an abusive and scurrilous critique
of the judiciary to be held to be in contempt of court.
38. There is a continuing risk of sensational and one-sided reporting in sections
of the press. Responses from litigants or other interested parties may attempt to set
the record straight. But when a court decision has been given sensational
treatment of this kind, it will not generally be possible for the judge to reply.
Indeed, the judge’s decision with reasons will usually have been given in open
court. Even if the judge should wish to correct any misunderstanding of the
decision, the judgment itself should have emphasised the factors that explain an
unexpected or controversial outcome. If the judge at first instance gets it wrong,
the mistake can be corrected by means of an appeal. If no appeal is brought, and a
putative mistake of law remains uncorrected, legal journals may comment on the
error. In general, the hope must be that good reporting of decided cases will in
time come to prevail over selective or biased reporting.
39. It may be that the new presidential responsibilities of the Lord Chief Justice
will, in the interests of greater public understanding, enable a statement to be
issued when damaging mistakes have been made in press reports of a judgment.
The Judges’ Council may also have a role to play. But such action will not in itself
remedy persistent misreporting that intentionally presents a judge or judges in a
bad light. The unavoidable conclusion may be that this is an aspect of press
freedom to which judges, along with other public figures, must become
accustomed.
(2) What limits apply or should apply to criticism of the judiciary in
Parliament?
40. Article 9 of the Bill of Rights provides the fundamental building-block in
the relationship between the courts and Parliament:
“the freedom of speech and debate or proceedings in Parliament ought
not to be impeached or questioned in any court of place out of
Parliament”.
Accordingly, no court could penalise or impose liability for statements made in
Parliament that judges in general were corrupt, that a judge had committed sexual
offences with young people
147
or that an accused person facing trial was manifestly
guilty and should spend the rest of his life in prison.
41. Nevertheless, Article 9 does not prevent the two Houses from exercising
control over what their members say in Parliament. An important example of such
control for present purposes is the sub judice rule, which bars members from
referring to civil or criminal cases in which proceedings are active in United
Kingdom courts. The rule has developed for three main reasons:
(a) to avoid a risk of prejudicing court proceedings in individual cases;
(b) the principle of comity between the courts and Parliament; and
(c) the need to demonstrate that the judiciary operates independently of political
pressures.
The Joint Committee on Parliamentary Privilege in 1999 examined the need for
the sub judice rule, and concluded:
“[It] is not only a question of prejudicing a fair trial. Parliament is in a
particularly authoritative position and its proceedings attract much
publicity. The proper relationship between Parliament and the courts
requires that the courts should be left to get on with their work. No
matter how great the pressure at times from interest groups or
constituents, Parliament should not permit itself to appear as an
alternative forum for canvassing the rights and wrongs of issues being
considered by the judicial arm of the state on evidence yet to be
presented and tested.”
148
42. The report of the Joint Committee caused both Houses to look again at the
sub judice rule. Resolutions embodying a revised form of the rule were adopted in
the Lords on 11 May 2000, and on 15 November 2001 by the Commons. The
rule, which does not apply to debates on primary or delegated legislation, is
subject to the Speaker’s discretion and provides for certain exceptions, in
particular when a ministerial decision is in question or where a case in the opinion
of the Chair concerns issues of national importance such as the economy, public
order or the essential services. The rule has recently been examined by the House
of Commons Committee on Procedure: the Committee agreed that the rule be
maintained, subject to some greater flexibility in the exercise of the Speaker’s
discretion. The Committee reminded MPs that they should not say anything on
the floor of the House that would affect evaluation of the merits of proceedings
which were imminent or before the courts, or would influence the result of
proceedings, in particular the likelihood of an acquittal.
149
43. The sub judice rule ceases to apply when civil or criminal proceedings
relating to a matter are no longer active. Thus the rule does not prevent the
members of either House from raising matters concerning the merits of court
decisions that have already been made, so long as no appellate proceedings are
active. There is however a long-standing rule of the House that, unless discussion
is based on a substantive motion on which a vote could be taken (which in this
context would generally mean a motion calling for a judge to be dismissed),
members may not cast reflections on the conduct or motives of a judge or upon
judges generally.
150
In 1987, when the Prime Minister (Mrs Thatcher) said at
question time that she was unable to comment on a particular sentence imposed
by a judge, the Speaker subsequently ruled:
“It is perfectly in order to criticise or to question a sentence: but it is not
in order to criticise a judge. That has to be done by motion.”
Although the requirement of a substantive motion may create a real difficulty
where neither the Government nor opposition parties are willing to find time for
debate of the motion, determined back-benchers may be able to find ways (for
instance, by way of an early day motion) of putting on record the substance of
their criticisms of a judge.
44. Rodney Brazier’s account of these matters in 1994
152concluded that these
arrangements
“in general represent a sensible balance between judicial freedom from
wrongful parliamentary pressure and Parliament’s rights in relation to
the administration of justice.”
However, the rules under discussion do not deal with a current question of some
importance, namely whether judges should appear before select committees that
are inquiring into topics in which the performance of the courts is in question.
Moreover, Professor Brazier also had in mind the conventional rules that apply to
151 Ministers, and emphasised that Ministers are subject to restrictions that do not
apply to backbench members.
(3) What limits apply or should apply to criticism of the judiciary by the
Executive?
45. One aspect of the constitutional relationships under discussion that has
recently caused concern is the extent and manner of criticisms made by Ministers
of judicial decisions. In particular, concern has arisen in two areas – decisions of
the courts in judicial review cases involving the Human Rights Act, and the
sentencing of convicted offenders.
46. Where a court on judicial review holds a government policy or an executive
decision to be unlawful, the Government has the usual right of an unsuccessful
litigant to seek leave to appeal, if necessary to the House of Lords. The appeal
process will determine the merits of the legal issues concerned, and this is the right
course for a Minister to take when a decision has been made on a matter of
departmental importance. What is not acceptable is for a Minister to react to an
unfavourable decision by blaming the judges, casting doubt on their integrity,
alleging that they are intentionally thwarting the wishes of Parliament or claiming
that they have taken leave of their senses. Nor ought Ministers to instigate or
condone hostile criticism of a judge in the media through off-the-record briefing
that will cause some newspapers to pillory the judge concerned.
47. Moreover, when proceedings are pending before a court or tribunal, a
Minister should not publicly call for a certain outcome (as occurred within recent
weeks when a Minister asserted that a Muslim class-room assistant in dispute with
her employers over the wearing of the veil must be dismissed).
153 It would be equally wrong for a Minister to demand that an accused person who was on trial
for a criminal offence should be convicted. 48. Recent incidents arising from three cases where Ministers intervened with comments about the Human Rights Act have been examined by the Joint
Committee on Human Rights.
154 The only one of these incidents to involve
criticism of a judge was the case of the Afghani hijackers. The judge in the
Administrative Court was Sullivan J, and the ministerial comment was (in effect)
that he must have taken leave of his senses. On appeal by the Home Office, the
Court of Appeal upheld the judgment, noting that the case “has attracted a degree
of opprobrium for those carrying out judicial functions” and commending Sullivan
J for “an impeccable judgment”.
155 After hearing evidence from the Lord
Chancellor, Lord Falconer, about the case, the Joint Committee found that the
Human Rights Act had been used “as a convenient scapegoat for unrelated
administrative failings within Government”. On the case of the Afghani hijackers,
the Committee observed: “In our view high level ministerial criticism of court judgments in
human rights cases as an abuse of common sense, or bizarre or
inexplicable, only serves to fuel public misperceptions of the Human
Rights Act and of human rights law generally”.
156
49. The Sweeney case in June 2006 was examined by the House of Commons
Constitutional Affairs Committee.
157
The Home Secretary had expressed strong
criticism of the sentence given to Craig Sweeney by Judge John Griffith Williams
QC, after he had pleaded guilty to abducting and sexually assaulting a 3-year old
girl. The situation was not helped by a statement on radio by the Parliamentary
Under-Secretary of State (Vera Baird QC) to the effect that the judge’s sentence
was wrong. This was promptly followed by correspondence between the Minister
and the Lord Chancellor, in which she withdrew her comments and acknowledged
that they should not have been made. Annex 2 to this paper contains an extract
from the evidence given by the Lord Chancellor to the Constitutional Affairs
Committee. Annex 3 contains the text of a letter sent by the Lord Chief Justice to
circuit judges dated 19 June 2006. Such a letter may have raised their morale, but
would not bring to the public generally that it was not the error of a judge that had
caused the controversy.
50. At one time, it was considered to be a constitutional convention that
members of the Executive would not criticise members of the judiciary. While the
Government might properly say that a court decision differed from the legal advice
on which it had acted or that it proposed to bring in amending legislation,
Ministers were expected not to state that a court’s decision was wrong, nor to
impute improper motives or incompetence to the court. To quote Brazier again,
writing in 1994:
“Ministers are by convention expected to show due inhibition when
commenting in Parliament on judicial words and deeds…”—
to which the author added the comment,
“It would never be proper for Ministers to criticise the judiciary outside
Parliament”.
158
51. The interpretation and effect of many conventions fluctuate over time. The
behaviour of some Ministers in recent years makes it necessary to consider whether
the convention stated by Brazier still survives, or whether it has merely lost some
of its former authority and been ignored.
52. In 1995, there was a period of acute tension between the Home Secretary
(Mr Michael Howard) and the judiciary, resulting from a series of judicial review
decisions involving the Home Office.
159
Criticisms of the judiciary by Mr Howard
were accompanied by attacks launched by several newspapers on judicial review,
on the judiciary in general, and on individual judges. The Times (3 November
1995) said,
“it is tempting to observe a pattern emerging, a potentially alarming hostility
between an over-mighty executive and an ambitious judiciary”. 53. In February 2003, the Home Secretary, Mr David Blunkett, reacted with
anger to a decision of Collins J upholding the right of six asylum-seekers to receive
support from the National Asylum Support Service (NASS), an agency of the
Home Office.
160
The case arose under section 55 of the Nationality, Immigration
and Asylum Act 2002, which prevented the Home Secretary from granting
support to certain asylum-seekers but empowered him to grant support to them
where this was necessary for avoiding a breach of their Convention rights. In the
absence of a right of appeal against a refusal of support by NASS, the flood-gates
opened to a torrent of claims for judicial review. The decision by Collins J led
Mr Blunkett to say on radio:
“Frankly, I’m personally fed up with having to deal with a situation
where Parliament debates issues and the judges then overturn them”.
In a newspaper article, he said that it was “time for judges to learn their place”.
The Daily Mail, along with some other newspapers, complained that Collins J
“had chosen to set his will above Parliament’s”. A Labour MP wrote in the Express
on Sunday, “We’re used to lawyers trying to bend the rules. What is not so easy to
forgive is the destructive activity of a judge.”
55. In dealing with the Home Secretary’s appeal in this case, the Court of
Appeal explained that the task of the courts was to interpret the laws made by
Parliament, and commended “the care with which, in his lengthy judgment, [the
judge] addressed the difficult issues before him”.
161
The judgment of Collins J was
largely upheld, although not entirely, but the court endorsed the view that the
Home Office’s decision-making failed the test of fairness. Later, when other cases
reached the House of Lords, section 55 was considered by the Law Lords to be
inherently likely to cause the Home Secretary to breach the right of a destitute
asylum-seeker not to be subjected to inhuman or degrading treatment. The same
view of the section had been taken by the Joint Committee on Human Rights
when the proposed clause was rushed through Parliament without adequate
debate.
162
Some aspects of this episode were highly specific to the immediate
context, but the affair vividly illustrates the need for an independent judiciary able
to interpret the laws made by Parliament, particularly when Ministers do not
appear to understand the constraints that apply to their policies, or indeed the full
content of legislation that they proposed to Parliament.
56. It is not known whether Lord Irvine, Lord Chancellor at the time of
Mr Blunkett’s attack upon Collins J, intervened with his Cabinet ministerial
colleague. But some months later, Lord Irvine referred to the role of the executive
under the HRA and said:
“But what about when the courts disagree with the executive? In a
democracy under the rule of law, it is not mature to cheer the judges
when a win is secured and boo them when a loss is suffered. Under the
previous administration, the public would have been forgiven for
thinking that on occasions the executive and the judiciary had ceased to
be on speaking terms. In the latter two years of the last government,
there was unprecedented antagonism between judiciary and government
over judicial review of ministerial decisions. Some Conservative
politicians even went so far as to call judicial review into question. We
have come a long way since then and the Human Rights Act has helped
us do so”.
163
Later, in evidence to a House of Commons committee, Lord Irvine gave an
‘absolute assurance’ that while Lord Chancellor he had frequently argued within
government to insist that judicial independence was upheld.
164
57. While it is certain that recent governments have found it difficult to
welcome decisions on judicial review to which Ministers are opposed, it is not
possible to assess the extent to which Lord Chancellors have had to intervene in
such moments of strain. But the record since the mid-1990s set out above suggests
that some Ministers today find their constitutional duties in this respect to be
irksome. Today, as has been seen above, all Ministers are required by the
Constitutional Reform Act 2005, s 3(1) to “uphold the continued independence of
the judiciary”. If the earlier convention that Ministers should not criticise the
judiciary has been seriously eroded, as it seems to have been, steps are needed to
re-state the convention in the light of that statutory duty.
58. Since this is primarily, but not exclusively, a question that affects the
conduct of Ministers, it would be appropriate for a new chapter to be included in
the Ministerial Code that would make a full statement for the guidance of Ministers
and their advisers of their obligations in respect of the judiciary. It should
include
—
(a) a statement of the implications of sections 1 (rule of law) and 3 (judicial
independence) of the CRA for Ministers and their advisers, including the special
role that the Act prescribes for the Lord Chancellor;
(b) a statement of the sub judice rule from Parliament, but adapted for a ministerial
context, emphasising the need to avoid intervening with comments that might
prejudice the outcome of a current or pending trial or hearing; the rule should go
further than the rule in Parliament by applying not only to court proceedings but
also to tribunal proceedings;
(c) a statement of the limitations that ought to apply to comment on and criticism
of decisions that have been made by courts or tribunals;
(d) a reminder of the respect that Ministers, as members of the executive, should
extend to the courts and the judiciary;
(e) a suggestion that Ministers should seek advice if necessary on the legal issues
involved before making off-the-cuff comments on current or recent court and
tribunal proceedings; that advice should be available both within departments and
also from the Lord Chancellor or the Attorney-General.
It is indeed remarkable that the Ministerial Code is at present silent on the subject
of relations with the judiciary.
165 The inclusion of a statement on these lines in the
Ministerial Code would have the further advantage of making it readily available to
the advisers of all members of the Government.
G. Conclusions
59. This is a long paper, but it has not dealt with all the issues that are relevant
to this ‘short inquiry’ by the Committee on the Constitution. Thus I have not
mentioned participation by judges in the media, the use of judges for governmental
inquiries, or the appointment of judges to such posts as the Intelligence Services
Commissioner under the Regulation of Investigatory Powers Act 2000. Although I
have dealt separately with the implications of the CRA 2005 and the HRA 1998,
an integrated picture of the changing position of the judiciary would require these
two very different Acts to be taken into account together. A comprehensive
assessment would include the role of national courts in respect of EU law, and
possibly also the effects of devolution.
60. Despite the political controversies that have arisen in relation to the HRA,
and although the internal balance between Parliament, Executive and the judiciary
has changed because of that Act, an appraisal of the present role of the judiciary
would in my view be incomplete without some recognition of the way in which the
judges have answered the difficult questions that arise from the HRA and the
ECHR. The case-law includes some remarkable judgments that have fully justified
the aim of the Act in enabling United Kingdom judges to contribute to the
developing understanding of human rights protection in the 21
ANNEX 1
st
Century.
Joint Committee On Human Rights Thirty-Second Report
(2005–06): The
Human Rights Act: the DCA and Home Office Reviews
Summary
Introduction
In May 2006 there was public controversy over the Human Rights Act 1998
(HRA). Three high-profile cases led some to argue that the HRA, or the way it
was being interpreted, was preventing the Government from ensuring public
safety, and that it should be repealed or amended. The Prime Minister asked the
Lord Chancellor and the Home Secretary to conduct reviews of the impact of the
HRA. He also asked the Lord Chancellor to “devise a strategy, working with the
judiciary, which maintains the effectiveness of the HRA, and improves the public’s
confidence in the legislation”, and asked the Home Secretary “to consider whether
primary legislation should be introduced to address the issue of court rulings
which overrule the government in a way that is inconsistent with other EU
countries’ interpretation of the European Convention on Human Rights.”
(paragraphs 1–2).
On 18 May the Joint Committee on Human Rights decided to conduct an enquiry
into “the case for the Human Rights Act”. In October 2006 we also decided to
inquire into the human rights implications of Home Office proposals drawing in
part on its internal review of the impact of the Human Rights Act and the
European Convention on Human Rights on decision making in the criminal
justice, immigration and asylum systems. We also raised with the Home Secretary
the Chahal judgment. We took oral evidence from the Lord Chancellor and
Baroness Scotland on 30 October. The main purpose of this Report is to inform
Parliament about the Government’s recent reviews of the Human Rights Act
(paragraphs 3–8).
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